be Justices of Gaol-delivery in every County And he granted to the said Justices that they should have the keeping of the Records of the Pleas pleaded before them But they were not to rase or amend their Rolls or to make Record contrary to their Enrollments Also that the power of the Justices should be limited in such manner that they exceed not the points contained in the Writs or Presentments of Jurors nor complaints to them made saving such incident matter as without which the original causes could not be determined And he utterly forbids and prohibits that any shall have power to amend any unjust or erroneous Judgment of his Justices but only those Justices which followed Him and his Courts who thereunto were by him entitled or Himself or his Councel for that matter he specially reserv'd to his own Jurisdiction He forbids also all his Coroners and Justices except his Seneschal his Steward and his Justices of Ireland and Chester to make any Deputies to do any thing whereof they ought to make record without the King's leave He will'd also That in Counties Hundreds and in the Courts of every frank Tenement there should be Courts held by the Suitors and also in Cities Towns Boroughs and Franchises c. Besides this Book written by King Ed. 1.'s command and in his own name a while after there was another Book written by whom it is not known called Fleta and it was in the Reign of Ed. 2. or 3. And that Author says That Judgment is a threefold act Fleta lib. 1. cap. 17. fol. 16. of three persons at the least the Judge the Plaintiff and the Defendant without which there can be no Judgment Nor says he can any one Judge in temporal matters but only the King or his Substiutes and Delegates And the same Author in his Tract of the diversity of Courts Fleta lib. 2. fol. 16. says as followeth The King hath a Court in his Councel in his Parliaments when present the Prelates Earls Barons Nobles and other skilful men who are to determine the doubts of Judges and where upon appearance of any new sort of injuries new remedies are provided and where Justice is to be rendred to every one according to what belongs to him He hath also his Court before his Steward in Aula sua in his Hall who now says he supplies the place of the Capitalis Justiar ' whereof mention is made in the common Writ of homine replegiando who was wont to hear the Kings own Causes to rectifie false Judgments and to do Justice to Complainants without Writ whose Power in part the said Steward of the Kings Houshold hath Also the King hath his Court of Chancery in several places in his House He hath also a Court before his Auditors specially appointed to be near the King whose Office extends but to the Justices and others of the Kings Ministers ☞ to whom there was no power granted to determine what they heard but to relate the matter to the King that he might direct punishments according to the quality of the Offence He hath also his Court and Justices as well Knights as Clergy-men locum suum tenentes in Anglia before whom and not elsewhere unless before Himself and his Council and special Auditors false Judgments and Errors of Justices are reversed and there are determined Writs of Appeals and other Writs upon criminal Actions and injuries contra pacem He hath also his Courts and his Justices residing in the Exchequer and also in Banco now called the Common-Pleas at Westminster and some are assign'd for Gaol-deliveries in every County and some are affigned to take Assizes generally in every County and some are itenerant and constituted to hear and determine all criminal and civil Pleas. Also the King hath his Justices itenerant to hear and determine the Pleas of the Forest and he hath his Court in every County and in the Sheriffs Turn and in Hundreds and in the King's Manors Cities and Boroughs as in the Hustings of London Lincoln Winchester York and other places And the same Author having afterwards treated more particularly of what Jurisdiction the King had delegated to every Court Fleta l 2. f. 75. cap. 33. he writes thus of the Chancery There is amongst the rest a certain Office called the Chancery which ought to be committed to the care of some prudent man as a Bishop or Clergy man of great dignity together with the care of the great Seal of England under whom are all the Chancellors in England Ireland Wales and Scotland and all Keepers of the Kings Seals except the Keeper of the Privy Seal to whom are associated Clerici honesti honest and circumspect Clerks sworn to our Lord the King and who in the Laws and Customs of England have ample knowledge whose Office it is to hear and examine the Complaints of Complainants and to grant due remedy by the King 's Writ according to the nature and quality of the wrong And there he treats at large of the Officers Clerks and Business of the Chancery which was to make out Remedial or Original Writs and Judicial Writs also upon Recognizances and Contracts made in the Chancery and enroll'd there but not one tittle or mention is there made by any