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
CONSIDERATIONS Touching the DISSOLVING OR TAKING AWAY The COURT of CHANCERY AND The Courts of Iustice depending upon it VVITH A Vindication or Defence of the Law from what is unjustly charged upon it AND An Answer to certain proposals made for the taking away or alteration of it Cicero pro Cluentio Civitas sine Lege ut corpus sine mente Leo Imp. in proaem Constit Novellarum Sunt Leges tanquam Custodes vitae nostrae London Printed by F. L. for Thomas Heath and are to be sold at his Shop in Covent-Garden 1653. The Contents OF the Court of Chancery Chap. 1. The great inconveniences which will happen by the dissolving of it to the whole frame and body of the Laws and Iustice of this nation ch 2. Besides other sad effects and consequences will be brought upon the people by it ch 3. That the Laws are not in themselves evil but are only abused by the people ch 4. That to put down or overturn the Chancery and so many Courts of Iustice which depend upon it will be so much against the former customes and reasons of this or any other nation as it is not to be presidented ch 5. That the very being of Parliaments is preserved by the Laws and that so great a distemper and disturbance as will come by the taking away of the Laws will by a necessity of Iustice and better ordering of affairs bring them by a revolution of time back again into their old channel ch 6. That the erecting of so many new Courts as are proposed or cutting and translating the great Courts at Westminster into so many little Courts and Iurisdictions will besides the before-mentioned inconveniences not only be very prejudicial to the State but to the people ch 7. And not only raise up again those old grievances which were formerly the cause of disusing or restrayning the Sheriffs Turnes County Courts Court Barons and Hundred Courts and such-like petty Iurisdictions but far exceed them ch 8. That the annexing of a Iurisdiction or power of equity to every or many of such new Courts will much increase the peoples grievances and turn that little Law which shall be left into a course of arbitrariness ch 9. That in the right administration of Iustice there is a necessity of Lawyers and men of skill and experience ch 10. CONSIDERATIONS Touching The Dissolving OR Taking away the COURT of CHANCERY THe Parliament that intends to bless and make the Nation happy are to consider what may best advance it In order to which as they may claim the Prayers and obedience of those they represent So on the other side the Peoples great concernment in what shall be acted or suffered by them is entitled to a modest and well-ordered liberty of address and advices not only in the general but in particular also to the end that every part how little soever of the Body Politique may be either heard or rightly understood before any alteration or Sentence shall goe out against it Especially when their Livelihood Freehold and Posterities are to be the present and immediate Sufferers in it For it could never be intended by the Lawes or Constitutions of this Nation or is indeed imaginable that the Parliament can like a Deity see thorow and know all things at once or before-hand or judge of what can be objected or said in any particular case or concernment without hearing parties or defences The Justice and reason whereof may be exemplified from God himself who being not only Omniscient but Omnipotent would not think it fit to condemn Adam untill he had heard what he could say for himself Whence the Law of Nature and Nations the Civil Canon and Common Lawes and all the Parliaments of this People and Nation have not only made it their Rule but their Practice to hear both parties without which no Sentence or Judgement can be said to be just or valid though the parties that did it should intend it well and give as just a Sentence as possibly they could according to that generally received Maxim amongst all Nations Qui judicaverit altera parte inaudita aequum licet statuerit injustus est Upon which consideration of Justice and that most antient and uninterrupted custome of it and the reason of all Nations and Men of Reason It is hoped that the now Parliament according to the antient courses of Parliaments and those sage and successfull Customes of those Sonnes of Liberty the Romans who in the Rogation and promulgation of their Laws did not only hear but demand what the People and those that were to experiment the sweet or sowr of it had to say against it will give leave to those that have been bred up laid out their Fortunes and spent a great part of their lives in Chancery and well understand it to be heard concerning the preservation of what shall be good or the taking away of any thing that shall appear to be evil in it before they shall proceed upon those Proposals which have been made unto them for the dissolving of that Court And for the better sanisfaction of that small part of the People which tire the Supreme Authority 1 with their wild Proposals to represent unto them what that Court is which that kind of People would have the Parliament to put down The great inconveniences which will happen by it to the 2 whole frame and body of the Laws Iustice of the Nation Besides other sad effects and Consequences will be 3 brought upon the People by it That the Laws are not in themselves evil but are only 4 abused by the People That to put down or overturn the Chancery and so 5 many Courts of Iustice which depend upon it will be so much against the former Customs and reasons of this or any other Nation as it is not to be presidented That the very Being of Parlements is preserved by the 6 Laws And that so great a distemper and disturbance as will come by the taking away of the Laws will by a necessity of Justice and better ordering of affairs bring them by a revolution of Time back again into their old Chanel That the erecting of so many new Courts as are proposed 7 or cutting the great Courts at Westminster into so many little Courts and Iurisdictions will besides the before mentioned inconveniences not only be very prejudicial to the State but to the people And not only raise up again those old grievances which 8 were formerly the cause of disusing or restraining the Sheriffs-Turns County-Courts Court Barons and Hundred-Courts such like petty Iurisdictions but far exceed them That the annexing of a jurisdiction or power of equity 9 to every or many of such new Courts will much increase the Peoples grievances and turn that little Law which shall be left into a course of arbitrarinesse CHAP. I. What that Court is which they would have taken away THe Court of Chancery not to trouble the
