Statutes were made but to no very great purpose for means were found out to evade them At last came forth the Stat. of 27 H. 8. cap. 10. and this undertook and plainly so intended to pluck up this unwholsome Weed by the Roots Which good Law first reciting the excellent quiet and repose that Men's Estates had by the wholsome Rules of the Common Law but cunning Men had sought out new Inventions by fraudulent Feofments and Conveyances craftily made to secret Uses and Trusts to the utter subversion of the ancient Common Laws of this Realm as the Preamble speaks for the utter EXTIRPATING and EXTINGUISHMENT of all such subtil practis'd Feofments Abuses and Errors It is Enacted That the Possession of the Land shall be in him that hath the Use and that he shall have the like Estate in the Land as he had in the Use. How strangely hath all this good Intention Pains and Care been made of little or no effect and the mischiefs still continued by a distinction invested between Trusts and Uses directly against the often repeated Clauses and manifest plain meaning and express words of this good Act For thô the Judges of the Common Law were now by this Act to judge of Uses which before was the work of the Chancery they being now converted by this Act into Estates at Law Yet some Men perfectly to elude this good Act have confidently maintain'd asserted and allow'd a distinction between an Use and a Trust. And thô they are content because they cannot help it that the Judges of the Common Law may determine of Uses the Courts of Equity shall hold a Jurisdiction in matters of Trust. And most of the great Estates in England have by colour of this fallen under their determination and controulment and now have a dependence upon a Jurisdiction of Equity Whereas Were there the least colour left by that Act of 27. H. 8. for any distinction between an Use and a Trust as most certainly and plainly there is none yet as certainly and clearly that Act of Parliament meant to extirpate those Trusts as well as Uses as any ordinary Capacity well perusing that Statute to this purpose may easily perceive I humbly and heartily beg that favour of every Lord to read over deliberately this Stat. of 27 H. 8. cap. 10. for this very purpose for it will plainly discover this gross abuse As to the length of time wherein such a Power and Jurisdiction of Equity hath been exercised in the Chancery yet it plainly appears not to be grounded upon Prescription the Original being known and not so very ancient neither and modest too and moderate at first as most such are in the beginning and having from the first starting of it been hunted and pursued with full Cry and upon a fresh Scent and in view and having hardly any Colour of an Act of Parliament That length of time were it much longer would be no Plea for it See Dr. Barrow in his Treatise of the Pope's Supremacy pag. 154. He that has no right says he to the thing that he possesses cannot plead any length of time to make his possession lawful King Henry VIII by Acts of Parliament restored the Regal Ecclesiastical Sovereignty after it had been usurp'd upon by the Popes and their Prelates near 400 years that is from the time of William the Conquerour For then began their Encroachment And the Act of Parliament of 1 E. 6. C. 2. Sect. 3. calls it a power that had been Usurp'd by the Bishop of Rome contrary to the Form and Order of the Common Law used in this Realm in high derogation to the King 's Royal Prerogative from whence we may observe That Usurping upon the Common Law and Usurping upon the King's Prerogative go together The Bishops Courts here in England took their Original from a Charter of William the Conquerour so that this Jurisdiction was a great Limb lopp'd off from the Primitive Common Law of England For before that Charter of King William Ecclesiastical Causes were determin'd in the Hundred Court and not by Witnesses only and not by the Canon Law but by the Law of the Countrey But this Charter was made by advice of the arch-Arch-Bishops Bishops Abbots Princes and Temporal Lords See Fox his Acts and Monuments Vol. 〈◊〉 Lib. 4. pag. 2â—… says Mr. Pâ—…inn in his first Tome of his Vindication of the Supream Ecclesiastical Jurisdiction of our English Kings The Charter it self says he recites that it was done Communi Concilio for which he cites Seldeni ad Eadmerum Notae pag. 167 168. So that still the old Common Law of England hath been upon the losing hand The Civilians hold that Possessor malae fidei ullo tempore non praescribit yet I heartily concur with that Reverend Chief Justice Sir Edw. Coke a most true and hearty lover of his Countrey and an high honour to and honourer of the Profession of the Common Law in his 4 Instit. 