Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	according_a	court_n	law_n	1,543	5	4.8094	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A79999	Englands compleat law-judge, and lawyer. Declared in these ensuing heads; 1. Whether that law and those judges and practizers owned time out of minde by the supreme authority of the nation, be not the laws, judges, and lawyers of this Common-wealth, &c. 2. Whether courts so constituted are not records of the nation. 3. Whether each court hath not power, as such, to enforce its owne decrees. 4. That the decrees and usages of such a court are as valid as of any court. 5. Whether it be not against reason, that when divers courts in the same nation act by divers lawes, one of the courts should have power to prohibit the other to proceed to bring the matters in difference before it self. 6. Concerning judges of appeale.	Cock, Charles George.; Paget, Thomas, d. 1660.	1655 (1655)	Wing C4788; Thomason E860_3; ESTC R206642	21,704	41

whose bottome each Bucket cannot arrive at It 's given to them that seeke after it that is by due search and enquire into each particular action and qualification of himselfe and others for he must read himselfe well who will know others aright You are Sages men quick and ready from long experience to determine not onely in the deeper questions and resolutions of the Law but also in the nice quaint subtilties of wit and practice I justly apprehend my inability to bring forth ought worthy your view but I seeke not applause nor acceptance to or for my person but my aime desire intention and prayers are for the publike for the good of the Common-wealth that each person in his place and each place to the person might be so setled constituted and fitted that the establishing of part might but make the whole more glorious and lasting It is an age of Interest great never greater your places are high and your patterne will be exemplary If ought here convince you that any thing may be done for the bettering of the Common-wealth be active in it delay not it 's a season of Judgement as well as Interests and it s truly noted neither have Mercies allured nor Judgements terrified hitherto You know not onely the secrets of Government but of Judgement you may thence conclude how much more wisely God deales in his both governing and judging the world It s a truth in Politicks to the State as in reason to the person Laws must be as well fitted to the times and offences as cloathes or shooes to the body or feet Was it not a Tyranny to cut the stranger shorter that lay in the Tyrants bed to the dimension of that as well as to stretch him that was too short to the length There must be a jealousie lest the Lawes be altered and the principles of property and priviledges lost by degrees but let it be so that we lose not more by the contest then we can gaine by having them You are to declare the Law but Evidence that Law salutary to the people or you ruine us You say better an ill Law then none And I say better Judges to execute necessary power though it be a question whether legally they have that power so it were fit they should have it then to let people do injustices for want of a Law or power to enforce that Law I leave the thing with you the Lord set it home to your hearts that what is just may be done justly and the cry of the oppressed may cease In prosecution of which I shall ever begge the assistance of heaven upon you and your endeavours and labour to approve my selfe a friend to Englands Law my birth-right and Right Honourable Your servant Theophilus Philopatros TO THE ENGLISH READER I Have little to say to thee each man is not fit to judge of all things my scope is but to shew thee a truth which hath beene much endeavoured to be kept from thy knowledge Namely that all the Administrations of Justice in England by what Law soever called as Common Civil or Equitable all make up but Englands Law and you have an equal Birth-right to all I agree they may be altered according to the Rule of the Nation And then I say that alteration is the Law So that I would not alter the Law nor oust the Common-Law nor introduce the vaste body of the Civil Law no I am to have Lawes plaine and easie but Judges deep and searching I desire certainty in Courts and ascertaining the Jurisdiction of the Courts and because difference may be while some things may equally participate of both Lawes so it may as to some part belong to one Court and other part fit to be tried in another upon the rigid letter of the Law It may belong to a Common-law-Court and yet the just decision of the Case from the nature of the Contract necessarily require the Rule of the Civil-Law That there may be a way to settle this controversie before great expence be and then to have it removed And that as the case now stands upon so visible an Interest as hath nothing of Reason to warrant it is this intended Boggle not then at this nor at the Author who professes to love God and his Countrey and would not then do ought tending to subvert Englands Law or take away the least due priviledge of an English man Therefore that you may duly endeavour it praying for it and justly submitting to it when settled is the sole and