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A34350 Considerations touching the dissolving or taking away the court of chancery and the courts of iustice depending upon it with 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. 1653 (1653) Wing C5918; ESTC R18810 47,697 80

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which some are content to leave at Westminster to determine Appeals and other necessaries to that contrivement as there will be Counties the yearly allowance or Salarie of whose Judges if they should have but two hundred pound per Annum for every Judge according to the number of Five in every County Court of Fifty will amount to 50000 l. per Annum more charges than the Commonwealth is at already for Judges Salaries And when they shall be thus paid and furnished out will if Lawiers shall be so much excluded from being Judges as hath been proposed be as to Four in every Five of them meer Strangers to the Laws of the Land or know so little of them as not to be relyed upon for their Judgements For we cannot suppose that the eleven Judges in the Courts at Westminster Hall are intended to be any of them or can be at one and the same time at Westminster and in these new County Courts or serve or be enough to make one in every of these Fifty County Courts as some would contrive it to sit with these new County Judges who having as is to be feared not read much of men or books will have no ground or capacity for knowledge to grow in nor any thing of parts or learning to build up an ability withall but be willfull or obstinate in their ways or opinions for want of better understanding or domineering because they shall not be able to know when they do well or ill And if they should be honest which perhaps will not alwayes happen their want of knowledge of the Laws and the rules they should go by their not knowing how to understand what shall be said to them nor what answers to give their inability to expound the Law by other Laws or make a right construction of the words or meaning of Deeds or Parties or to distinguish and divide betwixt truth and falshood right and wrong reason and pretences of it colour or reality or how to find the difference betwixt the Cases or Evidences that shall be urged by the one side or the other or to state the matter of Fact or to sever the point or material part from the circumstances will make them as fruitfull in their oppression as in their errors and mistakes apt to be led or mislead by their fellow Judges that shall be Lawiers or which will be worse to be like wax taking the impression of every mans Seal that shall be last clapt upon them be directed by a Wife or Clerk or some other simple or knavish favourite that shall broak and trade in every cause that shall come before them and be sure to abuse it Trouble and delay the people with needlesse scruples and niceties by making Quaeries or doubts of that which to others would be common and easie and stumbling at every word that comes not up to their apprehensions give advantage to knaves and put men to seek indirect Courses or ways to ballance the Judges because they dare not trust them to do that which they ought to do hurt rather than help such as shall be innocent and oppressed or are not allowed Counsel to plead for them make them be ready to allow of all the reasons given by the Plaintiffs Counsel and as ready to approve of that which the Counsel for the Defendant shall urge against it and for want of knowledge to guide them in their Judgements to be incertain and instable making an order one day at the instigation of the Plaintiff and another the next day quite contrary to it at the request of the Defendant be like Feathers blown with every wind of Doctrine and like Bowls run only according to the Byas shall be put upon them one will like the Mole in the Fable think himself the most clear sighted of all his fellows another help to mislead himself and others by endeavouring to make men believe that which he speaks is from Christ Jesus when he never spake with him or knows how to expound his written word another will have a fancy of the Spirit or think himself guifted when he himself would not trust the most guifted Trades-man to settle a Daughters joynture or make his Conveyance when they shall have nothing of learning or Law to make use of but their own will weak apprehensions will make such kind of Justice as will be had from them more arbitrary than that of a Tyrant whose will and purpose of governing without Laws when he knows them cannot be so lasting and dangerous as the will of those men of ignorance which shall be only guided by the necessity of an invincible ignorance and may prove to be a greater oppression to the people than it those that shall be thus made to be corrupt or to do like unrighteous Judges had been knowingly wicked for that the one sort doth commit numberlesse errors by not knowing them and the other committs but a few because they dare not adventure to do it often Whereas the old constitutions and course of the Laws of England as ill as the proposers think of them knew how to serve the people better by making choice of such men for Judges as by Seven years study in an Innes of Court or Colledge of Law had come to the degree of Barresters And from thence after a great number of years practice and continuance of Study to be Readers of the Law to the Innes of Court whereof they were after that Serjeants at Law and after that for their eminency of parts and honesty to be Judges where by a continual Study observation and practice of the Law from their age of 16 or 17. until they came to be as it most commonly happens before they come to be Judges above Threescore years of age they became to be great Masters of reason and so fully experimented in the whole body of the Law and Customs of the Nation as by their knowledge therein and of the Civil and Cannon Laws which border upon them and so many Cases and experiments as had in all that time passed through the course of their Studies and practice as they were honourable in the gates of their people and appeared compleatly able to contradict or rectifie Hundreds of other Lawiers that moved or pleaded before them and not only to advise the Supreme Authority when they were called to it concerning the making or executing of Laws but to apply fit remedies to every mans action or grievance that came before them and had all their life after no other Trade or profession to divert or call off their thoughts from a continual Study of the Law and right administration of justice But if it shall be said that all that Catalogue of evills will be prevented by a carefull choice or election of such as shall be made Judges out of the best or most knowing of the people that will but little amend the matter when the Lawiers all but such as shall be chosen to make one
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