246. at the end of that folio in Respect says that Good and Great Man that this Court of Equity hath had some continuance and many Decrees made by it it were worthy of the Wisdom of a Parliament for some Establishment to be had therein and to this intent have I chiefly used this freedom for I never loved Quiet a movere but in order to a better Security And for that end I chuse to make this Humble Address to the House of Lords It is the House of Lords who are theSupreme Court of Justice that can set the true and legal Bounds and Limits to the Jurisdiction of Inferiour Courts and can say to the biggest of them Hitherto shalt thou come and no further and here shall thy proud waves be stayed And such their Judicial Declarations are not to be controul'd by any but the Legislative Power Almighty God gave a strict charge to his own chosen People of Israel to observe those Ordinances and Laws which he gave them by Moses which were very particular and wherein nothing was left to the Discretion of the Magistrate nor had the Magistrate any Latitude whereby he could depart from the plain and common sence and Judge Secundum Aequum Bonum Arbitrarily But they were commanded Deut. 4. 2. Yee shall put nothing to the word which I command you says God by Moses neither shall ye take ought therefrom and the 12 Deut. the last verse in Cases of Difficulty that might arise upon the Construction of those Ordinances and Laws a Provision is made by Almighty God that in such Cases resort should be had to the Priest and to the Judge who should declare the Sentence of Judgment This seems to refer to some special Revelation of the mind of God in such difficult Cases which God made known to the Priest that stood before the Lord to minister 17 Deut. 8 â—…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in
68. Inter privilegia Baronum on the word Baro. But that I may make hast as this great Officer the Chancellor himself did in process of time from his minority and the first dawning of his power to bring him to his Magnitude I proceed to enquire about what time by what steps and degrees by what Means and upon what Occasion he arrived to his Altitude and transcendent power as our Authors instruct us But before I enter upon it let me premise some few things which may guide us in passing a Judgment upon what is so set down and I set down nothing as my own private opinion I only make a Collection of what is delivered upon this Subject by the most grave and learned Antiquaries and Authors and I submit all to the Judgment of the Lords for whose Information only this is written Iâ—… hath been the Wisdom and I may say the true natural Genius of this Nation from its Original and Infancy especially in Administration of Justice and of what is subservient and conducing towards it to place the Power and confer the Trust not in any one single Person but in many or more than one And it is the Advice of a Lord Chancellor Sir Francis Bacon as to the very Jurisdiction we are Treating of which he calls Praetorian let it not says he be assigned over to one Man but consist of many because it little differs from the power of making La 〈…〉 and he would have their power limited to cases heinous and extraordinary and not invade ordinary Jurisdictions and that it reside in the Highest Courts of Judicature which with us is the House of Lords least it prove a matter of Supplantation of Laws See his Advancement of Learning pag. 445. and pag. 446. the 43d Aphorism Above all says he it most imports the certainty of Laws that Courts of Equity do not so swell and overflow their Banks as under pretence of mitigating the rigour of the Laws to dissect or relax the Strength or Sinews thereof by drawing all to Arbitrement The Lord Coke in his first Instit. 155â—… a and Plowd in his Commentaries take notice that the wisdom of the Law had so ordered it That matters of fact shall be decided by Twelve Men in a Jury and matters in Law by Twelve Judges Sworn to the Common Law in no Case by one single Person Sir Henry Spelman affirms that this was the Genius or Humour of all Europe But to confine our selves to our own Nation he particularly observes that Prisci nostri Reges coram Omni Regno jurabant c. Justitiam per Concilium Procerum regni sui tenturos The Kings alone never did determine matters either in Law or Equity Ingens Exemplorum Multitudo quibus prisci illi Reges Causas ad palatium suum allatas non Unius alicujus judicio sed Communi Procerum Concilio definiêre This circumscribes that unlimited Power which in the beginning of that Paragraph Sir Henry Spelman seems to ascribe singly and solely to the Kings from whence the Advocates of the mighty Power of the Chancery like true Herodians who cried up Herod would derive the like to their Chancellors Fessi autem meaning it of our Kings tautae rei mole coguntur exemplo Moysis Judiciorum lancem Delegatis credere No doubt but it was done by the Commune Concilium of the Nation as Mr. Selden in his Titles of Honour concludes of many such like publick Transactions tho the Records and Rolls