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
Reader with what is more largely declared by Crompton in his Iurisdictions of Courts Sir Henry Spelman in his Glossary and Sir Edward Cook in the fourth part of his Institutes and the known benefits which redound and come unto very many of the People by it for those that are restrained by it from their oppressions are not always well-pleased with it is the conscience of the Supreme Authority to qualifie the severitie of the Laws when they happen to be so in some particular cases without taking away those Laws or breaking them or opening a gap to Ten Thousand mens inconveniences to give relief to some one particular man which without those general remedies and applications of conscience could not otherwise be avoided And as to the Law or Latine part of it and granting out of Writes Remedial will appear to be a Court as antient as the Reason or Civilitie of the Nation from which all the other Courts at Westminster-Hall County-Courts Sheriffs-Turns Court-Leets and Baron and all other Courts inferiour may truly be said to have their beginning the Matrix or Womb of all our Fundamental Laws either before or since Magna Charta which had its birth and being from it A Court where the Genius loci and Salus populi like Nature in the Womb of the Creation resides to give out its ordinary administrations of Justice for the good of the people and is for that purpose as the Soul to the Body in the direction and subsistence of it And the head to which all the Nerves and Sinews of it are joyned The repository in the absence of Parliaments of Justice in all cases where the helps of Parliaments were not necessary The a St. German de fundament Leg. Angliae cap. 7. Custom of the Nation The Officina Justitiae the place or work-house of Justice The original and Authority of all mens Assurances and Conveyances by Fines and Recoveries The Preserver of their Rights and Estates in them The primum mobile of all or most of our proceedings at Law The principal Secretary Amanuensis or Register of the Supreme Authority and which bears Record unto it The place whither the Petitions in Parliament that could not be dispatched were usually referred The Fountain and Chanel by which Justice Reason and Equity was upon any of the peoples necessities or complaints conveyed unto them and the Magazine store-house and dispensatory of all Writts remedial and in which all the peoples rights liberties and properties are so concentred and incorporate as they must either die or live with it and is as saith the last Parliament no longer ago than in April 1641. by a long usage and prescription grown to be as it were Lex Terrae b M. Hides Argument before the Lords in Parliament by Order of the House of Commons the dissolution wherof must of necessity produce very many mischiefs and inconveniences CHAP. II. The mischiefs and inconveniencies which will happen to the whole Frame and Body of the Laws and Iustice of the Nation by the dissolution of it FOr it will not only take away the equitable and English part of it consisting of Bils Answers and Decrees being a latter part of the business of it to examine Frauds Combinations Trusts Secret uses and the like and moderate or take away the rigor of Laws and rescue men out of the hands of such as would oppresse them by putting extremities upon them but the old and most antient part of it consisting of writs of Habeas corpus which no other Court can grant in a vacation For that the Chancery was always to be open to give remedies where it can to the people The Sealing and Inrolling of Letters Patents and Pardons Inrolling of Treaties and Leagues with Forein Princes and States Making or granting out Writs or Summons of Parliament Edicts Proclamations Charters Protections safe Conducts or for Elections of Knights of the Shire Burgesses Parliament men and Coroners Writs of moderata misericordia where any were too much amerced and of a reasonable part of goods for Widdows and Orphans Patents for Sheriffs Cercioraries to remove Records and false Judgements in inferior Courts Writs of Audita querela and Scire Facias Inrollments of Deeds betwixt partie and partie concerning their lands estates or purchases Taking recognisances and making out of extents upon Statutes and recognisances for payment of moneys or securing of Contracts Writs remedial or magisterial Commissions of appeal Oyer and Terminer for the Peace and many other things not here enumerated tending either to the well-being or conservation of Justice And in a word almost all the Justice of the Nation Parliaments being properly pro arduis and eminent occasions not determinable by any other Court. Make all the Decrees of Chancery and Injunctions granted against unconscionable acts or proceedings at Common Law when the said Court shall not have any being to protect or maintain them to be contemned and the parties put again to new vexations and troubles increase and encourage desperate swearings and perjuries in the Intervals betwixt the putting-down of the old Court and erecting of a new Enervate and put into a suspition all those very many judgements and decrees which have been founded upon the proceedings of it as is demonstrable enough in the Acts of the Courts of Star-Chamber Requests and High Commission Courts of Honour and Marches of Wales and the North upon their dissolution Take away the prescription and birth-right of all the free-born people of England to their Laws and customs And by dissolving the Chancery and so many Courts of Law and reasonable Customs as depend upon it Leaves them only some Statute and penal Laws to support their Proprieties For as many of them as they can get again must be by a new grant which those that have had right of Common or Copy-hold being of a far lesse concernment and lost it by pulling down an old Tenement and building up a new or taking a Lease of their Copy-hold estate may guess how prejudicial it may be in greater matters Obstruct and put to a stand all assurances contracts and bargains which are every minute going and passing amongst the people May disturb and prejudice many men in their estates and properties as well as Magistrates in their power and authority over them And put them on to jeaiousies Scruples and questionings of the present authority when they shall have none of the Customs of the old which they took to be reasonable left to goe along with them or perswade to an obedience to it And may be but as the throwing down at once of an old Park pale upon hopes that the Deer will be perswaded to tarry in upon an expectation of a new All the writs and Commissions made out and retornable in Chancery will be to seek for a validity as to their execution or retorn All the causes now depending enough to take up if they should lay aside the work of beginning and emergencie of new causes
