Bacon's Case herein also before re-cited in the fifth Section for it is not Impossible but that some of his Successors may do the like which if but any one should it would be very hard for many a poor Creature to wait the Convention of a Parliament especially if it should happen that another usurping part of a Parliament like that about 41. should attempt to play the old Game again so that in such case the King must perhaps either leave many of his Subjects utterly undefended against the corrupt and vicious proceedings of another Bacon or endanger his own safety by letting them sit in which case by the Rule of Self-preservation the King ought to save himself But setting aside this matter of corruption as if no such would ever hereafter be in the World if we consider humane frailty and the real mistakes every single man may be subject to especially when beset with the mercenary Arguments of three or four Hireling Advocates of a side who think themselves oblig'd when opportunity serves to mistake for their Clients according to the measure of the Fees they receive as I have known some of them knowingly do and sometimes they prevaricate and omit what they ought to say if either Feed on both sides or not high enough Feed of the side they are of by means whereof a circumspect Lord Chancellor or Keeper may innocently be seduc'd to make an ill Decree and by force thereof a poor man must either go to Prison or part with the best part of his Substance so that by both ways himself and Family are brought unjustly to want and misery and if he be a Trades-man it is ods but he breaks one or two more for Trades-men are like Nine-pins one seldom falls alone and if a Parliament when it meets should find leasure from publick business to examine the matter and should see cause to alter the Decree and Award Restitution the man that got the Money by means of the ill Decree may have spent it all gone beyond Sea or dead without Assets or twenty such Chances may happen that the Money may never be got again by any Art or Industry whatsoever which would be prevented if there were a place to Appeal before performance of the ill Decree and moreover it remains a doubtful case as to the many Decrees of the late Lord Chancellor Notingham Re vers'd by the now Lord Keeper North which of the two Lords are in the right he that made the Decrees or he that Revers'd them it being not fairly to be decided but by the Advice and Opinion of a greater number of as Wise and Judicious men as themselves and that is a fair and reasonable way of determining it for vis unita fortior but the greatest inconvenience of all is that which concerns the Government for while this opinion stands That the King cannot hear the matter in Person nor refer it to others though to some of the self same Lords that sit in Parliament but that the matter must wait their meeting in a Parliamentary way it may make the people believe that the Supremacy of Jurisdiction is in the House of Lords and not in the King and consequently lessen him in their opinion for People Love and Honour them most from whom they find most Relief against Injury and how consistent that is with Monarchy and how agreeable it is with our Oaths willingly to suffer let any man Judge that hath Sense and Loyalty Since all the Courts of Westminster have four Judges in each Court men Learned in the Laws of known and visible Integrity and all Sworn To do equal right to all 18 E. 3.7 Oath of Just and to take no Fee or Roabes of any man great or small but of the King himself during their being Judges And who in their proceedings are ty'd to Rules and since Appeals by Writ of Error by special Provision by Act of Parliament may be at all times had against their Judgments and since there are frequent Appeals from all Ecclesiastical Courts and from the Court of Admirality out of Parliament It is a mighty mistery to me and the policy of it is not Intelligible that any man should labour to prop up this Opinion that there should be no Appeal but to Parliament from this Court of Equity in Chancery where there is now but one Judge and his Orders and Decrees controuling all the Judgments of other Courts and he therein ty'd to no other Rule but his own Conscience be it good or bad I think a Chancellor or Keeper for his own Justification should not be against the Kings Examining his Decrees or Referring them to fit persons to be Examin'd and Corrected which without peradventure is not only the best and surest way for Administration of Justice in this Case and so far from setting up an Arbitrary way or an Extraordinary Course that it is but restoring the Court of Equity in Chancery to its Ancient and Primitive form of Judicature the definitive Judging there by the Chancellor alone being but an Innovation upon the Original Institution of that Court as appears by what is aforesaid and to the end there may be no obstruction in the way I have enquir'd how far the King ought by Law to provide for his Injur'd Subjects in case of Appeal to him from Erroneous or Unjust Decrees in Chancery by a Lord Chancellor or Keeper SECT VIII Whether the King ought exdebito Justiciae to hear in Person or to grant References upon Complaint to him made against Erroneous and Vnjust Decrees in Chancery I Have as great Veneration for Kingly Government and am as Firm and Faithful to it as any man can be however I think it no presumption to affirm