Rigour of the Law by Equity in their own Persons alone and afterwards did delegate the same Power of Equity to a single Person the Chancellor who as they phrase it hath the dispensing of the King's Conscience as well as the Custody of it And that to the King alone in such Cases an Appeal doth lie which by what hath been already said is manifestly untrue as shall yet be further made out Sir John Fortescue who was a Lord Chancellor in his Book De laudibus Legum Angliae pag. 64. says to Prince Edward Son to King Henry VI proprio ore Nullus Regum Angliae Judicium proferre visus est tamen sua sunt omnia Judicia regni licet per Alios ipsa reddantur Just as all our Laws are said to be the King's Laws not that he hath the sole Legislature as Sir Robert Filmer doth weakly or rather wilfully tho groundlesly infer but Denominatio sumitur à Majore as is most frequent in common Use it is but an Embrio till he quicken it by passing the Bill In the next place Let us enquire at what time and by what occasion this Jurisdiction of the Chancery in Equity began by which it may appear whether it be Entitled to it either by Prescription or by Act of Parliament for Non datur Tertium The same Proofs and Authorities will serve to manifest these â—…7 H. 7. Keilway 42. b. by Vavasor The Sub-Paenâ began in the time of Edw. III. and that says he was against the Feoffee upon Confidence that is to Uses Mr. Lambert who was a Master of the Chancery Sir Edward Coke 2 Instit. 552 in his Archeion pag. 72 74 75. says that the Kings used to refer matters in Equity to the Chancellor from whence the Chancellor was anciently Styled Referendarius as was noted before or to him and some other of the Council And tho' this doth not as he observes plainly erect any Court of Equity yet as he supposeth it is the laying the first Stone of the Chancery Court and pag. 73. That in the time of Edward III. it was a Newly Erected Court which may be understood of its Latin Pleas. The Book called The Diversity of Courts written in the Reign of King Edward III. Treats of the Jurisdiction of the Chancery according to its ordinary Power which are the Latin Proceedings or by the Rules of the Common Law but says nothing of that which the Chancellor holdeth in Equity Et quod non invenis usquam esse putes nusquam It was enabled to deal in some special and particular Cases by Parliament which were but Temporary neither which proves that in such or in the like Cases the Chancellor could not meddle without the help of Acts of Parliament Nor were those Cases referred to his Equitable or Arbitrary Power neither as some misapprehend For Sir Edw. Coke 4 Instit. fol. 82. says That Acts of Parliament giving Power to the Chancellor to hear and determine Causes in Chancery are ever intended of the Court of Record there proceeding in Latin Secundum Legem consuetudinem Angliae which Power is not contested And Mr. Lambert pag. 74. ut supra says he does not remember that in our Reports of the Common Law in which Reports under the Titles of Conscience or Sub-Paena in Fazh or Brook's Abridgment many Cases of Equity in the Chancery may be found there is any mention of Causes before the Chancellor for help in Equity but only from the time of King Henry IV. in whose days by reason of those intestine Troubles between the Two Houses of York and Lancaster Feoffments to Use did either first begin or first grew common for Remedy in which Cases chiefly the Chancery Court was then fled unto No Book-case says that great Champion for the Common Law Sir Edward Coke 2 Instit. 552. nor Reports of the Law make any mention of any Court of Equity in the Chancery used before or in the Reign of King Henry V. but they speak of the Chancellor's ordinary Jurisdiction which is at the Common Law and by Latine Proceedings which proves they were very rare at that time The few Causes heard by the Chancellor in the Reigns of King Henry VIth and Edward IVth in Equity by English Bill are most of them concerning Uses of Land And how great an Invasion that new Invention of Uses was upon the Laws of England both the Common Law and the Statute Law and how pernicious they have been to Men's Estates and what occasion they have been of Contention and multiplying Suits shall appear by what follows See Doctor and Student pag. 71. to that purpose Sir Coke's 2 Instit. 553. affirms That no Act of Parliament printed or unprinted gave the Chancellor any power to hold any Court of Equity The Stat. of 36 Edw. III. Cap. 9. without question says that Grave and Reverend Judge and true lover of his Nation refers to the ordinary power of the Chancellor but gives him no shadow of any Absolute Power meaning a Power of Equity See the 2 Instit. fol. 553. See that remarkable Case of Sir Richard le Scrope in Sir Cotton's Abridgment of the Records of the Tower pag. 351. Numb 10. exceeding pertinent and useful in many respects to our present Enquiry and gives great light to us in many things It is mentioned also in Coke 2 Instit. 553. it happened Anno 17 of King Richard II. John de Windsor complain'd by Petition to the King against Sir Richard le Scrope and Sir John Lisley for detaining divers Mannors in Cambridgshire from him to which as he alledged he had a Right and Title Both Parties submitted the matter to the King's Arbitration The King committed it to the Council not to the Chancellor alone the Council decreed it for Windsor then Plaintiff under the Privy Seal they sent to the Chancellor to confirm that Decree or Award under the Great Seal which was done and a Special Injunction to Sir John Lisley and a Writ to the Sheriff to Execute it A strong Case in all its Circumstances Sir John Lisley one of the Defendants not satisfied with the Decree or Award Petitions the King in Parliament that is Appeals from it and prays the Matter may be determined at the Common Law notwithstanding the Decree or Award so confirm'd The King by Privy Seal Orders the Chancellor to Supersede the Injunction and the Writ and Decree The Decree was revers'd and both Parties order'd to stand to the Common Law and Windsor's Petition was dismissed Sir Edward Coke says that this Decree so made by the Council was the first Decree in Chancery that he could find and that upon a deliberate hearing of the whole matter by the Lords in Parliament it was adjudg'd that Sir John de Windsor should take nothing by his Suit but stand to the Common Law that is according to our now usual Language His Petition or Bill in Equity was dismiss'd and the Parties sent to the Common
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.
Law I desire that both these Authorities last cited may be compared together viz. Sir Cotton's Abr. and Sir Coke's 2 Instit. 553. the one gives light to the other Juncta juvant This Instructs us in the method of Proceedings in Equity used in the time of King R. II. and most likely in the times preceding Not to the Chancellor alone but to the King himself to be referr'd to the Councel And the Case of Sir Richard le Scrope was in a matter where there was remedy at Law so that they were out of their way in Petitioning to the King in it and therefore the Decree was revers'd by the Lords in Parliament before whom the Appeal did properly lye nor would the Lords themselves determine it upon the Merits of the Cause viz. who had the right but referred the Parties to the Common Law to the right course and yet it was a Decree made by the Submission of all Parties to the Arbitration So ready were the Lords at that time to do right to the Common Law Sir Edward Coke says this was the first Decree made by the Chancellor in the Chancery who did as it seems in limine titubare stumble at the very Threshold which some say is ominous The Proceedings in this Case of Sir Richard le Scrope was as I find when Thomas Arundel Bishop of Ely and afterwards Archbishop of Canterbury was Chancellor who no doubt did much influence the King and Council in making the Decree They have been Churchmen and divers of them of the highest rank Cardinals who are upon good ground supposed to be the first Setters up and promoters of this absolute Power in Chancery the Chancellors generally in those elder times being of the Order of the Clergy And they began as is usual in beginnings with great modesty and to exercise their Power in some few Cases which failed of ordinary help and when Parliaments were not so frequent as formerly to whom recourse should have been and who would have censured such assuming of new Jurisdictions as they afterwards very frequently did And the Setters up of this new Jurisdiction would not at first adventure to do it by One single Person alone tho never so high but with the Concurrence of the Judges and they too not sent for into the Chancery to attend and assist the Chancellor but those new Cases of Equity were sent into the Exchequer Chamber where the Chancellor himself resorted to the Judges with their Causes in Equity and these are many of them reported in our Year-Books of those times And those Causes were constantly determin'd by the opinion of the Judges and this method took off the Judges whose Superiour the Chancellor was in Dignity and Grandeur from opposing that new Jurisdiction by granting Prohibitions to stop the Proceedings of the Chancery in such Cases as it was their Duty to have done See Mr. Selden's Notes upon Fleta How the Clergy who anciently had their Sole dependence upon the Bishop of Rome and held themselves not Subject to the Temporal Power still promoted and endeavoured to introduce the Civil Law into this Realm but yet were still withstood by the Lords and Commons who were always hearty Friends to the Common Law Sir Coke's 2 Instit. fol. 626. at the end of that folio it is said in the Indictment against Cardinal Wolsey and charged upon him that he intended Antiquissimas Angliae Leges penitùs subvertere enervare Universumque hoc Regnum Angliae ejusdem regni populum Legibus Imperialibus vulgò dictis Legibus Civilibus earundem Legum canonibus imperpetuum Subjugare subducere c. Cardinal Wolsey's being in the height of Favour and Authority with King Henry VIII hated both Parliaments and the Common Laws and he was the means that but one Parliament was holden in Fourteen Years The Common Law was the true Natural and Original Law of England used ever since the departure of the Romans and brought in by the English Saxons again Qui suis tantummodò quas secum è Germanià whether they had transplanted them attulerant Moribus usi sunt only their ancient Customs and no other Caesarei Juris says learned Selden usus plane reperitur Nullus per Annos amplius Septingentos more than 700 years There was no Chancery-Law to determine matters of fact much less titles of Freehold by Depositions of Witnesses