68. Inter privilegia Baronum on the word Baro. But that I may make hast as this great Officer the Chancellor himself did in process of time from his minority and the first dawning of his power to bring him to his Magnitude I proceed to enquire about what time by what steps and degrees by what Means and upon what Occasion he arrived to his Altitude and transcendent power as our Authors instruct us But before I enter upon it let me premise some few things which may guide us in passing a Judgment upon what is so set down and I set down nothing as my own private opinion I only make a Collection of what is delivered upon this Subject by the most grave and learned Antiquaries and Authors and I submit all to the Judgment of the Lords for whose Information only this is written Iâ—… hath been the Wisdom and I may say the true natural Genius of this Nation from its Original and Infancy especially in Administration of Justice and of what is subservient and conducing towards it to place the Power and confer the Trust not in any one single Person but in many or more than one And it is the Advice of a Lord Chancellor Sir Francis Bacon as to the very Jurisdiction we are Treating of which he calls Praetorian let it not says he be assigned over to one Man but consist of many because it little differs from the power of making La 〈…〉 and he would have their power limited to cases heinous and extraordinary and not invade ordinary Jurisdictions and that it reside in the Highest Courts of Judicature which with us is the House of Lords least it prove a matter of Supplantation of Laws See his Advancement of Learning pag. 445. and pag. 446. the 43d Aphorism Above all says he it most imports the certainty of Laws that Courts of Equity do not so swell and overflow their Banks as under pretence of mitigating the rigour of the Laws to dissect or relax the Strength or Sinews thereof by drawing all to Arbitrement The Lord Coke in his first Instit. 155â—… a and Plowd in his Commentaries take notice that the wisdom of the Law had so ordered it That matters of fact shall be decided by Twelve Men in a Jury and matters in Law by Twelve Judges Sworn to the Common Law in no Case by one single Person Sir Henry Spelman affirms that this was the Genius or Humour of all Europe But to confine our selves to our own Nation he particularly observes that Prisci nostri Reges coram Omni Regno jurabant c. Justitiam per Concilium Procerum regni sui tenturos The Kings alone never did determine matters either in Law or Equity Ingens Exemplorum Multitudo quibus prisci illi Reges Causas ad palatium suum allatas non Unius alicujus judicio sed Communi Procerum Concilio definiêre This circumscribes that unlimited Power which in the beginning of that Paragraph Sir Henry Spelman seems to ascribe singly and solely to the Kings from whence the Advocates of the mighty Power of the Chancery like true Herodians who cried up Herod would derive the like to their Chancellors Fessi autem meaning it of our Kings tautae rei mole coguntur exemplo Moysis Judiciorum lancem Delegatis credere No doubt but it was done by the Commune Concilium of the Nation as Mr. Selden in his Titles of Honour concludes of many such like publick Transactions tho the Records and Rolls of them are not now extant Tunc erectis seorsim à Palatio Tribunalibus pointing as he supposes at the Original of our Courts of Westminster-Hall Singula multis quamvis ex Canone judicaturis tho tied to certain Rules Nullum unico Substituerunt Judici Justitiam uti veritatem rati tutius apud plures conservari Neque ideo vel in Curiis ipsis infimis Rusticanis this best shews the Nations Humour Monocriten preferebant qualemcunque it would not be endur'd The Freeholders in the Country Courts meant by the Curiae rusticanae were to determine Fact and Law both that is were the sole Judges of the Folkmotes or Country Courts Only there lay an Appeal in exorbitant Cases that is in extraordinary matters ad Palatium Regni and they received a Determination from the King not from him alone but E Concilio Procerum This expounds the Law of King Edgar Lambert de priscis Anglorum Legibus pag. 63. Viz. Nemo in lite Regem appellato nisi quidem domi viz. the Country Court consequi non poterit Sin Summo jure domi urgeatur ad Regem ut Is onus aliquâ ex parte allevet provocato that is Moderate the rigour of the Judgment not alone nor by a Chancellor but by advice of the Peers as before is manifestly proved Sir Henry Spelwan proceeds further to observe that several subsequent Statutes which gave power in many particular and limited matters to the Chancellor never referred them to him alone but still in Conjunction with others 31. H. 6. C. 4. the Chancellor has power given him calling to him any of the Justices to proceed by their Advice even in the Court of Chancery it self 5 to E. 4. Inter Cobb Nore by Authority of Parliament Power is given to the Chancellor and