be Justices of Gaol-delivery in every County And he granted to the said Justices that they should have the keeping of the Records of the Pleas pleaded before them But they were not to rase or amend their Rolls or to make Record contrary to their Enrollments Also that the power of the Justices should be limited in such manner that they exceed not the points contained in the Writs or Presentments of Jurors nor complaints to them made saving such incident matter as without which the original causes could not be determined And he utterly forbids and prohibits that any shall have power to amend any unjust or erroneous Judgment of his Justices but only those Justices which followed Him and his Courts who thereunto were by him entitled or Himself or his Councel for that matter he specially reserv'd to his own Jurisdiction He forbids also all his Coroners and Justices except his Seneschal his Steward and his Justices of Ireland and Chester to make any Deputies to do any thing whereof they ought to make record without the King's leave He will'd also That in Counties Hundreds and in the Courts of every frank Tenement there should be Courts held by the Suitors and also in Cities Towns Boroughs and Franchises c. Besides this Book written by King Ed. 1.'s command and in his own name a while after there was another Book written by whom it is not known called Fleta and it was in the Reign of Ed. 2. or 3. And that Author says That Judgment is a threefold act Fleta lib. 1. cap. 17. fol. 16. of three persons at the least the Judge the Plaintiff and the Defendant without which there can be no Judgment Nor says he can any one Judge in temporal matters but only the King or his Substiutes and Delegates And the same Author in his Tract of the diversity of Courts Fleta lib. 2. fol. 16. says as followeth The King hath a Court in his Councel in his Parliaments when present the Prelates Earls Barons Nobles and other skilful men who are to determine the doubts of Judges and where upon appearance of any new sort of injuries new remedies are provided and where Justice is to be rendred to every one according to what belongs to him He hath also his Court before his Steward in Aula sua in his Hall who now says he supplies the place of the Capitalis Justiar ' whereof mention is made in the common Writ of homine replegiando who was wont to hear the Kings own Causes to rectifie false Judgments and to do Justice to Complainants without Writ whose Power in part the said Steward of the Kings Houshold hath Also the King hath his Court of Chancery in several places in his House He hath also a Court before his Auditors specially appointed to be near the King whose Office extends but to the Justices and others of the Kings Ministers ☞ to whom there was no power granted to determine what they heard but to relate the matter to the King that he might direct punishments according to the quality of the Offence He hath also his Court and Justices as well Knights as Clergy-men locum suum tenentes in Anglia before whom and not elsewhere unless before Himself and his Council and special Auditors false Judgments and Errors of Justices are reversed and there are determined Writs of Appeals and other Writs upon criminal Actions and injuries contra pacem He hath also his Courts and his Justices residing in the Exchequer and also in Banco now called the Common-Pleas at Westminster and some are assign'd for Gaol-deliveries in every County and some are affigned to take Assizes generally in every County and some are itenerant and constituted to hear and determine all criminal and civil Pleas. Also the King hath his Justices itenerant to hear and determine the Pleas of the Forest and he hath his Court in every County and in the Sheriffs Turn and in Hundreds and in the King's Manors Cities and Boroughs as in the Hustings of London Lincoln Winchester York and other places And the same Author having afterwards treated more particularly of what Jurisdiction the King had delegated to every Court Fleta l 2. f. 75. cap. 33. he writes thus of the Chancery There is amongst the rest a certain Office called the Chancery which ought to be committed to the care of some prudent man as a Bishop or Clergy man of great dignity together with the care of the great Seal of England under whom are all the Chancellors in England Ireland Wales and Scotland and all Keepers of the Kings Seals except the Keeper of the Privy Seal to whom are associated Clerici honesti honest and circumspect Clerks sworn to our Lord the King and who in the Laws and Customs of England have ample knowledge whose Office it is to hear and examine the Complaints of Complainants and to grant due remedy by the King 's Writ according to the nature and quality of the wrong And there he treats at large of the Officers Clerks and Business of the Chancery which was to make out Remedial or Original Writs and Judicial Writs also upon Recognizances and Contracts made in the Chancery and enroll'd there but not one tittle or mention is there made by any of the said Authors of any Superiority the Lord Chancellor or Lord Keeper or the Court of Chancery had over the