only or by an Absolute or Arbitrary Power in all that time of 700 years No Man was suffer'd to have a Civil Law Book in his keeping King Stephen by his Edict did forbid it The Saxons Danes and Normans owned no other Law than that Law which Anglorum Commune vocitamus says the famous Selden in his Dissertatio ad Fletam pag. 502 503 505 506 508. And Johannes Balaeus tells us that Theobaldus Cantuariensis Archiepiscopus quasdam Leges in Angliam attulerat sed eas ut Reipublicae nocivas Rex Stephanus perpetuo Parliamenti Decreto damnavit delevit incendi fecit The Common Law was in King Stephen's time and before says Selden the Study of Men that were otherwise Learned too Sed Moribus Majorum tantum patrioque utebantur illi Jure qùod ante ad nostra usque tempora Angliae Commune vocitatur and their Studies were furnished with the Presidents of Judgments and Copies of Reports of Law-Proceedings like those of our Year-Books and no other were cited in their Courts And the Students and Residents at the Inns of Courts who afterwards were the Countors or Pleaders were not Clerks or Sollicitors as many now adays are to the declining of that Noble Profession But the Sons of Noble Men and of the best of the Gentry as we read in Sir John Fortesâ—…ue in his Treatise De Laudibus Legum Angliae Juris Anglicani says Excellent Selden ut Supra 537. quod Commune vocitamus quae Gentis hujus Genio ab intimâ Antiquitate adaptatum fuit Singularis aestimatio atque inde non immeritò in eodem adhaesio constans sane pertinax In that great question says Selden in his Dissertation ib. 539. concerning the right of Succession to the Crown of Scotland referred by all Parties and Pretenders to the Decision of our King Edward I. Anno Regni 19. Anno Dom. 1292. about which they met at Norham in the Bishoprick of Durham It was Debated as a Praeliminary whether it should be judged and decided by the Law of England or of Scotland or the Caesarean or Civil Law as being the Jus Gentium see Riley's Placita Parliamentaria 143. in the middle of that Page our King Edward I being the Soveraign or Superiour Lord of Scotland It was concluded before Roger de Brabazon a Judge of the King's-Bench Sir Edw. Coke says Ch. Justice 2 Instit. 554. the King 's Delegate or Substitute for that Great and Noble Occasion That the Caesarean or Civil Law should by no means be allowed of Nè inde Majestatis Anglicanae Juri
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
AN ENQUIRY INTO THE JURISDICTION OF THE CHANCERY IN Causes of Equity I. Upon what Ground and Foundation that Jurisdiction is Built II. At what time the Chancery began to Exercise that Jurisdiction and upon what Occasion III. How Modest and Moderate the Exercise of it was at first IV. How wonderfully it is Grown and Enlarged And V. What is the best Remedy for Restoring and Maintaining the Common Law Humbly submitted to the Consideration of the House of Lords to whom it belongeth to keep the Inferiour Courts within their Bounds By Sir ROBERT ATKYNS Knight of the Honourable Order of the BATH To which is added The CASE of the said Sir Robert Atkyns upon his Appeal against a Decree obtained by Mrs. Elizabeth Took and others Plaintiffs in Chancery about a separate Maintenance of 200 l. per Annum c. London Printed in the Year 1695. TO THE RIGHT HONOURABLE THE LORDS Spiritual and Temporal IN Parliament Assembled My Lords THE following Treatise together with the state of the Case annex'd to it is Humbly Presented to your Lordships to whom it properly belongs the Subject matter of both relating to that Supream Jurisdiction in Cases of Appeals from Courts of Equity which is exercis'd by your Lordships as being the last Resort Your Lordships being also the true and just Moderators in all Disputes between other Courts in points of Jurisdiction you having the Coercive and Directive Power of keeping the rest of the Courts within their due Bounds set them by the Law and Constitution of the Nation that they do not Overflow their Banks nor Usurp nor Encroach one upon another Your Lordships besides have a more peculiar Right and Title to the Service of the Composer of this Treatise who hath had the Honour to serve your Lordships for some Years and in several Parliaments in an Eminent Station and with a large Testimony and favourable Acceptance from your Lordships as appears by that hearty and kind Address which your Lordships made on his behalf besides his ordinary Attendance and Assistance as one of the Judges which he began about Four and twenty years since If what he hath written seem too free and plain he hopes he is excuseable the Necessity and Importance of the Case so requires And he may be allowed a more than common Zeal for the Common Law he having sat so many Years as a Judge in several of the Courts in Westminster-Hall he himself and his Three immediate Ancestors having been of the Profession for near Two hundred Years and in Judicial places and through the Blessing of Almighty God have Prospered by it His Great Grandfather living in the time of King Henry VII and they all have in their several turns undergone the Charge and Labour of Readers of Lincolns-Inn And your Lordships and your Noble Ancestors have always and upon many great Occasions constantly Testified a true and hearty Zeal for the Common Law of England as will largely be manifested by this Treatise and the Conclusion of the stated Case annexed to it The only Design of this Treatise being meerly to Assist and Serve your Lordships in your Discharge of that Mighty Trust reposed in your Lordships to whom the Treatise and Case is entirely submitted by My Lords Your Lordship 's most Humble And Faithful Servant Robert Atkyns AN ENQUIRY INTO THE Jurisdiction of the CHANCERY IN Causes of Equity c. IT cannot nor as to the present Occasion and Enquiry it need not be denied but that the Names of Chancellor and Chancery are very Ancient not only in Foreign Countries but even in this Nation both in the times of the Saxons and continued from thence down to our times But our proper business at present is to Enquire what those Great and High Names did at first import and signifie and what Change hath been introduced in their signification by process of time derived down to this present Age. Sir Henry Spelman that Learned Antiquary in his Glossary printed in the year 1687. pag. 109. gives us a Series of the Chancellors in this Nation and begins with Turketulus Chancellor to Edward the Elder as he is called in our History of the Saxon times in the year of our Lord 924. near 800 years since Rembaldus was Chancellor to Edward the Confessor Roll. Abr. Tit. Chancellor 1 part 384. Sir Francis Bacon sometime Lord Chancellor of England in his Resusâ—…itatio at the end of that Book sets down a Catalogue of our Chancellors beginning with Mauritius in the time of our William the First Anno 1067. And Dugdale in his Origines Juridiciales gives the same See Sir Edw. Cooke 4 Inâ—…tit 78. in the Chapter of the Chancery are the Names of several Chancellors n ancient times This shews the Antiquity of the Names but our business is to learn the Nature of them and what their Business and Employment was at first and when and how it changed Nomen ab Officio We may learn what the latter the Officium is from the Name so that the Nomen may be a true Notamen of the thing as it ought to be The Name of an Office or Employment generally imports the most eminent and noted part of the Employment though it consists of divers parts Cowel in his Interpreter upon the word Chancellor deduces it from Cancellare id est Literas vel scriptum line â per medium deductâ damnare Which as the word now in use with us is to Cancel or make void and it is performed by drawing cross Lines over the Letters Patents or other Writings to signifie they are made void and are to be of no farther use And this 't is likely was borrowed from the Lettices of Wood or Iron laid Croswise one over another to divide or enclose one part of a Room from the rest of that Room so that a Man might see through them within which Inclosure the Judge or Officer sate so as to be seen and spoken with but yet defended from the press of those that resorted to them As it is used in Churches where the Chancel is divided from the Body of the Church and the Clergy from the People in the first design of that partition And this rather relates to the place called the Chancery than to the Chancellor But from the resemblance of this partition the word is also applied to the Office or Duty of the Chancellor which was Cancellare to draw cross Lines over a Writing that is to Cancel it From hence it may be collected that at first the Chancellors principal Imployment was to Cancel Writings for he had his Name from it And Cowel cites Lupanus as testifying the same That the Name of Cancellarius was belonging to every Register who also was styled Grapharius a Scribe a writer of Writs or Actuary a Register of the Acts and Proceeding of a Court not a Judge but an Officer attending upon Judges Qui conscribendis Judicum actis dat operam It appears by Sir
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
fieret detrimentum And Selden speaking of the Civil Law pag. 540. ib. says about King Henry IIId's time Jus Caesareum was newly brought in Et à nonnullis maximè ex genere Hieratico proculdubio perquà m adamatnm atque prae Anglicano in pretio habitum See that admirable and right English Preamble to the Stat. of 25 H. VIII Cap. 21. What Laws only are binding to this Nation viz. none but those Laws which the People of England have taken at their free Liberty by their own Consent to be used amongst them as the customed and ancient Laws of this Realm originally established and none otherwise Not any new Rules devised ex re natâ at the Discretion of any one Man tho never so Great or Wise or Learned but never consented to by the Nation and from the first appearance of them declaim'd against by several Acts of Parliament and by a multitude of Petitions of the whole Commons in Parliament complaining of their Process as a Novelty began at first but about Richard II. or Henry IV. time a time of great Troubles See to this purpose Cott. Abr. 2 H. 4. Nu. 69. 3. H. 5. Nu. 46. 