Two Judges to order a matter of Collusion In all this the Humour and true Genius of the Nation was still pursued He instances too in the Statutes made in the 20th year of Edward III. about the Forest of Windsor and in the Statute about Assizes of Novel Disseisin whereby in special Cases pro tempore only Power was given to the Chancellor in Conjunction with othérs In the Case of Prohibitions in Sir Coke's 12 Rep. 63. Banoroft Archbishop of Canterbury had informed King James the First That the King himself might decide Causes c. in his Royal Person and that the Judges are but Delegates of the King and that the King may take what Causes he please to determine from the determination of the Judges and may determine them himself And the Archbishop said that this was clear in Divinity that such Authority belongs to the King by the Word of God But Sir Edward Coke then Chief Justice in the Presence and with the clear Consent of all the Judges of England and Barons of the Exchequer answered That the King in his own Person cannot adjudge any Case either Criminal or between Party and Party but it ought to be determin'd in some Court of Justice according to the Law and Custom of England 4 Instit. in the Chap of the King's Bench fol. 70. The King that is the Law and Constitution of the Government hath committed all Power of Judicature to several Courts of Justice This is necessary to be remembred because it is confidently affirm'd by the Advocates of the Equity-Jurisdiction of the Chancery that the Kings of England anciently and at the first did Administer Justice and more especially did mitigate the
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
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
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.
taken in the largest sence but rather contra-distinct and indeed opposite to it and destructive of it Sir Henry Spelman at last takes leave of this great Officer and of his Court by shewing what a mighty encrease came flowing in from that ill Weed the Invention of Uses or Trusts which are still the same But to this point there are plenty of far greater Authorities and Authors for whose Testimony herein I shall reserve it Another thing to be premised is that as the King had no such Power himself singly and in his own Person only to decide Causes of Equity and therefore could not Delegate it to any one Man as 't is pretended he might so and upon the same ground and reason the King by our Law could not by his Commission Erect any Court of Equity It can be grouned and warranted only upon a Prescription or an Act of Parliament neither of which can be pretended to in the matter in hand it was so adjudged 26 Eliz. in the King's-Bench Sir Edw. Coke 4 Instit. fol. 87 97. That a Court of Equity cannot be Erected but only by Act of Parliament or Prescription And the like in the Lord Hob. Rep. 63. Resolv'd also in Langdale's Ca. 12. Rep. 52. That the King cannot raise a Court of Equity the reason is because a Court of Equity proceeds by the Rules of the Civil Law and not by the Common Law 6 Rep. 11. b. and 2 Instit 71. The King may appoint a new Court and new Judges but cannot change the Law Hill 8. H. 4. fol. 79. by Gascoign That the King by his Charter cannot out the People of their Inheritance which they have in the Common Law So note the Common Law is the People's Inheritance In the next place Let us proceed to examine about what time and upon what occasion this Court of Equity exerted its Power which hath in part fallen in among our former Enquiries For the time and occasion too Mr. Lambert in his Archeion pag. 75. refers it to the time of King Henry IV. and the occasion was taken from Feoffments to Uses For remedy in which Cases the Chancery was fled unto With this agrees Sir Henry Spelman in his Glossary pag. 107. at the lower end Doctor and Student fol. 98. Sir John Davy's Rep. in his Preface Mr. Hunt's Argument for the Bishop's Right c. pag. 144. And to prevent mistakes herein it must be observ'd That the word Equity hath been very anciently used long before this Jurisdiction began in Chancery but not in a Contradiction or in Opposition to the Common Law of the Land as now it is but either in a mild and merciful Expounding of the Law by the known and sworn Judges of the Law or as synonimous and signifying the same thing as Law Justice and Right For the Laws of England were not looked upon then as being like the Laws of Draco Sanguinary and Cruel and Rigorous but merciful and equitable in themselves and so expounded and administred by the Judges of the Common Law Mulcaster the Translator of the Chancellour Fortescue being a Student of the Common Laws of England in the Reign of King H. VIII could readily observe to his Reader from his Study of those Laws and from the Arguments used by his Author the Excellent Sir John Fortescue Easdem nostras Leges non solum Romanorum Caesarum sed omnium