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
r 27 Jus Appellandi AD REGEM Ipsum à Cancellaria SECT I. Of the mutual Obligation upon King and People in reference to Government WHosoever will but consider it may easily discern that there is a mutual benefit accrues by Government as well to the People as to the King the end design of it being the protection of Both from wrong and violence And to the end this may be the better accomplish'd both are mutually bound in England to act their part therein The King is bound to govern by Law and the People most of the considerable part of them are bound and all of them are compellable to be bound to assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the King His Heirs and Successors or united or annex'd to the Imperial Crown of this Realm the King by the very Constitution of his Kingly Office and by his Coronation-Oath and the People both by their Natural Allegiance and by force of the Statute 1 Eliz. cap. 10. It is not a slight and mean tie that they are bound by it is by a sacred and solemn Oath the greatest obligation upon Earth and the firmest bond of Humane Society which whosoever voluntarily breaks either by a wilful acting against or by a careless neglecting to perform what he hath undertaken by it I 'll be bold to say He is sit Company for none on this side Hell unless for some perjur'd Aldermen or false Ignoramne-Jury-men Being thus engag'd I think it highly concerns us all to discharge our Duty therein and to that end it is necessary in the first place to understand what Jurisdictions Preheminencies Priviledges and Authorities do appertain to the King for without That the King cannot exercise His Jurisdiction nor the People assist Him in it And in as much as the King's Jurisdiction over His Court of Chancery is now doubted of by many dis-own'd by some and by others thought not necessary to be put in execution I therefore set my self upon enquiry after the King's Part and Power in that particular having had experience of the inconveniencies the want of the use of it produceth SECT II. What is Jurisdiction to Whom it appertains and How anciently exercised in this Kingdom JURISDICTION in the bare literal sence and signification of the word and ex vi termini imports no more than Dire Droit or Jus dicere a Power to pronounce interpret or relate what is Law and Right in any matter of Controversie But as necessary appendants thereunto there are many Priviledges and Authorities needful to make up a full and plenary Power to administer Justice which are generally comprehended within the meaning of Jurisdiction As first an Authority to Command the party or parties complain'd against before Him that hath Jurisdiction Secondly to Examine the truth of the complaint and to hear the Defendants defence Thirdly to give Judgment according to what the Law is Fourthly to compel Obedience to and Performance of that Judgment which is done either by Imprisonment of the person until he perform or by seizing his Estate or part of it in satisfaction of the Judgment which is the Coercive Power of the Law without which the rest signifies but little The right of Jurisdiction is a prize for which great Contests have been for many Ages in this Kingdom the Pope for a long time strugl'd with our Kings for Jurisdiction in Ecclesiastical matters some yielded to him and some would not The House of Commons have often strove with the House of Lords for Jurisdiction the King's Courts of Justice have often contended with one another for Jurisdiction and now some would have it that the King 's own more immediate Court his High-Court of Conscience would be so highly unconscionable as to out Him from having any thing to do there To find out the true Proprietors of Jurisdiction for which there hath been so many pitch'd Battles fought it is necessary to look a great way back Origo rei inspici debet the beginning must be consider'd Deut. 32. 7. Remember the days of old consider the years of many Generations ask thy Father and he will shew thee thy Elders and they will tell thee After this manner will I make my Enquiry for I know no Statute of Limitation in the case to bar the King by non-claim but there is a Maxim in Law which imports the contrary Quod nullum tempus occurrit Regi and therefore what I find in old Authors as well as new I will truly relate By the Opinion of all ancient wise Politicians and Historians Bod. l. 4. cap. 6. says Bodin Justiciae fruendae causa Reges esse creatos Kings were ordain'd for no other end than for administration of Justice which is a full Authority that Jurisdiction appertained to Kings even by their Constitution and the same Author says That anciently the Kings of most Nations and Countreys were called Judges and they thought no other Appellation or Title more honourable than That and they delighted in nothing more then a personal not only virtual but actual determining of their Subjects Controversies Moses for a great while spent the greatest part Ex. 18. or much of his time sometimes even from morning until evening in hearing and determining Controversies between the people But at length finding that as the people encreased in number so did Suits insomuch that it was too hard a task for him to dispatch all himself he therefore chose men of courage out of all Israel and those he made Heads over the people Rulers over Thousands and over Hundreds over Fifties and over Tens who judged the people at all seasons but the hard causes matters of difficulty they brought to Moses himself to determine none of them pretending that because Moses had given them full power to judge the people within their several Provinces that he had excluded himself from power of judging there and examining whether or no their Judgments were right and just In imitation of Moses