9 H. 5. Nu. 25. Roll. Abr. 26. par 1. fol. 371. D. nu 2. Yet let me here observe one thing more by the way namely that from these beginnings here of the Chancellor's Power tho so restrained as we see by the several particular Acts of Parliament that gave them Occasion was taken afterwards to Engross the Power of Equity and to take it from the highest Court of the Nation And those that plead for it do without all sence or reason ascribe it to some few Acts of Parliament that referred some particular Cases to him as fairly giving him the power whereas those Acts of Parliament manifestly shew the contrary Utcunque verò says Sir Henry Spelman se res habuerit fiquidem vel Exutis sociis vel cedentibus shaken off sitting silent or weary of being Mutes apud ipsum Unicum meaning still the Chancellor remansit tandem Jurisdictio It so came to pass that he could not well tell how that the Chancellor grasp'd it all and shook off his Associates or they prov'd Deserters And one Act of Parliament more Sir Henry Spelman mentions viz. 36 E. 3. Cap. 9. as trusting the Chancellor singly but it hath been already shewn that the matter so intrusted by that Statute had no reference to Equity nor indeed to any Judicial power to be exercised by him but meerly as ministerial rather directing Remedies by Writs in order to a Decision by a Legal Course and by the Common Law He proceeds farther viz. Ascitisque protractis in Cancellariam pluribus quam Justum videbatur Populus meaning the Commons in Parliament ad candem cohibendam Legem rogat non autem tulit sed benignè à Rege responsum est as was wont mandaturum se id parciùs fieri quam priùs solitum This was 4 to H. 4. about which time the Chancellor first began to arrogate to himself this power as shall be more fully shewn hereafter See Sir Rob. Cott. Abr. pag. 410. 2 H. 4. Nu. 69. a Petition of the Commons against the very Original Process of Sub-Paena that it might no more be used and that the Subjects might be treated according to the rightful Laws of the Land anciently used see Rolles's Abr. part 1. fol. 370. more at large And that this Process was illegal appears by another Petition of the Commons 4 H. 4. Nu. 78. Roll's Abr. ut supra The Commons in their Petition 4 H. 4 Cott. Abr. Nu. 78. pray that the Suggestions made in Chancery may be tryed by a Jury and if they be found false that the Jury may give the Defendant damages And that the Plaintiff before he be allowed to take out a Sub-Paena may find sufficient Surety to answer such Damages which shews the good Opinion the Nation had of Juries The Petition of the Commons 4 H. 4. Nu. 110. intimates that all the Estates of the Realm were in danger by the Chancery-Proceedings and they pray remedy for God's sake It is very useful and pertinent also to set down what further Sir Henry Spelman mentions Simile quiddam says he agitatum ferunt in Parliamento Anno primo of King Henry VI. Sc. Neminem ad Cancellariam provocaturum cui duo Justiciariorum Regis non ferrent testimonium haud Subvenire Legem Terrae Two Judges of the Common Law which is call'd the Law of the Land in distinction from the Chancery-Rules were to make way for every Bill in Chancery by their first certifying that the Plaintiff had no Remedy at Law which was an excellent expedient and worthy to be made a Law by a short Act to be past for that purpose The Judges of the Common Law who are Sworn to maintain the Law were thought the most competent and worthy to be entrusted in it and not look'd upon as partial and unindifferent which is a Scandalous Reflection upon the Government and Constitution See the 2 Instit. of Sir Edw. Coke pag. 544. there is a Writ directed by King Edw. II. to the Judges of the King's-Bench in these words Vos Locum nostrum in placitis teneatis nostram praesentiam supplere debeatis and in the Case of Walter de Langton ib. fo 573. Contemptus ministris domini Regis facto eidem Domino Regi inferuntur says the Record in the 33th year of King Edw. I. It appears that the Chancellor could not Act no not in many ordinary Matters till enabled by the Parliament See 14 E. 4. fo 1. Brook Abr. Tit. Brief plac 483. and then his Power was limited and he alone was not entrusted but he had an Association of others Quantum mutatus ab illo It farther shews when he began to enlarge and assume a greater Power and how unwarrantable it was in his first Exercise of it not grounded upon any good Authority for we should have been sure to have heard of it in the King's Answers to the Petitions of the Commons against it as was constantly used upon such Petitions where there was any Law to warrant what was so complain'd of had there been any either Prescription or Act of Parliament the Chancellor being constantly the chief Person among the Tryers of Petitions in Parliament and framing the Answers of those Petitions in Parliament together with the Bishops Lords and Judges which of late hath been wholly disused And lastly it proves how early this new Jurisdiction of the Chanceries Proceeding in Equity was decry'd and exclaim'd against not only for the Abuses in the Administration of it but for usurping a Jurisdiction not founded upon any good Authority and carried on by the Potency and Greatness of the Chancellor Nor was there any the least pretence of any Prescription or Act of Parliament to support it Nor was it taken to be any part of the Law of the Land or of the Common Law tho
Sages of the Law but the Judges to whom by Law belongs the Construction of the Acts of Parliament and the pronouncing of our Laws See the 2 Instit. fol. 611. The Judges in their Answ. to the 16th Objection 614 618. the Judges only are to expound Acts tho they concern Ecclesiastical Jurisdiction Here is no need of a distinct Court of Equity Such a Case of Equity was that of Reniger and Fogassa the first Case in Plowd Comment tho determin'd by a Privy Seal it being in the King 's own Case concerning the Customs There is another Equity says that Case of Eyston and Studde in the Comment which differs much from the former and may be thus defin'd Equitas est verborum legis directio efficiens cum una res solummodo legis cavetur verbis ut omnis alia in aequali genere eisdem caveatur verbis As for instance the Stat. of 9 E. 3. Cap. 3. which gives an Action of Debt against Executors shall be extended by Equity to Administrators tho not within the words But this also is done by the Judges of the Common Law Here is no mention of a Chancery-Equity and it had been according to the right Rules of Logick no good Division if it had not taken in all the parts called the Membra Dividentia which ought to be Toti adaequata Keckerm Systema Logicae pag. 245. regula quarta Doctor and Student pag. 27 28. Equity is to be exercised in the mild and merciful Construction of a Law and in some Cases departing from the strict and rigorous words of a positive Law rather than oppress any Man by it which is not by appealing from that Law or from the Court where that Law is administred but resorting from the Letter to the true intent and meaning of the Law and the true mind of the Makers of the Law Ubi aliud suadet necessitas cessat humanae constitutionis vigor cessat voluntas Nomothetae But this is the Duty of the Judges of the Common Law and to be done in the same Court and in the same Suit and Action and not in another Court and by a new Suit under pretence of Equity for that were to censure the Law and the Judges of the Common-Law Courts and to charge the Law-makers either with Ignorance or over-much Severity which is not to be suffered And this says St. Germin the Author of that Treatise is secretly intended and understood in every general Rule of every positive Law according to what is before remembred in this Discourse out of the Case of Eyston and Studde in Plowd Comment and what is said by the Author of Doctor and Student pag. 27. Laws says he covet to be ruled by Equity which is not meant meerly to be done in another Court Proceeding by Equity but by an equitable Construction of the Law in the Court of the Common Law as appears pag. 28. b. the latter end of that Chap. And those Equitable Constructions are there called Reasonable Exceptions of the Law and hold as well in Cases at Common Law as upon Statutes as appears by the Case there put at Common Law pag. 29. Cap. 17. and on the b. side of that page in medio it is said the Parties shall be relieved in the same Court and by the Common Law Plowd 88. b. 205. b. Thus in the Exposition of a Statute Judges depart from the words of the Law rather than run into an absurdity or inconvenience by a too literal Exposition as in the Case upon the Stat. of Marlbr concerning Distresses The Judges Hill 30. E. 3. gave Judgment against the express words of that Stat. tho the words were in the Negative too as is observed in the argument of Reniger and Fogassa's Case In Plowd Comment fol. 9. b. and it is a Rule in the exposition of Statutes many times to depart from the words to meet with the mind of the Law-makers whose intent as it must be presum'd is to do no Man wrong See in the same Case in Plowd fo 10. and in the same Book fol. 57. b. 199. b. 203. Laws expounded not only different from the words but contrary to them rather than do any Man wrong Such sence is to be made of the words of an Act of Parliament as may best stand with reason and equity and which most avoids rigour and mischief Plowd 364. a. in the Case of Stowell against the Lord Zouch It is spoken there by one or more of the Judges Some Cases by necessity in Construction are to be excepted out of a Stat. 2 Instit. 25. Many Cases may be within the Letter yet not within the meaning of an Act 2 Instit. 107. in Principio 110 111. and general words of a Stat. may be restrained by Construction 2 Instit. 502. and the Exposition of Statutes belongs to the Judges of the Common Law 2 Instit. 618. Hill 13 Jac. 1. in the King's-Bench Vaudry and Pannell's Case Rolles's Rep. first part 331. It is there said that if a Court of Equity made a false Sentence it may be revers'd by the King that is by his Commission for Mic. 42 43 Eliz. in a Suit in Chancery by the Countess of Southampton against the Lord of Worcester and others for the Mannor of Henningham It was resolv'd by all the Justices under their hands which is now in the Chancery That when a Decree is made in the Chancery upon a Petition to the Queen she may refer it to the Justices but not to any others to examine and to reverse it if there be Cause and the Lord Chancellor agreed to this Resolve and upon such a Petition and Reference the Decree made in that Case in Chancery was revers'd by the Justices This was in time before any Contest between the Two Jurisdictions viz. in Queen Elizabeths time and before the Judges were look'd upon as not indifferent It appears 3 H. 5. Nu. 46. That the Commons in a Petition complain That many were grieved by Writs which were called Writs of Sub-Paena which they say were not used till the time of the last King Richard That John de Waltham Bishop of Salisb. of his Subtilty invented and began such Novelty against the Common Law and that they proceeded upon those Writs according to the Civil Law in Subversion of the Common Law and they pray That an Action of Debt of Forty pounds may lye against such See the Record at large Roll. Abr. first part 371. too briefly Abridged by Sir Robert Cotton This is of the Nature of a Presentment by the Commons of England the Grand Jury of the Nation and it doth invincibly prove and testifie the time when this Jurisdiction was first set up in Chancery for the Writ of Sub-Paena is the first Process of that Court in Cases of Equity and 't is call'd a Novelty and Names the first Inventer John de Waltham who was Keeper of the Rolls in the time of King
