person yet there is not a word that excludes him from nominating Judges to hear and determine Therefore if he could nominate Referrees to rectifie a Chancery-Decree before the Statute as most apparently he could he may do so yet there being not one word in the Statute that prohibits it And whereas it prohibits all arbitrary ways whatsoever of disposition of the Subjects Estates by the King or his Privy Councel this course is not to promote Arbitraryness but to prevent it for it is more arbitrary to leave Causes to the final determination of one single mans Judgment than to refer it to the Judgment of five or six it being not so easie to corrupt or deceive many as one and that is the reason why a Tryal by Jury of Twelve is so much approv'd of and applauded for they being many Fortescue fol. 75. cannot all be easily corrupted And as to that part of the Act that says The fore-mentioned Estates ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law certainly none can say that have considered the premisses but that referring the examination of Chancery-Decrees to a convenient number of sage persons as is aforesaid may very well be accounted a proceeding in Chancery according to the ordinary course of that Court since the first practice of the Court was to determine not by the Chancellor alone but by the consent of divers others as is aforesaid Sect. 3. And I conceive the House of Lords terming it a reviewing of the Decree in Chancery when they directed application to be made to the King for a Commission as is afore-mentioned and all the Judges of England giving their Opinion for the legality of such proceeding and the same consented and agreed to by the then Lord Chancellor and the long continued practice of it without any dislike when there was occasion as I have made appear for several Princes Reigns and until an unparallell'd Rebellion and Usurpation put that as well as all things else out of course may intitle it to an ordinary course of proceeding if any proceeding at all in Equity in Chancery can be so accounted and the determining Causes there by the Chancellor himself without any assistance or consent of others is more like an arbitrary and an extraordinary way and new sort of practice than that For further manifestation of this matter and that a reference from the King to examine the injustice of a Chancery-Decree is a proceeding in Chancery and no erecting of a new Court and that as well when the Lord Chancellor or Lord Keeper is not one of the Referrees or Commissioners as when he is it appears by the proceeding upon the fore-mentioned Reference by the King to the Master of the Rolls and a Judge of the Kings-Bench to examine the injustice of the Decree between Pennington and Holmes afore-mentioned That upon that reference the proceedings on the first Decree was staid and what was done thereupon is entred among the proceedings in Chancery as an Act of that Court And moreover Dúgd Orig. Ju. fol. 32. That Etheldred appointed the Office of Chancellor to be exercis'd by three Abbots by turns it cannot be deny'd but the King may commit the custody of his Great Seal to several Commissioners as King James did upon the outing of the corrupt Lord Bacon See the Parliament Roll of that time and Dugd. Chronological Table of Chancellors and Keepers and in such cases one of the Commissioners keeps the Seal and is President amongst the rest but they have all equal Authority in judging according to the purport of the Commission * 12 Maii 19 Jac. ordered in Chancery inter Butler and Eliot That the Decree made by the Lord Bacon should not be signed by the Commissioners of the Great Seal until notice to the other side as by the Registers Book of Orders in Chancery of that day appears and do sign Decrees and if the King may make many Judges in Equity to hear all Causes generally what is the reason he cannot appoint many Judges there in some few particular Causes upon complaint of mistake by his Chancellor or Keeper since he that may do more can do less and the King is not ty'd to have any certain or limited number of Judges in his Courts for there were in the Common-Pleas in E. 4.'s time and before sometimes 6 7 or 8 and King James had five Judges in the Kings-Bench whereof my Great-grand-father Sir David Williams was the fifth and as many in the Common-pleas about the beginning of his Reign as may appear by Dugdale's Chronological Table of Judges of that time So that I cannot apprehend any manner of prohibition neither express nor implied in this Statute nor any other against the Kings referring the examination and regulating unjust Decrees in Chancery to others besides the Chancellor or Keeper This Statute deserves not to be extended beyond it self it being a penal Statute which is never to be taken by Intendment further then the very express words of the Prohibition upon a strict and bare construction will bear however the Statute it self in the conclusion hath by express words somewhat mended the matter from what is contain'd in the premisses for in the end of the Act there is a Provisoe which doth in effect restore the King to almost all his Ancient Jurisdiction and puts all the seeming Cause of doubt about the matter of Referring the Examination of unjust Decrees in Courts of Equity quite out of doors by confining the meaning and construction of the Statute to the words of the Provisoe therein contained which Provisoe is in these words Provided always and be it Enacted that this Act and the several Clauses therein contain'd wall be taken and Expounded to extend only to the Court of Star-chamber and the said Court holden before the President and Councel in the Marches of Wales and before the President and Councel in the Northern parts and also to the Court commonly call'd the Court of the Dutchy of Lancaster holden before the Chancellor and Councel of that Court and also in the Exchequer of the County Palatine of Chester before the Chamberlain and Councel of that Court and to all Courts of like Jurisdiction to be hereafter Errected Drdain'd constituted or appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Committments Restraints and Imprisonments of any person or persons made commanded and awarded by the Kings Majesty his Heirs and Successors in their own Persons or by the Lords and others of the Privy-Council and every one of them So that here 's an Explanation that no Court or Proceeding in any Court is to be taken away but the Court of Starchamber and the Jurisdiction thereof and such like Courts of like Jurisdiction and this of the Kings referring the Examination of unjust Decrees in Chancery to particular Commissioners and Referrees was practis'd out of the Star-chamber when
