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
The putting or mingling of matters of equity into Courts of Law will be but one and the same thing and as like to be a grievance as the other Of which the late Parliament in their argument against the Councel of the Marches of the North in 1641 were so sensible as they alleaged it would be prejudicial to the people if the King should be permitted to canton out a part of his Kingdom to be tryed by z Mr. Hides argument in April 1641 before the Lords in Parliament by order of the House of Commons Commission though it were according to the Rules of Law or to erect new Courts of Chancery and that the latitude and power of the Iudges of that Court of the Marches in judging according to equity and discretion was the Quick-sand that swallowed up the peoples property and liberty and that the very administration of Iustice founded upon such illegal principles was a grievance and oppression to the people and the House of Commons in the late Parliament of which some of the now Members were then a part were so far from altering their opinion in that particular as in their grand remonstrance of the State of the Kingdom the a Remonstrance 15 December 1641 15 of December 1641 repeating what good they had done for the people and what Courts they had taken away they reckon that and some other arbitrary Courts and called them the forges of misery and oppression And yet this is not all the proposers would have nor will their appetite of change be satisfied or the confusion be compleated unlesse the Lawiers may be totally extirped the Innes of Court and Chancery which used to breed them be abolished a doctrine any but the quondam Jack Cade and his men of rudenesse who would have all Learning and Letters suppressed and the Score and the Tally to be the only Books of the Nation would not only blush at and be ashamed to own but stand amazed and dissolve themselves into a wonder that any men should think as some of these proposers have done that the Lawiers or professors of reason should not be fit to intermeddle in the administration of Justice as if reason which God gave for a blessing and distinction to mankind could be Antichristian or the mark of the Beast or that all the praises of wisdom in the Scripture were only to let men know that those that had it were not fit to be imployed CHAP. X. That in the right administration of Justice there is a necessity of Lawiers and men of skill and experience FOr the Laws and Customs of all people Christians and not Christians Barbarians and not Barbarians do allow and practise that most necessary and usefull Maxime Cuilibet in arte sua credendum It is best to believe every one in his own art or that wherein he is skilful All our Laws and reasonable Customs do forbid the using of Trades to which men have not been Apprentises for seven years 2 3 P. M. 8 Eliz. cap. 11. 1 Iac. cap. 24. together And several Acts of Parliament would not so much as trust Watermen to row upon the river of Thames nor the inhabitants of several Shires to use the art of Cloathing nor so much as to make Caps or Pol Davis unlesse they had been Apprentises to it The Parliament in the third year of the reign of King 3 H. 8. cap. 11. 1 Ma. cap. 9. Henry the eighth and some other Acts of Parliament made since provides that none but allowed and skillfull Physicians and Chirurgions should practise Physick and Chirurgery for that the practice thereof by Artificers and unlearned persons was to the great displeasure of God and grievance hurt damage and destruction of the People How then can these proposers or Trades-men imagine it to be good for a Common wealth to banish all the knowledge of the Laws and the means of doing Justice out of it and to take in all manner of ignorance in the place of them or that the Lawiers or men of Iustice should be a burthen to the Nation when Paul took it to be no dishonour to have sate at the feet of Gamaliel was more than ordinary carefull of Zenas the Lawier Epist ad Tit. 3. v. 13. and had never gone to Rome not converted some in Nero's own houshold if he had not been learned in the Laws and Privileges of the Romans as well as of the Iews When the Dutch in their united Common-wealth or Provinces dare not trust their smallest causes to their b Commentar de Stat. confederat Provinciar Belgic Commissarissen op de kleyne Saecken without a Lawier added to them and for causes of greater consequence will not in all their Colleges or Courts of Iustice want an Assessor or Syndic being a Professor of the Civil Law to direct and guide them When the Turks who for the most part of them are by the Tyranny and designs of their Emperors kept in an ignorance of all Learning and Letters can have their Cadies in their lesser Courts and their Iudges in the Divano or greater purposely educated and brought up in that which might enable them unto it and do not put their mad men in places of Iudicature though they give much respect unto them and take them to be inspired And when these Proposers can at the same time for any thing which they have to do in their own affairs labour to find out the most able and skilfull men and would think them not to be their Friends at all or to be some of the Inhabitants of Gonzagua's newly discovered Country slipped down hither through the Moon which should instead of a Physician bring them when they are sick a Carpenter or a Plaisterer when they are wounded for a Surgeon For can any man think that the Law which was heretofore esteemed to be as hard and difficult a Science as it is noble and worthy can be practised or given out to the people without any manner of knowledge or learning of it would these Proposers desire an Act of Parliament that no sick and wounded men should any more use the help of Physicians or Chirurgians but should go to the Justice of Peace for it or that no Carpenter Mason or Bricklayer should any more meddle in the building of Houses May not the Civil part of the government or power come in a short time to be as much endangered or disordered by such an ignorant management of Justice as these proposers would have it as the Militia or Military part thereof would be if all the old Legions or Regiments and tryed Souldiers of the Army should by a Law be disbanded and forbidden the art of war and young boyes newly come from School be taken on and listed in their places and none to be Captains or Officers but such as should want their sight or be blind Or how little difference will there be betwixtan ignorant administration of Laws and the having of
