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
to that Body must immediately take its flight and be gone Those that would procute the Vinyard to be destroyed because they themselves are shut out of it do not consider that there are more motions and business in Chancery dispatched in one day than a Committee of the late Parliament did in a year more businesse in a year determined in that and the three other Courts of Westminster by themselves and their ministerial Offices than all the Committees of the late Parliament have dispatched in 12 years last past or would have been able to do after their usual pace in twice as many more and need not go far to be informed What an obstruction and hindrance there must then be to the people of this Nation when these Courts and Offices shall be taken away and the People left to attend and Petition for some Moneths together before they can so much as get a Petition read and Tire and Trouble all the Friends they have for that they might formerly for a far lesser Fee in an ordinary course have obtained in half an hours space as soon as it was asked for Nor observe as they might that the reason why the good intentions of many men in those many several Committees which the necessities of war did cause the late Parliament to erect in this Nation brought them so much into the hatred discontents curses Complaints of the People was amongst other their failings their ignorance in the Laws of the Land and of the old course of expounding taking-in and giving out of reason their immethodical proceedings and seeking sometimes to make a reason out of half a reason or that which was but a shadow or colour of it which with their many scruples which would not be made by more knowing men their bidding the people so often to withdraw and advising with themselves or referring it to their own Counsel which made many several hearings of that which other men would have dispatched presently have been the cause of those outeries pamphletings and Petitions have from most Counties and places been against them and that the horrid delayes and small dispatch of those Committees who if there were nothing else in it must needs in so many different opinions arguings and needlesse debates amongst themselves be a great deal more redious and undispatching than a fewer number of able men in a Court were much of the cause also of the peoples heavy complaints against the late Parliament And that the Chancery and Courts of Justice have not for many hundred years past put all the Complaints which have been made against them together had so many and so universal Complaints made against them as have in the space of these last Ten years been made against the late Committees of which those that have left their Hosanna to the Lawes to cry Crucifige would be ill contented if all the Trades in London should be at once put down for that there are greater abuses in them Doe not doe as they would be done by nor think what a drouth and want of Justice there will be all over the Land when the Springs thereof shall be stopped-up and what an encrease of wants and necessities there will be when the way of preferment and provision for younger Children shall in the ruine of this great Tribe and part of the people be taken away And what a strange attempt it would be in Physick upon the body Natural to go about to divert the daily and constant Course of the blood from the heart and put it into a new way or to make some other parts of the body to do the office of it Nor do those Proposers who would take away their Neighbours wood to build an Altar to sacrifise their own imaginations upon consider as they ought what it is to remove the old Land-mark and enter upon the field of the Fatherless nor how great a burthen of sin will lie upon their Souls in the day of Terror and Accompt for the unnecessary ruine of so many Thousand Families as are now living and a general disturbance and distemper of a whole Nation and their posterity for the time to come and all upon no greater a Score than their own presumption and incapacities to judge of Laws and meddle where they had no calling either from God or Man and when they stop'd their ears like the Adder and might have been advised but would not or how much greater or sadder a burthen it will be to their consciences if that which they shall now fancy to be good should prove hereafter to be a continual curse and thraldom to a whole Nation and a Succession of generations after them That the taking away from the people their Courts of Justice and reasonable Customs will not only root out and overturn their properties but cast it into an arbitrariness of will and power from which the best intentions and integrity of those that shall be in power at the present will not be able to secure the people or their posterity And that this so great an alteration though carried on with never so good purposes may meet with no better a success in the end than that unadvised and loving attempt of old Pelias Daughters in the Poets who by letting out of the old blood of their Father to procure new lost what they might have kept and gained no more than an impossibility to keep him alive whom they thought to have made young again And that when they shall have done all they can or have obtained what they would of the Parliament by such kind of proposals it will be to as little satisfaction to the people as to take away if they could the Sun out of the Firmament and promise them another instead of it or forbid all known experimented Medicines and