of them are not now extant Tunc erectis seorsim à Palatio Tribunalibus pointing as he supposes at the Original of our Courts of Westminster-Hall Singula multis quamvis ex Canone judicaturis tho tied to certain Rules Nullum unico Substituerunt Judici Justitiam uti veritatem rati tutius apud plures conservari Neque ideo vel in Curiis ipsis infimis Rusticanis this best shews the Nations Humour Monocriten preferebant qualemcunque it would not be endur'd The Freeholders in the Country Courts meant by the Curiae rusticanae were to determine Fact and Law both that is were the sole Judges of the Folkmotes or Country Courts Only there lay an Appeal in exorbitant Cases that is in extraordinary matters ad Palatium Regni and they received a Determination from the King not from him alone but E Concilio Procerum This expounds the Law of King Edgar Lambert de priscis Anglorum Legibus pag. 63. Viz. Nemo in lite Regem appellato nisi quidem domi viz. the Country Court consequi non poterit Sin Summo jure domi urgeatur ad Regem ut Is onus aliquâ ex parte allevet provocato that is Moderate the rigour of the Judgment not alone nor by a Chancellor but by advice of the Peers as before is manifestly proved Sir Henry Spelwan proceeds further to observe that several subsequent Statutes which gave power in many particular and limited matters to the Chancellor never referred them to him alone but still in Conjunction with others 31. H. 6. C. 4. the Chancellor has power given him calling to him any of the Justices to proceed by their Advice even in the Court of Chancery it self 5 to E. 4. Inter Cobb Nore by Authority of Parliament Power is given to the Chancellor and Two Judges to order a matter of Collusion In all this the Humour and true Genius of the Nation was still pursued He instances too in the Statutes made in the 20th year of Edward III. about the Forest of Windsor and in the Statute about Assizes of Novel Disseisin whereby in special Cases pro tempore only Power was given to the Chancellor in Conjunction with othérs In the Case of Prohibitions in Sir Coke's 12 Rep. 63. Banoroft Archbishop of Canterbury had informed King James the First That the King himself might decide Causes c. in his Royal Person and that the Judges are but Delegates of the King and that the King may take what Causes he please to determine from the determination of the Judges and may determine them himself And the Archbishop said that this was clear in Divinity that such Authority belongs to the King by the Word of God But Sir Edward Coke then Chief Justice in the Presence and with the clear Consent of all the Judges of England and Barons of the Exchequer answered That the King in his own Person cannot adjudge any Case either Criminal or between Party and Party but it ought to be determin'd in some Court of Justice according to the Law and Custom of England 4 Instit. in the Chap of the King's Bench fol. 70. The King that is the Law and Constitution of the Government hath committed all Power of Judicature to several Courts of Justice This is necessary to be remembred because it is confidently affirm'd by the Advocates of the Equity-Jurisdiction of the Chancery that the Kings of England anciently and at the first did Administer Justice and more especially did mitigate the
Law I desire that both these Authorities last cited may be compared together viz. Sir Cotton's Abr. and Sir Coke's 2 Instit. 553. the one gives light to the other Juncta juvant This Instructs us in the method of Proceedings in Equity used in the time of King R. II. and most likely in the times preceding Not to the Chancellor alone but to the King himself to be referr'd to the Councel And the Case of Sir Richard le Scrope was in a matter where there was remedy at Law so that they were out of their way in Petitioning to the King in it and therefore the Decree was revers'd by the Lords in Parliament before whom the Appeal did properly lye nor would the Lords themselves determine it upon the Merits of the Cause viz. who had the right but referred the Parties to the Common Law to the right course and yet it was a Decree made by the Submission of all Parties to the Arbitration So ready were the Lords at that time to do right to the Common Law Sir Edward Coke says this was the first Decree made by the Chancellor in the Chancery who did as it seems in limine titubare stumble at the very Threshold which some say is ominous The Proceedings in this Case of Sir Richard le Scrope was as I find when Thomas Arundel Bishop of Ely and afterwards Archbishop of Canterbury was Chancellor who no doubt did much influence the King and Council in making the Decree They have been Churchmen and divers of them of the highest rank Cardinals who are upon good ground supposed to be the first Setters up and promoters of this absolute Power in Chancery the Chancellors generally in those elder times being of the