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
out of one Action into another almost to their utter undoing There have been in every year of those many years many thousands of causes as may be demonstrated to any that will call for a proof of it dispatched put to an end by the Courts of Law at Westninster or in the Circuits that a multitude of People Actions and businesses more than formerly in a Time of more Deceit Falshood Perjuries Secret and cunning combinations and breaches of Trust than ever were may make an increase multiplicity of Suits and yet the Lawiers who in an age have not a common Barretor amongst them be as innocent as the Physicians who are not accused for much practise in a time of Pestilence or when there are store of Epidemical diseases there will be no cause to say that the Law is endlesse Let it be but considered that the greater part of established Fees in the Courts of justice are lesse than what the most common Artificers do take for their labour and as for any which exceed that rate are but that which was allowed one Hundred years agoe when the rate and price of Cloths and Victuals was not one in three so much as it is now that the Attorneys 3 s. 4 d. fee and the Lawiers 10 s. fee would then have bought 3 times more than what may be now for it That the Gentry have since raised their rents two parts in Three the Farmers the price of their Corn and Cattel and the Citizens their Commodities and servants and workmen raised their wages yet the Lawiers except some eminent and great practisers who take but the Free will offering of those that give them the greater Fees to take the greater care of their businesse have but the same Fees were formerly taken by them That the Lawiers who had no worse a name auntiently given to their profession by the most Civilized Nations of Europe than Sacerdotes justttiae the Ministers of Justice and had so right an esteem in our former Parliaments as by several Acts of Parliament made upon several and successive necessities of the People in 2 Edward 3 cap. 2. 14. Edward 3 cap. 16. 34. Edward 3. cap. 1. and 20. Richard 2. cap. 10. It was specially provided that none but men learned in the Law should be made Justices of Assize and Goal delivery and that there should be in every County men learned in the Law made Justices of the peace And in all their Actions either at home in their Counties or at London in the Terms are known to be men of Godlinesse Sobriety and learning and compared with any other profession or part of the People to have fewer men of vice or ignominie amongst them than any other profession Let it be but considered that the Law as it may be demonstrated if an accompt were kept as some Physitians do of their consultations and Cures or as the People of the Bath do of some that are cured in every year doth in every year recover and get in many Thousands of men debts redresse their Injuries preserve their rights secure their estates rescue and take some Innocent mens lives and estates out of the jawes of death or oppression support the hand of Justice and is as eyes and ears unto it puts her Judgement in the right way when it was sometimes allmost carried off ormislead into a wrong and hath kept us and our forefathers in a greater safety certainty of it than Roman Legions could have done and Ten greatet Armyes than we now bear the charge of That in the determination or adjudging of every Action or Suit in Law or Equity one of the parties is discontented and one of them most commonly faulty or much mistaken in the grounds of that Contest Actions of Debt or of other natures where the Plaintiff will not give time and the Defendant only stands out a Suit to gain it only excepted and do all they can to lay the fault upon the Law when it should be charged upon themselves And that the difficulty in the case before Solomon betwixt the true Mother of the Child and the false could not be charged upon any defects of the Hebrew Laws or the Professors thereof but the wickednesse and false pretences of her that had no right to it and that every discontent and every Complaint is not just because the partie thinks it to be so There will be as little cause to say that the practice of the Law as to the Law it self or to the Lawiers is a grievance or that they are worse than Ten Thousand Devils as that Tenterden Steeple is the cause of Goodwyne Sands For most of the things complained of in the Law if impartially and knowingly examined will appear to be neither from the Law or by the Law it Self or of the Essence Nature or Intention of it but meerly proceeding from the people and their own misuse or abuse of them which being not evill in themselves but commanding good things to be done and forbidding evil are no more to be charged with the faults which the people themselves Commit in abusing of them than that great Luminary and comfort of Mankind the Sun can be said to be the cause of darknesse or ill influences because in his journey or execution of his Office he is sometimes orecharg'd with Foggs ill vapours or exhalations from the Earth which he would disperse or carry away or meets with so many Clouds interpositions and Shadows of the Earth Conjunctions of Planets or Malevolent Aspects than the necessary arts of Physick and Chirurgery are to be blamed for the many Errors and mischiefs are done by Montebanks or confident and credulous women that have no skill in them than wine and women for the General abuses of them or Religion and the Sacred Scriptures because the world hath of late been troubled with so many Heresies and Schisms proceeding