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-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
ordains That noue from thenceforth except out Lord the King shall hold in his Court any plea of false Judgments given in the Court of his Cennants for such Plea especially belongeth to the Crown and Dignity of our Lord the King Though the Supream Jurisdiction were in the King to use as he saw best it is but rational that if the Parliament were sitting at such time as any Complaints were made to him of any Erroneous Judgment or Decree that he should refer the Examination and final Determination of the matter to the House of Lords who without any manner of doubt are and always were the fittest Referrees the King could refer any matter to be determin'd they being the chief Assembly of the Honour Integrity Wisdom and Justice of the Nation and therefore it is but reasonable the King should take the measures of his final Determination from their Advice or refer it to them to determine which is all one Better or Abler Advisors being not to be found but it is as true they had no power of Judging by their own innate Authority but by a delegated Authority from the Kings as plainly appears by what is said before and also by the Parliament Roll of the 4 of Ed. 3. which is recited in Cotton's Records In haec Verba viz. The Treasons Felonies and other misdemeanors of Roger Mortimer are particularly repeated a great part of which Roll cannot be read for that the Roll is mouldred but in the end it appears that the King charg'd the Lords and Peers who as Judges of the Realm by the Kings Assent adjudged that the said Roger should be Drawn and Hang'd Whereby it appears it is the Kings Charge to the Lords and the Kings Assent that gives them Jurisdiction and Authority And so it follows of necessary consequence that though they are the fittest for the King to Authorize to determine the mistakes and Errors of his Chancellors and other Judges yet if when they are not Assembled in a Parliamentary way there is no reason nor authority against it nor inconveniency by it for the King to Authorize a convenient number of the Lords of the Parliament and Judges that are near him to take course with Erroneous Decrees in the mean time until the Parliament sits And therefore it was that it was provided by Act of Parliament the 31st of Ed. 3. cap. 12. That the Lord Chancellor and Treasurer should have Power upon Complaint to take the Justices and such other sage persons as they thought fit to their Assistance and to Examine the Judgments of the Exchequer Court And if any Error be found they may corted the Rolls and after send them into the Exchequer to make I thereof Execution Which thing I conceive the King might have done of himself without Act of Parliament and I conceive the Act made it a standing Rule to prevent often troubling the King upon every particular occasion and though there be no provision by that Act for any further Examination of the Judgment of the Chancellor and Treasurer in that Case yet it is not so final but the King may upon Petition to him order a Writ of Error returnable in the House of Lords Assembled in Parliament for a further and more due Examination of the matter if either Party thinks himself agrieved thereby and from that time forward ziz the 31 of Ed. 3. there was no standing Order made by Act of Parliament as to the Errors of the Court of Kings-Bench for by that Name I shall now call the Successors of the Judges that followed the King mentioned in the aforesaid Authors but it stood at the Kings meer pleasure 27 El. 8. as formerly until the 27 of Queen Elizabeth Yet our latter Kings before that Statute for the most part used to refer the Examination and Correction of such Errors only to their House of Lords in Parliament insomuch that for want of oftener referring it to their Councel or to Specialibus Auditoribus Special Commissioners as Fleta affirms the King could do as is mention'd in the beginning of this Section it grew to be an Opinion that Errors of the Court of Kings Bench could be rectified no where but in Parliament as appears by the Preamble of that Statute of the 27 of Eliz. Therefore and as the Preamble of that Statute mentions Because the Court of Parlisament was not in those days so often held as in ancient time and because in respect of the great Affairs of the Realm such Erroneous Judgments meaning those of the Kings Bench could not be well consider'd and determin'd in time of Parliament whereby the Subjects of the Realm were greatly hindred and desayed of Justice It was therefore enacted That the Errors of Judgments in the said Court of Kings-Bench in certain Actions therein mention'd should be examined and rectified in the Exchequer-Chamber by such persons as in the said Act is mentioned and after the Judgment is affirmed or tedersed the Record and all things concerning the same shall be removed and brought back into the Court of Kings-Bench that such further proceedings may be thereupon as well for execution as other wise as shall appertain And thereby it is reserv'd That the parties shall not be finally concluded by such Reversal or Affirmation but that they may sue in the high Court of Parliament for a further and more due examination of the said Judgment in such sort as was thentofore used upon erroneous Judgments And the manner thentofore was that before any Writ of Error could be brought to examine and correct Errors in Parliament a Petition was to be preferred to the King for allowance thereof and it was to be allowed by the King before any such Writ of Error could be made as appears by the Authorities in the margin 1 H. 7. fo 19 20. Dy. fo 375. which makes it most plain where in whom the Supreme Judicative Power lay And Judge Jenkins says Jenk Lex terrae fo 55. The reason of the Law and the King's allowance of a Writ of Error returnable in the House of Lords is for that the Judges of the Land all of them being of the Kings Councel and the twelve Masters in Chancery assist in the Lords House by whose advice erroneous Judgments are redrest So that it appears plainly their Judicative Power in that particular is not originally and fundamentally in themselves but derived from the King by his allowance thereof who is fons origo Justitiae Bract. lib. 2. cap. 4. and says Bracton est enim Coronae Regis facere Justitiam Judicium tenere pacem sine quibus Corona consistere non potest nec tenere hujusmodi autem jura sive Jurisdictiones ad personas sive tenementa transferri non poterunt nec per privata persona possideri nec usus nec executio Juris nisi hoc datum fuerit ei de super sicut Jurisdictio delegata non delegari poterit quin Ordinaria remaneat cum
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