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, The Names of Chancel­lor, and Chance­ry. 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 first Chancel­lor in Eng­land. 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 The Na­ture of the Chan­cery, and Office of Chancel­lor. 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.)

[Page 2] 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, So Min­shew up­on the word. or other Writings, to signifie they are made void, and are to be of no farther use.

And this ('tis 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 Camb­den's Bri­tannia, p. 143. 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 A Mini­sterial, not Ju­dicial Of­fice at first. 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 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 [Page 3] (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 'tis pro­bable, the place of the Office afterwards acquired the Name of Officina Brevium.

It appears by Sir Henry 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 The Chancery▪ an Office. 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, [Page 4] (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 When the Chance­ry, from an Office, set up for a 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 5. E. 3. c. 14. 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. Rol [...]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 Chanc [...]y, in its Ori­ginal, was but an Office belonging to the higher Court of the King's Bench.

In its Equity-Proceedings 'tis 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. The Chance­ry, as toits Equity, no Court of Record. 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 [Page 5] Justitiâ exhibendâ, by subjoyning, that the Prince still did it by the Administration of his Court of Peers and Barons; which, The King with the Peers ad­ministred Justice, not the K. alone. 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 Hen Spel­man's Glos. pag. 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.

I [...] 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 The Ad­ministra­tion of Justice not entru­sted in o [...] single hand by the Com­mon Law. 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. 155 [...] 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 [Page 6] 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 Judges joined with the Chancel­lor. 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 [Page 7] 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 Edward Coke's 12 Rep. 63. See Sir Edward Coke's 2 Instit. i [...] the Chas of Arti culi Cle ri. fol. 601, 602. 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 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 [Page 8] 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 No Re­ports of Causes in Equity in the Chan­cery, be­fore the time of K. H IV. The Time. 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 The Occa­sion. was then fled unto.

[Page 9] 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 Uses of Land. 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 Edward Coke's 2 Instit. 553. No Act of Parlia­ment gives the Chancel­lor, the power of Equity. 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 Ro­bert 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 Sir Ri­chard le Scrope, or John de Wind [...] for's Case. 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 [Page 10] both Parties order'd to stand to the Common Law; and Windsor's Petition was dismissed. Sir Edward Coke says, that this Decree The first Decree in Chancery was rever­sed, and the matter left by the House of Lords, to the Com­mon Law. 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 Ro­bert Cotton's Abr. and Sir Edward 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 The Church­men were the first Setters up of a Juris­diction in Chancery, in matters of Equity. 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 The Jud­ges were at first wont to be con­sulted with by the Chancello. 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 [Page 11] 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 S [...]e Fi [...]. Abr. [...] Sub-Pae­na; and Brook's Abr. tit. Consci­ence, and Pasc. 22. E. 4. 6. Pla. 18.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 Edw. 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 The Com­mon Law, the only Law in England, anciently. 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, Dr. and Stu­dent, pag. 15. by Ju­ry, and not otherwise. 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 Books of the civil Law in­troduced into Eng­land by the Clergy, are com­manded to be [...]. 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 [Page 12] 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 The Nobi­lity were anciently the Stu­dents of the Com­mon Law. 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, 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 perquàm 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 [Page 13] 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 The H. of Commons constant opposers of the Equi­table Ju­risdiction of the Chancery. 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, And of the Process by Sub-Pae­na. 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. Vid. Roll's Abr. ut supra. The Commons in their Petition 4 H. 4, Cott. Abr. Nu. 78. pray, that [Page 14] 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 [Page 15] 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 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 'tis pretended he might;) so, and upon the There can be no Ju­risdiction in Equity, but either by Prescri­ption or Act of Parlia­ment; not by any Charter, or Commissi­on from the King. 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 Marmaduke 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 [Page 16] 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 What E­quity meant an­ciently. 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 [Page 17] 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 What is meant by Equity, in the true sence of it. 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 By the Stat. of Ar­ticuli su­per char­tas, cap. 5. in anno 28. E. 1 The Judg­es are cal­led, the Sa­ges of the Law. 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 [Page 18] 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 [Page 19] 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 The Jud­ges of the Common Law, are to review and re­verse De­crees in Chancery. 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 John de Waltham Bishop of Salish. the Inventer of the Writ of Sub-Paena, in the wicked time of King Ri­chard II. (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 [Page 20] 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 'tis The Writ of Sub-Paena cal­led a No­velty, by a Petition of the House of Com­mons, in the Reign of King Henry V. 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 [Page 21] 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, That a Prohibiti­on lies to stop a Suit in chance­ry. See Mich. 13. E. 3. Fuzh. A bridg­ment. Tit. Prohibiti­on, plac. 11. 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 [Page 22] 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 The Mis­chiefs from the Invention of Feof­ments to Uses, and in Trust. 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 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. [...]br. Nu. 69. 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 [Page 23] 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, (1 ⁰. Uses and Trusts the same things. That Uses and Trusts are the same things, Styles Rep. fol. 21. & 40.) 2 ⁰. 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 Sed Mala perlong as invaluér [...] morat. 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 [Page 24] 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.