from the mis-interpretation of the one and practice of the other and may the better be understood and believed to be thus Innocent when those that not long agoe could run to Westminster and cry for justice against the Earl of Strafford but for at most an endeavour to subvert the Laws and cryed out they could have no Trading or subsistence if his head were not taken off cannot now give us a reason why those very Laws and the Courts that administred them should not now be as good as they were then Or why the Old Chancery and Court hands which being made out of Saxon letters or Characters before any Friers or Monks ever came into England have through so many generations come down to us and given such a legibility duration and continuance to all our records as they may yet be plainly seen and read for 7 or 8 hundred years past should be more inconvenient Popish Antichristian than the Secretary other Mungrel and Scrible dashed hands made out of the Roman and Italian which will not as it begins to appear already
CONSIDERATIONS Touching the DISSOLVING OR TAKING AWAY The COURT of CHANCERY AND The Courts of Iustice depending upon it VVITH A Vindication or Defence of the Law from what is unjustly charged upon it AND An Answer to certain proposals made for the taking away or alteration of it Cicero pro Cluentio Civitas sine Lege ut corpus sine mente Leo Imp. in proaem Constit Novellarum Sunt Leges tanquam Custodes vitae nostrae London Printed by F. L. for Thomas Heath and are to be sold at his Shop in Covent-Garden 1653. The Contents OF the Court of Chancery Chap. 1. The great inconveniences which will happen by the dissolving of it to the whole frame and body of the Laws and Iustice of this nation ch 2. Besides other sad effects and consequences will be brought upon the people by it ch 3. That the Laws are not in themselves evil but are only abused by the people ch 4. That to put down or overturn the Chancery and so many Courts of Iustice which depend upon it will be so much against the former customes and reasons of this or any other nation as it is not to be presidented ch 5. That the very being of Parliaments is preserved by the Laws and that so great a distemper and disturbance as will come by the taking away of the Laws will by a necessity of Iustice and better ordering of affairs bring them by a revolution of time back again into their old channel ch 6. That the erecting of so many new Courts as are proposed or cutting and translating the great Courts at Westminster into so many little Courts and Iurisdictions will besides the before-mentioned inconveniences not only be very prejudicial to the State but to the people ch 7. And not only raise up again those old grievances which were formerly the cause of disusing or restrayning the Sheriffs Turnes County Courts Court Barons and Hundred Courts and such-like petty Iurisdictions but far exceed them ch 8. That the annexing of a Iurisdiction or power of equity to every or many of such new Courts will much increase the peoples grievances and turn that little Law which shall be left into a course of arbitrariness ch 9. That in the right administration of Iustice there is a necessity of Lawyers and men of skill and experience ch 10. CONSIDERATIONS Touching The Dissolving OR Taking away the COURT of CHANCERY THe Parliament that intends to bless and make the Nation happy are to consider what may best advance it In order to which as they may claim the Prayers and obedience of those they represent So on the other side the Peoples great concernment in what shall be acted or suffered by them is entitled to a modest and well-ordered liberty of address and advices not only in the general but in particular also to the end that every part how little soever of the Body Politique may be either heard or rightly understood before any alteration or Sentence shall goe out against it Especially when their Livelihood Freehold and Posterities are to be the present and immediate Sufferers in it For it could never be intended by the Lawes or Constitutions of this Nation or is indeed imaginable that the Parliament can like a Deity see thorow and know all things at once or before-hand or judge of what can be objected or said in any particular case or concernment without hearing parties or defences The Justice and reason whereof may be exemplified from God himself who being not only Omniscient but Omnipotent would not think it fit to condemn Adam untill he had heard what he could say for himself Whence the Law of Nature and Nations the Civil Canon and Common Lawes and all the Parliaments of this People and Nation have not only made it their Rule but their Practice to hear both parties without which no Sentence or Judgement can be said to be just or valid though the parties that did it should intend it well and give as just a Sentence as possibly they could according to that generally received Maxim amongst all Nations Qui judicaverit altera parte inaudita aequum licet statuerit injustus est Upon which consideration of Justice and that most antient and uninterrupted custome of it and the reason of all Nations and Men of Reason It is hoped that the now Parliament according to the antient courses of Parliaments and those sage and successfull Customes of those Sonnes of Liberty the Romans who in the Rogation and promulgation of their Laws did not only hear but demand what the People and those that were to experiment the sweet or sowr of it had to say against it will give leave to those that have been bred up laid out their Fortunes and spent a great part of their lives in Chancery and well understand it to be heard concerning the preservation of what shall be good or the taking away of any thing that shall appear to be evil in it before they shall proceed upon those Proposals which have been made unto them for the dissolving of that Court And for the better sanisfaction of that small part of the People which tire the Supreme Authority 1 with their wild Proposals to represent unto them what that Court is which that kind of People would have the Parliament to put