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<DATE>2011-06-15</DATE>
<RESPSTMT>
<NAME>Olivia Bottum</NAME>
<RESP>MURP</RESP>
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<VID>118010</VID>
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<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P><HI>ENGLANDS COMPLEAT Law-Judge, AND LAWYER.</HI></P>
<P><HI>Declared in the&s;e en&s;uing Heads;</HI>
<LIST>
<ITEM><HI>1.</HI> Whether that Law and tho&s;e Judges and practizers owned time out of minde by the Supreme Authority of the Nation, be not the Laws, Judges, and Lawyers of this Common-wealth, &amp;c.</ITEM>
<ITEM><HI>2.</HI> Whether Courts &s;o con&s;tituted are not Records of the Nation?</ITEM>
<ITEM><HI>3.</HI> Whether each Court hath not power, as &s;uch, to enforce its owne Decrees.</ITEM>
<ITEM><HI>4.</HI> That the Decrees and u&s;ages of &s;uch a Court are as valid as of any Court.</ITEM>
<ITEM><HI>5.</HI> Whether it be not again&s;t Rea&s;on, that when divers Courts in the &s;ame Nation act by divers Lawes, one of the Courts &s;hould have power to prohibit the other to proceed to bring the matters in difference before it &s;elf.</ITEM>
<ITEM><HI>6.</HI> Concerning Judges of Appeale.</ITEM>
</LIST></P>
<P>LONDON, <HI>Printed for</HI> Edmund Paxton <HI>at</HI> Pauls-chaine <HI>over again&s;t the Ca&s;tle-Taverne. 1656.</HI></P>
</DIV1>
<DIV1 TYPE="dedication">
<PB REF="2">
<PB REF="2">
<HEAD>TO HIS HIGHNESSE THE Lord Protector Of ENGLAND, <HI>&amp;c.</HI></HEAD>
<OPENER><SALUTE>Great Sir,</SALUTE></OPENER>
<P>_IT is not any intere&s;t, or re&s;pect to the Pro|fe&s;&s;or of the Civil Law, nor envie at, or di&s;obligement from the Practizer of the Municipal Law of this Nation puts me upon this work, but a pure zeal to, and love of Ju&s;tice (or my own heart deceives me, and in &s;incerity I have &s;earched it as narrowly as I could) You &s;it at Sterne, and have laid hand to the Helme: where you find a good and ju&s;t rule, I hope you will not alter; and where you finde none, or a broken, weake, defective one, I &s;ee your de&s;ires are &s;trong for <HI>Refor|mation:</HI> but you will &s;ee, that while you &s;et one thing right, you bring not di&s;order upon all. Sir, 'tis your wi&s;dome; for as in the natural, &s;o in the politick body, each great alteration is dangerours; Con&s;titutions
<PB REF="3"> mu&s;t be altered &s;lowly; the fowler the body, the more need of preparatives before the Purgation comes; yea, it is fit the patient in &s;ome mea&s;ure have &s;ome intima|tion of his condition, that he may more willingly receive his cure, that imagination obstruct not due operation, and that his Phy&s;itian gaine his affection, le&s;t prejudice operate more for de&s;truction, then the medicine for pre&s;ervation; The&s;e things are as natu|ral to <HI>Societies,</HI> as per&s;ons, to the Politick, as natu|rall body. I have here di&s;covered what of nece&s;&s;ity requires a remedy, and that &s;peedily: before a di&s;ea&s;e hath brought the body low, it will endure heats and colds, and many di&s;tempers, alter little or nothing vi|&s;ibly, but the dregs remaine, and bring the di&s;ea&s;e by degrees to a height, and then each &s;light offence is ta|ken, and &s;trong di&s;tempers appeare to danger and ru|ine. I feare the Politick State labours under a Cri|tical &s;igne, the di&s;ea&s;e is growne &s;o &s;trong, it hath &s;uch a height, that the utmo&s;t skill of a wi&s;e Phy&s;itian, yea, guided and &s;econded by the all wi&s;e hand, mu&s;t inter|vene for <HI>Re&s;tauration,</HI> or danger is threatened. This thing now pre&s;ented to you was an evident &s;ymptome what time would and mu&s;t work in the &s;ame; For, in this <HI>Nation</HI> of <HI>England</HI> you have variety of <HI>Juri&s;|dictions,</HI> every of which have long bandied again&s;t each other: for although the Courts of Law and Equi|ty were at variance, yet both &s;eemed to joyne again&s;t
<PB REF="3"> the <HI>Civilian.</HI> Princes &s;aw it, and it may be thought it a piece of policie to keep them at a di&s;tance; but it's a certaine rule, the building is weak that is rai&s;ed upon a loo&s;e foundation. There are as demon&s;trative rules in Government, as in Architecture; and the intention of Societies, Colledes, Fraternities, or what you will, were allowed for unity &s;ake; and that not onely in, and with the Society it &s;elf, but each with other mutually; for all make up but as members the body of the Com|mon-wealth: the Head rules all. <HI>I</HI> &s;hall not touch up|on the varieties of Government, all which repre&s;ent the Head, but mu&s;t &s;ay, the Heads function and duty is to &s;ee each member act in his due place, and not &s;uffer them to quarrel each with other to the general prejudice; I regard not who be chief <HI>Chancelour,</HI> nor <HI>Chief-Ju&s;tice,</HI> I &s;eek not Eminencie, but a due of honour or reward for the Judges of <HI>Admiralty</HI> or <HI>Pro|bates;</HI> I would not an enlarging of either juri&s;diction to the prejudice of another: but though that part of the Civil Law here u&s;ed be not onely fitted to the Me|ridian of <HI>England,</HI> but all Europe allowes the ju&s;tice and rea&s;on of it; yet let it be the Law of <HI>England,</HI> and &s;o owned by all Engli&s;h Judges. And though the <HI>Chancery</HI> be not a Court of Law, in regard of the Courts of <HI>Upper-Bench</HI> and <HI>Common-Pleas,</HI> yet while I conceive upon the due Rule, it ought in a legal way to allow nothing, but where the Law would have, that