aliarum Nationum Constitutiones multis parasangis prudentiâ Justitia equitate praecellere facilè perspicias See his Preface Non quod principi placet Legis vigorem habet non quicquid de voluntate Regis tho his Will be not Arbitrary neither but guided by Discretion and tho he define secundum aequum bonum sed quod Magnatum suorum Concilio Regiâ authoritate praestante habita super hoc deliberatione tractatu rectè fuerit definitum So writes Bracton Lib. 3. Cap. 9. fol. 107. and so Britton Sir Gilbert Thorneton Ch. Justice in the time of King E. I. and Sir John Fortescue Chief Justice and afterwards Chancellor These invincibly prove the Nature of our Laws The Kings of England were from the first Foundation of the Government Sworn to observe the old known Laws of the Realm which were called Usus Consuetudines Regni and that they would not suffer any Innovasion which was often attempted by the Pope and his Clergy who endeavoured to introduce into this Realm the Civil and Canon Laws King Henry I. writing to the Pope upon such an occasion tells the Pope stoutly Notum habe at Sanctitas vestra quod me vivente Usus Regni Angliae non imminuentur Et si ego in tanta medejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur And all the Nobles of England by Consent of the Commons wrote to Pope Boniface upon the same occasion Non permittemus tam insolita tam indebita Dominum nostrum Regem etiamsi vellet facere seu quo-modo-libet attemptare The Lord Chancellor and Lord Keeper is also Sworn to do Right to all after the Laws and Usages of this Realm not secundum aequum bonum nor other Rules of Equity 2 E. 3. fol. 20. It is said in that Book by the Chancellor sitting in the Chancery and speaking of that Court This says he is a place of Equity where we grant a Writ to every one that Sues for his Inheritance So that to issue out Writs as Officina Brevium is by the Chancellor's own acknowledgment a proper work of Equity It seems to be the only use of the word Equity at that time 2 Instit. 53. The Civilian Vinius in his Comment upon Justinian's Institutes pag. 20. Nomen Aequitatis says he duplicitèr accipitur vel in genere pro aequo quod cum omni jure conjunctum est vel in specie pro eo quod est à Jure Civili diversum Omnibus Legibus aequitas inesse creditur Nomenque juris non meretur quod ab omni Aequitate destitutum est He mentions no Equity contrary to Law or to Controul the Law nor any other than what was to be exercised by the very Judges of the Law themselves in all Cases that came before them Plowd Comment 466 467. In the Case of Eyston and Studde it is said No Makers of Law can forsee all things that may happen and therefore it is convenient that the fault be reform'd by Equity This the Chancery-men will catch at as making much for their practise of relieving in such unforeseen Cases where the Law looks severe and rigorous But the Case cited proceeds further and makes not at all for the Chancery if it be heard out And the Sages of our Law have deserved great Commendation says that Case in using Equity in Cases of Rigour in the words of a Law for by that they have mollified severe Texts and have made the Law tolerable Who are meant generally in our Law-Books and Arguments by the
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
any Case and resorting to another Court without consulting with Almighty God And in Cases of Difficulty of expounding of our Law or supplying any defect in the one Case we must have recourse to the Supream Court and in the other to the Legislative Power The Judaical Law stoops so low and is so precise and singular as to tell them what might not be taken as a Pledge what Number of Stripes might not be exceeded upon punishing an Offender That Law as Moses says of it 30 Deut. v. 11. 14. was not hid from them but very evident as the Marginal Note says so that none could pretend ignorance It was near unto them Lex erat Domina rectrix populi Israelis says Melancthon in his Chronicle The Lord Chief Justice Hale in his Preface to the Abridgment of Rolls speaking in Commendation of the Common Laws of England says These are not the product of the Wisdom of some one Man but of the Wisdom Council Experience and Observation of many Ages of Wise and Observing Men They are the productions of much Wisdom Time and Experience Again says he The Common Laws of England are more particular than any other Laws and this prevents Arbitrariness in the Judge General Laws leave a great Latitude to Partiality Interest and variety of Apprehensions to misapply them And after all this Wisdom Certainty Particularity and mighty Caution to prevent Arbitrariness shall they be all made Subject to the Sudden and Arbitrary Opinion of any one Man to Controul these Laws under a pretence of Equity against the Severity and Rigour as they term it of these Laws Justitia est aequalitas non quae nobis videtur sed quam Lex ordinat says Zenophon speaking of a Decision