too much as I conceive of the King's Power but not this of referring the examination and correcting of erroneous and unjust Decrees in Chancery to fit persons for that purpose I am sure 't is not prohibited by that Statute by any particular words nor are there any general words therein contain'd that according to the rules of Law and construction of other Statutes can be construed to extend to the taking away of that course of proceeding For the clearing of which point it is requisite that the Statute should be taken strictly into consideration the prohibiting part whereof is as followeth Be it Ordaiued and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging to or exercised in the same Court or by any Judges Officers and Ministers thereof be from the first day of August 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellor nor the Kéeper of the Great Seal of England the Lord Creasurer of England the Kéeper of the Kings Privy-Seal or President of the Councel nor any Bishop Temporal Lord Privy-Councellor Judge or Justice whatsoever shall have any Power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or do any Judicial or Ministerial act in the said Court and all and every Article Clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given limited and appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any proccedings to be had or made in the said Court or for any matter or thing to be drawn into question examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the Power and Authority thereby given unto it be from the said first day of August repealed and absolutely revoked and made void And be it likewise Enaded That the like Jurisdiction now used and exercised in the Court before the President and Councel in the Marches of Wales and also before the President and Councel established in the Northern-parts and also in the Court commonly called the Court of the Dutchy of Lancaster before the Chancellor and Councel of that Court and also in the Court of Exchequer of the County-Palatine of Chester held before the Chamberlain and Councel of that Court the like Jurisdiction being exercised there shall from the first day of August 1641. he also repealed and absolutely revoked and made void any Law Prescription Custom or Usage c. to the contrary thereof in any wise notwithstanding and that from thenceforth no Court Councel or place of Judicature shall be erected ordained constituted or appointed within the Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath haen used practiced or exercised in the said Court of Star-Chamber Be it likewise Declared and Enacted by the Authority of this present Parliament That neither His Majesty nor His Privy-Councel have or ought to have any Jurisdiction Power and Authority by English Bill Petition Article Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Dereditaments Goods or Chattels of any of the Subjects of this Realm but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law These are all the prohibitory words of that Statute I will not say any thing of the reasonableness or unreasonableness of it but that it was made in 41. But taking it as it is I think it deserves no further construction to disable the King from performing his Oath that is to see that Justice should be done to his Subjects than the very express words will bear and for the right understanding of it it is to be considered in all the parts thereof without relying on any one single Clause alone and thereby it will appear how far the whole may be construed to take away any Power that was before in the King It takes away the Star-Chamber and the Power thereof and prohibits the erecting of any Court of the like Jurisdiction by express terms but by so doing it meddles not with this Power of the Kings to refer the examination of an unjust Decree made in Chancery by One man to Three or Four or more men fit for the purpose neither in terms nor in construction And it is a great argument that it was never intended to be taken away by that Act because it is not taken away by express words for if it had been intended to have been taken away it might have been express'd by particular words it being no new invention since the making of that Act but a course long practis'd before that Act was made as appears by what is aforesaid and that without the least contradiction but on the contrary with the greatest approbation that could be viz the approbation and direction of the Lords House in Parliament at one time and of all the Judges of England at another time as is aforesaid and of all the great Writers of the Law of those times so that there was then no apparent reason for taking it away The next part of the Statute and that which seems most to oppose me is That the King nor His Privy-Councel have or ought to have any Jurisdiction Power or Authority by English Bill