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
A94265	Syllogologia; or, An historical discourse of parliaments in their originall before the Conquest, and continuance since. Together with the originall growth, and continuance, of these courts following, viz. [brace] High Court of Chancery, Upper Bench, Common-Pleas, Exchequer, Dutchy, and other inferiour courts now in use in this Commonwealth.	J. S.	1656 (1656)	Wing S93; Thomason E1646_1; ESTC R203463	29,703	88

the King himself hath a high Court of Justice wherein it seemeth that he sate in person for the words be Let him not seek the King And lastly that the same Court of the King did judge not only according to meer right and Law but also after equity and good conscience For first the words be unlesse he cannot find right at home by which it is permitted that then he might use to go to the King for right Secondly Again if that right be too heavy then let him seek to the King c. whereby it is meant that he should have the rigor of the Law mitigated by the conscience of the Prince and after this order and in these two sorts of Courts was all Justice administred untill the time of King William the Conquerour● during whose reign as allso under the Government of King Rufus his son it is to be thought that the ordinary course of Justice was greatly disturbed as well by reason of the intestine and sorraign wars as also because that these two Princes governed by a meer and absolute power as in a Realm obteyned by Conquest but yet it was so farre off that any of them did utterly abolish these Courts That the same did not only remain during all their times howsoever put to silence for the season but also had continuance afterwards and do yet as they may here bear life amongst us for as I said those base Courts of the Shires Hundreds Boroughs and Mannors do yet continue in manuer the same in substance that they then were and that the pleas ought no more to be taken from then now in our dayes without cause then they ought to have been may evidently be proved by the writs of Tolt pone accedas ad Curiam and Recordari vhich wee now yet use and that to this only end to remove suits upon cause out of one Court into another The like I may also affirm of that high Court which then followed the King himself for albeit that many particular high Courts be now since that time advanced by reason that the multitude of suits still increasing with the iniquity of the age of the World would not suffer them all to be ordered in one place without both into ler●ble delay of matters and grievous vexation of men yet nevertheless if ye will throughly behold the matter and subject about which all these Courts are now occupied you shall perceive that they are but as it were so many branches sprung up out of that one tree or stream derived from the same spring and sountaine For letting pass those Courts of the Country which I have already touched also those other small Courts of record that be in Cityes and Townes corporate Pipowders of Pies and powldres that is dusty feet because it is for Travailers to the sayr yea and the Pipowders Court it self that lasteth no longer then the Fayr All our higher Cours at this day be either Courts of right and Law or else of equity and conscience as they then were although they now require another subdivision than they then had And that if you will may be this The Courts of Law do either handle civil or criminall causes The late division of Lay Courts And these Civill causes be either moved between the Lord Protector and the people of England formerly between the King his tenants and subiects or else between one subiect and another Those Courts of Law that hold plea of common or civill matters that grew between the Prince and subiects be these The Exchequer devised for the safe custody of the lands formerly called the Crowne lands and for the faithfull answering of the revenues of the same The Court of wards and Liveryes and the Court of the dutchy of Lancaster both which are now altered And the Chancery Court at the least so far forth as the same hath to do with Petitions traverses de droith and such like Those other Courts of Law that have jurisdiction of civil or Common Pleas arising between subiect and subiect be these The Common Place or Bench The Marshalsea for matters heretosore within the vierge or limits assigned to the Kings house or Palace The Admiralty Court which was for marine Causes And the upper Bench in time past termed the Kings Bench so far forth as it yet doth retain jurisdiction in matters of debt Assumptions Actions upon the Case and such other things properly tryable in the Common Place and not there Criminall causes do generally belong to the upper Bench and have formerly belonged to the Starre Chamber or else particularly do appertaine to the Constables Court to the Marshasie Admiralty Goale delivery Oyer and Detorminer and Sessions of the Peace And these be the Courts of Law that have ordinary resort and jurisdiction The Courts of Conscience be these First the Chancery open to all men at