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
the Plea of the Defendant in Chancery was good And that the Lord Chancellor ought not to Examine the matter in Equity after the Judgment at the Common Law For thô he would not Examine the Judgment yet he would by Decree take away the Effect of the Judgment And it is there said That the Precedents produced in the times of H. 8. and E. 6. were grounded upon the sole Opinion of the Lord Chancellor and passed Sub Silentio And that no Precedent nor Prescription could prevail against the Statutes of the Realm Thereupon this being certified to the Queen the Plea stood for a good Plea Note The Twelve Judges are the most proper Expounders of Statutes see the 2 Instit. fol. 611. in the answer to the 16th Objection made by the Bishops and Clergy where all the Judges do affirm That they never heard it excepted to before the time of King James I. that any Statute should be expounded by any other than by the Judges of the Law and fol. 618. in the answer of the Judges to the last Objection of the Bishops it is truly said by all the Judges of that time also That if the Twelve Judges Err in Judgment it cannot otherwise be reformed not by the Chancellor nor by the Bishops but Judicially by the Parliament the Superiour Court not by the Council Table neither They further resolv'd That the Interpretation of all Statutes that concern the Clergy being parcel of the Laws of the Realm do belong to the Judges of the Common Law yet this was a Contest about Jurisdiction P. 11. Jac. in the King's-Bench Crok Jac fol. 343. Courtney versus Glanvil The Plaintiff had a Decree against the Defendant Glanvil after Glanvil had obtain'd a Judgment at the Common Law by Confession and Glanvil was imprison'd by the Chancery for not obeying the Decree It is said by Cok. Ch. Just. That the Decree and Imprisonment was Unlawful being after Judgment and that the King's-Bench upon an Habeas Corpus ought to Relieve Glanvil The same Case is reported by Sergeant Rolles in his 1 st Rep. Mich. 12. Jac. fol. 111. and Coke said While I have this Coif on my Head I will not allow it Hill 11. Crok Jac. fol. 335. in the K. B. Heath and Ridley's Case It is said by the Court That by the Statutes of 27 E. 3. cap. 1. 4 H 4. cap. 23. After Judgment given in Curia Domini Regis be it in Plea Real not Royal or Personal it ought not to be avoided but by Errour or Attaint And in the same term it was delivered for a general Maxim in Law That if any Court of Equity doth intermeddle with any Matters properly Triable at the Common Law or which concern Freehold they are to be Prohibited Mich. 12. Jac. in the K. B. Roll. 1 Rep. fol. 71. Wright versus Fowler It was order'd by that Court That Cause should be shown why a Prohibition should not be granted to the Dutchy-Court for Proceeding upon a Bill in Equity after Judgment thereupon the Plaintiff in Equity relinquish'd his Bill Mich. â—…13 Jac. K. B. Rolles 1 Rep. fo 252. Coats and Suckerman against Sir Hen. Warner George Crook prayed a Prohibition to the Dutchy for Examining a matter after Judgment in the King's-Bench by Coke Crook Doderidge and Haughton It is said We are resolved that no Court of Equity may meddle after Judgment and a Prohibition was granted It is further said That a Prohibition may be granted by the King's-Bench to the Common Pleas or Exchequer and so of all the Courts of Westminster-Hall if they hold Plea against an Act of Parliament or against the Common Law Mich. 16. Car. 〈◊〉 in the K. B. Crok Car. 1. fol. 595. Calmadies Case A Prohibition was granted against the Court of Requests for proceeding in Equity after a Judgment given in the King's-Bench And the Court Resolv'd That so they would always do whenever any Exhibited Bills there after Verdict and Judgment And the Case of Austin versus Brereton is there cited which was 40 Eliz Austin obtained Judgment in the King's-Bench the Defendant Brereton Sued in the Court of Requests to be Relieved and the Plaintiff at Law was Committed by the Court of Requests and was Bail'd by the King's-Bench and Sir Tho. Gawdy one of the Judges was convened before the Queen for it yet it was held good and Brereton was enforced to satisfie the Judgment Mich. 7. Car. 2. 1655. in the Exchequer Sir Tho. Hardres Rep. fol. 23. Morel versus Douglas The Bill in Equity was to be Relieved against a Judgment by Nihil dicit upon a Bond for the Money was paid There was a Demurrer to the Bill upon the Stat. of 4 H. 4. and the Court allowed the Demurrer There the Case of Langham and Limbrey is cited where the same point was Ruled by the House of Lords by advice of all the Judges the Judgment was for no less than 18000 l. in an Action of Covenant Trin. 1658. In the Exchequer Sir Hardres's Rep. fol. 121. Harris versus Colliton The Defendant had Judgment at Law against the Plaintiff in Equity for Rent of an House The Plaintiff in Equity Harris Exhibited a Bill in Equity to be Reliev'd against that Judgment Suggesting that the House was Demolish'd in the War so that he could make no Profit The Defendant in Equity Colliton sets forth the Stat. of 4 H. 4. and Demur'd to the Bill Finch afterwards Lord Chancellor argued for the Defendant Colliton to maintain the Demurrer As to the Precedents he answers That a 1000 of them will not change the Law and many of them passed Sub silentio or upon the sole Opinion of the Chancellor who is willing to enlarge his own Jurisdiction this was plainly and stoutly said He further held That there were no regular Proceedings in Equity till of late times for Parliaments ought to have been once or twice a year to redress such Grievances Stephens who argued for the Plaintiff in Equity held That the Statute of 4 H. 4. did not extend to the Chancery because the Jurisdiction in Equity of the Chancery was not in being at the making of that Statute and therefore it could not be restrained by it Bigland for the Defendant That the Statute of 27 E. 3. cap. 1. of Praemunire did not extend to a Suit in Chancery because the Chancery was not a Court of Equity at the making of that Stat. and Lambert who was a Master of the Chancery in his time is cited to prove it And 't is there said That the Chancellor TOOK NtOT UPON HIM ex Officio to determine matters in Equiâ—…y till Edw. IVth's time Saunders afterwards Chief Justice of the King's-Bench of Council for the Plaintiff at Law grants it to be true that at the making of the Statute of 27 E. 3. there were no Proceedings in Equity in Chancery but that the words or in any other Court will extend to any Courts that then were
