Francis Bacon's Resuscitatio before cited That Turketul before mentioned for a Chancellor was Abbot of Croyland as the succeeding Chancellors till the time of King Henry the 8th were generally Clergymen and their principal Employment was in serving at the Altar in Spiritual Things And in a Subscription by Rembaldus Chancellor to William the First as a witness to Royal Charters among others he did not subscribe in the first place but after divers Bishops Abbots and others which shews something of his Degree and Character at that time And Mauritius Chancellor to William the Conqueror subscribed as a witness to that King's Charter after the Bishops and before the Abbots Rolle's Abridgment par 1. fol. 384. and long before the Conquest in the time of Ethelbert the first Christian King of the Saxons Augemandus the Chan-cellor as Sir Francis Bacon supposes subscribes a Charter by the Title of Referendarius a Referee or Reporter as Minshew upon that word which seems by that to be the higher Title and the Office of both as he observes signifies an Officer that received Petitions directed to the King as Masters of Requests have done of late and made out Writs and Mandates suited to the different Cases of the Petitioners Whence 't is probable the place of the Office afterwards acquired the Name of Officina Brevium It appears by Sir Spelman's Gloss. pag. 106. Connectuntur Munus Cancellarii Capellani Regis in the time of King Ethelbert nec deinceps nisi rarò disjunguntur The Chancellor was usually the King's Chaplain In the Conqueror's time the Chancellor was styled the Master of the Colledge of Scribes or Clerks which Colledge probably was what we now call the Chancery Office whose Duty was Diplomata Scribere whence what was daily written by them have been called Writs Sir Henry Spelman ib. pag. 106. under the Title or Head De Cancellario recentiori de Cancellariâ says Olim nec praetoriâ fungebatur Jurisdictione nec Curiae alicujus praerogativâ which seems to deny him any Jurisdiction and makes the Chancery rather an Office than a Court even in the Latin Proceedings of it And mentioning Gervasius Tilburiensis supposed to be the Author of the Black Book in the Exchequer in Henry II. time and Bracton who was a Judge in Henry III. time treating of the Chancery Non de Curiâ says Sir Henry Spelman intelligendi sunt sed de Officinâ Brevium Chartarum Regiarum 8 H. 4. 13. b. by Gascoign chief Justice it is said The Chancery is not a Judicial Court See the true Nature and Duty of the Office of the Lord Chancellor set out by our ancient Author Fleta lib. 2. cap. 12. to direct Suitors to Writs proper for their respective Cases Sir Edward Coke 2 Instit. 552. and 554. says The Court of Chancery and the King's Bench are but one place that is The Chancery was an Office in or belonging to the King 's Bench. And the Author of Novarum Narrationum written in the beginning of Edward III. 4th Instit. 81. calls it a Court yet he corrects and qualifies it again and says the use of it was Pro Brevibus Originalibus emanandis sed non pro placitis Communibus tenendis It had no Judicature And Sir Henry Spelman further observes That Briton supposed to be the then Bishop of Hereford who wrote in the time of Edward I giving an exact account of all the Civil Courts in his time De hac tamen meaning the Chancery ne verbum ille nec quod sciam alins quisquam ante aevum Edvardi Tertii vel eum circitèr Then it began it seems with a Jurisdiction at Common Law whereby we may conjecture that about the time of King Edward III. or Richard II. time rather that Office set up for a Court as what here follows seems to concur with and then began their Latin and Common Law Pleas as distinct and separate from the Court of the King's Bench And upon the Judgments given in their Common Law and Latine Proceedings which Sir Henry Spelman conceives not to be very ancient neither Fitz. Abr. Error 70. Dier 315. plac 100. Error lies in the King's Bench which proves the King's Bench to be the Superiour Court whereof formerly it was but a part and member Nor can the Chancery to this day try the Issues there joyn'd in matters of fact but by the help of the King's Bench sure therefore it was very weak and deficient if it were a Court not to have power to try its own Issues Nor are those Issues tryed before the Chancellor he is not so much as present at the Tryal of them having no Authority in it but they are tryed before the Judges of the King's Bench Dyer 288. plac 51. Latch 3. 