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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A91346 Reformation in courts, and cases testamentary. Parker, Henry, 1604-1652. 1650 (1650) Wing P419; Thomason E616_5; ESTC R206722 6,466 11

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REFORMATION IN COURTS and Cases Testamentary BEfore the late abolition of Episcopacie this Nation suffered under too many Testamentary Jurisdictions some Counties had no lesse then 50. or 60. Peculiars and in some Counties divers Lords of Manors and Corporations had a priviledge to prove Wils and speed businesse of that nature upon a Lay account The People found themselves divers wayes aggrieved by this multiplicitie of Jurisdictions and therfore to give some ease and redresse therein the Metropolitans Prerogative Courts were erected about 400. yeers ago In the yeer 1643. Dr Merick Judge of the Prerogative Court of Canterbury removed his office to Oxford and then there was a Committee appointed to consider of a new settlement of that Court but nothing was reported thereupon In the yeer 1644. Mr: Maynard brought in an Ordinance for making Sir N Brent Judge in Dr Merricks place and the same was passed with some other materiall alterations in the Prerogative Court In the yeer 1646. All Episcopall Jurisdiction was taken away since which there is no true power remaining anywhere to dispatch Testamentary businesse upon the Ecclesiasticall score except that of Sir Na Brents Sir Na Brents Jurisdiction has two defects and so is as yet insufficient to do right to the whole Nation it wants extesinon of bounds and a competent Power of coertion For want of Extension it cannot proceed duly within the Province of York nor within the ancient Province of Canterbury but onely in some speciall Causes Hereupon occasion has been taken by divers private man without and against Authority of Parliament not onely where the Prerogative has no cognizance but also where it has to exercise Testamentary Jurisdiction and so by these misproceedings the deceived people is put to much unnecessarie charge in as much as they are necessitated to take out Administrations the second time and be at the expence of new Probates as often as any Suit arises For want also of a sufficient Coercive Power for a Court without a Coersive Power is no Court the present Judge cannot force men to bring in true Inventories or submit to order in other points whereupon a vast licence is taken by many to defraud Creditors Legatees and other Interessents yea the State it self is often injured hereby aswell as multitudes of private men There is now living at Guilford an Executor which refuses to bring in an Inventory yet the Testator died under sequestration owed good summes upon Bond to the Parliament and besides the main bulk of his estate He gave away in his Will above 900 l. in pety Legacies In Order to a Reformation of these things a Committee of Parliament was chosen in April 1646. which after 3. yeers sitting made Report in May 1649. The matter of that Report was referred to a new Committee to be formed into a Bill and in July following for the better maturing of that business other Members were added to that Committee and a speciall care thereof was recommended to Sir Pe Wentworth and Mr: Miles Corbet Since that time a Bill has been prepared and twice read in the House but notwithstanding so much time is elapsed it still hangs under a recommitment and fails of giving satisfaction The reason why the reforming of these things though the State it self and thousands of particular men remain sufferers in the mean time proves so dilatory and difficult is supposed to be because most men are possessed with two contrary extreme opinions and few there are that pitch upon the middle and more moderate way Some men are wholly for the Civilians and out of favour to them they would have no lesse then 20. Courts erected wherein none but of that profession stould sit as Judges Some men are as opposite to Civilians and they would have that whole profession removed and quite eradicated aswell such as have been faithfull to the Parliament during these late troubles as such as have been Enemies only that Testamentary busines might be thronged and obtruded upon the other Courts at Westminster In the mean while there is a third opinion that mitigates both these extremes and thereby declines the inconveniences occurring on both hands According to this Third Opinion if the Court now cal'd the Prerogative were inabled with such a Coercive power as other Courts of Justice have if it had a Jurisdiction in all Causes Testamentary whatsoever throughout the whole Land if it were likewise animated with as many Judges as use to sit in other Courts which the Lord Bacon thought necessary many yeers ago and if it were subordinated to another higher Court of as many Judges in all matters worthy of appeal it would prove an excellent settlement and without any further dangerous Innovations we take in all other restrictions and points of Reformation prescribed to other Courts against delayes excessive fees and arbitrary proceedings would be sufficiently serviceable to those publick ends we all aime at It is remarkable also that the Advantages and Conveniences which commend to us this middle way are many and very weighty For 1. Hereby that admirable light of the Civill Law approvedly usefull in Monarchies and yet by some held more usefull in Democracies will be preserved in our English Horizon and saved from utter extinction There is scarce a State in Christendome whose highest Councels and Judicatories are not mainly swaid by the profound Professors of Civill Law and as learned Polititians are generally the ablest servitors to all States so no other study or breeding has more eminently accomplisht Learned Polititians then this of the Civill Law Without a competent practice this knowledge will be lost to our Natives and this being so lost we shall be driven though to our shame to have forreiners in p●nsion Now to reject the service of Englishmen when we are to treat with aliens and not onely to trust but also to gratifie with our English gold men born to a forrein Interest will be a great discouragement to our own Students so rejected Besides Testamentary busines is common to us with other Nations it never had hitherto any thing peculiarly municipall in it the formes and the processes and proofs of the Civill Law have ever hitherto so prevailed that Englishmen might confidently as to Testamentary Interests demand and recover their rights abroad and strangers might do the like in England And t is not yet easie to foresee what inconveniencies may ensue if in this infancy of our Republick we presently depart too far from ancient legall communities and correspondencies with other neighbouring Nations 2. As the study of the Civil Law will be preserved by the number of Doctors and Advocates that will be supported by one Admiralty and these two Testamentarie Courts so the Students of the Civil Law will be hereby the better reduced Heretofore when there were so many Peculiars and Judicatories in England the very number of them was oppressive to the people and yet there is not left now the tenth part of busines and imployment for