Proceedings of any of the other Judges either to examine correct or rectifie their Judgments or stop execution thereof upon any account colour or pretence whatsoever which is a most convincing proof the Chancellor then had no such power SECT III. What is meant by Judging according to Equity and by Whom it was anciently performed HAving laid the foundation of my present purpose upon what I find in the fore-mention'd Authors I think it not amiss to say somewhat touching their credit and first of all that which gives them a reputation with me is that they set down what they themselves of their own knowledge knew to be true they relate what the Law was at the time of the writing of those Books they took nothing upon trust from other hands but set down what they themselves knew to be practice Next they were men of great Eminency Bracton was a learned Judge and it was his zeal to Justice induc'd him to write Britton was a Book writ by the King 's own command and publish'd by his approbation and the others Mirror and Fleta have always had a great reputation amongst the English Lawyers not only ancient but modern and Sir Edward Cooke who once was honour'd with the title of the Oracle of the Law in his first Institutes in every page almost quotes those Authors for proof of his assertions and so doth Stanford in his Pleas of the Crown from whence I conclude that what they wrote for Law was Law then and if so it is Law now saving wherein-it it is alter'd by the Kings Parliamentary Act nothing less than
ordains That noue from thenceforth except out Lord the King shall hold in his Court any plea of false Judgments given in the Court of his Cennants for such Plea especially belongeth to the Crown and Dignity of our Lord the King Though the Supream Jurisdiction were in the King to use as he saw best it is but rational that if the Parliament were sitting at such time as any Complaints were made to him of any Erroneous Judgment or Decree that he should refer the Examination and final Determination of the matter to the House of Lords who without any manner of doubt are and always were the fittest Referrees the King could refer any matter to be determin'd they being the chief Assembly of the Honour Integrity Wisdom and Justice of the Nation and therefore it is but reasonable the King should take the measures of his final Determination from their Advice or refer it to them to determine which is all one Better or Abler Advisors being not to be found but it is as true they had no power of Judging by their own innate Authority but by a delegated Authority from the Kings as plainly appears by what is said before and also by the Parliament Roll of the 4 of Ed. 3. which is recited in Cotton's Records In haec Verba viz. The Treasons Felonies and other misdemeanors of Roger Mortimer are particularly repeated a great part of which Roll cannot be read for that the Roll is mouldred but in the end it appears that the King charg'd the Lords and Peers who as Judges of the Realm by the Kings Assent adjudged that the said Roger should be Drawn and Hang'd Whereby it appears it is the Kings Charge to the Lords and the Kings Assent that gives them Jurisdiction and Authority And so it follows of necessary consequence that though they are the fittest for the King to Authorize to determine the mistakes and Errors of his Chancellors and other Judges yet if when they are not Assembled in a Parliamentary way there is no reason nor authority against it nor inconveniency by it for the King to Authorize a convenient number of the Lords of the Parliament and Judges that are near him to take course with Erroneous Decrees in the mean time until the Parliament sits And therefore it was that it was provided by Act of Parliament the 31st of Ed. 3. cap. 12. That the Lord Chancellor and Treasurer should have Power upon Complaint to take the Justices and such other sage persons as they thought fit to their Assistance and to Examine the Judgments of the Exchequer Court And if any Error be found they may corted the Rolls and after send them into the Exchequer to make I thereof Execution Which thing I conceive the King might have done of himself without Act of Parliament and I conceive the Act made it a standing Rule to prevent often troubling the King upon every particular occasion and though there be no provision by that Act for any further Examination of the Judgment of the Chancellor and Treasurer in that Case yet it is not so final but the King may upon Petition to him order a Writ of Error returnable in the House of Lords Assembled in Parliament for a further and more due Examination of the matter if either Party thinks himself agrieved thereby and from that time forward ziz the 31 of Ed. 3. there was no standing Order made by Act of Parliament as to the Errors of the Court of Kings-Bench for by that Name I shall now call the Successors of the Judges that followed the King mentioned in the aforesaid Authors but it stood at the Kings meer pleasure 27 El. 8. as formerly until the 27 of Queen Elizabeth Yet our latter Kings before that Statute for the most part used to refer the Examination and Correction of