down The great inconveniences which will happen by it to the 2 whole frame and body of the Laws Iustice of the Nation Besides other sad effects and Consequences will be 3 brought upon the People by it That the Laws are not in themselves evil but are only 4 abused by the People That to put down or overturn the Chancery and so 5 many Courts of Iustice which depend upon it will be so much against the former Customs and reasons of this or any other Nation as it is not to be presidented That the very Being of Parlements is preserved by the 6 Laws And that so great a distemper and disturbance as will come by the taking away of the Laws will by a necessity of Justice and better ordering of affairs bring them by a revolution of Time back again into their old Chanel That the erecting of so many new Courts as are proposed 7 or cutting the great Courts at Westminster into so many little Courts and Iurisdictions will besides the before mentioned inconveniences not only be very prejudicial to the State but to the people And not only raise up again those old grievances which 8 were formerly the cause of disusing or restraining the Sheriffs-Turns County-Courts Court Barons and Hundred-Courts such like petty Iurisdictions but far exceed them That the annexing of a jurisdiction or power of equity 9 to every or many of such new Courts will much increase the Peoples grievances and turn that little Law which shall be left into a course of arbitrarinesse CHAP. I. What that Court is which they would have taken away THe Court of Chancery not to trouble the
the unwearied skill endeavours and time of the present Lords Commissioners and Mr. of the Rolls for seven years who by former motions and proceedings are well acquainted with the nature of many of them and by that means may be more skilfull in the way of determining of them than any Committee which can be chosen will then be put to the decision of Strangers or such as may be as long again in finishing of them And if the heap of new causes should be undertaken by the same men at the same time may make such a stop as may swell up the discontents of the people to a complaint or breaking down the banks of any new erected Courts or Committees for it The Court of Common-pleas betwixt partie and partie which hath its originals and Commissions from it will expire for it cannot hold plea without it All that our former Laws appointed to be done in certain prescript ways and times as the bringing of Formedons in discender or remainder and all those several sorts of remedial writs in the Natura Brevium and register being like so many several sorts of approved and experimented physicks and remedies prepared boxed and laid-up by a long observation and experience for the future for the several diseases of mens estates rights or liberties will become uselesse All the many necessary and wholsome powers and businesse which former Parliaments have by their many Acts and Laws intrusted to the Chancery will be laid aside and the people sent to look out new ways or remedies where they can find them and take-up that which their forefathers refused as inconvenient instead of that they formerly received so much benefit by Magna Charia and its 30 times confirmation which 17 E. 1 ca. 7. 25 E. 1. Ca. 1 2 3 4. was delivered with Curses and Anathemas to the Infringers and commanded to be read once a year in Churches against which no law was to be made upon the penalty of being void was got and continued with so much blood of our Ancestors and forbids the denial of justice to any should ask for it gave the Tryals per Pares and that none should be imprisoned or disseised but by original writs then and ever since issuing out of Chancery and due processe of Law And the care taken formerly that Nullus recedat a Cancellaria sine remedio will be to no purpose when the Court is put down that should grant it The Wolf may eat the Lamb when there shall be none to stretch out their hand to deliver the oppressed All that was good in that Court and beneficial for the people for certainly it being so antient and of so long a continuance could not be so unhappy as to have no good thing nor proceeding in it will be put under the same fate as the bad wherein it will be lost unless by a new constitution or a particular enumeration of them in a new establishment which will find store of difficulties it shall happen to be revived there being a great difference betwixt what a Court hath incorporated in it by a custome and what it must get and have by a new authority for and may tend to the greatest alteration in the administration of Justice that ever happened to a Nation and produce many other sad effects and consequences will follow upon it CHAP. III. Other sad effects and consequences will follow upon it FOr above 2000 Families whose livelihoods labours and fortunes have been laid out in the labour and attendance of this so high and necessary a Court will without some recompence or subsistance made or provided for them be utterly undone and exposed to Beggery the rather for that they are not like Husbandmen or day Labourers that can fit themselves for common and servile labours Above 20000 Families of Townsmen and Citizens in or neer London whose industry and maintenance depended much upon the residence and study of the Laws at London besides the Professors of the Law and those many families are maintained by it will be either totally undone or much impaired in their estates and livelihood Many Thousands of Watermen the strength and subsistence of our Sea-affairs and Thousands of Artificers and other people who live by Trading and travelling to London will be ruined and that City which by its Situation and Neighbourhood to the Sea the riches skill and corresponcy of her Merchants and a long fixed Trade and custom is the fittest of all this body Politique to make a heart of And was wont to be the Center of the Laws and Courts of Justice whither all the people flocked for Commerce as well as Justice will by the deprivation of them be little better than as a City two parts in three destroyed