The priviledges and prerogatives of the High Court of Chancery written by ... Thomas Lord Elsmere ...

NOTES AND OBSERVA∣tions upon the Statutes of Magna Charta. cap. 9. and other Statutes concer∣ning the proceedings in the Chan∣cery, in cases of Equitie and Conscience.

THe Statutes,* 1.1 which be now urged and stood upon against the Chancery,* 1.2 are first Magna Charta, where the words be Nisi per legale iudicium parium suoz vel per legem terrae. It is lex terrae, that is, the Iudges of the Common Law shall determine questi∣ons in Law, and Pares & Iurors to try matters in fact, so the Chancery is to order and decree matters of Conscience and Equity, which cannot be remedied by the strict rules of the common Law: And the same rule serveth for understanding,* 1.3 the Statute Anno 25. Edward 3. cap. 4. Vpon these words, Sic niscit duem ent mesne en-respons & soriudg d'icells per voy de lege. And it appeareth the cause of making that Statute, was to restraine private suggestiōs made to the King or to his Councell, but not meant to take away the ordina∣ry judiciall proceedings and hearing of Cases of con∣science and equity in the Chancery.

Hath the same words,* 1.4 as Magna Charta, cap. 9 viz. Without being brought into answer by due processe of Law: For understanding whereof, that is to bee remembred, that those that are sued in the Chancery

are brought to another by due processe of law, for cases of equity and conscience as it is per legem terrae.* 1.5

That it shall not be commanded by the great Seale or the little Seale,* 1.6 to disturbe or detaine common right: and though such commandement doe come, the Iustices shall not therefore cease to doe right in any point.

For the understanding of this Statute.

The ordinary Iudiciall proceedings by the Chan∣cery, according to conscience and equity, is not any disturbance, or delay of Common right.

But is the doing of right and Iustice in cases, which the common Law cannot helpe, for common right standeth not only in the strict rigour, and extreamity of the Law (for often summum ius oft summa injuria) but rather in the doing of right, according to equity and conscience: And the Iudges of the common Law themselves, doe almost every day extend their discretion, to stay and mittigate the rigour and strict∣nesse of the common Law: and in so doing doe, well notwithstanding the strict word of their oath.

Declareth the law concerning writs of search,* 1.7 and in the end of the same Statute, these words, viz. That by commandement of the great Seale, noe Privie Seale, nor point of this Statute, (viz. concerning Search) shall be put in delay.

Nor that the Iustices, of whatsoever place they be, shall lett to do the common law by commandement, which come to them under the Great Seale or Privie Seale.

The Common Law hath alwaies allowed the pro∣ceedings in the Chancery, in cases of conscience and

equity; and therfore the words (to doe the Common law) must not be construed too precisely, as thereby stop all Courts of equity, for it standeth with the common law, as well that equity and conscience bee ministred, where the common law cannot helpe, as that strict Iustice be ministred according to the com∣mon law, when the common law may serve.

The Chancery doth not commonly send any Writ [ 2] or Commandement to the Iudges, under the great Seale cōmanding them to stay to do Iustice, but awar∣deth Iniunction to the parties, that seeke to have the advantage of the strictnesse of the common law, a∣gainst equity and conscience: neverthelesse there be plentiful examples that Writs of super sedeas, under the great Seale have beene directed to the Iudges, in di∣verse speciall causes, and have in all times (untill of late) beene dutifully obeyed, as in cases of priviledge and to stay their proceedings: Reges in consulto and divers others, &c.

Also it is to bee remembred, that many Iudges of the common Law have complayned, and sued for re∣medy in the Chancery; and have beene sued and an∣swered there, and obeyed the orders of that Court in cases of equitie and conscience, which could not bee relieved by the Common law.

This Statute is persuing two former Stat.* 1.8 one 37. Edward 3. cap. 18. which giveth paenam Talionis, against those, which make false suggestions to the King: the other 38. Edward 3. cap. 9. which confirmeth the for∣mer statute in all things saving pro paena Talionis. And this 42. Edward 3. explayneth the two former, and provideth that the people be not greived by false ac∣cusers which doe often times make their accusements more for vengeance and singular profits then for the

profits of the King and his people, and therefore or∣daineth that none bee put to answer (which is to bee intended upon such accusation and false suggestions) without. 1. presentment before Iustices, or 2. matters of Record, 3 by due processe, or 4. by Writ originall according to the onely law of the land.