<PB REF="4"> is not to go again&s;t Law, but to &s;upply where extremi|ty was ruinous, moderating the &s;everity and rigour of the letter-Law, (and indeed there was a nece&s;&s;ity of it in mo&s;t ca&s;es, while an i&s;&s;ue upon a point onely was al|lowed) it is to be accounted the law of <HI>England,</HI> and let all the Acts of all tho&s;e Courts be allowed in the Courts of Law, as with each other. The evil is apparent: there is a ca&s;e proper to equity, &s;tate it, and go to a Lawyer for his opinion in Law, he takes Law onely for that called the <HI>Common-Law,</HI> and puts a man upon &s;uits to his overthrow, for he knowes the <HI>Chancery</HI> will give relief again&s;t it; I know many Lawyers do not &s;o, but they know many do. I would not be tedious: there is happily greater nece&s;&s;ity of this then is conceived, and this may content more then other things have di&s;|reli&s;hed. The men to deale with in this ca&s;e, are wi&s;e and prudent, and no doubt will, if con&s;ulted, agree to rea&s;on. I have onely with as much moderation as I could, pre&s;ented this to con&s;ideration. I have cleared my owne con&s;cience, and remaine</P>
<CLOSER><SIGNED>Your Highne&s;&s;e humble Servant, <HI>Theophilus Philopatros.</HI></SIGNED></CLOSER>
</DIV1>
<DIV1 TYPE="dedication">
<PB REF="4">
<HEAD>TO THE RIGHT HONORABLE, THE JUDGES OF THE <HI>LAWES</HI> OF England.</HEAD>
<OPENER><SALUTE>Right Honorable,</SALUTE></OPENER>
<P>_THough the Government of a Co~mon-wealth be not a Head or quarter of the Municipal Law of Law, and &s;o the pra|ctical Lawyer, little needing to &s;tudy or know that point; yet mo&s;t Students are from their ingenuous Education &s;omething &s;eene in univer&s;all
<PB REF="5"> learning, and from that not ignorant of Po|liticks; That providence which ordained you (my Lords) to &s;o high tru&s;ts, gave you &s;ouls large, and of capacity for the places. You mu&s;t know, both from your reading and experience, how to &s;upply whatever might be defective in the mo&s;t accurate &s;ettlement of a Common-wealth and how to governe according to eve|ry e&s;tabli&s;hment; and know what is to be done, to proportionate the whole in every part, &s;hould nece&s;&s;ity enforce any alteration. You are not unworthy men, who&s;e ambition have made them catch at worthy places, and &s;atisfie their con&s;ciences with a deliberative Vote, though they know no rule of Law; you are not onely knowers, but lovers of Wi&s;|dome (and Ju&s;tice is a right witne&s;&s;e, other|wi&s;e a foole might, going according to his light, a childe, or woman, give as good a judgement as the able&s;t Philo&s;opher.) Judge|ment is a deep fountaine, who&s;e bottome each Bucket cannot arrive at; It's given to them that &s;eeke after it, (that is, by due &s;earch, and enquire into each particular action, and qua|lification of him&s;elfe and others; for he mu&s;t read him&s;elfe well, who will know others aright): You are <HI>Sages,</HI> men, quick,
<PB REF="5"> and ready, from long experience to determine, not onely in the deeper que&s;tions and re&s;o|lutions of the Law, but al&s;o in the nice quaint &s;ubtilties of wit and practice. I ju&s;t|ly apprehend my inability to bring forth ought worthy your view, but I &s;eeke not applau&s;e nor acceptance to or for my per|&s;on; but my aime, de&s;ire, intention and prayers are for the publike, for the good of the Common-wealth, that each per&s;on in his place, and each place to the per&s;on might be &s;o &s;etled, con&s;tituted, and fitted, that the e&s;tabli&s;hing of part, might but make the whole more glorious and la&s;ting; It is an age of Intere&s;t, great, never greater; your places are high, and your patterne will be exemplary. If ought here convince you that any thing may be done for the better|ing of the Common-wealth; be active in it, delay not, it's a &s;ea&s;on of Judgement as well as Intere&s;ts; and its truly noted, neither have Mercies allured, nor Judgements terrified hitherto. You know, not onely the &s;ecrets of Government, but of Judgement: you may thence conclude how much more wi&s;e|ly, God deales in his both governing and
<PB REF="6"> judging the world: Its a truth in Politicks to the State, as in rea&s;on to the per&s;on; Laws mu&s;t be as well fitted to the times and of|fences, as cloathes or &s;hooes to the body or feet. Was it not a Tyranny to cut the &s;tran|ger &s;horter that lay in the Tyrants bed, to the dimen&s;ion of that, as well as to &s;tretch him that was too &s;hort to the length? There mu&s;t be a jealou&s;ie le&s;t the Lawes be alter|ed, and the principles of property and pri|viledges lo&s;t by degrees: but let it be &s;o, that we lo&s;e not more by the conte&s;t, then we can gaine by having them; You are to declare the Law, but Evidence that Law &s;a|lutary to the people, or you ruine us. You &s;ay, better an ill Law then none: And I &s;ay, better Judges to execute nece&s;&s;ary pow|er, though it be a que&s;tion whether legally they have that power, &s;o it were fit they &s;hould have it, then to let people do inju|&s;tices for want of a Law, or power to en|force that Law. I leave the thing with you: the Lord &s;et it home to your hearts, that what is ju&s;t may be done ju&s;tly, and the cry of the oppre&s;&s;ed may cea&s;e: In pro&s;ecu|tion of which, I &s;hall ever begge the a&s;&s;i&s;tance
