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
too much as I conceive of the King's Power but not this of referring the examination and correcting of erroneous and unjust Decrees in Chancery to fit persons for that purpose I am sure 't is not prohibited by that Statute by any particular words nor are there any general words therein contain'd that according to the rules of Law and construction of other Statutes can be construed to extend to the taking away of that course of proceeding For the clearing of which point it is requisite that the Statute should be taken strictly into consideration the prohibiting part whereof is as followeth Be it Ordaiued and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging to or exercised in the same Court or by any Judges Officers and Ministers thereof be from the first day of August 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellor nor the Kéeper of the Great Seal of England the Lord Creasurer of England the Kéeper of the Kings Privy-Seal or President of the Councel nor any Bishop Temporal Lord Privy-Councellor Judge or Justice whatsoever shall have any Power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or do any Judicial or Ministerial act in the said Court and all and every Article Clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given limited and appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any proccedings to be had or made in the said Court or for any matter or thing to be drawn into question examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the Power and Authority thereby given unto it be from the said first day of August repealed and absolutely revoked and made void And be it likewise Enaded That the like Jurisdiction now used and exercised in the Court before the President and Councel in the Marches of Wales and also before the President and Councel established in the Northern-parts and also in the Court commonly called the Court of the Dutchy of Lancaster before the Chancellor and Councel of that Court and also in the Court of Exchequer of the County-Palatine of Chester held before the Chamberlain and Councel of that Court the like Jurisdiction being exercised there shall from the first day of August 1641. he also repealed and absolutely revoked and made void any Law Prescription Custom or Usage c. to the contrary thereof in any wise notwithstanding and that from thenceforth no Court Councel or place of Judicature shall be erected ordained constituted or appointed within the Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath haen used practiced or exercised in the said Court of Star-Chamber Be it likewise Declared and Enacted by the Authority of this present Parliament That neither His Majesty nor His Privy-Councel have or ought to have any Jurisdiction Power and Authority by English Bill Petition Article Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Dereditaments Goods or Chattels of any of the Subjects of this Realm but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law These are all the prohibitory words of that Statute I will not say any thing of the reasonableness or unreasonableness of it but that it was made in 41. But taking it as it is I think it deserves no further construction to disable the King from performing his Oath that is to see that Justice should be done to his Subjects than the very express words will bear and for the right understanding of it it is to be considered in all the parts thereof without relying on any one single Clause alone and thereby it will appear how far the whole may be construed to take away any Power that was before in the King It takes away the Star-Chamber and the Power thereof and prohibits the erecting of any Court of the like Jurisdiction by express terms but by so doing it meddles not with this Power of the Kings to refer the examination of an unjust Decree made in Chancery by One man to Three or Four or more men fit for the purpose neither in terms nor in construction And it is a great argument that it was never intended to be taken away by that Act because it is not taken away by express words for if it had been intended to have been taken away it might have been express'd by particular words it being no new invention since the making of that Act but a course long practis'd before that Act was made as appears by what is aforesaid and that without the least contradiction but on the contrary with the greatest approbation that could be viz the approbation and direction of the Lords House in Parliament at one time and of all the Judges of England at another time as is aforesaid and of all the great Writers of the Law of those times so that there was then no apparent reason for taking it away The next part of the Statute and that which seems most to oppose me is That the King nor His Privy-Councel have or ought to have any Jurisdiction Power or Authority by English Bill Petition Article Libel or any other arbitrary way to examine draw into question determine or dispose of the Lands Tenements c. but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law For the understanding of this it is to be remembred the King for the execution of the Law had two sorts of Powers in Him by the Common-Law He had Power and Authority thority in Person to hear Ordinaria Jurisdictio pertinet ad Regem Bract. fol. 108 412. Ordinaris Juris dictio remanet cumipso Rege Bract. fol. 55. determine and dispose of the Estates of his Subjects upon Controversie arising between them and complain'd of to him and this is properly called Jurisdiction Designatio Justiciariorum est à Rege Jurisdictio vere ordinaria à Lege Co. 4 Inst fo 74. and he had also designatio Judiciorum a power of nominating and appointing Judges under him to hear determine and dispose of the Estates of the Subjects touching which any Controversie did arise and was brought before them to be decided as appears in the beginning of this Treatise Sect. 2. per tout So that if he should be excluded himself by this Statute from hearing and determining in
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
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
