Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	record_n	writ_n	3,114	5	9.8826	5	true

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

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