<PB REF="6"> of heaven upon you and your endeavours, and labour to approve my &s;elfe a friend to <HI>En|glands</HI> Law, my birth-right, and</P>
<CLOSER><SALUTE>Right Honourable,</SALUTE> <SIGNED> Your &s;ervant Theophilus Philopatros.</SIGNED></CLOSER>
</DIV1>
<DIV1 TYPE="to the reader">
<PB REF="7">
<PB REF="7">
<HEAD>TO THE ENGLISH <HI>READER.</HI></HEAD>
<P>_I Have little to &s;ay to thee; each man is not fit to judge of all things: my &s;cope is but to &s;hew thee a truth, which hath beene much endeavoured to be kept from thy knowledge; Namely, that all the Admini&s;trations of Ju&s;tice in <HI>England</HI> by what Law &s;oever called, as Common, Civil, or Equitable, all make up but <HI>Englands</HI> Law; and you have an equal Birth-right to all; I agree, they may be altered according to the Rule of the Nation; And then I &s;ay, that alteration is the Law. So that I would not alter the Law, nor ou&s;t the Common-Law, nor introduce the va&s;te body of the Civil Law; no, I am to have Lawes plaine and ea&s;ie, but Judges deep and &s;earching: I de&s;ire certainty in Courts, and a&s;certaining the Juri&s;diction of the Courts: and becau&s;e difference may be, while &s;ome things may equally participate of both Lawes, &s;o it may (as to &s;ome part) belong to one Court, and other part fit to be tried in another upon the rigid letter of the
<PB REF="8"> Law. It may belong to a Common-law-Court, and yet the ju&s;t deci&s;ion of the Ca&s;e from the nature of the Contract nece&s;&s;arily require the Rule of the Civil-Law: That there may be a way to &s;ettle this con|trover&s;ie before great expence be, and then to have it removed; And that as the ca&s;e now &s;tands upon &s;o vi&s;ible an Intere&s;t, as hath nothing of Rea&s;on to warrant it, is this intended; Boggle not then at this, nor at the Author, who profe&s;&s;es to love God and his Countrey, and would not then do ought tending to &s;ubvert <HI>Englands</HI> Law, or take away the lea&s;t due priviledge of an Engli&s;h man. Therefore that you may duly endeavour it, praying for it, and ju&s;tly &s;ubmitting to it when &s;ettled, is the &s;ole and utmo&s;t end, with Gods glory, of</P>
<CLOSER><SIGNED>Theophilus Philopatros.</SIGNED></CLOSER>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="text">
<PB N="1" REF="8">
<HEAD>ENGLANDS COMPLEAT Law-Judge, AND LAWYER.</HEAD>
<P>_ENGLAND hath alwayes without que&s;ti|on had Courts wherein the principal part of the Law admini&s;tred, was not according to any particular part of the owned Com|mon-Law of the Nation, but according to the ever u&s;ed and accu&s;tomed Law of tho&s;e Courts, &s;et up for admini&s;trating Ju&s;tice to the people of the Nation in &s;pecial Cau&s;es; Concerning two parts whereof I principally intend this di&s;cour&s;e. The fir&s;t doth generally concerne the people of this Nation; The other concerns equally any other Nation in the Univer&s;e. That which concernes the people of this Nation, is the Court (now commonly called) for <HI>Probate of Wills,</HI> and grant|ing <HI>Admini&s;trations:</HI> The other which concernes all peo|ple, or may concerne them is, the Court of <HI>Admiralty</HI>
<PB N="2" REF="9"> (&s;o called) being a Court properly (not onely) ac|commodated with Lawes and Rules for Trade and Commerce by Sea; And with Nations and people u|&s;ing Lawes diver&s;e from the Generality called <HI>Munici|pall Law of England,</HI> yet generally received in the Ju|dicatories of mo&s;t of the European Nations; All which with <HI>England,</HI> being originally Limbs of the va&s;t bo|dy of the Romane Empire have univer&s;ally retained the Lawes, or the generality of the Lawes of the old Empire, but yet have their <HI>Municipalia</HI> &s;till, though their procedures be in them generally by the Rules of the Civill Law, &s;o called, they admitting no diver&s;ity of practizers in their Lawes as with us, but both the general Law of the Empire with them received, and the Lawes of their particular Princes, Diets, Parlia|ments and A&s;&s;emblies are equally owned; the Law of that Land, Nation, or people, and the Doctors of the Lawes, as &s;uch, pleads both, as occa&s;ion requires, without controver&s;ie of Courts or practizers, while here many controver&s;ies have ari&s;en to the ob&s;tructing of Ju&s;tice, and infinite dammage, vexation, and charge of the people, and to the di&s;honour of the Nation at home and abroad. The controver&s;ie I &s;hall endeavour to render as truly and per&s;picuou&s;ly, yet as briefly as may be; and therefore &s;hall handle it under &s;everall Heads: As fir&s;t,
<LIST>
<PB N="3" REF="9">
<ITEM>1. <HI>Whether that part of the Civil-Law which hath beene time out of minde, received, u&s;ed, and allowed in publike Judicatories, authorized by the unque|&s;tionable Supreme power of the Nation in Parlia|ment be not to be received as, and is part of the Law of the Land, and con&s;equently the Judges of tho&s;e Courts, Judges, &amp;c. and practizers, practize of &amp;c.</HI></ITEM>
<ITEM>2. <HI>Whether a Court &s;o constituted and authorized, cannot be, and is not a Court of Record of this Na|tion?</HI></ITEM>