In this Statute, the intent is to bee considered, first to explaine, the second former statute Anno 27. Edw. 3. and Anno 38. Edw. 3. as is before noted, 2. that the antient law of the land bee observe, that is; That for matters determinable by the common law, none bee put to answer, but by presentments or mat∣ters of Record, or by originall Writt, or by due pro∣cesse. But therein is not meant, that the ordinarie iu∣diciall proceedings in the Chancery, in matters of e∣quity and conscience (not being remediable by the Statutes of the common law) should be taken away or restrained: But that in such cases, they may pro∣ceede against parties called in by due processe, for that is according to the antient law of the land.

So the practise and experience hath beene ever since, which is the true and certaine interpretation of that Statute and of all other Statutes.

The words be these:* 1.9 Whereas as well in plea Re∣all, or as in plea personall after Iudgement given in the Courts of our Soveraigne Lord the King, the parties be made to come upon greivous paines some time before the Kings Councell, & sometime in the Parliament to answer therof anew, to the impoverish∣ment of the parties aforesaid, and subvertion of the Common Law of the Land: It is ordained and esta∣blished, that after Iudgement given in the Court of our Soveraigne Lord the King, the parties and their Heires thereof shall be in peace untill the Iudgement

shall bee undone by attaint, or by errour, if there bee errour, as hath beene used by the Lawes in the time of the Kings progenitors.

For understanding of this Statute the questi∣on is,

Whether there be any thing in the word or intent of this Statute to take away, or restraine, or impeach the Iurisdiction of the Chancery to give remedy and releife according to conscience and equity in cases, which cannot bee remedied by the strict rules of the common law, by attaint, or by Writ of errour.

For the resolving of this question, is to bee consi∣dered, what hath beene used by the lawes, before the making of this Statute.

And to this point I must say, I have not seene any record or President, that the Court of Chancery hath beene restrayned to heare and determine causes of conscience and equity, and to give reliefe according∣ly, as well after, as before Iudgement given by the Judges of the Common Law.

But before the making of this Statute;* 1.10 there bee many precedents and records to prove,* 1.11 that the King and his Councell, and the Kings Commissioners ap∣pointed to be auditors querelarum & Court of Rome, & some, pretending to have power and authority for the Pope, did take upon them to examine such Iudge∣ments to reverse and undoe the same, which seemeth to be the point remedied by this Statute: And this is within the direct and precise words of the Statute, whereupon it may be inferred and concluded, that is the words shall bee taken precisely in the strict

sence; Then the King himselfe and his Coun∣sell, and the Parliament, who in time of the Kings progenitors, used to examine & reverse Iudgements, shall be bound and restrained by the Statute; But the Chancery medleth not with the reversing of the Iudg¦ments given by the Iudges of the common Law, but in allowing the same to be good and just, according to the strict rule of the Common Law (whereunto the Iudges are sworne) doth examine only the equity of the case, according to the rule of equity and con∣science, and taketh order with the partie, to doe that which in equity and Conscience ought to bee done, which the Iustices of the Common Plees hath no power to doe, and that seemeth to be the true reason that the Statute doth not once mention the Chan∣cery.

And it cannot reasonably be conceived, that the Parliament meant to bind the Chancery (which is not named) or the King or his Counsell and the Par∣liament it selfe, which are expressely named: That they should not releive parties that are greived by the Rigour of the common Law, against equity and con∣science in cases, which the Iudges of the Common Law cannot relieve thē by attaint, or errour, or other∣wise. For sententia Iudicis non praeiudicat veritati: And sicut res iudicata naturalem obligationem non tollit, Ita con∣spercatam, laesamque conscientiam non purgat: And some doe aptlie & truely define equitie thus;* 1.12 Equitas est pub∣lici iuris moderatio apectore Regio, velut ab Oraculo petenda. And another saith thus,* 1.13 Equitas in potestate moderato∣ris esse debet, multa contra scriptum facere et dicere: Ano∣ther saith,* 1.14 Equitas iustitiae aciem retundit: And Saint Augustine, Lex quiaese ipsam molire non potest mitiganda

est &. contemptus, fraus, & dolus, in Curia Regal, neminisub∣uenire debent.