and one single Person to be Judge of the Fact upon proof by Witnesses without referring it to the Judgment of Twelve Men upon whose Verdict our Law and the very Genius of the Nation from of old lay so much stress and are so fond of it Yet let me observe further That by the Chanceries doing this there is another Great and Fundamental Maxim invaded nay several other Maxims as that general Rule That a Court of Equity cannot Relieve against a Maxim in Law Rolle's 1 Rep. 219. And again That a Court of Equity is not to determine of matter of Fact if it be denied but it ought to go to a Jury to Try it And the Author of Doctor and Student himself appears to be of the same mind not to allow of any Sub-Paena in such Case pag. 155. in the middle of that page he holds That where the Common Law in Cases concerning Inheritances putteth the Party from an Averment for eschewing of an Inconvenience that might follow thereupon among the People if the same Inconvenience should follow in the Chancery if the same matter should be pleaded there he says no Sub-Paena should lie in such Cases for as much and as great Vexations Delays Costs and Expences might accrue to the Party if he should be put to answer such Averments in the Chancery as if he were put to answer them at the Common Law and therefore says that Author it is that no Sub-Paena lyeth in such Cases nor in any other like unto them In the Cases of Conveyances made in Trust which is the great and busie work of the Courts of Equity to enforce the performance of those Trusts enough hath been already observ'd how that the Stat. of 27 H. 8. makes Uses and Trusts to be the same thing and the drift of that Statute was to Transfer the Possession to the Use and thereby what before the making of that Statute was relieveable only in Equity is by that Statute now relievable at the Common Law and thereby the Common Law in Effect restor'd which before was usurp'd upon by that mischievous Invention of Uses But how is the intent of that Law evaded by making a groundless distinction between Uses and Trusts to the mighty enriching of some Men Mighty profit arises to that Court by Redemption of Mortgages wherein Relief being given long after the time limited by the Parties great Inconveniencies happen to the Mortgagee by expecting the event of a tedious Suit and what his Estate or Interest will at last fall out to be whether real or only personal or of what value and how to dispose of it in the mean time as 't is probable he would if he knew it would be a real Estate as the Common Law does Judge it or whether only personal and then to be left to an Executor to perform his Will or make a Provision for a younger Child or how to dispose of it in case it prove the one or the other he is a long time held in Suspence till after some years the Court of Equity come to a Resolution about it Many good Proposals have been made by a Bill lately depending in Parliament and upon other occasions from others that have been well wishers to the Nation that might have cured these Mischiefs but mightily oppos'd For this is one of their Diana's by which not only a Livelihood but many a large Estate is gotten The like mischiefs do arise from long Leases utterly against the Ancient Common Law of England but being generally made in Trust and many times to attend upon the Inheritance draws all the Trade into Courts of Equity and they must be resolv'd to have the same qualities with Estates of Inheritance as to be limited by way of Remainder and the like and thereby a Confusion made of the distinct Species of Estates whereby new and difficult Points and Cases every day arise but by these means almost all the Estates in England will in length of time by degrees fall under the Decision of Courts of Equity So also by relieving against the Penalties and Forfeitures of Bonds and Securities for Money which might and would easily be provided against by the Agreement of the Parties in their first Sealing with one another but is wholly neglected by reason of this common Relief given in Courts of Equity in such Cases tho to the great Vexation and mighty Expence of the Parties at last who repent of this Course when it is too late But that which is of greater Importance than all that hath been hitherto observed and is of a more Transcendent Nature in the Exercise of the Jurisdiction of Equity in the Chancery is that they relieve in Cases after Judgment obtained at the Common Law and render the Judgment of no Effect so that all the time and charges spent in gaining that Judgment are lost They of the Chancery supposing that the Statute of 4 to Henry IV. Cap. 23. doth not extend to the Court of Chancery tho' it Ordain and Establish in express words viz. That after Judgment given in the Courts of the King the Parties and their Heirs shall be thereof in Peace untill the Judgment be undone by Attaint or Errour Which liberty being taken of a Jurisdiction in Equity after Judgment at Law tends as the Preamble of that Statute does recite to the great impoverishing of the Parties aforesaid subversion of the Common Law of the Land And the Preamble tells us what the mischief was that occasioned the making of that Statute viz. That such Judgments were again Examined and the Parties made to come upon grievous Pain that is by Process of Sub-Paena to answer thereof of new sometimes before the King himself sometimes before the King's Council and sometimes to the Parliament It does not indeed by plain and express words mention the Chancery which yet as is held by the Chancery-men is Coram Rege But does the Statute restrain the King himself and the Council and the Supream Court the Parliament from the Liberty of examining into Equity after Judgment given and can we Believe it might be indulged to any other Court whatsoever whether to a Court then in being if the Chancery were so or to any other Court of Equity that should in after-times be Erected Would not all the mischief recited in the Preamble of that Statute and intended to be remedied by it return again upon us Did the Makers of that Law mean to forbid it to these High Resorts and Powers the King the Privy Council and the Parliament out of favour to the Chancery or to any Court of Equity that after the making of that Statute should assume to it self a Jurisdiction in Equity that the Chancery or such other Court might Engross to it self this mighty and exceeding busie Employment of Relieving in Equity after Judgment and so over-top the Courts of the Common Law Will not the Common Law be still Subverted thereby which that Statute meant to redress And how will