or burnt And be so put into a continual lessening or decay as the rents and profits of at least a dosen neighbouring Counties whose provisions and commodities did by their neighbourhood and trading thither bear a higher price than in other remote places will be diminished as much as a half or one part in three in their Estates and manner of living and disabled to pay as they have done publick Taxes or Assessments when they shall be called for And not only those but all the other Counties and Cities of England as they shall neerer relate or communicate to those Counties be made the worse for it But the smallest Towns or Villages or most remote parts of the Land will quickly come to be wofully sensible of the distemper or decay of such a principal and vital part of the Nation The ruine or but disordering whereof by the putting down of the Law and Courts thereof may prove to be a cause of many more and greater inconveniences than if that great and general Manufacture or Trade of Clothing should be prohibited then the altering or turning the course of all the Rivers or known chanels or currents of waters or the stopping or taking away the Highwayes and known roads of the Nation could bring upon the People Whilst they that thus bespeak their own ruine do not yet perhaps so fully take into their consideration as they may hereafter when it shall be too late that the Chancery and the Courts of Justice at Westminster are as the Asylum's or sanctuaries of all that are oppressed the Protection of the people and next under God and the Supreme Authority the most certain rules of their liberties and properties And that the liberties of the People do reside and have their Being in the Laws and Courts of Justice as the vital and animal spirits doe in the blood and that it is as impossible as was not long agoe observed by a learned Judge of this Nation to Lord St. Iohn destroy the form of the Law and preserve the body as it is to take away the form of a man and to preserve his Being For when the Law like the Body natural shall dissolve or die the Justice of the Nation which is as the Soul
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
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
wisdom to any that shall so judge of them be thought to have been so to a continual succession did only correct alter and add as there were necessities or occasions but left us our Laws and reasonable customs to preserve our estates and properties Contrary to all the Petitions and pretences of Grievances that ever were exhibited by any of the people before or since the Conquest to any King Parliament great Councel or Assembly for above one thousand years To what our Auncestors did in England Who in the change of governments and succession of Kings from the Saxons to the Danes from them to the Normans thence to the Plantagenet line from the right Heirs to the wrong from the red rose to the white from the white to the red and white united in Henry the seventh from the Catholick religion to the Protestant from that to the Catholick and from that back again to the Protestant from the English line to the Scottish did never find any cause to take away that Court which they found by so long and successive experiments to be the conservator of Justice Contrary to the National Covenant which many have endeavoured to prove to be consistent with the Ingagement to what was done by the late Parliament in their reformation of religion wherein though the Bishops and Book of Common Prayer were put down and abolished and that not at once did not put down all the Doctrine of the Church or all the Discipline or parts of it nor shut up the Church doors Contrary to the many Declarations vows and Imprecations of the late Parliament The many Declarations and Remonstrances of the Army The Course held in the late Conquests of Scotland and Ireland who by enjoying their Lawes and Courts of Justice have yeelded an easier submission to it The Act of the late Parliament in erection of this Commonwealth which declared and promised to the people that they would not alter nor take away the fundamental Lawes The Peoples purpose of their ingagement upon it The Act or order of Parliament for the regulation of the Lawes The regulators Systeme and the Nature of a reformation or regulation The late Act for taking away Fines in Chancery and many of the Petitions that of late have been against the Lawes which desired a regulation but not a total taking of them away CHAP. VI. That the very Being of Parliaments is preserved by the Laws and that so great a distemper and disturbance as will come upon the people by putting down of the Laws will by a necessitie of Justice and of the better ordering of Affairs bring them back again by a revolution of time into their old Chanel WHich for so much of them as have their Principles from the Laws of Nature and right reason and the consent of them or are founded and deduced from them are so interwoven and radicated in the very Being of Parliaments so inseparable from it and so reciprocate to it as that high Court of Parliament which is not by themselves intended to be any standing or ordinary Court or Rule of Justice cannot when it shall sit upon emergencies or matters of greater consequence be without it no more than the people can in the Intervals or absence of it for that the Law of Nature which God imprinted and put into the Hearts of all Mankind and that Law of reason which bindeth Creatures reasonable in this world and with which by Reason they most plainly perceive themselves to be bound and so much of our Laws which out of the Law either of God or Nature or Reason our Forefathers probably gathered and conceived to be expedient which the learned Hooker putting all together calleth the second Hooker 1 lib. Ecclesiastical Pollicy Law eternal are so in some sort immutable as they cannot be taken away or repealed by any Act of Parliament whatsoever but will retorn and grow up again with the nature and reason of Mankind for Laws of men not contrary to the Law of God nor to the Law of reason are to be