Order of the Clergy And they began as is usual in beginnings with great modesty and to exercise their Power in some few Cases which failed of ordinary help and when Parliaments were not so frequent as formerly to whom recourse should have been and who would have censured such assuming of new Jurisdictions as they afterwards very frequently did And the Setters up of this new Jurisdiction would not at first adventure to do it by One single Person alone tho never so high but with the Concurrence of the Judges and they too not sent for into the Chancery to attend and assist the Chancellor but those new Cases of Equity were sent into the Exchequer Chamber where the Chancellor himself resorted to the Judges with their Causes in Equity and these are many of them reported in our Year-Books of those times And those Causes were constantly determin'd by the opinion of the Judges and this method took off the Judges whose Superiour the Chancellor was in Dignity and Grandeur from opposing that new Jurisdiction by granting Prohibitions to stop the Proceedings of the Chancery in such Cases as it was their Duty to have done See Mr. Selden's Notes upon Fleta How the Clergy who anciently had their Sole dependence upon the Bishop of Rome and held themselves not Subject to the Temporal Power still promoted and endeavoured to introduce the Civil Law into this Realm but yet were still withstood by the Lords and Commons who were always hearty Friends to the Common Law Sir Coke's 2 Instit. fol. 626. at the end of that folio it is said in the Indictment against Cardinal Wolsey and charged upon him that he intended Antiquissimas Angliae Leges penitùs subvertere enervare Universumque hoc Regnum Angliae ejusdem regni populum Legibus Imperialibus vulgò dictis Legibus Civilibus earundem Legum canonibus imperpetuum Subjugare subducere c. Cardinal Wolsey's being in the height of Favour and Authority with King Henry VIII hated both Parliaments and the Common Laws and he was the means that but one Parliament was holden in Fourteen Years The Common Law was the true Natural and Original Law of England used ever since the departure of the Romans and brought in by the English Saxons again Qui suis tantummodò quas secum è Germanià whether they had transplanted them attulerant Moribus usi sunt only their ancient Customs and no other Caesarei Juris says learned Selden usus plane reperitur Nullus per Annos amplius Septingentos more than 700 years There was no Chancery-Law to determine matters of fact much less titles of Freehold by Depositions of Witnesses only or by an Absolute or Arbitrary Power in all that time of 700 years No Man was suffer'd to have a Civil Law Book in his keeping King Stephen by his Edict did forbid it The Saxons Danes and Normans owned no other Law than that Law which Anglorum Commune vocitamus says the famous Selden in his Dissertatio ad Fletam pag. 502 503 505 506 508. And Johannes Balaeus tells us that Theobaldus Cantuariensis Archiepiscopus quasdam Leges in Angliam attulerat sed eas ut Reipublicae nocivas Rex Stephanus perpetuo Parliamenti Decreto damnavit delevit incendi fecit The Common Law was in King Stephen's time and before says Selden the Study of Men that were otherwise Learned too Sed Moribus Majorum tantum patrioque utebantur illi Jure qùod ante ad nostra usque tempora Angliae Commune vocitatur and their Studies were furnished with the Presidents of Judgments and Copies of Reports of Law-Proceedings like those of our Year-Books and no other were cited in their Courts And the Students and Residents at the Inns of Courts who afterwards were the Countors or Pleaders were not Clerks or Sollicitors as many now adays are to the declining of that Noble Profession But the Sons of Noble Men and of the best of the Gentry as we read in Sir John Fortesâ—…ue in his Treatise De Laudibus Legum Angliae Juris Anglicani says Excellent Selden ut Supra 537. quod Commune vocitamus quae Gentis hujus Genio ab intimâ Antiquitate adaptatum fuit Singularis aestimatio atque inde non immeritò in eodem adhaesio constans sane pertinax In that great question says Selden in his Dissertation ib. 539. concerning the right of Succession to the Crown of Scotland referred by all Parties and Pretenders to the Decision of our King Edward I. Anno Regni 19. Anno Dom. 1292. about which they met at Norham in the Bishoprick of Durham It was Debated as a Praeliminary whether it should be judged and decided by the Law of England or of Scotland or the Caesarean or Civil Law as being the Jus Gentium see Riley's Placita Parliamentaria 143. in the middle of that Page our King Edward I being the Soveraign or Superiour Lord of Scotland It was concluded before Roger de Brabazon a Judge of the King's-Bench Sir Edw. Coke says Ch. Justice 2 Instit. 554. the King 's Delegate or Substitute for that Great and Noble Occasion That the Caesarean or Civil Law should by no means be allowed of Nè inde Majestatis Anglicanae Juri
