such as were not repleviseable and kept in prison such as were Beasts were distrayned and carried into another County Great men and their Bayliffs did attach and arrest others passing through their Jurisdiction and compelled them to answer upon Contracts covenants and Trespasses done out of their power and Jurisdiction 13 E. 1. cap. 13. Sheriffs did in their Turnes feign men to be indicted before them for felony and Trespasses and imprisoned them and exacted money of them when they were not lawfully indicted by Twelve Jurors Lords of Courts and others that kept Courts and Stewards cap. 36. intending to grieve their Inferiors did procure others to enter Actions in their Courts and to move matters against them and to put in sureties and pledges or to purchase writs and compel men to follow their Countie Courts Hundreds Wapentakes or other like Courts until they had made Fine at their will Sheriffs Hundredors and Bayliffs of liberties did use to grieve such as were in subjection to them putting in Assizes and Juries men diseased and decrepit and such as dwelt in other Counties to extort money from them and Bayliffs intending to grieve their Inferiors to the end they might exact money of them did send Strangers to take distresses by reason that the parties so distrained and not knowing such persons would not suffer the distresses to be taken 33 Ed. 1. Stewards and Bayliffs of great Lords did undertake to bear or maintain quarrels which concerned other parties 38 E. 3. Great cap. 3. men came armed and with power to disturb the execution of Justice 4 E. 3. cap. 11. Diverse as well great men as other made Alliances confederacies and conspiracies to maintain parties pleas and quarrels whereby divers were wrongfully dis-inherited ransomed and destroyed 14 Ed. 3. cap. 16. Enquests and Juries were taken in diverse Counties where no Justice did come to the great mischief of the Parties that did sue as also of the good people that were impannelled and Sheriffs did let their Hundred Courts at great rates to the impoverishing and oppression of the People 17 E. 3. The Rot. Parl. in 38. Commons Petition that excessive Fines imposed on them by such as have Leets might be redressed 20 Ed. 3. cap. 6. Bayliffs of Franchises and their under-ministers did commit maintenance and imbracery of Jurors and took gifts rewards and other profits which they did take to array pannels and to execute them to the subversion of the Laws and disturbance of Common right 31. Ed. 3. cap. 15. Sheriffs held their Turnes in time of Harvest and hindred the people 20 Rich. 2. cap. 10. Notorious Theeves were delivered by favourable inquests procured to the great hinderance of the people Lords cap. 3. and other great men did use to sit upon the Bench with Iustices of Assize 17. Ed. 4. cap. 2. Courts of Pypowder were misused by Stewards Vnder-Stewards and Baylifls holding pleas for contracts made out of the Fairs 1 Rich. 3. cap. 4. Diverse inconveniences and perjuries did dayly happen in diverse Shires of England by untrue verdicts before Sheriffs in their Turns by persons of no behaviour nor dreading God nor the worlds shame cap. 6. Courts of Pypowder were misused by Stewards and Bayliffs upon feigned plaints to trouble men to whom they owe evil will to make men lose their Fair or to get favourable inquests whereby many coming to the Fairs were grievously vexed for contracts made out of the Fair The Lords lost their profits of their Fairs and the People wanted those merchandises would otherwise come to them II. Hen. 7. cap. 15. Great extortion was used in divers Countries by Vnder-Sheriffs Shire-Clerks and other Officers holding and keeping County-Courts and in the name of the Sheriffs by entring Plaints without the Plaintiffs direction against Defendants to the intent that if they appear not they may be amerced or entred Plaints in the name of such as were dead and to that end did not at all attach or summon the Defendants but caused the said amerciaments to be levied 3 H. 8. cap. 12. Great extortions and oppressions were by Sheriffs and their Ministers by impanelling such as will be perjured 26 Henry 8. cap. 4. Juries in Wales gave untrue verdicts because upon indictments of Murder and Felons the Kindred and Friends to such offenders had accesse to them 27 H. 8. cap. 7. Divers oppressions maintenance imbraceries riots trespasses c. were in Chester and Wales by reason that common justice was not administered there as in other places by reason of a diverse ministration of Justice Diverse authorities of justice appertaining to the King had cap. 24. been granted away to the great hindrance and delay of Justice cap. 26. By reason of diversity of Laws and usages in Wales and England great discords variance and sedition have risen betwixt the People Which irregularities of Small Courts so all along from time to time complained of in Parliament were not only the cause of making those many Acts of Parliament in those several years to redresse those grievances but of the making of several other Acts of Parliment As that in 13 E. 1. cap. 30. authorising Justices of Nisi prius to go at certain times of the year into the Counties that of 27 E. 1. cap. 3. and 4. to make those Iustices of Assize Iustices of Gaol delivery and that enquests and recognisances taken before Iustices of either Bench should be taken in time of vacation before any of the Iustices before