5. Rep. 92. 9. Rep. 98. and then returned again to the Office whence they came Rolles 2d Rep. 291. Stury and Stury's Case 21. Jac. says they are but one Court. Rolâ—…s 2d Rep. 349. by Judge Doderidge towards the end viz. That as to the Law-Proceedings the King's Bench and Chancery are but one Court Mich. 10. E. 3 fo 59. by Shard that the King's Bench and the Chancery are but one place And does that look like a distinct Court where Issues are join'd but the same Court if it be a Court cannot try those Issues How defective is that Court then in its Power Where shall we find the like in the World It plainly proves that this High Court of Chancâ—…y in its Original was but an Office belonging to the higher Court of the King 's Bench. In its Equity-Proceedings 't is not a Court of Record this is acknowledged of all hands but ab incertis initiis excrevit ad Insignem Magnitudinem says that Learned Antiquary Sir H. Sp. He makes a conjecture of the Original of it's Jurisdiction in Equity wherein by the way he ascribes to the King a greater trust and power than our Common Law doth own as shall be further noted hereafter for Rex id potest quod jure potest viz. Sir H. Sp. gives the King a power of deciding Causes in his own person and of mitigating the rigour of the Law by himself alone Unless in this last he be understood only in his Prerogative of Pardoning which belongeth to the King But he moderates what he had said before of the Latitude of the Prince's power in Justitiâ exhibendâ by subjoyning that the Prince still did it by the Administration of his Court of Peers and Barons which according to the Dialect now in use must refer to the Lords House or House of Peers And by his Margent he understands the Residence of the Court of Peers which he speaks of to be Aula Regis sometimes so called in the Saxon Laws and here indeed was the true and ancient Right of the Jurisdiction in Equity and Curia sua consisted of the Peers Barones olim de causis cognoscebant ad aulam Regiam delatis 1b Sir Spelman's Glos. pag.
R. II. which is now called Master of the Rolles but in the time of King R. II. it was look'd upon as an inferiour Office as may be observed upon the Supplication of Will. de Burstall in the 1 R. II. Ryley's Placita Parl. in the Appendix pag. 670. who stiles himself A Petit Clerk Keeper of the Rolles of the Chancery and prays his Patent may be confirm'd by Parliament as a work of Charity See Sir Edw. Coke's 4 Instit. fol. 95. 96. ad finem And John de Waltham was Burstall's immediate Successor This also speaks the mighty growth of that Court this petit Clerk now takes place of the Chief Justice of the Common Pleas. Let us hear the Judgment of an ingenious Writer and a worthy Person Mr. Hunt before mentioned in his printed Argument for the Bishop's Right in Judging Capital Causes in Parliament pag. 144. One may wonder says he That there is nothing in Antiquity that gives Authority to so celebrated and busie a Court as the Chancery at this day is none can be able to Cope with it but the highest and Supream Sovereign Power he means I suppose the last Resort the Lords and it is the proper work and care of that Court and to that Court only is this address made It occasions says Mr. Hunt a multitude of Suits tedious in delay The Expences many times equal sometimes exceeds the Value of the Right in dispute and that which is worse the Event is very uncertain That Court says he had its Rise from Feofments made upon Trust to avoid Forfeiture to the Crown in times of Civil War between the Two Houses of York and Lancaster 21 E. 4. fo 23. Bro. Abr. Tit. Conscience plac 21. by Fairfax It encreased from the Nicety of Pleadings especially in Actions upon the Case in the Common Law Courts and from the Potency of the Chancellor who commonly made and unmade says he the Twelve Judges If we may give due respect and credit to learned Sir Edward Coke and to the Resolutions of many Reverend Judges in several Cases in several Kings and Queens Reigns and allow them to interpret Acts of Parliament to whom out of all doubt it does peculiarly belong We may conclude That upon such Proceedings in Equity for matters tryable by a Jury and especially where a Freehold is concern'd and where if there be a right there is an ordinary Remedy for it I say upon such Proceedings be they in the King's Courts Ecclesiastical or Temporal or in a Court of Equity not only a Prohibition will lye to