Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	bishop_n	king_n	realm_n	4,849	5	8.3375	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26141	An enquiry into the jurisdiction of the Chancery in causes of equity ... humbly submitted to the consideration of the House of Lords, to whom it belongeth to keep the inferiour courts within their bounds / by Sir Robert Atkyns, Knight ... ; to which is added, The case of the said Sir Robert Atkyns upon his appeal against a decree obtained by Mrs. Elizabeth Took and others, plaintiffs in Chancery, about a separate maintenance of 200£ per annum, &c.	Atkyns, Robert, Sir, 1621-1709.	1695 (1695)	Wing A4137; ESTC R16409	49,475	54

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-Bishops Bishops Abbots Princes and Temporal Lords See Fox his Acts and Monuments Vol. 〈◊〉 Lib. 4. pag. 2●… says Mr. P●…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 ●…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in

fieret detrimentum And Selden speaking of the Civil Law pag. 540. ib. says about King Henry IIId's time Jus Caesareum was newly brought in Et à nonnullis maximè ex genere Hieratico proculdubio perquàm adamatnm atque prae Anglicano in pretio habitum See that admirable and right English Preamble to the Stat. of 25 H. VIII Cap. 21. What Laws only are binding to this Nation viz. none but those Laws which the People of England have taken at their free Liberty by their own Consent to be used amongst them as the customed and ancient Laws of this Realm originally established and none otherwise Not any new Rules devised ex re natâ at the Discretion of any one Man tho never so Great or Wise or Learned but never consented to by the Nation and from the first appearance of them declaim'd against by several Acts of Parliament and by a multitude of Petitions of the whole Commons in Parliament complaining of their Process as a Novelty began at first but about Richard II. or Henry IV. time a time of great Troubles See to this purpose Cott. Abr. 2 H. 4. Nu. 69. 3. H. 5. Nu. 46. 9 H. 5. Nu. 25. Roll. Abr. 26. par 1. fol. 371. D. nu 2. Yet let me here observe one thing more by the way namely that from these beginnings here of the Chancellor's Power tho so restrained as we see by the several particular Acts of Parliament that gave them Occasion was taken afterwards to Engross the Power of Equity and to take it from the highest Court of the Nation And those that plead for it do without all sence or reason ascribe it to some few Acts of Parliament that referred some particular Cases to him as fairly giving him the power whereas those Acts of Parliament manifestly shew the contrary Utcunque verò says Sir Henry Spelman se res habuerit fiquidem vel Exutis sociis vel cedentibus shaken off sitting silent or weary of being Mutes apud ipsum Unicum meaning still the Chancellor remansit tandem Jurisdictio It so came to pass that he could not well tell how that the Chancellor grasp'd it all and shook off his Associates or they prov'd Deserters And one Act of Parliament more Sir Henry Spelman mentions viz. 36 E. 3. Cap. 9. as trusting the Chancellor singly but it hath been already shewn that the matter so intrusted by that Statute had no reference to Equity nor indeed to any Judicial power to be exercised by him but meerly as ministerial rather directing Remedies by Writs in order to a Decision by a Legal Course and by the Common Law He proceeds farther viz. Ascitisque protractis in Cancellariam pluribus quam Justum videbatur Populus meaning the Commons in Parliament ad candem cohibendam Legem rogat non autem tulit sed benignè à Rege responsum est as was wont mandaturum se id parciùs fieri quam priùs solitum This was 4 to H. 4. about which time the Chancellor first began to arrogate to himself this power as shall be more fully shewn hereafter See Sir Rob. Cott. Abr. pag. 410. 2 H. 4. Nu. 69. a Petition of the Commons against the very Original Process of Sub-Paena that it might no more be used and that the Subjects might be treated according to the rightful Laws of the Land anciently used see Rolles's Abr. part 1. fol. 370. more at large And that this Process was illegal appears by another Petition of the Commons 4 H. 4. Nu. 78. Roll's Abr. ut supra The Commons in their Petition 4 H. 4 Cott. Abr. Nu. 78. pray that the Suggestions made in Chancery may be tryed by a Jury and if they be found false that the Jury may give the Defendant damages And that the Plaintiff before he be allowed to take out a Sub-Paena may find sufficient Surety to answer such Damages which shews the good Opinion the Nation had of Juries The Petition of the Commons 4 H. 4. Nu. 110. intimates that all the Estates of the Realm were in danger by the Chancery-Proceedings and they pray remedy for God's sake It is very useful and pertinent also to set down what further Sir Henry Spelman mentions Simile quiddam says he agitatum ferunt in Parliamento Anno primo of King Henry VI. Sc. Neminem ad Cancellariam provocaturum cui duo Justiciariorum Regis non ferrent testimonium haud Subvenire Legem Terrae Two Judges of the Common Law which is call'd the Law of the Land in distinction from the Chancery-Rules were to make way for every Bill in Chancery by their first certifying that the Plaintiff had no Remedy at Law which was an excellent expedient and worthy to be made a Law by a short Act to be past for that purpose The Judges of the Common Law who are Sworn to maintain the Law were thought the most competent and worthy to be entrusted in it and not look'd upon as partial and unindifferent which is a Scandalous Reflection upon the Government and Constitution See the 2 Instit. of Sir Edw. Coke pag. 544. there is a Writ directed by King Edw. II. to the Judges of the King's-Bench in these words Vos Locum nostrum in placitis teneatis nostram praesentiam supplere debeatis and in the Case of Walter de Langton ib. fo 573. Contemptus ministris domini Regis facto eidem Domino Regi inferuntur says the Record in the 33th year of King Edw. I. It appears that the Chancellor could not Act no not in many ordinary Matters till enabled by the Parliament See 14 E. 4. fo 1. Brook Abr. Tit. Brief plac 483. and then his Power was limited and he alone was not entrusted but he had an Association of others Quantum mutatus ab illo It farther shews when he began to enlarge and assume a greater Power and how unwarrantable it was in his first Exercise of it not grounded upon any good Authority for we should have been sure to have heard of it in the King's Answers to the Petitions of the Commons against it as was constantly used upon such Petitions where there was any Law to warrant what was so complain'd of had there been any either Prescription or Act of Parliament the Chancellor being constantly the chief Person among the Tryers of Petitions in Parliament and framing the Answers of those Petitions in Parliament together with the Bishops Lords and Judges which of late hath been wholly disused And lastly it proves how early this new Jurisdiction of the Chanceries Proceeding in Equity was decry'd and exclaim'd against not only for the Abuses in the Administration of it but for usurping a Jurisdiction not founded upon any good Authority and carried on by the Potency and Greatness of the Chancellor Nor was there any the least pretence of any Prescription or Act of Parliament to support it Nor was it taken to be any part of the Law of the Land or of the Common Law tho

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