[Page 25] 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.

[Page 26] 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. 2 [...]. says Mr. P [...]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 [Page 27] 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 Regula Juris. 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, & [...]2 verses; but here was nothing entrusted with the Priest or Judge, of reliev­ing against the pretended rigour or extremity of the Law in any Case, and resorting to another Court, without consulting with Almighty God. And in Cases of Difficulty of expound­ing of our Law, or supplying any defect; in the one Case we must have recourse to the Supream Court, and in the other to the Legislative Power. The Judaical Law stoops so low, and is so precise and singular, as to tell them what might not be ta­ken as a Pledge, what Number of Stripes might not be exceed­ed [Page 28] upon punishing an Offender. That Law, (as Moses says of it) 30 Deut. v. 11. & 14. was not hid from them, but very evident, (as the Marginal Note says) so that none could pre­tend ignorance. It was near unto them, Lex erat Domina & rectrix populi Israelis, says Melancthon in his Chronicle. The Lord Chief Justice Hale, in his Preface to the Abridgment of Rolls, speaking in Commendation of the Common Laws of England, says, These are not the product of the Wisdom of some one Man, but of the Wisdom, Council, Experience, and Observation of many Ages, of Wise and Observing Men: They are the productions of much Wisdom, Time and Experi­ence. Again, says he, The Common Laws of England are more particular than any other Laws, and this prevents Arbitra­riness in the Judge. General Laws leave a great Latitude to Partiality, Interest, and variety of Apprehensions to misapply them. And after all this Wisdom, Certainty, Particularity, and mighty Caution to prevent Arbitrariness, shall they be all made Subject to the Sudden and Arbitrary Opinion of any one Man to Controul these Laws, under a pretence of Equity, against the Severity and Rigour, (as they term it) of these Laws? Justitia est aequalitas, non quae nobis videtur, sed quam Lex ordi­nat, says Zenophon, speaking of a Decision of a Controversie made by Cyrus amongst the Youths, when Cyrus himself, being a Youth, was chosen a Judge amongst them: But Cyrus not observing the Rule of Law, received Correction for it. Quod do­cet (says Zenophon) leges ante-ferendas esse propriis. opinioni­bus.

That the Common Law, and the Laws of the 9 E. 4. fol. 14. There the Chan­cellor af­firms, that he has an Pbsolute Aower. Land are contra-distinct from Equity Proceedings, and that the Proceedings in Equity are not comprehended under the ge­neral words of the Laws of the Land, or the Common Law, appears by many Authorities, and by the several Petitions of the Commons against the undue Proceedings of the Chancery: as 2 H. 4. Numb. 69. There the rightful Laws of the Land an­ciently used, are distinguish'd from the Proceedings by Writs or Letters under the Privy Seal in Chancery: so 4 H. 41 Nu. 78. 3 H. 5. Nu. 46.

