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A34350
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Considerations touching the dissolving or taking away the court of chancery and the courts of iustice depending upon it with a vindication or defence of the law from what is unjustly charged upon it, and an answer to certain proposals made for the taking away, or alteration, of it.
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1653
(1653)
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Wing C5918; ESTC R18810
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47,697
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80
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County Courts had their original by consent of most Authors from K. Alfred who n Polidor in Guliel Conq. Spelman Gloss in verb. Justitia would not trust them with Capital or Chief matters Criminal but reserved them ad Majores Justitiarios And though he gave them power to determine lesser matters yet did he as well as King Ina his predecessor and those Saxon and Danish Kings Edward the elder Athelstane Ethelbert Edgar Canutus and Edward the Confessor which succeeded him give leave to any to appeal pro defectu Iustitiae or when right could not be obtained But that being in a time when the smallnesse of Commerce paucity poverty and inculture of people little acquaintance with Navigation or Forein Customs continual wars one with another in a Heptarchy or multiplicity of Kings and Invasions of the Danes could not allow them much businesse at Law and if they had where withall to have been contentious were so bound up by certain strict Laws fit only for a people were newly escaped out of Paganism and lived in a Country more like a desart or Wildernes than as now it is as they could not if they would have many Suites at Law to trouble the lesser or greater Courts withall for in every Tithing o In ll E. Confess cap. 20. or Friborgh every man answer'd so for one another as they were bound to bring offenders to Justice every p In ll Edgari c. 6 in legibus Ethelredi cap. 1. man did put in securities to do right to one another the Lord for q In ll H. 1. c. 23 et 41. in ll Canuti c. 25 28. in ll Ethelst cap. 10. his Tenants and the Master fot his Servants r In legibus Edw. Reg. cap. 1. no man bought any thing without a pledge or voucher or exchanged goods but before a Magistrate or the Minister or Lord of the Mannor he that s In ll Aluredi c. 33. in ll Ethelstani cap. 8. received a Stranger answered for any thing t In ll E. Reg in ll Canuti cap. 64. he had done in the place from whence he came no man under a penalty harboured a Fugitive or kept him from Justice he that was misdoubted u In ll Inae In ll Edgari c. 2 l. Canuti li. 16. or accused was in many things to purge himself by his own oath or of so many of his neighbours if any had w complained before they had demanded right in those lesser Courts were fined and punished Yet though those Courts had their work so much done to their hands the people were so little notwithstanding satisfied with their Justice as we shall find William the Conquerour afterwards to have his Chief Iustice to at tend him for the determining of such causes as came to demand his Justice his Son William Rusus the like and by that time the Crown came to Henry the first who was not also without his Chief Justice the Laws began to take notice of the different Laws of Provinces of a penuria Iudicum in w In ll H. 1. c. 7. some Hundreds of violences disturbances which made a necessity of carrying some causes upon denying right to be done in those Courts to the County Courts all actions of breach of the peace and pleas of Treasons Murder Coynings of monies and many more which are enumerated in his Law de Jure Regis then belonging to the King King Stephen had his Chief Justices and when King Henry the second comes to raign the Kingdom was so full of exactions and oppressions as he is much troubled how to find a man fit and honest enough to make Chronic. Jo Bromton a Chief Justice of though he had tryed Abbots and Earls Commanders and Souldiers and Spiritual men as well as Secular and therfore we find him upon the peoples Complaints of their want of justice from several parts of the Kingdom in a Parliament at Nottingham in Anno Domini One Thousand One Hundred Seventy Six in imitation of what had been formerly done in France x Spelman Glossar in verb. Justic tinerant by Carolus Calvus in Anno Eight Hundred Fifty and Three ordaining Iustices Itinerant or in Eyre according to their allotments of several Shires but all Fines levied in the Kings Court Actions of debt writs of Assize Dower advowson and all or most pleas of consequence brought and held in the Kings Courts except such as were sometimes allowed by his Writs or lib. 11. c. 1. Commission to be determined in the Sheriffs Court or the Hundred or Courts Barons for any might then lib. 12. c. 7. remove an Action from the lesser Courts to the Kings 3 c. 3. et 5. or have an Accedas ad Curiam or prohibition if we may believe Glanvil y Glanvil lib. 10. c. 1. who was his Chief Justice In his Son Richard the first his time the power and privileges of Sheriffs did grow so great in their Counties and Courts as some Bishops whose places in those times led them quite off from Secular imployments were inticed to take upon them the Offices of Sheriffs but were questioned for it afterwards and forbid by the Pope to intermedle any more in them But about 9 H 3. the Complaints of the people did so follow the King and his Chief Justice as it was enacted by Parliament that Common pleas should not follow the Court but be holden in 9 H. 3. c. some place certain in 52 H. 3. Complaints were made 52 H. 3. cap. 11. in Parliament that great men and diverse others refused to be justified by the King and his Court as they ought and were wont to be in the time of his progenitors but took grear revenges and distresses of their Neighbours and others until they had amends and Fines at their own pleasure And would not suffer delivery of such distresses as they had taken of their own authority distrained men to do Suit to their Courts that Eodem Anno c. 9. were not bound by their Deeds or Enfeoffments amerced men wrongfully for default of Common Summons and compelled c. 17 22. Freeholders to answer for their Freeholds without the Kings writ In the reign of his Son E. 1. as appeareth by Britton who compiled a book of the Laws by the Kings appointment all men by a Publick Cry and proclamation were to come with their plaints causes and actions before the Justices in Eyre when they came into the Counties and all other pleas to Cease and all those who claimed any Franchyses were to shew their Title to them and special enquiries made of Sheriffs Bayliffs and Stewards concerning the execution of their Offices maintaining Quarrels amercing men wrongfully committing extortions and holding pleas in debt or trespasse above Forty Shillings which did not belong to Britton c. 2. 20. 21. them 3 E. 1. cap. 15. Sheriffs and others did let out of prison