the unwearied skill endeavours and time of the present Lords Commissioners and Mr. of the Rolls for seven years who by former motions and proceedings are well acquainted with the nature of many of them and by that means may be more skilfull in the way of determining of them than any Committee which can be chosen will then be put to the decision of Strangers or such as may be as long again in finishing of them And if the heap of new causes should be undertaken by the same men at the same time may make such a stop as may swell up the discontents of the people to a complaint or breaking down the banks of any new erected Courts or Committees for it The Court of Common-pleas betwixt partie and partie which hath its originals and Commissions from it will expire for it cannot hold plea without it All that our former Laws appointed to be done in certain prescript ways and times as the bringing of Formedons in discender or remainder and all those several sorts of remedial writs in the Natura Brevium and register being like so many several sorts of approved and experimented physicks and remedies prepared boxed and laid-up by a long observation and experience for the future for the several diseases of mens estates rights or liberties will become uselesse All the many necessary and wholsome powers and businesse which former Parliaments have by their many Acts and Laws intrusted to the Chancery will be laid aside and the people sent to look out new ways or remedies where they can find them and take-up that which their forefathers refused as inconvenient instead of that they formerly received so much benefit by Magna Charia and its 30 times confirmation which 17 E. 1 ca. 7. 25 E. 1. Ca. 1 2 3 4. was delivered with Curses and Anathemas to the Infringers and commanded to be read once a year in Churches against which no law was to be made upon the penalty of being void was got and continued with so much blood of our Ancestors and forbids the denial of justice to any should ask for it gave the Tryals per Pares and that none should be imprisoned or disseised but by original writs then and ever since issuing out of Chancery and due processe of Law And the care taken formerly that Nullus recedat a Cancellaria sine remedio will be to no purpose when the Court is put down that should grant it The Wolf may eat the Lamb when there shall be none to stretch out their hand to deliver the oppressed All that was good in that Court and beneficial for the people for certainly it being so antient and of so long a continuance could not be so unhappy as to have no good thing nor proceeding in it will be put under the same fate as the bad wherein it will be lost unless by a new constitution or a particular enumeration of them in a new establishment which will find store of difficulties it shall happen to be revived there being a great difference betwixt what a Court hath incorporated in it by a custome and what it must get and have by a new authority for and may tend to the greatest alteration in the administration of Justice that ever happened to a Nation and produce many other sad effects and consequences will follow upon it CHAP. III. Other sad effects and consequences will follow upon it FOr above 2000 Families whose livelihoods labours and fortunes have been laid out in the labour and attendance of this so high and necessary a Court will without some recompence or subsistance made or provided for them be utterly undone and exposed to Beggery the rather for that they are not like Husbandmen or day Labourers that can fit themselves for common and servile labours Above 20000 Families of Townsmen and Citizens in or neer London whose industry and maintenance depended much upon the residence and study of the Laws at London besides the Professors of the Law and those many families are maintained by it will be either totally undone or much impaired in their estates and livelihood Many Thousands of Watermen the strength and subsistence of our Sea-affairs and Thousands of Artificers and other people who live by Trading and travelling to London will be ruined and that City which by its Situation and Neighbourhood to the Sea the riches skill and corresponcy of her Merchants and a long fixed Trade and custom is the fittest of all this body Politique to make a heart of And was wont to be the Center of the Laws and Courts of Justice whither all the people flocked for Commerce as well as Justice will by the deprivation of them be little better than as a City two parts in three destroyed or burnt And be so put into a continual lessening or decay as the rents and profits of at least a dosen neighbouring Counties whose provisions and commodities did by their neighbourhood and trading thither bear a higher price than in other remote places will be diminished as much as a half or one part in three in their Estates and manner of living and disabled to pay as they have done publick Taxes or Assessments when they shall be called for And not only those but all the other Counties and Cities of England as they shall neerer relate or communicate to those Counties be made the worse for it But the smallest Towns or Villages or most remote parts of the Land will quickly come to be wofully sensible of the distemper or decay of such a principal and vital part of the Nation The ruine or but disordering whereof by the putting down of the Law and Courts thereof may prove to be a cause of many more and greater inconveniences than if that great and general Manufacture or Trade of Clothing should be prohibited then the altering or turning the course of all the Rivers or known chanels or currents of waters or the stopping or taking away the Highwayes and known roads of the Nation could bring upon the People Whilst they that thus bespeak their own ruine do not yet perhaps so fully take into their consideration as they may hereafter when it shall be too late that the Chancery and the Courts of Justice at Westminster are as the Asylum's or sanctuaries of all that are oppressed the Protection of the people and next under God and the Supreme Authority the most certain rules of their liberties and properties And that the liberties of the People do reside and have their Being in the Laws and Courts of Justice as the vital and animal spirits doe in the blood and that it is as impossible as was not long agoe observed by a learned Judge of this Nation to Lord St. Iohn destroy the form of the Law and preserve the body as it is to take away the form of a man and to preserve his Being For when the Law like the Body natural shall dissolve or die the Justice of the Nation which is as the Soul
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
