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
out of one Action into another almost to their utter undoing There have been in every year of those many years many thousands of causes as may be demonstrated to any that will call for a proof of it dispatched put to an end by the Courts of Law at Westninster or in the Circuits that a multitude of People Actions and businesses more than formerly in a Time of more Deceit Falshood Perjuries Secret and cunning combinations and breaches of Trust than ever were may make an increase multiplicity of Suits and yet the Lawiers who in an age have not a common Barretor amongst them be as innocent as the Physicians who are not accused for much practise in a time of Pestilence or when there are store of Epidemical diseases there will be no cause to say that the Law is endlesse Let it be but considered that the greater part of established Fees in the Courts of justice are lesse than what the most common Artificers do take for their labour and as for any which exceed that rate are but that which was allowed one Hundred years agoe when the rate and price of Cloths and Victuals was not one in three so much as it is now that the Attorneys 3 s. 4 d. fee and the Lawiers 10 s. fee would then have bought 3 times more than what may be now for it That the Gentry have since raised their rents two parts in Three the Farmers the price of their Corn and Cattel and the Citizens their Commodities and servants and workmen raised their wages yet the Lawiers except some eminent and great practisers who take but the Free will offering of those that give them the greater Fees to take the greater care of their businesse have but the same Fees were formerly taken by them That the Lawiers who had no worse a name auntiently given to their profession by the most Civilized Nations of Europe than Sacerdotes justttiae the Ministers of Justice and had so right an esteem in our former Parliaments as by several Acts of Parliament made upon several and successive necessities of the People in 2 Edward 3 cap. 2. 14. Edward 3 cap. 16. 34. Edward 3. cap. 1. and 20. Richard 2. cap. 10. It was specially provided that none but men learned in the Law should be made Justices of Assize and Goal delivery and that there should be in every County men learned in the Law made Justices of the peace And in all their Actions either at home in their Counties or at London in the Terms are known to be men of Godlinesse Sobriety and learning and compared with any other profession or part of the People to have fewer men of vice or ignominie amongst them than any other profession Let it be but considered that the Law as it may be demonstrated if an accompt were kept as some Physitians do of their consultations and Cures or as the People of the Bath do of some that are cured in every year doth in every year recover and get in many Thousands of men debts redresse their Injuries preserve their rights secure their estates rescue and take some Innocent mens lives and estates out of the jawes of death or oppression support the hand of Justice and is as eyes and ears unto it puts her Judgement in the right way when it was sometimes allmost carried off ormislead into a wrong and hath kept us and our forefathers in a greater safety certainty of it than Roman Legions could have done and Ten greatet Armyes than we now bear the charge of That in the determination or adjudging of every Action or Suit in Law or Equity one of the parties is discontented and one of them most commonly faulty or much mistaken in the grounds of that Contest Actions of Debt or of other natures where the Plaintiff will not give time and the Defendant only stands out a Suit to gain it only excepted and do all they can to lay the fault upon the Law when it should be charged upon themselves And that the difficulty in the case before Solomon betwixt the true Mother of the Child and the false could not be charged upon any defects of the Hebrew Laws or the Professors thereof but the wickednesse and false pretences of her that had no right to it and that every discontent and every Complaint is not just because the partie thinks it to be so There will be as little cause to say that the practice of the Law as to the Law it self or to the Lawiers is a grievance or that they are worse than Ten Thousand Devils as that Tenterden Steeple is the cause of Goodwyne Sands For most of the things complained of in the Law if impartially and knowingly examined will appear to be neither from the Law or by the Law it Self or of the Essence Nature or Intention of it but meerly proceeding from the people and their own misuse or abuse of them which being not evill in themselves but commanding good things to be done and forbidding evil are no more to be charged with the faults which the people themselves Commit in abusing of them than that great Luminary and comfort of Mankind the Sun can be said to be the cause of darknesse or ill influences because in his journey or execution of his Office he is sometimes orecharg'd with Foggs ill vapours or exhalations from the Earth which he would disperse or carry away or meets with so many Clouds interpositions and Shadows of the Earth Conjunctions of Planets or Malevolent Aspects than the necessary arts of Physick and Chirurgery are to be blamed for the many Errors and mischiefs are done by Montebanks or confident and credulous women that have no skill in them than wine and women for the General abuses of them or Religion and the Sacred Scriptures because the world hath of late been troubled with so many Heresies and Schisms proceeding from the mis-interpretation of the one and practice of the other and may the better be understood and believed to be thus Innocent when those that not long agoe could run to Westminster and cry for justice against the Earl of Strafford but for at most an endeavour to subvert the Laws and cryed out they could have no Trading or subsistence if his head were not taken off cannot now give us a reason why those very Laws and the Courts that administred them should not now be as good as they were then Or why the Old Chancery and Court hands which being made out of Saxon letters or Characters before any Friers or Monks ever came into England have through so many generations come down to us and given such a legibility duration and continuance to all our records as they may yet be plainly seen and read for 7 or 8 hundred years past should be more inconvenient Popish Antichristian than the Secretary other Mungrel and Scrible dashed hands made out of the Roman and Italian which will not as it begins to appear already
