c. The Kings Laws the Laws of the Twelve Tables the Civil Law Laws made by the consent of the People or Decrees of the Senate and therein he was not absolute as in the other But out Chancellor or Keeper and their Praetor do do differ very much for the Praetor would at his Entry into that Office propound and publish certain Edicts which were Principles and Fountains out of which he would derive his Decrees but what Rules or General Notions the Lord Chancellor or Lord Keeper in England doth assign unto himself for Limitation of Equity and direction of his Conscience those lie hid and concealed in his own Breast so that neither the Man of Law nor Equity is able to inform his Client what is like to become of the Cause and consequently no man is able to know what is his own so that it may be said of this great Officer arm'd with this great Power as was said of Jeremiah's Figs Jer. 24.4 Those that were good were very good but those that were evil were exceeding evil For that Power if it be used according to the true intent and design of it is of Excellent use Optima corrupta sunt pessima but if abus'd it is the greatest oppression imaginable and that that Power hath been abused will appear by the next Section SECT V. Of the Corruptions and Mistakes of some Great Chancellors I Find in the Journal Book of the Lords House in the year 1620. and in the 19th year of King James that on the 19th of March in that year a Message was sent from the Lower House to the Lords importing That they had found Abuses in certain Eminent Persons about which they desired a Conference with their Lordships that such course might be taken as might stand with the Honour and Dignity of a Parliament which was agreed to by the Lords and the Conference was appointed to be that afternoon and the next day it was Reported to the Lords by the Lord Treasurer That at the Conference was deliver'd the desire of the Commons to inform their Lordships what they had found in their Inquiry after the Abuses of the Courts of Justice where after having highly commended the incomparable good parts of the then Lord Chancellor and magnified his place from whence Bounty Justice and Mercy were to be distributed to the Subject with which he was wholly Intrusted They declared that the Lord Chancellor was Accused of great Bribery and Corruption committed by him And instanced two Cases one concerning one Christopher Awbrey and the other concerning one Edward Egerton As to Awbrey the matter was That He having a Cause in Chancery between Him and Sir William Brunker Awbrey feeling some hard measure was advis'd to give the Lord Chancellor 100 l. which he deliver'd to his Council Sir John Hastings and He to the Chancellor but notwithstanding the business proceeding slowly Awbrey writ several Letters and deliver'd them to the Lord Chancellor but could never have any Answer from his Lordship but at last delivering another Letter his Lordship told him if he importun'd him he would lay him by the Heels As to Egerton's matter it was set out at large at the Conference and will appear by the substance of Egerton's Petition to the Lords the effect whereof amongst other things is as followeth That the said Edward Egerton being Vnmarried and Sickly he settled his Estate to the use of himself and the Heirs Males of his Body and for default of such Issue the Remainder to Sir John Egerton and his Heirs which Settlement was voluntarily made without any consideration paid for the same and with Power of Revocation and that Sir Rowland Egerton Son and Heir of the said Sir John Egerton had got the said Settlement into his hands and all the Petitioners Writings and that the late Lord Chancellor Elsemere had Decreed that Sir Rowland Egerton should have the manner of Wrinehal and Haywood Barnes being a great part of the Petitioners Inheritance worth 600 l. per Annum without any cause of Equity contain'd in the said Decree and that the Petitioner had made humble Suit to the Lord Viscount St. Albans then Lord Chancellor of England to have the benefit of a Subject to recover his Ancient Inheritance by Ordinary course of Law and that his Lordship took from the Petitioner 400 l. in Gold and 52 l. 10 s. in Silver Plate which Money was accepted of by the said Lord Chancellor saying withall That the Petitioner had not only Enrich'd him but laid a tye upon him to do the Petitioner Justice in his Rightful Causes and by great Oaths and Protestations drew the Petitioner to Seal an Obligation to his Lordship of ten thousand Marks to stand to his Lordships Award and that afterwards the Petitioner was divers times sent for by one Robert Sharpeigh then Steward of his Lordships Houshold and that the Petitioner was several times offer'd that if he would then presently pay 1100 l. in ready Money that is to say 1000 l. to his Lordship and 100 l. to Sharpeigh the Petitioner should have all his Lands Decreed to him which Money he could not readily pay and that afterwards the said Lord Chancellor did not only confirm unto the said Sir Rowland Egerton the Land which he then held of the said Petitioner's Inheritance being worth 600 l. per Annum but took away more Lands worth 15000 l. and Decreed the same to Sir Rowland Egerton who did not claim any Title thereto before the said Bond taken and Vnlawful Decree made and that he also Decreed the Bond should be Assigned to Sir Rowland Egerton And the Petitioner having spent 600 l. in Suits and being depriv'd of all his Evidences by the said Lord Chancellor and by the indirect practice of the said Sir Rowland He was likely to be utterly defrauded of all his Ancient Inheritance contrary to the common Justice of the Land unless reliev'd by their Lordships The Contents of which Petition the Petitioner made Oath to be true and he and Sharpeigh were further Examin'd touching the matter By the Journal of the Lords House for the 21st of March in the year 1600. It appears that there had been Information given to the House that there had been a Cause depending in Chancery between one Smithwicke and Wiche which was matter of Account and had been Referred to Merchants and the Merchants had Certified on Smithwick's behalf yet to obtain a Decree in the Cause he was told by one Burrough that was near to the Lord Chancellor that it must cost him 200 l. which he paid to the use of the Lord Chancellor yet his Lordship Decreed but one part of the Certificate Whereupon he treats again with Burrough who demands another 100 l. which Smithwick also paid to the use of the Lord Chancellor then his Lordship Referr'd the Accounts again to the Merchants who Certified again for Smithwick yet his Lordship Decreed the second part of the Certificate against Smithwick and the
