Jus appellandi ad Regem Ipsum a cancellaria, or, A manifestation of the King's part and power to relieve his subjects against erroneous and unjust decrees in chancery collected out of the authorities of law / by Walter Williams ...

SECT. VII. The Inconveniencies that accrew for want of a constant Relief against Erreneous and Unjust Decrees in Chancery.

TO apprehend the mischiefs that may ensue for want of a con∣stant and permanent practical Power to controll and rectify mistaken De∣crees in Chancery, it is a necessary to look back to the fourth Section for the Power of that Court, and how far it extends, which is there set down in some measure.

It is also considerable, how ill some Chancellors have us'd this their so great unlimited Power, which ap∣pears in the Lord Bacon's Case, here∣in 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 Conven∣tion 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 a∣gainst the corrupt and vicious pro∣ceedings of another Bacon, or endan∣ger his own safety, by letting them sit; in which case, by the Rule of Self-pre∣servation, the King ought to save him∣self: 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 mi∣stake for their Clients, according to the measure of the Fees they re∣ceive,

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 Chan∣cellor 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 mise∣ry; 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 Par∣liament when it meets should find leasure from publick business to exa∣mine 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 what∣soever, which would be prevented if there were a place to Appeal, be∣fore 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 Ad∣vice and Opinion of a greater num∣ber 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 Parlia∣mentary way, it may make the people believe that the Supremacy of Jurisdiction is in the House of Lords, and not in the King, and con∣sequently lessen him in their opi∣nion; for People Love and Honour them most from whom they find most Relief against Injury; and how consistent that is with Monar∣chy, 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 Inte∣grity, and all Sworn, To do equal right to all, and to take no Fee or Roabes of any man great or small, but of the King himself, during their be∣ing Judges; And who in their pro∣ceedings are ty'd to Rules; and since Appeals by Writ of Error, by special Provision by Act of Parlia∣ment,

may be at all times had against their Judgments; and since there are frequent Appeals from all Eccle∣siastical 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 Cor∣rected, 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 Extraordina∣ry

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 be∣ing but an Innovation upon the Original Institution of that Court, as appears by what is aforesaid, and to the end there may be no ob∣struction 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 Errone∣ous or Unjust Decrees in Chancery by a Lord Chancellor or Keeper.

Notes

• 18 E. 3.7. Oath of Just.