Sages of the Law but the Judges to whom by Law belongs the Construction of the Acts of Parliament and the pronouncing of our Laws See the 2 Instit. fol. 611. The Judges in their Answ. to the 16th Objection 614 618. the Judges only are to expound Acts tho they concern Ecclesiastical Jurisdiction Here is no need of a distinct Court of Equity Such a Case of Equity was that of Reniger and Fogassa the first Case in Plowd Comment tho determin'd by a Privy Seal it being in the King 's own Case concerning the Customs There is another Equity says that Case of Eyston and Studde in the Comment which differs much from the former and may be thus defin'd Equitas est verborum legis directio efficiens cum una res solummodo legis cavetur verbis ut omnis alia in aequali genere eisdem caveatur verbis As for instance the Stat. of 9 E. 3. Cap. 3. which gives an Action of Debt against Executors shall be extended by Equity to Administrators tho not within the words But this also is done by the Judges of the Common Law Here is no mention of a Chancery-Equity and it had been according to the right Rules of Logick no good Division if it had not taken in all the parts called the Membra Dividentia which ought to be Toti adaequata Keckerm Systema Logicae pag. 245. regula quarta Doctor and Student pag. 27 28. Equity is to be exercised in the mild and merciful Construction of a Law and in some Cases departing from the strict and rigorous words of a positive Law rather than oppress any Man by it which is not by appealing from that Law or from the Court where that Law is administred but resorting from the Letter to the true intent and meaning of the Law and the true mind of the Makers of the Law Ubi aliud suadet necessitas cessat humanae constitutionis vigor cessat voluntas Nomothetae But this is the Duty of the Judges of the Common Law and to be done in the same Court and in the same Suit and Action and not in another Court and by a new Suit under pretence of Equity for that were to censure the Law and the Judges of the Common-Law Courts and to charge the Law-makers either with Ignorance or over-much Severity which is not to be suffered And this says St. Germin the Author of that Treatise is secretly intended and understood in every general Rule of every positive Law according to what is before remembred in this Discourse out of the Case of Eyston and Studde in Plowd Comment and what is said by the Author of Doctor and Student pag. 27. Laws says he covet to be ruled by Equity which is not meant meerly to be done in another Court Proceeding by Equity but by an equitable Construction of the Law in the Court of the Common Law as appears pag. 28. b. the latter end of that Chap. And those Equitable Constructions are there called Reasonable Exceptions of the Law and hold as well in Cases at Common Law as upon Statutes as appears by the Case there put at Common Law pag. 29. Cap. 17. and on the b. side of that page in medio it is said the Parties shall be relieved in the same Court and by the Common Law Plowd 88. b. 205. b. Thus in the Exposition of a Statute Judges depart from the words of the Law rather than run into an absurdity or inconvenience by a too literal Exposition as in the Case upon the Stat. of Marlbr concerning Distresses The Judges Hill 30. E. 3. gave Judgment against the express words of that Stat. tho the words were in the Negative too as is observed in the argument of Reniger and Fogassa's Case In Plowd Comment fol. 9. b. and it is a Rule in the exposition of Statutes many times to depart from the words to meet with the mind of the Law-makers whose intent as it must be presum'd is to do no Man wrong See in the same Case in Plowd fo 10. and in the same Book fol. 57. b. 199. b. 203. Laws expounded not only different from the words but contrary to them rather than do any Man wrong Such sence is to be made of the words of an Act of Parliament as may best stand with reason and equity and which most avoids rigour and mischief Plowd 364. a. in the Case of Stowell against the Lord Zouch It is spoken there by one or more of the Judges Some Cases by necessity in Construction are to be excepted out of a Stat. 2 Instit. 25. Many Cases may be within the Letter yet not within the meaning of an Act 2 Instit. 107. in Principio 110 111. and general words of a Stat. may be restrained by Construction 2 Instit. 502. and the Exposition of Statutes belongs to the Judges of the Common Law 2 Instit. 618. Hill 13 Jac. 1. in the King's-Bench Vaudry and Pannell's Case Rolles's Rep. first part 331. It is there said that if a Court of Equity made a false Sentence it may be revers'd by the King that is by his Commission for Mic. 42 43 Eliz. in a Suit in Chancery by the Countess of Southampton against the Lord of Worcester and others for the Mannor of Henningham It was resolv'd by all the Justices under their hands which is now in the Chancery That when a Decree is made in the Chancery upon a Petition to the Queen she may refer it to the Justices but not to any others to examine and to reverse it if there be Cause and the Lord Chancellor agreed to this Resolve and upon such a Petition and Reference the Decree made in that Case in Chancery was revers'd by the Justices This was in time before any Contest between the Two Jurisdictions viz. in Queen Elizabeths time and before the Judges were look'd upon as not indifferent It appears 3 H. 5. Nu. 46. That the Commons in a Petition complain That many were grieved by Writs which were called Writs of Sub-Paena which they say were not used till the time of the last King Richard That John de Waltham Bishop of Salisb. of his Subtilty invented and began such Novelty against the Common Law and that they proceeded upon those Writs according to the Civil Law in Subversion of the Common Law and they pray That an Action of Debt of Forty pounds may lye against such See the Record at large Roll. Abr. first part 371. too briefly Abridged by Sir Robert Cotton This is of the Nature of a Presentment by the Commons of England the Grand Jury of the Nation and it doth invincibly prove and testifie the time when this Jurisdiction was first set up in Chancery for the Writ of Sub-Paena is the first Process of that Court in Cases of Equity and 't is call'd a Novelty and Names the first Inventer John de Waltham who was Keeper of the Rolls in the time of King