And furthermore for the true understanding of [ 1] this Statute, and all other Statutes, this rule should be observed: 1. to understand, and consider what was the mischeife at the Common Law, which the Parliament meant to remedie within this Statute. It appeareth to have beene the reversing and undoing of Iudgements by the King or his Counsell, or his Commissioners or Parliament, which might and ought to be examined by attaint or errour, as is aforesaid, but not the ordi∣nary Iuditiall proceedings in Chancery, according to equity and conscience to give releife to the partie grieved, by the strict rigour of the Common Law or in cases which could not be remedied by attaint or er∣rour, or by any other ordinarie meanes by course of the Common Law, and where they in that equita∣ble, proceeding did not attempt to reverse or impeach the judgement given by the Common Law, but to admit and allow the same to be good and just, as is be∣fore declared.

The next is how this Statute was understood and [ 2] expounded at, and soone after the tyme of the making of that, for in all cases contemporanea expositio is special∣ly to be regarded: and for it (as I said before) I have not seene any Record or Precedent that this Statute hath beene expounded to restraine the Chancery, to proceede in their ordinary courses, to give releife in cases of equity, according to good conscience. Nere the time of the making of it, or many yeares after.

And I suppose no such materiall or effectuall record or precedent can be shewed. And for later times as in the time of Henry the seventh, and since, the pro∣ceedings

and examples bee so frequent, and so plaine & direct, as nothing is more common; and it is a cer∣taine and true rule Intellectus currit cum praxi.

[ 4] And if any ambiguity, or doubt should bee concei∣ved upon the words and intent of this Statute, sith it concernes the jurisdiction of the Kings Courts, which have no power, nor authority but from the King whom they serve. One Court ought not to take upon them to Iudge and deside their owne Iurisdiction, and the Iurisdiction of another of the Kings Courts: But then Bractons rule is to be holden:* 1.15 (that is) that the King's interpretation is to be expected, Who is to de∣clare and expound all doubtfull or obscure words in Chartis Regiis & factis-regum:* 1.16 For all Statutes are facta regi••, made at the request and by the consent of the Lords Spirituall and Temporall,* 1.17 and the Commons.

And where some new conceits have beene lately imagined, that the partie grieved should have com∣plained before Iudgement or else not to be heard or relieved after Iudgement by reason of this Statute. This is but a cavill and a Sophisticall distinction not worthie the answering. For before hee bee hurt, he [ 3] hath no cause to complaine, & that, which hurts him, is the Iudgement grounded upon the stricktenesse & rigour of the Common Law, against equity and con∣science, and when he feeles the wound, it is time for him to complaine to seeke remedie, by complaining of the wrong, which is done unto him by the rigour of the Common Law, contrary to equity and a good conscience, and of this sort be the precedents and ex∣amples before mentioned.

Lastly it is to bee lamented that the antient com∣mon Lawes are so much neglected and contemned,

and almost growne obsolete and out of use: that for the most part, wee have not the substance but the sha∣dow of the antient Common Law, Manet magni no∣minis umbra: and therefore his Majestie at the first beginning of his gratious raigne of England,* 1.18 did most princely, prudently, and iuditiously shew his mislike of the incertaintie of the Iudicature in his Courts of Iustice in England, and require and commanded his Iudges to take mature consideration of it. What fol∣lowed I will say nothing.

Wherefore let the Iudges now consider, how they observe in their Courts and proceedings, the words and intent of this Statute, whether after Iudgements the parties be in peace, untill the Iudgement bee un∣done by attaint, or errour, whether after Iudgements in Writs of errour firme, they suffer not new Actions, and verdict, against verdict, and Iudgement; against Iudgement without attaint or errour to the manifest deluding of the true and antient Maximes of the common Law, and without regarding of the words of the Statute. And thus suites for one, and the selfe same cause, are carried from Court to Court, as pow∣er and might of the parties, or favour or affection of the Iudges, or corruption of Sheriffes or subordinati∣on or periury of Witnesses or such like shifts or tricks can best accomodate the businesse.

De Chartis regiis & factis regum,* 1.19 non debent, nec possunt Iusticiarij,* 1.20 nec privatae personae disputare, nec etiam nisi illâ dubitatio oriatur, possunt eam interpretari & in dubiis▪ et ob∣scuris, vel si aliqua dictio duos contineat intellectus Domi∣ni regis erit expectanda interpretatio & voluntas eius sit in∣terpretari, cujus est condere. Maneant termini patrum, & inter fines proprios se quisque contineat,* 1.21 Sufficiant limites,

quos sanctorum patrum providentissima decreta Posucrunt.