of the said Authors of any Superiority the Lord Chancellor or Lord Keeper or the Court of Chancery had over the Proceedings of any of the other Judges either to examine correct or rectifie their Judgments or stop execution thereof upon any account colour or pretence whatsoever which is a most convincing proof the Chancellor then had no such power SECT III. What is meant by Judging according to Equity and by Whom it was anciently performed HAving laid the foundation of my present purpose upon what I find in the fore-mention'd Authors I think it not amiss to say somewhat touching their credit and first of all that which gives them a reputation with me is that they set down what they themselves of their own knowledge knew to be true they relate what the Law was at the time of the writing of those Books they took nothing upon trust from other hands but set down what they themselves knew to be practice Next they were men of great Eminency Bracton was a learned Judge and it was his zeal to Justice induc'd him to write Britton was a Book writ by the King 's own command and publish'd by his approbation and the others Mirror and Fleta have always had a great reputation amongst the English Lawyers not only ancient but modern and Sir Edward Cooke who once was honour'd with the title of the Oracle of the Law in his first Institutes in every page almost quotes those Authors for proof of his assertions and so doth Stanford in his Pleas of the Crown from whence I conclude that what they wrote for Law was Law then and if so it is Law now saving wherein-it it is alter'd by the Kings Parliamentary Act nothing less than
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
r 27 Jus Appellandi AD REGEM Ipsum à Cancellaria SECT I. Of the mutual Obligation upon King and People in reference to Government WHosoever will but consider it may easily discern that there is a mutual benefit accrues by Government as well to the People as to the King the end design of it being the protection of Both from wrong and violence And to the end this may be the better accomplish'd both are mutually bound in England to act their part therein The King is bound to govern by Law and the People most of the considerable part of them are bound and all of them are compellable to be bound to assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the King His Heirs and Successors or united or annex'd to the Imperial Crown of this Realm the King by the very Constitution of his Kingly Office and by his Coronation-Oath and the People both by their Natural Allegiance and by force of the Statute 1 Eliz. cap. 10. It is not a slight and mean tie that they are bound by it is by a sacred and solemn Oath the greatest obligation upon Earth and the firmest bond of Humane Society which whosoever voluntarily breaks either by a wilful acting against or by a careless neglecting to perform what he hath undertaken by it I 'll be bold to say He is sit Company for none on this side Hell unless for some perjur'd Aldermen or false Ignoramne-Jury-men Being thus engag'd I think it highly concerns us all to discharge our Duty therein and to that end it is necessary in the first place to understand what Jurisdictions Preheminencies Priviledges and Authorities do appertain to the King for without That the King cannot exercise His Jurisdiction nor the People assist Him in it And in as much as the King's Jurisdiction over His Court of Chancery is now doubted of by many dis-own'd by some and by others thought not necessary to be put in execution I therefore set my self upon enquiry after the King's Part and Power in that particular having had experience of the inconveniencies the want of the use of it produceth SECT II. What is Jurisdiction to Whom it appertains and How anciently exercised in this Kingdom JURISDICTION in the bare literal sence and signification of the word and ex vi termini imports no more than Dire Droit or Jus dicere a Power to pronounce interpret or relate what is Law and Right in any matter of Controversie But as necessary appendants thereunto there are many Priviledges and Authorities needful to make up a full and plenary Power to administer Justice which are generally comprehended within the meaning of Jurisdiction As first an Authority to Command the party or parties complain'd against before Him that hath Jurisdiction Secondly to Examine the truth of the complaint and to hear the Defendants defence Thirdly to give Judgment according to what the Law is Fourthly to compel Obedience to and Performance of that Judgment which is done either by Imprisonment of the person until he perform or by seizing his Estate or part of it in satisfaction of the Judgment which is the Coercive Power of the Law without which the rest signifies but little The right of Jurisdiction is a prize for which great Contests have been for many Ages in this Kingdom the Pope for a long time strugl'd with our Kings for Jurisdiction in Ecclesiastical matters some yielded to him and some would not The House of Commons have often strove with the House of Lords for Jurisdiction the King's Courts of Justice have often contended with one another for Jurisdiction and now some would have it that the King 's own more immediate Court his High-Court of Conscience would be so highly unconscionable as to out Him from having any thing to do there To find out the true Proprietors of Jurisdiction for which there hath been so many pitch'd Battles fought it is necessary to look a great way back Origo rei inspici debet the beginning must be consider'd Deut. 32. 