such Errors only to their House of Lords in Parliament insomuch that for want of oftener referring it to their Councel or to Specialibus Auditoribus Special Commissioners as Fleta affirms the King could do as is mention'd in the beginning of this Section it grew to be an Opinion that Errors of the Court of Kings Bench could be rectified no where but in Parliament as appears by the Preamble of that Statute of the 27 of Eliz. Therefore and as the Preamble of that Statute mentions Because the Court of Parlisament was not in those days so often held as in ancient time and because in respect of the great Affairs of the Realm such Erroneous Judgments meaning those of the Kings Bench could not be well consider'd and determin'd in time of Parliament whereby the Subjects of the Realm were greatly hindred and desayed of Justice It was therefore enacted That the Errors of Judgments in the said Court of Kings-Bench in certain Actions therein mention'd should be examined and rectified in the Exchequer-Chamber by such persons as in the said Act is mentioned and after the Judgment is affirmed or tedersed the Record and all things concerning the same shall be removed and brought back into the Court of Kings-Bench that such further proceedings may be thereupon as well for execution as other wise as shall appertain And thereby it is reserv'd That the parties shall not be finally concluded by such Reversal or Affirmation but that they may sue in the high Court of Parliament for a further and more due examination of the said Judgment in such sort as was thentofore used upon erroneous Judgments And the manner thentofore was that before any Writ of Error could be brought to examine and correct Errors in Parliament a Petition was to be preferred to the King for allowance thereof and it was to be allowed by the King before any such Writ of Error could be made as appears by the Authorities in the margin 1 H. 7. fo 19 20. Dy. fo 375. which makes it most plain where in whom the Supreme Judicative Power lay And Judge Jenkins says Jenk Lex terrae fo 55. The reason of the Law and the King's allowance of a Writ of Error returnable in the House of Lords is for that the Judges of the Land all of them being of the Kings Councel and the twelve Masters in Chancery assist in the Lords House by whose advice erroneous Judgments are redrest So that it appears plainly their Judicative Power in that particular is not originally and fundamentally in themselves but derived from the King by his allowance thereof who is fons origo Justitiae Bract. lib. 2. cap. 4. and says Bracton est enim Coronae Regis facere Justitiam Judicium tenere pacem sine quibus Corona consistere non potest nec tenere hujusmodi autem jura sive Jurisdictiones ad personas sive tenementa transferri non poterunt nec per privata persona possideri nec usus nec executio Juris nisi hoc datum fuerit ei de super sicut Jurisdictio delegata non delegari poterit quin Ordinaria remaneat cum
ipso Rege And I find by the Journal of the Lords House that the 10th of December 1621. a Report was made by a Committee appointed to search for Precedents touching Appeals to the Lords from Decrees in Chancery In the Stat. 37 E. 3.18 by Gr. Councel is meant the Privy-Council That anciently all Petitions of that nature were directed to the K. and his great Councel From whence I gather it is but a late practice both to leave the King quite out of such Petitions and to neglect praying his allowance that the Lords may examine Errors of Judgements and Decrees And perhaps it may prove of ill consequence hereafter if not timely considered and rectified the Supremacy of Jurisdiction being the Supreme part of Government Mir. 232. the King 's chiefest Dignity By the foresaid Statutes of E. 3. and El. and some others since made there is sufficient provisions against erroneous Judgments in all Courts at Law in the intervals of Parliament by Writs of Error which are in nature of Appeals which course I conceive the King might have taken if no such Act had been made But against the Judgments and Decrees of the Courts of Equity in Chancery Exchequer Chamber and Counties Palatine c. there is no provision at all by any Parliamentary Act that matter standing as it did by the Common-Law no Parliament having intermeddled with it which if they had they had the same reason or more to desire the King to constitute a Court of Appeal from these Courts of Equity as from other Courts And it is a great Argument with me if there were no other that it was conceived by the Parliament that there is a Power in the King alone out of Parliament-time to rectisie the Errors of the Decrees of all Courts of Equity else the Parliament I presume would have taken care to have provided against those as well as against the Errors of the Court of Kings-Bench which provision was made because they conceived those Errors not to be redressed but in Parliament and the same reason that induced the Parliament to constitute Courts to redress the Errors of the Kings-Bench and Exchequer viz. the unfrequency of Parliliaments and their being otherwise employ'd when they fit may induce the King to appoint