It was said with great Meekness, Moderation and Prudence, by that good natur'd Gentleman, and very learned Person, when in his height, (which he deserv'd) the Lord Keeper Bridg­man, in the Case of Fry and Porter in Chancery, being assist­ed by the two Ch. Justices, and Ch. Baron, If I were (said he) of another Opinion, yet I would be bound by the Opi­nion of my Lords the Judges: and doubtless he was in the Right, it being in a matter of Law, wherein not himself, but [Page 29] they were the sworn and proper Judges. See the Modern Re­ports, Printed in 1682. fol. 313. 22 Car. 2. but a late Lord Chancellor followed not this Example. Now to satisfie the highest Judicature, (the House of Lords,) that upon several Grounds, and for several Reasons, a Prohibition by Law might be granted by the Court of King's-Bench; and to induce the Lords so to declare, (to whom that properly belongs,) which will be of great use for the future, after so long a disusing of it: I shall, with the favour of the Lords, cite these following Authorities; and when such Prohibitions are granted, an Ap­peal, or Error, lies before the Lords upon it, so that the Lords do not part with any of their Jurisdiction by it. Fitzh. Natura Brevium, fol. 138. Letters B. & C. Crok. Jac. 335. Heath versus Ridley, Rolle's 1 Rep. 252. If a Man sue in any Court, a Plaint of Detinue, for any Charters that touch and concern Freehold, if it be not in the Court of Common Pleas, by Writ of the King, (where what concerns Freehold ought to be Sued,) the Party may Sue a Prohibition to forbid it. The words (any Court) must undoubtedly comprehend the Chancery Court of Equity. But yet more plainly in that point, see the form of that Prohibition, viz. Cum placita de detentione Chartarum sive Scriptorum Liberum Tenementum tangentium in aliquibus Curiis quae Recordum non habent, secundum Legem & Consuetudinem Regni nostri sine Brevi nostro Placitari non debent, &c. 4 Instit. of Sir E. C. fol. 71. It belongs properly to the Court of King's Bench, by granting Prohibitions to Courts Temporal, to keep them within their proper Jurisdiction. And in the 2 Instit. fol. 601, & 602, & 615. in answer to the 21th Article, the Temporal Courts must always have an Eye, that the Ecclesiastical Jurisdicti­on usurp not upon the Temporal; and fol. 618. at the upper part of that folio, the Judges are bound by their Oaths to grant Prohi­bitions; and in the same 2 Instit. fo. 607. at the end of the An­swer to the 10th Object. that Prohibitions are not of Favour but of Justice to be granted; this is affirmed by all the Judges.

Hooker in his Ecclesiastical Polity, pag. 26. stoutly affirms, That for the manifestation of the right of Governing, the as­sent of them that are to be governed seemeth necessary; and pag. 27. he further asserts, That all publick Regiment, of what kind soever, seemeth evidently to have arisen from deliberate Advice, Consultation and Composition between Men. If so, then it ought not to be assumed meerly by a Man's own Will and Pleasure, or without any lawful ground, and against the known Rules of Law. Thus much for the Title and Right of Administring Justice: then as to the manner of the Exercise of it, when it is so assumed, it is most commonly suited to the [Page 30] Usurped Right and Title: And therefore Learned Hooker pro­ceeds further to speak also to that point, ibid. To live, says he, by One Man's Will, is the Cause of All Men's Misery. This, says he, constrain'd Men to come to Laws, that all Men might see their Duties before-hand, and know the penalties of Trans­gressing.

But if under the specious pretence of the Laws being in some Cases rigorous, and of relieving against that Rigour by the wide Rule of Secundum aequum & Bonum, it shall be in the breast of One Man of great Power, and in great favour, to dispense with those Laws, or to Judge according to his Dis­cretion, by an Absolute and Arbitrary, and Dictatorian Power: What becomes of my best See the Preface to Cok. 5th Rep. fol. 4. & Hill. 8 H. 4. fo. 19. by Gas­coign. Birth-right, my Freehold and In­heritance, which I have in the known Laws of England? And what becomes of my property, which that known Law gave me? By which known Law I squared my Actions and Affairs, and thought my self secure by it, and my Self, my Family and Po­sterity well provided for. And after all, because I could not divine, 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 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. Trials of matters of Fact by Twelve Men, and preferring it infinitely before that of the Ci­vil [Page 31] 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 Edw. 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 Hill. 8. H. 4. fol. 19. by Gascoin, that the Common Law is the Peoples Inheri­tance. 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. [Page 32] 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 Sir Hen. Sp. Gloss. 108. be assur'd, how, or when he may possess his own in peace, nor [Page 33] 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 [Page 34] 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. Pag. 445. Aphor. 37.

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 [Page 35] of Persons enjoying subordinate Advantages un­der it, which do grow proportionably by its encrease, enjoying Wealth, 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. 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.

