Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	according_a	know_v	law_n	1,535	5	4.6917	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A79999	Englands compleat law-judge, and lawyer. Declared in these ensuing heads; 1. Whether that law and those judges and practizers owned time out of minde by the supreme authority of the nation, be not the laws, judges, and lawyers of this Common-wealth, &c. 2. Whether courts so constituted are not records of the nation. 3. Whether each court hath not power, as such, to enforce its owne decrees. 4. That the decrees and usages of such a court are as valid as of any court. 5. Whether it be not against reason, that when divers courts in the same nation act by divers lawes, one of the courts should have power to prohibit the other to proceed to bring the matters in difference before it self. 6. Concerning judges of appeale.	Cock, Charles George.; Paget, Thomas, d. 1660.	1655 (1655)	Wing C4788; Thomason E860_3; ESTC R206642	21,704	41

ENGLANDS COMPLEAT Law-Judge AND LAWYER Declared in these ensuing Heads 1. Whether that Law and those Judges and practizers owned time out of minde by the Supreme Authority of the Nation be not the Laws Judges and Lawyers of this Common-wealth c. 2. Whether Courts so constituted are not Records of the Nation 3. Whether each Court hath not power as such to enforce its owne Decrees 4. That the Decrees and usages of such a Court are as valid as of any Court 5. Whether it be not against Reason that when divers Courts in the same Nation act by divers Lawes one of the Courts should have power to prohibit the other to proceed to bring the matters in difference before it self 6. Concerning Judges of Appeale LONDON Printed for Edmund Paxton at Pauls-chaine over against the Castle-Taverne 1656. TO HIS HIGHNESSE THE Lord Protector Of ENGLAND c. Great Sir IT is not any interest or respect to the Professor of the Civil Law nor envie at or disobligement from the Practizer of the Municipal Law of this Nation puts me upon this work but a pure zeal to and love of Justice or my own heart deceives me and in sincerity I have searched it as narrowly as I could You sit at Sterne and have laid hand to the Helme where you find a good and just rule I hope you will not alter and where you finde none or a broken weake defective one I see your desires are strong for Reformation but you will see that while you set one thing right you bring not disorder upon all Sir 't is your wisdome for as in the natural so in the politick body each great alteration is dangerours Constitutions must be altered slowly the fowler the body the more need of preparatives before the Purgation comes yea it is fit the patient in some measure have some intimation of his condition that he may more willingly receive his cure that imagination obstruct not due operation and that his Physitian gaine his affection lest prejudice operate more for destruction then the medicine for preservation These things are as natural to Societies as persons to the Politick as naturall body I have here discovered what of necessity requires a remedy and that speedily before a disease hath brought the body low it will endure heats and colds and many distempers alter little or nothing visibly but the dregs remaine and bring the disease by degrees to a height and then each slight offence is taken and strong distempers appeare to danger and ruine I feare the Politick State labours under a Critical signe the disease is growne so strong it hath such a height that the utmost skill of a wise Physitian yea guided and seconded by the all wise hand must intervene for Restauration or danger is threatened This thing now presented to you was an evident symptome what time would and must work in the same For in this Nation of England you have variety of Jurisdictions every of which have long bandied against each other for although the Courts of Law and Equity were at variance yet both seemed to joyne against the Civilian Princes saw it and it may be thought it a piece of policie to keep them at a distance but it 's a certaine rule the building is weak that is raised upon a loose foundation There are as demonstrative rules in Government as in Architecture and the intention of Societies Colledes Fraternities or what you will were allowed for unity sake and that not onely in and with the Society it self but each with other mutually for all make up but as members the body of the Common-wealth the Head rules all I shall not touch upon the varieties of Government all which represent the Head but must say the Heads function and duty is to see each member act in his due place and not suffer them to quarrel each with other to the general prejudice I regard not who be chief Chancelour nor Chief-Justice I seek