Cook 1 Inst f. 168. or after the same manner did the ancient Kings of England divide this Kingdom first into Counties and Counties into Hundreds Hundreds into Manors and Manors into Townships and Villages and appointed Jurisdictions in every Division In or about the time of H. 3. one Henry de Bracton Cow Int. Title Bract. a learned Judge finding that the Laws and Customs of the Realm which at that time were not reduc'd into writing were oftentimes abus'd by unlearned men Qui Cathedram judicandi ascendunt antequam leges dedicerent who became Judges before they had been Students and consequently determined Causes rather after their own fancies than the Rules of Law he therefore resolv'd ad vetera Judicia Justorum perscrutenda diligenter to make diligent enquiry into the ancient Judgments and Resolutions of just Judges and to put the same in writing for the benefit of Posterity as himself says in the first page of his Book
be Justices of Gaol-delivery in every County And he granted to the said Justices that they should have the keeping of the Records of the Pleas pleaded before them But they were not to rase or amend their Rolls or to make Record contrary to their Enrollments Also that the power of the Justices should be limited in such manner that they exceed not the points contained in the Writs or Presentments of Jurors nor complaints to them made saving such incident matter as without which the original causes could not be determined And he utterly forbids and prohibits that any shall have power to amend any unjust or erroneous Judgment of his Justices but only those Justices which followed Him and his Courts who thereunto were by him entitled or Himself or his Councel for that matter he specially reserv'd to his own Jurisdiction He forbids also all his Coroners and Justices except his Seneschal his Steward and his Justices of Ireland and Chester to make any Deputies to do any thing whereof they ought to make record without the King's leave He will'd also That in Counties Hundreds and in the Courts of every frank Tenement there should be Courts held by the Suitors and also in Cities Towns Boroughs and Franchises c. Besides this Book written by King Ed. 1.'s command and in his own name a while after there was another Book written by whom it is not known called Fleta and it was in the Reign of Ed. 2. or 3. And that Author says That Judgment is a threefold act Fleta lib. 1. cap. 17. fol. 16. of three persons at the least the Judge the Plaintiff and the Defendant without which there can be no Judgment Nor says he can any one Judge in temporal matters but only the King or his Substiutes and Delegates And the same Author in his Tract of the diversity of Courts Fleta lib. 2. fol. 16. says as followeth The King hath a Court in his Councel in his Parliaments when present the Prelates Earls Barons Nobles and other skilful men who are to determine the doubts of Judges and where upon appearance of any new sort of injuries new remedies are provided and where Justice is to be rendred to every one according to what belongs to him He hath also his Court before his Steward in Aula sua in his Hall who now says he supplies the place of the Capitalis Justiar ' whereof mention is made in the common Writ of homine replegiando who was wont to hear the Kings own Causes to rectifie false Judgments and to do Justice to Complainants without Writ whose Power in part the said Steward of the Kings Houshold hath Also the King hath his Court of Chancery in several places in his House He hath also a Court before his Auditors specially appointed to be near the King whose Office extends but to the Justices and others of the Kings Ministers ☞ to whom there was no power granted to determine what they heard but to relate the matter to the King that he might direct punishments according to the quality of the Offence He hath also his Court and Justices as well Knights as Clergy-men locum suum tenentes in Anglia before whom and not elsewhere unless before Himself and his Council and special Auditors false Judgments and Errors of Justices are reversed and there are determined Writs of Appeals and other Writs upon criminal Actions and injuries contra pacem He hath also his Courts and his Justices residing in the Exchequer and also in Banco now called the Common-Pleas at Westminster and some are assign'd for Gaol-deliveries in every County and some are affigned to take Assizes generally in every County and some are itenerant and constituted to hear and determine all criminal and civil Pleas. Also the King hath his Justices itenerant to hear and determine the Pleas of the Forest and he hath his Court in every County and in the Sheriffs Turn and in Hundreds and in the King's Manors Cities and Boroughs as in the Hustings of London Lincoln Winchester York and other places And the same Author having afterwards treated more particularly of what Jurisdiction the King had delegated to every Court Fleta l 2. f. 75. cap. 33. he writes thus of the Chancery There is amongst the rest a certain Office called the Chancery which ought to be committed to the care of some prudent man as a Bishop or Clergy man of great dignity together with the care of the great Seal of England under whom are all the Chancellors in England Ireland Wales and Scotland and all Keepers of the Kings Seals except the Keeper of the Privy Seal to whom are associated Clerici honesti honest and circumspect Clerks sworn to our Lord the King and who in the Laws and Customs of England have ample knowledge whose Office it is to hear and examine the Complaints of Complainants and to grant due remedy by the King 's Writ according to the nature and quality of the wrong And there he treats at large of the Officers Clerks and Business of the Chancery which was to make out Remedial or Original Writs