whom the plea is brought That of 28 E. 1. cap. 10. that against Conspirators false informers procurers of enquests and Iuries remedie should be had by a writ out of the Chancery and that the Justices of both Benches and Justices assigned to take Assizes should when they come into the Country upon every plaint made unto them award enquests Char of 12 E. 2. cap. 3. and 4. that enquests and Juries in pleas of Land that require great examination should be taken in the Country before two Justices of the Bench and that which they shall have done shall be reported in the Bench at a certain day there to be inrolled and thereupon Judgement shall be given And to provide that inquests and Juries should notwithstanding be taken in the Bench if they came That of 2 E. 3. cap. 2. that Assizes Attaints and Certifications be taken before the Justices commonly assigned which be good men and lawfull having knowledge of the Law and none other That of 14 E. 3. cap. 16. that nisi prius shall be granted as well at the Suit of the Defendant as of the Plaintiff and before a Justice of another Court then where the Suit dependeth and if it happen that none of the Justices of the one Bench or the other may go into the Country then Nisi prius to be granted before the Chief Baron of the Exchequer if he be a man learned in the Law and in case he cannot go then before Justices assigned to take
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
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
will be gainers by it or were not Acted by some Jesuitical party or influence would disturb and destroy this Commonwealth To prevent which and to do what we can as long as there is any hope left we shall intreat them by the Tears and Compassion of their already too much impoverished torn and languishing Mother England and the love they ought to bear to their Brethren and their own if they will not be carefull of other mens posterities to stand a little and look about them before they drown us and themselves in that Sea of misery and confusion they are letting in upon us and either to read our Lawes or be informed by those that understand them and consider well before-hand now they may help it that which Truth and a sad experience may hereafter tel them when they cannot find a remedy for it That the Laws and Courts of Justice they world now over-turn are those Lawes and Courts which by a long-experience and universal reason and consent of our Fore-Fathers have thorough many ages and generations descended and come unto us as a common Birth-right and Inheritance will if rightly examined and inspected appear to be deduced from no worse original or authority than the Decalogue or Ten Commandements themselves and the reason and equity of many of those other Laws which God himself in Mount Sinai commanded Moses to declare unto the people That the Law of England is Ipsissima ratio right reason it self From which and the right use and practice thereof if they that shall make it their business to accuse our Laws and reasonable Customs and Courses of Courts of Justice shall but abstruct and take out of all the causless complaints are made against it which ought to be done by those will judge aright of it all that happeneth by the ignorance or weakness of men in making of their Contracts and Assurances one with another The cavils and strange subtilties of those that would deceive oppress or take advantage by it The making of Wills and Conveyances by ignorant persons unfit placing of words in them and want of coherence or signification which do not seldom beget contradictions or perplexities of the sense or meaning of the parties their holding hard to advantages gotten by a mistake of words or parties to create a right or title where there should be none Wresting of Laws to their own purposes Self-conceited false or frivolous Suggestions in their motions or desires to the Courts Reiteration and succession of pretences and strange allegations not at first discernable by the Lawyers or Judges themselves Hasty and wilfull commencing of Suites upon small or no advice at all Ravelling and perplexing of their own Causes Eluding or striving to over-reach the Laws or strain them beyond their intentions Ignorance or wilfulnesse in managing of their Causes and the frowardness or unquietness of their own spirits in coursing one another through all the Courts of Law at Westminster Hall by severall Tryals and Verdicts bringing writs of Error upon them out of the Common Pleas into the Vpper Bench thence to the Exchequer Chamber to be heard by all the Judges of England Thence to the Parliament though they pay great and several costs to their adversaries discontinuing of writs of Error or abatement of them by the death or instance of some of the parties bringing their Bills and Crosse Bills in Chancery getting Orders upon Orders Decrees upon Decrees Rehearings Reviews or Dismissions Entitling the State afterwards to what they sued or vexed one another for Appeals from the Country Committees to Haberdashers Hall from thence to the Committee of Indempnity Thence to the Committee of Obstructions from thence to the Committee of Petitions for grievances And from thence to the Parliament again and if they be rejected or cannot be heard in one Parliament Try another and another and as many as they can live to sollicite their multiplying of needlesse and frivolous Actions obstinate