hath already been said as from Sir Edw. Coke Ch. Jus. who was a faithful Friend to our Nation and Laws Mr. Lambert who was a Master of the Chancery Mr. Dugdale in his Origines Juridiciales from the Ch. Jus. Popham in Chudleigh's Ca. in the first Rep. of Sir Edw. Coke fol. 139. b. and from the rest of the Judges and Arguers of that Case whose Judgment as to this point viz. both of the Original of this Jurisdiction of the Chancery and the mischievous effects of those Conveyances to Uses and upon Trust and Confidence for they are all one and so mentioned in the Act of the 27 H. VIII whose design was to extirpate both will more fully appear 1 Rep. 121. b. There were says that Case Two Inventers of Uses Fear and Fraud Fear in times of Troubles and Civil Wars to save Inheritances from being forfeited which in Truth and in plain words was the same thing with fraud to evade the Law that inflicted those Forfeitures and Fraud to defeat due Debts and lawful Actions and Duties Before the time of Richard II. says the Ch. I. Popham in that Case no Act of Parliament or other Record nor any Book nor Writing made any mention of Uses of Land Hear the Opinion of the King Lords and Commons the whole Nation concerning Uses in the Preamble of the Statute of 1 Rich. III. Cap. 1. The makers of that Statute set forth the mischiefs arising from such Conveyances to Uses and Trusts viz. great Unsurety Trouble Costs and grievous Vexations to the Buyers of Land or to such as took Leases In the Preamble of the Stat. of 27 H. VIII Cap. 10. viz. That by divers subtle Inventions and Practises by Fraudulent Feofments Fines Recoveries and other Assurances craftily made to secret Uses Intents and Purposes c. Manifold Mischiefs did ensue Out of which Statute both from the Preamble and Body of it may be observ'd 10. That Uses and Trusts are the same things Styles Rep. fol. 21. 40. 20. That the intent of the Law-makers was to extirpate both as being but the same But we know where Trusts are supported as if they were distinct things from Uses and a plentiful Harvest hath arisen from them tho it hath been resolv'd that an Use cannot arise out of an Use but this is evaded by giving it the Name of a Trust and making them distinct things So that we may learn from what hath been said when and whence these pernicious things called Uses and Trusts had their Original and who was the first Inventer of the Writs called Writs of Sub-Paena all about the time of that Exorbitant and Tumultuous Reign of King Richard II. and that such Conveyances ought at first to have been adjudg'd void being fraudulent as other fraudulent Conveyances have been by the several Statutes of 52 H. 3. Cap. 6. 50 E. 3. Cap. 6. 2 R. 2. c. 3. 3 H. 7. C. 4. 19 H. 7. Cap. 15. Trin. 7 H. 6. fol. 43. If a Man make a Feofment in fee Proviso tamen that the Feoffor shall always have the Profits of the Land that Proviso is void and contrarious by Hankford a Judge of the Common Pleas in the time of King Richard II. Now What an absurdity and contradiction is it in Reason and a mockery and abuse of the Common Law That a Man shall use the just and necessary Liberty the Law allows him to convey away his Land but it shall be so agreed that he to whom it is conveyed shall not be one jot the better for it but it shall still remain his in point of Profit that convey'd it away And so it is all but a Delusion and Deceit and the honest intention of the Law is baffled by it But a world of work is made by this for a new Court The Judges who are the Conservators of the Common Law and of the rights of the People early decryed these Inventions of Uses and so have several Acts of Parliament But the Potency of some great Church-men and others did still own and support them for they bring great Profit with them to the Jurisdiction Under this pretence and upon these occasions began the Invention of Uses and Trusts which have wonderfully perplex'd and turmoil'd almost all the Estates in England so that Men's Estates and Titles are not now so much guided and governed by the old and most wise and certain Rules of the ancient Common Law as by new invented Rules in a new Court to the subverting of the Common Law and Ruine of many Families How much work have they cut out for our Parliaments by making many Acts of Parliament to redress the Abuses but the Mischiefs are insuperable and the many good Remedies provided by several Parliaments have been rendred fruitless and I cannot for my life tell how it hath so come to pass unless by the excessive Power and mighty Favour that hath been indulged to the Persons in that High Office such as Cardinal Wolsey and others of the Hierarchy who were formerly in that great Office and were wont to have a mighty stroak in the Government By reason of these Conveyances to secret Uses and Trusts the Lord was Defrauded of his Ward heriot and Escheat To remedy this was the Stat. of 52 H. 3. Cap. 6. called the Stat. of Marlebridge made which made such Conveyances void as against the Lord and several other Statutes to the same purpose The Creditor who supposed the same Feoffor he still being in Possession and taking the Profits to be still the Owner in Law he lost his debt till the Stat. of 50. E. 3. c. 6. made the Lands however liable to satisfie the Debts and many Statutes more were made in the like Case A Man that had cause to Sue for his Land knew not against whom to take his Remedy and to bring his Action For one Man had the naked Name or Title like the titular Bishops of the Church of Rome and another had the Use and Profit till the Stat. of 1 R. 2. c. 9. made an Assize maintainable against the Pernor or him that took the Profits The Wife was Defrauded of her Thirds The Husband of his Tenancy by the Courtesie The poor Farmer of his Lease The Crown of the Forfeiture for Treason whereby Men were more imboldened to commit Treason The Stat. of 1 R. 3. c. 1. Tho it meant well yet gave too much countenance to these mischievous Uses by making good the Estates granted by the cestuyque Use Whereas it should rather have set a brand upon those Conveyances to Uses and have declar'd them all void as being generally meer Frauds and Cheats for so the Judges were in those times wont still to pronounce them And that Stat. of 1 R. 3. deals plainly in the matter by setting forth in the Preamble the great Unsurety Trouble Costs and grievous Vexations that daily grew from them but at last that Statute deals too gently by them And several other like
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. 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