taken in the largest sence but rather contra-distinct and indeed opposite to it and destructive of it Sir Henry Spelman at last takes leave of this great Officer and of his Court by shewing what a mighty encrease came flowing in from that ill Weed the Invention of Uses or Trusts which are still the same But to this point there are plenty of far greater Authorities and Authors for whose Testimony herein I shall reserve it Another thing to be premised is that as the King had no such Power himself singly and in his own Person only to decide Causes of Equity and therefore could not Delegate it to any one Man as 't is pretended he might so and upon the same ground and reason the King by our Law could not by his Commission Erect any Court of Equity It can be grouned and warranted only upon a Prescription or an Act of Parliament neither of which can be pretended to in the matter in hand it was so adjudged 26 Eliz. in the King's-Bench Sir Edw. Coke 4 Instit. fol. 87 97. That a Court of Equity cannot be Erected but only by Act of Parliament or Prescription And the like in the Lord Hob. Rep. 63. Resolv'd also in Langdale's Ca. 12. Rep. 52. That the King cannot raise a Court of Equity the reason is because a Court of Equity proceeds by the Rules of the Civil Law and not by the Common Law 6 Rep. 11. b. and 2 Instit 71. The King may appoint a new Court and new Judges but cannot change the Law Hill 8. H. 4. fol. 79. by Gascoign That the King by his Charter cannot out the People of their Inheritance which they have in the Common Law So note the Common Law is the People's Inheritance In the next place Let us proceed to examine about what time and upon what occasion this Court of Equity exerted its Power which hath in part fallen in among our former Enquiries For the time and occasion too Mr. Lambert in his Archeion pag. 75. refers it to the time of King Henry IV. and the occasion was taken from Feoffments to Uses For remedy in which Cases the Chancery was fled unto With this agrees Sir Henry Spelman in his Glossary pag. 107. at the lower end Doctor and Student fol. 98. Sir John Davy's Rep. in his Preface Mr. Hunt's Argument for the Bishop's Right c. pag. 144. And to prevent mistakes herein it must be observ'd That the word Equity hath been very anciently used long before this Jurisdiction began in Chancery but not in a Contradiction or in Opposition to the Common Law of the Land as now it is but either in a mild and merciful Expounding of the Law by the known and sworn Judges of the Law or as synonimous and signifying the same thing as Law Justice and Right For the Laws of England were not looked upon then as being like the Laws of Draco Sanguinary and Cruel and Rigorous but merciful and equitable in themselves and so expounded and administred by the Judges of the Common Law Mulcaster the Translator of the Chancellour Fortescue being a Student of the Common Laws of England in the Reign of King H. VIII could readily observe to his Reader from his Study of those Laws and from the Arguments used by his Author the Excellent Sir John Fortescue Easdem nostras Leges non solum Romanorum Caesarum sed omnium aliarum Nationum Constitutiones multis parasangis prudentiâ Justitia equitate praecellere facilè perspicias See his Preface Non quod principi placet Legis vigorem habet non quicquid de voluntate Regis tho his Will be not Arbitrary neither but guided by Discretion and tho he define secundum aequum bonum sed quod Magnatum suorum Concilio Regiâ authoritate praestante habita super hoc deliberatione tractatu rectè fuerit definitum So writes Bracton Lib. 3. Cap. 9. fol. 107. and so Britton Sir Gilbert Thorneton Ch. Justice in the time of King E. I. and Sir John Fortescue Chief Justice and afterwards Chancellor These invincibly prove the Nature of our Laws The Kings of England were from the first Foundation of the Government Sworn to observe the old known Laws of the Realm which were called Usus Consuetudines Regni and that they would not suffer any Innovasion which was often attempted by the Pope and his Clergy who endeavoured to introduce into this Realm the Civil and Canon Laws King Henry I. writing to the Pope upon such an occasion tells the Pope stoutly Notum habe at Sanctitas vestra quod me vivente Usus Regni Angliae non imminuentur Et si ego in tanta medejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur And all the Nobles of England by Consent of the Commons wrote to Pope Boniface upon the same occasion Non permittemus tam insolita tam indebita Dominum nostrum Regem etiamsi vellet facere seu quo-modo-libet attemptare The Lord Chancellor and Lord Keeper is also Sworn to do Right to all after the Laws and Usages of this Realm not secundum aequum bonum nor other Rules of Equity 2 E. 3. fol. 20. It is said in that Book by the Chancellor sitting in the Chancery and speaking of that Court This says he is a place of Equity where we grant a Writ to every one that Sues for his Inheritance So that to issue out Writs as Officina Brevium is by the Chancellor's own acknowledgment a proper work of Equity It seems to be the only use of the word Equity at that time 2 Instit. 