all times Secondly the Court of the Request that did hear only the suits of poor men and of the Princes servants Thirdly The Chancellors Court that was within the Exchequer and Fourthly two Councills which formerly were established the one in Wales and the other in the North Country both consisting of President and Councill now taken away which were like unto those which in France are called Parliaments as I said before But now to the end that it may the more evidently appear how and by what degrees of increase these many Courts have sprung out of that one it is requisite that I proceede to the history of King William the Conqueror where I left and to descend from him downward untill I have set all on foote The Court of Exchequer The Authority of this Court is of originall jurisdiction without any Commission Cook 4. Inst c. 11. p. 130. It is confessed by all writings that the Conqueror after such time as he had suppressed the forces of those that made head against him here did immediatly cause the whole Realm to be exactly surveyed by Shires and Hundreds severally aswell for the understanding of the woods pastures meadows and tillage thereof The first survey of the Kingdome was by Alfred about 872. the Register thereof was kept in his treasury at Winchester Daniell f. 11. as also of the profitts of Churches Mills Villaines and of all other Commodities whatsoever The record of which survey was then called Domesday Book and was appoynted to be kept in the Exchequer at Westminster where it now resteth And that Court did he then also newly erect for the ordering of his revenues after the name of the Exchequer in Normandie it had not only the government of revenues of the Duke there but was also the soveraigne Court for administration of justice amongst his subjects Custom Normand 48.52.635 and so continued untill that Lewis the 12. King of France converted it into a Court of Parliament consisting of President and Counsellors and established it at Roan in Normandie where it now remaineth But this his Exchequer in England had

Assent of the King and of the Lords spirituall and Temporall and of the Commons it is enacted or thus It is enacted by the authority of this present Parliament It is also all one in effect and substance for the words assenteth and enacteth are equivalent in this case 7. H. 7.14 2 H. 7. ●7 as it is holden 7. H. 7.14 2. H. 7.27 whereas otherwise the necessitie of the Assent of all the 3. estates of Parliament is such as without any one of them the rest will lose their labour For it fell out upon a time that the King in Parliament willed that a certain man should be attainted and should lose his hands whereunto the Lords assented But because there was nothing spoken of the Commons it was adjudged by all the Iustices 4. H. 7.18 That this was no Acte that might binde 4. H. 7.18 and therefore the partie was restored Hitherto of the Continuance and Assent of this our first and highest Court This Court of Parliament maketh inlargeth diminisheth abrogateth repealeth and reviveth Lawes statutes c. concerning matters ecclesiasticall capitall criminall common civill martiall maritine c. Cook 1 Inst fol. 110. sect 164. see 4. Inst chap. Parlia ment whereunto after that I shall have added a word or two of the jurisdiction thereof I will proceed to the rest if all judgements as Cicero said be conversant either in the punishment of offences or in the decision of controversies then is the Judgment of our Parliament of as ample authority as the assent of any or all other Courts whatsoever for it declareth the lawes that do bind all persons in all Causes aswell ecclesiasticall as temporall whereof you may see a great many examples in the volume of the old saxon Parliaments how strange a thing so ever the popish Clergie in former times have thought it to be it hath jurisdiction also in such causes which have need of help and for which there is no help by any law already in force And whereon the erronious Judgments of any other Courts must be reversed by a higher authority this Court doth not only reverse the errors of the upper Bench formerly called the Kings Bench which is superior to all other but it may also amend the errors committed by the Parliament it self if any such shall at any time appeare Ecclesiasticall Courts were many in number diverse in nature whereof the Chiefe was the Convocation of the Clergie of the whole nation of England and Wales which was assembled together with the estates of Parliament and it consisted of the Deanes Chapters Archdeacons Procurators of all the Cathedrall Churches the next were the 2. provinciall Synods of Canterbury and of Yorke to the later of the which there were only three Bishopricks subject that is to say Durham Carlisle and Chester and all the rest owed their obedience to the See of Canterbury After those were the generall Courts of the Arch-Bishops of Canterbury that is to say the Consistory or Court of the Arches for Appellations the Court of Audience of the Chancellours Court which was wont to be in the Arch-Bishops house