Petition Article Libel or any other arbitrary way to examine draw into question determine or dispose of the Lands Tenements c. but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law For the understanding of this it is to be remembred the King for the execution of the Law had two sorts of Powers in Him by the Common-Law He had Power and Authority thority in Person to hear Ordinaria Jurisdictio pertinet ad Regem Bract. fol. 108 412. Ordinaris Juris dictio remanet cumipso Rege Bract. fol. 55. determine and dispose of the Estates of his Subjects upon Controversie arising between them and complain'd of to him and this is properly called Jurisdiction Designatio Justiciariorum est à Rege Jurisdictio vere ordinaria à Lege Co. 4 Inst fo 74. and he had also designatio Judiciorum a power of nominating and appointing Judges under him to hear determine and dispose of the Estates of the Subjects touching which any Controversie did arise and was brought before them to be decided as appears in the beginning of this Treatise Sect. 2. per tout So that if he should be excluded himself by this Statute from hearing and determining in
Jus Appellandi AD REGEM Ipsum A CANCELLARIA OR A Manifestation of the King's Part and Power to Relieve His Subjects against Erroneous and Unjust Decrees in CHANCERY Collected out of the Authorities of Law By WALTER WILLIAMS of the Middle-Temple Esq Rex Sapiens Judicabit Populum suum Bract. l. 3.107 LONDON Printed in the Year MDCLXXXIII TO THE High and Mighty MONARCH CHARLES II. By the Grace of GOD KING of Great-Britain c. Most Gracious Sovereign HAving spent many years in the study of your Majesty's Laws and conceaving that several for whom I was concern'd as Councel had been much wrong'd a while since by Decrees in Chancery and finding that they were past hopes of being Righted There I advis'd Petitions to be preferred to Your Majesty the Fountain of Justice thereby beseeching Your Majesty to relieve Your Petitioners either by re-hearing the matter in Your Royal Person or by referring it to such fit persons as Your Majesty should nominate whereupon it was declared by some near Your Majesty That Your Majesty could not legally grant your Petitioners Request and that no Relief could be had against Chancery-Decrees but by the House of Lords assembled in Parliament which thing I apprehended to be a great mistake and tended as I conceiv'd to the Outing of Your Majesty of that Just and Necessary Jurisdiction Preheminence and Authority which is united and annexed to your Imperial Crown and which to assist and defend to my Power I am bound by Oath In discharge whereof I have made diligent search for what evidence could be found in the Authorities of Law to make out Your Majesties just Title to the premisses and what I have found I have made a methodical Collection of being I hope sufficient for the purpose whereunto I have also added some instances of the great mischief it is to your Subjects and may be to Your self your Crown and Dignity that Your Majesties Power in that matter is not put in practice All which I humbly lay at Your Majesties Feet begging Your Majesties acceptance and consideration thereof as it is the product of the unseigned Fidelity and Allegiance of Dread SIR Your Majesties most Faithful and Obedient Subject WA WILLIAMS To His Majesties most Honourable PRIVY-COUNCIL Great Sirs NExt to His Sa-cred Majesty to a C. 4. Inst 53. Crompt Juris 35. You all Honour and Reverence is due as being Incorporate to His Person and Whose b C. 4. Inst. 54 High Office it is according to the best of your Judgments truly and justly to advise and counsel the King in all things that may be to His Honour and Behoof and for the good of His Subjects And though His Majesty is arm'd with several other Councels for several purposes yet it is with You that he consults and advises amongst other the most weighty Affairs of State when and upon what occasion it is that He is to call to His other Councels for Advice and Assistance It appears by the Writs of Summons of the Lords to Parliament Cromp. Ju. fo 1. and by the Writs to the Sheriffs for Election of Knights and Burgesses that it is by Your advice the King doth call His Parliament for after the Salutem in those Writs are these words viz. Quia de Advisamento Assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quodam Parliamentum nostrum apud c. teneri ordinavimus If then it appertains to You to advise His Majesty when it is proper to call His Parliament it follows of consequence that it appertains to You also to advise Him to call His other Councels upon occasion And hence I conceive it is that You have been Dignified in ancient Records by the name of Magnum Concilium Regis and thereby distingnished from Magnum Concilium Regni Co. 1 Inst. 110. cites Records to that purpose which is the Parliament Therefore and in as much as