Courses in Physick and tell them they shall have better CHAP. IV That the Lawes are not in themselves evil but are only abused by the People ALl which might be sufficient to call off those Tradesmen who have no more acquaintance with the Law than what they got in some Suites were rightfully adjudged against them and some others who are neer Allied unto a busie ignorance from troubling the Supreme Authority with their so eager pursute and persecution of those Laws which in the beginning of the last Parliament they took to be the Walls and Bulwarks of Parliaments and could protest swear covenant take arms expend and hazard their lives and estates for to maintain Or to perswade them not to hunt the Lamb instead of the Fox or their own happiness in stead of a grievance nor to think their Time well spent in Crying-down the Fundamental Laws of England without which they once thought they should be most miserable if they were not hurried or headlongly driven on by a strange fury of their own Fancies or presumptions or an expectation of setting-up themselves by the ruine and downfall of many Thousands will be losers to every one
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
wisdom to any that shall so judge of them be thought to have been so to a continual succession did only correct alter and add as there were necessities or occasions but left us our Laws and reasonable customs to preserve our estates and properties Contrary to all the Petitions and pretences of Grievances that ever were exhibited by any of the people before or since the Conquest to any King Parliament great Councel or Assembly for above one thousand years To what our Auncestors did in England Who in the change of governments and succession of Kings from the Saxons to the Danes from them to the Normans thence to the Plantagenet line from the right Heirs to the wrong from the red rose to the white from the white to the red and white united in Henry the seventh from the Catholick religion to the Protestant from that to the Catholick and from that back again to the Protestant from the English line to the Scottish did never find any cause to take away that Court which they found by so long and successive experiments to be the conservator of Justice Contrary to the National Covenant which many have endeavoured to prove to be consistent with the Ingagement to what was done by the late Parliament in their reformation of religion wherein though the Bishops and Book of Common Prayer were put down and abolished and that not at once did not put down all the Doctrine of the Church or all the Discipline or parts of it nor shut up the Church doors Contrary to the many Declarations vows and Imprecations of the late Parliament The many Declarations and Remonstrances of the Army The Course held in the late Conquests of Scotland and Ireland who by enjoying their Lawes and Courts of Justice have yeelded an easier submission to it The Act of the late Parliament in erection of this Commonwealth which declared and promised to the people that they would not alter nor take away the fundamental Lawes The Peoples purpose of their ingagement upon it The Act or order of Parliament for the regulation of the Lawes The regulators Systeme and the Nature of a reformation or regulation The late Act for taking away Fines in Chancery and many of the Petitions that of late have been against the Lawes which desired a regulation but not a total taking of them away CHAP. VI. That the very Being of Parliaments is preserved by the Laws and that so great a distemper and disturbance as will come upon the people by putting down of the Laws will by a necessitie of Justice and of the better ordering of Affairs bring them back again by a revolution of time into their old Chanel WHich for so much of them as have their Principles from the Laws of Nature and right reason and the consent of them or are founded and deduced from them are so interwoven and radicated in the very Being of Parliaments so inseparable from it and so reciprocate to it as that high Court of Parliament which is not by themselves intended to be any standing or ordinary Court or Rule of Justice cannot when it shall sit upon emergencies or matters of greater consequence be without it no more than the people can in the Intervals or absence of it for that the Law of Nature which God imprinted and put into the Hearts of all Mankind and that Law of reason which bindeth Creatures reasonable in this world and with which by Reason they most plainly perceive themselves to be bound and so much of our Laws which out of the Law either of God or Nature or Reason our Forefathers probably gathered and conceived to be expedient which the learned Hooker putting all together calleth the second Hooker 1 lib. Ecclesiastical Pollicy Law eternal are so in some sort immutable as they cannot be taken away or repealed by any Act of Parliament whatsoever but will retorn and grow up again with the nature and reason of Mankind for Laws of men not contrary to the Law of God nor to the Law of reason are to be observed in the Law of the Soul and Doctor and Studient 4 Chap. he that despiseth them resisteth God and that which plain and necessary reason bindeth men unto will upon some inconvenience or necessity at one time or other get it self in again and obtain an allowance or ratification of human Laws for it Which should advise a great inspection and examination into the nature cause and effect of all our Laws before a sentence of condemnation passe against them that so it may be clearly known