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Certain considerations in order to a more speedy, cheap, and equall distribution of justice throughout the nation. Most humbly presented to the High Court of Parliament of the most hopeful common-wealth of England. By Henry Robinson.
Robinson, Henry, 1605?-1664?
Wing R1668; Thomason E616_2; ESTC R21129
Certain CONSIDERATIONS In order to a more speedy cheap and equall distribution of Justice throughout the NATION Most humbly presented to the High COURT of Parliament of the most hopeful Common-wealth of ENGLAND By Henry Robinson London printed by Matthew Simmons next doore to the Golden Lyon in Aldersgate street 1651. To the High Court of Parliament of the most hopefull Common-wealth of England THE passing of those long expected Resolves of this High Court for the Englishing both of our Lawes and Proceedings in all Courts of Justice for abrogating the so call'd Court-hand which to most People did nothing differ from exorcisticall Characters save that the former was truly mischievous to them the latter for the most part but imaginary For nullifying superfluous Offices retrenching unnecessary Fees for the expediting of Causes and pursuing certaine directions concerning Juries hath emboldned me to present unto your Wisdom these few considerations hereunto annexed for which and what else I have transgressed in the like kind I shall only vse this short Apologie That as I have to some been known to cast in my little mite concerning many if not most matters of publick debate not so much out of confidence of my own strength as sincerity of heart and for provoking others of better abilities to improve them so in this towards the Reformation of our Lawes and Law-proceedings which if not speedily brought about may like enough take root again and settle firmer upon their old corrupt foundation which must necessarily contract such farther rottenness festering as wil at first infect afterwards too soon make void and annihilate all those Glorious Liberties and Discoveries which wee have attained to with the charge of so much Blood and Treasure for redeeming them out of the jaws of Superstition Tyranny may You then but be prevailed upon speedily to secure what We have so dearly paid for We must infallibly back again into our wonted bondage which on such as have had their eyes opened would fall more grievous unlesse the whole Mysterie of the Judiciary faculty and of all those that relate unto it be fully discovered and set at rights I beseech You consider They are an Active generation so that if well regulated the Nation may be as happy in them as otherwise We must be again more miserable May You then please to let it be enquired into Whether the Multiplicity of Courts of Justice do not caus a more mischievous confusion in the World than the Babilonian of Languages That of Babel doth only estrang Nations to one another but this variety of Courts of Justice in any Land or Nation perplexes and confounds the People thereof among themselves The proceedings in them are so various as that it is above any one mans ability and strength to be experienced in more than one of them So many severall Courts so many severall hard Mysteries or Trades above one whereof no man though of the ablest parts can be well skill'd in or practiced And from henc proceeds it in part that Law-suits becom both more lasting and chargeable Particularly to what purpose served the Kings Prerogative Court of Exchequer one of the most eminent badges of Conquest and Tyranny Surely all Courts should be the Common-wealths in generall and every mans in particular Justice should not know any distinction of persons but be still one and the same in all Courts alike whether as touching the letter of the Law or Equity But for sooth they were all called the Kings Courts alike And indeed we had little but what was our Kings Wee had nothing of our own so gracious were they and so miserable have we been But our Kings boar sway enough in all other Courts at Westminster they needed not have had a peculiar Court of their own to doe Injustice Besides Our Lawes of themselves are so numerous and intricate as that it is not possible to know them all much lesse keep them in memory or avoyd the being entangled by them and injured by Law Nay I am afraid it may be found that never such Jugling if not very cheating was consistent with the rules of any Faculty as of this I speak and is at present practiced in England How els comes it to passe that a man may dwell in Westminster-Hall and yet be sued unto an Outlary before he know of it How comes it els to pass that an Executor may be forced to pay as long as he hath Assetts and yet afterwards be forced to pay the same sums over again because hee could not keep himself from being forced to pay them away before In brief how comes it els to pass that a Debitor may keep his Creditor in prison untill he be compelled to give him a discharg or yeeld to whatsoever he desires I only wish that some honest publique