too much as I conceive of the King's Power but not this of referring the examination and correcting of erroneous and unjust Decrees in Chancery to fit persons for that purpose I am sure 't is not prohibited by that Statute by any particular words nor are there any general words therein contain'd that according to the rules of Law and construction of other Statutes can be construed to extend to the taking away of that course of proceeding For the clearing of which point it is requisite that the Statute should be taken strictly into consideration the prohibiting part whereof is as followeth Be it Ordaiued and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging to or exercised in the same Court or by any Judges Officers and Ministers thereof be from the first day of August 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellor nor the Kéeper of the Great Seal of England the Lord Creasurer of England the Kéeper of the Kings Privy-Seal or President of the Councel nor any Bishop Temporal Lord Privy-Councellor Judge or Justice whatsoever shall have any Power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or do any Judicial or Ministerial act in the said Court and all and every Article Clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given limited and appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any proccedings to be had or made in the said Court or for any matter or thing to be drawn into question examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the Power and Authority thereby given unto it be from the said first day of August repealed and absolutely revoked and made void And be it likewise Enaded That the like Jurisdiction now used and exercised in the Court before the President and Councel in the Marches of Wales and also before the President and Councel established in the Northern-parts and also in the Court commonly called the Court of the Dutchy of Lancaster before the Chancellor and Councel of that Court and also in the Court of Exchequer of the County-Palatine of Chester held before the Chamberlain and Councel of that Court the like Jurisdiction being exercised there shall from the first day of August 1641. he also repealed and absolutely revoked and made void any Law Prescription Custom or Usage c. to the contrary thereof in any wise notwithstanding and that from thenceforth no Court Councel or place of Judicature shall be erected ordained constituted or appointed within the Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath haen used practiced or exercised in the said Court of Star-Chamber Be it likewise Declared and Enacted by the Authority of this present Parliament That neither His Majesty nor His Privy-Councel have or ought to have any Jurisdiction Power and Authority by English Bill Petition Article Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Dereditaments Goods or Chattels of any of the Subjects of this Realm but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law These are all the prohibitory words of that Statute I will not say any thing of the reasonableness or unreasonableness of it but that it was made in 41. But taking it as it is I think it deserves no further construction to disable the King from performing his Oath that is to see that Justice should be done to his Subjects than the very express words will bear and for the right understanding of it it is to be considered in all the parts thereof without relying on any one single Clause alone and thereby it will appear how far the whole may be construed to take away any Power that was before in the King It takes away the Star-Chamber and the Power thereof and prohibits the erecting of any Court of the like Jurisdiction by express terms but by so doing it meddles not with this Power of the Kings to refer the examination of an unjust Decree made in Chancery by One man to Three or Four or more men fit for the purpose neither in terms nor in construction And it is a great argument that it was never intended to be taken away by that Act because it is not taken away by express words for if it had been intended to have been taken away it might have been express'd by particular words it being no new invention since the making of that Act but a course long practis'd before that Act was made as appears by what is aforesaid and that without the least contradiction but on the contrary with the greatest approbation that could be viz the approbation and direction of the Lords House in Parliament at one time and of all the Judges of England at another time as is aforesaid and of all the great Writers of the Law of those times so that there was then no apparent reason for taking it away The next part of the Statute and that which seems most to oppose me is That the King nor His Privy-Councel have or ought to have any Jurisdiction Power or Authority by English Bill Petition Article Libel or any other arbitrary way to examine draw into question determine or dispose of the Lands Tenements c. but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law For the understanding of this it is to be remembred the King for the execution of the Law had two sorts of Powers in Him by the Common-Law He had Power and Authority thority in Person to hear Ordinaria Jurisdictio pertinet ad Regem Bract. fol. 108 412. Ordinaris Juris dictio remanet cumipso Rege Bract. fol. 55. determine and dispose of the Estates of his Subjects upon Controversie arising between them and complain'd of to him and this is properly called Jurisdiction Designatio Justiciariorum est à Rege Jurisdictio vere ordinaria à Lege Co. 4 Inst fo 74. and he had also designatio Judiciorum a power of nominating and appointing Judges under him to hear determine and dispose of the Estates of the Subjects touching which any Controversie did arise and was brought before them to be decided as appears in the beginning of this Treatise Sect. 2. per tout So that if he should be excluded himself by this Statute from hearing and determining in