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 [Page 37] 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, 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 Edward Coke's 13 Rep. fol. 44. in the upper part, concerning the infinite Exceptions to Witnesses in the Civil Law Courts. 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 [Page 38] 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, and one single Person to be Judge of the Fact, upon proof by Witnesses, without referring it to the Judgment of Twelve Men; upon whose Verdict our Law, and the very Genius of the Nation from of old, lay so much stress, and are so fond of it. Yet let me observe further, That by the Chanceries doing this, there is another Great and Fundamental Maxim invaded; nay, several other Maxims; as that general Rule, That a Court of Equity can­not Relieve against a Maxim in Law; Rolle's 1 Rep. 219. And again, That a Court of Equity is not to determine of mat­ter of Fact, if it be denied, but it ought to go to a Jury to Try it. And the Author of Doctor and Student himself ap­pears to be of the same mind, not to allow of any Sub-Paena in such Case, pag. 155. in the middle of that page he holds, That where the Common Law in Cases concerning Inheritances, putteth the Party from an Averment, for eschewing of an Incon­venience that might follow thereupon, among the People, if the same Inconvenience should follow in the Chancery, if the same matter should be pleaded there; he says, no Sub-Paena should lie in such Cases; for as much and as great Vexations, Delays, Costs and Expences might accrue to the Party, if he should be put to answer such Averments in the Chancery, as if he were put to answer them at the Common Law; and therefore, says that Author, it is, that no Sub-Paena lyeth in such Cases, nor in any other like unto them.

In the Cases of Conveyances made in Trust, which is the great and busie work of the Courts of Equity, to enforce the performance of those Trusts, enough hath been alrea­dy observ'd, how that the Stat. of 27 H. 8. makes Uses and Trusts to be the same thing: and the drift of that Statute was to Transfer the Possession to the Use, and thereby what before the making of that Statute was relieveable only in Equity, is by that Statute now relievable at the Common Law, and thereby the Common Law in Effect restor'd, which before was usurp'd upon by that mischievous Invention of Uses. But how is the intent of that Law evaded, by making a groundless distinction between Uses and Trusts, 44 E. 3. fol. 25. Bro. Tit. Feofments to Uses, plac. 9. & plac. 20. Feeffees to Uses, are called Fe­offees in Trust. to the mighty enriching of some Men? Mighty profit arises to that Court by Redemption of Mortgages, wherein Relief being given, long after the time limited by the Parties, great Inconveniencies happen to the Mortgagee, by expecting the event of a tedious Suit, and what his Estate or Interest will [Page 39] at last fall out to be, whether real, or only personal, or of what value, and how to dispose of it in the mean time, as 'tis probable he would, if he knew it would be a real Estate, (as the Common Law does Judge it,) or whether only personal, and then to be left to an Executor, to perform his Will, or make a Provision for a younger Child, or how to dispose of it in case it prove the one or the other; he is a long time held in Suspence, till after some years the Court of Equity come to a Resolution about it. Many good Proposals have been made by a Bill lately depending in Parliament, and upon other occasions, from others that have been well wishers to the Nation, that might have cured these Mischiefs, but mightily oppos'd; For this is one of their Diana's, by which not only a Livelihood, but many a large Estate is gotten. The like mischiefs do arise from long Leases, utterly against the Ancient Common Law of England; but being generally made in Trust, and many times to attend upon the Inheritance, draws all the Trade into Courts of Equity; and they must be resolv'd to have the same quali­ties with Estates of Inheritance, as to be limited by way of Remainder and the like; and thereby a Confusion made of the distinct Species of Estates, whereby new and difficult Points and Cases every day arise: but by these means, almost all the Estates in England will in length of time, by degrees, fall under the Decision of Courts of Equity. So also, by relieving against the Penalties and Forfeitures of Bonds and Securities for Money, which might and would easily be provided against, by the Agreement of the Parties in their first Sealing with one another; but is wholly neglected by reason of this common Re­lief given in Courts of Equity, in such Cases; tho to the great Vexation, and mighty Expence of the Parties at last, who repent of this Course, when it is too late.

But that which is of greater Importance than all that hath been hitherto observed, and is of a more Transcendent Na­ture in the Exercise of the Jurisdiction of Equity in the Chan­cery, is, that they relieve in Cases after Judgment obtained at the Common Law, and render the Judgment of no Effect; so that all the time and charges spent in gaining that Judgment, are lost.

They of the Chancery, supposing that the Statute of 4 ^to Henry IV. Cap. 23. doth not extend to the Court of Chan­cery, tho' it Ordain and Establish in express words, viz.

That after Judgment given in the Courts of the King, the Parties and their Heirs shall be thereof in Peace, untill the Judgment be undone by Attaint or Errour.

[Page 40] Which liberty being taken of a Jurisdiction in Equity, after Judgment at Law, tends (as the Preamble of that Statute does recite,) to the great impoverishing of the Parties aforesaid, subversion of the Common Law of the Land.