7. Remember the days of old consider the years of many Generations ask thy Father and he will shew thee thy Elders and they will tell thee After this manner will I make my Enquiry for I know no Statute of Limitation in the case to bar the King by non-claim but there is a Maxim in Law which imports the contrary Quod nullum tempus occurrit Regi and therefore what I find in old Authors as well as new I will truly relate By the Opinion of all ancient wise Politicians and Historians Bod. l. 4. cap. 6. says Bodin Justiciae fruendae causa Reges esse creatos Kings were ordain'd for no other end than for administration of Justice which is a full Authority that Jurisdiction appertained to Kings even by their Constitution and the same Author says That anciently the Kings of most Nations and Countreys were called Judges and they thought no other Appellation or Title more honourable than That and they delighted in nothing more then a personal not only virtual but actual determining of their Subjects Controversies Moses for a great while spent the greatest part Ex. 18. or much of his time sometimes even from morning until evening in hearing and determining Controversies between the people But at length finding that as the people encreased in number so did Suits insomuch that it was too hard a task for him to dispatch all himself he therefore chose men of courage out of all Israel and those he made Heads over the people Rulers over Thousands and over Hundreds over Fifties and over Tens who judged the people at all seasons but the hard causes matters of difficulty they brought to Moses himself to determine none of them pretending that because Moses had given them full power to judge the people within their several Provinces that he had excluded himself from power of judging there and examining whether or no their Judgments were right and just In imitation of Moses Cook 1 Inst f. 168. or after the same manner did the ancient Kings of England divide this Kingdom first into Counties and Counties into Hundreds Hundreds into Manors and Manors into Townships and Villages and appointed Jurisdictions in every Division In or about the time of H. 3. one Henry de Bracton Cow Int. Title Bract. a learned Judge finding that the Laws and Customs of the Realm which at that time were not reduc'd into writing were oftentimes abus'd by unlearned men Qui Cathedram judicandi ascendunt antequam leges dedicerent who became Judges before they had been Students and consequently determined Causes rather after their own fancies than the Rules of Law he therefore resolv'd ad vetera Judicia Justorum perscrutenda diligenter to make diligent enquiry into the ancient Judgments and Resolutions of just Judges and to put the same in writing for the benefit of Posterity as himself says in the first page of his Book
all substituted and delegated Jurisdiction was derived from Him only and under such limitations as he directed so as the Judges did act justly the main charge of administring Justice being on Him and he frequently sate himself in Judgment assisted by his Capitales Justiciarios à latere suo residentes who assisted him in the exercise of his Jurisdiction and eas'd him of trouble but they never pretended to deprive him of his power of hearing and determining himself or changing his Judges or assigning them Jurisdiction as should be needful according to the modern Doctrine of some for he had both complete Jurisdiction and designationem Justiciariorum in himself and it was upon good reason this power was originally placed by God in Kings and consented unto and approved of by good men for by the assistance of and reasoning with their Judges they could never fail of discerning right Judgment and their affection to their Subjects like a good Father to his Children being equal to all it is not likely they should be partial in their Judgments and their Royal Estate is such as not to value Bribes or Rewards So that there is not so much reason to fear Injustice from a King as from a profess'd Lawyer like my self whose aim and design perhaps from his Horn-book was gain and profit and to raise himself a Name and Family in the world I can but wonder then whence started that humour in men rather to trust any body in deciding their Controversies than the King sure it could be from no just Principle Besides the fore-mentioned Author Bracton there are others of the same standing that maintain the same Doctrine The next I shall name is one Horn who about the time