Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether the High Court of Chancery, as the practice is there, be not a very great grievance, and burthen to the Common-wealth?

IT is not my purpose, or the scope of my indeavour, to speak or write against a Court of Chancery, I know there is an absolute necessitie of it. Equity said D. 8. lib. 1. cap. 16. is a right wiseness that considereth all the particular circumstances of the dead, the which also is temper∣ed with mercie, and such an Equity must be observed in every general rule of the Laws of man, for Sum∣mum jus, summa injuria, viz. If thou take all that the word of the Law giveth thee, thou shalt sometimes do against the Law. And therefore said D. 8. cap. 18. very well; If it were ordained by Statute that there

should be no remedy upon Equity in Chancery, nor elsewhere, such a Statute were against reason and con∣science, and certainly so it were. He approves the use of any thing, that labours to take away the abuse.

I am not ignorant, that the Kings of this Nation have ever had their Court of Chancery, and their Chan∣cellor or Lord Keeper of the Great Seal; nor am I wholly unknowing of the power and Authority of that Court. In the Chancery, saith my Lord Cook in his Jurisdiction of Courts, there are two Courts, one ordinarie, Coram Domino Rege in Cancellaria, in which the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line of the Laws and Stat. of the Realm, Secundùm legem & consuetudinem Angliae, and with this Court, I purpose not to meddle, as

being not within the limits & bounds of my present discourse. But the other Court, that is extraordinary, according to the rule of Equity, se∣cundùm aequum & bonum; and that is my work to treat of, and that you may see the necessity of this Court, it is Officina Justitiae, out of which all Original Writs & all Commissi∣ons, which pass under the great Seal go forth, which great Seal is Clavis Reipublicae, and for these ends this Court is always open. And in this, the Chancellor or Keeper was sole Judge, but he had power, if he pleased, to assist himself with the Judges.

And now I shall take freedom to let you know what the ancient rule was for this Court of Equity, which is very good. Three things are to be adjudged in a court of conscience: Covin, Accident, and breach of Con∣fidence.

All Covins, frauds, and deceits, for which there is no remedy by the or∣dinary course of Law.

Accident, as when a servant of an Obliger, Morgager, &c. is sent to pay the Monies upon the day, and he is robbed, &c. remedy is to be had in this Court, against the forfeiture, and so in the like case.

The third is breach of trust and Confidence, of which you have plen∣tifull Authorities in our Books: but of this, this tast onely shall suffice; and now to come to that which I in∣tend, which is the present practise there, and therein I shall not med∣dle with the many great Officers and their fees; which is a very great bur∣then to the Common-wealth, be∣cause that I do believe, that they are in a way of redress.

But the first thing that I shall touch upon, is the multitude of Suits

that are there pending, so that it is impossible (without the Commissio∣ners were more than men) for them to receive a convenient dispatcht. I do acknowledge their great and in∣defatigable pains in that high and extraordinarie Judicature, for which the Common-wealth stands very much obliged to them: yet I know as men, they cannot exceed their strength and ability.

This Court hath received a great addition, not of Jurisdiction, but of practise, by taking away of the Court of Wards, that great and op∣pressive Court; as likewise, by the fall of that unnecessarie Court of Requests. So that the business of this Court is so great, and doth so much increase dayly, that the Common∣wealth will in a short time very much suffer through inevitable, not to be prevented, delay of Justice.

Besides; it is not unknown, that many Suits are commenced there upon a suggestion of Equity, meerly false, on purpose onely to hinder or delay the execution of Justice at the Common-Law; this likewise much advances the p••••ctice there, and is a very great prejudice to the Com∣mon-wealth, by reason of such un∣just and causless vexation. I hope no man will be so unreasonable as to misapprehend me here, or to judge, that in any thing I have said, I should lay the least imputation of fault up∣on the Commissioners, no, I do not, I cannot, I know that all men who have to do in that Court, do plen∣tifully partake of their Justice, yet I must say, as before, that it is im∣possible for them, through the infi∣nite multiplicity of business there, to give a convenient dispatch to all.