and Judicial Writs also upon Recognizances and Contracts made in the Chancery and enroll'd there but not one tittle or mention is there made by any of the said Authors of any Superiority the Lord Chancellor or Lord Keeper or the Court of Chancery had over the Proceedings of any of the other Judges either to examine correct or rectifie their Judgments or stop execution thereof upon any account colour or pretence whatsoever which is a most convincing proof the Chancellor then had no such power SECT III. What is meant by Judging according to Equity and by Whom it was anciently performed HAving laid the foundation of my present purpose upon what I find in the fore-mention'd Authors I think it not amiss to say somewhat touching their credit and first of all that which gives them a reputation with me is that they set down what they themselves of their own knowledge knew to be true they relate what the Law was at the time of the writing of those Books they took nothing upon trust from other hands but set down what they themselves knew to be practice Next they were men of great Eminency Bracton was a learned Judge and it was his zeal to Justice induc'd him to write Britton was a Book writ by the King 's own command and publish'd by his approbation and the others Mirror and Fleta have always had a great reputation amongst the English Lawyers not only ancient but modern and Sir Edward Cooke who once was honour'd with the title of the Oracle of the Law in his first Institutes in every page almost quotes those Authors for proof of his assertions and so doth Stanford in his Pleas of the Crown from whence I conclude that what they wrote for Law was Law then and if so it is Law now saving wherein-it it is alter'd by the Kings Parliamentary Act nothing less than
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
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
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
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
Bacon's Case herein also before re-cited in the fifth Section for it is not Impossible but that some of his Successors may do the like which if but any one should it would be very hard for many a poor Creature to wait the Convention of a Parliament especially if it should happen that another usurping part of a Parliament like that about 41. should attempt to play the old Game again so that in such case the King must perhaps either leave many of his Subjects utterly undefended against the corrupt and vicious proceedings of another Bacon or endanger his own safety by letting them sit in which case by the Rule of Self-preservation the King ought to save himself But setting aside this matter of corruption as if no such would ever hereafter be in the World if we consider humane frailty and the real mistakes every single man may be subject to especially when beset with the mercenary Arguments of three or four Hireling Advocates of a side who think themselves oblig'd when opportunity serves to mistake for their Clients according to the measure of the Fees they receive as I have known some of them knowingly do and sometimes they prevaricate and omit what they ought to say if either Feed on both sides or not high enough Feed of the side they are of by means whereof a circumspect Lord Chancellor or Keeper may innocently be seduc'd to make an ill Decree and by force thereof a poor man must either go to Prison or part with the best part of his Substance so that by both ways himself and Family are brought unjustly to want and misery and if he be a Trades-man it is ods but he breaks one or two more for Trades-men are like Nine-pins one seldom falls alone and if a Parliament when it meets should find leasure from publick business to examine the matter and should see cause to alter the Decree and Award Restitution the man that got the Money by means of the ill Decree may have spent it all gone beyond Sea or dead without Assets or twenty such Chances may happen that the Money may never be got again by any Art or Industry whatsoever which would be prevented if there were a place to Appeal before performance of the ill Decree and moreover it remains a doubtful case as to the many Decrees of the late Lord Chancellor Notingham Re vers'd by the now Lord Keeper North which of the two Lords are in the right he that made the Decrees or he that Revers'd them it being not fairly to be decided but by the Advice and Opinion of a greater number of as Wise and Judicious men as themselves and that is a fair and reasonable way of determining it for vis unita fortior but the greatest inconvenience of all is that which concerns the Government for while this opinion stands That the King cannot hear the matter in Person nor refer it to others though to some of the self same Lords that sit in Parliament but that the matter must wait their meeting in a Parliamentary way it may make the people believe that the Supremacy of Jurisdiction is in the House of Lords and not in the King and consequently lessen him in their opinion for People Love and Honour them most from whom they find most Relief against Injury and how consistent that is with Monarchy and how agreeable it is with our Oaths willingly to suffer let any man Judge that hath Sense and Loyalty Since all the Courts of Westminster have four Judges in each Court men Learned in the Laws of known and visible Integrity and all Sworn To do equal right to all 18 E. 3.7 Oath of Just and to take no Fee or Roabes of any man great or small but of the King himself during their being Judges And who in their proceedings are ty'd to Rules and since Appeals by Writ of Error by special Provision by Act of Parliament may be at all times had against their Judgments and since there are frequent Appeals from all Ecclesiastical Courts and from the Court