observed in the Law of the Soul and Doctor and Studient 4 Chap. he that despiseth them resisteth God and that which plain and necessary reason bindeth men unto will upon some inconvenience or necessity at one time or other get it self in again and obtain an allowance or ratification of human Laws for it Which should advise a great inspection and examination into the nature cause and effect of all our Laws before a sentence of condemnation passe against them that so it may be clearly known what and how much of them have their Being from the Law of God or Nature right reason or convenience and a value accordingly put upon them that the Gold may not be cast away for the drosse nor the Saint for his infirmity That we may not be sent to seek after in the rubbidg for that we might have kept or laid by or not seem to have pullen down all the house when some little part of it would have served the turn or to be such ill Husbands as to cast away the materials might have served for the new building and is better or more substantial than any can be gotten instead of it of which opinion were all our former Parliaments who hitherto in their correcting and altering of Laws could never be brought to forsake any thing might be good or fit to Sir Francis Bacon Judge Hutton in his argument against the ship mony and Lord Hobart in his Reports remain of them and all our Forefathers who in their greatest esteem and reverence of Parliaments did beleeve that an Act of Parliament it self enacting any thing against Common right and right reason would be void and of none effect to what end then should these men sollicite a Parliament to take away the matter of its own form and subsistence and its Being or coexistence with the Laws or to take away that which is to be a rule of justice to the people when they cannot themselves intend it or to lay by those Laws which the wisdom of their Predecessors thought they had done the people good service when they did procure them to be enacted and those reasonable customes which the people were wont to swear their Kings to observe when the late Parliament took it to be a good way for the preservation of the Laws and Liberties of the people that Sheriffs and Justices should be sworn to the Remonstrance 15 December 1641. and 26 of May 1642. due execution of the petition of right m Stiled themselves the Conservatory of Lawes took Arms for the maintenance therof appealed to the people touching that imputation which they said was then laid upon them that they which represented all the Commons of England and had so great a share in it should endeavour to take away the Laws and run so great a hazard to make themselves Slaves Wherefore if the Parliament to please these unquiet and proposing spirits and let
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
no Laws at all Was it Jethro's good Counsel to Moses to choose able as well as honest Judges and will any Trades men or Country men now serve the turn or to what a small avail had it been for the Children of Israel for Moses to have been learned in the learning of the Egyptions and to have been enabled by God himself in his taking the Laws from his own mouth if ignorant and foolish Judges had been appointed under him or to what end was Solomons prayer to God for Wisdom to go in and out before the people if those to whom he should commit the care of Justice should not know how to execute it or what would Paul the Apostle now say if he were to plead for his life before such Iudges as these Proposers would bestow upon us or how should he then say as he did to Agrippa I think my self happy Acts 26. 2 3. King Agrippa Because I shall answer for my self this day before thee especially because I know thee expert in all the Customes and questions which concern the Jews These men therfore of Novelty or change may do well to consider that all things enjoy a happiness in their rest and that a setled consistence must needs be more happy for States so called of their Stabilities than to adventure the hazard of so many changes as the humours or designs of the people shall tender unto them and to believe Plato who was of opinion that Legum mutationes Plato de legibus were perniciosae that it was most dangerous to change Laws and remember what in the Last Parliament was delivered by an eminent Member of their own for a most certain truth That the Law c Mr. St. Iohn in his argument concerning ship mony in Ianuary 1640. was the Temple or Sanctuary whither the People were to run for shelter and refuge and that part of Mr. Pyms Speech against the Earl of Sttafford published by order of the House of Commons in the late Parliament and spoken by their own sense and direction That the Law is that which puts a difference betwixt good and evil betwixt just and unjust If the Law be taken away all things d Mr. Pyms argument against the Earl of Strafford will fall to confusion every man will become a Law unto himself which in the depraved condition of Humane nature must needs produce many great enormities Lust will become a Law and Envy will become a Law Covetousnesse and Ambition will become Laws and what dictates and dicisions such Laws will produce may easily be discerned That the Common Souldiers of the Army did so well e Remonstrance and Proposals of the Army p. 11. understand it in the year 1647 as they made it their request in their second Apologie to their General the Lord Fairfax that e Justice and Judgement might be dealt to the meanest Subject of the Land according to the old Law That the said Sir Thomas Fairfax and the whole Army did f Declaration of his Excellency Sir Thomas Fairfax and the Army 14 Iune 1647 afterwards remonstrate to the Parliament that nothing was more dear and pretious to them in their thoughts they having hitherto thought all their present injoyments whether of life or livelyhood or nearest relations a price but sufficient for so rich a blessing that they and all the Freeborn people of the Nation might fit down in quiet under their Vines and under the glorious administration of Iustice and Righteousnesse