53. The Civilian Vinius in his Comment upon Justinian's Institutes pag. 20. Nomen Aequitatis says he duplicitèr accipitur vel in genere pro aequo quod cum omni jure conjunctum est vel in specie pro eo quod est à Jure Civili diversum Omnibus Legibus aequitas inesse creditur Nomenque juris non meretur quod ab omni Aequitate destitutum est He mentions no Equity contrary to Law or to Controul the Law nor any other than what was to be exercised by the very Judges of the Law themselves in all Cases that came before them Plowd Comment 466 467. In the Case of Eyston and Studde it is said No Makers of Law can forsee all things that may happen and therefore it is convenient that the fault be reform'd by Equity This the Chancery-men will catch at as making much for their practise of relieving in such unforeseen Cases where the Law looks severe and rigorous But the Case cited proceeds further and makes not at all for the Chancery if it be heard out And the Sages of our Law have deserved great Commendation says that Case in using Equity in Cases of Rigour in the words of a Law for by that they have mollified severe Texts and have made the Law tolerable Who are meant generally in our Law-Books and Arguments by the
the Parties to such Judgment be in Peace A Peace with a witness to be involv'd again with a new tedious expensive Chancery-Suit so uncertain in the Event and tied to no certain Rules When the Plaintiff at Law flatter'd himself and was glad that he had arriv'd at his desired Haven Post varios casus post tot discrimina He is wonderfully deceived he must set out to Sea again to another long East-India Voyage But what Authorities Law-Books or Resolutions of Judges or Courts of Justice have the Chancery had for the expounding of the Statute of 4 to Henry IV. in this sense which utterly makes that Statute of no Effect besides those of itheir own Chancellors and besides the Privy-Seal of King James I. upon consulting only with his own Council at Law A very strange way of Proceedng The Great Seal and the Privy Seal are on their side 't is true if these in such Case must be submitted to what then becomes of the Stat. of 2 E. 3. cap. 8. whereby it is accorded and established That it shall not be commanded by the Great nor the little Seal to disturb or delay common Right and tho such Commandments do come the Justices shall not therefore cease to do right in any point the Stat. of 14 E. 3. c. 14. is fully to the same effect The complaint against the late Court of Star-chamber which yet was established by Law was that by experience it was found to be an intolerable burthen to the Subject and the means to introduce an Arbitrary Power and therefore that Court was taken away by the Act of 16 Car. 1. Cap. 10. I shall now on the other side endeavour to make it clear to the Honourable the Lords that such Proceedings of the Chancery of Relieving after Judgment at Law upon any pretence of Equity whatsoever is not only against the express words and meaning of that Act of 4 H. 4 but against the Ancient and Fundamental Common Law of England and this I doubt not to make out by all sorts of Authorities and Resolutions Ancient and Modern and in the Reigns of several Kings and Queens of this Nation and that not one authentick Legal Authority can be produced to the contrary I shall begin with the most ancient Authority and that is in 6 E. 1. in the Case of the Earl of Cornwall cited in Sir Coke's 3 Instit. in the Chapter of Praemunire fol. 123. Judgment was there given before the Justices of Oier and Terminer against the Bishop of Exeter and his Tenants The Arch-Bishop of Canterbury Excommunicated all Persons that dealt in those Proceedings against the Bishop of Exeter and his Tenants before those Justices The Record says That the Judgments given in the King's Court ought not to be Impeach'd in any other Court This appears by that Record to be the Antient Law The Stat. of 4 H. 4. now treated of is in effect a Declaration of the Common Law for it recites in the Preamble as was before observed that such Proceeding was in Subversion of the Common Law of the Land which proves it to be done against the Common Law In the Case of Cobb and Nore Pasc. 5. E. 4. Coram Rege cited by Sir Edw. Coke in the same third Instit. fol. 123. A Judgment was obtain'd by Covin and Practise against all Equity and Conscience in the King's-Bench For the Plaintiff in the Judgment retained by Collusion an Attorney for the Defendant without the knowledge of the Defendant then being beyond Sea the Defendant's Attorney confesseth the Action whereupon