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
hath already been said as from Sir Edw. Coke Ch. Jus. who was a faithful Friend to our Nation and Laws Mr. Lambert who was a Master of the Chancery Mr. Dugdale in his Origines Juridiciales from the Ch. Jus. Popham in Chudleigh's Ca. in the first Rep. of Sir Edw. Coke fol. 139. b. and from the rest of the Judges and Arguers of that Case whose Judgment as to this point viz. both of the Original of this Jurisdiction of the Chancery and the mischievous effects of those Conveyances to Uses and upon Trust and Confidence for they are all one and so mentioned in the Act of the 27 H. VIII whose design was to extirpate both will more fully appear 1 Rep. 121. b. There were says that Case Two Inventers of Uses Fear and Fraud Fear in times of Troubles and Civil Wars to save Inheritances from being forfeited which in Truth and in plain words was the same thing with fraud to evade the Law that inflicted those Forfeitures and Fraud to defeat due Debts and lawful Actions and Duties Before the time of Richard II. says the Ch. I. Popham in that Case no Act of Parliament or other Record nor any Book nor Writing made any mention of Uses of Land Hear the Opinion of the King Lords and Commons the whole Nation concerning Uses in the Preamble of the Statute of 1 Rich. III. Cap. 1. The makers of that Statute set forth the mischiefs arising from such Conveyances to Uses and Trusts viz. great Unsurety Trouble Costs and grievous Vexations to the Buyers of Land or to such as took Leases In the Preamble of the Stat. of 27 H. VIII Cap. 10. viz. That by divers subtle Inventions and Practises by Fraudulent Feofments Fines Recoveries and other Assurances craftily made to secret Uses Intents and Purposes c. Manifold Mischiefs did ensue Out of which Statute both from the Preamble and Body of it may be observ'd 10. That Uses and Trusts are the same things Styles Rep. fol. 21. 40. 20. That the intent of the Law-makers was to extirpate both as being but the same But we know where Trusts are supported as if they were distinct things from Uses and a plentiful Harvest hath arisen from them tho it hath been resolv'd that an Use cannot arise out of an Use but this is evaded by giving it the Name of a Trust and making them distinct things So that we may learn from what hath been said when and whence these pernicious things called Uses and Trusts had their Original and who was the first Inventer of the Writs called Writs of Sub-Paena all about the time of that Exorbitant and Tumultuous Reign of King Richard II. and that such Conveyances ought at first to have been adjudg'd void being fraudulent as other fraudulent Conveyances have been by the several Statutes of 52 H. 3. Cap. 6. 50 E. 3. Cap. 6. 2 R. 2. c. 3. 3 H. 7. C. 4. 19 H. 7. Cap. 15. Trin. 7 H. 6. fol. 43. If a Man make a Feofment in fee Proviso tamen that the Feoffor shall always have the Profits of the Land that Proviso is void and contrarious by Hankford a Judge of the Common Pleas in the time of King Richard II. Now What an absurdity and contradiction is it in Reason and a mockery and abuse of the Common Law That a Man shall use the just and necessary Liberty the Law allows him to convey away his Land but it shall be so agreed that he to whom it is conveyed shall not be one jot the better for it but it shall still remain his in point of Profit that convey'd it away And so it is all but a Delusion and Deceit and the honest intention of the Law is baffled by it But a world of work is made by this for a new Court The Judges who are the Conservators of the Common Law and of the rights of the People early decryed these Inventions of Uses and so have several Acts of Parliament But the Potency of some great Church-men and others did still own and support them for they bring great Profit with them to the Jurisdiction Under this pretence and upon these occasions began the Invention of Uses and Trusts which have wonderfully perplex'd and turmoil'd almost all the Estates in England so that Men's Estates and Titles are not now so much guided and governed by the old and most wise and certain Rules of the ancient Common Law as by new invented Rules in a new Court to the subverting of the Common Law and Ruine of many Families How much work have they cut out for our Parliaments by making many Acts of Parliament to redress the Abuses but the Mischiefs are insuperable and the many good Remedies provided by several Parliaments have been rendred fruitless and I cannot for my life tell how it hath so come to pass unless by the excessive Power and mighty Favour that hath been indulged to the Persons in that High Office such as Cardinal Wolsey and others of the Hierarchy who were formerly in that great Office and were wont to have a mighty stroak in the Government By reason of these Conveyances to secret Uses and Trusts the Lord was Defrauded of his Ward heriot and Escheat To remedy this was the Stat. of 52 H. 3. Cap. 6. called the Stat. of Marlebridge made which made such Conveyances void as against the Lord and several other Statutes to the same purpose The Creditor who supposed the same Feoffor he still being in Possession and taking the Profits to be still the Owner in Law he lost his debt till the Stat. of 50. E. 3. c. 6. made the Lands however liable to satisfie the Debts and many Statutes more were made in the like Case A Man that had cause to Sue for his Land knew not against whom to take his Remedy and to bring his Action For one Man had the naked Name or Title like the titular Bishops of the Church of Rome and another had the Use and Profit till the Stat. of 1 R. 2. c. 9. made an Assize maintainable against the Pernor or him that took the Profits The Wife was Defrauded of her Thirds The Husband of his Tenancy by the Courtesie The poor Farmer of his Lease The Crown of the Forfeiture for Treason whereby Men were more imboldened to commit Treason The Stat. of 1 R. 3. c. 1. Tho it meant well yet gave too much countenance to these mischievous Uses by making good the Estates granted by the cestuyque Use Whereas it should rather have set a brand upon those Conveyances to Uses and have declar'd them all void as being generally meer Frauds and Cheats for so the Judges were in those times wont still to pronounce them And that Stat. of 1 R. 3. deals plainly in the matter by setting forth in the Preamble the great Unsurety Trouble Costs and grievous Vexations that daily grew from them but at last that Statute deals too gently by them And several other like
Statutes were made but to no very great purpose for means were found out to evade them At last came forth the Stat. of 27 H. 8. cap. 10. and this undertook and plainly so intended to pluck up this unwholsome Weed by the Roots Which good Law first reciting the excellent quiet and repose that Men's Estates had by the wholsome Rules of the Common Law but cunning Men had sought out new Inventions by fraudulent Feofments and Conveyances craftily made to secret Uses and Trusts to the utter subversion of the ancient Common Laws of this Realm as the Preamble speaks for the utter EXTIRPATING and EXTINGUISHMENT of all such subtil practis'd Feofments Abuses and Errors It is Enacted That the Possession of the Land shall be in him that hath the Use and that he shall have the like Estate in the Land as he had in the Use. How strangely hath all this good Intention Pains and Care been made of little or no effect and the mischiefs still continued by a distinction invested between Trusts and Uses directly against the often repeated Clauses and manifest plain meaning and express words of this good Act For thô the Judges of the Common Law were now by this Act to judge of Uses which before was the work of the Chancery they being now converted by this Act into Estates at Law Yet some Men perfectly to elude this good Act have confidently maintain'd asserted and allow'd a distinction between an Use and a Trust. And thô they are content because they cannot help it that the Judges of the Common Law may determine of Uses the Courts of Equity shall hold a Jurisdiction in matters of Trust. And most of the great Estates in England have by colour of this fallen under their determination and controulment and now have a dependence upon a Jurisdiction of Equity Whereas Were there the least colour left by that Act of 27. H. 8. for any distinction between an Use and a Trust as most certainly and plainly there is none yet as certainly and clearly that Act of Parliament meant to extirpate those Trusts as well as Uses as any ordinary Capacity well perusing that Statute to this purpose may easily perceive I humbly and heartily beg that favour of every Lord to read over deliberately this Stat. of 27 H. 8. cap. 10. for this very purpose for it will plainly discover this gross abuse As to the length of time wherein such a Power and Jurisdiction of Equity hath been exercised in the Chancery yet it plainly appears not to be grounded upon Prescription the Original being known and not so very ancient neither and modest too and moderate at first as most such are in the beginning and having from the first starting of it been hunted and pursued with full Cry and upon a fresh Scent and in view and having hardly any Colour of an Act of Parliament That length of time were it much longer would be no Plea for it See Dr. Barrow in his Treatise of the Pope's Supremacy pag. 154. He that has no right says he to the thing that he possesses cannot plead any length of time to make his possession lawful King Henry VIII by Acts of Parliament restored the Regal Ecclesiastical Sovereignty after it had been usurp'd upon by the Popes and their Prelates near 400 years that is from the time of William the Conquerour For then began their Encroachment And the Act of Parliament of 1 E. 6. C. 2. Sect. 3. calls it a power that had been Usurp'd by the Bishop of Rome contrary to the Form and Order of the Common Law used in this Realm in high derogation to the King 's Royal Prerogative from whence we may observe That Usurping upon the Common Law and Usurping upon the King's Prerogative go together The Bishops Courts here in England took their Original from a Charter of William the Conquerour so that this Jurisdiction was a great Limb lopp'd off from the Primitive Common Law of England For before that Charter of King William Ecclesiastical Causes were determin'd in the Hundred Court and not by Witnesses only and not by the Canon Law but by the Law of the Countrey But this Charter was made by advice of the Arch-Bishops Bishops Abbots Princes and Temporal Lords See Fox his Acts and Monuments Vol. 