not Eminencie but a due of honour or reward for the Judges of Admiralty or Probates I would not an enlarging of either jurisdiction to the prejudice of another but though that part of the Civil Law here used be not onely fitted to the Meridian of England but all Europe allowes the justice and reason of it yet let it be the Law of England and so owned by all English Judges And though the Chancery be not a Court of Law in regard of the Courts of Upper-Bench and Common-Pleas yet while I conceive upon the due Rule it ought in a legal way to allow nothing but where the Law would have that is not to go against Law but to supply where extremity was ruinous moderating the severity and rigour of the letter-Law and indeed there was a necessity of it in most cases while an issue upon a point onely was allowed it is to be accounted the law of England and let all the Acts of all those Courts be allowed in the Courts of Law as with each other The evil is apparent there is a case proper to equity state it and go to a Lawyer for his opinion in Law he takes Law onely for that called the Common-Law and puts a man upon suits to his overthrow for he knowes the Chancery will give relief against it I know many Lawyers do not so but they know many do I would not be tedious there is happily greater necessity of this then is conceived and this may content more then other things have disrelished The men to deale with in this case are wise and prudent and no doubt will if consulted agree to reason I have onely with as much moderation as I could presented this to consideration I have cleared my owne conscience and remaine Your Highnesse humble Servant Theophilus Philopatros TO THE RIGHT HONORABLE THE JUDGES OF THE LAWES OF England Right Honorable THough the Government of a Cōmon-wealth be not a Head or quarter of the Municipal Law of Law and so the practical Lawyer little needing to study or know that point yet most Students are from their ingenuous Education something seene in universall learning and from that not ignorant of Politicks That providence which ordained you my Lords to so high trusts gave you souls large and of capacity for the places You must know both from your reading and experience how to supply whatever might be defective in the most accurate settlement of a Common-wealth and how to governe according to every establishment and know what is to be done to proportionate the whole in every part should necessity enforce any alteration You are not unworthy men whose ambition have made them catch at worthy places and satisfie their consciences with a deliberative Vote though they know no rule of Law you are not onely knowers but lovers of Wisdome and Justice is a right witnesse otherwise a foole might going according to his light a childe or woman give as good a judgement as the ablest Philosopher Judgement is a deep fountaine

whose bottome each Bucket cannot arrive at It 's given to them that seeke after it that is by due search and enquire into each particular action and qualification of himselfe and others for he must read himselfe well who will know others aright You are Sages men quick and ready from long experience to determine not onely in the deeper questions and resolutions of the Law but also in the nice quaint subtilties of wit and practice I justly apprehend my inability to bring forth ought worthy your view but I seeke not applause nor acceptance to or for my person but my aime desire intention and prayers are for the publike for the good of the Common-wealth that each person in his place and each place to the person might be so setled constituted and fitted that the establishing of part might but make the whole more glorious and lasting It is an age of Interest great never greater your places are high and your patterne will be exemplary If ought here convince you that any thing may be done for the bettering of the Common-wealth be active in it delay not it 's a season of Judgement as well as Interests and it s truly noted neither have Mercies allured nor Judgements terrified hitherto You know not onely the secrets of Government but of Judgement you may thence conclude how much more wisely God deales in his both governing and judging the world It s a truth in Politicks to the State as in reason to the person Laws must be as well fitted to the times and offences as cloathes or shooes to the body or feet Was it not a Tyranny to cut the stranger shorter that lay in the Tyrants bed to the dimension of that as well as to stretch him that was too short to the length There must be a jealousie lest the Lawes be altered and the principles of property and priviledges lost by degrees but let it be so that we lose not more by the contest then we can gaine by having them You are to declare the