what might be the Discretion and Judgment of One great Person and thereby have fenced against it I must not only be defeated of my Right disappointed of a Provision for my Family for which I had long been labouring but beyond all expectation after a tedious and chargeable waiting for the Event and Issue of a Chancery-Suit I shall be doom'd to pay Two or Three hundred pounds by the Name of Costs because I could not Prognosticate what would be the Opinion or Judgment of One single Person upon my Case who is not so tied to Rules as the Judges are This wonderfully enriches the Men of the Chancery Leges humanae says that good Chancellor Fortescue in his commendation of the Laws of England pag. 11. on the b. side of the Page non aliud sunt quam Regulae quibus perfectè justitia Edocetur as they are Leges à ligando so they are Regulae à dirigendo Regulando And id pag. 25. b. 31. b. says the Chancellor still Non potest Rex Angliae ad Libitum suum Leges mutare regni sui This Excellent Chancellor Fortescue lived in the time of King Hen. VI. and was Ch. Justice of the King's-Bench Anno 20 H. 6. as appears by Dugdale's Origines Juridiciales pag. 58 62. yet has not a word to say in Commendation of this Equitable Jurisdiction thô it then began to spring up and he himself were Chancellor as he stiles himself but rather seems utterly to condemn it by so highly commending the Trials of matters of Fact by Twelve Men and preferring it infinitely before that of the Civil Law which the Chancery follows by the Testimony of Witnesses only and by as much extolling the certainty of our Common Law administred by the Judges of it Could he possibly have forgotten to mention that Jurisdiction he himself being Chancellor had he approv'd of it It is excellent advice in the Preface to Sir Coke's 7 Rep. fol. 2. b. Quoad fieri possit quam plurima Legibus ipsis definiantur quam paucissima verò Judicis Arbitrio relinquantur Now let us take Notice of the ill Effects that have arisen from the Exercise of this Equitable Jurisdiction which in general words were taken notice of by a Bill that lately passed One or both Houses of Parliament take these Instances First The Common Law of England which is the birth-right of every English Man and which is so agreeable to the Genius of this Nation and a Law of their chusing is by this new Jurisdiction Subverted and the Civil Law which hath been so vigorously oppos'd by the Lords and Commons from the beginning and in all Ages is introduc'd which brings our Rights and Estates to be determined ad aliud Examen to a Decision by Depositions of Witnesses only and in such a manner examin'd as is observ'd by that incomparable Treatise of the Chancellor Sir John Fortescue De Laudibus Legum Angliae in a private Room before an Officer call'd An Examiner not before the Judge of the Court and many times upon leading Interrogatories Whereas the Truth is best discovered when Witnesses are produced in the face of the Court and Examined by the Judge of the Court in the presence of the Parties to the Suit and their Council and Witnesses brought to confront one another There is many times much in the Countenance and Carriage of a Witness to help to the manifestation of the Truth or Falshood of his Evidence and by Questions suddenly asked him Tacitus in his Annals in his Second Book Chap. 8. tells us that the ancient custom of Rome was That even the Vestal Virgins that in all other Cases were recluse and vailed yet upon occasion for their Testimony they were examined as Witnesses in the common place of Pleadings and Judgment Secondly The Judgment and Determination of Causes in Chancery depend upon the sole Opinion and Conscience of one single Person whose Power therein as some of our Books and Modern Authors presume to affirm is Absolute and Arbitrary Sir John Davys in his Preface to his Reports fol. 11. b. says The Chancellor hath Potestatem absolutam in binding and loosing the Proceedings of the Law and in deciding of Causes by the Rules of his own Conscience and that the King trusts him with his own Conscience Tr. 9. E. 4. fol. 14. Pasc. 22. E. 4. Fitzh Sub-Paena placit 16. by Hussey The Chancellor's Judgment is not guided always by certain and known Rules so that no foresight can sence and provide against it We are not fore-warn'd and therefore cannot be fore-arm'd and all this by a Jurisdiction at the first assum'd but not legally granted The first Chancellor in this Exercise of this Power not at all asking that material Question Quis me constituit Judicem as our Blessed Saviour himself did in the like Case And how expensive and dilatory in Proceedings we have been already told by the several Books and Authorities cited and it shall be yet further observ'd We may read in the Lord Coke in his Magna Charta 29th Chap. in his Exposition fol. 51. of the words per Legem Terrae What mischiefs and horrible vexations did arise when this ancient and fundamental Law this Lex Terrae was laid aside in divers Cases by the Act of 11 H. 7. Cap. 3. and a Liberty given to proceed without any finding and presentment by the Verdict of Twelve Men upon a bare information for the King altho' the Justices of Assize and Justices of the Peace were entrusted in it to proceed according to their Discretions upon bare proof by Witnesses whereby the Judges and Justices who might best be trusted with such a dangerous Power if it might be allow'd to any were not only Judges of the Law as the Judges of the Common Law Courts at Westminster-Hall are but also in the place of a Jury to judge and determine of Fact too as the Equity side of the Chancery too often doth and yet this Liberty was given by an Act of Parliament which cannot be said of the Jurisdiction we are treating of yet the Nation could not bear it but was restless till that intolerable Act of 11 H. 7. Cap. 3. was Repeal'd by the Act of 1 H. 8. C. 6. and the Tryals by Juries thereby restor'd again The Lord Coke in the same Chap. fol. 54. further declares That if any Man by colour of any Authority where he hath not any in that particular Case Arrest or Imprison any Man or cause him to be Arrested or Imprisoned this is against this Act of Magna Charta and it is most hateful says he when it is done by Countenance of Justice and I take it to be worse if done by a Countenance of Equity and by colour of a new invented Writ first devis'd By John de Waltham Mr. Lambard in his fore-cited Archaion fol. 84. speaks thus If the Chancery have no certain Rules and Limits of Equity if it be not known before-hand in what Cases