〈◊〉 Lib. 4. pag. 2â—… says Mr. Pâ—…inn in his first Tome of his Vindication of the Supream Ecclesiastical Jurisdiction of our English Kings The Charter it self says he recites that it was done Communi Concilio for which he cites Seldeni ad Eadmerum Notae pag. 167 168. So that still the old Common Law of England hath been upon the losing hand The Civilians hold that Possessor malae fidei ullo tempore non praescribit yet I heartily concur with that Reverend Chief Justice Sir Edw. Coke a most true and hearty lover of his Countrey and an high honour to and honourer of the Profession of the Common Law in his 4 Instit. 246. at the end of that folio in Respect says that Good and Great Man that this Court of Equity hath had some continuance and many Decrees made by it it were worthy of the Wisdom of a Parliament for some Establishment to be had therein and to this intent have I chiefly used this freedom for I never loved Quiet a movere but in order to a better Security And for that end I chuse to make this Humble Address to the House of Lords It is the House of Lords who are theSupreme Court of Justice that can set the true and legal Bounds and Limits to the Jurisdiction of Inferiour Courts and can say to the biggest of them Hitherto shalt thou come and no further and here shall thy proud waves be stayed And such their Judicial Declarations are not to be controul'd by any but the Legislative Power Almighty God gave a strict charge to his own chosen People of Israel to observe those Ordinances and Laws which he gave them by Moses which were very particular and wherein nothing was left to the Discretion of the Magistrate nor had the Magistrate any Latitude whereby he could depart from the plain and common sence and Judge Secundum Aequum Bonum Arbitrarily But they were commanded Deut. 4. 2. Yee shall put nothing to the word which I command you says God by Moses neither shall ye take ought therefrom and the 12 Deut. the last verse in Cases of Difficulty that might arise upon the Construction of those Ordinances and Laws a Provision is made by Almighty God that in such Cases resort should be had to the Priest and to the Judge who should declare the Sentence of Judgment This seems to refer to some special Revelation of the mind of God in such difficult Cases which God made known to the Priest that stood before the Lord to minister 17 Deut. 8 â—…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in
what might be the Discretion and Judgment of One great Person and thereby have fenced against it I must not only be defeated of my Right disappointed of a Provision for my Family for which I had long been labouring but beyond all expectation after a tedious and chargeable waiting for the Event and Issue of a Chancery-Suit I shall be doom'd to pay Two or Three hundred pounds by the Name of Costs because I could not Prognosticate what would be the Opinion or Judgment of One single Person upon my Case who is not so tied to Rules as the Judges are This wonderfully enriches the Men of the Chancery Leges humanae says that good Chancellor Fortescue in his commendation of the Laws of England pag. 11. on the b. side of the Page non aliud sunt quam Regulae quibus perfectè justitia Edocetur as they are Leges à ligando so they are Regulae à dirigendo Regulando And id pag. 25. b. 31. b. says the Chancellor still Non potest Rex Angliae ad Libitum suum Leges mutare regni sui This Excellent Chancellor Fortescue lived in the time of King Hen. VI. and was Ch. Justice of the King's-Bench Anno 20 H. 6. as appears by Dugdale's Origines Juridiciales pag. 58 62. yet has not a word to say in Commendation of this Equitable Jurisdiction thô it then began to spring up and he himself were Chancellor as he stiles himself but rather seems utterly to condemn it by so highly commending the Trials of matters of Fact by Twelve Men and preferring it infinitely before that of the Civil Law which the Chancery follows by the Testimony of Witnesses only and by as much extolling the certainty of our Common Law administred by the Judges of it Could he possibly have forgotten to mention that Jurisdiction he himself being Chancellor had he approv'd of it It is excellent advice in the Preface to Sir Coke's 7 Rep. fol. 2. b. Quoad fieri possit quam plurima Legibus ipsis definiantur quam paucissima verò Judicis Arbitrio relinquantur Now let us take Notice of the ill Effects that have arisen from the Exercise of this Equitable Jurisdiction which in general words were taken notice of by a Bill that lately passed One or both Houses of Parliament take these Instances First The Common Law of England which is the birth-right of every English Man and which is so agreeable to the Genius of this Nation and a Law of their chusing is by this new Jurisdiction Subverted and the Civil Law which hath been so vigorously oppos'd by the Lords and Commons from the beginning and in all Ages is introduc'd which brings our Rights and Estates to be determined ad aliud Examen to a Decision by Depositions of Witnesses only and in such a manner examin'd as is observ'd by that incomparable Treatise of the Chancellor Sir John Fortescue De Laudibus Legum Angliae in a private Room before an Officer call'd An Examiner not before the Judge of the Court and many times upon leading Interrogatories Whereas the Truth is best discovered when Witnesses are produced in the face of the Court and Examined by the Judge of the Court in the presence of the Parties to the Suit and their Council and Witnesses brought to confront one another There is many times much in the Countenance and Carriage of a Witness to help to the manifestation of the Truth or Falshood of his Evidence and by Questions suddenly asked him Tacitus in his Annals in his Second Book Chap. 8. tells us that the ancient custom of Rome was That even the Vestal Virgins that in all other Cases were recluse and vailed yet upon occasion for their Testimony they were examined as Witnesses in the common place of Pleadings and Judgment Secondly The Judgment and Determination of Causes in Chancery depend upon the sole Opinion and Conscience of one single Person whose Power therein as some of our Books and Modern Authors presume to affirm is Absolute and Arbitrary Sir John Davys in his Preface to his Reports fol. 11. b. says The Chancellor hath Potestatem absolutam in binding and loosing the Proceedings of the Law and in deciding of Causes by the Rules of his own Conscience and that the King trusts him with his own Conscience Tr. 9. E. 4. fol. 14. Pasc. 22. E. 4. Fitzh Sub-Paena placit 16. by Hussey The Chancellor's Judgment is not guided always by certain and known Rules so that no foresight can sence and provide against it We are not fore-warn'd and therefore cannot be fore-arm'd and all this by a Jurisdiction at the first assum'd but not legally granted The first Chancellor in this Exercise of this Power not at all asking that material Question Quis me constituit Judicem as our Blessed Saviour himself did in the like Case And how expensive and dilatory in Proceedings we have been already told by the several Books and Authorities cited and it shall be yet further observ'd We may read in the Lord Coke in his Magna Charta 29th Chap. in his Exposition fol. 51. of the words per Legem Terrae What mischiefs and horrible vexations did arise when this ancient and fundamental Law this Lex Terrae was laid aside in divers Cases by the Act of 11 H. 7. Cap. 3. and a Liberty given to proceed without any finding and presentment by the Verdict of Twelve Men upon a bare information for the King altho' the Justices of Assize and Justices of the Peace were entrusted in it to proceed according to their Discretions upon bare proof by Witnesses whereby the Judges and Justices who might best be trusted with such a dangerous Power if it might be allow'd to any were not only Judges of the Law as the Judges of the Common Law Courts at Westminster-Hall are but also in the place of a Jury to judge and determine of Fact too as the Equity side of the Chancery too often doth and yet this Liberty was given by an Act of Parliament which cannot be said of the Jurisdiction we are treating of yet the Nation could not bear it but was restless till that intolerable Act of 11 H. 7. Cap. 3. was Repeal'd by the Act of 1 H. 8. C. 6. and the Tryals by Juries thereby restor'd again The Lord Coke in the same Chap. fol. 54. further declares That if any Man by colour of any Authority where he hath not any in that particular Case Arrest or Imprison any Man or cause him to be Arrested or Imprisoned this is against this Act of Magna Charta and it is most hateful says he when it is done by Countenance of Justice and I take it to be worse if done by a Countenance of Equity and by colour of a new invented Writ first devis'd By John de Waltham Mr. Lambard in his fore-cited Archaion fol. 84. speaks thus If the Chancery have no certain Rules and Limits of Equity if it be not known before-hand in what Cases