frequent supplications have of late been made by divers to His Majesty for Relief against mistaken Decrees in Chancery witheut effect by reason of some Opinions that there was no legal Remedy in such Cases but by Appeal to the Lords House assembled in Parliament I have for the advancement of Justice and maintenance of the King 's Right of Jurisdiction compil'd and adventured humbly to recommend this ensuing Treatise to His Majesty and Your consideration which if You vouchsafe to peruse I hope it will make it so clear that His Majesty may lawfully relieve His Subjects against such mistaken Decrees in the Intervals of Parliament as to confute all Opponents or at leastwise manisest so much probability thereof and that there is so much necessity for the use of it as may induce You to advise and desire His Majesty to be further satisfied therein by the Opinion of His whole Colledge of Judges who in case of doubt in matters of Law our Law-Books say are his particular and sworn Councel Co. 1 Inst. 110. vi Jurament Jnsticiarior 18 E. 3. In doing whereof I humbly conceive you will perform an act that will highly redound to the Honour of the King welfare of His injur'd Subjects my Zeal to Both which hath put me upon begging Your favourable Reception and Interpretation of this Labour of His who submits both Himself and It to Your Honours Command W. W. The CONTENTS OF the mutual Obligation upon King and People in reference to Government Sect. 1. What is Jurisdiction to Whom it appertains and How anciently exercised in this Kingdom Sect. 2. What is meant by judging according to Equity and by Whom it was anciently exercised Sect. 3. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery Sec. 4. Of the Corruption and Mistakes of some great Chancellors Sec. 5. That an Appeal to the King in the Intervals of Parliament is an ancient legal remedy against mistaken Decrees in Chancery with the manner of proceeding therein Sec. 6. The inconveniencies that accrew for want of a constant relief against erroneous Decrees in Chan. Sec. 7. Whether the King ought ex debito Justiciae to hear in person or to grant referrences upon complaint to him made against erroneous and unjust Decrees in Chancery Sec 8 ERRATA PAg. 2. l. 19. for Statute 1 El. c. 10. r. Statutes 1 5 El. c. 1. p. 19. in 2 marg note for 232 r. 233. p. 29. 2 marg note for 16 r. 66. p. 28. marg note for 33. read 13. pag. 33. in the 2 marg note fo r. cap. p. 42. l. 24. for have r. hath pag 48. marg note for 4 r. 3. p. 70. for Bracton r. Britton ib. l. 13. for sua r. suam p. 71. l 15 for 10 r 20 p 78 2 marg note for 14 r 24 p 9 l 12 for 22d r 12th p 106 marg note for 32 r 33 p 119 in marg note for 37
first part which was formerly Decreed for him his Lordship made doubtful whereupon Smithwick Petition'd to the Lord Chancellor to have his Money again and he had it It appears further by the said Journal Books that several days were in a great part Employed in taking Examination of Witnesses in proving and detecting the Briberies and Corruptions of that Lord Chancellor which being ended and collected were order'd to be Transcrib'd with the Proofs and on the 24th of April following were order'd to be sent to his Lordship with a Message that the Lords requir'd his Answer with all convenient speed The Corruptions as they are mentioned to be prov'd in the Journal of the Lords House of the said 24th of April are as followeth That in the Cause between Sir Rowland Egerton and Edward Egerton his Lordship received on the part of Sir Rowland Egerton before he decreed for him 500 l. Item of Edward Egerton in the said Cause 400 l. Item in the Cause between Hodie and Hodie a dozen of Buttons after the Cause end ed of the value of 50 l. Item of the Lady Wharton 310 l. Item of Sir Tho. Munke 100 l. Item of Sir John Trevor 100 l. Item of one Young 100 l. Item of one Fisher 106 l. Item in the Cause of Kenday and Valore of Kenday a Cabinet worth 800 l. Of Valore borrow'd at two times 2000 l. Item in the Cause between Scot and Lenthall of Scot 200 l. Item of Lenthall 100 l. Item of one Wroth who had a Cause between him and one Mannering 100 l. Item of Sir Ralph Hansby 500 l. Item in the Lord Mountaine 's Cause of the Lord Mountaine and more promis'd at the end of the Cause 600 or 700 l. Item of one Mr. Dunch 200 l. Item in a Cause between Raynold and Peacock 200 l. in money and a Diamond Ring worth 5 or 600 l. 700 or 800 l. Item of Peacock 100 l. Item in a Cause of Barker 700 l. Item there being a reference from his Majesty to his Lordship of a business between the Grocers and Apothecaries he had of the Grocers 200 l. Of the Apothecaries besides a rich present of Ambergreece 150 l. Item of the French Merchants to constrain the Vintners of London to take 1500 Tuns of Wine to accomplish which he used very indirect means by colour of his Office and Authority without