E. C. 4 Instit. 245. Chap. 49. upon the same Subject Rushworth in the Second part of his Historical Collections pag. 1336. mentions how that Mr. Hide afterwards Lord Chancellor then a Member of the House of Commons in the Parliament 1640. by Command from the House of Commons presented to the House of Lords a Complaint against this Court of the President of the North and tells the Lords that that Court by the Spirit and Ambition of the Ministers trusted there or by the natural Inclination of Courts to enlarge their own Power and Jurisdiction had so prodigiously broken down the Banks of the first Channel in which it ran as it had almost overwhelmed the Country under the Sea of Arbitrary Power and involved the People in a Labyrinth of Distemper Oppression and Poverty Another Member of the House of Commons complaining to the Lords of the Star-Chamber first he sets forth the Original of it by Act of Parliament by the Stat. of H. 7. which he calls the Infancy of that Court But he says further that Court by Cardinal Wolsey 8 H. 8. was raised to Man's Estate and from whence says he being now altogether unlimited it is grown a Monster and will hourly produce worse effects unless it be reduced by that hand which laid the Foundation which is by Parliament Let Loose but Power and you shall quickly see How wild a thing unbounded Man will be It deserves to be considered how it fares with the Profession of the Common Law of late years since the Chancery hath been so exalted Readings at the Four Inns of Court twice every year upon some publick useful Statutes which were very ancient and of great esteem and authority in our Courts of Justice are now wholly discontinu'd There being no consideration had who have been Readers in the call to the Degree of a Sergeant at the Law nor in the choice of Judges to the utter overthrow of that Exercise the Lord Chancellor having a great stroak in recommending Persons to that Degree and Employment and this hath happen'd but of late since the Court of Equity hath swell'd to that Height and Greatness Nor have the Nobility and Gentry so much applied themselves to the Study of the Common Law nor the Students to the performance of Exercises whereby they should prepare themselves for the practise of it when they observe the Profit and Preferment to run in another Channel and forsake the Old Hence it comes to pass that an inferiour sort of Men oftentimes procure themselves to be admitted of the Inns of Court and called to the Bar and suddenly leap into mighty Practise and extraordinary Gain in the Court of Chancery having taken no great pains in Study but arriv'd only at some experience in the Course of that Court which is soon attain'd to It may be worth the while to look into some of those Cases wherein these Courts of Equity do most frequently exercise their Jurisdiction and then consider whether there be any great necessity of resorting to those Courts for Relief in such Cases or whether they might not be reliev'd more easily with less expence and more speed and as clearly by the help of the Courts of the Common Law without going a tedious and chargeable Course at Common Law first as it sometimes falls out which after all must serve for nothing but be all set aside and a new but more tedious and more chargeable and uncertain Course of Equity be undergone at last which seems to Strangers not so much accustom'd to the like to be very absurd and impolitick in the Constitution of our Laws and Courts It is according to the Latine Adage Penelopes telam texere retexere Put the Case that a Man pays a Debt upon a single Obligation without taking an Acquittance and afterwards he is Sued by the Obligee upon that Obligation which is clearly against Conscience he cannot at Common Law plead payment without producing an Acquittance which he hath not to produce and is therefore Remediless at the Common Law for it is a Maxim that every charge must be discharged by that which is of as high a nature as that which charges A Record must be discharged by a Record and a specialty by a specialty and not by a bare Averment of the Party that is charged with it And the true reason upon which that Maxim is grounded is given by St. Germin in his Book Entituled A Dialogue between a Doctor of Divinity and a Student of the Common Law written in the Reign of King Henry VIII pag. 22. b. 23. where he puts the same Case That Maxim says St. Germin is grounded upon great reason and to avoid a great inconvenience that else might happen to come to many People that is to say That every Man by a bare Averment shall avoid a Bond and this is the true reason of the Law and tho says St. Germin it may follow thereupon that in some peculiar Case a Man by occasion of that general Maxim may be compelled to pay the Money again yet the Law took heed to that which may often fall out and do hurt among the People rather than do hurt to particular Cases And the Law setteth a general Rule which is good and necessary to all and which every Man may well keep without it be thro' his own default But after all Tho' the Obligor in such Case be Remediless at the Common Law yet says the Author St. Germin pag. 23. he may be holpen in Equity by a Sub-Paena And so says Sir Geo. Cary in his Reports of Causes in Chancery pag. 2. 1st Case and there are Precedents of it in Chancery says the Arch-Bishop of York who was Chancellor And the like is said by Moreton Arch-Bishop of Canterbury then Chancellor and afterwards Cardinal another Clergy-man Pasc. 7. H. 7. fo 12. I suppose these Authors rather speak the Usage and Practise of the Chancery in such Cases than what was their own Opinion and Judgment For if this Relief in Chancery in such Case may be allowed what becomes of that great reason upon which that Maxim was grounded as the Author himself observed before and how is that great Inconvenience avoided by this Maxime which the Author mentioned in the same breath If the Chancery may receive the same Averment and upon proof by Witnesses without trying the Fact by a Jury that Court may relieve the Party Does not the Inconvenience return again and are not the People as much hurt by it Or is it a Mischief and Inconvenience in the Common Law Courts and none in a Court of Equity It were better the Law were changed and that such Averment of the payment might be pleaded to the Action at the Common Law where if Issue be joined upon it it must not only be prov'd by Witnesses but found also by Twelve Men to be true rather than the Chancery shall receive that Averment and allow it to be prov'd by Witnesses only
