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Whether the Chancery may relieve B. in this or such like Cases, or else leave him utterly remediless and undone? And if the Chancery be restrained herein by any Statute of Praemunire, then by what Statute, and by what words in any Statute is the Chancery so restrained, and Conscience and Equity excluded, banished and damn'd?
Which Case his Majesty referred again to his said Attorney and Learned Counsel, calling to them the Prince's Attorney, who returned this Answer.
According to your Majesty's Commandment we have deliberately advised of the Case sent unto us by the Lord Chancellor, and of the Statutes as well those of Praemunire, as others as far as (we take it) may concern the Case.
The Statutes upon which this Question grows are principally two; whereof one is the Statute of Praemunire, and the other is a Statute of simple Prohibition. That of Praemunire is that of 27 E. 3. cap. I . The Statute of simple Prohibition is the Statute of 4 H. 4. cap. 23 . There be divers other Statutes of both kinds, but the Question will rest principally upon these two as we conceive.
For the Statute of 27 E. 3. It cannot in our Opinion extend unto the Chancery, for these Reasons.
First, Out of the Mischief, which the Statute provides for and recites, viz. That such Suits and Pleas against which the Statute is provided, were in Prejudice and Disinherison of the King and his Crown, which cannot be applied to the Chancery; for the King cannot be disinherited of Jurisdiction, but either by the Foreigner or by the Subject, but never by his own Court.
Out of the Remedy which the Statute appoints, viz. That the Offender shall be warned within two Months to be before the King and his Council, or in Chancery, or before the King's Justices of the one Bench or the other, &c. by which Words 'tis opposite in its self, that the Chancery shall give both the Offence and the Remedy.
Out of the Penalty, which is not only severe, but hostile, namely, the Offender shall be put out of the Kings Protection; which Penalty altogether favours of adhering to foreign Jurisdiction, and would never have been inflicted upon an Excess only of Jurisdiction in any of the King's Courts, as the Court of Chancery.
Out of the Statutes precedent and subsequent, as 25 E. 3. cap I . and 16 R. 2. cap. 5 . which are of the same Nature, and cannot be applied but to foreign Courts; for the Word [Alibi] or [Elswhere] is never used but where Rome is named, especially be
1 Both square brackets immediately preceding are from the original text.
fore the Disjunctive in this Statute, which only gives the Colour, viz. That they which.draw any out of the Realm, in Plea whereof the Cognizance pertaineth to the Kings Court, or of things whereof Judgments be given in the Kings Court, or which do sue in any other Court, to impeach the Judgments given in the Kings Court. This last Disjunctive, we say, which must go farther than Courts out of the Realm, which are fully provided for (by the former Branch) hath sufficient Matter to work upon in respect of such Courts, which though they were locally within the Realm, yet in Jurisdiction were subordinate to the foreign, such as were the Legates Court, the Delegates Court, and in general all the Ecclesistical Courts at that time, as 'tis expresly construed by the Judges, in 5 E. 4. fo. 6. . . .
... the Chancery (being the Kings Court and not the Court of another) cannot be within this Statute, no more than the Kings Bench. For Judgments given in the Common Pleas are examined and reversed by Writ of Error in the Kings Bench; but Writs of Error (nor Attaints) [not] being excepted out of this Statute, the Kings Bench should fall within it, as well as the Chancery or any other of the Kings Courts.
And if it be said that the former Judgment was no legal Judgment, because it is reversed upon Matter appearing upon the Record, and so ought not to have been judged at all; yet it was a Judgment given in the Kings Court, and (by this Construction of this Statute) it ought not to be questioned or overthrown in any other Court. The Consideration thereof made those to look about them, when they saw themselves not unlike to fall into the Pit which they went about to dig for others, whereof they shewed more fear than the Chancellor did as appears by the coming off.
So the Chancery and all other Courts within the Realm (except such as were subordinate to the Court of Rome, which were the Courts of another, not of the King) being cleared from this Statute, The other Statute of 4 H. 4. cap. 23. doth follow to be considered.
First, The Statute recites where the Parties are made to come upon grievous Pains, sometimes before the King himself, sometimes before his Council, and sometimes in Parliament to answer thereof anew, &c. where it appeareth; That the Chancery is not named, which could not have been forgotten, but was left out upon great Reason, because the Chancery is a Court of ordinary Justice, for Matter of Equity, and the Statute meant only to restrain extraordinary Commissions and such like.
Secondly, This appeareth fully by view and comparing the two Petitions which were made the same Parliament of 4 H. 4. placed immediately one after the other; the first which was rejected by the King, and the second whereupon this Statute was made; the first being to restrain three ordinary Proceedings of Justice, viz. in the Chancery by Name, in the Exchequer, and before the Kings Council
by Process of Privy Seal, unto which the King makes a Royal and prudent Answer in these Words; The King will charge his Officers to be more sparing to send for his Subjects by such Process than they have been heretofore; notwithstanding it is not his Mind, that his Officers shall so far be restrained, but that they may call his Subjects before them in Causes necessary, as it hath been done in the times of his good Progenitors. And then immediately follows the Petition, whereupon the Act now in question was unto which the King gave his Assent, and wherein no mention is made at all of the Chancery or Exchequer.
