1.
May.
1690.
An
Account
of
the
Original
of
Judging
according
to
Equity
,
and
how
Erroneous
Judgments
in
Equity
have
been
Rectified
,
Ag
ᵗ
the
jurisdiction
of
the
Lords
.
Humbly
Represented
to
the
King
,
Lords
and
Commons
;
in
Parliament
Assembled
.
In
Order
to
a
due
Establishment
.
NOne
but
the
King
,
and
such
as
are
delegated
by
him
,
can
or
ought
to
Judge
in
any
Temporal
matter
.
Such
as
sought
relief
in
former
times
in
Cases
of
Equity
were
Suitors
to
the
King
himself
,
who
being
assisted
with
his
Chancellor
and
Councel
,
Afterwards
the
King
being
willing
to
ease
himself
of
that
trouble
;
If
the
Chancellor
Erro'd
formerly
his
Decrees
were
reviewed
,
not
before
himself
alone
,
but
some
of
the
Judges
sate
with
him
,
most
times
in
the
Exchequer
Chamber
,
as
appear●
by
the
Year
Books
and
Reports
following
,
viz.
37
H.
6.
f.
13.
ibidem
35
,
&
36.
7
E.
4.
f.
15.
22
E.
4.
67.
27
H.
f.
15.
But
whether
the
Chancellor
in
the
Cases
last
mentioned
did
take
the
Judges
to
his
Assistance
of
his
own
accord
,
or
by
the
Kings
Order
it
appears
not
by
the
Books
,
but
it
appears
that
of
later
times
the
Decrees
of
the
Chancellor
were
Reviewed
by
Judges
and
others
by
Order
and
Commission
from
the
King
,
as
appears
by
the
Authorities
following
,
viz.
4
Instit.
f.
85.
where
you
may
find
,
Moyle
Finch
Petitioned
Queen
Elizabeth
against
a
Decree
in
Chancery
in
the
42.
and
43.
years
of
her
Reign
,
and
she
refer'd
the
matter
to
all
the
Judges
of
England
,
and
upon
their
Opinions
,
being
Certified
into
the
Chancery
,
the
Decree
was
Revers'd
,
and
there
the
Lord
Cheif
Justice
Cooke
Cites
4
Cases
more
that
about
that
time
were
referred
out
of
the
Chancery
to
some
of
the
Judges
.
There
be
also
several
Orders
entred
in
the
Register's
Books
of
Orders
in
Chancery
,
that
appeare
to
be
made
by
vertue
of
the
Kings
refference
from
Chancery
Decrees
to
the
Judges
,
as
follows
,
viz.
21.
Junii
2
Jac.
1.
Inter
Chamberlain
&
Bubb
,
24.
No.
3
Car.
1
:
Inter
Barker
&
Unwin
,
12.
No.
7
Car.
1.
Inter
Penington
&
Holms
,
15
Car
:
1.
Rot.
patent
.
23
:
n.
5.
indors
.
a
Commission
to
Review
a
Decree
in
Chancery
between
Harvey
and
Langham
in
there
Inrol'd
.
Of
late
Years
we
find
that
Erronious
Decrees
in
Chancery
and
other
Courts
of
Equity
were
review'd
by
Appeals
to
the
Lords
in
Parliament
,
and
it
is
worth
while
to
see
how
and
when
that
Course
first
began
.
In
the
Year
1621.
Sir
John
Boucher
prefer'd
a
Petition
to
the
Lords
Intitled
thus
,
To
the
Right
Honourable
the
Lords
Spiritual
and
Temporal
in
Parliament
Assembled
.
In
that
Petition
he
complains
against
the
Lord
Keeper
for
an
over
hasty
determining
of
his
Cause
,
and
refusing
to
hear
his
Evidence
,
whereby
,
as
he
alledg'd
,
he
had
not
Justice
done
him
,
and
the
Petition
concludes
in
these
words
.
The
Petitioner
doth
therefore
in
all
Humility
Appeal
to
your
Lordships
,
&c.
Humbly
desiring
that
your
Lordships
would
be
pleased
to
hear
and
Judge
the
same
.
Upon
Reading
of
which
Petition
it
was
referr'd
to
the
Committee
of
Priviledges
to
consider
whether
it
were
a
formal
Appeal
or
not
.