Bill or other Suit depending as threatning and imprisoning the Vintners for which he receiv'd of the Merchants 1000 l. Lastly That he had given way to great exactions by his Servants in respect of private Seals and sealing Injunctions By the Journal-book of the 25th of the said month it appears that Baron Denham and Mr. Attorney-General reported their delivery of the Charge of the Lord Chancellors corruptions to his Lordship and that he said he would return the Lords an Answer whereupon the Lords soon after sent a message by Baron Denham and Mr. Attorney to know if he would make his Confession or stand to his Defence to which they brought answer That his Lordship would make no defence to the charge but meant to acknowledge corruption and to make a particular confession to every point and after that an humble submission but he humbly crav'd liberty that wherein the charge was more full than he finds the truth of the Fact he may make declaration of the truth in such particulars the charge being brief and not containing all circumstances Whereupon the Lords sent the same Messengers back to him to let him know they had granted him time till Monday next being the 30th of April at 10 in the morning to send such Confession as his Lordship intended to make On the 30th of April the Lord Chief-Justice Leigh who then executed the place of Lord Chancellor in the Lords House signified to their Lordships that he had received a Letter and paper Roll sealed up which being delivered to the Clark of the Lords House and being opened found directed to their Lord ships it was read and began thus To the Right Honourable the Lords Spiritual and Temporal in the High-Court of Parliament assembled The Confession and humble Submission of Me the Lord Chancellor UPon advised consideration of the charge descending into my own conscience and calling my memory to an account so far as I am able I do plainly and ingeniously confess that I am guilty of Corruption and do renounce all defence and put my self upon the Grace and Mercy of your Lordships The particulars I do confess and declare to be as followeth To the first Article of the charge viz. in the Cause between Sir Rowland Egerton and Edward Egerton the Lord Chancellor received 500 l. on the part of Sir Rowland Egerton before he decreed the Cause I do confess and declare Upon a reference from his Majesty of all Suits and Controversies between Sir Rowland Egerton and Mr. Edward Egerton both parties submitted to my award by Recognizance reciprocally in 10000 Marks apiece and thereupon after divers hearings I made my award with advice and consent of my Lord Hobbart and the award was perfected and publish'd to the parties which was in February Then some days after the 500 l. mentioned in the charge was delivered to me Afterwards Mr. Edward Egerton fled from the award Then in Midsummer Term following a Suit was begun in Chancery by Sir Rowland to have the award confirm'd and upon that Suit was the Decree made which is mention'd in this Article To the second Article viz. That in the same Cause he received from Edw. Egerton 400 l. I confess and declare That soon after my first coming to the Seal being a time when I was presented by many the 400 l. mentioned in the charge was delivered unto me in a Purse and I now call to mind from Mr. Edward Egerton But as far as I can remember it was exprest by him that brought it to be for favours past and not in respect of favours to come To the third Article of the charge viz. in the Cause between Hodie and Hodie he receiv'd a dozen of Buttons of the value of 50 l. about a fortnight after the Cause was ended I confess and declare That as it is laid in the charge about a fortnight after the Cause was ended it being a Suit of great Inheritance there were Gold Buttons about the value of 50 l. as is mentioned in the charge presented unto me as I remember by Sir John Perient and the party himself Thus far it is verbatim as it is in the said Journal book and after the same form he proceeds and confesseth the receipt of all the money and other things in the charge and some particular sums more but with some little endeavours to extenuate the Crime as that the money was sent as a present after the Causes ended and confessed that he had imprisoned some of the Vintners because they refused to take off the French Wines and that it was a great fault in him that he