Thirdly, if the Chancery should be understood to be within this Statute, yet this Statute extends not to this Case; for the Words are, That the King's Subjects after Judgments are drawn to answer thereof anew; which must be understood, when the same Matter formerly judged is put in Issue or Question again: But where the Cause is called into Chancery only upon point of Equity, there, as the point in Equity was never in question in the Common Law Courts, so the point of Law or Fact, that concerns the Law is never in question in the Chancery; and so the same thing is not twice in question, or answered anew, for the Chancery doth supply the Law and not cross it.
Fourthly, It appeareth to our Understandings by the Case of Error and Attaint in the said Statute, what Jurisdiction it was that the Statute meant to restrain, viz. Such Jurisdiction as did assume to reverse and undo the Judgment, as Error and Attaint doth, which the Chancery never doth, but leaves the Judgment in peace, and only medleth with the corrupt Conscience of the Party; for if the Chancery doth assume and reverse the Judgment in the point adjudged, it is void, as appears 39 E. 3. 14. . . .
All which, &c.
FRAN. BACON, HEN. YELVERTON,
Upon which Certificate the King [JAMES I] gave his Judgment as followeth :
Forasmuch as Mercy and Justice be the true supporters of our Royal Throne, and that it properly belongeth unto us in our Princely Office to take care and provide, that our Subjects have equal and indifferent Justice ministred unto them. And that where their Case deserveth to be relieved in course of Equity by Suit in our Court of Chancery, they should not be abandoned and exposed to perish under the Rigor and Extremity of our Laws, We in our Princely Judgment having well weighed and with mature Deliberation considered of the several Reports of our Learned Counsel, and all the parts of them, do approve, ratifie and confirm, as well the Practice of our Court of
Chancery expressed in their first Certificate, as the Opinions for the Law upon the Statute mentioned in their later Certificate, the same having relation unto the Case sent unto them by our Chancellor. And do will and command that our Chancellor, or Keeper of the Great Seal for the time being shall not hereafter desist to give unto our Subjects upon their several Complaints now or hereafter to be made, such Relief in Equity (notwithstanding any Proceedings at the Common Law against them) as shall stand with the true Merit and Justice of their Cause, And with the former, ancient and continued Practice and Presidency of our Chancery have done; and for that it appertaineth to our Princely Office only to judge over all Judges, and to discern and determin such Differences as at any time may and shall arise between our several Courts touching their Jurisdictions, and the same to settle and determin, as We in our Princely Wisdom shall find to stand most with our Honor, and the Example of our Royal Progenitors in the best times, and the general Weals and Good of our People, for which we are to answer unto God who hath placed us over them. Our Will and Pleasure is, that our whole Proceedings therein, by the Decrees formerly set down, be inrolled in Chancery, there to remain of Record, for the better extinguishing of the like differences and Questions that may arise in future times. PER IPSUM REGEM 18 July 14. 1616. FRAN. BACON, HEN. YELVETON.
All which Proceedings are inrolled in Chancery.1
BLACKSTONE, COMMENTARIES, vol. 3, *44-*46.2
THE COURT of exchequer is .. a court of law and a court of equity also. It is a very ancient court of record, set up by William the Conqueror, as a part of the aula regia, though regulated and reduced to its present order by king Edward I.; and intended principally to order the revenues of the crown, and to recover the king's debts and duties. It is called the exchequer, scaccharium, from the checqued cloth, resembling a chess-board, which covers the table there: and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, . . . and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law.
1 See 1 Holdsworth, History of English Law (6th ed. 1938) 459-465; Goebel, Cases and Materials on the Development of Legal Institutions (1937) 340-346. See also Bromage v. Genning, 1 Rolle 368 (K. B. 1616), 1 Chafee and Simpson, Cases on Equity (1st ed. 1934) 245-247.
2 Footnotes omitted.
The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisne ones. . . . The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. . . . But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity, that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.1
This gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is the less able to pay the king his debt or rent. . . . by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person nray file a bill against another upon a bare suggestion that he is the king's accomptant; but whether he is so, or not, is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first fruits, and annual tenths. But the chancery has of late years obtained a large share in this business.2
An appeal from the equity side of this court lies immediately to the house of peers; but from the common law side, in pursuance of the
1 See pp. 6-7, supra.
2 In 1842 the equitable jurisdiction of the Court of Exchequer was transferred to the Court of Chancery. As to the history of the Court of Exchequer as a court of equity, see 1 Holdsworth, History of English Law (6th ed. 1938) 240-242.