c. The Kings Laws the Laws of the Twelve Tables the Civil Law Laws made by the consent of the People or Decrees of the Senate and therein he was not absolute as in the other But out Chancellor or Keeper and their Praetor do do differ very much for the Praetor would at his Entry into that Office propound and publish certain Edicts which were Principles and Fountains out of which he would derive his Decrees but what Rules or General Notions the Lord Chancellor or Lord Keeper in England doth assign unto himself for Limitation of Equity and direction of his Conscience those lie hid and concealed in his own Breast so that neither the Man of Law nor Equity is able to inform his Client what is like to become of the Cause and consequently no man is able to know what is his own so that it may be said of this great Officer arm'd with this great Power as was said of Jeremiah's Figs Jer. 24.4 Those that were good were very good but those that were evil were exceeding evil For that Power if it be used according to the true intent and design of it is of Excellent use Optima corrupta sunt pessima but if abus'd it is the greatest oppression imaginable and that that Power hath been abused will appear by the next Section SECT V. Of the Corruptions and Mistakes of some Great Chancellors I Find in the Journal Book of the Lords House in the year 1620. and in the 19th year of King James that on the 19th of March in that year a Message was sent from the Lower House to the Lords importing That they had found Abuses in certain Eminent Persons about which they desired a Conference with their Lordships that such course might be taken as might stand with the Honour and Dignity of a Parliament which was agreed to by the Lords and the Conference was appointed to be that afternoon and the next day it was Reported to the Lords by the Lord Treasurer That at the Conference was deliver'd the desire of the Commons to inform their Lordships what they had found in their Inquiry after the Abuses of the Courts of Justice where after having highly commended the incomparable good parts of the then Lord Chancellor and magnified his place from whence Bounty Justice and Mercy were to be distributed to the Subject with which he was wholly Intrusted They declared that the Lord Chancellor was Accused of great Bribery and Corruption committed by him And instanced two Cases one concerning one Christopher Awbrey and the other concerning one Edward Egerton As to Awbrey the matter was That He having a Cause in Chancery between Him and Sir William Brunker Awbrey feeling some hard measure was advis'd to give the Lord Chancellor 100 l. which he deliver'd to his Council Sir John Hastings and He to the Chancellor but notwithstanding the business proceeding slowly Awbrey writ several Letters and deliver'd them to the Lord Chancellor but could never have any Answer from his Lordship but at last delivering another Letter his Lordship told him if he importun'd him he would lay him by the Heels As to Egerton's matter it was set out at large at the Conference and will appear by the substance of Egerton's Petition to the Lords the effect whereof amongst other things is as followeth That the said Edward Egerton being Vnmarried and Sickly he settled his Estate to the use of himself and the Heirs Males of his Body and for default of such Issue the Remainder to Sir John Egerton and his Heirs which Settlement was voluntarily made without any consideration paid for the same and with Power of Revocation and that Sir Rowland Egerton Son and Heir of the said Sir John Egerton had got the said Settlement into his hands and all the Petitioners Writings and that the late Lord Chancellor Elsemere had Decreed that Sir Rowland Egerton should have the manner of Wrinehal and Haywood Barnes being a great part of the Petitioners Inheritance worth 600 l. per Annum without any cause of Equity contain'd in the said Decree and that the Petitioner had made humble Suit to the Lord Viscount St. Albans then Lord Chancellor of England to have the benefit of a Subject to recover his Ancient Inheritance by Ordinary course of Law and that his Lordship took from the Petitioner 400 l. in Gold and 52 l. 10 s. in Silver Plate which Money was accepted of by the said Lord Chancellor saying withall That the Petitioner had not only Enrich'd him but laid a tye upon him to do the Petitioner Justice in his Rightful Causes and by great Oaths and Protestations drew the Petitioner to Seal an Obligation to his Lordship of ten thousand Marks to stand to his Lordships Award and that afterwards the Petitioner was divers times sent for by one Robert Sharpeigh then Steward of his Lordships Houshold and that the Petitioner was several times offer'd that if he would then presently pay 1100 l. in ready Money that is to say 1000 l. to his Lordship and 100 l. to Sharpeigh the Petitioner should have all his Lands Decreed to him which Money he could not readily pay and that afterwards the said Lord Chancellor did not only confirm unto the said Sir Rowland Egerton the Land which he then held of the said Petitioner's Inheritance being worth 600 l. per Annum but took away more Lands worth 15000 l. and Decreed the same to Sir Rowland Egerton who did not claim any Title thereto before the said Bond taken and Vnlawful Decree made and that he also Decreed the Bond should be Assigned to Sir Rowland Egerton And the Petitioner having spent 600 l. in Suits and being depriv'd of all his Evidences by the said Lord Chancellor and by the indirect practice of the said Sir Rowland He was likely to be utterly defrauded of all his Ancient Inheritance contrary to the common Justice of the Land unless reliev'd by their Lordships The Contents of which Petition the Petitioner made Oath to be true and he and Sharpeigh were further Examin'd touching the matter By the Journal of the Lords House for the 21st of March in the year 1600. It appears that there had been Information given to the House that there had been a Cause depending in Chancery between one Smithwicke and Wiche which was matter of Account and had been Referred to Merchants and the Merchants had Certified on Smithwick's behalf yet to obtain a Decree in the Cause he was told by one Burrough that was near to the Lord Chancellor that it must cost him 200 l. which he paid to the use of the Lord Chancellor yet his Lordship Decreed but one part of the Certificate Whereupon he treats again with Burrough who demands another 100 l. which Smithwick also paid to the use of the Lord Chancellor then his Lordship Referr'd the Accounts again to the Merchants who Certified again for Smithwick yet his Lordship Decreed the second part of the Certificate against Smithwick and the