Some notes and observations upon the Statutes of Provisoes and Praemunire especialy concerning the Chancerie and other Courts of equitie.* 1.22

The words be, 1. because some doe purchase in the Court of Rome provisions, to have Abbies and Prio∣ries in England in destruction of the Realme, and of holy religion, it is accorded that every man that pur∣chaseth such provisions of Abbies and Priories, that he and his executors, and procurators, which doe sue and make execution of such provisions, shall be out of the Kings protection, and that a man may doe with them, as of enemies of our Soveraigne Lord the King and his Realme.

Note the usurpation of the Church of Rome in this Case Iudged at this time,* 1.23 to be the di∣struction of the Realme and of Religion.

And the partie himselfe and his Executors and pro∣curators putting in execution such provisions, iudged to be enemies of the King and Realme, and out of the Kings protection, (and so in worse degree then Tray∣tors) and that therefore every man might iustifie the taking of their goods, and killing of them, and not to be impeached for it.

There is another Statute entituled Statute de pro∣visorib.* 1.24 declaring the great mischeife that the King and the Realme sustayned,* 1.25 by the usurpation of the Pope, in cases of provisions and reservations of Bene∣fices, reciting the Lawes ordained by King Edward the first, and adding further remedie, and severe punish∣ment against the offenders; and that no processe or

sute should bee in these cases in the Court of Rome, nor in no part else where.

Both these Statutes were specially provided to restraine the usurpation of the Pope, and the Churches of Rome in these cases of provisions, and reservations.

By the Statute Anno 27.* 1.26 Edward 3. it appeareth, That notwithstanding the two former statutes Anno 25. Edward 3. yet the usurpation of the Pope, and the Church of Rome, was so exorbitant, that the Nobles and Commons complained in this Parliament, and prayed further remedie for the same, alledging that divers of the people have beene drawne out of the Realme, to answer of things whereof Counsance per∣tayneth to the Kings Court, or of things whereof Iudgements be given in the Kings Court, or which sue in another Court, to defeate or impeach the Iudgements given in the Kings Court, in prejudice and disherison of the King and his Crowne, and of all the people of his Realme, and the undoing and distraction of the Common Law of the same Realme at all times vsed.

This is the Mischiefe, which was complained of and was desired to be remedied.

The Offenders, against whom remedie is sought, are these, which draw any out of the Realme by plea.

Wherfore the Counsance being to the Kings Court or of things, wherof Iudgements be given in the Kings Court, or which doe sue in another Court, to de∣feat

or impeach the Iudgements given in the Kings Court.

Then the remedie provided is,

That such offenders shall receive punishment by two moneths, to be before the King and his Coun∣sell, or in his Chancery, or before the Kings Iustices of the one Bench or other, or before the Iustices of the King, which to the same shall bee deputed to an∣swer in proper person to the King for their contempt done in this behalfe, and if they come not, then to be out of the Kings Protection, &c. Provided, that when they doe come before, they be out-lawed, they shall be received to answer.

Now it will appeare manifestly that the intent of the Parliament, was not to restraine or punish any that complayned and sued in the Chancery, to bee re∣leived according to equity and Conscience; In Cases wherein, by the strict rules and rights of the Com∣mon Law, the Iudges of the Common Law could not releive them, neither are there any words in the Statute, which can without violence bee strayned or reathed to serve any such unreasonable Constructi∣on: For the better understanding hereof, the parts of the Statute are to bee devided and severally consi∣dered.

• [ 1] 1. As first the mischeife complained of.
• [ 2] 2. The offenders, against whom, the Complaint is.
• [ 3] 3. The remedie provided, and against whom, the forme of proceeding therein.

For the mischeife, the Parliament finding, that the Pope and Court of Rome did not only con∣tinue

their usurpation in the Cases mentioned in the former Statute. An. 25. Ed. 3. But did also extend it further in drawing the people out of the Realme to answer things, whereof the Counsance pertaineth to the Kings Court, or of things whereof Iudgements bee given in the Kings Court, or by suit in another Court, to defeate or impeach the Iudgements given in the Kings Court; In prejudice, &c.

In the preamble, wherein this mischeife is declared, it appeareth that the drawing of the people out of the Realme to answer to those Cases, specially remem∣bred, was the greife of the people, for which they pray∣ed remedie.