Law but Evidence that Law salutary to the people or you ruine us You say better an ill Law then none And I say better Judges to execute necessary power though it be a question whether legally they have that power so it were fit they should have it then to let people do injustices for want of a Law or power to enforce that Law I leave the thing with you the Lord set it home to your hearts that what is just may be done justly and the cry of the oppressed may cease In prosecution of which I shall ever begge the assistance of heaven upon you and your endeavours and labour to approve my selfe a friend to Englands Law my birth-right and Right Honourable Your servant Theophilus Philopatros TO THE ENGLISH READER I Have little to say to thee each man is not fit to judge of all things my scope is but to shew thee a truth which hath beene much endeavoured to be kept from thy knowledge Namely that all the Administrations of Justice in England by what Law soever called as Common Civil or Equitable all make up but Englands Law and you have an equal Birth-right to all I agree they may be altered according to the Rule of the Nation And then I say that alteration is the Law So that I would not alter the Law nor oust the Common-Law nor introduce the vaste body of the Civil Law no I am to have Lawes plaine and easie but Judges deep and searching I desire certainty in Courts and ascertaining the Jurisdiction of the Courts and because difference may be while some things may equally participate of both Lawes so it may as to some part belong to one Court and other part fit to be tried in another upon the rigid letter of the Law It may belong to a Common-law-Court and yet the just decision of the Case from the nature of the Contract necessarily require the Rule of the Civil-Law That there may be a way to settle this controversie before great expence be and then to have it removed And that as the case now stands upon so visible an Interest as hath nothing of Reason to warrant it is this intended Boggle not then at this nor at the Author who professes to love God and his Countrey and would not then do ought tending to subvert Englands Law or take away the least due priviledge of an English man Therefore that you may duly endeavour it praying for it and justly submitting to it when settled is the sole and utmost end with Gods glory of Theophilus Philopatros ENGLANDS COMPLEAT Law-Judge AND LAWYER ENGLAND hath alwayes without question had Courts wherein the principal part of the Law administred was not according to any particular part of the owned Common-Law of the Nation but according to the ever used and accustomed Law of those Courts set up for administrating Justice to the people of the Nation in special Causes Concerning two parts whereof I principally intend this discourse The first doth generally concerne the people of this Nation The other concerns equally any other Nation in the Universe That which concernes the people of this Nation is the Court now commonly called for Probate of Wills and granting Administrations The other which concernes all people or may concerne them is the Court of Admiralty so called being a Court properly not onely accommodated with Lawes and Rules for Trade and Commerce by Sea And with Nations and people using Lawes diverse from the Generality called Municipall Law of England yet generally received in the Judicatories of most of the European Nations All which with England being originally Limbs of the vast body of the Romane Empire have universally retained the Lawes or the generality of the Lawes of the old Empire but yet have their Municipalia still though their procedures be in them generally by the Rules of the Civill Law so called they admitting no diversity of practizers in their Lawes as with us but both the general Law of the Empire with them received and the Lawes of their particular Princes Diets Parliaments and Assemblies are equally owned the Law of that Land Nation or people and the Doctors of the Lawes as such pleads both as occasion requires without controversie of Courts or practizers while here many controversies have arisen to the obstructing of Justice and infinite dammage vexation and charge of the people and to the dishonour of the Nation at home and abroad The controversie I shall endeavour to render as truly and perspicuously yet as briefly as may be and therefore shall handle it under severall Heads As first 1. Whether that part of the Civil-Law which hath beene time out of minde received used and allowed in publike Judicatories authorized by the unquestionable Supreme power of the Nation in Parliament be not to be received as and is part of the Law of the Land and consequently the Judges of those Courts Judges c. and practizers practize of c. 2.