ordains That noue from thenceforth except out Lord the King shall hold in his Court any plea of false Judgments given in the Court of his Cennants for such Plea especially belongeth to the Crown and Dignity of our Lord the King Though the Supream Jurisdiction were in the King to use as he saw best it is but rational that if the Parliament were sitting at such time as any Complaints were made to him of any Erroneous Judgment or Decree that he should refer the Examination and final Determination of the matter to the House of Lords who without any manner of doubt are and always were the fittest Referrees the King could refer any matter to be determin'd they being the chief Assembly of the Honour Integrity Wisdom and Justice of the Nation and therefore it is but reasonable the King should take the measures of his final Determination from their Advice or refer it to them to determine which is all one Better or Abler Advisors being not to be found but it is as true they had no power of Judging by their own innate Authority but by a delegated Authority from the Kings as plainly appears by what is said before and also by the Parliament Roll of the 4 of Ed. 3. which is recited in Cotton's Records In haec Verba viz. The Treasons Felonies and other misdemeanors of Roger Mortimer are particularly repeated a great part of which Roll cannot be read for that the Roll is mouldred but in the end it appears that the King charg'd the Lords and Peers who as Judges of the Realm by the Kings Assent adjudged that the said Roger should be Drawn and Hang'd Whereby it appears it is the Kings Charge to the Lords and the Kings Assent that gives them Jurisdiction and Authority And so it follows of necessary consequence that though they are the fittest for the King to Authorize to determine the mistakes and Errors of his Chancellors and other Judges yet if when they are not Assembled in a Parliamentary way there is no reason nor authority against it nor inconveniency by it for the King to Authorize a convenient number of the Lords of the Parliament and Judges that are near him to take course with Erroneous Decrees in the mean time until the Parliament sits And therefore it was that it was provided by Act of Parliament the 31st of Ed. 3. cap. 12. That the Lord Chancellor and Treasurer should have Power upon Complaint to take the Justices and such other sage persons as they thought fit to their Assistance and to Examine the Judgments of the Exchequer Court And if any Error be found they may corted the Rolls and after send them into the Exchequer to make I thereof Execution Which thing I conceive the King might have done of himself without Act of Parliament and I conceive the Act made it a standing Rule to prevent often troubling the King upon every particular occasion and though there be no provision by that Act for any further Examination of the Judgment of the Chancellor and Treasurer in that Case yet it is not so final but the King may upon Petition to him order a Writ of Error returnable in the House of Lords Assembled in Parliament for a further and more due Examination of the matter if either Party thinks himself agrieved thereby and from that time forward ziz the 31 of Ed. 3. there was no standing Order made by Act of Parliament as to the Errors of the Court of Kings-Bench for by that Name I shall now call the Successors of the Judges that followed the King mentioned in the aforesaid Authors but it stood at the Kings meer pleasure 27 El. 8. as formerly until the 27 of Queen Elizabeth Yet our latter Kings before that Statute for the most part used to refer the Examination and Correction of such Errors only to their House of Lords in Parliament insomuch that for want of oftener referring it to their Councel or to Specialibus Auditoribus Special Commissioners as Fleta affirms the King could do as is mention'd in the beginning of this Section it grew to be an Opinion that Errors of the Court of Kings Bench could be rectified no where but in Parliament as appears by the Preamble of that Statute of the 27 of Eliz. Therefore and as the Preamble of that Statute mentions Because the Court of Parlisament was not in those days so often held as in ancient time and because in respect of the great Affairs of the Realm such Erroneous Judgments meaning those of the Kings Bench could not be well consider'd and determin'd in time of Parliament whereby the Subjects of the Realm were greatly hindred and desayed of Justice It was therefore enacted That the Errors of Judgments in the said Court of Kings-Bench in certain Actions therein mention'd should be examined and rectified in the Exchequer-Chamber by such persons as in the said Act is mentioned and after the Judgment is affirmed or tedersed the Record and all things concerning the same shall be removed and brought back into the Court of Kings-Bench that such further proceedings may be thereupon as well for execution as other wise as shall appertain And thereby it is reserv'd That the parties shall not be finally concluded by such Reversal or Affirmation but that they may sue in the high Court of Parliament for a further and more due examination of the said Judgment in such sort as was thentofore used upon erroneous Judgments And the manner thentofore was that before any Writ of Error could be brought to examine and correct Errors