Justices of both Benches and made his Decrees according to their Opinion As for instance In the Year-book of the 37th of H. 6. fo 13. the Case was That one A. had bought of J. R. several Debts due to J. R. from several persons and A. gave a Bond to J. R. for the sum And forasmuch as those Debts were but things in Action and no Property was chang'd nor no Action accru'd by the bargain to the said A. but the Debtors remained Debtors still to the said J. R. so that A. had nothing for the money secured by the obligation A. prays in Equity to be discharged of the said Bond against J.R. and prays a Subpaena against J.R. and it was granted and the Defendant answered and the Chancellor because the matter seemed doubtful to him adjourn'd it to the Exchequer-Chamber before himself and the Justices of both Benches and there it was debated and by the Opinion of all the Justices because the said A. had not quid pro quo by that bargain therefore the Bond ought to be released and it was decreed accordingly The like will appear to be done by the Book-cases following 37 H. 6. f. 35 36 39 H. 6. f. 26.7 E. 4. f. 14 c. And if he did not adjourn the Causes into the Exchequer-Chamber he always had the Judges or some of them with him at all hearings and decreed according to their Opinions for the entry of the Decrees in Chancery of H. 6.'s time are after this manner Els Off. of Chan. fo 51. says the Author cited in the Margin viz. Consideratum est per Curiam ex assensu Johannis Fortescue Milit ' Capital ' Justiciar ' Domini Regis ad placita tenenda diversorum aliorum Justiciariorum servient ' ad legem in Curia praesent ' existent ' quod c. and sometimes it was ex assensu omnium Justiciar ' utriusque Banci and sometimes of one or two Justices but before the end of that King's Reign the manner of entry of the Decrees was somewhat altered and was in this manner Considerat ' Adjudicatum Decret ' est per Cancellarium per Curiam Cancellar ' without particular mention of any Justices or others and so it continued till H. 8.'s time But towards the end of his Reign whereas before that time the Decrees were in Latine and in very few words and entred on the back-side of the Bills they then began to be drawn up in English apart by themselves and therein reciting the Bill and Answer and afterward were enroll'd in Rolls by themselves The ancientest of that nature that I can find are in the Rolls Chappel and are of the 27th and 28th of H. 8. when Sir Thomas Audley was Chancellor In Queen Maries days the entry of all the Decrees is That it is Ordained Adjudged and Decreed by the Lord Chancellor and by the whole Court of Chancery That so and so and after the same manner it is at this day saving that the conjunctive clause And by the High-Court of Chancery which in the beginning was not incerted in vain is now altogether superfluous and impertinent for the Lord Chancellor or Lord Keeper without the assent or consent of any other have made Decrees for some years past according to his own liberum arbitrium as I shall shew in the next Section SECT IV. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery IN the Chancery are two Courts C. 4. Inst fo 79. one Ordinary wherein the Lord Chancellor or Lord Keeper of the Great Seals proceeds according to the right line of the Law and if he gives an Erroneous Judgement Plowd 393. que B.R. est le Pluis hault Court Dyer 315. there a Writ of Error lies returnable in the Kings Bench the other is Extraordinary wherein the Chancellor ought to proceed according to the Rule of Equity which according to what it is now taken is what is according to the Chancellor's single Conscience quecunque Els Office of Ch. fo 41. sit it is say some an absolute Power without controul other then in Parliament and spreadeth it self most largely without any Limitation it stops the proceedings of all the other Courts at Westminster it renders all their Judgements vain and ineffectual durante bene placito of the Chancellor or Keeper and stops Execution untill his Conscience be satisfied whether the Plaintiffs at Law ought to go on or no by which means when a man hath a Judgement fairly obtain'd at Law or intends to Sue there for a Just and True Debt if the Defendant at Law becomes Plaintiff in Chancery and he or his Councel hath but Invention enough to suggest any sort of Equity there 's an Injunction had of course until the Plaintiff at Law can put an Answer to the Bill which if he lives any thing remote from London it will take up a Month or two's time or more to send an Answer and in the mean time the Debtor prepares his Bag and Baggage and by that time the Injunction can be Dissolv'd which cannot be without a considerabe Charge the Gentlemen is perhaps got to Ireland Jamaico or Japan What ever is now finally determin'd in Equity in Chancery it is done by the Chancellor or Lord Keeper alone and though the Clerks and Registers retain in drawing up their Decrees somewhat of the old form ziz That it is Decreed by the Lord Chancellor or Lord Keeper and by the High Court of Chancery which implyes there were some others ought to have a hand in making the Decree yet there is none that now have for though there are two at least of twelve that bear the name of Masters in Chancery and heretofore were accounted Socii and Collaterales to the Chancellor that daily sit in Court one on each side of the Lord Chancellor or Keeper yet they are now but as his Attendants and speak not a word in determining any Causes their only business being to wait and expect how many References the Lord Chancellor will make to them touching insufficient Answers Scandalous Bills or Answers Contempts stating of Accounts and the like they being to have a Fee for their Report therein yet that Report is subject to the controul of the Chancellor or Keeper if he pleases And if at any time which is but seldom any of the Judges are sent for it often proves to be meerly out of Formality for their Opinions are seldom regarded It is said of the Chancellor and Keeper of the Great-Seal of England Els Office of Cla fo 6. that he is like the Roman Praetor in whose Constitutions there were said to be two kinds of Powers one was when without the Advice of the Judges he would Manumittise Emancipate Award Possessions of Lands and Goods Commit Wardship of Pupills and grant Injunctions as he thought convenient The other sort of Power the Praetor had was when he proceeded to Judgment according to Leges Regis