Whether a Court so constituted and authorized cannot be and is not a Court of Record of this Nation 3. Whether it be not naturally and properly incident to every Court to have power to enforce its owne Decrees in what is properly cognizable by it 4. Whether the Usages Rules and stile of a Court in England of as long continuance as any court so called of Common-Law hath not as much power vertue and energy as in a Court that properly Judges of Vsages and Customes and other Lawes esteemed more proper to the Nation 5. Whether in a Nation where divers Courts are admitted proceeding judicially and definitely according to diverse original Lawes it can stand with reason that one of these Courts should have power to prohibit the other to bring any matter before it selfe or decide to what Court the Cognizance belongs 6. Concerning Judges of Appeales As to the first I conceive there is but three wayes whereby Lawes have properly their birth The first is constitution by the lawful wonted or authorized power of a Nation Countrey or the like and promulgation by the same accordingly which is certainly the purest settlement of a Law for the Law so settled and promulgated is ever the same and a living speaking Record of the Will of the Law-maker not properly alterable but by the like power The second way of ushering a law into the world yet universally accepted is Custome and Usage which after once generally received and publikely knowne hath the force of a Law and justly for experience hath manifested both its fitnesse and acceptation yet have ever beene and it s of necessity that the Magistrate should when time hath given them the strength of Lawes require a publike ascertaining of them to prevent the evils evident in England from the proofe of them by ignorant and interested Testimony The other way as it may be called is Allowance and usage of a settled certaine constituted Law in a Countrey though the Lawes were not made by the present legal authority of the same or by a strange Prince of another Countrey yet there used and not disallowed but rather by owning the Court and not disowning the Law allowed and confirmed which certainly hath the vertue of Usage and the certainty of constitution in it Bring then either the Court of Probats or the Admiralty to their Trial and I conceive the Law in them used and administred will have either from Constitution or Usage or both as great strength as any Law in England to be radically vested in the people as their birth-right As to those Cases there Cognizable the Usage is I conceive without dispute but you will say will you bring in the whole Civil-Law or which part do you intend Those Courts use the whole body of the Civil Law and then you will subvert the Law of England I shall answer with a caution for I suppose most wise men when they see the objection will see the weaknesse of it for it concludes a general from a particular But I say first as to the Court of Probates the matters there cognizable are specially Probates of Wills and from that the Admission I say Admission or Allowance of Executors or disallowance for they cannot grant it to fooles and ideots nor should to persons Outlawed convicted of great crimes or notoriously debaucht that the estate being spent there may be a suit at Common Law for wasting of it and the Legatees wholly defrauded of their right And they have or are to have who are Judges of Wills cognizance of the Testimony or Witnesses so as to reject or receive according to the Rules of the Law in that Court used And so farre the whole Civil Law as to those Heads ought I say as used to be received So in the proofe of Nuncupative Wills or Wills by word of mouth I intend not to the number of witnesses for England hath still allowed its people the favour of a Military Testament requiring but two witnesses but to be Judges of the validity of their Testimony So in admitting Guardians to Minors And also in granting Administrations and revoking them upon grounds laid downe for revoking Administrations by the Civil Law still observing the Rule of the Statute-Law of the Nation in their secondary or after grant as in their original I say the same of Legacies being but a member and derivative from Wills and that Law best fitted with Rules for settling the same and it s most agreeable to reason that that Court which hath the principal and is to Judge of the whole Will should best judge of a Legacie being but a part of the same whole and not first judge the whole in one Court and after send part of it to be judged in another But here it will be objected that the Statute gives the Ordinary onely power to grant Administration to the next of kinne and gives no power of revoking I answer each eye may see the captiousnesse of the Objection Did the Parliament that made that Law think we or can we suppose it intended only a snare to the people ever these dark times of Religion had more light of morality for it was never then questioned though the Ordinary and his Judges then used a greater latitude of power then the present Judges will do But le ts enquire what was the end of the Law and to see that le ts consider first what was the reason of making that Law I suppose it 's manifest that many Ordinaries there being no expresse penalty having misused the power to them