in Parliament a Petition was to be preferred to the King for allowance thereof and it was to be allowed by the King before any such Writ of Error could be made as appears by the Authorities in the margin 1 H. 7. fo 19 20. Dy. fo 375. which makes it most plain where in whom the Supreme Judicative Power lay And Judge Jenkins says Jenk Lex terrae fo 55. The reason of the Law and the King's allowance of a Writ of Error returnable in the House of Lords is for that the Judges of the Land all of them being of the Kings Councel and the twelve Masters in Chancery assist in the Lords House by whose advice erroneous Judgments are redrest So that it appears plainly their Judicative Power in that particular is not originally and fundamentally in themselves but derived from the King by his allowance thereof who is fons origo Justitiae Bract. lib. 2. cap. 4. and says Bracton est enim Coronae Regis facere Justitiam Judicium tenere pacem sine quibus Corona consistere non potest nec tenere hujusmodi autem jura sive Jurisdictiones ad personas sive tenementa transferri non poterunt nec per privata persona possideri nec usus nec executio Juris nisi hoc datum fuerit ei de super sicut Jurisdictio delegata non delegari poterit quin Ordinaria remaneat cum
person yet there is not a word that excludes him from nominating Judges to hear and determine Therefore if he could nominate Referrees to rectifie a Chancery-Decree before the Statute as most apparently he could he may do so yet there being not one word in the Statute that prohibits it And whereas it prohibits all arbitrary ways whatsoever of disposition of the Subjects Estates by the King or his Privy Councel this course is not to promote Arbitraryness but to prevent it for it is more arbitrary to leave Causes to the final determination of one single mans Judgment than to refer it to the Judgment of five or six it being not so easie to corrupt or deceive many as one and that is the reason why a Tryal by Jury of Twelve is so much approv'd of and applauded for they being many Fortescue fol. 75. cannot all be easily corrupted And as to that part of the Act that says The fore-mentioned Estates ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law certainly none can say that have considered the premisses but that referring the examination of Chancery-Decrees to a convenient number of sage persons as is aforesaid may very well be accounted a proceeding in Chancery according to the ordinary course of that Court since the first practice of the Court was to determine not by the Chancellor alone but by the consent of divers others as is aforesaid Sect. 3. And I conceive the House of Lords terming it a reviewing of the Decree in Chancery when they directed application to be made to the King for a Commission as is afore-mentioned and all the Judges of England giving their Opinion for the legality of such proceeding and the same consented and agreed to by the then Lord Chancellor and the long continued practice of it without any dislike when there was occasion as I have made appear for several Princes Reigns and until an unparallell'd Rebellion and Usurpation put that as well as all things else out of course may intitle it to an ordinary course of proceeding if any proceeding at all in Equity in Chancery can be so accounted and the determining Causes there by the Chancellor himself without any assistance or consent of others is more like an arbitrary and an extraordinary way and new sort of practice than that For further manifestation of this matter and that a reference from the King to examine the injustice of a Chancery-Decree is a proceeding in Chancery and no erecting of a new Court and that as well when the Lord Chancellor or Lord Keeper is not one of the Referrees or Commissioners as when he is it appears by the proceeding upon the fore-mentioned Reference by the King to the Master of the Rolls and a Judge of the Kings-Bench to examine the injustice of the Decree between Pennington and Holmes afore-mentioned That upon that reference the proceedings on the first Decree was staid and what was done thereupon is entred among the proceedings in Chancery as an Act of that Court And moreover Dúgd Orig. Ju. fol. 32. That Etheldred appointed the Office of Chancellor to be exercis'd by three Abbots by turns it cannot be deny'd but the King may commit the custody of his Great Seal to several Commissioners as King James did upon the outing of the corrupt Lord Bacon See the Parliament Roll of that time and Dugd. Chronological Table of Chancellors and Keepers and in such cases one of the Commissioners keeps the Seal and is President amongst the rest but they have all equal Authority in judging according to the purport of the Commission * 12 Maii 19 Jac. ordered in Chancery inter Butler and Eliot That the Decree made by the Lord Bacon should not be signed by the