The Commissaries or the Praerogative Court which is now in being for probate of Testaments and the Court of Faculties for dispensations then followed the speciall Courts of this Arch-Bishop namely his Consistory holden by his Commissary at Canterbury for his diocaesse and lastly the Court of those peculiar Deanaries which did belong unto him and do ly in the diocaesses of other Bishopps The other Arch-Bishops and each other Bishop had in his owne Diocesse the Court of his Chancellour and the Court of his Archdeacon or his Officiall But forasmuch as the description of these ecclesiasticall Courts perteineth to another learning I meane to the Civill and Canon Laws by which they were governed and do withall require a double treatise by themselves I will content my self with this bare enumeration of them at this time and bend my labour to the discovery of the Lay or temporall Courts that now have place amongst us Lay Courts were of two sorts The sorts of Lay Courts in antient time at the first only base and high concerning the beginning whereof I read that even as Moses the speciall minister of Justice appointed by God finding himself unable to sustain the burden of deciding all the Controversies of the people Deut. 1. Exod. 18. did set Judges over Tribes Hundreds Fifties and Tenths of the multitude to whom he referred the determination of smaller causes reserving to himself the knowledge of matters that were of greater importance so also that Saxon but Christian King of England Alfred divided his whole Realm of England first into Shires Division of the Realm for juris diction then those shires into Rathes Rapes or Rideings and these again into Wapentakes or Hundreds and lastly those also into Leets Barons or Tything and did withall establish jurisdiction in every of these permitting to the Reeves or Judges of the lower roomes authority of hearing smaller suites granting greater power to the Shiriffs and Aldermen which have charge of greater Assemblyes and detaining to himself the decision of such matters as by just cause of appellation either for Law or equity should be brought unto him This Court of the whole Shire was of two sorts whereof the one then called Scyre-Gemote that is the Assembly of the Shire and now termed the Sheriffs turn was then as now also holden twice in one year And this Court was of like jurisdiction to the Court of the Leet or of the Boroughs or Tything as it was then called The second and the Hundred Court then named Hundre des-Gemote was in those appointed to be holden once in a month at the least and that was of like nature to the County Court which is now kept every month also unto the Court Baron antiently called healgemote and corruptly halymote that is as I said the Court of a Hall or chief place which is now at this day to be kept and maintained once in three weeks if the Lord will so have it I read further more in the Laws of the Saxon King Edgar thus ne Gesece nan man Sone Synz c. Let no man seek to the King in matter of variance unless he cannot find right at home but if that right be too heavy for him then let him seek to the King to have it lightned The very like whereof is to be seen in effect in the Laws of Canutus the Dane sometimes King of this Nation also The hygh Court of justice before the Conquest for Laws and equity Out of which laws I gather four things First that every man had means to use in these base Courts at home in the Countrey for the recovery of his right Secondly Then that no man ought to use it out of the County or to draw his plea from thence without good cause both which things lye plainly in the letter of this Law Thirdly that

was then fled unto as to the onely Altar of help and refuge But whence the Court of Equity took a beginning to be a distinct Court I have made proof as I think that the power thereof was alwaies in exercise and considering that formerly all the Princes of this Realm and now the Lord Protector of this Nation is the immediate Minister of Justice under God and sworn to deliver to the people aequam rectam Justitiam I cannot see how that it may otherwise be but that besides his Court of meer Law he must either reserve to himself or refer to others a certain preemment power by the which he may both supply the want and correct the rigor of that positive or written Law which of it self neither is or can be made such a perfect rule as that a man may thereby square out Justice in all causes that may happen For written Laws must needs be made in a generality and be grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particular which in time experience doth beget and therefore although the written Law be generally good and just yet in some speciall case it may have need of correction by reason of some considerable circumstance falling afterwards which at the time of the Law making was not forseen whereas otherwise to apply one generall Law to all particular cases were to make all Shooes by one last or to cut one Glove for all hands which how unfit it would prove every man may readily perceive And here