intrusted or by them used in granting Administrations to strangers to the defrauding the next and nighest kindred to prevent that evil and do the kindred right that Law was made only or chiefly to limit the Ordinary to the person or persons equal in degree according to Rules of Law and according to the same capable to restrain such exorbitants under a penalty and not alter the Rule which was just and the same though abused before that Law was made And therefore I conceive it clear and not to be denied whatever judgements and reasons I have seen to the contrary that notwithstanding that Act for granting Administration to the next of kinne the Judges may not only in case of a sister and brother grant to the sister but in case they should both be legally unfit who are in next degree grant it to the more remote who then are as next because of the legal exception The Law according to right rule and construction implying all those things which by necessary consequence are required to a just Law and may also upon the same ground take bond for distribution not according to the will of the Judges that being purely arbitrary may how well done soever be very evill in effect but according to the Rule of Law which doth upon a pure and sound Rule as the Law then stood divide and it's fit should be observed I intend not to divide to so called pious uses but

amongst the next of kinne by rule of Law capable The Reasons are this was used the Law hath prescribed no other remedy the usage was absolutely certaine and allowed the thing was just and the Grounds and Reasons be still the same therefore cannot by implication be annulled nor is the Judges by the Statutes limitting him to what party he shall grant the Administration bounded in any other particular power before had used and so enjoyed as to have the vertue of a Law If we come to state a Case or two the Justice and Reason of the thing will most evidently appeare A man hath one hundred one thousand or ten thousand pounds a yeare and a personal estate of one thousand ten thousand or one hundred thousand pounds and hath two three foure five or six children sonnes and daughters be he Lord Knight Esquire Gentleman or Burgesse now in England all is one here present riches controlls and carries all money makes the man The land unlesse specially settled by the Ancestor or Ancestors which we are not to look here at but at the course of Law according to the old legal Rule for our foundations are all cleane lost altered or unknowne that the Prince might be the better served in his warre went and goes wholly and undivided to the eldest sonne well be it so though as I now apprehend the reason of the Law ceasing the Law should be fitted according to the present condition of the Common-wealth For as a City or Common-wealth consists not in the walls and structures but in the people so the reason of the Law is the life of it not the letter which the wise Judges well know who can when and where they please cast the model of a Judgement according to the present interest of the Common-wealth clean diverse if not quite contrary to the first Institution and that in constituted or latter Lawes upon no other ground or rule visible but that but shall then the personal estate go to the eldest also and shall all the other children be beggars or set to work how highly soever educated as if impotent maintained by the Parish go by degrees and so to the disposition by the letter of the Law the eldest ought to have it for he is properly the next of kinne the wife being not within the letter of the Law for indeed literally and legally she is of no kinne being part of himselfe while living and is now his relict or widow which hath no legal degree of kinne in it but is in by the Statute So the reason the eldest is naturally the Prince of the family and is though not nearer yet in the same degree the more worthy and what the Law gives him otherwise ought not to barre him of any right if then he be waved it s not by the letter but the equity and where equity comes in and prudence rules beyond the letter how comes the Judge of constituted Law to put his Oare into this Boate If because the eldest hath enough already the same reason runnes strong for a distribution to give each one a competencie but admit the Ancestor hath no land but a personal estate great or small the Law of 31. E. 3. bounded the Ordinary as aforesaid sufficiently but under no expresse penalty he might not appoint whom he pleased Administrator but was regularly then tied to the next of kin and they were made accomptable to the Ordinary I cannot think devotion had in these times swallowed up charity or charity natural respect engagements or common prudence I should erre much seeing not only the generall Law which treats of distribution made Rules for who should be capable to come in to claime Administration and to require part of the estate but also to settle the Rule of and for distributions and from that even the constitutions Ecclesiastick of England settled the same I see also they take care for payment of debts so that I must conclude the Law then truely construed consisted in a pious and discreet careing for the equal and right wise disposing of the estate left by the Law as if the party himself had settled it But for to