first part which was formerly Decreed for him his Lordship made doubtful whereupon Smithwick Petition'd to the Lord Chancellor to have his Money again and he had it It appears further by the said Journal Books that several days were in a great part Employed in taking Examination of Witnesses in proving and detecting the Briberies and Corruptions of that Lord Chancellor which being ended and collected were order'd to be Transcrib'd with the Proofs and on the 24th of April following were order'd to be sent to his Lordship with a Message that the Lords requir'd his Answer with all convenient speed The Corruptions as they are mentioned to be prov'd in the Journal of the Lords House of the said 24th of April are as followeth That in the Cause between Sir Rowland Egerton and Edward Egerton his Lordship received on the part of Sir Rowland Egerton before he decreed for him 500 l. Item of Edward Egerton in the said Cause 400 l. Item in the Cause between Hodie and Hodie a dozen of Buttons after the Cause end ed of the value of 50 l. Item of the Lady Wharton 310 l. Item of Sir Tho. Munke 100 l. Item of Sir John Trevor 100 l. Item of one Young 100 l. Item of one Fisher 106 l. Item in the Cause of Kenday and Valore of Kenday a Cabinet worth 800 l. Of Valore borrow'd at two times 2000 l. Item in the Cause between Scot and Lenthall of Scot 200 l. Item of Lenthall 100 l. Item of one Wroth who had a Cause between him and one Mannering 100 l. Item of Sir Ralph Hansby 500 l. Item in the Lord Mountaine 's Cause of the Lord Mountaine and more promis'd at the end of the Cause 600 or 700 l. Item of one Mr. Dunch 200 l. Item in a Cause between Raynold and Peacock 200 l. in money and a Diamond Ring worth 5 or 600 l. 700 or 800 l. Item of Peacock 100 l. Item in a Cause of Barker 700 l. Item there being a reference from his Majesty to his Lordship of a business between the Grocers and Apothecaries he had of the Grocers 200 l. Of the Apothecaries besides a rich present of Ambergreece 150 l. Item of the French Merchants to constrain the Vintners of London to take 1500 Tuns of Wine to accomplish which he used very indirect means by colour of his Office and Authority without Bill or other Suit depending as threatning and imprisoning the Vintners for which he receiv'd of the Merchants 1000 l. Lastly That he had given way to great exactions by his Servants in respect of private Seals and sealing Injunctions By the Journal-book of the 25th of the said month it appears that Baron Denham and Mr. Attorney-General reported their delivery of the Charge of the Lord Chancellors corruptions to his Lordship and that he said he would return the Lords an Answer whereupon the Lords soon after sent a message by Baron Denham and Mr. Attorney to know if he would make his Confession or stand to his Defence to which they brought answer That his Lordship would make no defence to the charge but meant to acknowledge corruption and to make a particular confession to every point and after that an humble submission but he humbly crav'd liberty that wherein the charge was more full than he finds the truth of the Fact he may make declaration of the truth in such particulars the charge being brief and not containing all circumstances Whereupon the Lords sent the same Messengers back to him to let him know they had granted him time till Monday next being the 30th of April at 10 in the morning to send such Confession as his Lordship intended to make On the 30th of April the Lord Chief-Justice Leigh who then executed the place of Lord Chancellor in the Lords House signified to their Lordships that he had received a Letter and paper Roll sealed up which being delivered to the Clark of the Lords House and being opened found directed to their Lord ships it was read and began thus To the Right Honourable the Lords Spiritual and Temporal in the High-Court of Parliament assembled The Confession and humble Submission of Me the Lord Chancellor UPon advised consideration of the charge descending into my own conscience and calling my memory to an account so far as I am able I do plainly and ingeniously confess that I am guilty of Corruption and do renounce all defence and put my self upon the Grace and Mercy of your Lordships The particulars I do confess and declare to be as followeth To the first Article of the charge viz. in the Cause between Sir Rowland Egerton and Edward Egerton the Lord Chancellor received 500 l. on the part of Sir Rowland Egerton before he decreed the Cause I do confess and declare Upon a reference from his Majesty of all Suits and Controversies between Sir Rowland Egerton and Mr. Edward Egerton both parties submitted to my award by Recognizance reciprocally in 10000 Marks apiece and thereupon after divers hearings I made my award with advice and consent of my Lord Hobbart and the award was perfected and publish'd to the parties which was in February Then some days after the 500 l. mentioned in the charge was delivered to me Afterwards Mr. Edward Egerton fled from the award Then in Midsummer Term following a Suit was begun in Chancery by Sir Rowland to have the award confirm'd and upon that Suit was the Decree made which is mention'd in this Article To the second Article viz. That in the same Cause he received from Edw. Egerton 400 l. I confess and declare That soon after my first coming to the Seal being a time when I was presented by many the 400 l. mentioned in the charge was delivered unto me in a Purse and I now call to mind from Mr. Edward Egerton But as far as I can remember it was exprest by him that brought it to be for favours past and not in respect of favours to come To the third Article of the charge viz. in the Cause between Hodie and Hodie he receiv'd a dozen of Buttons of the value of 50 l. about a fortnight after the Cause was ended I confess and declare That as it is laid in the charge about a fortnight after the Cause was ended it being a Suit of great Inheritance there were Gold Buttons about the value of 50 l. as is mentioned in the charge presented unto me as I remember by Sir John Perient and the party himself Thus far it is verbatim as it is in the said Journal book and after the same form he proceeds and confesseth the receipt of all the money and other things in the charge and some particular sums more but with some little endeavours to extenuate the Crime as that the money was sent as a present after the Causes ended and confessed that he had imprisoned some of the Vintners because they refused to take off the French Wines and that it was a great fault in him that he