the Chancellor will relieve and where not then neither the Subject can be assur'd how or when he may possess his own in peace nor the Practiser in Law be able to inform his Client what may become of his Suit Misera est Servitus ubi jus est vagum Cancellarius Angliae says Sir Hen. Spel. non aliter tenetur Decretis suae Curiae vel sui ipsius quin elucente novà ratione Recognoscat i. e. he reviews quae voluerit mutet deleat prout suae videbitur Prudentiae A certain late Author in his Preface to his Book entituled The happy future State of England Printed 1688. cites Leo Afer who tells us That the Inhabitants of the Mountain Magnan on the Frontiers of Fez have not any settled Judicature nor certain Law but for deciding of Controversies when they happen they stop some Travellers passing that way to give Judgment in them and they desray the charges of their stay This is speedy and cheap but very uncertain in the Decision they might as well determine by casting Lots But we in England have contrary Laws as some do imagine so that we serve two Masters that are divided in their Commands and command contrary things and the one undoes what the other does These are like divers Weights and Measures which are an Abomination to the Lord Prov. 20. 10. In one Court they measure Men's Actions and Rights by one Rule in another Court the same Actions again by contrary Rules as if there were Two contrary first Principles and Deities in Nature as the Marcionites and Manichees held the one benign kind and indulgent the other rigorous and destructive to Mankind The People of England have a Right to be Govern'd and their Lives and Estates Subjected to no other Laws but such as are of their own chusing to which they consent according to that most excellent Preamble to the Stat. of the 25. H. 8. Cap. 21. The Laws of England as the Preamble tells us have been taken by the People of England at their free Liberty by their own Consent to be used among them as the Customs and Ancient Laws Originally Established and not otherwise Sir Francis Bacon in his Resuscitatio pag. 65. in his Speech upon taking his place of Chancellor tells us that the Roman Praetors whose Office had the greatest Affinity with the Jurisdiction claim'd in the Chancery used to set down at their Entrance how they would use their Jurisdiction and he acquaints us with the Excellent charge given him by King James I. at the delivery of the Seal to him viz. To contain that Jurisdiction in its due limits without swelling or excess The excess or tumor says Sir Fr. arises ist from that Courts embracing Causes meerly determinable and fit for the Common Law For the Chancery is ordain'd says he to supply the Law not to subvert it Tho' by his favour the supplying of a Law is the proper work of a Parliament 2. The Tumor arises says Sir Fr. from neglect of the Assistance of the Judges in Cases of Difficulty especially if they touch upon Law The Power says he in his advancement of Learning of moderating Laws little differs from the power of making them Vinius the Civilian sets forth the true Office of the Roman Praetor pag. 16. Neque praetor aliud quam Magistratus fuit Juridicundo non Condendo Custos Juris non Arbiter and again pag. 12. Neque ante Lex vi suâ constat Civesque ad Observationem vel paenam obligat quam populo innotescere potuerit quod sine promulgatione sive publicatione aliquâ fieri non potest To every good Law of Man it is requisite that it be manifest among other Properties says Dr. and Student 4 Chap. pag. 7. b. Now How is that Law manifest that depends upon the sudden Opinion and Judgment of One Person who guides that Opinion and Judgment not by any positive certain and particular Rule or Law clearly defin'd but according to that large and indefinite Rule Secundum Aequum Bonum which is directly contrary to the temper and mind of the Common Law of England which delights in certainty Sir Fr. Bacon in his Advancement of Learning pag. 436. The first Dignity of Law says he is That they be certain Certainty is so Essential to a Law as without it a Law cannot be just and pag. 444. That is the best Law which gives the least Liberty to the Arbitrage of the Judge and he is the best Judge that takes the least Liberty yet afterwards this Grave Chancellor is not steddy to himself but is for allowing to Praetorian Courts of Equity Power of supplying the defects of Law which as I said before does belong to the Parliament only and herein he seems under favour not to be so consistent with what he himself writes in his other Treatise It is very well observ'd by Dr. Barrow in his Treatise of the Pope's Supremacy pag. 255. The means and methods by which Power and Jurisdiction from small and modest Beginnings arrive at last to a strange Height and Exorbitancy The Patriarchate Power says he of the Pope can no otherwise be claimed but by his Invasion and Assumption ibid. 256. The Pope's universal Sovereignty and Jurisdiction hath no real Foundation either in Scripture or elsewhere and pag. 257. he shews by what means so groundless a Claim and Pretence gained Belief and Submission to it Eminency of any kind in Might in Place c. does easily pass into advantages of real Power and Command over those that are inferiour c. Any small Power is apt to grow says he and spread it self into a Flame c. and pag. 261. All Power is attended by dependencies of Persons enjoying subordinate Advantages under it which do grow proportionably by its encrease enjoying Wealth excessive Fees Credit Support Privileges and Immunities thereby Let us look into the beginning of that late Jurisdiction of the President and Council in the North. In the Annals of Queen Eliz. Printed 1630. Lib. 2. pag. 68. in the Reign of King H. 8. says that nameless Author when the Rebellion in the North about suppressing the Abbies was pacified whilst the Duke of Norfolk stayed in those parts many Complaints were brought unto him of Wrongs done in the Rebellion Some of them he compounded himself and some of them he committed to Men of Wisdom under his Seal to be by them Compounded which when the King understood he sent him a peculiar Seal to use in these Causes and the same Seal he committed after the Duke was called back to Tunstall Bishop of Duresme and appointed to him Assistants with Authority to hear and determine the complaints of the poor He was then first of all named President and the Authority of his Successors hath ever since encreased very much This Presidentship says the Annals which is now full of Honour hath from a poor beginning grown up in a short time to this Greatness See Sir
E. C. 4 Instit. 245. Chap. 49. upon the same Subject Rushworth in the Second part of his Historical Collections pag. 1336. mentions how that Mr. Hide afterwards Lord Chancellor then a Member of the House of Commons in the Parliament 1640. by Command from the House of Commons presented to the House of Lords a Complaint against this Court of the President of the North and tells the Lords that that Court by the Spirit and Ambition of the Ministers trusted there or by the natural Inclination of Courts to enlarge their own Power and Jurisdiction had so prodigiously broken down the Banks of the first Channel in which it ran as it had almost overwhelmed the Country under the Sea of Arbitrary Power and involved the People in a Labyrinth of Distemper Oppression and Poverty Another Member of the House of Commons complaining to the Lords of the Star-Chamber first he sets forth the Original of it by Act of Parliament by the Stat. of H. 7. which he calls the Infancy of that Court But he says further that Court by Cardinal Wolsey 8 H. 8. was raised to Man's Estate and from whence says he being now altogether unlimited it is grown a Monster and will hourly produce worse effects unless it be reduced by that hand which laid the Foundation which is by Parliament Let Loose but Power and you shall quickly see How wild a thing unbounded Man will be It deserves to be considered how it fares with the Profession of the Common Law of late years since the Chancery hath been so exalted Readings at the Four Inns of Court twice every year upon some publick useful Statutes which were very ancient and of great esteem and authority in our Courts of Justice are now wholly discontinu'd There being no consideration had who have been Readers in the call to the Degree of a Sergeant at the Law nor in the choice of Judges to the utter overthrow of that Exercise the Lord Chancellor having a great stroak in recommending Persons to that Degree and Employment and this hath happen'd but of late since the Court of Equity hath swell'd to that Height and Greatness Nor have the Nobility and Gentry so much applied themselves to the Study of the Common Law nor the Students to the performance of Exercises whereby they should prepare themselves for the practise of it when they observe the Profit and Preferment to run in another Channel and forsake the Old Hence it comes to pass that an inferiour sort of Men oftentimes procure themselves to be admitted of the Inns of Court and called to the Bar and suddenly leap into mighty Practise and extraordinary Gain in the Court of Chancery having taken no great pains in Study but arriv'd only at some experience in the Course of that Court which is soon attain'd to It may be worth the while to look into some of those Cases wherein these Courts of Equity do most frequently exercise their Jurisdiction and then consider whether there be any great necessity of resorting to those Courts for Relief in such Cases or whether they might not be reliev'd more easily with less expence and more speed and as clearly by the help of the Courts of the Common Law without going a tedious and chargeable Course at Common Law first as it sometimes falls out which after all must serve for nothing but be all set aside and a new but more tedious and more chargeable and uncertain Course of Equity be undergone at last which seems to Strangers not so much accustom'd to the like to be very absurd and impolitick in the Constitution of our Laws and Courts It is according to the Latine Adage Penelopes telam texere retexere Put the Case that a Man pays a Debt upon a single Obligation without taking an Acquittance and afterwards he is Sued by the Obligee upon that Obligation which is clearly against Conscience he cannot at Common Law plead payment without producing an Acquittance which he hath not to produce and is therefore Remediless at the Common Law for it is a Maxim that every charge must be discharged by that which is of as high a nature as that which charges A Record must be discharged by a Record and a specialty by a specialty and not by a bare Averment of the Party that is charged with it And the true reason upon which that Maxim is grounded is given by St. Germin in his Book Entituled A Dialogue between a Doctor of Divinity and a Student of the Common Law written in the Reign of King Henry VIII pag. 22. b. 23. where he puts the same Case That Maxim says St. Germin is grounded upon great reason and to avoid a great inconvenience that else might happen to come to many People that is to say That every Man by a bare Averment shall avoid a Bond and this is the true reason of the Law and tho says St. Germin it may follow thereupon that in some peculiar Case a Man by occasion of that general Maxim may be compelled to pay the Money again yet the Law took heed to that which may often fall out and do hurt among the People rather than do hurt to particular Cases And the Law setteth a general Rule which is good and necessary to all and which every Man may well keep without it be thro' his own default But after all Tho' the Obligor in such Case be Remediless at the Common Law yet says the Author St. Germin pag. 23. he may be holpen in Equity by a Sub-Paena And so says Sir Geo. Cary in his Reports of Causes in Chancery pag. 2. 1st Case and there are Precedents of it in Chancery says the Arch-Bishop of York who was Chancellor And the like is said by Moreton Arch-Bishop of Canterbury then Chancellor and afterwards Cardinal another Clergy-man Pasc. 7. H. 7. fo 12. I suppose these Authors rather speak the Usage and Practise of the Chancery in such Cases than what was their own Opinion and Judgment For if this Relief in Chancery in such Case may be allowed what becomes of that great reason upon which that Maxim was grounded as the Author himself observed before and how is that great Inconvenience avoided by this Maxime which the Author mentioned in the same breath If the Chancery may receive the same Averment and upon proof by Witnesses without trying the Fact by a Jury that Court may relieve the Party Does not the Inconvenience return again and are not the People as much hurt by it Or is it a Mischief and Inconvenience in the Common Law Courts and none in a Court of Equity It were better the Law were changed and that such Averment of the payment might be pleaded to the Action at the Common Law where if Issue be joined upon it it must not only be prov'd by Witnesses but found also by Twelve Men to be true rather than the Chancery shall receive that Averment and allow it to be prov'd by Witnesses only