what and how much of them have their Being from the Law of God or Nature right reason or convenience and a value accordingly put upon them that the Gold may not be cast away for the drosse nor the Saint for his infirmity That we may not be sent to seek after in the rubbidg for that we might have kept or laid by or not seem to have pullen down all the house when some little part of it would have served the turn or to be such ill Husbands as to cast away the materials might have served for the new building and is better or more substantial than any can be gotten instead of it of which opinion were all our former Parliaments who hitherto in their correcting and altering of Laws could never be brought to forsake any thing might be good or fit to Sir Francis Bacon Judge Hutton in his argument against the ship mony and Lord Hobart in his Reports remain of them and all our Forefathers who in their greatest esteem and reverence of Parliaments did beleeve that an Act of Parliament it self enacting any thing against Common right and right reason would be void and of none effect to what end then should these men sollicite a Parliament to take away the matter of its own form and subsistence and its Being or coexistence with the Laws or to take away that which is to be a rule of justice to the people when they cannot themselves intend it or to lay by those Laws which the wisdom of their Predecessors thought they had done the people good service when they did procure them to be enacted and those reasonable customes which the people were wont to swear their Kings to observe when the late Parliament took it to be a good way for the preservation of the Laws and Liberties of the people that Sheriffs and Justices should be sworn to the Remonstrance 15 December 1641. and 26 of May 1642. due execution of the petition of right m Stiled themselves the Conservatory of Lawes took Arms for the maintenance therof appealed to the people touching that imputation which they said was then laid upon them that they which represented all the Commons of England and had so great a share in it should endeavour to take away the Laws and run so great a hazard to make themselves Slaves Wherefore if the Parliament to please these unquiet and proposing spirits and let
to put the Sword again into the Scabbard when it is drawn but very much conduces to keep it from comming out again and is in the ordinary execution thereof at this time trusted out into lesse than twelve hands in the ordinary Courts of Law at Westminster will by these proposals upon very small security be trusted and put into the hands of Two Hundred and Fifty men more who will want that wisdom as well as estates which the other have to make them responsal whereby the Supreme power of the Nation may by its being too much divided and diffused into such lesser bodies come to want that strength and intireness it hath formerly had and enjoyed in the several succession of Kings for almost One Thousand years together by keeping their residence in the chief Citie or part of the Nation As David and the Kings of Juda did at Jerusalem and as all other Kings and Estates do in other Nations with their chief Courts of Justice about them where the pulse contents and discontents of the People from all parts of the body Politicque may be felt whither all their Complaints or principal businesse might Circulate and come and passe to and fro like the blood from all parts of the Body to the Heart and from thence back again to all parts of the Body and whither the Common sense did from time to time bring in its Intelligence to the great Counsel which was holden in the Brayn for preservation of the Heart as wel as every part of the body They that heretofore could with one expence and charges prosecute a suit at Law at Westminster and at the same time attend the Parliament or their Committees the Council of State the Exchequer or Committee of revenue and the motions and designs of their adversaries who it may be had bills in Chancery or actions in some other Court of Westminster depending against them at the same time and do many other businesses whilst they remained there meet and confer with Friends or Foreiners or people of all parts of the Nation could make bargains and dispose of Children and have the help or assistance in their Suits at Law of the ablest most eminent Lawiers in their several Innes of Court or Stations must now perhaps goe to the Shire Town as a Plaintiff or Defendant at Law and to London for his other businesse be content with such Lawiers only in his own Country as are there resident when it may be there are none eminent or very able to be had there or be inforced to procure such as are to come at great rates one hundred or Two hundred miles at a time from the places where they inhabit and that Country and many a more distressed Client want them in the mean time Such a multitude of Courts will throw many men especially such as have great dealing and multitude of businesse with men of many Counties into so many journeys and perplexities as they shall never be at leisure from attending one Court or other whereas now one man that hath occasion to prosecute Actions of debt against one Hundred Debtors living in 20 Counties dispersed over the whole Nation doth his businesse without Travelling or sending any further than to London Streightens and gives men no time to provide their evidence or Witnesses and puts the Lawiers as well as their Clients by so much attendance at so many several Courts into a continual attendance or