ipso Rege And I find by the Journal of the Lords House that the 10th of December 1621. a Report was made by a Committee appointed to search for Precedents touching Appeals to the Lords from Decrees in Chancery In the Stat. 37 E. 3.18 by Gr. Councel is meant the Privy-Council That anciently all Petitions of that nature were directed to the K. and his great Councel From whence I gather it is but a late practice both to leave the King quite out of such Petitions and to neglect praying his allowance that the Lords may examine Errors of Judgements and Decrees And perhaps it may prove of ill consequence hereafter if not timely considered and rectified the Supremacy of Jurisdiction being the Supreme part of Government Mir. 232. the King 's chiefest Dignity By the foresaid Statutes of E. 3. and El. and some others since made there is sufficient provisions against erroneous Judgments in all Courts at Law in the intervals of Parliament by Writs of Error which are in nature of Appeals which course I conceive the King might have taken if no such Act had been made But against the Judgments and Decrees of the Courts of Equity in Chancery Exchequer Chamber and Counties Palatine c. there is no provision at all by any Parliamentary Act that matter standing as it did by the Common-Law no Parliament having intermeddled with it which if they had they had the same reason or more to desire the King to constitute a Court of Appeal from these Courts of Equity as from other Courts And it is a great Argument with me if there were no other that it was conceived by the Parliament that there is a Power in the King alone out of Parliament-time to rectisie the Errors of the Decrees of all Courts of Equity else the Parliament I presume would have taken care to have provided against those as well as against the Errors of the Court of Kings-Bench which provision was made because they conceived those Errors not to be redressed but in Parliament and the same reason that induced the Parliament to constitute Courts to redress the Errors of the Kings-Bench and Exchequer viz. the unfrequency of Parliliaments and their being otherwise employ'd when they fit may induce the King to appoint Referrees to rectifie Chancery-Decrees For the further clearing of this matter it seems in Queen Elizabeths time there was the like doubt made as now Whether the Queen might relieve against the mistakes of the Chancellor or Keeper in making his Decrees And the Queen took the right way to be inform'd she referr'd it to the Judges to certifie to her their Opinion touching that matter For it appears Rolls Re. 1 p. 331. by the Authority in the Margin that it was certified by all the Judges of England in the Cause between the Countess of Southampton and the Earl of Worcester in Chancery that the Queen upon Petition might refer the matter to the Judges but not to others to examine and reverse the Decree if there should be cause and that the then Lord Chancellor agreed to that resolution And forasmuch as it is mentioned in that Report that the referrence ought to be to the Judges and not to others it is to be understood that it was a point in Law was then in dispute and in such Cases there must be some Judges amongst them for in arte sua cuique credendum est and therefore Judges whose profession the study of the Law is are presum'd to be best conusant of any what the Law is and the Law is not to be unregarded in judging according to Equity but both Law and Conscience are to be so intermix'd as to produce a just Judgment a skill of great curiousity and ought therefore not to be final but in the resolution of several men of great knowledge and integrity since the least byass of affection or disgust to one side or other may lead any single man a great way out of the way I presume this may be the meaning of that Report because I find in the Year-book of the 27th of H. 8. so 15 c. That the Kings Secretary and Mr. Fitz-Herbert were join'd with the Chancellor to review a Decree between the Prior of St. Johns and one Dockeray where the Secretary gave rules in the Cause as well as the Chancellor The House of Lords themselves always take the advice of the Judges and to leave matters of Equity wholly to the Chancellor alone in the intervals of Parliament is to give him a greater power than the Lords take to themselves in Parliament which I humbly conceive ought not to be Besides this resolution of all the Judges assented to by the then Lord Chancellor it was afterwards agreed to by the House of Lords themselves That it was proper for the King to give authority to examine and correct Decrees in Chancery as appears by their own Order which is as followeth viz. Die Veneris vicesimo octavo die Maii 1624. THe Petition of Will. Matthews of Landast was read and the Answer thereunto conceiv'd by the Lords Committees for Petitions after Councel heard on both sides many several days was reported to the House by the Lord Houghton and read in haec verba viz. The Lords Committees upon the examination of the whole Cause between William and George Matthews find William Matthews principal Debt to be Five thousand two hundred and sixty pounds which they hold fit to be paid by the said George Matthews thus Vpon St. Andrews day next One thousand six hundred twenty four 2000 l. Vpon St. Andrews day One thousand six hundred twenty five 2000 l. Vpon St. Andrews day One thousand six hundred twenty six 1260 l. The whole sum 5260 l. And that for security for the payment of this Debt according to every several day and payment here set down the whole Land to stand bound and that this be the better performed the Lords Committees think fit the execution hereof be recommended to the Court of Chancery Die Veneris vicesimo octavo die Maii 1624. post meridiem George Matthews exhibited his Petition in haec verba viz. To the Right Honourable the Lords Spiritual and Temporal in the higher House of Parliament assembled The humble Petition of George Matthews Esq Humbly sheweth your Lordships THat your Petitioners Decree now question'd hath been several times submitted unto by William Matthews never question'd during the life of the Petitioners Father and His Majesty upon information by Petition on both sides declared That he saw no Cause for questioning thereof and it was thereupon ordered That to hear a Cause after submission no Corruption appearing would be a dangerous Precedent In consideration whereof and for that the Decree stands question'd only by Petition nor was your now Petitioner ever party to any Suit nor is there any Bill depending in Court he being informed by Councel that it hath been the course of this Honourable House to reverse Decrees but by