But by suites in the Chancery to be relieved accor∣ding to equity and conscience in cases, in which the Iudges of the Common Law could not give remedy, the people were not driven out of the Realme, nor Iudgement given in the Kings Courts, were not sought to be defeated or impeached, but conscience and equity to be observed.

Nor such suites in the Chancery cannot bee ac∣compted to be any other court then the Kings Court; For the Chancery is one of the Kings supreame Courts of Iustice, and as much or more greived by the inor∣dinate usurpation of the Pope and his Courts as any other of the Kings Courts: Neither could such suits in the Chancery being the Kings own supreame court, bee in prejudice or disherison of the King and his Crowne, and of his people; or the undoing or di∣struction of the Common Law at all times used; And I suppose there can no record or warrantable prece∣dent be shewed that such proceedings in the Chance∣ry hath in times before used (that is before. 27. Ed. 3.) Beene construed to be the undoing or destruction of the Common Law.

And hereupon it may bee inferred and concluded, that those, which complaine and sue in the Chancery for releife and remedie, according to equity and con∣science, in such cases as the Iudges of the Common Law cannot remedie, are not any offenders within the words or meaning of this Statute.

And this will appeare more plainely by the reme∣die, which is provided; that is, that the offenders shall have garnishment by two moneths, to appeare before such Iudges, as are assigned to give remedie in the cau∣ses before mentioned in the Statute, which are these: The King and his Counsell the Chan. the Iustices of one Bench or the other, or other Iustices of the Kings, which shall be deputed.

Wherein is to be noted, that the Chancery is the second Court that is appointed to give Iustice against such offenders, as the Parliament meant, and is placed next after the King and his Councell, and before the Iudges of the one Bench or the other (between whom the Parliament giveth no prioritie nor precedent) & addeth such other Iustices as the King shal depute: By which power the King may by the Statute exclude both these Courts, & appoint other Iustices, if it shall please him so to doe.

Now it is too absurd to say or imagine that the ordinarie and juditiall proceedings in the Chancery by the Kings owne Authority, in cases be∣fore remembred can be in prejudice or disherision of the King or his Crowne or destruction of the Com∣mon Law; or that the Parliament did so meant or understand, sithe they have designed the Chancery to bee a speciall or prime Court to punish offenders against the said Statute.

And to resort to the true rule Contemporanea expo∣sitio,

for Intellectus currit cum praxi. I have not seene nor heard that any person hath beene charged, or im∣peached by suit in the nature of a Praemunire upon this Statute for sueing in the Chancery in the Cases before remembred, or in any other like cases.

The Statute 27. Ed. 3. was grounded upon the ex∣orbitant usurpations of the Pope and Church of Rome, which were in some sort provided for, by the former Statutes An. 25. Ed. 3. But the Parliament Anno 27. Ed. 3. finding the same too weake, and the Church of Rome did not only continue their former usurpations, but did daily increase the same more and more, did therefore devise further remedie a∣gainst their insolent and outragious excesse.

Wherein appeareth that the speciall mark, where∣unto both those Parliaments aymed & directed their Actions, was to provide and give remedy against the wicked proceedings of the Pope and Court of Rome, and not to restraine the jurisdiction and autho∣rity of any of the Kings owne Courts in their ordi∣narie and juditiall proceedings, either in law or equi∣ty, and by that, which is before remembred, is suffici∣ently declared, yet the same is made more manifest by the Statute Anno 38. Ed. 3. Stat. 2. cap. 1. 2. 3. 4.

By which it appeareth that in 9. yeares space, after the Parliament An. 27. Ed. 3. the Pope and Church of Rome ceased not to goe on still in their wicked and inormious usurpations upon the king & the Crown, and therefore that Parliament Anno 38. Ed. 3. decla∣reth plainely, that it was the Court of Rome, that dealt in cases, whereof the Counsance and small dis∣cussions pertaine to the King and his Royall Court; and for remedie thereof ordaineth, that the for∣mer Statute made Anno 25. Ed. 3. and Anno 27. Ed. 3.

shall be in all things affirmed and executed, adding also some further punishments and provisions against the offenders, directing the proceeding therein to be before the King and his Councell, onely without mentioning any other Courts, as 27. Ed. 3. did.