Judgment was given The Defendant sought his Remedy by Parliament and by Authority of Parliament Power was given to the Lord Chancellor by advice of Two of the Judges to hear and order the Case according to Equity If the Chancellor had any such Power before what need was there of resorting to the Parliament Non recurritur ad extra-ordinarium nisi cessat ordinarium And why was it not referred to the Chancellor alone without Associates if it did of Right belong to him before Such a Case in these days would be held in Chancery to be a most proper Case for the Relief of that Court. And Note further That one Person alone thô a Lord Chancellor was not to be entrusted with a Judicial Power but others were joined with him In the 22 E. 4. fol. 37. It is said by Hussey Ch. Justice If after Judgment the Chancellor grant an Injunction and commit the Plaintiff at Law to the Fleet the King's-Bench will by Habeas Corpus discharge him In the 21th year of K. H. VIII Articles were Signed by Sir Tho. Moor the Chancellor himself and by Fitz-James Ch Justice and Justice Fitzherbert against Cardinal Wolsey One was for Examining matters in Chancery after Judgment at the Common Law in Sir Edw. Cok. 3. Instit. fol. 124. in Subversion of the Laws See the 2 Instit. fol. 626. at the end of that folio before cited more of Cardinal Wolsey and the Indictment against him In Crompton's Jurisdiction of Courts fol. 67 69. and 57. about the time of 13 Eliz. a Man was Condemn'd in Debt in the Common Pleas that is had Judgment entred against him and he Exhibited a Bill in Whitehall and had an Injunction to stay Execution and the Plaintiff that had the Judgment at Law moved in the Common Pleas to have Execution and it was granted notwithstanding the Injunction afterwards the Chancery committed the Plaintiff at Law to the Fleet for Suing out Execution and the Lord Dier Chief Justice and the whole Court of Common Pleas deliver'd him out of the Fleet by Hab. Corpus In the Case of Sir Moile Finch and Throgmorton Mich. 39. 40. Eliz. Throgmorton Exhibited a Bill in Chancery against Sir Moile Finch and shewed clear matter in Equity to be Relieved against a Forfeiture of a Lease for years pretended by Sir Moile for Breach of a Condition where there was no default in the Plaintiff Throgmorton To which Bill the Defendant in Chancery Sir Moile Finch Pleaded That he had obtained Judgment in the Exchequer in an Ejectment in the Name of his Lessee against Throgmorton the Plaintiff in Chancery and that Judgment had been affirm'd in Error and demanded the Judgment of the Chancery if after Judgment given at the Common Law he should be drawn to answer in Equity Egerton would not allow the Plea but over-ruled it Note He did not Plead the Statute of 4 H. 4. but grounded his Plea at the Common Law Queen Elizabeth referr'd the Consideration of this Plea and Demurrer to all the Judges of England not to her own Council Learned in the Law for the Twelve Judges are the proper Judges of this Question tho it concern'd their own Jurisdiction After hearing Council and the intent of the Lord Chancellor being said to be not to Impeach the Judgment but to Relieve upon collateral Matter in Equity Upon great Deliberation it was Resolved by all the Judges of England That
Rigour of the Law by Equity in their own Persons alone and afterwards did delegate the same Power of Equity to a single Person the Chancellor who as they phrase it hath the dispensing of the King's Conscience as well as the Custody of it And that to the King alone in such Cases an Appeal doth lie which by what hath been already said is manifestly untrue as shall yet be further made out Sir John Fortescue who was a Lord Chancellor in his Book De laudibus Legum Angliae pag. 64. says to Prince Edward Son to King Henry VI proprio ore Nullus Regum Angliae Judicium proferre visus est tamen sua sunt omnia Judicia regni licet per Alios ipsa reddantur Just as all our Laws are said to be the King's Laws not that he hath the sole Legislature as Sir Robert Filmer doth weakly or rather wilfully tho groundlesly infer but Denominatio sumitur à Majore as is most frequent in common Use it is but an Embrio till he quicken it by passing the Bill In the next place Let us enquire at what time and by what occasion this Jurisdiction of the Chancery in Equity began by which it may appear whether it be Entitled to it either by Prescription or by Act of Parliament for Non datur Tertium The same Proofs and Authorities will serve to manifest these â—…7 H. 7. Keilway 42. b. by Vavasor The Sub-Paenâ began in the time of Edw. III. and that says he was against the Feoffee upon Confidence that is to Uses Mr. Lambert who was a Master of the Chancery Sir Edward Coke 2 Instit. 