Bill legally exhibited especially where no corruption is prov'd He therefore most humbly beseecheth That he may have the liberty of a Subject and that he may not be concluded and a Decree submitted unto overthrown and the small remainder of his ancient Inheritance taken from him by Order of this Honourable House only upon a Petition He most humbly submits himself herein to your Lordships and will ever pray for your Honourable preservation This Petition being read and considered of these Lords viz. the Earl of Montgomery the Lord Bishop of Durham the Lord Say and Seal and the Lord Denny were appointed by the House to set down an Order in this Cause between William and George Matthews Die Sabbati vicesimo nono die Maii 1624. THe Lords Committees appointed yesterday in the afternoon to set down an Order in the Cause between William and George Matthews reported the same to the House in haec verba viz. THe Lords of Parliament do order That the Cause depending between Will. Matthews and George Matthews shall be reviewed in Chancery by the Lord Keeper assisted by such of the Lords of Parliament as shall be nominated by the House and by any two of the Judges whom the Lord Keeper shall name for which end the Lord Keeper is to be an humble Suitor unto his Majesty from the House for a Commission unto himself and the Lords that shall be named by the House for the said Review and final Determination of the Cause as to them shall appear Just and Equal And this the Lords desire may be done with all convenient speed The which Order being read the House approved thereof and these Lords were named by the House to be joyn'd in the said Commission with the Lord Keeper viz. the Lord Chamberlain the Earl of Montgomery the Earl of Bridgwater the Lord Bishop of Durham the Lord Bishop of Rochester the Lord Denny and the Lord Houghton and the House ordered the same Cause to be heard and determined accordingly in the beginning of the next Michaelmas Term. This agrees verbatim with the Records of the Lords House and pursuant thereunto the matter was review'd by these Commissioners and a Decree by them made in reversal of the Chancery-Decree as appears by the Registers Book of Orders in Chancery of Michaelmus and Hillary Term in the 22d year of King James Sir Edward Cooke in his Jurisdiction of Courts Anderson 2 part 163. to the same effect Title Chancery with greatapprobation reports several Cases of Decrees in Chancery referred to the Judges by Queen Elizabeth to be examined and amended and it is to be noted that his authority in that Case was sevenfold for when he wrote that Book he was very much incens'd against the King for being put out of his Chief Justiceship and set himself as much as he could against the Prerogative as appears by the whole current of that Book so that had there been any colour of denying the Queen this Power he had never cited those Cases without Objections It was not only practiced by Qu. Elizabeth and King James but also by King Charles the first as appears by an Order which I find in the said Registers Office in the Book of Entry of Orders there of the 22d of November in the 7th year of King Charles the first between one Sherbourn the Executor of one Munford the Executor of one Challener Plaintiff and one Townley and Forrest Defendants which begins thus THe matter upon his Majesties reference to the Right Honourable the Lord Keeper upon the humble Petition of the said Townley coming this day to be heard in the presence of Councel learned on both sides before his Lordship being assisted by Mr. Justice Hutton Mr. Justice Jones Mr. Justice Whitlock and Mr. Justice Harvey the Question appear'd to be Whether or how far the said Townley ought to be bound by the Decree made on the behalf of the said Munford for the sum of 17000 l. against the Defendant Townley in Case the Defendant Thomas Forrest should not pay the same And upon the hearing a Bill of Review was ordered to be brought by Townley either upon matter not insisted on at the first hearing or new matter and according to the course of the Court the said Townley was ordered to give security and in the mean time the execution of the said Decree and all proceedings thereupon as against the said Townley was respited and suspended and whereas by the first Decree Townley was decreed to pay as well what his Co-Trustee Forrest had received of the Profits of the Estate of Challener as what he had received himself Vpon the hearing upon the said Bill of Review the first Decree was revers'd and Townley decreed to answer only so much as he himself had received which appear'd by the proofs to be but three half years Rent and it was referred to a Master in Chancery to audit the account touching the three half-years Rent and the Recognizance given by Townley to perform the Order of the Court was discharged In the same Registers Office I find another Entry of an Order of June 1. in the 12th year of King Charles the first between one Pennington and others Plaintiffs and one Holmes Defendant in these words WHereas upon Petition exhibited to the Kings most Excellent Majesty by the Defendant supposing some injustice and wrong to have been done unto him by a Decree made in this Court between the foresaid parties his Majesty was most graciously pleased to refer the matter to the Master of the Rolls to call to his assistance one of the Judges of the Bench and to hear what could be alledged against the said Decree And this day being appointed for the hearing of the matter the Master of the Rolls calling to him Mr. Justice Crooke and having heard the parties and their Councel on both sides and what could be alledged against the said Decree why the same should not be put in execution saw no cause to recede from or alter the same Now after the Opinion of all the Judges of England assented to by the then Lord Chancellor for the legality of this sort of proceeding and the approhation of the House of Lords and their direction for humble Suit to be made to the King for a Commission from Him to proceed accordingly and after so continu'd a series of practice for the Reign of Three of the best Princes that ever sway'd a Scepter without the least Objection then made against it by any that I ever read or heard of I say after all this sure one would think there could be no room for any colour of illegality in that sort of Proceeding But it is objected That the Power and Right of this sort of proceeding is since taken away by the Statute of 16 Car. 1. cap. 10. But I hold that Statute doth not do it in the least nor doth it carry in it the least colour or look that way though indeed it doth take away somewhat