of a Controversie made by Cyrus amongst the Youths when Cyrus himself being a Youth was chosen a Judge amongst them But Cyrus not observing the Rule of Law received Correction for it Quod docet says Zenophon leges ante-ferendas esse propriis opinionibus That the Common Law and the Laws of the Land are contra-distinct from Equity Proceedings and that the Proceedings in Equity are not comprehended under the general words of the Laws of the Land or the Common Law appears by many Authorities and by the several Petitions of the Commons against the undue Proceedings of the Chancery as 2 H. 4. Numb 69. There the rightful Laws of the Land anciently used are distinguish'd from the Proceedings by Writs or Letters under the Privy Seal in Chancery so 4 H. 41 Nu. 78. 3 H. 5. Nu. 46. It was said with great Meekness Moderation and Prudence by that good natur'd Gentleman and very learned Person when in his height which he deserv'd the Lord Keeper Bridgman in the Case of Fry and Porter in Chancery being assisted by the two Ch. Justices and Ch. Baron If I were said he of another Opinion yet I would be bound by the Opinion of my Lords the Judges and doubtless he was in the Right it being in a matter of Law wherein not himself but they were the sworn and proper Judges See the Modern Reports Printed in 1682. fol. 313. 22 Car. 2. but a late Lord Chancellor followed not this Example Now to satisfie the highest Judicature the House of Lords that upon several Grounds and for several Reasons a Prohibition by Law might be granted by the Court of King's-Bench and to induce the Lords so to declare to whom that properly belongs which will be of great use for the future after so long a disusing of it I shall with the favour of the Lords cite these following Authorities and when such Prohibitions are granted an Appeal or Error lies before the Lords upon it so that the Lords do not part with any of their Jurisdiction by it Fitzh Natura Brevium fol. 138. Letters B. C. Crok Jac. 335. Heath versus Ridley Rolle's 1 Rep. 252. If a Man sue in any Court a Plaint of Detinue for any Charters that touch and concern Freehold if it be not in the Court of Common Pleas by Writ of the King where what concerns Freehold ought to be Sued the Party may Sue a Prohibition to forbid it The words any Court must undoubtedly comprehend the Chancery Court of Equity But yet more plainly in that point see the form of that Prohibition viz. Cum placita de detentione Chartarum sive Scriptorum Liberum Tenementum tangentium in aliquibus Curiis quae Recordum non habent secundum Legem Consuetudinem Regni nostri sine Brevi nostro Placitari non debent c. 4 Instit. of Sir E. C. fol. 71. It belongs properly to the Court of King's Bench by granting Prohibitions to Courts Temporal to keep them within their proper Jurisdiction And in the 2 Instit. fol. 601 602 615. in answer to the 21th Article the Temporal Courts must always have an Eye that the Ecclesiastical Jurisdiction usurp not upon the Temporal and fol. 618. at the upper part of that folio the Judges are bound by their Oaths to grant Prohibitions and in the same 2 Instit. fo 607. at the end of the Answer to the 10th Object that Prohibitions are not of Favour but of Justice to be granted this is affirmed by all the Judges Hooker in his Ecclesiastical Polity pag. 26. stoutly affirms That for the manifestation of the right of Governing the assent of them that are to be governed seemeth necessary and pag. 27. he further asserts That all publick Regiment of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between Men. If so then it ought not to be assumed meerly by a Man 's own Will and Pleasure or without any lawful ground and against the known Rules of Law Thus much for the Title and Right of Administring Justice then as to the manner of the Exercise of it when it is so assumed it is most commonly suited to the Usurped Right and Title And therefore Learned Hooker proceeds further to speak also to that point ibid. To live says he by One Man's Will is the Cause of All Men's Misery This says he constrain'd Men to come to Laws that all Men might see their Duties before-hand and know the penalties of Transgressing But if under the specious pretence of the Laws being in some Cases rigorous and of relieving against that Rigour by the wide Rule of Secundum aequum Bonum it shall be in the breast of One Man of great Power and in great favour to dispense with those Laws or to Judge according to his Discretion by an Absolute and Arbitrary and Dictatorian Power What becomes of my best Birth-right my Freehold and Inheritance which I have in the known Laws of England And what becomes of my property which that known Law gave me By which known Law I squared my Actions and Affairs and thought my self secure by it and my Self my Family and Posterity well provided for And after all because I could not divine
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