utmost end with Gods glory of Theophilus Philopatros ENGLANDS COMPLEAT Law-Judge AND LAWYER ENGLAND hath alwayes without question had Courts wherein the principal part of the Law administred was not according to any particular part of the owned common-Common-Law of the Nation but according to the ever used and accustomed Law of those Courts set up for administrating Justice to the people of the Nation in special Causes Concerning two parts whereof I principally intend this discourse The first doth generally concerne the people of this Nation The other concerns equally any other Nation in the Universe That which concernes the people of this Nation is the Court now commonly called for Probate of Wills and granting Administrations The other which concernes all people or may concerne them is the Court of Admiralty so called being a Court properly not onely accommodated with Lawes and Rules for Trade and Commerce by Sea And with Nations and people using Lawes diverse from the Generality called Municipall Law of England yet generally received in the Judicatories of most of the European Nations All which with England being originally Limbs of the vast body of the Romane Empire have universally retained the Lawes or the generality of the Lawes of the old Empire but yet have their Municipalia still though their procedures be in them generally by the Rules of the Civill Law so called they admitting no diversity of practizers in their Lawes as with us but both the general Law of the Empire with them received and the Lawes of their particular Princes Diets Parliaments and Assemblies are equally owned the Law of that Land Nation or people and the Doctors of the Lawes as such pleads both as occasion requires without controversie of Courts or practizers while here many controversies have arisen to the obstructing of Justice and infinite dammage vexation and charge of the people and to the dishonour of the Nation at home and abroad The controversie I shall endeavour to render as truly and perspicuously yet as briefly as may be and therefore shall handle it under severall Heads As first 1. Whether that part of the Civil-Law which hath beene time out of minde received used and allowed in publike Judicatories authorized by the unquestionable Supreme power of the Nation in Parliament be not to be received as and is part of the Law of the Land and consequently the Judges of those Courts Judges c. and practizers practize of c. 2.

Books of the same or rather by the powers the several Courts have used in themselves and in and over each other and against others and the vertue and power they give to the Acts of their Courts regularly Entred and Recorded and the disallowance of the Acts of other Courts neglecting them and calling them yea though under Seal of the Court and attested by a Sworn Officer but as papers scrowls or lesse Now to let all other things passe at this present under silence I shall only offer to consideration whether it be not essential to every Court and of necessity to evidence the reason and Justice of the constitution of the same that the judicial Acts of each Court not only be drawn in writing and Registred but that the same be Records and so allowed in all Courts in that Nation next that each Court hath power to inforce its own Decrees within the bounds where its power reaches to take Cognizance of any cause judicially As to the first see the end of a Court it s agreed universally to do Justice and give forth Judgement to the people now this is either by Declaration Plea and Judgement in writing or without in England by the general Law there is none but in writing nor indeed where Judgements are subitane or summary and prest as in Fairs Markets c. upon strict reason they ought to be in writing though short and not held to form now if reduced into writing why not Record and to prove it self and to manifest and testifie the nature of the case and be evidence in case of any suit for the same in any other Court Is not the tryal there otherwise a deceit it might not be so grievous when time was but now all is brought to the Courts at Westminster it is sound of very evil consequence I must agree Court-Baron Hundred Towne and County Courts are generally so ill provided of Judges they have nothing worthy the name of a Court of Justice but if you think fit to continue them Courts for the people to receive Law thence let their judgements be ascertained and also Records But the question here is not concerning those inferiour Jurisdictions for I humbly conceive all the base Courts in England are upon true rule gone and extinguished but concerning the Court of Probates which for ought I can finde may have the cognizance of the proofe of all Wills and that both to reall as personall estate rather then the Chancery and examine Witnesses in perpetuall memory for the inconveniences to the people are great for the personall estate prove the Will in the Court of Probates for the reall in Chancery by Witnesses Yet the Court of Probates hath alwayes used proofe by Witnesses upon oath Then out comes the Originall Will from the Office and though there it might rest as a Record upon Record for the equall benefit of all concerned which it very oft