<ITEM>3. <HI>Whether it be not naturally and properly incident to every Court, to have power to enforce its owne Decrees in what is properly cognizable by it?</HI></ITEM>
<ITEM>4. <HI>Whether the U&s;ages, Rules, and &s;tile of a Court in</HI> En|gland, <HI>of as long continuance as any court &s;o called of Common-Law, hath not as much power, vertue and energy, as in a Court that properly Judges of &V;|&s;ages and Cu&s;tomes, and other Lawes e&s;teemed more proper to the Nation?</HI></ITEM>
<ITEM>5. <HI>Whether in a Nation, where divers Courts are ad|mitted, proceeding judicially, and definitely accord|ing to diver&s;e original Lawes, it can &s;tand with rea|&s;on that one of the&s;e Courts &s;hould have power to prohibit the other to bring any matter before it &s;elfe, or decide to what Court the Cognizance belongs?</HI></ITEM>
<ITEM>6. <HI>Concerning Judges of Appeales.</HI></ITEM>
</LIST></P>
<DIV2 N="1" TYPE="part">
<PB N="4" REF="10">
<P>As to the fir&s;t, I conceive there is but three wayes whereby Lawes have properly their birth; The fir&s;t is, con&s;titution, by the lawful, wonted, or authorized power of a Nation, Countrey, or the like, and pro|mulgation by the &s;ame accordingly: which is certain|ly the pure&s;t &s;ettlement of a Law, for the Law &s;o &s;ettled and promulgated is ever the &s;ame, and a li|ving &s;peaking Record of the Will of the Law-maker; not properly alterable, but by the like power.</P>
<P>The &s;econd way of u&s;hering a law into the world, (yet univer&s;ally accepted) is Cu&s;tome and U&s;age, which after once generally received, and publikely knowne, hath the force of a Law, and ju&s;tly, for experience hath manife&s;ted both its fitne&s;&s;e and accep|tation: yet have ever beene, and its of nece&s;&s;ity that the Magi&s;trate &s;hould, when time hath given them the &s;trength of Lawes, require a publike a&s;certaining of them to prevent the evils (evident in <HI>England</HI>) from the proofe of them by ignorant and intere&s;ted Te&s;timo|ny.</P>
<P>The other way, as it may be called, is Allowance and u&s;age of a &s;ettled certaine con&s;tituted Law in a Countrey, though the Lawes were not made by the pre&s;ent legal authority of the &s;ame, (or by a &s;trange Prince of another Countrey) yet there u&s;ed and not di&s;allowed, but rather by owning the Court, and not di&s;owning the Law allowed and confirmed, which cer|tainly hath the vertue of U&s;age, and the certainty of con&s;titution in it.</P>
<P>Bring then either the Court of <HI>Probats</HI> or the <HI>Ad|miralty</HI> to their Trial, and I conceive the Law in them u&s;ed and admini&s;tred, will have either from Con&s;titu|tion or U&s;age, or both, as great &s;trength as any Law in <HI>England</HI> to be radically ve&s;ted in the people as their birth-right. As to tho&s;e Ca&s;es there Cognizable, the U&s;age is, I conceive, without di&s;pute; but you will &s;ay, will you bring in the whole Civil-Law? or which part do you intend? Tho&s;e Courts u&s;e the whole body
<PB N="5" REF="10"> of the Civil Law, and then you will &s;ubvert the Law of <HI>England.</HI></P>
<P>I &s;hall an&s;wer with a caution, for I &s;uppo&s;e mo&s;t wi&s;e men when they &s;ee the objection, will &s;ee the weakne&s;&s;e of it, for it concludes a general from a particular. But I &s;ay, fir&s;t, as to the Court of <HI>Probates,</HI> the matters there cogni|zable, are &s;pecially <HI>Probates of Wills,</HI> and from that the <HI>Ad|mi&s;&s;ion;</HI> I &s;ay Admi&s;&s;ion or Allowance of Executors, or di&s;allowance; for they cannot grant it to fooles and ide|ots, nor &s;hould, to per&s;ons Outlawed, convicted of great crimes, or notoriou&s;ly debaucht, that the e&s;tate being &s;pent, there may be a &s;uit at Common Law, for wa&s;ting of it, and the Legatees wholly defrauded of their right; And they have, or are to have who are Judges of Wills, cogni|zance of the Te&s;timony or Witne&s;&s;es, &s;o as to reject or re|ceive according to the Rules of the Law in that Court u&s;ed. And &s;o farre the whole Civil Law, as to tho&s;e Heads, ought I &s;ay, as u&s;ed to be received. So in the proofe of <HI>Nuncu|pative Wills,</HI> or <HI>Wills</HI> by word of mouth, I intend not to the number of witne&s;&s;es, for <HI>England</HI> hath &s;till allowed its people the favour of a <HI>Military Te&s;tament,</HI> requiring but two witne&s;&s;es, but to be Judges of the validity of their Te|&s;timony. So in admitting <HI>Guardians</HI> to <HI>Minors.</HI> And al|&s;o in granting <HI>Admini&s;trations,</HI> and revoking them upon grounds laid downe for revoking <HI>Admini&s;trations</HI> by the Civil Law, &s;till ob&s;erving the Rule of the Statute-Law of the Nation in their &s;econdary or after grant, as in their o|riginal; I &s;ay the &s;ame of <HI>Legacies,</HI> being but a member, and derivative from <HI>Wills,</HI> and that Law be&s;t fitted with Rules for &s;ettling the &s;ame; and its mo&s;t agreeable to rea|&s;on, that that Court which hath the principal, and is to Judge of the whole <HI>Will,</HI> &s;hould be&s;t judge of a <HI>Legacie,</HI> be|ing but a part of the &s;ame whole, and not fir&s;t judge the whole in one Court, and after &s;end part of it to be judged in another.</P>
<P>But here it will be objected, that the Statute gives the <HI>Ordinary</HI> onely power to grant <HI>Admini&s;tration</HI> to the next of kinne, and gives no power of revoking.</P>