of Edw. 1. compiled a Book Of the Laws and Vsages of England a great part whereof as Sir Edward Cooke in his Preface to the 9th part of his Reports affirms were such Laws as the Kingdom was govern'd by for about 1100 years then past to which Book he gives a mighty credit and in matters of difficulty is very frequently his ipse dixit and that Author says Mirror 232. That Jurisdiction is the chiefest Dignity that appertains to the King and thereof he says there are two sorts and he calls them ordinary and assign'd which are the same with Original and Delegated as the other Author terms them Ibid. 23.2 Jurisdiction Tays he can be assign'd by none but by the King and he may do it because be cannot without assistance perform such a charge and therefore it was of old ordained that there should be a Seat and a Chancellor to keep it and grant Writs remedial to all Complainants without delay This was the Chancellors Province then And again he says Ibid. 234. Jurisdiction est un porat a dire Druit a power of commanding right to be done and this power God gave unto Moses and such as hold the like place as he and this power belongs unto the King within his Dominions and He by his Authority-Royal makes his Justices in several degrees Ibid. 235. and doth limit to every one his power after several manners And there he enumerates divers sorts of Commissions and Courts and speaking of the chiefest Justices of all he says They determin'd matters more or less according to the nature of their Commission From whence also it follows there were no Judges that had or pretended to have any Jurisdiction originally or fundamentally in themselves but what all of them had was by deputation and delegation from the King Furthermore Edm. 1. out of his Princely care that his people should be govern'd by certain and known Rules caused the Laws and Rules of Government Britt so 1. and disposition of Property which then to fore had been used in the Kingdom to be put in writing and publish'd in his own Name and at the same time commanded the use and practice of those Laws in all points throughout his whole Dominion saving and always reserved to himself the power of repealing altering and amending of them as should seem good to him with the assent of his Earls Barons and others of his Councel and saving such Usages and Customs as had been time out of mind used so that they be not discourdants a droft And there he proceeds in this manner viz. En primes en droft de nous mesmes nostre Courte avouns issint ordeyne c. which is to this effect That first of all in the right of Himself and of his Court because he could not in his own Person hear and determine all the complaints of his people and to the end that his charge should be divided as is thereby appointed he did ordain and his will and pleasure was That his own Jurisdiction should be superiour to all the Jurisdictions in his Realm So that in all manner of Felonies Trespasses Contracts and in all manner of Actions real and personal he had power to give and cause to be given such Judgments as thereto belonged without any other Process where he knew the direct truth as Judge And there also he appoints That the Steward of his Houshold should represent Him within the Verge and he assigned him his Jurisdiction which was to hear and determine the presentments of Articles which concern the Crown whensoever it should seem good to the King And moreover he will'd that Justices in Eyr should be assign'd to hear and determine those Articles in every County and in every Franchise from seven years to seven And there he gives the like power to his Justices of Ireland and Chester and wills further That the Count or Earl of Norfolk by himself or some other Knight should always attend upon the King and his Steward within the Verge of the King's House so long as he should hold the Office of Marshal And there he appoints the Jurisdiction of the Justices assign'd Britt fo 2. to follow the King and be where He was if in England and that they should have conusance to amend false Judgments to determine Appeals and other trespasses done against the Kings Peace and Jurisdiction He also appointed a Coroner to be in the Kings House and in every County un Viscount a Sheriff and that under those Sheriffs there should be Hundreders Serjeants and Bailiffs who should attend upon the Sheriffs He also appointed Coroners in every County and allotted them their Jurisdiction And moreover his will and pleasure was That there should be Justices always residing at Westminster or elsewhere where he should appoint to determine such common Pleas as the King should command them by his Writs so as the Pleadings arising thereupon should be recorded He settled the Jurisdiction of the Exchequer Court and ordained That there should be Justices assign'd for every County to have conusance in such causes as the King should command by his Letters-Patents touching Pety-Assizes and of other things whereof the Kings will should be they should make record and that there should