So as upon conferring together these three Statutes viz. 25. 27. and 38. Ed. 3. it appeareth that the intent of al these Parliaments was onely to punish offenders, that maintained the usurped and pretended authority of the Pope, & Church of Rome, and prosecuted any Action or sute by vertue of the same in any case, whereof the Counsance and finall discussing pertey∣ned to the King and his Courts; And therefore if a∣ny doubt bee conceived upon any words in the Sta∣tute 27 Ed. 3. it is to be explained by the Statute 25. Ed. 3. going before, and the Statute 38. Ed. 3. com∣ming after.

After all these Statutes,* 1.27 yet ambitious usurpers, and greedy covetous extortions of the Pope and Court of Rome ceased not, but still continued and in∣creased more and more, where-upon the Parliament Anno 16. Rich. 2. chap. reciting some particular cases, viz that Iudgments being given in the Kings Courts for recoverie of presentments to Churches, & Bene∣fices, and the same Iudgements duly executed by the Arch-bishop and Bishop as they ought to bee; That thereupon the Archbishop and Bishop have excom∣municated by the Popes censure for executing of the same Iudgements.

[ 2] And also that the Pope did ordaine and purpose to translate some Prelates out of the Realme, and some from one Bishop-prick to another within the Realme, without the assent or knowledge of the King, by which the king should bee destitute of his Councell;

and the treasure of the Realme to bee made away out of the Realme, and so the Regality & Crowne should be made subject to the Pope in perpetuall distruction of the King and his Crowne, and all the Realme.

In which cases, and in all other cases attempted a∣gainst the King, his Crowne, and Regalitie, the Lords Temporall and Commons, did promise to stand with the King and the Crowne, and to live and die; and the Lords Spirituall promised also, to stand with the King in the cases before mentioned, and in all other cases bound by their alleagiance with a speciall prote∣station and saving of the Popes authority in excom∣municating of Bishops, and translating of Prelates, according to the Lawes of the holy Church, & there∣upon it is ordained and inacted, that if any purchase or pursue in the Court of Rome or elsewhere, any such translations, processes, and sentences of excom∣munication, Bills, Instruments or other things, which touch the King, against him, his Crowne and Regali∣ty, or his Realme, as is aforesaid: And they, which bring or receive the same within the Realme, or make thereof notification or any other execution within, or without that they, &c. shal forfit, &c. and to be put out of the Kings protection, & be attached, &c. and sue in processe of Premunire, &c. And against others, which sue in other courts in derogation of the Kings royaltie.

By this it appeareth plainely, that the Pope and Court of Rome continued still, and proceeded fur∣ther in their exorbitant usurpatiou upon the Crowne and Kings Royaltie, and the common Lawes of the Kingdome; So this Parliament endavoured to meete with, and stand with the same, namely in the parti∣cular cases, which are specially mentioned, viz. Con∣cerning Iudgements given in the Kings Court in

these pleas and cases, and in translating of Prelates &c. and in other cases attempted against the Kings Crowne and Regality; But it is manifest, that the in∣tent and the scope and drift of the Parliament was onely against the Pope and Court of Rome, and against those persons, that persue any such Translati∣ons, processe, &c. or other things, which touch the King, or against his Crown, or Regality or his Realme as is aforesaid, and which being, notifie or execute the same within the Realme or without, these be offen∣ders, which the Parliament had cause, and meant to punish; and it is strange and improbable that any learned Iudge of the Common Laws of England, should stretch or extend the words of this Statute further, then only against the usurped aurhority of the Pope, and Church of Rome; But it seemeth that some that take pleasure ludere in vorbis, dormitare in sensibus, and to dispute de apicibus juris, equi & boni ra∣tione praetermissâ, and to professe learning peritiâ literali non intelligentiâ spirituali; And so are contented verba legis tenere & vim legis ignorare, have gone about to presse and straine the word of this Statute, not onely against the Pope and Church of Rome, but also a∣gainst the Kings owne High Court of Chancery, and other his Majesties Courts of Equitie in England, grounding, their opinion and conceit upon these words of the Statute.

If any purchase, in the Court of Rome or else where, any such Translations, or processes, or other things which touch the King: And for the better understan∣ding hereof, it is to bee remembred, that the Pope & Court of Rome kept their Seiges and Court not at Rome onely, but sometimes at Avignion, sometimes at other places; and divers Antipopes beeing at one

and the selfe same time, kept their severall seiges and Courts at severall places, and yet each of them chal∣lenged, and pretended to have supreame jurisdiction, power, and authority over and above the King and his Crown, & regality in the cases before remēbred; And therefore it was requisite and necessarie for the King and the Parliament to withstand and provide remedy against the same.