Afterwards
the
Lord
Arch
Bishop
of
Canterbury
,
To
the
King
and
his
Great
Councel
.
However
they
thought
sit
the
matter
of
the
complaint
should
be
heard
,
which
was
accordingly
done
,
as
to
the
charge
against
the
Lord
Keeper
for
his
over
hasty
hearing
the
Cause
and
refusing
to
hear
the
Evidence
,
but
as
to
the
merits
of
the
Cause
it
was
not
heard
;
although
Sir
John
Boucher
earnestly
begg'd
it
.
In
1624.
I
find
several
Petitions
of
Appeals
from
Chancery
to
the
Lords
in
Parliament
,
William
Mathews
,
against
a
Decree
obtain'd
by
George
Mathews
,
and
upon
hearing
,
their
Lordships
revers'd
the
Decree
;
whereupon
George
Mathews
Petitioned
their
Lordships
in
nature
of
a
Plea
to
their
Jurisdiction
,
setting
forth
,
that
he
was
inform'd
by
his
Councel
,
that
it
had
been
the
course
of
that
Honourable
House
to
Reverse
Decrees
,
but
by
Bill
Legally
Exhibited
;
and
upon
consideration
had
of
that
Petition
their
Lordships
waved
their
own
reversal
,
And
all
the
other
Appeals
in
that
Parliament
that
I
could
find
were
Refer'd
back
to
the
Chancery
or
to
Arbitrators
to
endeavour
to
end
,
and
none
determin'd
by
the
Lords
sa
I
could
find
.
From
that
time
to
the
beginning
of
the
Wars
,
about
1640
,
and
1641
,
I
find
nothing
of
Appeals
to
the
Lords
in
Parliament
,
but
in
those
troublesome
times
they
were
again
receiv'd
,
but
how
Legally
is
not
for
me
to
determine
,
but
this
I
will
say
,
that
before
their
Lordships
can
Examine
Errors
in
Judgments
at
Law
,
there
must
be
the
Kings
leave
for
a
Writ
of
Error
for
that
purpose
,
and
the
Writs
of
Error
are
their
Lordships
Commissions
;
but
I
know
none
they
have
to
determine
Appeals
from
the
Chancery
no
more
then
from
the
Prerogative
Court
,
which
they
pretend
not
to
but
,
have
disclaim'd
it
.
I
find
that
the
Lords
were
formerly
Judges
in
Parliament
in
particular
Cases
,
by
the
Kings
assent
as
appears
,
4
E.
3.
n.
1.
and
in
the
same
Year
n.
6.
it
was
assented
and
Agreed
by
the
King
and
all
the
great
Men
in
full
Parliament
,
that
the
Peers
of
the
Realm
should
not
be
driven
for
the
future
to
give
Judgment
on
any
other
but
their
Peers
,
nor
have
power
so
to
do
for
the
future
,
and
n.
16
,
and
17
,
of
that
Parliament
Thomas
of
Berkley
,
Rnt.
was
tryed
before
the
King
in
Parliament
by
a
Jury
of
12
Knights
and
acquirted
:
and
25
E.
3.
n.
10.
the
Record
of
the
Judgment
against
Sir
William
Thorpe
was
brought
into
Parliaament
,
as
the
Record
says
,
before
the
King
himself
who
took
the
Advice
of
all
the
Lords
,
but
I
think
the
Judgment
was
the
Kings
and
not
the
Lords
.
1
H.
4.
n.
79.
It
is
declared
by
the
Arch
Bishop
of
Canterbury
,
by
the
Kings
Command
,
that
all
Judgments
appeartain'd
to
the
King
and
Lords
unless
in
Statutes
,
&c.
but
I
cannot
find
how
the
Lords
in
Parliament
came
to
be
Judges
there
in
any
Cause
between
Party
and
Party
,
without
the
King
,
or
without
his
Assent
,
or
the
Assent
of
his
Chancellor
,
or
one
whom
the
King
puts
there
to
Execute
the
Office
of
the
Chancellor
,
who
is
the
Kings
Representative
in
the
House
of
Lords
in
his
absence
,
as
appears
10
R.