that Court was at height as may appear by the forecited Presidents so that it never was a part of the Jurisdiction or practice of that Court and therefore declared by the said Provisoe not intended to be prohibited by the said Act and as to the King the Provisoe says He is to be restrained but from restraining and imprisoning by his own personal command he may do every thing else that he could have done before He may hear and determine in person if he pleases as he could have done before and he may appoint all such Judges or Referrees to all purposes as he could have done before But as to the Warrants of Imprisoning if any cause for such there should be he is to leave that to his Ministers and the King if he thinks fit upon complaint to him made of Injustice or other Error done by his Chancellor or Keeper may order his Chancellor to order the parties concern'd to appear before the King in person and the King himself may require his Chancellor or Keeper to be present and his Majesty may call others to his assistance whom he may confide in for just and equitable advice and may determine what to him seems meet in the Cause upon conference with them this being for advancement not delay of Justice and if the Chancellor or Keeper doth not use the coercive part of Imprisonment and other Process of the Court of Chancery to compel Obedience to such determination I conceive he doth not do his duty I mention this not that I think it 's absolutely necessary the King should trouble himself to hear all matters in person but I humbly conceive it not amiss for his Majesty sometimes to use his Power in Chancery as well as at Councel-board lest for want of using his Power he may be in danger of losing it and consequently his esteem in the eyes of the people may be lessen'd whilst every of his acting Judges the Chancellor or Keeper especially command respect from their Friends and fear and trembling from their Enemies I am sure Solomon's giving Judgment in the case of the Harlots gain'd him more esteem not only amongst his own Subjects but all the World over than any one other act of Government he did in all his Reign and the Kings not being exactly skill'd in the Law or the formal Rules thereof as a profess'd Lawyer should be should not at all hinder his undertaking it sometimes for a man but of common sense having heard the Case put the proofs made and the Arguments of indifferent men not byass'd Advocates or Councel only may easily discern what Judgment is fit to be given in Equitable Causes and the King hath almost infallible helps He hath his Lords Spiritual and Temporal He hath always at his call twelve Judges men skill'd in the Laws and sworn lawfully to counsel the King in all matters These or some of them he may command to attend him at such Hearings and may command them to give their opinion of the matter according to the nature of the Cause and according to the best of their judgments and the King at such hearing may give or cause to be giv'n a Sentence or Judgment according to the Opinion of the majority of them and this course is the best and was the old way of judging of Equity and if us'd some times would make Chancellors and Keepers more regard what they do But if the King should not be minded to meddle in person with determining any Causes his referring of the examination of Chancery-Decrees to persons fit and able of judgment and knowledge to do it may suffice better then to leave it wholly to his Chancellors single judgment For securius expediuntur negotia comissa pluribus plus vident oculi quam oculus There is at this day a standing Commission enroll'd in Chancery to all the Judges of Westminster hall the Master of the Rolls and the other Masters in Chancery impowering any Three of them whereof the Master of the Rolls or one of the Judges to be one in the absence of the Lord Keeper to hear and determine Causes and that is not thought to be prohibited by any Statute And if the King hath Authority and Power to appoint Commissioners for the Chancellor or Keepers ease why cannot he also give power to Commissioners to rectifie his Decrees when he mistakes The Chancellor or Keeper of the Great Seal is but the King's Deputy during pleasure 9 Rep. 99. and a Grant of that Office for life is void Cooke 4 Inst fol. 87. Upon the whole matter I must conclude I can apprehend no warrantable objection can be made against this sort of proceeding or that any Statute doth or intended to take it away so that I shall take that point for granted That it is very lawful for the King to appoint Referrees or Commissioners to rectifie Chancery-Decrees or Decrees of any other Court of Equity The next thing to be considered is Whether any of the King's Privy-Councel may be Referrees or Commissioners for that purpose notwithstanding the said Statute For they are men of so great Honour Knowledge and Integrity and of such Fortune and Estates as to scorn Bribery and therefore very fit to assist in this matter and I hold They may for the prohibition of the Act extends to their not acting as being only and barely Privy-Councellors It doth not say Privy-Councellors shall not act by virtue of any other Authority And this thing proves it self plainly in the Case of the now Lord Keeper and Lord Chief Justice of the Common-Pleas who are both of the Privy-Councel yet examine draw into question determine and dispose of the Lands Tenements Goods and Chattels of the Subjects with a witness by virtue of another Authority derived from the King and if They may do it why may not any other of the Privy Councel act by a lawful Authority in those matters as well as They The next thing considerable is if the Lord Chancellor or Keeper ought to command performance according to the course of the Chancery of what such Referrees do order by virtue of such Reference when he himself is not one of them as well as when he is and I hold he ought First for whatever Order is made in the House of Lords upon determining an Appeal from Chancery-Decrees it is sent to the Chancery to compel Obedience thereto and in this respect I conceive the House of Lords are but the Kings Referrees and do legally and truly derive their Authority from the King as is prov'd by the due Proceedings upon Writs of Error and the ancient form of Petitions against Chancery-Decrees before-mentioned So that such Referrees do act by Authority derived from the King as well as the House of Lords in Parliament And further the practice hath been for the Lord Chancellor or Keeper to pursue what is done by such Referrees for what was resolved by the Judges upon the References mentioned in Sir Edw. Cooke