prevent mistakes and reduce the Law in certaine to its first and Primitive Rule The Law of 21. H. 8. gives the ordinary power to grant Administration to the Widdow or to one or more claiming as next of kin in equal degree or when more be in equall degree and one claime according to his discretion Now that Law hath this clause taking surety for the true Administration of the Goods and Chattels c. which he or they shall be Authorized to Administer which clause was surely to some purpose and to what could it be but that the Ordinary might still have security Yea were it from Wife or Childe that the Administration of the Goods might be according to the Rule of Law and the equall course of distributing to Wife Children and Kindred according to the Rule of Law was still continued Now to the Suretiship I conceive it clear that the Bond taken faithfully to Administer proving questionable and dubious from clashing of Courts The Common Law-courts seeking in the declining of the power of the Episcopall party to intermeddle and umpire in and over the Ecclesiastick Jurisdictions What was before wrapped up in generall words was intended to be reduced to a more speciall Declaration at least in that particular most strukt at But oh the Common Lawyer beats his Buckler to his head telling him the Ordinary hath no power to take such a special Bond for he hath no power but onely to take Security truely to Administer And though these questions were from the prudence of former Judges plainly convinced of the Justice and necessity of the thing mostly waved some persons of late times not onely questioned these securities but have so varied concerning the power of the Judges of Wills and Testaments The ancient Jurisdiction of the Ordinary failing by the taking away Ordinaries and by them of that Ordinary legall coersion in those Jurisdictions used have endeavoured obliquely and by the by pretending those Bonds suable no where but at Common Law to obstruct and subvert the whole businesses by delivering opinions that those Bonds were not valid in Law and so consequently enervate the distribution by rendring the security fruitlesse Whereas the Statute require such Bond to be taken and consequently intended if broken to be sued I shall exemplifie by the weakness of the foundation by instance A man comes to the Court craves Administration his Brothers and Sisters or next Kin within Rules of distribution crave it also the Judges grant it to one to avoid the known covetuousness suits wasting of the estate and perpetual enmities arising from joynt Administrators each one getting all they can and then to suite no due account nor ought fit for men and we all know that the differences of Allies and neer relations are the sharpest and hottest taking Bond to stand

enough to clear up what the just and due intendment of Law ought to be if Courts and Judges be for Justice sake and for the peoples benefit and quiet and not the contrary and if so I conceive it will follow from the premises that the Subject and people of England have a right yea a birthright in that part of the so called Civil Law used in England equally with and in any part of the so called Common Law the whole making up but the Laws of the Nation and people though by words according to the custome or mode of speech the same be variously called and distinguished and consequently the Judges of those Courts are Judges of England and of the Laws of England and ought to have respect and esteem accordingly and indeed deserve it for no man of ingenuity but will acknowledge though the meanest Barrister at Law almost will not regard them their study is full of high and deep knowledg I knowingly put those extremities together renders the Nation more glorious abroad and is so more universally beneficial Indeed heretofore the Judges being but the Admirals Deputies or by the Common Lawyer so esteemed the great regards due to them and the Prerogative Judges who then were in like manner but the Ordinaries Substitutes were fore-clozed But now the Prince wisely giving immediate power from himself layes a sure foundation of regard if meet incouragements follow From this it will be as clear that the Doctors and Practizers of the Civil Law have their due rights to be heard not only in the Courts of Civil Law so called but also in case of any question arising in any Court of Common Law concerning any matter originally cognizable or which hath had any proceeding in any of the Courts of England what the Rule of the Civil Law so called is practised and followed and not only to be consulted with which the antient Sages of the Law as occasion offered practised but to be admitted to plead in the Courts of Common Law in such cases as the Serjeants and Barristers at Common Law do and ought to do both in the Admiralty and Court of Probates in case a question upon any Statute or other part of the Common Law of England comes in question and then much more where a question comes whether the Cognizance of the case belongs to this or that Court and this is surely reasonable upon the score of general and universal reason whatever it may be upon the score of interest or particular benefit 2. Head I now proceed to the second Head proposed viz. Whether Courts whose special known Origination stands principally