all substituted and delegated Jurisdiction was derived from Him only and under such limitations as he directed so as the Judges did act justly the main charge of administring Justice being on Him and he frequently sate himself in Judgment assisted by his Capitales Justiciarios à latere suo residentes who assisted him in the exercise of his Jurisdiction and eas'd him of trouble but they never pretended to deprive him of his power of hearing and determining himself or changing his Judges or assigning them Jurisdiction as should be needful according to the modern Doctrine of some for he had both complete Jurisdiction and designationem Justiciariorum in himself and it was upon good reason this power was originally placed by God in Kings and consented unto and approved of by good men for by the assistance of and reasoning with their Judges they could never fail of discerning right Judgment and their affection to their Subjects like a good Father to his Children being equal to all it is not likely they should be partial in their Judgments and their Royal Estate is such as not to value Bribes or Rewards So that there is not so much reason to fear Injustice from a King as from a profess'd Lawyer like my self whose aim and design perhaps from his Horn-book was gain and profit and to raise himself a Name and Family in the world I can but wonder then whence started that humour in men rather to trust any body in deciding their Controversies than the King sure it could be from no just Principle Besides the fore-mentioned Author Bracton there are others of the same standing that maintain the same Doctrine The next I shall name is one Horn who about the time of Edw. 1. compiled a Book Of the Laws and Vsages of England a great part whereof as Sir Edward Cooke in his Preface to the 9th part of his Reports affirms were such Laws as the Kingdom was govern'd by for about 1100 years then past to which Book he gives a mighty credit and in matters of difficulty is very frequently his ipse dixit and that Author says Mirror 232. That Jurisdiction is the chiefest Dignity that appertains to the King and thereof he says there are two sorts and he calls them ordinary and assign'd which are the same with Original and Delegated as the other Author terms them Ibid. 23.2 Jurisdiction Tays he can be assign'd by none but by the King and he may do it because be cannot without assistance perform such a charge and therefore it was of old ordained that there should be a Seat and a Chancellor to keep it and grant Writs remedial to all Complainants without delay This was the Chancellors Province then And again he says Ibid. 234. Jurisdiction est un porat a dire Druit a power of commanding right to be done and this power God gave unto Moses and such as hold the like place as he and this power belongs unto the King within his Dominions and He by his Authority-Royal makes his Justices in several degrees Ibid. 235. and doth limit to every one his power after several manners And there he enumerates divers sorts of Commissions and Courts and speaking of the chiefest Justices of all he says They determin'd matters more or less according to the nature of their Commission From whence also it follows there were no Judges that had or pretended to have any Jurisdiction originally or fundamentally in themselves but what all of them had was by deputation and delegation from the King Furthermore Edm. 1. out of his Princely care that his people should be govern'd by certain and known Rules caused the Laws and Rules of Government Britt so 1. and disposition of Property which then to fore had been used in the Kingdom to be put in writing and publish'd in his own Name and at the same time commanded the use and practice of those Laws in all points throughout his whole Dominion saving and always reserved to himself the power of repealing altering and amending of them as should seem good to him with the assent of his Earls Barons and others of his Councel and saving such Usages and Customs as had been time out of mind used so that they be not discourdants a droft And there he proceeds in this manner viz. En primes en droft de nous mesmes nostre Courte avouns issint ordeyne c. which is to this effect That first of all in the right of Himself and of his Court because he could not in his own Person hear and determine all the complaints of his people and to the end that his charge should be divided as is thereby appointed he did ordain and his will and pleasure was That his own Jurisdiction should be superiour to all the Jurisdictions in his Realm So that in all manner of Felonies Trespasses Contracts and in all manner of Actions real and personal he had power to give and cause to be given such Judgments as thereto belonged without any other Process where he knew the direct truth as Judge And there also he appoints That the Steward of his Houshold should represent Him within the Verge and he assigned him his Jurisdiction which was to hear and determine the presentments of Articles which concern the Crown whensoever it should seem good to the King And moreover he will'd that Justices in Eyr should be assign'd to hear and determine those Articles in every County and in every Franchise from seven years to seven And there he gives the like power to his Justices of Ireland and Chester and wills further That the Count or Earl of Norfolk by himself or some other Knight should always attend upon the King and his Steward within the Verge of the King's House so long as he should hold the Office of Marshal And there he appoints the Jurisdiction of the Justices assign'd Britt fo 2. to follow the King and be where He was if in England and that they should have conusance to amend false Judgments to determine Appeals and other trespasses done against the Kings Peace and Jurisdiction He also appointed a Coroner to be in the Kings House and in every County un Viscount a Sheriff and that under those Sheriffs there should be Hundreders Serjeants and Bailiffs who should attend upon the Sheriffs He also appointed Coroners in every County and allotted them their Jurisdiction And moreover his will and pleasure was That there should be Justices always residing at Westminster or elsewhere where he should appoint to determine such common Pleas as the King should command them by his Writs so as the Pleadings arising thereupon should be recorded He settled the Jurisdiction of the Exchequer Court and ordained That there should be Justices assign'd for every County to have conusance in such causes as the King should command by his Letters-Patents touching Pety-Assizes and of other things whereof the Kings will should be they should make record and that there should
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