4 Institutes and certified by them to the Chancellor was comply'd with by him and what was decreed by the major part of the Commissioners joyn'd with the Lord Keeper in the Case of Matthews and Matthews before-remembred was confirmed and prosecuted by the Lord Keeper as Lord Keeper in and according to the course of Chancery and so in the case of Sherburne and Townley and had been so also in the case of Pennington and Holmes before-mentioned if there had been any alteration of the Decree for the confirmation of that Decree by virtue of the Kings referrence is entred as an Act of that Court so that I think that point is also pretty clear And I presume the enrolling or performing of a Decree before Petition to the King or before obtaining his Commission or Order of referrence which are both as sufficient one as the other there being a sufficient number of Precedents of both sorts is no hindrance but that restitution may be awarded if the Commissioners and Referrees make certificate to the Chancellor or Keeper that it ought to be so for the enrollment of a Decree doth not make it more irrevocable then it was before the enrollment but that notwithstanding it may be altered in the same Court for it is not a Record and in that respect not so high in the eye of the Law as a Judgment according to the course of the Common-Law which cannot be revers'd in the same Court and this was so held in H. 8.'s time 27 H. 8. fol. 15. in a Cause in Chancery before mentioned in the 6th Section between the Prior of St. Johns and one Dockeray where upon a review in Chancery before the Lord Chancellor the King 's Secretery and Mr. Fitz-Herbert it was held and allowed that a Decree there is but an Order made by the Court for the time which upon good consideration and cause shewn may well be altered notwithstanding all the arguments then made by the Councel for the first Decree to prevent inspecting into it as that such looking back tended to confusion and would make Causes endless and the like whereunto the Kings Secretary sitting then in equal authority with the Chancellor as appears by the Report made answer and commanded the formal man that was against inspecting the injustice of the Decree to forbear disputing the Power of that Court and such was the practice of the late Lord Chancellor Nottingham who would often rehear and re-hear again and again upon Councels certifying it under their hands that there was good Cause The Cause between Thacker Redman was several times heard by the Lord Nottingham and heard again by the Lord Keeper North on the 20th of April 35 Car. 2. after the Decree enroll'd and upon that hearing a Tryal at Law directed which must occasion another hearing as they apprehended for such rehearing his frequent saying being that the nimbleness of a Clark in enrolling his Decree should not hinder him from coming at Justice and that he would leap over Hedge and Ditch to do it and doubtless it is the true and proper power of that Court of Equity so to do And though it doth of descretion entertain some Forms yet it may and ought upon occasion to leave them rather then tie up its own hands from doing Justice for it hath Potestatem absolutam secundum probata Judicare 9 E. 4. f. 15. and if ever any Chancellor did amiss in that respect it was in that he would leap lustily for some but would not hop over a straw for others I wish none in that great place be ever more guilty of the like partiality It appears from what is before-mentioned that the Court of Equity in Chancery is the King 's high Court of conscience for moderating the rigor and supplying the defects of the Common-Law and he may order it and limit the Jurisdiction thereof as to him seems most agreeable to Equity and Justice a further instance whereof appears by an Enrollment of a Commission now to be seen in Chancery At the Rolls 6 pars 14 Jac. nu 25. beginning thus JAMES by the Grace of God c. wherein it is mentioned That the Attorney-General and the rest of the Kings Councel learned in the Law had been commanded to consider and certifie to the King if the Chancery might relieve according to Equity after a Judgment at Law and therein is mentioned the consultation had by the Kings Councel thereupon and their reasons on the point and the Roll ends thus We in Our Princely judgment having well weigh'd with mature deliberation considered of the said several Reports of Our learned Councel and all the parts of them c. Do will and command That Our Chancellor or Keeper of the Great Seal for the time being shall not hereafter desist to give to Our Subjects upon their several complaints now and hereafter to be made such relief in Equity notwithstanding any former proceeding at the Common-Law against them as shall stand with the true merits and Justice of their cases c. And for that it appertains to Our Princely care and Office only to be Judge over all Our Judges and to discern and determine such differences as at any time may or shall arise between Our several Courts touching their Jurisdiction and the same to set and to decide as We in Our Princely Wisdom shall find to stand most with Our Honour and the example of Our Royal Progenitors in the best of times and the general Weal and Good of Our People for which We are to answer to God who hath placed Vs over them Our will and pleasure is That Our whole Proceedings herein by the Orders formerly set down be enroll'd in Our Court of Chancery there to remain of Record for the better extinguishment of the like Question that may arise in future times Decimo octavo Julii Anno Regni Regis Jacobi quarto decimo per ipsum Regem But after all I have said if there be any that have considered the premisses and will still deny the Kings Power I must also say That for determination of the matter the opinion of his Majesties learned Judges is to be the Touch-stone therefore for a further inducement to enquire further of them touching this matter which is my principal aim hereby I shall in the next place give a hint of the inconveniences that do happen for want of this course of Proceeding SECT VII The Inconveniencies that accrew for want of a constant Relief against Erreneous and Unjust Decrees in Chancery TO apprehend the mischiefs that may ensue for want of a constant and permanent practical Power to controll and rectify mistaken Decrees in Chancery it is a necessary to look back to the fourth Section for the Power of that Court and how far it extends which is there set down in some measure It is also considerable how ill some Chancellors have us'd this their so great unlimited Power which appears in the Lord