of this Equity hath this name in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. secundum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est conveniens assimulatum because it doth not onely weigh what is generally meet for the most part but doth also consider the person time place and other circumstances in every singular case that cometh in question and doth thereof frame such a judgement as is agreeable and convenient to the same so that in summe the written Law is like a stiffe rule of Steel or Iron which will not be applyed to the fashion of the Stone or Timber whereunto it is laid and Equity as Aristole saith well is like to the leaden rule of the Leasbian Artificers which they might at pleasure bend and bow to every Stone of whatsoever fashion And hereby it may also appear what use there ought to be aswell of the positive or written Law as also of Equity it self for seeing that the positive or common Law is made meet for the most part and that Equity is added for help in few or singular causes it followeth by reason that commonly and singularly the positive Law should be put in ure and that Equity should be appealed unto but onely in rare and extraordinary matters least on the one side if the Judge in Equity should take Jurisdiction over all it should come to pass as Aristotle saith that the best should bear rule for so he calleth man whose judgement if it be not restrained by the chain of Law it is commonly carried away with unruly affection and on the other side if onely streight Law should be administred the help of God which speaketh in that Oracle of Equity should be denyed unto men that need it And therfore even as two Hearbs being in extreamity of heat or Cold be by themselves so many poisons and yet if they be skillfully contempered will make a wholesome medicine so also would it come to pass if either this Arithmeticall Government as they call it by rigor of Law onely or this Geometricall judgement at the pleasure of the Commissioners onely should be admitted And yet if they be well compounded together a most sweet and Harmonicall Justice will follow them And as a good Chancellour then would not so the Commissioners now will not make this Proclamation Nullus recedat a Cancellaria sine remedio and so receive Cognisance of every complaint which shall be made before them upon whatsoever suggestion and thereby both overthrow the authority of the Courts of Common Law and also bring in upon men such a confusion and uncertainty as hardly any man shall know how or when he shall hold his own assured but they will rather have the Common Law to have her just honour and not to be interrupted in her right course or current and will yet withall provide that the Gate of mercy may be opened in all calamity of Suit to the end that where need shall be the rigor of right may be amended by the Judgement of Equity in which behalf this our age hath greatly to thank God for that by the Ministry of our Protector he doth not onely leave to us the right use of the Courts of meer Law but hath also hitherto placed in that Praetoritall Room or Chancery men no less learned in the common Laws of the Nation than accomplished with the skill of this moderation and equity I see that occasion is offered me to enter into the handling of some few questious concerning the order of Chancery and chiefly of this one whether it be meet that the Commissioners should appoint unto themselves and publish to others any certain rules or limits of equity or no about the which men Godly and learned have differed in opinion For on the one part it is thought as hard a thing to prescribe equity any certain bounds as it is to make one generall Law to be a meet measure of Justice in all particular causes And on the other side it is said That if it be not known aforehand in what cases they will reach forth their help and where not then neither shall the people be assured how or when they may possess their own in peace nor the practiser of Law be able to inform his Clyent what may become of his action The later of which opinions I hold to be the best according to the late Regulation of the high Court of Chancery together with the Common Law in August the 22th Anno 1654. by his Highness the Lord Protector and his Counsell For though equity cannot be limited yet as it puts an end to controversies it must have certain rules prescribed to it otherwise it can neither be called a Court nor can the Suitors be certain of any relief to be had therein which Court were it so would soon be destroyed Because this and the like matters be of more difficultie than that I may with modesty take upon me to determine them And for that also it is not my present purpose to dispute what is convenient to be done in any Court but rather to discourse the beginning and acknowledge the benifit of them all I will onely wish this one thing That before any motion should be made for either the parties Plantiff or Defendant 4. or 5. dayes notice thereof were left with the Clerk in Court on the other side to defend that motion that so he