<PB N="6" REF="11">
<P>I an&s;wer, each eye may &s;ee the captiou&s;ne&s;&s;e of the Objection. Did the Parliament that made that Law, think we, or can we &s;uppo&s;e it intended only a &s;nare to the people; ever the&s;e dark times of Religion had more light of morality, for it was never then que&s;ti|oned, though the Ordinary and his Judges then u&s;ed a greater latitude of power then the pre&s;ent Judges will do. But lets enquire what was the end of the Law; and to &s;ee that, lets con&s;ider fir&s;t, what was the rea&s;on of making that Law. I &s;uppo&s;e it's manife&s;t, that many Ordinaries (there being no expre&s;&s;e penalty) ha|ving mi&s;u&s;ed the power to them intru&s;ted, or by them u&s;ed, in granting <HI>Admini&s;trations</HI> to &s;trangers to the defrauding the next and nighe&s;t kindred; to prevent that evil, and do the kindred right, that Law was made only, or chiefly, to limit the Ordinary to the per&s;on or per&s;ons equal in degree according to Rules of Law, and according to the &s;ame capable to re&s;train &s;uch exorbitants under a penalty, and not alter the Rule which was ju&s;t, and the &s;ame, though abu&s;ed be|fore that Law was made. And therefore I conceive it clear, and not to be denied, whatever judgements and rea&s;ons I have &s;een to the contrary; that notwith&s;tand|ing that Act for granting <HI>Admini&s;tration</HI> to the next of kinne, the Judges may not only in ca&s;e of a &s;i&s;ter and brother, grant to the &s;i&s;ter, but in ca&s;e they &s;hould both be legally unfit who are in next degree, grant it to the more remote, who then are as next; be|cau&s;e of the legal exception: The Law according to right rule and con&s;truction, implying all tho&s;e things which by nece&s;&s;ary con&s;equence are required to a ju&s;t Law, and may al&s;o upon the &s;ame ground take bond for di&s;tribution (not according to the will of the Judges (that being purely arbitrary may (how well done &s;oever) be very evill in effect) but according to the Rule of Law, which doth upon a pure and &s;ound Rule (as the Law then &s;tood) divide, and it's fit &s;hould be ob|&s;erved. I intend not to divide to (&s;o called pious u|&s;es) but among&s;t the next of kinne, by rule of Law
<PB N="7" REF="11"> capable. The Rea&s;ons are, this was u&s;ed, the Law hath pre&s;cribed no other remedy, the u&s;age was ab|&s;olutely certaine and allowed, the thing was ju&s;t, and the Grounds and Rea&s;ons be &s;till the &s;ame; therefore cannot by implication be annulled, nor is the Judges, by the Statutes limitting him to what par|ty he &s;hall grant the <HI>Admini&s;tration,</HI> bounded in any other particular power before had, u&s;ed, and &s;o en|joyed, as to have the vertue of a Law. If we come to &s;tate a Ca&s;e or two, the Ju&s;tice and Rea&s;on of the thing will mo&s;t evidently appeare. A man hath one hundred, one thou&s;and, or ten thou&s;and pounds a yeare, and a per&s;onal e&s;tate of one thou&s;and, ten thou|&s;and, or one hundred thou&s;and pounds, and hath two, three, foure, five or &s;ix children, &s;onnes and daughters, be he Lord, Knight, E&s;quire, Gentleman, or Burge&s;&s;e now in <HI>England,</HI> all is one; here pre&s;ent riches controlls and carries all, money makes the man. The land unle&s;&s;e &s;pecially &s;ettled by the Ance&s;tor or Ance&s;tors (which we are not to look here at, but at the cour&s;e of Law, according to the old legal Rule, for our foundations are all cleane lo&s;t, altered, or un|knowne, that the Prince might be the better &s;er|ved in his warre) went, and goes wholly and undivi|ded to the elde&s;t &s;onne: well, be it &s;o, though as I now apprehend the rea&s;on of the Law cea&s;ing, the Law &s;hould be fitted according to the pre&s;ent conditi|on of the Common-wealth; For as a City or Com|mon-wealth con&s;i&s;ts not in the walls and &s;tructures, but in the people, &s;o the rea&s;on of the Law is the life of it, not the letter, which the wi&s;e Judges well know, who can when and where they plea&s;e, ca&s;t the model of a Judgement according to the pre&s;ent inte|re&s;t of the Common-wealth, clean diver&s;e, if not quite contrary to the fir&s;t In&s;titution, and that in con|&s;tituted or latter Lawes, upon no other ground or rule vi&s;ible but that; but &s;hall then the per&s;onal e&s;tate go
<PB N="8" REF="12"> to the elde&s;t al&s;o, and &s;hall all the other children be beggars, or &s;et to work, (how highly &s;oever educa|ted) as if impotent, maintained by the Pari&s;h, go by degrees, and &s;o to the di&s;po&s;ition by the letter of the Law, the elde&s;t ought to have it, for he is pro|perly the next of kinne (the wife being not within the letter of the Law, for indeed literally and legal|ly &s;he is of no kinne, being part of him&s;elfe, while living, and is now his relict or widow, which hath no le|gal degree of kinne in it, but is in by the Statute) So the rea&s;on the elde&s;t is naturally the Prince of the fa|mily, and is, though not nearer, yet in the &s;ame degree the more worthy, and what the Law gives him otherwi&s;e, ought not to barre him of any right) if then he be waved, its not by the letter, but the equity, and where equity comes in, and prudence rules beyond the letter; how comes the Judge of con&s;tituted Law to put his Oare into this Boate; If becau&s;e the elde&s;t hath enough already, the &s;ame rea|&s;on runnes &s;trong for a di&s;tribution to give each one a competencie; but admit the Ance&s;tor hath no land, but a per&s;onal e&s;tate, great or &s;mall, the Law of 31. <HI>E.