And the Preamble tells us what the mischief was that occa­sioned the making of that Statute, viz. That such Judgments were again Examined, and the Parties made to come upon grie­vous Pain, (that is, by Process of Sub-Paena,) to answer thereof of new, sometimes before the King himself, sometimes before the King's Council, and sometimes to the Parliament.

It does not indeed by plain and express words mention the Chancery, which yet (as is held by the Chancery-men) is Coram Rege;

But does the Statute restrain the King himself, and the Coun­cil, and the Supream Court, the Parliament, from the Liberty of examining into Equity after Judgment given? and can we Believe it might be indulged to any other Court whatsoever? whether, to a Court then in being, (if the Chancery were so,) or to any other Court of Equity, that should in after-times be Erected? Would not all the mischief recited in the Preamble of that Statute, and intended to be remedied by it, return again upon us? Did the Makers of that Law mean to forbid it to these High Resorts and Powers, the King, the Privy Council, and the Parliament, out of favour to the Chancery, or to any Court of Equity, that after the making of that Statute, should assume to it self a Jurisdiction in Equity? that the Chancery, or such other Court might Engross to it self this mighty and exceeding busie Employment, of Relieving in Equity after Judgment, and so over-top the Courts of the Common Law? Will not the Common Law be still Subverted thereby, which that Statute meant to redress? And how will 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!

[Page 41] The Great Seal and the Privy Seal are on their side, ('tis 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 Edw. 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, [Page 42] 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. Fol. 41. & 67, & 57 fully. 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, [Page 43] (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 [Page 44] 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 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. 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. [...]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 [Page 45] 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 Tho. Hardres's Rep. fol. 121. Harris versus Colliton; The Defendant had Judgment at Law See also the Book entituled, The Mo­dern Re­ports, fol. 61. in the case of King a­gainst Standish. 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 Cok. 12 Rep. fol. 38. at the lower end, Statutes that Pro­hibit Pro­ceedings in Ecclesi­astical Courts ex­tend to Courts af­terwards Erected. 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 'tis there said, That the Chancellor TOOK NtOT UPON HIM ex Officio, to determine matters in Equi [...]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, or at any time should be, where there might be the same mischiefs, viz. by Impeach­ing Judgments given in the King's Courts, which are so often declared to be in Subversion of the Law.

He affirms, That the Proceedings by English Bill in Chancery, are not Coram Domino Rege in Cancellaria, (as the Latine Proceed­ings [Page 46] are,) but by a Bill or Petition directed to the Lord Chancel­lor, and not to the King. This Case was adjourn'd, and we heard of no further Proceeding. I was then of Council for the Plaintiff at Law to maintain the Stat. of 4 H. 4. and the Demurrer.

Crompton's Jurisdiction of Courts, in the chapter of the Chance­ry, fol. 67. he allows of the Statute of 4 H. 4. and agrees it ex­tends to the Chancery, and mentions what is written by Do­ctor and Student upon that point.

So that here are all sorts of Resolutions in this very point, and from all sorts of Authorities in Law, and in several Reigns Ancient and Modern, by the whole Parliament, declared by se­veral Statutes; by the House of Lords, by all the Twelve Jud­ges, at several times; by all the Courts of Law in Westminster-hall, and in particular by the Court of Exchequer; most of whose business is to Relieve in Equity, grounded upon a Power and Jurisdiction, vested in them by Act of Parliament, if not by Prescription; (the two onely ways whereby a Jurisdiction in Equi­ty can be given, as has been often resolved, and was before obser­ved). And all these are Unanimous, not one Judge dissenting or doubting; not any one Resolution, Book, or Authority in the Law to the contrary: And yet, as I am informed, the Court of Chancery constantly, and without any hesitancy or scruple made of it, proceeds to Relieve in Equity after Judgment at Law.

The Plea and Argument for it on the Chancery side (which we may find in a late Author, the Title of whose Book is, Reports of Cases in the Court of Chancery, Printed 1693. to which is added Arguments to prove the Antiquity, Dignity, Power, and Juris­diction of that Court: And much to that purpose is recited in Sir Edw. Coke 3 Instit. fol. 125. in the beginning of that folio.