2.
n.
6.
and
by
the
several
Actions
by
him
done
by
the
King
Authority
,
as
Prorogueing
and
Dissolving
the
Parliament
,
so
that
the
Chancellor
or
he
that
executes
his
place
in
the
House
of
Lords
by
the
Kings
Commission
is
not
barely
a
Speaker
of
the
House
of
Lords
and
no
more
,
and
to
be
wholly
Rul'd
and
Govern'd
by
the
Lords
,
but
he
is
Answerable
to
God
&
the
King
for
all
Judgments
there
given
,
as
being
intrusted
to
represent
the
King
who
is
the
supream
Judge
.
In
Judgments
heretofore
in
Parliament
,
the
Advice
of
the
Judges
was
followed
,
and
the
late
Lord
Hollis
,
the
Champion
for
the
Jurisdiction
of
the
Lords
in
matters
of
Appeals
,
The
King
is
sworn
to
Judge
justly
,
and
so
is
the
Chancellor
oblig'd
to
take
the
Oath
of
a
Chancellor
tho'
he
be
a
Peer
,
and
though
the
Lords
upon
Tryal
of
a
Peer
give
their
verdict
upon
honour
,
yet
I
do
not
think
that
any
Reason
why
if
they
are
made
Judges
in
other
Cases
,
they
should
not
take
the
Oath
of
a
Judge
.
The
King
Judges
by
his
sworn
Judges
who
are
his
Council
in
matters
of
Law
,
and
they
are
call'd
to
the
House
of
Lords
not
at
their
Lordships
pleasure
,
Amongst
the
Petitions
of
the
Commons
in
Parliament
1
R.
2.
n.
87.
it
was
prayed
that
no
Suit
between
party
and
party
be
determined
before
any
Lords
or
others
of
the
Councel
,
but
before
the
Justices
only
which
was
granted
by
the
King
.
I
think
this
was
an
Act
of
Parliament
according
to
the
manner
of
Enacting
in
those
times
,
and
that
the
Lords
in
Parliament
are
the
Kings
Councel
,
and
are
often
call'd
his
Great
Councel
.
The
Judges
in
a
course
of
meer
Law
are
oblig'd
to
judge
according
to
Law
,
and
in
a
Course
of
Equity
according
to
Equity
;
but
in
both
Cases
the
matter
of
fact
whereupon
both
Law
and
Equity
doth
arise
ought
by
the
Law
of
the
Land
to
be
tryed
by
Jury
of
12
Men
,
unless
in
some
few
Cases
,
yet
the
Courts
of
Equity
have
determin'd
matter
of
fact
without
Jury
,
which
is
very
inconvenient
.
It
is
obiected
by
those
that
would
not
have
the
Judges
Opinions
regarded
at
all
in
Judgments
in
the
House
of
Lords
,
that
they
may
be
corrupted
,
which
I
admit
;
but
if
any
such
thing
appear
,
such
Judges
may
be
disp●ac'd
and
honest
Men
put
in
their
places
,
as
sometimes
Parliaments
are
factious
,
but
that
doth
not
justifie
the
King
to
make
Acts
without
a
Parliament
,
yet
he
may
.
Dissolv
a
Factious
Parliament
and
call
another
by
whose
consent
he
may
make
Acts
,
and
so
corrupt
Judges
being
displac'd
,
the
King
and
Lords
may
be
advis'd
by
honest
ones
.
It
may
therefore
be
worthy
consideration
whither
it
be
secumdum
Legem
&
Consuetudinem
Parlamenti
for
the
Lords
to
Reject
the
Opinion
of
the
Judges
(
as
of
late
hath
been
done
)
both
in
matters
of
Law
upon
Writs
of
error
,
and
in
matters
of
Equity
upon
Appeals
;
in
which
last
,
such
Regard
ought
to
be
had
to
the
Law
as
not
quite
to
overthrow
it
,
though
by
reason
of
some
Circumstances
in
some
cases
the
Rigour
of
the
Law
may
be
moderated
,
and
some
small
deffects
of
the
letter
of
the
Law
supplyd
by
Equity
in
Cases
within
the
meaning
thereof
,
and
therefore
he
can
never
be
a
good
Judge
of
Equity
that
is
not
well
Skill'd
in
the
Law
:
and
if
it
were
otherwise
,
since
Equity
overrules
the
Law
,
we
had
better
take
Advice
of
Honest
Gentlemen
tha●
spent
all
their
Lives
in
Hunting
and
Hawking
and
other
pleasure
,
and
never
Convers'd
with
,
nor
understood
the
Gibbrish
of
Law
Terms
,
nor
the
noise
of
Westminster
Hall
,
then
to
give
any
Eminent
and
well
read
Lawyer
5
:
or
10
:
or
20
:
Guinneys
for
his
Advice
;
for
the
Judgment
of
the
first
sort
is
most
naturall
and
therefore
most
like
to
suite
with
the
Judgment
of
the
Lords
if
they
neglect
the
Advice
of
the
Judges
.