Commissioners of the Great Seal until notice to the other side as by the Registers Book of Orders in Chancery of that day appears and do sign Decrees and if the King may make many Judges in Equity to hear all Causes generally what is the reason he cannot appoint many Judges there in some few particular Causes upon complaint of mistake by his Chancellor or Keeper since he that may do more can do less and the King is not ty'd to have any certain or limited number of Judges in his Courts for there were in the Common-Pleas in E. 4.'s time and before sometimes 6 7 or 8 and King James had five Judges in the Kings-Bench whereof my Great-grand-father Sir David Williams was the fifth and as many in the Common-pleas about the beginning of his Reign as may appear by Dugdale's Chronological Table of Judges of that time So that I cannot apprehend any manner of prohibition neither express nor implied in this Statute nor any other against the Kings referring the examination and regulating unjust Decrees in Chancery to others besides the Chancellor or Keeper This Statute deserves not to be extended beyond it self it being a penal Statute which is never to be taken by Intendment further then the very express words of the Prohibition upon a strict and bare construction will bear however the Statute it self in the conclusion hath by express words somewhat mended the matter from what is contain'd in the premisses for in the end of the Act there is a Provisoe which doth in effect restore the King to almost all his Ancient Jurisdiction and puts all the seeming Cause of doubt about the matter of Referring the Examination of unjust Decrees in Courts of Equity quite out of doors by confining the meaning and construction of the Statute to the words of the Provisoe therein contained which Provisoe is in these words Provided always and be it Enacted that this Act and the several Clauses therein contain'd wall be taken and Expounded to extend only to the Court of Star-chamber and the said Court holden before the President and Councel in the Marches of Wales and before the President and Councel in the Northern parts and also to the Court commonly call'd the Court of the Dutchy of Lancaster holden before the Chancellor and Councel of that Court and also in the Exchequer of the County Palatine of Chester before the Chamberlain and Councel of that Court and to all Courts of like Jurisdiction to be hereafter Errected Drdain'd constituted or appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Committments Restraints and Imprisonments of any person or persons made commanded and awarded by the Kings Majesty his Heirs and Successors in their own Persons or by the Lords and others of the Privy-Council and every one of them So that here 's an Explanation that no Court or Proceeding in any Court is to be taken away but the Court of Starchamber and the Jurisdiction thereof and such like Courts of like Jurisdiction and this of the Kings referring the Examination of unjust Decrees in Chancery to particular Commissioners and Referrees was practis'd out of the Star-chamber when
that Court was at height as may appear by the forecited Presidents so that it never was a part of the Jurisdiction or practice of that Court and therefore declared by the said Provisoe not intended to be prohibited by the said Act and as to the King the Provisoe says He is to be restrained but from restraining and imprisoning by his own personal command he may do every thing else that he could have done before He may hear and determine in person if he pleases as he could have done before and he may appoint all such Judges or Referrees to all purposes as he could have done before But as to the Warrants of Imprisoning if any cause for such there should be he is to leave that to his Ministers and the King if he thinks fit upon complaint to him made of Injustice or other Error done by his Chancellor or Keeper may order his Chancellor to order the parties concern'd to appear before the King in person and the King himself may require his Chancellor or Keeper to be present and his Majesty may call others to his assistance whom he may confide in for just and equitable advice and may determine what to him seems meet in the Cause upon conference with them this being for advancement not delay of Justice and if the Chancellor or Keeper doth not use the coercive part of Imprisonment and other Process of the Court of Chancery to compel Obedience to such determination I conceive he doth not do his duty I mention this not that I think it 's absolutely necessary the King should trouble himself to hear all matters in person but I humbly conceive it not amiss for his Majesty sometimes to use his Power in Chancery as well as at Councel-board lest for want of using his Power he may be in danger of losing it and consequently his esteem in the eyes of the people