that Court was at height as may appear by the forecited Presidents so that it never was a part of the Jurisdiction or practice of that Court and therefore declared by the said Provisoe not intended to be prohibited by the said Act and as to the King the Provisoe says He is to be restrained but from restraining and imprisoning by his own personal command he may do every thing else that he could have done before He may hear and determine in person if he pleases as he could have done before and he may appoint all such Judges or Referrees to all purposes as he could have done before But as to the Warrants of Imprisoning if any cause for such there should be he is to leave that to his Ministers and the King if he thinks fit upon complaint to him made of Injustice or other Error done by his Chancellor or Keeper may order his Chancellor to order the parties concern'd to appear before the King in person and the King himself may require his Chancellor or Keeper to be present and his Majesty may call others to his assistance whom he may confide in for just and equitable advice and may determine what to him seems meet in the Cause upon conference with them this being for advancement not delay of Justice and if the Chancellor or Keeper doth not use the coercive part of Imprisonment and other Process of the Court of Chancery to compel Obedience to such determination I conceive he doth not do his duty I mention this not that I think it 's absolutely necessary the King should trouble himself to hear all matters in person but I humbly conceive it not amiss for his Majesty sometimes to use his Power in Chancery as well as at Councel-board lest for want of using his Power he may be in danger of losing it and consequently his esteem in the eyes of the people may be lessen'd whilst every of his acting Judges the Chancellor or Keeper especially command respect from their Friends and fear and trembling from their Enemies I am sure Solomon's giving Judgment in the case of the Harlots gain'd him more esteem not only amongst his own Subjects but all the World over than any one other act of Government he did in all his Reign and the Kings not being exactly skill'd in the Law or the formal Rules thereof as a profess'd Lawyer should be should not at all hinder his undertaking it sometimes for a man but of common sense having heard the Case put the proofs made and the Arguments of indifferent men not byass'd Advocates or Councel only may easily discern what Judgment is fit to be given in Equitable Causes and the King hath almost infallible helps He hath his Lords Spiritual and Temporal He hath always at his call twelve Judges men skill'd in the Laws and sworn lawfully to counsel the King in all matters These or some of them he may command to attend him at such Hearings and may command them to give their opinion of the matter according to the nature of the Cause and according to the best of their judgments and the King at such hearing may give or cause to be giv'n a Sentence or Judgment according to the Opinion of the majority of them and this course is the best and was the old way of judging of Equity and if us'd some times would make Chancellors and Keepers more regard what they do But if the King should not be minded to meddle in person with determining any Causes his referring of the examination of Chancery-Decrees to persons fit and able of judgment and knowledge to do it may suffice better then to leave it wholly to his Chancellors single judgment For securius expediuntur negotia comissa pluribus plus vident oculi quam oculus There is at this day a standing Commission enroll'd in Chancery to all the Judges of Westminster hall the Master of the Rolls and the other Masters in Chancery impowering any Three of them whereof the Master of the Rolls or one of the Judges to be one in the absence of the Lord Keeper to hear and determine Causes and that is not thought to be prohibited by any Statute And if the King hath Authority and Power to appoint Commissioners for the Chancellor or Keepers ease why cannot he also give power to Commissioners to rectifie his Decrees when he mistakes The Chancellor or Keeper of the Great Seal is but the King's Deputy during pleasure 9 Rep. 99. and a Grant of that Office for life is void Cooke 4 Inst fol. 87. Upon the whole matter I must conclude I can apprehend no warrantable objection can be made against this sort of proceeding or that any Statute doth or intended to take it away so that I shall take that point for granted That it is very lawful for the King to appoint Referrees or Commissioners to rectifie Chancery-Decrees or Decrees of any other Court of Equity The next thing to be considered is Whether any of the King's Privy-Councel may be Referrees or Commissioners for that purpose notwithstanding the said Statute For they are men of so great Honour Knowledge and Integrity and of such Fortune and Estates as to scorn Bribery and therefore very fit to assist in this matter and I hold They may for the prohibition of the Act extends to their not acting as being only and barely Privy-Councellors It doth not say Privy-Councellors shall not act by virtue of any other Authority And this thing proves it self plainly in the Case of the now Lord Keeper and Lord Chief Justice of the Common-Pleas who are both of the Privy-Councel yet examine draw into question determine and dispose of the Lands Tenements Goods and Chattels of the Subjects with a witness by virtue of another Authority derived from the King and if They may do it why may not any other of the Privy Councel act by a lawful Authority in those matters as well as They The next thing considerable is if the Lord Chancellor or Keeper ought to command performance according to the course of the Chancery of what such Referrees do order by virtue of such Reference when he himself is not one of them as well as when he is and I hold he ought First for whatever Order is made in the House of Lords upon determining an Appeal from Chancery-Decrees it is sent to the Chancery to compel Obedience thereto and in this respect I conceive the House of Lords are but the Kings Referrees and do legally and truly derive their Authority from the King as is prov'd by the due Proceedings upon Writs of Error and the ancient form of Petitions against Chancery-Decrees before-mentioned So that such Referrees do act by Authority derived from the King as well as the House of Lords in Parliament And further the practice hath been for the Lord Chancellor or Keeper to pursue what is done by such Referrees for what was resolved by the Judges upon the References mentioned in Sir Edw. Cooke