the Parties to such Judgment be in Peace A Peace with a witness to be involv'd again with a new tedious expensive Chancery-Suit so uncertain in the Event and tied to no certain Rules When the Plaintiff at Law flatter'd himself and was glad that he had arriv'd at his desired Haven Post varios casus post tot discrimina He is wonderfully deceived he must set out to Sea again to another long East-India Voyage But what Authorities Law-Books or Resolutions of Judges or Courts of Justice have the Chancery had for the expounding of the Statute of 4 to Henry IV. in this sense which utterly makes that Statute of no Effect besides those of itheir own Chancellors and besides the Privy-Seal of King James I. upon consulting only with his own Council at Law A very strange way of Proceedng The Great Seal and the Privy Seal are on their side 't is true if these in such Case must be submitted to what then becomes of the Stat. of 2 E. 3. cap. 8. whereby it is accorded and established That it shall not be commanded by the Great nor the little Seal to disturb or delay common Right and tho such Commandments do come the Justices shall not therefore cease to do right in any point the Stat. of 14 E. 3. c. 14. is fully to the same effect The complaint against the late Court of Star-chamber which yet was established by Law was that by experience it was found to be an intolerable burthen to the Subject and the means to introduce an Arbitrary Power and therefore that Court was taken away by the Act of 16 Car. 1. Cap. 10. I shall now on the other side endeavour to make it clear to the Honourable the Lords that such Proceedings of the Chancery of Relieving after Judgment at Law upon any pretence of Equity whatsoever is not only against the express words and meaning of that Act of 4 H. 4 but against the Ancient and Fundamental Common Law of England and this I doubt not to make out by all sorts of Authorities and Resolutions Ancient and Modern and in the Reigns of several Kings and Queens of this Nation and that not one authentick Legal Authority can be produced to the contrary I shall begin with the most ancient Authority and that is in 6 E. 1. in the Case of the Earl of Cornwall cited in Sir Coke's 3 Instit. in the Chapter of Praemunire fol. 123. Judgment was there given before the Justices of Oier and Terminer against the Bishop of Exeter and his Tenants The Arch-Bishop of Canterbury Excommunicated all Persons that dealt in those Proceedings against the Bishop of Exeter and his Tenants before those Justices The Record says That the Judgments given in the King's Court ought not to be Impeach'd in any other Court This appears by that Record to be the Antient Law The Stat. of 4 H. 4. now treated of is in effect a Declaration of the Common Law for it recites in the Preamble as was before observed that such Proceeding was in Subversion of the Common Law of the Land which proves it to be done against the Common Law In the Case of Cobb and Nore Pasc. 5. E. 4. Coram Rege cited by Sir Edw. Coke in the same third Instit. fol. 123. A Judgment was obtain'd by Covin and Practise against all Equity and Conscience in the King's-Bench For the Plaintiff in the Judgment retained by Collusion an Attorney for the Defendant without the knowledge of the Defendant then being beyond Sea the Defendant's Attorney confesseth the Action whereupon Judgment was given The Defendant sought his Remedy by Parliament and by Authority of Parliament Power was given to the Lord Chancellor by advice of Two of the Judges to hear and order the Case according to Equity If the Chancellor had any such Power before what need was there of resorting to the Parliament Non recurritur ad extra-ordinarium nisi cessat ordinarium And why was it not referred to the Chancellor alone without Associates if it did of Right belong to him before Such a Case in these days would be held in Chancery to be a most proper Case for the Relief of that Court. And Note further That one Person alone thô a Lord Chancellor was not to be entrusted with a Judicial Power but others were joined with him In the 22 E. 4. fol. 37. It is said by Hussey Ch. Justice If after Judgment the Chancellor grant an Injunction and commit the Plaintiff at Law to the Fleet the King's-Bench will by Habeas Corpus discharge him In the 21th year of K. H. VIII Articles were Signed by Sir Tho. Moor the Chancellor himself and by Fitz-James Ch Justice and Justice Fitzherbert against Cardinal Wolsey One was for Examining matters in Chancery after Judgment at the Common Law in Sir Edw. Cok. 3. Instit. fol. 124. in Subversion of the Laws See the 2 Instit. fol. 626. at the end of that folio before cited more of Cardinal Wolsey and the Indictment against him In Crompton's Jurisdiction of Courts fol. 67 69. and 57. about the time of 13 Eliz. a Man was Condemn'd in Debt in the Common Pleas that is had Judgment entred against him and he Exhibited a Bill in Whitehall and had an Injunction to stay Execution and the Plaintiff that had the Judgment at Law moved in the Common Pleas to have Execution and it was granted notwithstanding the Injunction afterwards the Chancery committed the Plaintiff at Law to the Fleet for Suing out Execution and the Lord Dier Chief Justice and the whole Court of Common Pleas deliver'd him out of the Fleet by Hab. Corpus In the Case of Sir Moile Finch and Throgmorton Mich. 39. 40. Eliz. Throgmorton Exhibited a Bill in Chancery against Sir Moile Finch and shewed clear matter in Equity to be Relieved against a Forfeiture of a Lease for years pretended by Sir Moile for Breach of a Condition where there was no default in the Plaintiff Throgmorton To which Bill the Defendant in Chancery Sir Moile Finch Pleaded That he had obtained Judgment in the Exchequer in an Ejectment in the Name of his Lessee against Throgmorton the Plaintiff in Chancery and that Judgment had been affirm'd in Error and demanded the Judgment of the Chancery if after Judgment given at the Common Law he should be drawn to answer in Equity Egerton would not allow the Plea but over-ruled it Note He did not Plead the Statute of 4 H. 4. but grounded his Plea at the Common Law Queen Elizabeth referr'd the Consideration of this Plea and Demurrer to all the Judges of England not to her own Council Learned in the Law for the Twelve Judges are the proper Judges of this Question tho it concern'd their own Jurisdiction After hearing Council and the intent of the Lord Chancellor being said to be not to Impeach the Judgment but to Relieve upon collateral Matter in Equity Upon great Deliberation it was Resolved by all the Judges of England That
the Plea of the Defendant in Chancery was good And that the Lord Chancellor ought not to Examine the matter in Equity after the Judgment at the Common Law For thô he would not Examine the Judgment yet he would by Decree take away the Effect of the Judgment And it is there said That the Precedents produced in the times of H. 8. and E. 6. were grounded upon the sole Opinion of the Lord Chancellor and passed Sub Silentio And that no Precedent nor Prescription could prevail against the Statutes of the Realm Thereupon this being certified to the Queen the Plea stood for a good Plea Note The Twelve Judges are the most proper Expounders of Statutes see the 2 Instit. fol. 611. in the answer to the 16th Objection made by the Bishops and Clergy where all the Judges do affirm That they never heard it excepted to before the time of King James I. that any Statute should be expounded by any other than by the Judges of the Law and fol. 618. in the answer of the Judges to the last Objection of the Bishops it is truly said by all the Judges of that time also That if the Twelve Judges Err in Judgment it cannot otherwise be reformed not by the Chancellor nor by the Bishops but Judicially by the Parliament the Superiour Court not by the Council Table neither They further resolv'd That the Interpretation of all Statutes that concern the Clergy being parcel of the Laws of the Realm do belong to the Judges of the Common Law yet this was a Contest about Jurisdiction P. 11. Jac. in the King's-Bench Crok Jac fol. 343. Courtney versus Glanvil The Plaintiff had a Decree against the Defendant Glanvil after Glanvil had obtain'd a Judgment at the Common Law by Confession and Glanvil was imprison'd by the Chancery for not obeying the Decree It is said by Cok. Ch. Just. That the Decree and Imprisonment was Unlawful being after Judgment and that the King's-Bench upon an Habeas Corpus ought to Relieve Glanvil The same Case is reported by Sergeant Rolles in his 1 st Rep. Mich. 12. Jac. fol. 111. and Coke said While I have this Coif on my Head I will not allow it Hill 11. Crok Jac. fol. 335. in the K. B. Heath and Ridley's Case It is said by the Court That by the Statutes of 27 E. 3. cap. 1. 4 H 4. cap. 23. After Judgment given in Curia Domini Regis be it in Plea Real not Royal or Personal it ought not to be avoided but by Errour or Attaint And in the same term it was delivered for a general Maxim in Law That if any Court of Equity doth intermeddle with any Matters properly Triable at the Common Law or which concern Freehold they are to be Prohibited Mich. 12. Jac. in the K. B. Roll. 1 Rep. fol. 71. Wright versus Fowler It was order'd by that Court That Cause should be shown why a Prohibition should not be granted to the Dutchy-Court for Proceeding upon a Bill in Equity after Judgment thereupon the Plaintiff in Equity relinquish'd his Bill Mich. â—…13 Jac. K. B. Rolles 1 Rep. fo 252. Coats and Suckerman against Sir Hen. Warner George Crook prayed a Prohibition to the Dutchy for Examining a matter after Judgment in the King's-Bench by Coke Crook Doderidge and Haughton It is said We are resolved that no Court of Equity may meddle after Judgment and a Prohibition was granted It is further said That a Prohibition may be granted by the King's-Bench to the Common Pleas or Exchequer and so of all the Courts of Westminster-Hall if they hold Plea against an Act of Parliament or against the Common Law Mich. 16. Car. 