may be lessen'd whilst every of his acting Judges the Chancellor or Keeper especially command respect from their Friends and fear and trembling from their Enemies I am sure Solomon's giving Judgment in the case of the Harlots gain'd him more esteem not only amongst his own Subjects but all the World over than any one other act of Government he did in all his Reign and the Kings not being exactly skill'd in the Law or the formal Rules thereof as a profess'd Lawyer should be should not at all hinder his undertaking it sometimes for a man but of common sense having heard the Case put the proofs made and the Arguments of indifferent men not byass'd Advocates or Councel only may easily discern what Judgment is fit to be given in Equitable Causes and the King hath almost infallible helps He hath his Lords Spiritual and Temporal He hath always at his call twelve Judges men skill'd in the Laws and sworn lawfully to counsel the King in all matters These or some of them he may command to attend him at such Hearings and may command them to give their opinion of the matter according to the nature of the Cause and according to the best of their judgments and the King at such hearing may give or cause to be giv'n a Sentence or Judgment according to the Opinion of the majority of them and this course is the best and was the old way of judging of Equity and if us'd some times would make Chancellors and Keepers more regard what they do But if the King should not be minded to meddle in person with determining any Causes his referring of the examination of Chancery-Decrees to persons fit and able of judgment and knowledge to do it may suffice better then to leave it wholly to his Chancellors single judgment For securius expediuntur negotia comissa pluribus plus vident oculi quam oculus There is at this day a standing Commission enroll'd in Chancery to all the Judges of Westminster hall the Master of the Rolls and the other Masters in Chancery impowering any Three of them whereof the Master of the Rolls or one of the Judges to be one in the absence of the Lord Keeper to hear and determine Causes and that is not thought to be prohibited by any Statute And if the King hath Authority and Power to appoint Commissioners for the Chancellor or Keepers ease why cannot he also give power to Commissioners to rectifie his Decrees when he mistakes The Chancellor or Keeper of the Great Seal is but the King's Deputy during pleasure 9 Rep. 99. and a Grant of that Office for life is void Cooke 4 Inst fol. 87. Upon the whole matter I must conclude I can apprehend no warrantable objection can be made against this sort of proceeding or that any Statute doth or intended to take it away so that I shall take that point for granted That it is very lawful for the King to appoint Referrees or Commissioners to rectifie Chancery-Decrees or Decrees of any other Court of Equity The next thing to be considered is Whether any of the King's Privy-Councel may be Referrees or Commissioners for that purpose notwithstanding the said Statute For they are men of so great Honour Knowledge and Integrity and of such Fortune and Estates as to scorn Bribery and therefore very fit to assist in this matter and I hold They may for the prohibition of the Act extends to their not acting as being only and barely Privy-Councellors It doth not say Privy-Councellors shall not act by virtue of any other Authority And this thing proves it self plainly in the Case of the now Lord Keeper and Lord Chief Justice of the Common-Pleas who are both of the Privy-Councel yet examine draw into question determine and dispose of the Lands Tenements Goods and Chattels of the Subjects with a witness by virtue of another Authority derived from the King and if They may do it why may not any other of the Privy Councel act by a lawful Authority in those matters as well as They The next thing considerable is if the Lord Chancellor or Keeper ought to command performance according to the course of the Chancery of what such Referrees do order by virtue of such Reference when he himself is not one of them as well as when he is and I hold he ought First for whatever Order is made in the House of Lords upon determining an Appeal from Chancery-Decrees it is sent to the Chancery to compel Obedience thereto and in this respect I conceive the House of Lords are but the Kings Referrees and do legally and truly derive their Authority from the King as is prov'd by the due Proceedings upon Writs of Error and the ancient form of Petitions against Chancery-Decrees before-mentioned So that such Referrees do act by Authority derived from the King as well as the House of Lords in Parliament And further the practice hath been for the Lord Chancellor or Keeper to pursue what is done by such Referrees for what was resolved by the Judges upon the References mentioned in Sir Edw. Cooke