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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26141	An enquiry into the jurisdiction of the Chancery in causes of equity ... 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 ... ; 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£ per annum, &c.	Atkyns, Robert, Sir, 1621-1709.	1695 (1695)	Wing A4137; ESTC R16409	49,475	54

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 Resus●…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 In●…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

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 ●…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

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 Fortes●…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