spirited Lawyer who throughly understands the various Meanders Quirks and subtilties of this over-powring Faculty would anatomize and lay open unto the Nation how easily it is for the very best Lawes wee have to be evaded and frustrated and the whole formality and proceedings to be avoyded and deluded by legall fallacies and tricks I am confident our whole body of Lawes even in their originall constitution will be found to be so purely the Offspring of Oppression and Oppressors Creatures and in themselves so weak and fruitlesse as to the estating and continuing of a Nation in Peace plenty and Contentation that the Law or rather custome of the Turks is to be preferred before it where he that will give most shall be sure to have the right determined on his side only because the wronged party is quickly out of pain and in a short time knowes what he has to trust to But for our own Lawes which some notwithstanding prefer before all the world's because they never well understood their own much less those of other Countries though corrupt enough in most They are such a forraginous peece of Intricacies such a vanity to becom a Rule unto so famous a Nation such a Nose of wax lyable to be formed any way for the vexation of a People as that if the very memory thereof and the Formalities of their proceedings were quite extinct never to present themselves again unto our Imaginations and thereby the Nation forced to seek out both new Lawes and Forms wee could not happen upon so bad again Nay wee were likelier to light upon far better than any Nation enjoyes at present because well neer all Nations though some more some less lye under oppression and cannot procure to themselves such as they desire nor the equall administration of those they have I did not intend to have been so tedious therefore humbly crave leave to insert a word concerning our Statutes against Maintenance Champarty whereby the purchasing of Titles from persons not in possession have been so speciously prohibited as the only way to prevent disquieting vexing oppressing and finall disinheriting of the true Proprietors Surely We may
find the quite contrary effect to have ensued hereupon and poor People by force of these Statutes been necessitated to lose their titles because they might not gratifie such as would have been willing to furnish them with moneys to prosecute and recover their Rights What good effect have we seen at any time to poor People suing in forma pauperis If the highest vyer can protract sway Causes as they please against others of moderate though inferiour estates and friends unto themselves certainly no crums of relief much less of dispatch will be suffered to be cast away to Paupers May we but have speedy justice at home in our own Counties and large charges to such as shall be found unduly sued we need not prohibit poor People to sell or give away one halfe of their right for recovering of the other Men will look before they leap and consider well before they adventure upon bad titles or disturb any man in possession unless they see sufficient evidence to bear them out therein It would be a hundred fold better for the Nation even under these Laws we live at present so far forth to repeal those Statutes concerning Mayntenance Champarty and render all men in possession lyable to have their Titles questioned than to leave poor People remediles In regard such poor People thus oppressed are above a hundred for one who by such repeal would be in danger to be unduly molested But if the Reformation of the Lawes seem great and difficult and by so much longer before it can be brought about We may notwithstanding be happy in due time If it be but seriously begun to be set upon at present and in the Interim with less disadvantage patiently expect the compleating thereof If the County Register of Conveyances mentioned in the same dayes Resolves together with another Register of Bonds and Bills of debt with their Irrevocable assignablenesse to all intents and purposes whereof I have a modell not exceeding one sheet of paper nor requiring many hours debate ready to be produced whensoever this High Court shall be pleased to refer it unto a Committee to be proceeded on were forth-with established Both the said Registers carrying in themselves a capacity to abbreviat prevent the greatest part of all Law-suits and Cavils and the latter not only to multiply the stock of the Nation which at present is at so low an ebb would exceedingly facilitate and enlarg Trade and Navigation But lest I should be accounted unworthy or unadvised to intermeddle in this great affair which besides it 's being obnoxious to other objections might perhaps at first appearance be thought very dammageable unto the conscientious learned Judges and Counsellors In case this High Court in their deep Wisdom shall think of a Reformation whether according to this little modell in all humility propounded or any other which I wish might be of a hundred fold more advantage unto this Nation It is in Your power to