serve but as a mean to bring the Case to a Judgment but it refers the matter also to the Clerks now called the Masters of the Chancery to frame Writs for such new Cases And those Clerks now Masters were as Fleta describes them Men of profound Science What! in the Civil Law no but in the Laws and Customs of England Qui in Legibus Consuetudinibus Anglicanis notitiam habeant pleniorem And these Masters have Caution given them by that Statute that if any Doubt or Difficulty did arise about framing those Writs Atterminent querentes ad proximum Parliamentum Scribantur Casus in quibus concordare non possunt Et de consensu Juris peritorum fiat breve Why was it not referred in such Case to the Lord Chancellor at least where the Masters could not settle and agree the Form it being a Form No not to any one Man and it was a Work proper for a Parliament and in those days Parliaments met often for these very purposes and it was settled by an Act of Parliament in King Alfred's time and it is a Law still in force That for ever twice a year or oftner if need were in time of Peace a Parliament should be holden at London and as Bracton a Judge tells us this was so ordain'd to determine of Cases that were new and had no Remedy at Law or a doubtful Remedy but good Equity where was the Chancery-Equity then Si aliqua Nova inconsueta Emerserent quoe nunquà m prius evenerunt Ponantur in respectu usque ad Magnam Curiam ut ibi per Concilium Curioe terminentur And there are infinite Precedents says the Learned Coke in the Rolls of Parliament of such references to the Parliament and to that end were Parliaments so often to be held and it took up most of their time See Ryley's Placita Parliamentaria in the Appendix fol. 525. And the infrequency of Parliaments hath given occasion to other Courts to Transact in those matters that are indeed proper for the Parliament The Exorbitances of great and high Officers have been many times a means to hinder and prevent the frequent Meetings of Parliament as in the Case before mentioned of Cardinal Wolsey least their Exorbitancies should be questioned All these Mischiefs might be Remedied either by some good Act of Parliament to be Pass'd as has been often endeavour'd or by Referring the Determination and Judging of Bills of Review of their Decrees into good and indifferent hands or by the Supreme Court 's declaring that the Courts of the Common Law in Westminster-hall ought ex Debito Justitiae to grant Prohibitions to any Court whatsoever that either Usurp a Jurisdiction where they have none of Right or exceed their Jurisdiction where they have one This Legal Remedy having been long disused and laid asleep wants a Revival In order to obtain these peaceable and most necessary Helps this small Treatise is Humbly recommended to the grave Consideration of the HOUSE OF PEERS FINIS ERRATA Page â—…1 line 31. politically r. politiquely P. 32. l. 6. r. his Exercise P. 40. l. 43. it heir r. their The Names of Chancellor and Chancery The first Chancellor in England The Nature of the Chancery and Office of Chancellor So Minshew upon the word Cambden's Britannia p. 143. A Ministerial not Judicial Office at first The Chancery an Office When the Chancery from an Office set up for a Court. a 5. E. 3. c. 14. The Chancery as toits Equity no Court of Record The King with the Peers administred Justice not the K. alone The Administration of Justice not entrusted in oâ—… single hand by the Common Law Judges joined with the Chancellor * See Sir Coke's 2 Instit. iâ—… the Chas of Arti culi Cle ri fol. 601 602. No Reports of Causes in Equity in the Chancery before the time of K. H IV. The Time The Occasion Uses of Land No Act of Parliament gives the Chancellor the power of Equity Sir Richard le Scrope or John de Windâ—… for 's Case The first Decree in Chancery was reversed and the matter left by the House of Lords to the Common Law The Church-men were the first Setters up of a Jurisdiction in Chancery in matters of Equity The Judges were at first wont to be consulted with by the Chancello * Sâ—…e Fi 〈…〉 Abr. 〈◊〉 Sub-Paena and Brook's Abr. tit Conscience and Pasc. 22. E. 4. 6. Pla. 18. The Common Law the only Law in England anciently aa Dr. and Student pag. 15. by Jury and not otherwise The Books of the civil Law introduced into England by the Clergy are commanded to be 〈◊〉 The Nobility were anciently the Students of the Common Law The H. of Commons constant opposers of the Equitable Jurisdiction of the Chancery And of the Process by Sub-Paena There can be no Jurisdiction in Equity but either by Prescription or Act of Parliament not by any Charter or Commission from the King What Equity meant anciently What is meant by Equity in the true sence of it * By the Stat. of Articuli super chartas cap. 5. in anno 28. E. 1 The Judges are called the Sages of the Law The Judges of the Common Law are to review and reverse Decrees in Chancery John de Waltham Bishop of Salish the Inventer of the Writ of Sub-Paena in the wicked time of King Richard II. The Writ of Sub-Paena called a Novelty by a Petition of the House of Commons in the Reign of King Henry V. That a Prohibition lies to stop a Suit in chancery See Mich. 13. E. 3. Fuzh. A bridgment Tit. Prohibition plac 11. The Mischiefs from the Invention of Feofments to Uses and in Trust. Lamb. Archeion pag. 75. Dr. and Student 98. Sir Henry Spelman Gloss. 107. Fitzh Ab. Tit. Sub-Paena thro' that whole title still about Uses 2 H. 4. Cot. â—…br Nu. 69. * Uses and Trusts the same things Sed Mala perlong as invaluérâ—… morat Regula Juris 9 E. 4. fol. 14. There the Chancellor affirms that he has an Pbsolute Aower * See the Preface to Cok. 5th Rep. fol. 4. Hill 8 H. 4. fo 19. by Gascoign * 2 Just it fol. 611. See the Opinion of all the 12 Judges in their Answ. to the 16th Object How much the Trial of a Fact by 12 Men Sworn vivâ voce as to be preferr'd before the Conscience of One particular Man guided by Paper-Proofs * Hill 8. H. 4. fol. 19. by Gascoin that the Common Law is the Peoples Inheritance Sir Hen. Sp. Gloss. 108. Pag. 445. Aphor. 37. * See in Tacitus's Annaeis Lib. 11. cap. 2. What excessive Fees were taken by Advocates for Pleading Causes whereas by the Law Cincia it was provided of old that for Pleading of Causes no Man should take either Money or Gifts at length their Fees were moderated by a Decree of the Prince and Senate Cowley in his Davideis pag. 128. 22 E. 4. See that year Book fol. 6. and that it shall be tried by Witnesses and the Judges are utterly against the Sub-Paena and the then Chancellor agreed to it See Sir Coke's 13 Rep. fol. 44. in the upper part concerning the infinite Exceptions to Witnesses in the Civil Law Courts * 44 E. 3. fol. 25. Bro. Tit. Feofments to Uses plac 9. plac 20. Feeffees to Uses are called Feoffees in Trust. * Fol. 41. 67 57 fully ☜ * Fitz. Abr. tit Trial. plac 6. By the word Royal is meant Real See that Case in the Year-Book and Sir Rob. Cott. Abr. 424. Nu. 110. ☜ See also the Book entituled The Modern Reports fol. 61. in the case of King against Standish ☜ * Cok. 12 Rep. fol. 38. at the lower end Statutes that Prohibit Proceedings in Ecclesiastical Courts extend to Courts afterwards Erected See Sir E. C. 12 Rep. before cited fo 65. at the upper end the Opinion of K. James I. See 2 Inst. fo 601. the 1st Objection 2 Instit. fol. 408. Ryley ibidem fol. 411 386 374 373 371 361 362.