and willfull endeavours in trying all they can to overpower or woorie their Adversaries never acquiescing in the Judgement of their own Lawiers or of any Court as long as any wit or invention of any other Lawier who cannot alwayes see through his Clients unjust pretences can but shew them the way to further vexations The Necessity which lies upon Judges and Courts to keep Rules Orders which may not be broken to help particular Cases Miscarriage of Causes by mispleadings Incertainties in the Plaintiffs or Defendants own Actions or instructions Their hiding or concealing truths Their not agreeing or right Stating of matters of fact misapplications of good Laws remedies to ill purposes deceit delay of one another in references weaknesse of Arbitrators and Awards deceit or ignorance of Sollicitors a race of people was not allowed or heard of in the Law about 100 years agoe but where Noblemen had and reteined them in their houses as menial servants too many of which of late have been broken and busie Trades-men or such as scarcely know the names of a book of law or to spell write or read Their champerty maintenance and ambodextry some knowing and honest Sollicitors excepted taking mony before hand of their Clients and never giving an Accompt for it mistakings or wilfulnesse of Juries want of evidences intricacy of causes Errors or misinterpretation as mistake the of Judges Ignorance malice or self ends of those that speak ill of them and the difficulties which sometimes do lie upon the wisest and most honest of men in discerning between truth and falshood and dividing betwixt them and distinguish as our Fore-Fathers and the wisdome of former ages used to do betwixt the right use and the abuse of them between particular mischiefs and general inconveniences betwixt the Inconveniences which some one Law may sometimes bring upon a few particular men and the good it brings to one hundred thousand others at the same time and allow but that which was never yet denyed to all the Lawes of the world an impossibility of foreseeing preventing or remedying of all things which the wickednesse of the hearts of men or their devices may lay in their way there will not be enough left to prove them to be corrupt in their foundations Take away and lay at the doors of those that ought to bear it the selling or mortgaging of lands Twice or Thrice over the Counterfeiting and putting to the Seals and hands of parties and witnesses forgeries and taking out and putting in of words into deeds or evidences strange and unheard-of combinations practices Witchcrafts and Sorceries putting of dead mens hands to Wills moulding hiring of false witnesses and Suborning or packing or laying of Iuries which are the Actions of the parties themselves to compasse and bring to passe their own wicked purposes and not of the Lawiers Let it be but considered that if there happen in an age some unreconcilable Suits wherein some contentious spirits have for many years together chased and vexed one another
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
last 7 years together Or why the Lawiers may not use Abbreviations as well as the Doctors Apothecaries or why Abbreviations should be bad not allowable in Court or Chancery hands or writing as well as in the writings which Merchants have daily occasion to use in the Dutch French or Scottish Laws or writings Or why the Law should be bad because the Lawiers doe use Terms of Art or short expressions tending much to the ease of themselves and the Court and Judges that are to hear them are not denyed to all other Arts and Sciences but are to Bricklayers and Carpenters to Farriers who have their Terms of their own making as to cure the Mallender Farses Trunchions Bards and Wanders in a horse and to heal a wound in the Lampas and to the Seamen or Mariners who are never found fault with for using the Tearms of Starboard and Larboard Lee shore Misne-Mast shrouds bear up Weather-gage run so many glasses and the like strange words and notions are not to be understood by any but those that have served long at the profession and learned their Sea Grammar Wherefore it will be time to tell those that shall thus labour to take away from the Nation their well-being by such their fond proposals That the war to which they contributed was not undertaken by the late Parliament to pull down the fundamental Laws but to preserve them and that if the Articles or Publick Faith but once given by the Army to Enemies upon the surrender of Oxford and other Garrisons were so precious and sacred to the late Parliament and Army as well as it is to this as not in the least part to be violated Those many great protestations of the late Parliament and Army in very many of their Declarations and Remonstrances some whereof were ordered to be read in Churches and their Publick Faith so many times reiterated and given may surely give a stop and denyal to these Traders in Innovation especially when it shall be considered that those Publick Faiths and promises were not made or given to those that were Enemies and fought against them as the other side did in a jealousie and distrust that they did not intend as they promised to maintain those Laws which they pretended to fight for but to those that believing them did adventure and engage all they had and went all the way along with them and that if there were nothing else to be said for it the