that the King ought to do his Subjects right by using the best means he may for administration of Justice amongst them pertinet ad Regem ad quamlibit injuriam compescendam competens remedium adhibere It is no dishnour to him that he is oblig'd to it for it is for that end he is ordain'd by God and obey'd by men it is therein consists the height of his Clory and the lustre of his Majesty and says Fleta Fleta fo 17. par 15. Whereas it is so ordain'd that every man in prosecution of his right Potius judicio quam viribus utatur Should make use of the Law rather than force The injur'd are to come to the King and having shew'd him the wrong they have suffer'd he ought to do speedy Justice to his Petitioners yet the King is not to be troubled but when his Ordinary judges fall of their Duty For Nemo in lite Regem appellato nisi quando domi jus consequi non poterit Orig. Jul. fo 20. A Complaint to the King by Petition against the Error and Injustice of a Chancery Decree is an Appeal to the King from his Chancellor from the Inferior Judge to the Superior which is very natural and a Petition to him for allowance of a Writ of Error to the House of Lords to inspect and certifie a Judgment of the Court of Kings-Bench or Exchequer Chamber and an Appeal to the King from his Ecclesiastical Courts and from the Court of Admirality are all grounded upon the same natural Justice and by reason of the Kings Supremacy of Jurisdiction and that as well by force of the Common as Statute Law Of Appeals in general Sir Edw. Cooke cites the Opinion of a Learned Judge of the Admirality and some others to this effect For as much as an Appeal is a natural defence it cannot be taken away by any Prince or Power Cook 's 4 Iust fo 340. but if the Appeal be just and lawful the Superior Judge ought of right and Equity to receive and admit the same as he ought to do Justice to the Subject and so if the Cause of the Appeal be just and Lawful he ought to Reverse and Revoke all mean Acts done after the Appeal brought in prejudice of the Appeallaent But I need not much labour that point for I can Experimentally say that His Majesty is very desirous that His Subjects should have the full and free benefit of the course of Justice and if any ever fail of it it ought not to be imputed to the King but to his Council whose advice is the Kings guide and if they mis-advise the King and he follows their advice he is excusable yet he is not bound always to follow their advice if he be really satisfied in himself after hearing their reasons that it ought to be otherwise than they advise for as he is plac'd by God above them it is to be presum'd God may supply him with a more discerning Spirit than they and enable him to distinguish between the best and worst advice having heard the reasons of both Yet they that knowingly advise the King ill or neglect to advise him well when occasion requires are to blame therefore I hope His Majesties Privy Council will confider of this matter and advise and desire His Majesty to take the Advice and Opinion of His Judges who are His proper Councel therein For in my poor judgment and as I have heard from most Judicious men the restoring this kind of proceeding aforemention'd for Relief against unjust Decrees in Chancery and other Courts of Equity will be as much for the Kings Honour and His Subjects Good as any other part of his Jurisdiction For I say again there is no Robbery Piracy Burglary or other Villany whatsoever so mischievous and insupportable as the unjust taking away of a mans Estate by colour of doing Justice and therefore most worthy of His Majesties care to prevent Cum Index indulgeat indigno nonne ad prolaptionis contagium provocat universos Bract 107. I expect to be Censur'd by some for what is here set down though I challenge all mankind to charge me with any misrecital or false quotation but that which most troubles me is my consciousness of my own unability to perform the matter least a good Cause should suffer by ill management However having done my best I hope it will be taken in good part by all Honest men more I cannot do less I durst not for my Oaths sake and if any be offended with me this shall be my Sanctuary Fiat Justicia si ruat Coelum FINIS
That could change the Law Bracton Bract. f. 3. speaking of Equity says Equitas autem est rerum canveniontia quae in paribus causis paria desiderat Jura omnia bene coaequiparat It is a certain sort of accord and congruity in things which affects the like Judgments in like Cases and equally and indifferently considers all circumstances Equity is that Right which arises and appears upon a due consideration of the written Law the circumstances of the matter in question and that natural Justice which a good conscience dictates and to judge and determine the matter accordingly I take to be a judging according to Equity It should seem that all the Judges mentioned by the said Authors Eritt so 1. were ty'd to proceed and judge according to prescribed Rules for by Britton it appears that it was the King's will the Laws which are Rules should be set in writing and used and kept in every point saving to himself with consent of his Counts Barons c. power to repeal and amend them but it belong'd to himself alone principally and in chief to amend false Judgments of his Justices generally as appears by this Car ceo reserdouns nous especialment a nostre Jurisdiction The