the highest of those Courts to forbid them but a Praemunire also will lie to punish them severely be they never so high because it brings matters tryable at the Common Law and of Freehold and Inheritance ad aliud Examen and to be discussed per aliam Legem as says Sir Edw. Coke's 3 Instit. fol. 121. in the middle of that fol. in the Chapt. of Praemunire and the very Statutes made in those Cases are Prohibitions in themselves If it were thought convenient by the Supream Legislature to have any such Power exercised in an ordinary and constant use of it possibly it might better be deposited in the hands of the Judges of the ordinary Courts of the Common Law whatever Sir Francis Bacon says to the contrary in his Advancement of Learning which has been successfully experimented as in the late Court of Wards mixed of Law and Equity and in the Court of Exchequer where matter of Equity by the Stat. of 33 H. VIII C. 39. is allowed to be pleaded in the same Court and Office among the Latine Proceedings But neither of these Courts ventur'd upon such a Course no not to proceed in a Course of Equity by English Bill till enabled to do so by Act of Parliament tho some have been of Opinion that the Exchequer had such an Equitable Jurisdiction by Prescription And it is a thing to be admired that after so many Courts suppressed by several Acts of Parliament as that of the Star-Chamber the Court of the Council in the Marches of Wales and others and several Courts that have very politically surceas'd the Exercise of their Jurisdiction of their own accord as not being warranted by Law as the Court of Requests c. That the Friends to the High Court of Chancery as to the Exercise of an Equitable Jurisdiction have not endeavoured to fortifie their Court with an Act of Parliament under due and reasonable Regulation especially when it once fell tho in times of Usurpation under a large Correction which tho it wanted a good Authority too yet it manifestly shews the sence of the whole Nation whom the then Usurping Powers thought it good Policy to gratifie and indulge for in pessimis temporibus as well as ex malis Moribus bonae oriuntur Leges as to the matter of them as in the short Reign of Richard III. I can appeal to that Highest Judicature the whole House of Lords who have had many years Experience of me begun about Twenty Four years since for so long ago I was their Assistant and to Thousands more with whom I have had a publick Conversation for about Fifty years and some for a shorter time that this is no new or sullen and revengeful Humour in me but proceeds from a Love to my Countrey and Gratitude to mine and my Ancestors Profession and from a desire to have my self and my own Posterity and Neighbours Free and Happy Let me observe from Mr. Hunt before cited that what he writes doth appear to be the Vulgar and Common Opinion concerning this Court of Equity for which reason I cite him It points out to us whether we are properly to resort for a Regulation that is to the Lords House and with all Submission and Reverence to that High Court be it spoken it is a Trust repos'd in them to reform this Lesser tho commonly call'd The High Court of Chancery and to keep the rest of the Courts within their due Bounds As for the Court of the King's-Bench to whom it most properly belongs to grant Prohibitions upon such occasions 2 Instit. fol. 610. Prohibitions are not of Favour but of Justice It is now grown to that pass through the length of time and disuse that the Court of King's-Bench might possibly find it Imparem Congressum unless encourag'd to it by that Supream Court of the Lord's House Observe too that this Author Mr. Hunt does concur herein with many other Testimonies when this Court of Equity had its first rise and beginning and whence it took the occasion of such a Jurisdiction viz. from the Feofments upon Trust whose beginning too we know and what the Design and purpose was of such illegal and fraudulent corrupt Feofments and Conveyances to Uses upon Trust were we shall further examine and hear the Opinion and Judgment of several Reverend Judges and divers Writers besides upon that Subject before the close of this Discourse of which much
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
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
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
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
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.