Parliament in their great and continual care of the People and Commonwealth will not certainly suffer the Chancery and all the Courts of Justice which depend upon it to be taken away would be so much against the former Customs and reason of this as well as other Nations as it is not be precedented but will be contrary CHAP. V. That to put down or take away the Chancery and so many Courts of Justice which depend upon it will be so much against the former Customs or reason of or any other Nation as it is not to be precedented TO what was done by the Athenians who in all their Ostracismes and popular unquietnesse could preserve their Laws and Courts of Justice Or the Romans who in all their Changings and Tumblings from one government to another in their sending for new Laws to Athens their complaints and dislike of Magistrates Bloody proscriptions of the Sullan and Marian factions Tribunitial powers Dictatorships and revolving back again into Monarchy could keep close to the body of their Laws and Constitutions To what our Saviour Christ did in his reformation who when he brought the glad Tidings of the Gospel into the world took away the rigor and Ceremonial part of Hist Juris Civil composit per Justinianum the Law without destroying the moral To the reformatiof the Civil Laws by Justinian the Emperour who having appointed Ten of the most eminent and worthy of his Empire amongst which were Tribonianus and diverse learned professors of the Laws to read over and peruse all the voluminous Laws in being did compile and make out of them his Pandects and that body of the Civil Law which hath for above one Thousand years since inhabited and been esteemed amongst the most Civilized Nations of Europe as a great part of their Chronic. Jo. Eromton guide and reason Contrary to what our old King Alured or Alfred did about 800 years since who could in Parliament reform some of the Laws made by King Ethelbert above 200 years before punish some Judges and think ne ver the worse of the Laws for some abuse of them To what William the Comquerour did who by granting Chronic. Leichfieldense in 2 Edw. Confessoâ— confirm per Gulielm Conquest the Saxons their old Laws many of which are still amongst us strengthned his Conquests and gave quiet entertainment to as many of his own edicts and Norman Customs as were found to be reasonable To that of his Son Henry the first Who could amend some of his Fathers and predecessors Laws without overturning all the rest To that of Henry of second Who removed and alterd many things amisse in the execution of Laws but left that which was good and usefull in them To what was done by Edward the first Who finding all his Judges but Two so corrupt as they deserved punishments did not banish all the Laws with them To what was done by Henry the eighth Who in the regulation Reformationes legum Ecclesiastic in Epist H. 8. E. 6. of the Ecclesiastical Laws appointed by Act of Parliament in 35 Hen. 8. to be done by eight Clergy-men eight Canon eight Civil and eight Common Lawyers And by his most vertuous Son Edward the sixth delegated to that learned Godly Martyr Thomas Cramner Arch Bishop of Canterbury Peter Martyr other Divines 2 Doctors of the Civil and Canon Laws and two Common Lawiers did leave what was good to remain of it Contrary to what the States of Holland and the United Provinces did who in their imbittered detest of the Spanish government could find it as necessary as reasonable to keep their Common Law Burgundian and Batavian Cornel. Neostad in Epist lib. de Successione feudi Juris script Hollandiae customs the Fewdal Laws of the Lombards and as much of the Roman and Civil Laws as did not contradict their own therfore in the laying of the foundation of their confederacy and government did in one of the Articles of their solemn league made at Virecht in Anno 1579. bind one another to the defence of their Laws and Statutes a Majoribus accepta and ordered the People In Foedere Ultralect Anno 1579 Art 2. 21. to be sworn unto them To the Wisdom and proceedings of our forefathers in Parliaments who if some of them had been foolish could not for the Major part in every Parliament been have destitute of wisdom or if in one year meeting time age or generation cannot with the reputation of
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
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
County Courts had their original by consent of most Authors from K. Alfred who n Polidor in Guliel Conq. Spelman Gloss in verb. Justitia would not trust them with Capital or Chief matters Criminal but reserved them ad Majores Justitiarios And though he gave them power to determine lesser matters yet did he as well as King Ina his predecessor and those Saxon and Danish Kings Edward the elder Athelstane Ethelbert Edgar Canutus and Edward the Confessor which succeeded him give leave to any to appeal pro defectu Iustitiae or when right could not be obtained But that being in a time when the smallnesse of Commerce paucity poverty and inculture of people little acquaintance with Navigation or Forein Customs continual wars one with another in a Heptarchy or multiplicity of Kings and Invasions of the Danes could not allow them much businesse at Law and if they had where withall to have been contentious were so bound up by certain strict Laws fit only for a people were newly escaped out of Paganism and lived in a Country