Travelling from one Shire to another and will not a little distract mens affairs to have an Action at one and the same time to be tryed or called upon at London Cornwall Barwick and Pembroke Shire where they should be personally at every one of them and can be but at one and must be in a continual unquietnesse and trouble when all the year shall be as a continual Term or time of controversie and when they shall be enforced to neglect their affairs of Husbandry and Harvest to travel and tire themselves through all the lines of the Circumference when they might have a shorter way to and from the Centre which by the intermission of Terms and Vacations and the known and convenient times of Assizes when the Terms were ended was by the Laws now in being sufficiently prevented But these are not like to be all the inconveniences neither for if the Courts of Westminster shall besides the Two and Fifty County Courts to be taken out of them be cut into lesser pieces by giving cognisance of pleas of Actions of Trespasse Battery and the like and of Actions of debt under 40 shillings as some would have it there will then be as many smaller Courts as will make us up above 2600 Courts the Judges whereof will look to be paid as well as the Judges of the other Courts for the neglect of their own businesse to take care of other mens and if they should have but 50 l. per annum a peece for standing salaries will make a yearly charge to the State of above Sixty Five Thousand pounds per annum or if they shall be prohibited their taking of Fees will grow carelesse and nnwilling to be troubled pretend to be sick or absent when they are not or half hear causes or like some of the Midlesex or Suburbian Justices take a great deal more in Fees and Incomes than that would come to and doe as little for it as they use to doe in matters of Breach of this Peace or petty Brawls which is to bind them over to the Sessions and take their Fees for it and for those causes which they shall adventure to determine beget in a year more appeals than there shall be Justices of the peace which in a year but after the rate of 2600 petty Courts or more but 40 Times appealed from every one of them will yeeld to the people above One Hundred Thousand appeals which may cost them no small mony time to maintain and bring to a hearing and by such double and treble agitations discovery of Titles and evidence and half hearing of their causes make their contentions grow as endlesse as their Charges CHAP. VIII That it will not only raise up again those old grievances which were formerly the cause of disusing or restraining the Sheriffs Turns County Courts Court Barons and Hundred Courts and such like petty Jurisdictions but far exceed them BUt surely they that thus erre for want of knowledge and do too much build upon their own ignorance would if they knew the reasons that accompany our Laws not be so forward to goe back again into those evils which our Auncestors and the care of former Parliaments did bring us out of nor take that to be a new and better way is but a going back again into them and a reviving of old grievances We shall therefore shew them what they were let them see they are very like unto that they are now so willing to establish amongst us The Courts called Hundreds Wapentakes the
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
The putting or mingling of matters of equity into Courts of Law will be but one and the same thing and as like to be a grievance as the other Of which the late Parliament in their argument against the Councel of the Marches of the North in 1641 were so sensible as they alleaged it would be prejudicial to the people if the King should be permitted to canton out a part of his Kingdom to be tryed by z Mr. Hides argument in April 1641 before the Lords in Parliament by order of the House of Commons Commission though it were according to the Rules of Law or to erect new Courts of Chancery and that the latitude and power of the Iudges of that Court of the Marches in judging according to equity and discretion was the Quick-sand that swallowed up the peoples property and liberty and that the very administration of Iustice founded upon such illegal principles was a grievance and oppression to the people and the House of Commons in the late Parliament of which some of the now Members were then a part were so far from altering their opinion in that particular as in their grand remonstrance of the State of the Kingdom the a Remonstrance 15 December 1641 15 of December 1641 repeating what good they had done for the people and what Courts they had taken away they reckon that and some other arbitrary Courts and called them the forges of misery and oppression And yet this is not all the proposers would have nor will their appetite of change be satisfied or the confusion be compleated unlesse the Lawiers may be totally extirped the Innes of Court and Chancery which used to breed them be abolished a doctrine any but the quondam Jack Cade and his men of rudenesse who would have all Learning and Letters suppressed and the Score and the Tally to be the only Books of the Nation would not only blush at and be ashamed to own but stand amazed and dissolve themselves into a wonder that any men should think as some of these proposers have done that the Lawiers or professors of reason should not be fit to intermeddle in the administration of Justice as if reason which God gave for a blessing and distinction to mankind could be Antichristian or the mark of the Beast or that all the praises of wisdom in the Scripture were only to let men know that those that had it were not fit to be imployed CHAP. X. That in the right administration of Justice there is a necessity of Lawiers and men of skill and experience FOr the Laws and Customs of all people Christians and not Christians Barbarians and not Barbarians do allow and practise that most necessary and usefull Maxime Cuilibet in arte sua credendum It is best to believe every one in his own art or that wherein he is skilful All our Laws and reasonable Customs do forbid the using of Trades to which men have not been Apprentises for seven years 2 3 P. M. 8 Eliz. cap. 11. 