them see what is to ask Stones instead of Bread or Serpents instead of Fishes should give them the misery which they demand of them and contribute which cannot be easily imagined so much to their unruly desires as to let them fling off their old Laws like an unusefull or too long a worn garment It will be no hard matter without the help of Lilly and his College of Astrologers to foresee what besides the many mischiefs and inconveniences before recited must be endured and gone through in the interim and foretell what will become of it for suppose it to be done and that we see the old man put into his Cradle again or Adam into his Apron of fig-leaves the event will come up as close as a Conclusion to good Premises that such young Committees or new model Courts will in time creep into the method and manner of the old all that was reason in one case or cause will be made use of and made a precedent in another The wiser and most able men will be followed pleadings and allegations will be by the Committee or Judges themselves ordered to be with Certainties or Method The Court or Committee will more willingly hear those that can save them a labour by speaking more short and pertinently than the parties themselves and the parties themselves will rather desire men of skill and such as know the usage and orders of the Courts and Committees to speak for them than to adventure to do it themselves when their interest may beget a passion and disturbance and hinder them from the right managing and ordering of their own businesse abuses and misdoings of those that attend those Courts or Committees will from time to time require new orders and officers to prevent them For in this manner in all probabilitie and without doubt those most venerable and usefull Courts at Westminster came by degrees and small beginnings through the Course and care of so many ages to the perfection is now to be seen in them cannot be denied by those that shall without the Spectacles of ignorance or partiallity but equally and judiciously look upon them But if any shall doubt of this necessity of the Laws falling again into their own Chanel after a Series or long course of inconveniences to the people and some ages spent in bewailing the losse of their former happinesse Let them see but what hath been done but in three or four years space in the Committee of Sequestrations at Haberdashers Hall who from a Committee of seven Commissioners with a Clark or Register to attend them can now use the benefit of a Bar to admit Lawiers and such as know the use of their Committee to plead before them order some things to be done by the Clarks and officers in an ordinary Course and other things not to order and have the use of an Examiner Remembrancer and Assistant Counsel of the Court can refer causes have an Auditor an Attorney or Sollicitor General mark sign and seal their orders or warrants whereby they may not be counterfeited order men to take Copies of their own Petitions and leave the originals to file affidavits and reports and that none shall be heard without bringing the last order or a Copie thereof under the Registers hands Turn the way of Petitions as is now lately done into a way of Motions have under Clarks in several distributions of imployment Door-keepers Messengers or Serjeants to commit and imprison men for not obeying their orders order and allow of Fees to be taken by their Officers appoint certain days and times for several sorts of businesse and have their vacations or intermissions in which Committee or Court now a breeding although every man hath a liberty of pleading or speaking in his own cause yet because he that was never there before may hurt or mischief or perplex his own businesse or go a longer way about for want of the knowledge of the ways or courses there holden or what is fit to be asked or is usually or ordinarily granted most men that have to do with them are so unwilling to be without the help of Lawiers or those that can instruct them as they make use of Sollicitors and those that are not Lawiers to move and plead for them insomuch as little Mr. Kirk formerly a Clark of the Committee of the imdempnity and Captain Smith formerly a Tradesman do constantly appear and plead at that Bar in their black Caps with great bundles of Breviars and papers as if they were grave professors and Serjeants at Law So as it may be ringhtly enough concluded that until there shall be which God forbid a prohibition against all reason the Laws which are but right reason cannot be totally taken away or if they shall receive a change from the old right way of reason to a new and round about way of it there will be a necessity of making use of them again for the people and the reason that hath heretofore guided them can no more be kept from the same paths they have troad in all this while or some other made very near or like unto them than they will be from all manner of reasoning or use of their natural Logick though the art of Logick should be forbidden to be used or the use of medicines though that most necessary art and profession of Physick be banished out of this Common-wealth for which they that shall thus propose the casting away of the old Laws and Rules of reason will at the best get no more thanks of the Major part of the people than a Physician shall have of his patient for putting him out of a competency of health into an absolute sicknesse and leave him after many years troublesome course of Physick and dyet to find his way if he can again into his former condition But lest these that thus trouble themselves to bring trouble upon a whole Nation as well as themselves should so over esteem that which they intend to put in the room of our good old Laws and Customes as to think no losse or ruine so great but may be recompensed by what they offer instead of it It will not be amisse to examine by the rule of right reason and what hath happened formerly and what is like to come by such proposals if they should be granted and how far those kind of new ways may amount to a happinesse of the Nation CHAP. VII That the erecting of so many new Courts as are proposed or the cutting and translating the great Courts at Westminster into so many little Jurisdictions will besides the before-mentioned Inconveniences not only be very prejudicial to the State but to the people THe cantoning or cutting of the Courts at Westminster Hall into so many County Courts or parts as some have proposed will if there should be but a standing Court in every County except London and Middlesex make almost as many great Courts in England and Wales besides those carkases of Courts
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
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
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