</HI> 3. bounded the Ordinary as afore&s;aid &s;ufficient|ly, but under no expre&s;&s;e penalty; he might not ap|point whom he plea&s;ed <HI>Admini&s;trator,</HI> but was regu|larly then tied to the next of kin, and they were made accomptable to the Ordinary: I cannot think devoti|on had in the&s;e times &s;wallowed up charity, or cha|rity natural re&s;pect, engagements, or common pru|dence: I &s;hould erre much, &s;eeing not only the gene|rall Law which treats of di&s;tribution, made Rules for, who &s;hould be capable to come in to claime <HI>Admini|&s;tration,</HI> and to require part of the e&s;tate; but al&s;o to &s;ettle the Rule of and for di&s;tributions, and from that even the con&s;titutions Eccle&s;ia&s;tick of <HI>England</HI> &s;et|tled the &s;ame.</P>
<PB N="9" REF="12">
<P>I &s;ee al&s;o they take care for payment of debts, &s;o that I mu&s;t conclude the Law then truely con&s;trued, con&s;i&s;ted in a pious and di&s;creet careing for the equal, and right wi&s;e di&s;po&s;ing of the e|&s;tate left by the Law, as if the party him&s;elf had &s;ettled it. But for to prevent mi&s;takes, and reduce the Law, in certaine to its fir&s;t and Primitive Rule.</P>
<P>The Law of 21. <HI>H.</HI> 8. gives the ordinary power to grant Admi|ni&s;tration to the Widdow, or to one or more claiming as next of kin in equal degree, or when more be in equall degree, and one claime according to his di&s;cretion. Now that Law hath this clau&s;e, taking &s;urety for the true Admini&s;tration of the Goods and Chat|tels, <HI>&amp;c.</HI> which he or they &s;hall be Authorized to Admini&s;ter, which clau&s;e was &s;urely to &s;ome purpo&s;e; and to what could it be, but that the Ordinary might &s;till have &s;ecurity? Yea, were it from Wife or Childe, that the Admini&s;tration of the Goods might be accor|ding to the Rule of Law; and the equall cour&s;e of di&s;tributing to Wife, Children, and Kindred, according to the Rule of Law, was &s;till continued.</P>
<P>Now to the Sureti&s;hip, I conceive it clear, that the Bond taken faithfully to Admini&s;ter, proving que&s;tionable, and dubious from cla&s;hing of Courts. The Common Law-courts &s;eeking in the de|clining of the power of the Epi&s;copall party, to intermeddle and umpire in and over the Eccle&s;ia&s;tick Juri&s;dictions&punc; What was before wrapped up in generall words, was intended to be reduced to a more &s;peciall Declaration, at lea&s;t in that particular mo&s;t &s;trukt at. But oh, the Common Lawyer beats his Buckler to his head, telling him the Ordinary hath no power to take &s;uch a &s;pecial Bond, for he hath no power, but onely to take Security truely to Admini&s;ter. And though the&s;e que&s;tions were from the prudence of former Judges (plainly convinced of the Ju&s;tice and nece&s;&s;ity of the thing) mo&s;tly waved &s;ome per&s;ons of late times, not onely que&s;tioned the&s;e &s;ecurities, but have &s;o varied concerning the power of the Judges of Wills and Te&s;taments. The ancient Juri&s;diction of the Ordinary failing by the taking away Ordinaries, and by them of that Ordinary legall coer&s;ion in tho&s;e Juri&s;dictions u&s;ed, have endeavoured obliquely, and by the by, pretending tho&s;e Bonds &s;uable no where but at Com|mon Law, to ob&s;truct and &s;ubvert the whole bu&s;ine&s;&s;es, by delivering
<PB N="10" REF="13"> opinions, that tho&s;e Bonds were not valid in Law, and &s;o con&s;e|quently enervate the di&s;tribution, by rendring the &s;ecurity fruitle&s;&s;e. Whereas the Statute require &s;uch Bond to be taken, and con&s;equent|ly intended, if broken, to be &s;ued. I &s;hall exemplifie by the weakne&s;s of the foundation by in&s;tance, A man comes to the Court, craves Admini&s;tration, his Brothers and Si&s;ters, or next Kin within Rules of di&s;tribution, crave it al&s;o; the Judges grant it to one (to avoid the known covetuou&s;ne&s;s, &s;uits, wa&s;ting of the e&s;tate, and perpetual enmities ari&s;ing from joynt Admini&s;trators, each one getting all they can, and then to &s;uite; no due account, nor ought fit for men: and we all know, that the differences of Allies and neer relations, are the &s;harpe&s;t and hotte&s;t) taking Bond to &s;tand to the di&s;tribution of the Court, which is, as I &s;ay, &s;etled upon known, legal, and ra|tional grounds. The Admini&s;trator claimes an intere&s;t in all as Ad|mini&s;trator, the Common Lawyer tells him he is onely to pay debts, and not knowing what debts may appear, he is never to ac|count or di&s;tribute. The Judges of Wills have no power to take further Cognizance. The Judges of Probates que&s;tion him, or &s;eek to compell him to his duty, then comes a Prohibition from the Court of Common Law, as Keepers of the Liberties of the Laws of <HI>England;</HI> and then a conte&s;t ari&s;es 'twixt the Courts, or might, were they but equally backed, then a &s;uite in <HI>Chancery;</HI> nay this is, though the party taking Admini&s;tration hath it onely upon con&s;ent, nay &s;ub|&s;cribes that con&s;ent: and what's the rea&s;on? truely the Common Lawyer (in this Ca&s;e and this Court) &s;ayes it is a forced con&s;ent, for Admini&s;tration would not be granted till con&s;ent were; yet he was free to take or refu&s;e for the Election by the Law of <HI>H.