constitute and assign such worthy Judges and Counsellors in every County throughout the Land with the very same stipends or greater than they enjoy at present Praemio paena floret Respublica It were better to be profuse in rewarding persons of desert in what kind soever than to be short therein And since the pittance is so smal which can any wayes befall me in this Common-wealth's prosperity I hope I shall be thought free from all self-Interests and only to have engaged my selfe in matters of this high Nature out of a Publique spiritedness and to make the best Improvement of my only talent how small soever to the best advantage of this Nation wherein Providence hath cast me There now remayns only this humble Motion That the High Court of Parliament if in their deep Wisdoms They see caus vouchsafe to refer the consideration of this little Paper unto the Committee mentioned in the said Resolves for whose happy proceedings thereupon or otherwise in pursuance of the said Resolves This Propounder and the whole Nation will be bound to pray c. Certaine considerations in order to a more speedy cheap and equall distribution of Justice throughout the Nation THERE is seldome any Writ served upon a man but the party that serves it makes one or more lyes or fals pretences to get an opportunity to serve it upon him who otherwise would very often avoid being served therewith and so obstruct the proceedings intended against him Whereas if the Writ or such like summons or Intimation be left at the house of the parties habitation such occasion of sinning would not only be taken away but the obstructions in the tryall of suits prevented It seemes to be not only against the law of God and Nature but even of common reason to ask a prisoner at the Barr whether he be guilty or not guilty 1. In respect that if he answer guilty he condemns or rather murthers himselfe as much if he were truly guilty as if he were innocent 2. If he be guilty and answers not guilty he tels a lye 3. Though he be guilty and answer not guilty and though he be innocent and answer not guilty yet they endeavour by all the meanes they can to find him guilty so that it serves to no purpose but either to tempt such as are guilty to tell a lye to save their lives or else to be accessary to their owne death by their owne confession which unlesse they will doe they proceed against them to make them guilty by Witnesses or other Evidânce In which respect whether were it not more Christian like to proceed against Offenders by way of Witnesses or other Evidence if there be any sufficient without asking the Prisoner whether he be guilty or not guilty Seven Objections against the tryall of Causes by a Jury of 12. men 1. THere is not a competent number of understanding and fit men to be had in the lesser Divisions of a County for tryall of all Causes upon all occasions 2. People are generally unwilling to be called upon for Jury-men whereby they neglect their owne affairs 3. Though they doe come to avoid the penalty they seldome take the course to be rightly qualified and fitted to judge of the matter in controversie 4. Most commonly one or two active nimble-pated men over-sway all the rest of the Jury and too often for the worst 5. Though never so many of them dissent in judgement from the rest they must notwithstandinding all concurr in the Verdict or be wearyed into it 6. If they give corrupt or erroneous Verdict there cannot justly be any penalty inflicted on them because they may pretend they did at first declare themselves unfit for such employment that they undertooke it not willingly but were compelled thereunto and when they saw there was no avoiding it they endeavoured to proceed therein according to the uprightness of their own consciences if they be thought to have done amisse it was but what they could not remedy and are
may the Plaintiff reply within the term prescribed and the Defendant rejoyn In case Witnesses be to be examined such time is to be allowed and no more then is necessary for the effecting it as also for producing Evidences from parts farther distant And all Witnesses may be examined whether upon Intergatories or otherwise by the Judg or his Clerk of the place where the said Witnesses reside to be transmitted unto the Court where the cause depends Which being done or such term as the Judg had assigned for such purpose expired without effect through negligence of the parties concerned therein after a day two or three wherein the Judg is to peruse the Processe and whole proceedings it is in the liberty of either party to notifie the other to appeare the second or third day according to the distance of the place and the Judges leysure at a convenient houre for arguing the whole businesse in contradictory before the Judg And if neither party desire it the Judg if hee be not fully informed may notifie them Ex officio or either of them singly for the same purpose to be fully satisfied in whatsoever he shall desire and for that end may likewise deliver his doubts or seruples in writing to either or both parties and require answer accordingly to be afterwards inserted with the rest of the proceedings in Court to remain upon Record And if any thing Materiall be alleadged and proved by this contradictory debate which did not before appear the Judg is to Order it to be put in Writing and Entred with the other proceedings notifying the parties thereof And in case one party refuse to appear before the Judg for thus arguing of the businesse in contradictory he is not afterwards to be admitted to produce any new evidence or proof but upon request of either of the parties in Writing which is to be notified to the other as aforesaid the Judg is to proceed and give judgment both for Principall Dammages and Charges according to what appears to be alleadged and proved and sudden execution to be granted at that very Instant against body and goods unlesse the party condemned being present or any body in his name sufficiently authorized thereunto appeal from such Judgment of the Division Court unto the Judges of the Shire-Town which it shall be lawful for him to do within 8. dayes next following and there to prosecute the same in manner hereafter specified And if the party condemned appeal before execution be granted then must he in whose favour the Judgment was desiring execution first put in sufficient security to stand to such farther judgment as the Court to which the appeal is made shall think good to passe to be entred with the rest of the proceedings otherwise not The Appeallant therefore is to Enter his appeal in writing to be kept with the other proceedings where the Judgment was given and that Judg or his Clerk is forth-with to give him a Copy thereof under his hand as also of the whole proceedings or of so much as is desired so soon as it can conveniently be made which the Appeallant is to transmit unto the Court of the Shire-Town where it is to be admitted upon the Appeallants putting in sufficient security unto the Court of the Shire-Town that he will effectually prosecute the said Appeal within eight dayes following and be lyable to such Charges penalty and otherwise as that Court shall condemn him in in case hee be found to have appealed unduely And it shal be likewise lawful for both parties to appeal from one and the same Judgment in such part thereof as they apprehend themselves agrieved and prosecute the same in such manner as aforesaid and the Shire-Court in such case obliged to observe the same Orders concerning Fines and Charges as aforesaid This being done and the appeal admitted notification thereof is to be made unto the party in whose favour the Judgment was graunted in the Hundred-Court who is to answer to this appeal in the Shire-Court and the whole proceedings and Processe to be framed as aforesaid in the Hundred-Court And if nothing more Materiall be alleadged and proved than what was before in the Hundred Court If the Judg of the Shire Court shall see good to confirm the said Judgment of the Hundred Court hee is likewise obliged to condemn the Appeallant in all manner of Charges and one sixth part more then the businesse in controversie amounted to by way of penalty to the use of him that had both Judgments in favour and execution forthwith to be had accordingly But if no new matter being alleadged and proved the Judg of the Shire Court shall see cause to reverse the Judgment of the Hundred Court in the whole or in part the Defendant in the Shire Court is not to be condemned in Charges disbursed since the Appeal to the said Court but the Judg of the Hundred Court for his unjust or erroneous Judgment is to be fined so much as the Charges of both parties in the Shire Court amounted to and so much more as the full Dammages of the Appeallant will any ways amount to with speedy execution as abovesaid And in case new matter be alleadged and proved for which cause the Judgment happens to be altered in part or in the whole than the Defendant is not to be condemned in Charges nor the Hundred Judge in any Fine so far as the new matter alleadged and proved was cause thereof And if the Judg or Judges of the Shire Court shall pass unjust or erroneous judgment such judgment shall notwithstanding be valid ultimate and binding in respect to the parties litigant and have sudden execution both against body and goods of the party condemned without putting in security as was before required And if either or both parties find themselves agrieved it shall be lawful for them or either of them to addres themselves unto the Parliament against such Judg or Judges of the Shire Court who hereby are made accomptable and lyable to be condemned in all manner of Dammages cost and charges such party or parties complaining against them shall have suffered through their unjust erroneous Judgment be put by their Office and suffer such other punishment as the Justice and wisdome of the Parliament think good to inflict upon them But if any person shall be found to have without cause Appealed from the Shire Court and unjustly to have accused the Judg or Judges thereof in Parliament then shall the said Judg or Judges be absolved And such person be lyable to be condemned by the Parliament in the same penalties which he required by way of demand to be inflicted on the said Judg or Judges and sudden execution to be granted to the use and benefit of the said Judg or Judges only together with their full Charges to be rated by authority of Parliament and all other Charges to be likewise rated by the respective Courts where Judgment was given for payment of them The
Judg or Judges of the Division or Shire Court are obliged hereby if either of the parties desire it to draw out the motives in brief which swayed them in giving such judgment to remaine upon Record together with the Processe and so soone as any suit is fully ended whether in the Hundred or Shire Court all papers and proceedings are to be made up by themselves and bound together with others orderly according to the date of the Judgment in as great a Volume as is well manageable with an Alphabet at the end thereof specifying the names both of the Plaintiffs and Defendants And in case the Judg or Judges of the Hundred or Shire Courts should dye whilst any unjust or erroneous Judgment rested depending upon appeale then the respective Heirs Executors or administrators of the said Judg or Judges shall become lyable unto all Penalties Fines which happen to be inflicted by reason of such unjust erroneous judgment whether by the Shire Court or Parliament Provided such Appeals were made to the Shire Court within the eight dayes afore specified and unto the Parliament then sitting if there were any or else unto the next Parliament ensuing such unjust and erroneous judgment And concerning all suits which shall be primarily Commenced in the Shire Court and brought thither by Appeal they are totally to be managed in all other respects and circumstances as was before prescribed concerning such causes as were commenced prosecuted and determined in the Hundred Courts And it is expresly hereby Enacted that no Judg or Judges Clerk shall take any other then the fees hereby allowed nor other moneyes or any manner of thing money-worth from any person whomsoever And that no person shall give or so much as offer to any Judg or Clerk greater fees then are hereby allowed nor money nor any thing money-worth upon penalty both to taker and giver of being condemned in twenty times the value unto the discoverer by the next Hundred Court or any other within the said Shire where the fact was done and before which the party shall be accused besides the forfeiture of Place or Office unto the Judg and Clerk so offending and the Giver or Taker not only to escape unpunished for the first time upon discovery of the other but also to enjoy the benefit as Discoverer And the said Judg or Judges and their Clerk shall take no other fees than these that follow viz. Whereby in one word is meant no other or larger fees than barely after the rate of so much a sheet as other men will be contented with to copy out in a fair hand-writing such Bills and Answers as Plaintiff Defendant or any other person shall desire copies of the said Judges or their Clerks being to receive such Salaries out of the Publique Treasury as may prove a large and full maintenance for themselves and Families FVRTHER CONSIDERATIONS COnsider who shall choose the Judges whether the Representative and the Councell of State in the Intervalls or the People of each Division May it not be best that the People choose them not lest they make choise of such as may be swayed with alliance of one kind or other and whether a Judg that were the greatest stranger to them might not prove best and such Judges moveable from one place to another every third or fifth yeare to prevent all engagements of alliance or acquaintance If the Representative or Councell of State in the Intervals choose whether is it best to have them fixed quam diu se bene gesserint or moveable of course every 3. or 5. yeare from one Division or Shire Court unto another to prevent the gaining of alliance to oversway them But if they should be quite cashiered at three or 5. years end or upon any other cause than misbehaviour of some kind or other they would then be disappointed of a livelihood and though they deserved never so well be more unhappy than men of any other Calling It being requisite that the Judges in their respective Residencies with the under Officers should attend the duties on every weeke day and all day long at seasonable hours It is necessary for them to have a competent and full maintenance allowed them to prevent all manner of Distractions and Temptations Querie Whether the Shire Court if found erroneous ought not to be repealed If no it may induce the party upon a weighty tryall to corrupt the Judg the rather And yet if the Judg impeach him for giving bribes he is likewise fineable more than the Judgment imported and the sooner a definitive Judgment may be had upon good grounds the better FINIS