King's command to use the Laws and Rules in every point strictly was general to all his Judges but it was only He that had power in all his Judgments to regard Equiabove Rules and he had not only power so to do Bract. lib. 3. fo 107. but he was oblig'd to it by the latter part of the Coronation-Oath before-recited Bract. lib. 2. fo 24. It was the King only had an extraordinary Preheminence over the prescribed Rules and Forms of Law to moderate the rigour and extremity and supply the defects thereof upon occasion when his Judges could not exceed the Rules prescribed them and this power is as necessary as any thing can be for the right distribution of Justice for it is impossible to make such Rules before-hand as may suit with all cases for an extraordinary circumstance may sometimes happen in some cases that to judge thereof according to general and prescribed Rules of Law might be to wrong the party and so make summum jus summa injuria But our ancient Kings did not entrust this Power at any time as I find with any single person Els Office ch fo 25. For during the Reign of both the Williams Henry 1. King Stephen and Henry 2 c. until Ed. 3's time at leastwise Dud. Orig. Jud. fo 25. if not after there still continu'd a particular Court belonging to che King which was the place of Sovereign Justice both for matters of Law and Equity called Curia Domini Regis and Aula Regia or magna Curia where He himself oftentimes sate in person but there he had his Justices à latere suo sedentes as namely his Chief-Justice his Chancellor his Constable and Marshal and such others of his Nobles as the King pleas'd to associate to himself for that purpose The Justice to inform the King of what was the strict Rules of Law Capital ' Justic ' praesider primus a Rege in Regno C. 4. in t ' fo◠to Cancellarii Angliae Dignitas est ut secundes a Rege in Regno habeatur ibidem fol. 78. and the Chancellor who was usually a spiritual man to give advice according to Equity and there matters of Equity were then determined And to this Court any man might appeal from the inferiour Courts to have the Errors of the Judges corrected and amended and if the King were absent the Justiciar was the King's chief Representative But when it was that first the Chancellor had that power of judging according to Equity so given him that he alone could do it of course is not certainly known Some suppose Orig. Ind. fol. 36. 〈◊〉 Lamb. 〈◊〉 that in Ed. 1. 's time when the Power of the Justiciarius Anglia declin'd the King together with the Great Seal entrusted the Chancellor with his own extraordinary preheminence of Jurisdiction over the Common Law viz. Power of judging according to Equity but that Authors reason is not sufficient to maintain that supposition for he gives no reason for it but that be finds no mention made of any such power in the Chancery by Britton which was wrote about the beginning of the Reign of E. 1. Yet Britton mentions the Jurisdiction of all the other Courts and he concludes from thence that if the Chancellors had then had any such power Britton would have mentioned it which indeed is a good argument that the Chancellor had no such power then but it doth not follow of consequence that because he had it not when Britton was writ that he must needs have it immediately thereupon therefore we must come a little yea a great way nearer before we can find this power fixed in the Chancellor alone No doubt but when the Justiciarius Angliae was laid aside the Chancellor who before that time was but secundus à Rege in Regno became then primus à Rege and was President over the rest when any matter of Law or Equity was determined in magna Curia in the absence of the King but I cannot find he exercised the Judicative power in matters of Equity alone until very lately tho' he did several other things alone I find G. 4. Inst fo 83. Mag. Cha. 553. that in R. 2.'s time a matter being compromited by both sides to the King the King referred it to the Councel and they make a Decree which Decree was sent to the Chancellor to confirm under the Great Seal which was done after which one of the parties petitioned the King that the matter might be left to the determination of the Common-Law whereupon the King by warrant under the Privy-Seal requires the Chancellor to make Supersedeas to the Decree which was done whereby it appears the Chancellor alone did nothing but award Process upon the Decree made by the Councel as the King and They directed And this Sir Edw. Cooke says was the first Decree in Chancery that ever he observed in all his reading He also cites some opinions Cooke's Magna Charta 553. that the Court of Equity in Chancery began under Henry Beaufort Son of Jo. of Gaunt who was Chancellor in the beginning of H. 6.'s time and his reason for it is because there is not in any Book-Case or Report of the Law any mention made of any Court of Equity held before the Chancellors before the Reign of H. 6. and yet all of them speak of the ordinary Power and Jurisdiction of the Chancery But in the Reign of H. 6. and E. 4. Cases have been reported to have been determined in Chancery according to Equity but it is observable that most of those Causes were heard before several others together with the Chancellor and that in matters of doubt he adjourn'd the patties into the Exchequer-Chamber before himself and the
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