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
Of the Laws and Customs of England and therein as to the Temporal state of affairs the Pope having in those days usurp'd Jurisdiction not only upon our Kings but upon many other Princes in Spiritual matters Bracton says Bract. l. 1. fo 5. cap. 8. That under Emperours Kings and Princes are Dukes Earls and Barons great Officers men of Renown and Knights there are also Freemen and Bondmen and divers Authorities and Powers constituted under the King Omnia quidem sub eo ipse sub nullo nisi tantum sub Deo parem autem non habet in regno suo quia sic amitteret praeceptum cum par in parem non habet Imperium item nec multo fortius superiorem nec potentiorem habere debet quia sic erit inferior suis subject is inferiores pares esse non possunt potentioribus ipse autem Rex non debet esse sub bomine sed sub Deo Lege quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuat ei videlicet Dominationem Potestatem And a little further Et sciendum quod ipse Dominus Kex Ordinariam habet Jurisdictionem Dignitatem Potestatem super omnes qui in regno suo sunt habet enim omnia Jura in manu sua quae ad Coronam Laicalem pertinet potestatem materialem gladium qui pertinet ad regni Gubernaculum habet etiam Justitiam Judicium quae sunt Jurisdictiones ut ex Jurisdictione suae sicut Dei Minister Vicarius tribuat unicuique quod suum fuerit To the like effect he says in another place treating of Temporal Jurisdiction and Who it is that can and ought to judge he says Bract. lib. 3. fo 107. That it is the King and no other ought to judge if He alone could compass it being thereunto obliged by tenor of his Oath for at his Coronation he ought in the name of Jesus Christ upon Oath to promise these Three things to his people that are subject to himself 1. That he would command and use his utmost endeavour that perfect peace be continued to the Church of God and all Christian people during all his time Secondly That he would earnestly and strictly forbid and interdict all Pillaging Extortion Ravening and Wickedness whatsoever Thirdly That in all Judgments he would regard Equity and Mercy that he might receive Mercy from God und that all people by his Justice may enjoy a firm and inviolable Peaee He says further that it is the Kings part and duty he being Gods Vicegerent on Earth to prefer right before wrong Equity before iniquity that all his Subjects might live honestly that none of them hurt the other and that every one of them may have and enjoy what to him of right belongs He ought to exceed all his Subjects in Power He ought to have no Equal much more ought he not to have any Superiour especially in administration of Justice that it may be truly said of him Magnus Dominus noster magna virtus ejus with a great deal more to the same effect In the next chapter he proceeds and says Bract. l. 3. so 108. Dictum est in proximo de ordinaria Jurisdictione quae pertinet ad Regem c. In the precedent Chapter the primitive and fundamental Jurisdiction which belongs to the King is treated of it follows now to treat of the delegated derived and substituted Jurisdiction where a man hath no Authority of himself but what is committed to him as when he that doth so delegate or substitute another cannot himself determine every particular Cause and to the end his labour may be the easier by dividing the burthen amongst divers other persons he ought to choose in his Kingdom wise men fearing God in whom there is sincerity and truth of speech who hate Covetousness and of such to constitute Judges Sheriffs and other Bailiffs and Ministers to whom may be referred as well Questions upon doubtful matters as Complaints upon injuries who will not decline the course of Justice to the right hand nor to the left for hope of Reward nor fear of Punishment And a little further treating of the several sorts of Justices he says thus Item Justiciariorum quidem sunt capitales generales perpetui majores a latere Regis residentes qui omnium aliorum corrigere tenentur injurias errores sunt etiam alii perpetui certo loco residentes sicut in Banco loquelas omnes de quibus habent warrantum terminantes qui omnes Jurisdictionem habere incipiunt praestito sacramento item sunt alii Itenerantes de loco in locum sicut de Comitat ' in Comitat ' quandoque ad omnia placita quandoque ad quaedam speciali ficut ad Assisas tantum Gaolas Et qui authoritatem habere incipiant sine sacramento cum breve Domini Regis receperint de waranto sunt etiam Justiciarii constituti ad quosdam Assisas duas vel tres vel plures qui quidem perpetui non sunt quia expleto Officio Jurisdictionem amittunt That is to say Of Judges some are chief universal constant and of greater power than others always with the King whose business it is to correct the Injuries and Errors of other Judges and there are others that are of a constant continuance resident in a certain place as in the Bench determining all Pleas whereof they have a warrant to determine all of whom begin to have Jurisdiction by taking the Oath of their Office Also there are other Judges that move from place to place as from County to County sometimes to determine all Pleas sometimes some particular Pleas as Assizes only and Gaol-deliveries whose Authority begins without any Oath when they receive the King 's Writ for their Warrant and there are Judges constituted to determine some certain number of Assizes as two three or more who are not of constant continuance but having done what they were appointed to do they lose their Jurisdiction And a little further Et quamvis quidem eorum perpetui sunt ut videtur finitur tamen eorum Jurisdictio multis modis scilicet mortuo eo qui delegavit vel mortuo eo sub cujus proprio nomine causa delegatur Item cum delegans revocaverit Jurisdictionem vel alium dederis Justiciarium That is Altho' some of the said Justices are of constant continuance as it might seem yet their Jurisdiction may be determin'd several ways that is by the death of him who gives them Authority or by the death of him in whose name the Suit is begun or when he that delegates or gives the Authority doth revoke the Authority and Jurisdiction which he gave or appoints another Judge And to conclude that matter he says That no Judge so substituted or delegated by our Lord the King can substitute or delegate another Thus far Bracton whence it is most clear that all primitive and original Jurisdiction was in the King and
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