It is a Privy Seal, 14 Jac. Anno 1616. whereby that King (assuming to himself a Power to Arbitrate between the Courts of the Common Law and the Chancery, in questions concerning their Jurisdiction, and more especially in the great Dispute be­tween the Judges and the Chancellor: Whether the Chancery could Relieve in Equity after a Judgment obtained at Common Law; which Dispute did arise upon the construction of the Stat of 4 H. 4. cap. 23. (whichdid by Law belong to the Judges to determine and resolve, as hath been proved: and they had de­termined it.)

King James taking it to belong to his Kingly Office, to Arbi­trate in such Cases, Decides (as they would believe) the Con­troversie, by adjudging it with the Chancery, which he signifies under his Privy Seal; and thereby does Will and Command, the Chancellor shall from thence-forward proceed to give such [Page 47] Relief in Equity: And this was done against the Unanimous Resolution of all the Judges of England, and without calling the Judges to Debate it, and without any Hearing of them; looking upon them as Parties concerned and practical, (which is a Scurvey Reflection, and Scandal upon the Justice of the Nation; See the 2d Instit. of Sir Edw. Cok. fol. 617. The Answer of the Twelve Judges to the Twenty fourth Objection, to this purpose;) so that the King upon hearing his own Council, Learned in the Law, only took upon him to Over-rule all the Twelve Judges in a point of Law, and to Inter­pret and Expound an Act of Parliament, which properly belongs to the Judges, next under the Supream Court.

And no wonder is it, if King James I. took this Arbitrage upon him, as belonging to his Kingly Office, and resolved it under his Privy Seal; when his constant Opinion was, that he was above the Law; and that it was Trea­son to affirm the contrary; which yet all the Twelve Judges stoutly did; See Sir E. C. 12 Rep. before ci­ted, fo. 65. at the up­per end the Opini­on of K. James I. and cited Bracton for it; Rex sub Deo & Lege. See a Collection of King James's Works, in a large Folio, Printed 1616. pag. 203. where he affirms, that the King is above the Law, and that he may Interpret it: And pag. 534. That it is his Office to make every Court to contain it self within his own Limits; See the Act for regulating of the Privy Council, &c. 16 Car. 1. cap. 10. before-mentioned in the 5th Paragraph, it is Declared and Enacted, That nei­ther his Majesty, nor his Council, have, or ought to have any Jurisdiction, Power, Authority, by Petition, Articles, or any other way, to draw into question, determine, or dispose of the Lands or Goods of any of the Sub­jects of this Kingdom; but the same ought to be Tried and Determined in the ordinary Courts of Justice, and by the ordinary Course of Law. See the several ancient Statutes that require and command the Judges to proceed to administer Justice, without Regard had to the Great, or Privy Seal, that command the contrary, Magna Charta cap. 29. 2 E. 3. c. 8. 14 E. 3. c. 14. See 2 Inst. fo. 601. the 1st Ob­jection. 20 E. 3. c. 11.

Some will argue for the Jurisdiction of the Chancery in Equity, from the Statute of Westminster the 2d, 13 E. 1. cap. 24. which directs, That Ne­mo recedat à Curia Regis sine Remedio; from hence they Collect, that where there is matter of Equity, wherein the Common Law cannot Relieve, there the Chancery by this Statute is enabled to provide Remedy.

Whereas the Design and Scope of that Statute extends no further than to the framing of Writs, in order to Relief by Actions at the Common Law, where the Register of Writs (that ancient Book of Law) had for some new and special Cases provided no Writ; which is the first step in every Acti­on, and is proper work for the Chancery, which is therefore styled, Offi­cina Brevium.

It is very far from giving that Court any Jurisdiction in Equity; but it shews what Remedy is to be given towards a Proceeding at the Common Law, and not to Relieve against it.

But it may be noted from this ancient Statute, that neither the Chancellor nor the Chancery could alter an Original, or so much as frame a new Writ, were there never so great Necessity for it, till enabled by this Statute. It could be done only by the Parliament; and in such Cases the Parties were forced to wait till the meeting of a Parliament, tho they had manifest Right, and clear Equity on their side, but no Remedy at Law. If it were then a Court of Equity, why did not the Chancery Relieve in Equity, because the Party was without Remedy at Law?

Note in the next place, That the Parliament by that Statute doth not en­trust the Chancellor alone, nor any one Person, with the framing of new Writs, fitted to such new Cases; tho they were Cases that had a manifest Right, but not a Legal Remedy; and yet. Writs serve but as a mean to [Page 48] 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 2 Instit. fol. 408. 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 nunquàm 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 Ryley, ibi­dem, fol. 411, 386, 374, 373, 371, 361, 362. 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.