more like a desart or Wildernes than as now it is as they could not if they would have many Suites at Law to trouble the lesser or greater Courts withall for in every Tithing o In ll E. Confess cap. 20. or Friborgh every man answer'd so for one another as they were bound to bring offenders to Justice every p In ll Edgari c. 6 in legibus Ethelredi cap. 1. man did put in securities to do right to one another the Lord for q In ll H. 1. c. 23 et 41. in ll Canuti c. 25 28. in ll Ethelst cap. 10. his Tenants and the Master fot his Servants r In legibus Edw. Reg. cap. 1. no man bought any thing without a pledge or voucher or exchanged goods but before a Magistrate or the Minister or Lord of the Mannor he that s In ll Aluredi c. 33. in ll Ethelstani cap. 8. received a Stranger answered for any thing t In ll E. Reg in ll Canuti cap. 64. he had done in the place from whence he came no man under a penalty harboured a Fugitive or kept him from Justice he that was misdoubted u In ll Inae In ll Edgari c. 2 l. Canuti li. 16. or accused was in many things to purge himself by his own oath or of so many of his neighbours if any had w complained before they had demanded right in those lesser Courts were fined and punished Yet though those Courts had their work so much done to their hands the people were so little notwithstanding satisfied with their Justice as we shall find William the Conquerour afterwards to have his Chief Iustice to at tend him for the determining of such causes as came to demand his Justice his Son William Rusus the like and by that time the Crown came to Henry the first who was not also without his Chief Justice the Laws began to take notice of the different Laws of Provinces of a penuria Iudicum in w In ll H. 1. c. 7. some Hundreds of violences disturbances which made a necessity of carrying some causes upon denying right to be done in those Courts to the County Courts all actions of breach of the peace and pleas of Treasons Murder Coynings of monies and many more which are enumerated in his Law de Jure Regis then belonging to the King King Stephen had his Chief Justices and when King Henry the second comes to raign the Kingdom was so full of exactions and oppressions as he is much troubled how to find a man fit and honest enough to make Chronic. Jo Bromton a Chief Justice of though he had tryed Abbots and Earls Commanders and Souldiers and Spiritual men as well as Secular and therfore we find him upon the peoples Complaints of their want of justice from several parts of the Kingdom in a Parliament at Nottingham in Anno Domini One Thousand One Hundred Seventy Six in imitation of what had been formerly done in France x Spelman Glossar in verb. Justic tinerant by Carolus Calvus in Anno Eight Hundred Fifty and Three ordaining Iustices Itinerant or in Eyre according to their allotments of several Shires but all Fines levied in the Kings Court Actions of debt writs of Assize Dower advowson and all or most pleas of consequence brought and held in the Kings Courts except such as were sometimes allowed by his Writs or lib. 11. c. 1. Commission to be determined in the Sheriffs Court or the Hundred or Courts Barons for any might then lib. 12. c. 7. remove an Action from the lesser Courts to the Kings 3 c. 3. et 5. or have an Accedas ad Curiam or prohibition if we may believe Glanvil y Glanvil lib. 10. c. 1. who was his Chief Justice In his Son Richard the first his time the power and privileges of Sheriffs did grow so great in their Counties and Courts as some Bishops whose places in those times led them quite off from Secular imployments were inticed to take upon them the Offices of Sheriffs but were questioned for it afterwards and forbid by the Pope to intermedle any more in them But about 9 H 3. the Complaints of the people did so follow the King and his Chief Justice as it was enacted by Parliament that Common pleas should not follow the Court but be holden in 9 H. 3. c. some place certain in 52 H. 3. Complaints were made 52 H. 3. cap. 11. in Parliament that great men and diverse others refused to be justified by the King and his Court as they ought and were wont to be in the time of his progenitors but took grear revenges and distresses of their Neighbours and others until they had amends and Fines at their own pleasure And would not suffer delivery of such distresses as they had taken of their own authority distrained men to do Suit to their Courts that Eodem Anno c. 9. were not bound by their Deeds or Enfeoffments amerced men wrongfully for default of Common Summons and compelled c. 17 22. Freeholders to answer for their Freeholds without the Kings writ In the reign of his Son E. 1. as appeareth by Britton who compiled a book of the Laws by the Kings appointment all men by a Publick Cry and proclamation were to come with their plaints causes and actions before the Justices in Eyre when they came into the Counties and all other pleas to Cease and all those who claimed any Franchyses were to shew their Title to them and special enquiries made of Sheriffs Bayliffs and Stewards concerning the execution of their Offices maintaining Quarrels amercing men wrongfully committing extortions and holding pleas in debt or trespasse above Forty Shillings which did not belong to Britton c. 2. 20. 21. them 3 E. 1. cap. 15. Sheriffs and others did let out of prison
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