〈◊〉 in the K. B. Crok Car. 1. fol. 595. Calmadies Case A Prohibition was granted against the Court of Requests for proceeding in Equity after a Judgment given in the King's-Bench And the Court Resolv'd That so they would always do whenever any Exhibited Bills there after Verdict and Judgment And the Case of Austin versus Brereton is there cited which was 40 Eliz Austin obtained Judgment in the King's-Bench the Defendant Brereton Sued in the Court of Requests to be Relieved and the Plaintiff at Law was Committed by the Court of Requests and was Bail'd by the King's-Bench and Sir Tho. Gawdy one of the Judges was convened before the Queen for it yet it was held good and Brereton was enforced to satisfie the Judgment Mich. 7. Car. 2. 1655. in the Exchequer Sir Tho. Hardres Rep. fol. 23. Morel versus Douglas The Bill in Equity was to be Relieved against a Judgment by Nihil dicit upon a Bond for the Money was paid There was a Demurrer to the Bill upon the Stat. of 4 H. 4. and the Court allowed the Demurrer There the Case of Langham and Limbrey is cited where the same point was Ruled by the House of Lords by advice of all the Judges the Judgment was for no less than 18000 l. in an Action of Covenant Trin. 1658. In the Exchequer Sir Hardres's Rep. fol. 121. Harris versus Colliton The Defendant had Judgment at Law against the Plaintiff in Equity for Rent of an House The Plaintiff in Equity Harris Exhibited a Bill in Equity to be Reliev'd against that Judgment Suggesting that the House was Demolish'd in the War so that he could make no Profit The Defendant in Equity Colliton sets forth the Stat. of 4 H. 4. and Demur'd to the Bill Finch afterwards Lord Chancellor argued for the Defendant Colliton to maintain the Demurrer As to the Precedents he answers That a 1000 of them will not change the Law and many of them passed Sub silentio or upon the sole Opinion of the Chancellor who is willing to enlarge his own Jurisdiction this was plainly and stoutly said He further held That there were no regular Proceedings in Equity till of late times for Parliaments ought to have been once or twice a year to redress such Grievances Stephens who argued for the Plaintiff in Equity held That the Statute of 4 H. 4. did not extend to the Chancery because the Jurisdiction in Equity of the Chancery was not in being at the making of that Statute and therefore it could not be restrained by it Bigland for the Defendant That the Statute of 27 E. 3. cap. 1. of Praemunire did not extend to a Suit in Chancery because the Chancery was not a Court of Equity at the making of that Stat. and Lambert who was a Master of the Chancery in his time is cited to prove it And 't is there said That the Chancellor TOOK NtOT UPON HIM ex Officio to determine matters in Equiâ—…y till Edw. IVth's time Saunders afterwards Chief Justice of the King's-Bench of Council for the Plaintiff at Law grants it to be true that at the making of the Statute of 27 E. 3. there were no Proceedings in Equity in Chancery but that the words or in any other Court will extend to any Courts that then were
serve but as a mean to bring the Case to a Judgment but it refers the matter also to the Clerks now called the Masters of the Chancery to frame Writs for such new Cases And those Clerks now Masters were as Fleta describes them Men of profound Science What! in the Civil Law no but in the Laws and Customs of England Qui in Legibus Consuetudinibus Anglicanis notitiam habeant pleniorem And these Masters have Caution given them by that Statute that if any Doubt or Difficulty did arise about framing those Writs Atterminent querentes ad proximum Parliamentum Scribantur Casus in quibus concordare non possunt Et de consensu Juris peritorum fiat breve Why was it not referred in such Case to the Lord Chancellor at least where the Masters could not settle and agree the Form it being a Form No not to any one Man and it was a Work proper for a Parliament and in those days Parliaments met often for these very purposes and it was settled by an Act of Parliament in King Alfred's time and it is a Law still in force That for ever twice a year or oftner if need were in time of Peace a Parliament should be holden at London and as Bracton a Judge tells us this was so ordain'd to determine of Cases that were new and had no Remedy at Law or a doubtful Remedy but good Equity where was the Chancery-Equity then Si aliqua Nova inconsueta Emerserent quoe nunquà m prius evenerunt Ponantur in respectu usque ad Magnam Curiam ut ibi per Concilium Curioe terminentur And there are infinite Precedents says the Learned Coke in the Rolls of Parliament of such references to the Parliament and to that end were Parliaments so often to be held and it took up most of their time See Ryley's Placita Parliamentaria in the Appendix fol. 525. And the infrequency of Parliaments hath given occasion to other Courts to Transact in those matters that are indeed proper for the Parliament The Exorbitances of great and high Officers have been many times a means to hinder and prevent the frequent Meetings of Parliament as in the Case before mentioned of Cardinal Wolsey least their Exorbitancies should be questioned All these Mischiefs might be Remedied either by some good Act of Parliament to be Pass'd as has been often endeavour'd or by Referring the Determination and Judging of Bills of Review of their Decrees into good and indifferent hands or by the Supreme Court 's declaring that the Courts of the Common Law in Westminster-hall ought ex Debito Justitiae to grant Prohibitions to any Court whatsoever that either Usurp a Jurisdiction where they have none of Right or exceed their Jurisdiction where they have one This Legal Remedy having been long disused and laid asleep wants a Revival In order to obtain these peaceable and most necessary Helps this small Treatise is Humbly recommended to the grave Consideration of the HOUSE OF PEERS FINIS ERRATA Page â—…1 line 31. politically r. politiquely P. 32. l. 6. r. his Exercise P. 40. l. 43. it heir r. their The Names of Chancellor and Chancery The first Chancellor in England The Nature of the Chancery and Office of Chancellor So Minshew upon the word Cambden's Britannia p. 143. A Ministerial not Judicial Office at first The Chancery an Office When the Chancery from an Office set up for a Court. a 5. E. 3. c. 14. The Chancery as toits Equity no Court of Record The King with the Peers administred Justice not the K. alone The Administration of Justice not entrusted in oâ—… single hand by the Common Law Judges joined with the Chancellor * See Sir Coke's 2 Instit. iâ—… the Chas of Arti culi Cle ri fol. 601 602. No Reports of Causes in Equity in the Chancery before the time of K. H IV. The Time The Occasion Uses of Land No Act of Parliament gives the Chancellor the power of Equity Sir Richard le Scrope or John de Windâ—… for 's Case The first Decree in Chancery was reversed and the matter left by the House of Lords to the Common Law The Church-men were the first Setters up of a Jurisdiction in Chancery in matters of Equity The Judges were at first wont to be consulted with by the Chancello * Sâ—…e Fi 〈…〉 Abr. 〈◊〉 Sub-Paena and Brook's Abr. tit Conscience and Pasc. 22. E. 4. 6. Pla. 18. The Common Law the only Law in England anciently aa Dr. and Student pag. 15. by Jury and not otherwise The Books of the civil Law introduced into England by the Clergy are commanded to be 〈◊〉 The Nobility were anciently the Students of the Common Law The H. of Commons constant opposers of the Equitable Jurisdiction of the Chancery And of the Process by Sub-Paena There can be no Jurisdiction in Equity but either by Prescription or Act of Parliament not by any Charter or Commission from the King What Equity meant anciently What is meant by Equity in the true sence of it * By the Stat. of Articuli super chartas cap. 5. in anno 28. E. 1 The Judges are called the Sages of the Law The Judges of the Common Law are to review and reverse Decrees in Chancery John de Waltham Bishop of Salish the Inventer of the Writ of Sub-Paena in the wicked time of King Richard II. The Writ of Sub-Paena called a Novelty by a Petition of the House of Commons in the Reign of King Henry V. That a Prohibition lies to stop a Suit in chancery See Mich. 13. E. 3. Fuzh. A bridgment Tit. Prohibition plac 11. The Mischiefs from the Invention of Feofments to Uses and in Trust. Lamb. Archeion pag. 75. Dr. and Student 98. Sir Henry Spelman Gloss. 107. Fitzh Ab. Tit. Sub-Paena thro' that whole title still about Uses 2 H. 4. Cot. â—…br Nu. 69. * Uses and Trusts the same things Sed Mala perlong as invaluérâ—… morat Regula Juris 9 E. 4. fol. 14. There the Chancellor affirms that he has an Pbsolute Aower * See the Preface to Cok. 5th Rep. fol. 4. Hill 8 H. 4. fo 19. by Gascoign * 2 Just it fol. 611. See the Opinion of all the 12 Judges in their Answ. to the 16th Object How much the Trial of a Fact by 12 Men Sworn vivâ voce as to be preferr'd before the Conscience of One particular Man guided by Paper-Proofs * Hill 8. H. 4. fol. 19. by Gascoin that the Common Law is the Peoples Inheritance Sir Hen. Sp. Gloss. 108. Pag. 445. Aphor. 37. * See in Tacitus's Annaeis Lib. 11. cap. 2. What excessive Fees were taken by Advocates for Pleading Causes whereas by the Law Cincia it was provided of old that for Pleading of Causes no Man should take either Money or Gifts at length their Fees were moderated by a Decree of the Prince and Senate Cowley in his Davideis pag. 128. 22 E. 4. See that year Book fol. 6. and that it shall be tried by Witnesses and the Judges are utterly against the Sub-Paena and the then Chancellor agreed to it See Sir Coke's 13 Rep. fol. 44. in the upper part concerning the infinite Exceptions to Witnesses in the Civil Law Courts * 44 E. 3. fol. 25. Bro. Tit. Feofments to Uses plac 9. plac 20. Feeffees to Uses are called Feoffees in Trust. * Fol. 41. 67 57 fully ☜ * Fitz. Abr. tit Trial. plac 6. By the word Royal is meant Real See that Case in the Year-Book and Sir Rob. Cott. Abr. 424. Nu. 110. ☜ See also the Book entituled The Modern Reports fol. 61. in the case of King against Standish ☜ * Cok. 12 Rep. fol. 38. at the lower end Statutes that Prohibit Proceedings in Ecclesiastical Courts extend to Courts afterwards Erected See Sir E. C. 12 Rep. before cited fo 65. at the upper end the Opinion of K. James I. See 2 Inst. fo 601. the 1st Objection 2 Instit. fol. 408. Ryley ibidem fol. 411 386 374 373 371 361 362.