Referrees to rectifie Chancery-Decrees For the further clearing of this matter it seems in Queen Elizabeths time there was the like doubt made as now Whether the Queen might relieve against the mistakes of the Chancellor or Keeper in making his Decrees And the Queen took the right way to be inform'd she referr'd it to the Judges to certifie to her their Opinion touching that matter For it appears Rolls Re. 1 p. 331. by the Authority in the Margin that it was certified by all the Judges of England in the Cause between the Countess of Southampton and the Earl of Worcester in Chancery that the Queen upon Petition might refer the matter to the Judges but not to others to examine and reverse the Decree if there should be cause and that the then Lord Chancellor agreed to that resolution And forasmuch as it is mentioned in that Report that the referrence ought to be to the Judges and not to others it is to be understood that it was a point in Law was then in dispute and in such Cases there must be some Judges amongst them for in arte sua cuique credendum est and therefore Judges whose profession the study of the Law is are presum'd to be best conusant of any what the Law is and the Law is not to be unregarded in judging according to Equity but both Law and Conscience are to be so intermix'd as to produce a just Judgment a skill of great curiousity and ought therefore not to be final but in the resolution of several men of great knowledge and integrity since the least byass of affection or disgust to one side or other may lead any single man a great way out of the way I presume this may be the meaning of that Report because I find in the Year-book of the 27th of H. 8. so 15 c. That the Kings Secretary and Mr. Fitz-Herbert were join'd with the Chancellor to review a Decree between the Prior of St. Johns and one Dockeray where the Secretary gave rules in the Cause as well as the Chancellor The House of Lords themselves always take the advice of the Judges and to leave matters of Equity wholly to the Chancellor alone in the intervals of Parliament is to give him a greater power than the Lords take to themselves in Parliament which I humbly conceive ought not to be Besides this resolution of all the Judges assented to by the then Lord Chancellor it was afterwards agreed to by the House of Lords themselves That it was proper for the King to give authority to examine and correct Decrees in Chancery as appears by their own Order which is as followeth viz. Die Veneris vicesimo octavo die Maii 1624. THe Petition of Will. Matthews of Landast was read and the Answer thereunto conceiv'd by the Lords Committees for Petitions after Councel heard on both sides many several days was reported to the House by the Lord Houghton and read in haec verba viz. The Lords Committees upon the examination of the whole Cause between William and George Matthews find William Matthews principal Debt to be Five thousand two hundred and sixty pounds which they hold fit to be paid by the said George Matthews thus Vpon St. Andrews day next One thousand six hundred twenty four 2000 l. Vpon St. Andrews day One thousand six hundred twenty five 2000 l. Vpon St. Andrews day One thousand six hundred twenty six 1260 l. The whole sum 5260 l. And that for security for the payment of this Debt according to every several day and payment here set down the whole Land to stand bound and that this be the better performed the Lords Committees think fit the execution hereof be recommended to the Court of Chancery Die Veneris vicesimo octavo die Maii 1624. post meridiem George Matthews exhibited his Petition in haec verba viz. To the Right Honourable the Lords Spiritual and Temporal in the higher House of Parliament assembled The humble Petition of George Matthews Esq Humbly sheweth your Lordships THat your Petitioners Decree now question'd hath been several times submitted unto by William Matthews never question'd during the life of the Petitioners Father and His Majesty upon information by Petition on both sides declared That he saw no Cause for questioning thereof and it was thereupon ordered That to hear a Cause after submission no Corruption appearing would be a dangerous Precedent In consideration whereof and for that the Decree stands question'd only by Petition nor was your now Petitioner ever party to any Suit nor is there any Bill depending in Court he being informed by Councel that it hath been the course of this Honourable House to reverse Decrees but by