1 Iac. cap. 24. together And several Acts of Parliament would not so much as trust Watermen to row upon the river of Thames nor the inhabitants of several Shires to use the art of Cloathing nor so much as to make Caps or Pol Davis unlesse they had been Apprentises to it The Parliament in the third year of the reign of King 3 H. 8. cap. 11. 1 Ma. cap. 9. Henry the eighth and some other Acts of Parliament made since provides that none but allowed and skillfull Physicians and Chirurgions should practise Physick and Chirurgery for that the practice thereof by Artificers and unlearned persons was to the great displeasure of God and grievance hurt damage and destruction of the People How then can these proposers or Trades-men imagine it to be good for a Common wealth to banish all the knowledge of the Laws and the means of doing Justice out of it and to take in all manner of ignorance in the place of them or that the Lawiers or men of Iustice should be a burthen to the Nation when Paul took it to be no dishonour to have sate at the feet of Gamaliel was more than ordinary carefull of Zenas the Lawier Epist ad Tit. 3. v. 13. and had never gone to Rome not converted some in Nero's own houshold if he had not been learned in the Laws and Privileges of the Romans as well as of the Iews When the Dutch in their united Common-wealth or Provinces dare not trust their smallest causes to their b Commentar de Stat. confederat Provinciar Belgic Commissarissen op de kleyne Saecken without a Lawier added to them and for causes of greater consequence will not in all their Colleges or Courts of Iustice want an Assessor or Syndic being a Professor of the Civil Law to direct and guide them When the Turks who for the most part of them are by the Tyranny and designs of their Emperors kept in an ignorance of all Learning and Letters can have their Cadies in their lesser Courts and their Iudges in the Divano or greater purposely educated and brought up in that which might enable them unto it and do not put their mad men in places of Iudicature though they give much respect unto them and take them to be inspired And when these Proposers can at the same time for any thing which they have to do in their own affairs labour to find out the most able and skilfull men and would think them not to be their Friends at all or to be some of the Inhabitants of Gonzagua's newly discovered Country slipped down hither through the Moon which should instead of a Physician bring them when they are sick a Carpenter or a Plaisterer when they are wounded for a Surgeon For can any man think that the Law which was heretofore esteemed to be as hard and difficult a Science as it is noble and worthy can be practised or given out to the people without any manner of knowledge or learning of it would these Proposers desire an Act of Parliament that no sick and wounded men should any more use the help of Physicians or Chirurgians but should go to the Justice of Peace for it or that no Carpenter Mason or Bricklayer should any more meddle in the building of Houses May not the Civil part of the government or power come in a short time to be as much endangered or disordered by such an ignorant management of Justice as these proposers would have it as the Militia or Military part thereof would be if all the old Legions or Regiments and tryed Souldiers of the Army should by a Law be disbanded and forbidden the art of war and young boyes newly come from School be taken on and listed in their places and none to be Captains or Officers but such as should want their sight or be blind Or how little difference will there be betwixtan ignorant administration of Laws and the having of
such as were not repleviseable and kept in prison such as were Beasts were distrayned and carried into another County Great men and their Bayliffs did attach and arrest others passing through their Jurisdiction and compelled them to answer upon Contracts covenants and Trespasses done out of their power and Jurisdiction 13 E. 1. cap. 13. Sheriffs did in their Turnes feign men to be indicted before them for felony and Trespasses and imprisoned them and exacted money of them when they were not lawfully indicted by Twelve Jurors Lords of Courts and others that kept Courts and Stewards cap. 36. intending to grieve their Inferiors did procure others to enter Actions in their Courts and to move matters against them and to put in sureties and pledges or to purchase writs and compel men to follow their Countie Courts Hundreds Wapentakes or other like Courts until they had made Fine at their will Sheriffs Hundredors and Bayliffs of liberties did use to grieve such as were in subjection to them putting in Assizes and Juries men diseased and decrepit and such as dwelt in other Counties to extort money from them and Bayliffs intending to grieve their Inferiors to the end they might exact money of them did send Strangers to take