and in full possession of those fundamental rights and liberties without which they could have little hopes as to humane considerations to enjoy either any comforts of life or so much as life it self And were at that time so far from desiring the Lawes to be taken away as they desired of the Parliament that the right of freedom of the People to represent to the Parliament by way of humble Petition their grievances for such things as could not otherwise be remedied than by Parliament might be cleared and vindicated and that in such things for which men have remedy by law they might he freely left to the benefit of it And that in the Parliament Anno 1648 Many of whose Members were then the Officers of the Army that had subscribed that Remonstrante were so well contented with it as in a Declaration of the Parliament of England g expressing the grounds of their proceedings and of setling the present Government in the way of a Free State they declared unto the People in these words viz. that They are h Declaration of the Parliament of England 17 March 1648. p. 24. 25 very sensible of the excellency and equality of the Laws of England being duly executed of their great antiquity even from before the time of the Norman slavery forced upon us of the Liberty and Property and Peace of the Subject so fully preserved by them and which falls out happily and as an increase of Gods mercy towards us of the clear consistency of them with the present government of a Republique upon some easie alterations of form only leaving intire the substance the name of King being used in them for form only but no power of personal administration of judgement allowed to him in the smallest matter contended for They know their own authority to be by the Law to which the People have assented and besides their particular interests which are not inconsiderable they more intend the Common interest of those whom they serve and clearly understand the same not possible to be preserved without the Laws and government of the Nation and that if those should be taken away all industry must cease all misery blood and confusion would follow and greater calamities if possible than sell upon us by the late Kings misgovernment would certainly involve all persons under which they must inevitably perish and that these arguments are sufficient to perswade all men to be well contented to submit their lives and fortunes to those just long approved Rules of Law with which they were already so fully acquainted and not to believe that the Parliament intends the abrogation of them But we have read of a people that died with quailes in their mouths and of a generation of that people did expostulate with a Roman Magistrate for going about to hinder them in their Self-destruction we shall therefore leave these Proposers to the busie imployment of their own imaginations and make our addresses to the Supreme authority who being called together for the works of righteousnesse and Iustice and bringing good intentions along with them have a power to give a stop to that Fury is now amongst a small part of the People but enough to undo all the rest Humbly beseeching them to rescue out of their hands the Laws and Birthright of the people and to reach out their hands to preserve that Law of Property which God himself by Thundrings and Lightenings pronounced from Mount Synai and wrote i
8th Commandement in the Decalogue a second time with his own Finger That the Judges and professors of the Law and also all Persons interessed or concerned in any losse may happen by any alteration thereof may be heard or advised withall in what particulars may be charged aâ—â—â—â—â—â— the Laws in being or thought fit for reformation and to take into their consideration That in the reformation in the Body natural the Cure is never gone about by a total dissolution nor any part of it intendedly cut off even in case of Gangrene where there is any hope to keep life or to cure without it That the Petitions which have been against the Laws are not the voice or general outcry of the People in their several Counties or made by the consent or approbation of the major or any considerable part of them but are an Engine or Artifice of some people never made use of till these times of Troubles to advance their designs and conveniences and bring ruine to others by petitioning in the names of a whole County or Province of which many times not one in every thousand of the Inhabitants ever knew or heard any thing before of it Too many of the Petitions concerning publique affairs having been of late and for some years past made and framed by a few in the name of many and many times not in the place or County from whence they seem to come 20000 hands said to be subscribed when there was not so many scores of those many ignorant peoples names or marks put to it that were meerly led or seduced unto it eighty Schools Boys have at once subscribed their names to a Petition by the procurement of their School Master some have had their names subscribed when they were never privy unto it and others that could not write or read have been drawn to suffer their names to go along with a Petition was for other matters than they were informed of And that if all the People of this Nation were but freely called together by Tribes and Wards or Centuries to give their votes concerning our Laws as the People of Rome k were to peruse and approve the Laws of the Ten Tables brought from Athens and to speak and give their voices as freely as they did then there would be one thousand for or to every one that should appear against it would not only consent to the continuance of the Laws and Court of Iustice we have in being but be most earnest Petitioners for them And would be pleased if upon a free full hearing as hath been lately granted in the matters of Tithes any thing shall be found fit to be abrogated or taken away they to consider That in the Acts of Parliament of 27 Henry 8. cap. 28. 