assizes in those parts so as one of the said Justices assigned be Justice of the one Bench or the other or the Kings Serjeants sworn That of 20 R. 2. cap. 10. that two learned men in the Law Justices of the peace shall be in Commission of Goal delivery And of making the several Acts of Parliament 28 E. 1. cap. 14. 9 E. 2. cap. 4. 4 E. 3. cap. 5. 9. E. 3. cap. 3. 14 E. 3. cap. 7. 28 E. 3. cap. 7. 1 R. 2. cap. 11. 1 H. 4. cap. 4. That none should be Sheriffs and Bayliffs for above a year together or but such as had sufficient to answer the Complaints of the people that Bayliwicks and Hundreds should not be let to Farm at over great Rents that Sheriffs Clerks should not practise as Attorneys during their office the Act of Parliament in 28 E. 1. cap. 4. That the Chancellor and the Justices of the Kings Bench should follow the King that he might have at all times near unto him some that were Learned in the Laws which might be able daily to order such matters as should come unto the Court at all Times when need should require that of 28 E. 1. cap. 7. That the Constable of Dover should hold no pleas within the Castle gate but such as did belong to the keeping of the Castle that of 30 E. the first to question by Quo Warranto all liberties to which there could not be a good Title shewn for that to the King belonged the care of execution of Iustice And that of 9 E. 3. cap. 5. at the request of the Commons that Justices of Assize Goal delivery Oyer and Terminer should every year at Michaelmas send their records to the Exchequer And did put the Kings of this Nation into such a continual watchfullnesse and care of the due administration of Justice to be done in the Counties and remote parts of this Nation as the Justices of Assize never went their Circuits but they either attended the King or his Chancellor to know what special matters were to be given in charge to the people and did at their retorn upon any extraordinary thing that happened in their Circuits give him and his Council an account thereof and yet notwithstanding all this their care and the sending of Justices twice a year into every County which did much awe and keep in order those County Courts Sheriffs Turnes and the Actions of Stewards in their Court Leets and Court Barons and that the wisdom of former times took all the care they could to have the hundred Courts Courts Leet and Courts Baron Countie Courts and Sheriffs Turnes to be executed by able and honest men as we may see in the reign of King Henry the first who would not allow viles inopes personas to be Legum Judices or Stultos aut Improbos sed optimates qui non personam sed opera dijudicent And that Bayliffs were long after in ll H. r. c. 9. 29. Characterd by Fleta to be moribus legibus pro officio sufficientes and the Stewards in legibus consuetudinibusque Fleta lib. 20. 60 65. Provinciae officio Seneschalciae cognoscentes and that those Franchises and little Courts were forfeitable by a misuser of them all the care could be possiby taken to prevent it nor the punishment or forfeiture which hung over them could not so restrain or keep them in order but that there were daily complaints made of them and writs obtained from the Kings Courts to remedy them as writs of right patent Ne injuste vexes supersedeas writs of right writs of Pone prohibitions writs of false judgement de executione judicii Recordares accedas ad Curiam Cerciorares habeas Corpora to remove causes Register of writs writs to take one in Witherman that would not suffer a man to be replevied and writts of Error to County Courts Insomuch as the people were in the sense of their own grievances which were never like to fail them in those inferior Courts and those natural inclinations and propensities which are in all Mankind to the best things and that which may soonest accomplish their ends so brought especially when they found that the Stewards or Judges of those inferior Courts could not hold any proportion or stand in the ballance with the Judges at Westminster by degrees to a contempt and waving of the Countie Courts Court Barons and Hundred Courts as they became to be generally disused or laid aside the people seldome appearing at them when they were summoned and the Stewards as seldom keeping of them For though it must be confessed that it may be possible thatsome few men may by such new Countie Courts save some labour charges or trouble for once or a a little while as their particular cases or conveniences neighbourhood or conditions of adversaries may happen to be for no doubt but there were some that did find good by the Courts of Star-Chamber and High Commission and the Courts of Honour and Marshal sea and of the Marches of Wales and the North in every year of their many years or ages continuance though they were afterwards taken away as grievances yet those particular benefits which some few of the People shall receive by these new to be erected Courts will or can as little assure them or their own posterity from meeting at some other time with those many inconveniences may happen unto them afterwards as it will do Thousands more than themselves and the whole body of the people that shall be prejudiced by it in the general for all that are or may be benefits to some particular men or places have neither a possibility or capacity of being so in the general and to all people of the Nation or to those very individuals at all times or upon all occasions and therefore the making of a Law to forbid all usury or taking profit for mony lent would not be profitable to the people in general nor to those men that at once might perhaps save some money in the payment of their debts when they shall be more troubled after upon their next occasions or want to borrow mony than that amounted unto nor would it be for a publick or general good that every Town or Village in the Nation should have a Market kept every week it though it might be good for some solitary Towns in a Forrest or upon the Woalds to have it so nor would the Country people that can be sometimes content to supply their present or lesser occasions by the Pedlars at their own doors be well pleased that they should therefore be restrained from seeking better upon their greater disbusements or occasions at the well-furnished Shops in the Cities or that they should have a Monopoly of only selling to them the worser sort of commodities Wherefore let any men of Learning reason or impartiality judge if all this would not do when the little Courts could not proceed in any Action