of Admirality out of Parliament It is a mighty mistery to me and the policy of it is not Intelligible that any man should labour to prop up this Opinion that there should be no Appeal but to Parliament from this Court of Equity in Chancery where there is now but one Judge and his Orders and Decrees controuling all the Judgments of other Courts and he therein ty'd to no other Rule but his own Conscience be it good or bad I think a Chancellor or Keeper for his own Justification should not be against the Kings Examining his Decrees or Referring them to fit persons to be Examin'd and Corrected which without peradventure is not only the best and surest way for Administration of Justice in this Case and so far from setting up an Arbitrary way or an Extraordinary Course that it is but restoring the Court of Equity in Chancery to its Ancient and Primitive form of Judicature the definitive Judging there by the Chancellor alone being but an Innovation upon the Original Institution of that Court as appears by what is aforesaid and to the end there may be no obstruction in the way I have enquir'd how far the King ought by Law to provide for his Injur'd Subjects in case of Appeal to him from Erroneous or Unjust Decrees in Chancery by a Lord Chancellor or Keeper SECT VIII Whether the King ought exdebito Justiciae to hear in Person or to grant References upon Complaint to him made against Erroneous and Vnjust Decrees in Chancery I Have as great Veneration for Kingly Government and am as Firm and Faithful to it as any man can be however I think it no presumption to affirm that the King ought to do his Subjects right by using the best means he may for administration of Justice amongst them pertinet ad Regem ad quamlibit injuriam compescendam competens remedium adhibere It is no dishnour to him that he is oblig'd to it for it is for that end he is ordain'd by God and obey'd by men it is therein consists the height of his Clory and the lustre of his Majesty and says Fleta Fleta fo 17. par 15. Whereas it is so ordain'd that every man in prosecution of his right Potius judicio quam viribus utatur Should make use of the Law rather than force The injur'd are to come to the King and having shew'd him the wrong they have suffer'd he ought to do speedy Justice to his Petitioners yet the King is not to be troubled but when his Ordinary judges fall of their Duty For Nemo in lite Regem appellato nisi quando domi jus consequi non poterit Orig. Jul. fo 20. A Complaint to the King by Petition against the Error and Injustice of a Chancery Decree is an Appeal to the King from his Chancellor from the Inferior Judge to the Superior which is very natural and a Petition to him for allowance of a Writ of Error to the House of Lords to inspect and certifie a Judgment of the Court of Kings-Bench or Exchequer Chamber and an Appeal to the King from his Ecclesiastical Courts and from the Court of Admirality are all grounded upon the same natural Justice and by reason of the Kings Supremacy of Jurisdiction and that as well by force of the Common as Statute Law Of Appeals in general Sir Edw. Cooke cites the Opinion of a Learned Judge of the Admirality and some others to this effect For as much as an Appeal is a natural defence it cannot be taken away by any Prince or Power Cook 's 4 Iust fo 340. but if the Appeal be just and lawful the Superior Judge ought of right and Equity to receive and admit the same as he ought to do Justice to the Subject and so if the Cause of the Appeal be just and Lawful he ought to Reverse and Revoke all mean Acts done after the Appeal brought in prejudice of the Appeallaent But I need not much labour that point for I can Experimentally say that His Majesty is very desirous that His Subjects should have the full and free benefit of the course of Justice and if any ever fail of it it ought not to be imputed to the King but to his Council whose advice is the Kings guide and if they mis-advise the King and he follows their advice he is excusable yet he is not bound always to follow their advice if he be really satisfied in himself after hearing their reasons that it ought to be otherwise than they advise for as he is plac'd by God above them it is to be presum'd God may supply him with a more discerning Spirit than they and enable him to distinguish between the best and worst advice having heard the reasons of both Yet they that knowingly advise the King ill or neglect to advise him well when occasion requires are to blame therefore I hope His Majesties Privy Council will confider of this matter and advise and desire His Majesty to take the Advice and Opinion of His Judges who are His proper Councel therein For in my poor judgment and as I have heard from most Judicious men the restoring this kind of proceeding aforemention'd for Relief against unjust Decrees in Chancery and other Courts of Equity will be as much for the Kings Honour and His Subjects Good as any other part of his Jurisdiction For I say again there is no Robbery Piracy Burglary or other Villany whatsoever so mischievous and insupportable as the unjust taking away of a mans Estate by colour of doing Justice and therefore most worthy of His Majesties care to prevent Cum Index indulgeat indigno nonne ad prolaptionis contagium provocat universos Bract 107. I expect to be Censur'd by some for what is here set down though I challenge all mankind to charge me with any misrecital or false quotation but that which most troubles me is my consciousness of my own unability to perform the matter least a good Cause should suffer by ill management However having done my best I hope it will be taken in good part by all Honest men more I cannot do less I durst not for my Oaths sake and if any be offended with me this shall be my Sanctuary Fiat Justicia si ruat Coelum FINIS