distresses by reason that the parties so distrained and not knowing such persons would not suffer the distresses to be taken 33 Ed. 1. Stewards and Bayliffs of great Lords did undertake to bear or maintain quarrels which concerned other parties 38 E. 3. Great cap. 3. men came armed and with power to disturb the execution of Justice 4 E. 3. cap. 11. Diverse as well great men as other made Alliances confederacies and conspiracies to maintain parties pleas and quarrels whereby divers were wrongfully dis-inherited ransomed and destroyed 14 Ed. 3. cap. 16. Enquests and Juries were taken in diverse Counties where no Justice did come to the great mischief of the Parties that did sue as also of the good people that were impannelled and Sheriffs did let their Hundred Courts at great rates to the impoverishing and oppression of the People 17 E. 3. The Rot. Parl. in 38. Commons Petition that excessive Fines imposed on them by such as have Leets might be redressed 20 Ed. 3. cap. 6. Bayliffs of Franchises and their under-ministers did commit maintenance and imbracery of Jurors and took gifts rewards and other profits which they did take to array pannels and to execute them to the subversion of the Laws and disturbance of Common right 31. Ed. 3. cap. 15. Sheriffs held their Turnes in time of Harvest and hindred the people 20 Rich. 2. cap. 10. Notorious Theeves were delivered by favourable inquests procured to the great hinderance of the people Lords cap. 3. and other great men did use to sit upon the Bench with Iustices of Assize 17. Ed. 4. cap. 2. Courts of Pypowder were misused by Stewards Vnder-Stewards and Baylifls holding pleas for contracts made out of the Fairs 1 Rich. 3. cap. 4. Diverse inconveniences and perjuries did dayly happen in diverse Shires of England by untrue verdicts before Sheriffs in their Turns by persons of no behaviour nor dreading God nor the worlds shame cap. 6. Courts of Pypowder were misused by Stewards and Bayliffs upon feigned plaints to trouble men to whom they owe evil will to make men lose their Fair or to get favourable inquests whereby many coming to the Fairs were grievously vexed for contracts made out of the Fair The Lords lost their profits of their Fairs and the People wanted those merchandises would otherwise come to them II. Hen. 7. cap. 15. Great extortion was used in divers Countries by Vnder-Sheriffs Shire-Clerks and other Officers holding and keeping County-Courts and in the name of the Sheriffs by entring Plaints without the Plaintiffs direction against Defendants to the intent that if they appear not they may be amerced or entred Plaints in the name of such as were dead and to that end did not at all attach or summon the Defendants but caused the said amerciaments to be levied 3 H. 8. cap. 12. Great extortions and oppressions were by Sheriffs and their Ministers by impanelling such as will be perjured 26 Henry 8. cap. 4. Juries in Wales gave untrue verdicts because upon indictments of Murder and Felons the Kindred and Friends to such offenders had accesse to them 27 H. 8. cap. 7. Divers oppressions maintenance imbraceries riots trespasses c. were in Chester and Wales by reason that common justice was not administered there as in other places by reason of a diverse ministration of Justice Diverse authorities of justice appertaining to the King had cap. 24. been granted away to the great hindrance and delay of Justice cap. 26. By reason of diversity of Laws and usages in Wales and England great discords variance and sedition have risen betwixt the People Which irregularities of Small Courts so all along from time to time complained of in Parliament were not only the cause of making those many Acts of Parliament in those several years to redresse those grievances but of the making of several other Acts of Parliment As that in 13 E. 1. cap. 30. authorising Justices of Nisi prius to go at certain times of the year into the Counties that of 27 E. 1. cap. 3. and 4. to make those Iustices of Assize Iustices of Gaol delivery and that enquests and recognisances taken before Iustices of either Bench should be taken in time of vacation before any of the Iustices before whom the plea is brought That of 28 E. 1. cap. 10. that against Conspirators false informers procurers of enquests and Iuries remedie should be had by a writ out of the Chancery and that the Justices of both Benches and Justices assigned to take Assizes should when they come into the Country upon every plaint made unto them award enquests Char of 12 E. 2. cap. 3. and 4. that enquests and Juries in pleas of Land that require great examination should be taken in the Country before two Justices of the Bench and that which they shall have done shall be reported in the Bench at a certain day there to be inrolled and thereupon Judgement shall be given And to provide that inquests and Juries should notwithstanding be taken in the Bench if they came That of 2 E. 3. cap. 2. that Assizes Attaints and Certifications be taken before the Justices commonly assigned which be good men and lawfull having knowledge of the Law and none other That of 14 E. 3. cap. 16. that nisi prius shall be granted as well at the Suit of the Defendant as of the Plaintiff and before a Justice of another Court then where the Suit dependeth and if it happen that none of the Justices of the one Bench or the other may go into the Country then Nisi prius to be granted before the Chief Baron of the Exchequer if he be a man learned in the Law and in case he cannot go then before Justices assigned to take