of the five in every County who as to the Administration of Justice are the best and most knowing of the people shall be laid aside and forbid to be chosen for there must needs be a strange election when blind men shall be imployed to buy pictures or the Boys in every parish to choose their School-mamasters And if there could be any election without the guide or direction of a party or faction it will not be uneasie to guesse whether the Self conceited well known little wisdom of the multitude doth most commonly carry them or to believe that the knowledge of the Law in one of every 5 of those Countie Judges when 4 or the Major part of them shall be at liberty to be ignorant will as little help the businesse as Alexander the Copper-Smith and Demetrius the Silver Smith did Paul in the preaching of the Gospel or if it should happen that one of every five of those Judges of the County Courts being a Lawyer though it may by they may be such as have have only the name or Title of it or for want of practice have lost or are to seek what they have read of it should be so much relyed upon for their judgements as to be able to guide and govern the rest which are no Lawiers To what end should the Common-wealth be at the charge of such Ciphers or those Ciphers should only sit to receive or take such Figures as the Suitors or people shall add unto them The Lawier Judges if they chance to be as wise as Vlysses will be but set to plow with such kind of Cattle as he did and therefore it was not unwisely said to King Iames by the Conde de Gondomar that grand Spanish politician who when he had demanded of him what was the reason he had put the Lord Chancellor Bacon who was so eminent a wise man out of his place and left in the Chancery Sir Iulius Caesar who by his ignorance committed many more errors and the King had answered him that the Parliament advised importuned him to put him out because he was a knave though in truth it was only some of his corrupt servants had abus'd him replyed that they had a Proverb or saying in Spain that it was better to have a Thief in a Vinyard than an Asse for that the one took but what he stole without spoiling the Vinyard but the other trod down and spoiled all before him Which may come to be sadly enough experimented in our own cases when the liberties and properties of the people shall be lost and made uncertain by those that should take a care of them when those that shall be as the Watchmen of Israel and neither slumber nor sleep shall have neither eyes to see nor ears to hear neither understand their Office or know how to execute it wherein it is not the well meaning of those that shall undertake so weighty a businesse will be able to protect them from the great sin of presumption which they shall incur by taking a charge upon them they could not perform nor secure the people from the damage and losses they shall sustain by them when time and authority shall beget in them a power and that power like a Loadstone draw in and allure factions and parties and those factions and parties busie themselves in misleading their good intentions out of the narrow and seldom troden path of Righteousnesse into the great road of partiallity and oppression From whom if there should be no appeals or seeking further for Justice it would not only be contrary to what was counselled by Jethro ordained by God himself and practised by Moses in bringing the most difficult causes or those that could not be determined in the smaller Courts to the Judgement of higher Courts or the Supreme authority but to all other Laws and governments of the world whatsoever and make every one of those new little Courts to be too much independent Or if there should be an allowance of appeals make as many if there should be but a hundred in a year from every one of those new County Courts which is like to be the least at the lowest computation for if there were no real grievances many will as they did and do still use to doe in the the Civil Law Appeal to win time or shelter themselves from the extremity of an adversary as may amount to 5000 in every year and every of those appeals bring to the people so many second hearings and a double expence of time and money from which also if there should be any Law made to obstruct or hinder them by some mulct or sum of money ordered to be paid or deposited upon the bringing of every appeal so as few shall have the mind or ability to goe through with it that will but raise the discontent and cry of the people higher when they shall find themselves sent on an errand to receive Law or Justice from those that understand it not and for want of understanding in their Judges be cast either into a greater controversie or an appeal to complain of a grievance and when they think they should have better Justice must not have it because they cannot be at the price or hazard is put upon it Or if the Judges should be fined as some would have it for their errors though by the Law as long agoe as King Edgar a In ll Edgari cap. 1 in Guliel 1 cap. 15 Judge was not to be fined if he would make oath that he did as well as he could or that he did it only by error or mistake and not of Malice or by corruption they that have any wit or estate will rather quit their places to such as have neither of them then take upon them or continue such a place of continual hazard and unquiet and then the matter will be fairly mended and besides there will be no small difficulty at any time to assign or fasten the errors upon the Judges who it may be for want of skil were mislead by the Plaintiffs or Defendants themselves or had not the matter or fact clearly stated before them and then there will be no reason to lay the fault upon the Judges when they did as well as they could and they might have chosen wiser Such new County Courts will beget in every Province several Laws and Jurisdictions or power for as long as there shall be inequality of riches or places which ever was and ever ought to be there will be powers and authorities over-awing one another one power will grow greater than another and perhaps too powerfull for the other parts of the Government and commit all manner of injustice and oppression The Justice of the Nation which next to the Military and protection part of it is and ought to be the greatest care of the Supreme power and is so much the more Superior to the other as it is the end of it and not only helps
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