552 in his Archeion pag. 72 74 75. says that the Kings used to refer matters in Equity to the Chancellor from whence the Chancellor was anciently Styled Referendarius as was noted before or to him and some other of the Council And tho' this doth not as he observes plainly erect any Court of Equity yet as he supposeth it is the laying the first Stone of the Chancery Court and pag. 73. That in the time of Edward III. it was a Newly Erected Court which may be understood of its Latin Pleas. The Book called The Diversity of Courts written in the Reign of King Edward III. Treats of the Jurisdiction of the Chancery according to its ordinary Power which are the Latin Proceedings or by the Rules of the Common Law but says nothing of that which the Chancellor holdeth in Equity Et quod non invenis usquam esse putes nusquam It was enabled to deal in some special and particular Cases by Parliament which were but Temporary neither which proves that in such or in the like Cases the Chancellor could not meddle without the help of Acts of Parliament Nor were those Cases referred to his Equitable or Arbitrary Power neither as some misapprehend For Sir Edw. Coke 4 Instit. fol. 82. says That Acts of Parliament giving Power to the Chancellor to hear and determine Causes in Chancery are ever intended of the Court of Record there proceeding in Latin Secundum Legem consuetudinem Angliae which Power is not contested And Mr. Lambert pag. 74. ut supra says he does not remember that in our Reports of the Common Law in which Reports under the Titles of Conscience or Sub-Paena in Fazh or Brook's Abridgment many Cases of Equity in the Chancery may be found there is any mention of Causes before the Chancellor for help in Equity but only from the time of King Henry IV. in whose days by reason of those intestine Troubles between the Two Houses of York and Lancaster Feoffments to Use did either first begin or first grew common for Remedy in which Cases chiefly the Chancery Court was then fled unto No Book-case says that great Champion for the Common Law Sir Edward Coke 2 Instit. 552. nor Reports of the Law make any mention of any Court of Equity in the Chancery used before or in the Reign of King Henry V. but they speak of the Chancellor's ordinary Jurisdiction which is at the Common Law and by Latine Proceedings which proves they were very rare at that time The few Causes heard by the Chancellor in the Reigns of King Henry VIth and Edward IVth in Equity by English Bill are most of them concerning Uses of Land And how great an Invasion that new Invention of Uses was upon the Laws of England both the Common Law and the Statute Law and how pernicious they have been to Men's Estates and what occasion they have been of Contention and multiplying Suits shall appear by what follows See Doctor and Student pag. 71. to that purpose Sir Coke's 2 Instit. 553. affirms That no Act of Parliament printed or unprinted gave the Chancellor any power to hold any Court of Equity The Stat. of 36 Edw. III. Cap. 9. without question says that Grave and Reverend Judge and true lover of his Nation refers to the ordinary power of the Chancellor but gives him no shadow of any Absolute Power meaning a Power of Equity See the 2 Instit. fol. 553. See that remarkable Case of Sir Richard le Scrope in Sir Cotton's Abridgment of the Records of the Tower pag. 351. Numb 10. exceeding pertinent and useful in many respects to our present Enquiry and gives great light to us in many things It is mentioned also in Coke 2 Instit. 553. it happened Anno 17 of King Richard II. John de Windsor complain'd by Petition to the King against Sir Richard le Scrope and Sir John Lisley for detaining divers Mannors in Cambridgshire from him to which as he alledged he had a Right and Title Both Parties submitted the matter to the King's Arbitration The King committed it to the Council not to the Chancellor alone the Council decreed it for Windsor then Plaintiff under the Privy Seal they sent to the Chancellor to confirm that Decree or Award under the Great Seal which was done and a Special Injunction to Sir John Lisley and a Writ to the Sheriff to Execute it A strong Case in all its Circumstances Sir John Lisley one of the Defendants not satisfied with the Decree or Award Petitions the King in Parliament that is Appeals from it and prays the Matter may be determined at the Common Law notwithstanding the Decree or Award so confirm'd The King by Privy Seal Orders the Chancellor to Supersede the Injunction and the Writ and Decree The Decree was revers'd and both Parties order'd to stand to the Common Law and Windsor's Petition was dismissed Sir Edward Coke says that this Decree so made by the Council was the first Decree in Chancery that he could find and that upon a deliberate hearing of the whole matter by the Lords in Parliament it was adjudg'd that Sir John de Windsor should take nothing by his Suit but stand to the Common Law that is according to our now usual Language His Petition or Bill in Equity was dismiss'd and the Parties sent to the Common