Justices of both Benches and made his Decrees according to their Opinion As for instance In the Year-book of the 37th of H. 6. fo 13. the Case was That one A. had bought of J. R. several Debts due to J. R. from several persons and A. gave a Bond to J. R. for the sum And forasmuch as those Debts were but things in Action and no Property was chang'd nor no Action accru'd by the bargain to the said A. but the Debtors remained Debtors still to the said J. R. so that A. had nothing for the money secured by the obligation A. prays in Equity to be discharged of the said Bond against J.R. and prays a Subpaena against J.R. and it was granted and the Defendant answered and the Chancellor because the matter seemed doubtful to him adjourn'd it to the Exchequer-Chamber before himself and the Justices of both Benches and there it was debated and by the Opinion of all the Justices because the said A. had not quid pro quo by that bargain therefore the Bond ought to be released and it was decreed accordingly The like will appear to be done by the Book-cases following 37 H. 6. f. 35 36 39 H. 6. f. 26.7 E. 4. f. 14 c. And if he did not adjourn the Causes into the Exchequer-Chamber he always had the Judges or some of them with him at all hearings and decreed according to their Opinions for the entry of the Decrees in Chancery of H. 6.'s time are after this manner Els Off. of Chan. fo 51. says the Author cited in the Margin viz. Consideratum est per Curiam ex assensu Johannis Fortescue Milit ' Capital ' Justiciar ' Domini Regis ad placita tenenda diversorum aliorum Justiciariorum servient ' ad legem in Curia praesent ' existent ' quod c. and sometimes it was ex assensu omnium Justiciar ' utriusque Banci and sometimes of one or two Justices but before the end of that King's Reign the manner of entry of the Decrees was somewhat altered and was in this manner Considerat ' Adjudicatum Decret ' est per Cancellarium per Curiam Cancellar ' without particular mention of any Justices or others and so it continued till H. 8.'s time But towards the end of his Reign whereas before that time the Decrees were in Latine and in very few words and entred on the back-side of the Bills they then began to be drawn up in English apart by themselves and therein reciting the Bill and Answer and afterward were enroll'd in Rolls by themselves The ancientest of that nature that I can find are in the Rolls Chappel and are of the 27th and 28th of H. 8. when Sir Thomas Audley was Chancellor In Queen Maries days the entry of all the Decrees is That it is Ordained Adjudged and Decreed by the Lord Chancellor and by the whole Court of Chancery That so and so and after the same manner it is at this day saving that the conjunctive clause And by the High-Court of Chancery which in the beginning was not incerted in vain is now altogether superfluous and impertinent for the Lord Chancellor or Lord Keeper without the assent or consent of any other have made Decrees for some years past according to his own liberum arbitrium as I shall shew in the next Section SECT IV. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery IN the Chancery are two Courts C. 4. Inst fo 79. one Ordinary wherein the Lord Chancellor or Lord Keeper of the Great Seals proceeds according to the right line of the Law and if he gives an Erroneous Judgement Plowd 393. que B.R. est le Pluis hault Court Dyer 315. there a Writ of Error lies returnable in the Kings Bench the other is Extraordinary wherein the Chancellor ought to proceed according to the Rule of Equity which according to what it is now taken is what is according to the Chancellor's single Conscience quecunque Els Office of Ch. fo 41. sit it is say some an absolute Power without controul other then in Parliament and spreadeth it self most largely without any Limitation it stops the proceedings of all the other Courts at Westminster it renders all their Judgements vain and ineffectual durante bene placito of the Chancellor or Keeper and stops Execution untill his Conscience be satisfied whether the Plaintiffs at Law ought to go on or no by which means when a man hath a Judgement fairly obtain'd at Law or intends to Sue there for a Just and True Debt if the Defendant at Law becomes Plaintiff in Chancery and he or his Councel hath but Invention enough to suggest any sort of Equity there 's an Injunction had of course until the Plaintiff at Law can put an Answer to the Bill which if he lives any thing remote from London it will take up a Month or two's time or more to send an Answer and in the mean time the Debtor prepares his Bag and Baggage and by that time the Injunction can be Dissolv'd which cannot be without a considerabe Charge the Gentlemen is perhaps got to Ireland Jamaico or Japan What ever is now finally determin'd in Equity in Chancery it is done by the Chancellor or Lord Keeper alone and though the Clerks and Registers retain in drawing up their Decrees somewhat of the old form ziz That it is Decreed by the Lord Chancellor or Lord Keeper and by the High Court of Chancery which implyes there were some others ought to have a hand in making the Decree yet there is none that now have for though there are two at least of twelve that bear the name of Masters in Chancery and heretofore were accounted Socii and Collaterales to the Chancellor that daily sit in Court one on each side of the Lord Chancellor or Keeper yet they are now but as his Attendants and speak not a word in determining any Causes their only business being to wait and expect how many References the Lord Chancellor will make to them touching insufficient Answers Scandalous Bills or Answers Contempts stating of Accounts and the like they being to have a Fee for their Report therein yet that Report is subject to the controul of the Chancellor or Keeper if he pleases And if at any time which is but seldom any of the Judges are sent for it often proves to be meerly out of Formality for their Opinions are seldom regarded It is said of the Chancellor and Keeper of the Great-Seal of England Els Office of Cla fo 6. that he is like the Roman Praetor in whose Constitutions there were said to be two kinds of Powers one was when without the Advice of the Judges he would Manumittise Emancipate Award Possessions of Lands and Goods Commit Wardship of Pupills and grant Injunctions as he thought convenient The other sort of Power the Praetor had was when he proceeded to Judgment according to Leges Regis