upon usage and allowance of the Supreme power though using a distinct Law from the general received Law of the Nation may not be and are not Courts of Record of and in that Nation and so to be allowed by the Courts of Common Law Were it now the time when Abbots Bishops Canonists and Civilians were the chief if not the only Judges of this Nation and sate upon the Benches of Common Law at Westminster it would be labour in vain to make this a question but I shall wave those suggestions that I may not irritate if possible and only discusse the case that the grounds of things may so appear that some judgement and conclusion may be raised it s certainly a difficult matter from what I can finde amid all the Authors of the Common Law to come to a certain either definition or description of this great question What properly constitutes a Court of Record and what are the proper and peculiar rights powers and priviledges of such a Court for their learning may be much but it is confused and in a Chaos for the generality and loth they are to have it model'd for common and general use I shall not attempt to discover the reasons but only essay to clear up what I find of this one mark I find of a Court of Record is That it consists by matter of Record or Patent or Grant of the Prince but I conceive that is not demonstrative because that each Court so constituted is not or will be allowed of Record Another note I finde to distinguish by is where a Writ of Error lyes upon any Judgement given in an inferiour Court it 's a token the inferiour Court is a Court of Record but if a Writ of false Judgement then a base Court So that the difference is not between Courts of Record and inferiour Courts but Courts of Record and base Courts then the conclusion must be all Courts not base are of Record but that will not be granted by the common Lawyer for antient Demesne is not a base Court if base be taken properly for a Court where base tenure is but if from the contrary you come to conclude all Courts not of Record are base it s evidently false if you take their own Rules for whatever the civil Law Courts might be esteemed from the learning and Pleaders specially used and imployed in those Courts sure the Court of Chancery which they call in derision a Paper Court so that of Requests and others are not base take base from the subject matter there handled or inferiority of power and that as to the value or power to inforce obedience and the like These Courts though partly using Rules of common partly of civil Law yet the Practiser being wholly according to the common Law constitution are not so oppugned as those using wholly or mostly the rule and practise of the civil Law but will not be allowed of Record There are some other such notes whereby you may if you can pick out what is a Court of Record but it s the safest way to conclude in this case as when the question is What are the Original Languages and how many they are Those and so many as the antient learned Authors make them and better set down by that then dispute so they are those Courts and so many as the learned and Authorized in those Laws will have them for I find no certainty and am the more in doubt when I seriously consider the matter from what I finde in a learned Author who seems to distinguish between a Court of common Law and a Court of Record I know well he intends a Court that was by custome originally not by Patent but I can conclude what is Record is not of common Law and it must be a good conclusion or the other will prove vain to be a sure description I shall not say ought of a Patent in words expressing it to be a Court of Record for the Origination is plain but what the distinct powers are is never a whit thereby the more perspicuous and manifest I am not so ignorant but I can tell there may be a reduction of things to some certainty both what makes a Court of Record and also its powers c. by that part of the Law of England called Common from the Judgements and Cases in the

Books of the same or rather by the powers the several Courts have used in themselves and in and over each other and against others and the vertue and power they give to the Acts of their Courts regularly Entred and Recorded and the disallowance of the Acts of other Courts neglecting them and calling them yea though under Seal of the Court and attested by a Sworn Officer but as papers scrowls or lesse Now to let all other things passe at this present under silence I shall only offer to consideration whether it be not essential to every Court and of necessity to evidence the reason and Justice of the constitution of the same that the judicial Acts of each Court not only be drawn in writing and Registred but that the same be Records and so allowed in all Courts in that Nation next that each Court hath power to inforce its own Decrees within the bounds where its power reaches to take Cognizance of any cause judicially As to the first see the end of a Court it s agreed universally to do Justice and give forth Judgement to the people now this is either by Declaration Plea and Judgement in writing or without in England by the general Law there is none but in writing nor indeed where Judgements are subitane or summary and prest as in Fairs Markets c. upon strict reason they ought to be