above Forty Shillings but that the people were so frequently enforced for want of Justice to remove their causes to the higher Courts how many very many Complaints and grievances there would have been if this way had been stopped or taken from them as is now desired Or whether the people of England did any wrong to themselves in passing by those little Courts where the Steward was most commonly ignorant and the Suitors which were the Judges a great deal more and were sure enough to meet with ignorance injustice or oppression and if the cause were like to go well with them to have it removed upon any pretences of their adversaries to come to the Superiour Courts where they should be out of the danger of Appeals and could not want Justice when they sought it nor protection in the seeking of it Or whether they did not better to seek for Justice at the Well-head and Fountain of Justice where they could not doubt of the skil and honesty of their Judges and the assistance of able Lawiers to plead for them or to have their Actions tryed before some of the same Judges in their own Counties at the Assizes and might be dispatched sooner and with lesse trouble and charges to both parties than they could at a Second or Third hand by removing their Actions from the Hundred Court to the Countie Court and from thence to Westminster The Common use or allowance of which more approved and convenient way if the reason of it had lain hid or concealed had been enough to tell us and all after ages the benefit and good which the people had by it as well as that of making bread with Wheat instead of acorns or wearing cloaths instead of going naked when the ignorance of our older fore-fathers allowed them no better or the peoples leaving some Market Town to talk only of their Charter whilst their own conveniences carries them to a better For that must needs be out of all danger of error or inconvenience which hath had so long an experimented constant allowance when there was not heretofore any Petition in Parliament or to any the former Supreme Authorities against it and when a general use or convenience not for one but for many ages successively hath brought it into a custom and universal approbation And should be now of a greater price then to be exchanged for all those and more grievances which heretofore filled our former Parliaments with Complaints against the Countie Courts Sheriffs Turnes and Hundred Courts for the Cryes of the poor and indigent and their many smotherd oppressions could not always reach thither will not only be raised up again and restored to the people with interest by these new establishments but far exceed them and be like so many Councels of the Marches in every Countie But they that have ingaged their Fancies to put so great a disturbance upon the people might in a repentance of it go quietly back again into their own Trades do no tthink all this enough unlesse some augmentation be laid to the peoples grievances by annexing of a power or Jurisdiction of equity to every or many of these little Courts which may bring up a Brigade of Inconveniences as a reserve to the former CHAP. IX That the annexing of a Jurisdiction or power of equity to every or many of those new little Courts will much increase the Peoples grievances and turn that little Lawwhich shall be left into a course of arhitrariness FOr the annexing of the equitable part of the jurisdiction of Chancery to the Courts or courses of Common Law when they shall be again established as some would have it in their proposals or regulation of the Law will by giving every judge at Law a power of equity make a cause that would be begun and brought to hearing and an end in two Terms continue Six or Seaven and by a long and tedious course of examining and crosse examining of Witnesses be ten times more chargeable to the people and when there is not now one in every hundred causes at Law that go after to Chancery and might be fewer if there were more Conscience in men and the Rules of the Court better observed make every single cause a double one and a Suit in Chancery as well as at Common-Law when it needs not put the Judges at Law who before were so tyed up to their Oaths and a prescript Rule of Law as to weep over their own Sons and nearest relations rather than to deviate or Swerve from the Text or Rule of Law into too great a liberty of exposition or arbitrarinesse Or if the equity of every cause should be put to the Jurors give us Twelve men of equity or Chancellors in every cause will hardly be brought to understand it but be so puzled in the finding out of it as it will hardly or if at all very tediously be drawn from them if the matter of equity shall be left to the Judges alone there will be little need of the Jury if the Jury alone as little of the Judge such an intermingling or uniting of the power of equity with the power of Law can produce no better effect then to make every one to begin or make his Suit or action would otherwise have been ended in a short course of Law in a long examination of circumstances of equity or way of Chancery and render the equitable or arbitrary part of those Courts so Superior and predominant to the legal as in a short time it will alter or take away the force and power of it For the Judge will have a double power and Capacity to take which Hand he will and to judge according to this or that Circumstance which he shall like best the Law will be then fast and loose at pleasure and will not be as it is now Lex a Ligando nor Lex a Legendo but so incertain and inconstant as to alter or dissolve it self into an equity of this or that circumstance which can lay the fastest hold upon it or the Iudge and be so much at the exposition or command of the Iudges who were wont to be commanded by the Laws as every thing they would have must be turned into an equity Which the wisdom of our Parliaments and Laws were so far from suffering as they would not suffer the Chancery to meddle with matters of Law and the people in former ages so jealous of it as they petitioned in former Parliaments that judgements should not be given in causes of Law but by process at Law and that they might not appear in Chancery upon Sub poenas or writs of quibusdam certis de causis when there was remedy at Law and was the cause that the Chancery hath heretofore and to this time kept themselves to their constant course of allowing Demurrers and discharging such causes as might be relieved at Law For if it were formerly a grievance for the Chancery to determine matters at Law