Bacon's Case herein also before re-cited in the fifth Section for it is not Impossible but that some of his Successors may do the like which if but any one should it would be very hard for many a poor Creature to wait the Convention of a Parliament especially if it should happen that another usurping part of a Parliament like that about 41. should attempt to play the old Game again so that in such case the King must perhaps either leave many of his Subjects utterly undefended against the corrupt and vicious proceedings of another Bacon or endanger his own safety by letting them sit in which case by the Rule of Self-preservation the King ought to save himself But setting aside this matter of corruption as if no such would ever hereafter be in the World if we consider humane frailty and the real mistakes every single man may be subject to especially when beset with the mercenary Arguments of three or four Hireling Advocates of a side who think themselves oblig'd when opportunity serves to mistake for their Clients according to the measure of the Fees they receive as I have known some of them knowingly do and sometimes they prevaricate and omit what they ought to say if either Feed on both sides or not high enough Feed of the side they are of by means whereof a circumspect Lord Chancellor or Keeper may innocently be seduc'd to make an ill Decree and by force thereof a poor man must either go to Prison or part with the best part of his Substance so that by both ways himself and Family are brought unjustly to want and misery and if he be a Trades-man it is ods but he breaks one or two more for Trades-men are like Nine-pins one seldom falls alone and if a Parliament when it meets should find leasure from publick business to examine the matter and should see cause to alter the Decree and Award Restitution the man that got the Money by means of the ill Decree may have spent it all gone beyond Sea or dead without Assets or twenty such Chances may happen that the Money may never be got again by any Art or Industry whatsoever which would be prevented if there were a place to Appeal before performance of the ill Decree and moreover it remains a doubtful case as to the many Decrees of the late Lord Chancellor Notingham Re vers'd by the now Lord Keeper North which of the two Lords are in the right he that made the Decrees or he that Revers'd them it being not fairly to be decided but by the Advice and Opinion of a greater number of as Wise and Judicious men as themselves and that is a fair and reasonable way of determining it for vis unita fortior but the greatest inconvenience of all is that which concerns the Government for while this opinion stands That the King cannot hear the matter in Person nor refer it to others though to some of the self same Lords that sit in Parliament but that the matter must wait their meeting in a Parliamentary way it may make the people believe that the Supremacy of Jurisdiction is in the House of Lords and not in the King and consequently lessen him in their opinion for People Love and Honour them most from whom they find most Relief against Injury and how consistent that is with Monarchy and how agreeable it is with our Oaths willingly to suffer let any man Judge that hath Sense and Loyalty Since all the Courts of Westminster have four Judges in each Court men Learned in the Laws of known and visible Integrity and all Sworn To do equal right to all 18 E. 3.7 Oath of Just and to take no Fee or Roabes of any man great or small but of the King himself during their being Judges And who in their proceedings are ty'd to Rules and since Appeals by Writ of Error by special Provision by Act of Parliament may be at all times had against their Judgments and since there are frequent Appeals from all Ecclesiastical Courts and from the Court of Admirality out of Parliament It is a mighty mistery to me and the policy of it is not Intelligible that any man should labour to prop up this Opinion that there should be no Appeal but to Parliament from this Court of Equity in Chancery where there is now but one Judge and his Orders and Decrees controuling all the Judgments of other Courts and he therein ty'd to no other Rule but his own Conscience be it good or bad I think a Chancellor or Keeper for his own Justification should not be against the Kings Examining his Decrees or Referring them to fit persons to be Examin'd and Corrected which without peradventure is not only the best and surest way for