or at any time should be where there might be the same mischiefs viz. by Impeaching Judgments given in the King's Courts which are so often declared to be in Subversion of the Law He affirms That the Proceedings by English Bill in Chancery are not Coram Domino Rege in Cancellaria as the Latine Proceedings are but by a Bill or Petition directed to the Lord Chancellor and not to the King This Case was adjourn'd and we heard of no further Proceeding I was then of Council for the Plaintiff at Law to maintain the Stat. of 4 H. 4. and the Demurrer Crompton's Jurisdiction of Courts in the chapter of the Chancery fol. 67. he allows of the Statute of 4 H. 4. and agrees it extends to the Chancery and mentions what is written by Doctor and Student upon that point So that here are all sorts of Resolutions in this very point and from all sorts of Authorities in Law and in several Reigns Ancient and Modern by the whole Parliament declared by several Statutes by the House of Lords by all the Twelve Judges at several times by all the Courts of Law in Westminster-hall and in particular by the Court of Exchequer most of whose business is to Relieve in Equity grounded upon a Power and Jurisdiction vested in them by Act of Parliament if not by Prescription the two onely ways whereby a Jurisdiction in Equity can be given as has been often resolved and was before observed And all these are Unanimous not one Judge dissenting or doubting not any one Resolution Book or Authority in the Law to the contrary And yet as I am informed the Court of Chancery constantly and without any hesitancy or scruple made of it proceeds to Relieve in Equity after Judgment at Law The Plea and Argument for it on the Chancery side which we may find in a late Author the Title of whose Book is Reports of Cases in the Court of Chancery Printed 1693. to which is added Arguments to prove the Antiquity Dignity Power and Jurisdiction of that Court And much to that purpose is recited in Sir Edw. Coke 3 Instit. fol. 125. in the beginning of that folio It is a Privy Seal 14 Jac. Anno 1616. whereby that King assuming to himself a Power to Arbitrate between the Courts of the Common Law and the Chancery in questions concerning their Jurisdiction and more especially in the great Dispute between the Judges and the Chancellor Whether the Chancery could Relieve in Equity after a Judgment obtained at Common Law which Dispute did arise upon the construction of the Stat of 4 H. 4. cap. 23. whichdid by Law belong to the Judges to determine and resolve as hath been proved and they had determined it King James taking it to belong to his Kingly Office to Arbitrate in such Cases Decides as they would believe the Controversie by adjudging it with the Chancery which he signifies under his Privy Seal and thereby does Will and Command the Chancellor shall from thence-forward proceed to give such Relief in Equity And this was done against the Unanimous Resolution of all the Judges of England and without calling the Judges to Debate it and without any Hearing of them looking upon them as Parties concerned and practical which is a Scurvey Reflection and Scandal upon the Justice of the Nation See the 2d Instit. of Sir Edw. Cok. fol. 617. The Answer of the Twelve Judges to the Twenty fourth Objection to this purpose so that the King upon hearing his own Council Learned in the Law only took upon him to Over-rule all the Twelve Judges in a point of Law and to Interpret and Expound an Act of Parliament which properly belongs to the Judges next under the Supream Court And no wonder is it if King James I. took this Arbitrage upon him as belonging to his Kingly Office and resolved it under his Privy Seal when his constant Opinion was that he was above the Law and that it was Treason to affirm the contrary which yet all the Twelve Judges stoutly did and cited Bracton for it Rex sub Deo Lege See a Collection of King James's Works in a large Folio Printed 1616. pag. 203. where he affirms that the King is above the Law and that he may Interpret it And pag. 534. That it is his Office to make every Court to contain it self within his own Limits See the Act for regulating of the Privy Council c. 16 Car. 1. cap. 10. before-mentioned in the 5th Paragraph it is Declared and Enacted That neither his Majesty nor his Council have or ought to have any Jurisdiction Power Authority by Petition Articles or any other way to draw into question determine or dispose of the Lands or Goods of any of the Subjects of this Kingdom but the same ought to be Tried and Determined in the ordinary Courts of Justice and by the ordinary Course of Law See the several ancient Statutes that require and command the Judges to proceed to administer Justice without Regard had to the Great or Privy Seal that command the contrary Magna Charta cap. 29. 2 E. 3. c. 8. 14 E. 3. c. 14. 20 E. 3. c. 11. Some will argue for the Jurisdiction of the Chancery in Equity from the Statute of Westminster the 2d 13 E. 1. cap. 24. which directs That Nemo recedat à Curia Regis sine Remedio from hence they Collect that where there is matter of Equity wherein the Common Law cannot Relieve there the Chancery by this Statute is enabled to provide Remedy Whereas the Design and Scope of that Statute extends no further than to the framing of Writs in order to Relief by Actions at the Common Law where the Register of Writs that ancient Book of Law had for some new and special Cases provided no Writ which is the first step in every Action and is proper work for the Chancery which is therefore styled Officina Brevium It is very far from giving that Court any Jurisdiction in Equity but it shews what Remedy is to be given towards a Proceeding at the Common Law and not to Relieve against it But it may be noted from this ancient Statute that neither the Chancellor nor the Chancery could alter an Original or so much as frame a new Writ were there never so great Necessity for it till enabled by this Statute It could be done only by the Parliament and in such Cases the Parties were forced to wait till the meeting of a Parliament tho they had manifest Right and clear Equity on their side but no Remedy at Law If it were then a Court of Equity why did not the Chancery Relieve in Equity because the Party was without Remedy at Law Note in the next place That the Parliament by that Statute doth not entrust the Chancellor alone nor any one Person with the framing of new Writs fitted to such new Cases tho they were Cases that had a manifest Right but not a Legal Remedy and yet Writs