proves yet by the Common Law it comes to one parties hand principally it may be concerned yet with many others and upon a Suit he will not produce it the Copy taken by the Officer on oath must not be a Record and unlesse the Judge at Common Law will in equity and for Justice sake admit it he is not bound and so the Suit is lost the truth indeed appeares but it 's not evidence in this Judges opinion and so the Law is as the Judge is minded and all this in England under the same power and from clashing of Courts and Judges of the same Prince and people Thus by the end and the inconveniences it 's cleare each Court Administring Justice ought in the same Nation to be so farre a Court of Record that the Acts of the same in the publique Registry ascertained should be of themselves if produced proofes if by true Copy sworne to be accepted as proof And I say it 's not materiall whether the Registry be in Parchment or Paper happily the first being now known more subject to alterations without discovery let as much of certainty be as you please but if you find incertainty in a Court judicial remedy the incertainty for it 's of necessity to have all such acts Records Now if this be so and so it ought in the Court of Probates then much more in the Admiralty which is a Court hath as great a latitude of power in the Cognizance of cases of Life Maim Wounding Imprisonment Damage and Losse to the greatest value as any Court in England yet its acts with the Judges of England are not Records and which is the wonder the Judges of all Forraign Princes of Europe will allow them judicially in proofe if under Seale of the Court or judicially attested but the Judges of England will not What is the reason because for the benefit of the Nation in speciall causes they use a Law allowed and practised by other Nations No that is not the thing but practised by Doctors and not Barristers and Serjeants which these Judges were and how the interest of Societies in education runs and hath its work even to deprave Judgement and to maintaine things evidently irrationall needs no proofe I professe sincerely I have impartially weighed things and can finde no ground in reason for it and can only settle it upon the interest of education private benefit to them of like study c. 3. Head I will not inlarge upon that but come to the other part of this Question which is the third Head or Proposition Whether it be not naturally and properly incident to every Court to have power to inforce its own Decrees The question is here concerning the coersive power of a Court there is no Court in England nor in any place but it had a certainty of power either against body or goods or both to inforce those Judgements it gave in cases there cognizable Indeed its evident to reason it were not otherwise a Court of Justice for Justice is not giving sentence but seeing the thing done accordingly which is called justly execution Now this question is out of doores in the Admiralty it inforces as well as it can the power there is not denied but in the Court of Probates wholly though it hath the Ordinance of the Parliament and his Councel let 's see how it stood before while the Ordinary had it who being an Ecclesiastique had in this case of Wills and Testaments and Administrations first power to excommunicate which if the party obeyed not was after fourty daies of common right assisted by the Civil Magistrate and of course there issued a Writ to the Sheriff to imprison the party till he obeyed which amounted to as much as a Capias ad satisfac or Execution at common Law and the Excommunication it selfe was before a Writ for Attachment a kinde of Uthagary debarring him right of a lawful man in matters of greatest concernment and then pleadable even in the Court of common Law Now this power Judge and Court of proceedings being

gone and Lay-Judges as in other Courts constituted whether while a Court it hath not coersive power is the question I conceive even by the very constituting of it a Court it hath power coersive in it selfe for as there are words of Art which include much which the ignorant ones know not so this word Court or making or constituting men Judges of c. include in them not onely a power to hear but to Judge and to inforce that sentence for as nature so the Law doth nothing in vaine it settles not a power in any to make Judges but to have power also to inforce for otherwise their sentence were in vain It 's plaine that the power Ecclesiastique by censures is gone and the Judges civill cannot execute it but my reason is that ceasing the Judges now that the Law may not want his course and that Justice be done to the people the general reason of the Law requires that coersion be The question now is what I must acknowledge the liberty of man is precious and so are goods for property is little if liberty be incroached on and liberty little if property be taken away whether then this should extend to body or goods or both is the question I must owne the common Law medled not with the person while there were goods but attached him by his goods but that was found inconvenient which principally altered that Law or course of practise for the letter of the Law is not observeed Now