Administration of Justice in this Case and so far from setting up an Arbitrary way or an Extraordinary Course that it is but restoring the Court of Equity in Chancery to its Ancient and Primitive form of Judicature the definitive Judging there by the Chancellor alone being but an Innovation upon the Original Institution of that Court as appears by what is aforesaid and to the end there may be no obstruction in the way I have enquir'd how far the King ought by Law to provide for his Injur'd Subjects in case of Appeal to him from Erroneous or Unjust Decrees in Chancery by a Lord Chancellor or Keeper SECT VIII Whether the King ought exdebito Justiciae to hear in Person or to grant References upon Complaint to him made against Erroneous and Vnjust Decrees in Chancery I Have as great Veneration for Kingly Government and am as Firm and Faithful to it as any man can be however I think it no presumption to affirm that the King ought to do his Subjects right by using the best means he may for administration of Justice amongst them pertinet ad Regem ad quamlibit injuriam compescendam competens remedium adhibere It is no dishnour to him that he is oblig'd to it for it is for that end he is ordain'd by God and obey'd by men it is therein consists the height of his Clory and the lustre of his Majesty and says Fleta Fleta fo 17. par 15. Whereas it is so ordain'd that every man in prosecution of his right Potius judicio quam viribus utatur Should make use of the Law rather than force The injur'd are to come to the King and having shew'd him the wrong they have suffer'd he ought to do speedy Justice to his Petitioners yet the King is not to be troubled but when his Ordinary judges fall of their Duty For Nemo in lite Regem appellato nisi quando domi jus consequi non poterit Orig. Jul. fo 20. A Complaint to the King by Petition against the Error and Injustice of a Chancery Decree is an Appeal to the King from his Chancellor from the Inferior Judge to the Superior which is very natural and a Petition to him for allowance of a Writ of Error to the House of Lords to inspect and certifie a Judgment of the Court of Kings-Bench or Exchequer Chamber and an Appeal to the King from his Ecclesiastical Courts and from the Court of Admirality are all grounded upon the same natural Justice and by reason of the Kings Supremacy of Jurisdiction and that as well by force of the Common as Statute Law Of Appeals in general Sir Edw. Cooke cites the Opinion of a Learned Judge of the Admirality and some others to this effect For as much as an Appeal is a natural defence it cannot be taken away by any Prince or Power Cook 's 4 Iust fo 340. but if the Appeal be just and lawful the Superior Judge ought of right and Equity to receive and admit the same as he ought to do Justice to the Subject and so if the Cause of the Appeal be just and Lawful he ought to Reverse and Revoke all mean Acts done after the Appeal brought in prejudice of the Appeallaent But I need not much labour that point for I can Experimentally say that His Majesty is very desirous that His Subjects should have the full and free benefit of the course of Justice and if any ever fail of it it ought not to be imputed to the King but to his Council whose advice is the Kings guide and if they mis-advise the King and he follows their advice he is excusable yet he is not bound always to follow their advice if he be really satisfied in himself after hearing their reasons that it ought to be otherwise than they advise for as he is plac'd by God above them it is to be presum'd God may supply him with a more discerning Spirit than they and enable him to distinguish between the best and worst advice having heard the reasons of both Yet they that knowingly advise the King ill or neglect to advise him well when occasion requires are to blame therefore I hope His Majesties Privy Council will confider of this matter and advise and desire His Majesty to take the Advice and Opinion of His Judges who are His proper Councel therein For in my poor judgment and as I have heard from most Judicious men the restoring this kind of proceeding aforemention'd for Relief against unjust Decrees in Chancery and other Courts of Equity will be as much for the Kings Honour and His Subjects Good as any other part of his Jurisdiction For I say again there is no Robbery Piracy Burglary or other Villany whatsoever so mischievous and insupportable as the unjust taking away of a mans Estate by colour of doing Justice and therefore most worthy of His Majesties care to prevent Cum Index indulgeat indigno nonne ad prolaptionis contagium provocat universos Bract 107. I expect to be Censur'd by some for what is here set down though I challenge all mankind to charge me with any misrecital or false quotation but that which most troubles me is my consciousness of my own unability to perform the matter least a good Cause should suffer by ill management However having done my best I hope it will be taken in good part by all Honest men more I cannot do less I durst not for my Oaths sake and if any be offended with me this shall be my Sanctuary Fiat Justicia si ruat Coelum FINIS