</HI> 8. was in the Ordinary, and &s;o now in the Judges. I conceive to any unintere&s;ted party this will more then manife&s;t, that pure intere&s;t over-rules in the&s;e ca&s;es, and &s;ure the powers, if ordained of God, will lay the&s;e oppre&s;&s;ions of the people to heart, and give ea&s;e to them, and &s;ettle the limitts of Juri&s;dictions; for it makes men knaves, and makes multitude of poor, and brings not onely Courts and Judges, but Ju&s;tice it &s;elf into contempt. This &s;hall &s;uffice for the Court of Pro|bates as to this point, I intending onely to hint things, not make up all matters, to make the wound wide, and happily pa&s;t healing, but by a Corra&s;ive.</P>
<P>A word or two concerning the Admiralty: It is an ancient Court
<PB N="11" REF="13"> as mu&s;t be acknowledged; yea, as ancient as any, that it hath a certain peculiar and proper Law, according to the &s;ubject matter of its Authority, is agreed, that it differs from the re&s;t of the Law of <HI>England,</HI> may be acknowledged, but not contrary; the Common Law not treating at all, nor intermedling with the proper matter of the Court; from which its clear, that what is properly tryable at Common Law belongs not to that Court, and &s;o on the contra|ry, and certainly the Judges of either Law will know this, what is tryable there, ought not to be tryed or prohibited by the Judges of the Common Law. I conceive it agreed by the Common Law, they cannot or ought not to try contracts made beyond Sea, but onely in &s;uch places from whence a venue may ari&s;e, and termes of that Law publikely printed and allowed: In the word Admiral, grants the Admiralty power to judge of contracts between party and party concerning things done upon and beyond the Sea; and the words of the Statute upon the whole Law are plain, per&s;picuous and evi|dent to that purpo&s;e; but &s;uppo&s;e they were difficult, what con|&s;truction they &s;hall bear is the que&s;tion? I take it clearly, that no pre&s;cription &s;hall run again&s;t an Act of Parliament, but I take it as clearly, that a non-u&s;er of an Act, invalidates the Act in time; as the Statute of <HI>Merton</HI> is agreed by Mr. <HI>Littleton,</HI> and if I be not mi&s;taken, the Sages of the Law have atcheived to them&s;elves a pow|er, that no &s;uch grand con&s;ultations might be invalid, not onely to expound, be&s;ides the open and vulgar evident meaning of an Act, but contrary to the litteral meaning of an Act, to qua&s;h tho&s;e evils which experience manife&s;ted, and might not at making of the &s;ame be fore&s;een. If &s;o, then they have a power not to prohibite where they &s;ee a greater evill would en&s;ue, in ca&s;e the &s;trict letter &s;hould be ob&s;erved. Put ca&s;e then, two <HI>Engli&s;h</HI> Merchants, or one <HI>Engli&s;hman,</HI> and another Country man of any Nation, or a Merchant, with a Ma&s;ter of a &s;hip, meet at <HI>Con&s;tanti|nople, Venice, Smyrna,</HI> or any part where the Common Law of <HI>Eng|land</HI> is not known, and by a Lawyer there practi&s;ing, according to the Rules of the Civil Law, make a contract upon Land in writing, can it be intended the Common Lawyers &s;hould judge this contract, becau&s;e done on land, or twelve men packed by an under Shrieff or Bayliffe of a liberty, &s;ervant to the Attorny in the ca&s;e &s;hould come
<PB N="12" REF="14"> in, and being onely to try the fact, &s;um up the Law in a huddle, by finding for the Plaintiff or for the Defendant, when the Judge him|&s;elf is not in ordinary &s;uppo&s;al, able to in&s;truct them; and how then &s;hould they under&s;tand, for many Pleas are by the Civil Law admi&s;&s;ible, which the Common Law takes no notice of, or the Judges will not, or would not ever yet allow. For example, &s;up|po&s;e the contract were upon &s;uch &s;laves money, <HI>&amp;c.</HI> delivered the Ma&s;ter at <HI>Morocco</HI> in <HI>Barbary,</HI> to take &s;o much Sugar at <HI>Morocco</HI> from his Factor, and deliver it at <HI>London,</HI> or any other Port in <HI>Eng|land;</HI> &s;hall it be tryed by a Trover in <HI>England,</HI> or by a promi&s;e upon con&s;ideration, or in ca&s;e of money by account, the&s;e actions not admitting legally &s;uch Pleas as the nature of &s;uch Foraign con|tracts of nece&s;&s;ity mu&s;t allow. So &s;uppo&s;e the &s;ame done in <HI>Lon|don,</HI> and the delivery to be in Forraign parts, if the &s;ame be drawn according to Rules of Common Law, upon the Lawes Civil, or of Merchants; &s;o in ca&s;e of the Con&s;uls Emba&s;&s;ador and Merchant ta|king money, where it runs at fourty pound <HI>per cent.</HI> &s;hall it be paid here by &s;ix, or &s;tayed with a prohibition? So in ca&s;e of hiring Sea-men and Marriners oft in an Ale-hou&s;e, to debar the Ma&s;ter or out|trader of his lawful and ju&s;t Pleas in Marrine contracts, becau&s;e of their being made on Land, is more then rigid Law, which is the mo&s;t grievous wrong, ruining under colour of relieving, yet with prohibi|tions for &s;uch like ca&s;es (infinite of which might be put, but I &s;ay not an Infinity of prohibitions) are they (&s;o the called) Civil and Com|mon Law-courts at variance; yea &s;ometimes in ca&s;e of Marriners wages; And had not a late good Act been, it likely more would have been. The evident evil in ca&s;e of prohibitions rightly brought, if any be, yet &s;eldom or never a prohibition comes, till the charge be pa&s;t, and all things pubi&s;hed: &s;o that there is a light to di&s;cover by the proofs, which way the ca&s;e will go, and then that party like|ly to be overthrown, flies to a prohibition.</P>