then if the procedure of the Judge be according to the practicall Law of the Nation in generall I should conceive the Officer ought to be free from Action and plead the Rule of the Court I know there is no setled Prison to which he can be committed and that private houses ought not to be Goales But I stand upon this as a case of necessity wherein much more damage must come to the people from defect of Justice and therefore I know though they may not be warranted by a particular Law yet they have the generall Rule of saving and not ruining the Commonwealth in your trust to plead for them to avoid both punishment or rebuke yet it may be more fit certainly to declare the coersive power thereof and how far it extends least there should be any incroachment under colour of Justice 4. Head The fourth Head will from these former Reasons and Grounds laid down receive a full proofe and no way conclude to spare expence of time and words for I would no more reiterate then irritate that a certain continued and constant known practise and usage in a judiciall Court ought to have the force of a Law the same ought to be allowed in any Superiour Court after such usage yea though it might seem otherwise against Law for while Common Error upon the Rule for the safety of the people makes a Law this cannot be denied but let the Superiour Court admonish the Inferiour and if it doth not then rectifie let the Judges and Officers be punished otherwise the Suitor will be grownd between two Milstones one Court inforces to do and in another he is overthrown for doing but how there 's the mystery not for doing as that Court ordered but because that Court is adjudged not to have power to make such order but it may be a Court may claim to be Superiour where it is not or declare the Acts of an inferiour Court erronious upon a coliteral occasion which may indeed supplant and enervate the whole setled Jurisdiction of the inferiour Court and bring all to the Superiour by which means all County Jurisdictions have been destroyed and the whole stream and current of businesse is brought to the Superiour Courts this aptly brings me to discuss the fifth head or Proposal 5. Head Whether in a Nation where divers Courts are admitted proceeding judicially and definitively according to divers originall Lawes it can stand with reason that one of those Courts should prohibit the other to bring any matter before it self or decide to what Court the Cognizance belongs I see all times and persons professedly taking care by all meanes possible to decline interests as seeing how subject even the best of men are to turne and bend aside drawne by the baits and allurements of worldly allurements of worldly riches honour power and the like I know in the most sedate and quiet times Princes have been wary to exasperate potent persons or multitudes unlesse able to balance interests and how loth to suppresse an evill by power least they should give cause to men to doubt they might call good evill and suppresse that also in a like way but still wise and just Princes Rulers and Powers have done what they could and effected it as soon as opportunity served I know this is a question of concernment usage mixing with interest which makes it the more difficult to reforme and interest having so strong a Bulwark to defend it selfe by as usage interest will be called property and we know what strength custome hath but this being the interest but of a few and to the damage of the whole body I should conceive if the reason be apparent not onely wise men but Christians will give the Supremacy to reason and then yeelding for publique good shall Crowne them as Benefactors to the Commonwealth Is there then benefit to the Judges from the cases depending in and tryed in a Court and is there not glory in multitude of Suitors in a Court and the like then there 's an evident interest both of profit and honor and consequently these things will yea even with wise men work yea and ancient men who more desirous of riches and honor yea who more jealous of it then even dying men Now if you shall look at the Usage I say that is the ground of the complaint the evill is evident before therefore it 's fit to abolish it The Judges if they should consult with prudence first before they agree a Prohibition should know from the Judges of that Court where the case hath been depending when the cause came into the Court and what progresse hath been in it and what the cause appeares to them to be I know how indifferent the antient practise of the Law was between the Civilian and the Common Lawyer while the Civilian mannaged Legacies Marriages Alimony Tythes and the like under the Title of Court Christian I shall professe I know the learning of the Common Law to be great and deep but it being not used to many questions which the Civill Law hath fully handled it 's not compleat nor is the Law of England therefore compleat but by that learning which the Civilians uphold I know 't is short in many things I conceive it of necessity to keep up that learning be it but to know what is done abroad should you supply what is defective by Statute if you would have it known give incouragement to it see but how a few years have wasted