will be gainers by it or were not Acted by some Jesuitical party or influence would disturb and destroy this Commonwealth To prevent which and to do what we can as long as there is any hope left we shall intreat them by the Tears and Compassion of their already too much impoverished torn and languishing Mother England and the love they ought to bear to their Brethren and their own if they will not be carefull of other mens posterities to stand a little and look about them before they drown us and themselves in that Sea of misery and confusion they are letting in upon us and either to read our Lawes or be informed by those that understand them and consider well before-hand now they may help it that which Truth and a sad experience may hereafter tel them when they cannot find a remedy for it That the Laws and Courts of Justice they world now over-turn are those Lawes and Courts which by a long-experience and universal reason and consent of our Fore-Fathers have thorough many ages and generations descended and come unto us as a common Birth-right and Inheritance will if rightly examined and inspected appear to be deduced from no worse original or authority than the Decalogue or Ten Commandements themselves and the reason and equity of many of those other Laws which God himself in Mount Sinai commanded Moses to declare unto the people That the Law of England is Ipsissima ratio right reason it self From which and the right use and practice thereof if they that shall make it their business to accuse our Laws and reasonable Customs and Courses of Courts of Justice shall but abstruct and take out of all the causless complaints are made against it which ought to be done by those will judge aright of it all that happeneth by the ignorance or weakness of men in making of their Contracts and Assurances one with another The cavils and strange subtilties of those that would deceive oppress or take advantage by it The making of Wills and Conveyances by ignorant persons unfit placing of words in them and want of coherence or signification which do not seldom beget contradictions or perplexities of the sense or meaning of the parties their holding hard to advantages gotten by a mistake of words or parties to create a right or title where there should be none Wresting of Laws to their own purposes Self-conceited false or frivolous Suggestions in their motions or desires to the Courts Reiteration and succession of pretences and strange allegations not at first discernable by the Lawyers or Judges themselves Hasty and wilfull commencing of Suites upon small or no advice at all Ravelling and perplexing of their own Causes Eluding or striving to over-reach the Laws or strain them beyond their intentions Ignorance or wilfulnesse in managing of their Causes and the frowardness or unquietness of their own spirits in coursing one another through all the Courts of Law at Westminster Hall by severall Tryals and Verdicts bringing writs of Error upon them out of the Common Pleas into the Vpper Bench thence to the Exchequer Chamber to be heard by all the Judges of England Thence to the Parliament though they pay great and several costs to their adversaries discontinuing of writs of Error or abatement of them by the death or instance of some of the parties bringing their Bills and Crosse Bills in Chancery getting Orders upon Orders Decrees upon Decrees Rehearings Reviews or Dismissions Entitling the State afterwards to what they sued or vexed one another for Appeals from the Country Committees to Haberdashers Hall from thence to the Committee of Indempnity Thence to the Committee of Obstructions from thence to the Committee of Petitions for grievances And from thence to the Parliament again and if they be rejected or cannot be heard in one Parliament Try another and another and as many as they can live to sollicite their multiplying of needlesse and frivolous Actions obstinate and willfull endeavours in trying all they can to overpower or woorie their Adversaries never acquiescing in the Judgement of their own Lawiers or of any Court as long as any wit or invention of any other Lawier who cannot alwayes see through his Clients unjust pretences can but shew them the way to further vexations The Necessity which lies upon Judges and Courts to keep Rules Orders which may not be broken to help particular Cases Miscarriage of Causes by mispleadings Incertainties in the Plaintiffs or Defendants own Actions or instructions Their hiding or concealing truths Their not agreeing or right Stating of matters of fact misapplications of good Laws remedies to ill purposes deceit delay of one another in references weaknesse of Arbitrators and Awards deceit or ignorance of Sollicitors a race of people was not allowed or heard of in the Law about 100 years agoe but where Noblemen had and reteined them in their houses as menial servants too many of which of late have been broken and busie Trades-men or such as scarcely know the names of a book of law or to spell write or read Their champerty maintenance and ambodextry some knowing and honest Sollicitors excepted taking mony before hand of their Clients and never giving an Accompt for it mistakings or wilfulnesse of Juries want of evidences intricacy of causes Errors or misinterpretation as mistake the of Judges Ignorance malice or self ends of those that speak ill of them and the difficulties which sometimes do lie upon the wisest and most honest of men in discerning between truth and falshood and dividing betwixt them and distinguish as our Fore-Fathers and the wisdome of former ages used to do betwixt the right use and the abuse of them between particular mischiefs and general inconveniences betwixt the Inconveniences which some one Law may sometimes bring upon a few particular men and the good it brings to one hundred thousand others at the same time and allow but that which was never yet denyed to all the Lawes of the world an impossibility of foreseeing preventing or remedying of all things which the wickednesse of the hearts of men or their devices may lay in their way there will not be enough left to prove them to be corrupt in their foundations Take away and lay at the doors of those that ought to bear it the selling or mortgaging of lands Twice or Thrice over the Counterfeiting and putting to the Seals and hands of parties and witnesses forgeries and taking out and putting in of words into deeds or evidences strange and unheard-of combinations practices Witchcrafts and Sorceries putting of dead mens hands to Wills moulding hiring of false witnesses and Suborning or packing or laying of Iuries which are the Actions of the parties themselves to compasse and bring to passe their own wicked purposes and not of the Lawiers Let it be but considered that if there happen in an age some unreconcilable Suits wherein some contentious spirits have for many years together chased and vexed one another