Again, it seems to me, to be a great grievance and burthen to the Common-wealth, to have a resort in matter of Equity from a Court of Law, to Chancery. We say in Law, frustra fit per plura, quod fieri potest per pauciora, it is vain and idle for a man to go about, when he may find a neerer way home. The Law loves not circuity of action, why then should men be forced to a Court of Equity, when the case is pending be∣fore the Judges at Law? and why may not the matter of Equity (if any) be determined by them with∣out such further trouble or wheeling about, which is no small charge and expence to the people? I know not but that they are in such case, the most proper Chancellors; and this will prevent a very great mischief and vexation to the people, which I have shown before, and that is, of resort∣ing

to the Chancery upon pretence of Equity, whereas in truth, it is onely to delay Justice: a thing, then which, nothing more frequent and usual.

Besides, it is no strange thing for the Judges to make themselves Chancellors too, for I have known this case frequently in practice, that the Judges, in debt upon a penal Bond, have, upon a motion, forced the plantiffe to accept of the princi∣pal with costs and damages, and I am sure, the penalty in strictness of Law being forfeited, this is judging and determining according to Equi∣ty; and why they may not do it as well in other cases, I understand not further, as I have said before: The Chancellor may call the Judges to his assistance, and peradventure he will call those (as is most proper) before whom the case was pending at Law: is not this then a strange

circuitie of action? why might not the matter of Equity have been as well determined by the Judges, and so this great vexation have been pre∣vented?

But to this it will be said, that this would be a total destruction of the Court of Chancery, and a gross con∣founding of Law and Equity, to make the Judges judge of both.

To this I answer, that we are wholly to respect the good of the Common-wealth, and what tends most that way, certainly is most just and reasonable; other relations ought to be subservient to that; that is equal and good ought onely to be look't upon. But further, though this will much abridge the practice there, yet, it will not take it away; and I am certain, the practice there needs some abatemēt; or at last there will be an extream failer of Justice.

Not destroy it, for there be ma∣ny cases, which are so meerly and absolutely equitable, that they have not the least relation to Law, nor can any action in such case be brought at Law, as in all your cases of discove∣ry, and the like.

So that where the Suit is onely proper there, and is not, nor cannot be brought in question at Law, in such case it is reason that Court should have a determining power in the matter of Equity: and such cases onely, I am confident, will find work enough for the Commissio∣ners, and this will be a very great ease and benefit to the people.

For the scruple of confusion, I know no reason, but that Judges of Law may as well judge of Equity; as Judges of Equity judge of Law. Nay more, are they not all Lawyers? I know it is no strange thing, for

others to have been Chancellors; yea, it hath been common for Bi∣shops to exercise that great place of Judicature; how proper it was for them, in relation to their functions, as also to the place of Judicature it self, I shall not dispute here, as not proper to that I intend; but certain I am, none more proper Judges of Equity, then Judges of Law, nor can he be a competent Judge of E∣quity, that understands not the Law: for Equity is no other but an excep∣tion of the Law of God, or of the Law of reason, from the general rules of the Law of man; which ex∣ception is secretly understood in eve∣ry general rule of every positive Law; therefore he that understands not the one, cannot well Judge of the other.

Give me leave to urge one thing more, which I am sure would very

much abate, and lessen vexatious and troublesome Suits in Chancery, and that is, that no plaintiffs should pre∣ferre a Bill, but that he may swear it, as well as the Defendant his an∣swer, that such untruths as are now (to the shame and scandal of our profession) alledged and preferred in all, or most Bills exhibited, may be prevented, that men may not lye (pray pardon the coursness of the Term, since the truth is so) by tole∣ration.

To this I know it will be said, that some Bills are meerly for discovery and the like, and so not to be sworn to; To this I answer, that there is no Bill but hath something positive∣ly alledged in it, and that me thinks seems reason, that every Plaintiffe should swear to, the rather, for the Honour of this High Court, that men may not dare to forge falsities,

and to present them to the Com∣missioners for specious truths.

I have one thing more to say, and with which I shall conclude; and that is, that it seems very hard to me, that men should not have costs of Suit, in some reason answerable to what they have necessarily expended in this Court, as well as at Law; so that often the remedy proves as bad, if not worse, then the disease, and sure this cannot be agreeable to Equity, it is not aequum, nor bonum; neither good for the Court, nor equal to the party. And this to my knowledge hath deterred many a man from prosecution in this Court. I shall say no more but this, judge me ac∣cording to Equity, and then I know I shall not be condemned.

The next thing I have resolved to treat of is, Collateral Warranties, & in that I shall propound this short question: