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
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
which some are content to leave at Westminster to determine Appeals and other necessaries to that contrivement as there will be Counties the yearly allowance or Salarie of whose Judges if they should have but two hundred pound per Annum for every Judge according to the number of Five in every County Court of Fifty will amount to 50000 l. per Annum more charges than the Commonwealth is at already for Judges Salaries And when they shall be thus paid and furnished out will if Lawiers shall be so much excluded from being Judges as hath been proposed be as to Four in every Five of them meer Strangers to the Laws of the Land or know so little of them as not to be relyed upon for their Judgements For we cannot suppose that the eleven Judges in the Courts at Westminster Hall are intended to be any of them or can be at one and the same time at Westminster and in these new County Courts or serve or be enough to make one in every of these Fifty County Courts as some would contrive it to sit with these new County Judges who having as is to be feared not read much of men or books will have no ground or capacity for knowledge to grow in nor any thing of parts or learning to build up an ability withall but be willfull or obstinate in their ways or opinions for want of better understanding or domineering because they shall not be able to know when they do well or ill And if they should be honest which perhaps will not alwayes happen their want of knowledge of the Laws and the rules they should go by their not knowing how to understand what shall be said to them nor what answers to give their inability to expound the Law by other Laws or make a right construction of the words or meaning of Deeds or Parties or to distinguish and divide betwixt truth and falshood right and wrong reason and pretences of it colour or reality or how to find the difference betwixt the Cases or Evidences that shall be urged by the one side or the other or to state the matter of Fact or to sever the point or material part from the circumstances will make them as fruitfull in their oppression as in their errors and mistakes apt to be led or mislead by their fellow Judges that shall be Lawiers or which will be worse to be like wax taking the impression of every mans Seal that shall be last clapt upon them be directed by a Wife or Clerk or some other simple or knavish favourite that shall broak and trade in every cause that shall come before them and be sure to abuse it Trouble and delay the people with needlesse scruples and niceties by making Quaeries or doubts of that which to others would be common and easie and stumbling at every word that comes not up to their apprehensions give advantage to knaves and put men to seek indirect Courses or ways to ballance the Judges because they dare not trust them to do that which they ought to do hurt rather than help such as shall be innocent and oppressed or are not allowed Counsel to plead for them make them be ready to allow of all the reasons given by the Plaintiffs Counsel and as ready to approve of that which the Counsel for the Defendant shall urge against it and for want of knowledge to guide them in their Judgements to be incertain and instable making an order one day at the instigation of the Plaintiff and another the next day quite contrary to it at the request of the Defendant be like Feathers blown with every wind of Doctrine and like Bowls run only according to the Byas shall be put upon them one will like the Mole in the Fable think himself the most clear sighted of all his fellows another help to mislead himself and others by endeavouring to make men believe that which he speaks is from Christ Jesus when he never spake with him or knows how to expound his written word another will have a fancy of the Spirit or think himself guifted when he himself would not trust the most guifted Trades-man to settle a Daughters joynture or make his Conveyance when they shall have nothing of learning or Law to make use of but their own will weak apprehensions will make such kind of Justice as will be had from them more arbitrary than that of a Tyrant whose will and purpose of governing without Laws when he knows them cannot be so lasting and dangerous as the will of those men of ignorance which shall be only guided by the necessity of an invincible ignorance and may prove to be a greater oppression to the people than it those that shall be thus made to be corrupt or to do like unrighteous Judges had been knowingly wicked for that the one sort doth commit numberlesse errors by not knowing them and the other committs but a few because they dare not adventure to do it often Whereas the old constitutions and course of the Laws of England as ill as the proposers think of them knew how to serve the people better by making choice of such men for Judges as by Seven years study in an Innes of Court or Colledge of Law had come to the degree of Barresters And from thence after a great number of years practice and continuance of Study to be Readers of the Law to the Innes of Court whereof they were after that Serjeants at Law and after that for their eminency of parts and honesty to be Judges where by a continual Study observation and practice of the Law from their age of 16 or 17. until they came to be as it most commonly happens before they come to be Judges above Threescore years of age they became to be great Masters of reason and so fully experimented in the whole body of the Law and Customs of the Nation as by their knowledge therein and of the Civil and Cannon Laws which border upon them and so many Cases and experiments as had in all that time passed through the course of their Studies and practice as they were honourable in the gates of their people and appeared compleatly able to contradict or rectifie Hundreds of other Lawiers that moved or pleaded before them and not only to advise the Supreme Authority when they were called to it concerning the making or executing of Laws but to apply fit remedies to every mans action or grievance that came before them and had all their life after no other Trade or profession to divert or call off their thoughts from a continual Study of the Law and right administration of justice But if it shall be said that all that Catalogue of evills will be prevented by a carefull choice or election of such as shall be made Judges out of the best or most knowing of the people that will but little amend the matter when the Lawiers all but such as shall be chosen to make one
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
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