And that is the true and right understanding of Ou Aylors: For it is too absurd to say, or imagine that the King or Parliament meant to extend the same a∣gainst the Kings owne Courts of equity in England, which dirived their authority and jurisdiction from him onely: and heard and determined, as his substi∣tutes, according to equity and conscience, such cases as the Iudges of the common Law could not by the strict rules of the Common law Iudge & determine.

These Courts and the Iudges, & Ministers therof, the King had power to suppesse, altar, and punish at his pleasure, and therefore against these the Lords Temporall and Commons needed not to engage themselves to stand with the King and the Crowne, and to live and dye, Nor the Lords Spirituall & Cler∣gie to promise to stand with the King, as they were bound by their alleageance, with their Cautious pro∣testations for the ordinarie, legall & iuditiall procee∣dings, the Chancery and Courts of equity according to conscience.

The King, nor his Crowne, nor Regality, nor the Common Law were not in any danger, but the dan∣ger was by the ambitious usurpation of the Pope, and the Church of Rome, and by the proceedings in the Courts holden by that usurped authority; and there∣fore against them the Parliament provide this Sta∣tute

following, the example of the former Parlia∣ment 25. Ed. 3. 27. Ed. 3. and 38. Ed. 3. and those be the Courts which this Parliament, & the Parliament Anno 27. Ed. 3. cap. 1. noted to bee in derogation of the Kings regalitie and destruction of the Com∣mon Law, but not the Kings owne Courts of equity and Conscience. And for the further clearing of this doubt, if it be worthy to be made a doubt, how these words ou Ayllors shall be understood, in the 5. Ed. 4. there is this note,* 1.28 Nota, que le statute de premunire est in Curiâ Romanâ Vel alibi: lequel alibi, est intendue en les Courtes del evesques illmit, que sihome soite excompe en court del evesques perchose que appent all Royall Maiestie ses shose alcomen lep il aur premunire & issent adiudge & fith: a∣bridging that case saith,* 1.29 that 11. Hen. 7. the opinion of the Court was so, which he himselfe heard.

By which it appeareth, that the Iudges did then understand the proceedings by the Bishops in the Spirituall Courts, which was by authority derived from the Pope and Church of Rome, was onely meant by the word vel alibi. But not the procedings in the Kings owne Court of Chancery by authority derived from him onely in cases of equity and Con∣science not remediable, otherwise for that were to set the King against himselfe, which is too inconveni∣ent and absurd.

FINIS.

Notes

• * 1.1

  Mag. Chart.
• * 1.2

  Cap. 9.
• * 1.3

  Stat. 25. Ed. 3. Cap. 4.
• * 1.4

  Stat. 28. Ed. 3. Cap. 3.
• * 1.5

  Stat. 2. Ed. 3.
• * 1.6

  Cap. 8.
• * 1.7

  Stat. 14. Ed. 3. Cap. 14.
• * 1.8

  Stat. 42. Ed. 3. cap. 3.
• * 1.9

  Stat. 4. Hen. 4. Cap. 23.
• * 1.10

  Ʋn. Stat. 29.
• * 1.11

  Ed. 3. cap. 1.
• * 1.12

  In Casus. 192. in quae.
• * 1.13

  vel. & novi. lib. pradict.
• * 1.14

  Cap.
• * 1.15

  Bracton. lib. 2. fol. 34.
• * 1.16

  cap. 16.
• * 1.17

  22. Edw. 3.
• * 1.18

  King Iames.
• * 1.19

  Bracton. lib.
• * 1.20

  1. fol. 34. cap. 16.
• * 1.21

  Leo. Epist. 67. & 94.
• * 1.22

  Stat. 25. Ed. 3. Cap. 22.
• * 1.23

  Note.
• * 1.24

  Anno 25.
• * 1.25

  Edwad 3.
• * 1.26

  Stat. 27. Ed. 3. Cap. 1.
• * 1.27

  Stat. 16. Ric. 2. Cap. 5.
• * 1.28

  An. 5. Ed. 4. 6. 9.
• * 1.29

  Premunire.