in writing though short and not held to form now if reduced into writing why not Record and to prove it self and to manifest and testifie the nature of the case and be evidence in case of any suit for the same in any other Court Is not the tryal there otherwise a deceit it might not be so grievous when time was but now all is brought to the Courts at Westminster it is sound of very evil consequence I must agree Court-Baron Hundred Towne and County Courts are generally so ill provided of Judges they have nothing worthy the name of a Court of Justice but if you think fit to continue them Courts for the people to receive Law thence let their judgements be ascertained and also Records But the question here is not concerning those inferiour Jurisdictions for I humbly conceive all the base Courts in England are upon true rule gone and extinguished but concerning the Court of Probates which for ought I can finde may have the cognizance of the proofe of all Wills and that both to reall as personall estate rather then the Chancery and examine Witnesses in perpetuall memory for the inconveniences to the people are great for the personall estate prove the Will in the Court of Probates for the reall in Chancery by Witnesses Yet the Court of Probates hath alwayes used proofe by Witnesses upon oath Then out comes the Originall Will from the Office and though there it might rest as a Record upon Record for the equall benefit of all concerned which it very oft proves yet by the Common Law it comes to one parties hand principally it may be concerned yet with many others and upon a Suit he will not produce it the Copy taken by the Officer on oath must not be a Record and unlesse the Judge at Common Law will in equity and for Justice sake admit it he is not bound and so the Suit is lost the truth indeed appeares but it 's not evidence in this Judges opinion and so the Law is as the Judge is minded and all this in England under the same power and from clashing of Courts and Judges of the same Prince and people Thus by the end and the inconveniences it 's cleare each Court Administring Justice ought in the same Nation to be so farre a Court of Record that the Acts of the same in the publique Registry ascertained should be of themselves if produced proofes if by true Copy sworne to be accepted as proof And I say it 's not materiall whether the Registry be in Parchment or Paper happily the first being now known more subject to alterations without discovery let as much of certainty be as you please but if you find incertainty in a Court judicial remedy the incertainty for it 's of necessity to have all such acts Records Now if this be so and so it ought in the Court of Probates then much more in the Admiralty which is a Court hath as great a latitude of power in the Cognizance of cases of Life Maim Wounding Imprisonment Damage and Losse to the greatest value as any Court in England yet its acts with the Judges of England are not Records and which is the wonder the Judges of all Forraign Princes of Europe will allow them judicially in proofe if under Seale of the Court or judicially attested but the Judges of England will not What is the reason because for the benefit of the Nation in speciall causes they use a Law allowed and practised by other Nations No that is not the thing but practised by Doctors and not Barristers and Serjeants which these Judges were and how the interest of Societies in education runs and hath its work even to deprave Judgement and to maintaine things evidently irrationall needs no proofe I professe sincerely I have impartially weighed things and can finde no ground in reason for it and can only settle it upon the interest of education private benefit to them of like study c. 3. Head I will not inlarge upon that but come to the other part of this Question which is the third Head or Proposition Whether it be not naturally and properly incident to every Court to have power to inforce its own Decrees The question is here concerning the coersive power of a Court there is no Court in England nor in any place but it had a certainty of power either against body or goods or both to inforce those Judgements it gave in cases there cognizable Indeed its evident to reason it were not otherwise a Court of Justice for Justice is not giving sentence but seeing the thing done accordingly which is called justly execution Now this question is out of doores in the Admiralty it inforces as well as it can the power there is not denied but in the Court of Probates wholly though it hath the Ordinance of the Parliament and his Councel let 's see how it stood before while the Ordinary had it who being an Ecclesiastique had in this case of Wills and Testaments and Administrations first power to excommunicate which if the party obeyed not was after fourty daies of common right assisted by the Civil Magistrate and of course there issued a Writ to the Sheriff to imprison the party till he obeyed which amounted to as much as a Capias ad satisfac or Execution at common Law and the Excommunication it selfe was before a Writ for Attachment a kinde of Uthagary debarring him right of a lawful man in matters of greatest concernment and then pleadable even in the Court of common Law Now this power Judge and Court of proceedings being