And
to
perpetuate
Affliction
,
such
Judgment
must
now
be
the
last
resort
according
to
some
Opinious
,
for
so
they
would
have
the
Judgment
of
the
Lords
,
though
the
King
nor
his
Representative
be
no
party
nor
consenting
thereto
,
and
that
if
they
Err
it
is
not
to
be
rectified
by
themselves
nor
by
Act
of
Parliament
,
though
our
Law
Books
say
,
that
Parliaments
may
Err
and
do
err
oftentimes
,
and
their
Errors
may
be
rectified
in
another
Parliament
,
or
another
Session
,
as
appears
Bro.
Error
68
Crompton
f.
12.
L.
Hollis's
Case
stated
,
f.
65.
The
whole
Parliament
of
the
21
of
R.
2
:
and
the
Authority
thereby
given
was
repealed
for
this
principal
Reason
amongst
others
,
because
there
was
a
Clause
therein
,
that
no
person
should
attempt
to
revoak
any
Ordinance
then
made
,
I
may
boldly
say
there
is
nothing
so
great
a
grievance
as
the
Male
Administration
of
Justice
,
and
therefore
nothing
more
becoming
the
Commons
of
England
in
Parliament
Assembled
(
who
are
the
grand
Inquest
of
the
Nation
)
then
to
endeavour
to
preserve
to
the
People
the
due
course
of
Administration
of
Justice
,
and
to
endeavour
to
restrain
all
Usurpation
upon
our
Laws
and
Liberties
by
whomsoever
it
be
,
by
their
open
declaring
and
voting
against
it
,
and
Addressing
to
the
King
,
our
Supream
Head
and
Governour
,
for
a
Regulation
,
and
in
particular
,
to
desire
His
Majesty
to
grant
Commissions
to
the
Judges
and
some
others
of
Ability
and
Integrity
to
Review
Decrees
in
Courts
of
Equity
as
formerly
was
the
practice
,
and
as
now
is
used
,
to
Review
Decrees
in
the
Prerogative
Courts
;
and
to
desire
the
Lords
in
Judgements
in
their
House
to
takeand
have
due
Regard
to
the
Opinion
of
the
sworn
Judges
,
and
that
if
at
any
time
any
thing
should
happen
to
be
unreasonably
done
or
advis'd
by
them
,
through
oversight
,
misinformation
or
otherwise
,
or
if
a
Case
should
happen
against
Reason
for
which
no
Releif
may
be
had
by
the
oridinary
Course
of
Law
of
Equity
,
the
same
may
be
helpt
by
the
whole
Parliament
consisting
of
King
,
Lords
and
Commons
,
in
whom
the
Legislative
Power
Resides
,
and
who
,
all
together
,
are
Superiour
to
the
Lords
alone
in
their
Judicial
Capacity
,
and
may
supply
their
Deficiency
,
as
was
lately
done
in
the
Case
of
Roberts
against
Bodvil
and
Winn
,
the
said
Roberts
having
been
in
Chancery
a
great
while
,
endeavouring
to
set
aside
a
Will
,
and
from
thence
Appealed
to
the
Lords
but
could
not
effect
it
but
By
Act
of
Parliament
,
which
may
be
seen
in
the
Parliament
Rolls
,
18
Car.
2.
n.
9.
Vir
bonus
est
Quis
?
Qui
Consulta
Patrum
qui
Leges
Juraque
servat
.