31 Henry 8. cap. 13. Touching the dissolution of Abbies there is a saving of all Corodies profits pensions due to any other than the Donors their Heirs Abbots Abbesses c. In the Act for establishing Laws Ordinances in Wales 34 35 Hen. 8. cap. 26. There is a saving for the Kings Officers for their Offices and Fees In the power given by Parliament to Queen Mary in the first year of her reign to dissolve alter unite or put into one the Courts of first fruits Wards Surveys Augmentation and Dutchy of Lancaster there is an expresse saving of all annuities pensions fees stipends or sums of money which they might or ought lawfully to have by any letters patents or grant of the said Court of Augmentation And that if the Queen should annex any of the said Courts to the Exchequer it should be with a saving to all persons of all Offices of keepers of Chases Parks Houses and the profits thereof and all Rents Annuities Fees c. with a provisoe that that Act should not extinguish or take away from any person any Fees or Sums of Money which they Lawfully had before the seventh of Iuly then last past That in the dissolution of the Abhies by Hen. 8. provision was made and pensions given for life to such as had places or imployments in them as to Readers Curats c. and the like and Corodies or provision of diet made into a yearly pension granted out of Abbies and Priories saved to those that had right to them many of which are to this day enjoyed by the purchasers of them That in the Act of Parliament 3 Jacobi cap. 16. For the bringing of the new river water to London recompence and amends was to be made and given before hand to such as should be endamaged by it That in the Act of Parliament 7 Iacobi cap 19 for the continuance repair of a Weare upon the River of Exe near the City of Excester recompence is provided for any that shall be losers thereby for that as the words of the Act are it standeth with the rule of Equity and Iustice that those which should receive so great benefit by it should yeeld competent and sufficient recompence to such as should sustain any losse or detriment thereby That in the putting down of Episcopacy in Scotland in the late King reign the Parliament of Scotland did think fit to allow to the Bishops yearly pensions or maintenance during their lives and suffered them to enjoy it That in the last Parliament of England satisfaction was promised to the Officers and Clerks of the Court of Wards upon the dissolution thereof and so much intended as the Lord Say and Sr Penjamin Rudiard had some thousands of pounds paid or promised unto them and a Committee was appointed to consider of the value of every Clerks place and their losses sustained by it The Wives and Children of Ministers that were put out of their Benefices and of Delinquents were allowed a fifth part of their Husbands estate And that in the Proposals or Petitions for taking away of Tithes there is a desire or intention to give to them a maintenance equivalent by some other way That in the Act of the Parliament 29 May 1649. for the draining of the Lincoln Shire and Cambridge Shire Fenns the Commissioners have power to make satisfaction to such persons whose Interest or Lands shall be made worse in quality or condition by the draining of them proportionable to their losse and damage That 2 Reg. 23. 9. Iosias king of Iuda in his reformation and turning to the Lord with all his Soul and with all his might did breaking down the high places permit the Priests though Causers of grosse Idolatry and more peccant than any which do now belong to the Law to eat of the unleavened bread among their Brethren That by the rule of our Saviour Christ in the Gospel we are to do as we would be done unto And that the promise in the first Act of this Parliament to be as carefull of the Peoples property and liberty as of their own lives and estates will not be performed without having rightly informed themselves before hand of what they would put down or alter hearing those that are concerned and giving them a just recompence for what shall be thought fitting to be taken away Which if for a general good may for such part of the Law as shall be found fit to be abrogated or taken away be done With content to all People and according to natural and common equity By a Publique and general Assessment or some other way of certain satisfaction for it That so there may be a mutual preservation of the people no sighing of multitudes of poor or broken in Spirit nor complaining in our Streets FINIS By the Authors absence from the Presse the Errata's following have escaped the Printer which the Reader is intreated to amend or supply IN Page 9. line 12. adde which in l. 33. dele for in p. 16. l. 7. r. Jesuitical in l. 33. r. and p. 17. l. 6. r. abstract in p. 19. l. 9. r. or for as in l. 10. r. the mistake of the Judges in p. 20. l. 1. r. and in p 20. l. 25. dele but in l. 32. r. now be had for it in p. 25. l. 8. r. may then in p. 26. in l. 3. of the title of Ch. V. r. of this in p. 26. l. 7. r. Syllan in l. 15. r. Reformation of in p. 28. l. 14. r. have been in p. 29. l. 1. r. and from in l. 10. r. they did not p. 31. l. 25. r or fit in p. 32. l. 19. r. it is p. 33. l. 1. r. new modeld in p. 34. l. 5. dele to in l. 6. r. Assistant in the latter end of l. 32. dele the in p. 35. l. 4. r. rightly in l. 10. dele and and r. can no more be kept from in l. 11. dele can no more be kept from and in l. 12. adde and in l. 12. dele save in l. 17. r. should in p. 36. dele and in p. 38. l. 23. adde that in p. 39. l. 26. r. Canon in p. 40. l. 23. r. will little help the busines l. 25. r. and to oppose l. 29. r. be in p. 41. l. 3. r. or if in l. 14. r. had advised in l. 25. r. that should in p. 47. l. 5. r. the in p. 49. l. 11. r. security in l. 33. r. and p. 50. l. 23. r. were in p. 51. l. 3. in the Margent r. 9 H. 3. cap. 11. in p. 54. l. 6. r. 27 H. 8. cap. 5. in p. 55. l. 21. r. Serjeant p. 57. l. 14. r. attachments upon l. 18. r. Withernam in p. 62. l. 9. r. to in p. 74. l. 6. r. Benjamin in l. 24. r. in in p. 69. l. 23. dele in adde in Anno in p. 46. l. 3. r. one hundred and Thirty thousand in p. 24. l. 16. r. allowed in l. 17 dele to Bricklayers and Carpenters