<P>Sure if rea&s;on be rea&s;on, and there be ought of Ju&s;tice among&s;t men, the&s;e things be cruelties and oppre&s;&s;ions to be remedied; the guilt mu&s;t lye &s;ome where, God grant whom it mo&s;t concernes may lay it to heart. I &s;hall not touch upon the laying Actions betwixt high and low water mark, when done at Sea, nor laying things done in the furthe&s;t part of <HI>Europe,</HI> nay of <HI>A&s;ia,</HI> in the Ward of <HI>Cheap.</HI>
<PB N="13" REF="14"> becau&s;e I will not overlabour things; for its evident, an Engli&s;h Jury was never intended to try them, for &s;o the Act expre&s;&s;es, con|tracts, pleas, and quarrels ari&s;ing within the bodies of Counties, as well by water as Land. This is enough to clear up what the ju&s;t and due intendment of Law ought to be, if Courts and Judges be for Ju&s;tice &s;ake, and for the peoples benefit and quiet, and not the con|trary; and if &s;o, I conceive it will follow from the premi&s;es, that the Subject and people of <HI>England</HI> have a right, yea a birthright, in that part of the &s;o called Civil Law, u&s;ed in <HI>England</HI> equally with, and in any part of the &s;o called Common Law, the whole making up, but the Laws of the Nation and people, though by words, ac|cording to the cu&s;tome or mode of &s;peech, the &s;ame be variou&s;ly called and di&s;tingui&s;hed, and con&s;equently the Judges of tho&s;e Courts are Judges of <HI>England,</HI> and of the Laws of <HI>England,</HI> and ought to have re&s;pect and e&s;teem accordingly, and indeed de&s;erve it, for no man of ingenuity, but will acknowledge (though the mean|e&s;t Barri&s;ter at Law almo&s;t will not regard them) their &s;tudy is full of high and deep knowledg (I knowingly put tho&s;e extremities to|gether) renders the Nation more glorious abroad, and is &s;o more univer&s;ally beneficial: Indeed heretofore the Judges being but the Admirals Deputies, (or by the Common Lawyer &s;o e&s;teemed) the great regards due to them, and the Prerogative Judges, who then were in like manner but the Ordinaries Sub&s;titutes, were fore-clozed.</P>
<P>But now the Prince wi&s;ely giving immediate power from him&s;elf, layes a &s;ure foundation of regard, if meet incouragements follow: From this it will be as clear, that the Doctors and Practizers of the Civil Law have their due rights to be heard, not only in the Courts of Civil Law &s;o called, but al&s;o in ca&s;e of any que&s;tion ari&s;ing in any Court of Common Law, concerning any matter originally cogniza|ble, or which hath had any proceeding in any of the Courts of <HI>Eng|land,</HI> what the Rule of the Civil Law &s;o called is practi&s;ed, and fol|lowed, and not only to be con&s;ulted with, which the antient Sages of the Law, as occa&s;ion offered practi&s;ed, but to be admitted to plead in the Courts of Common Law, in &s;uch ca&s;es, as the Ser|jeants and Barri&s;ters at Common Law do and ought to do, both in the Admiralty and Court of Probates, in ca&s;e a que&s;tion upon any Statute, or other part of the Common Law of <HI>England</HI> comes in
<PB N="14" REF="15"> que&s;tion, and then much more where a que&s;tion comes, whether the Cognizance of the ca&s;e belongs to this or that Court; and this is &s;urely rea&s;onable upon the &s;core of general and univer&s;al rea|&s;on, whatever it may be upon the &s;core of intere&s;t or particular be|nefit.</P>
</DIV2>
<DIV2 N="2" TYPE="part">
<HEAD><HI>2.</HI> Head.</HEAD>
<P>I now proceed to the &s;econd Head propo&s;ed, <HI>viz.</HI> Whether Courts, who&s;e &s;pecial known Origination &s;tands principally upon u&s;age and allowance of the Supreme power, though u&s;ing a di&s;tinct Law from the general received Law of the Nation, may not be, and are not Courts of Record of and in that Nation, and &s;o to be allow|ed by the Courts of Common Law?</P>
<P>Were it now the time, when Abbots, Bi&s;hops, Canoni&s;ts, and Civilians were the chief (if not the only) Judges of this Nation, and &s;ate upon the Benches of Common Law at <HI>We&s;tmin&s;ter,</HI> it would be labour in vain to make this a que&s;tion; but I &s;hall wave tho&s;e &s;ugge&s;tions, that I may not irritate if po&s;&s;ible, and only di&s;cu&s;&s;e the ca&s;e, that the grounds of things may &s;o appear, that &s;ome judge|ment and conclu&s;ion may be rai&s;ed; its certainly a difficult matter from what I can finde, amid all the Authors of the Common Law, to come to a certain, either definition or de&s;cription of this great que|&s;tion, What properly con&s;titutes a Court of Record, and what are the proper and peculiar rights, powers, and priviledges of &s;uch a Court, for their learning may be much, but it is confu&s;ed, and in a Chaos for the generality, and loth they are to have it model'd for common and general u&s;e. I &s;hall not attempt to di&s;cover the rea|&s;ons, but only e&s;&s;ay to clear up what I find of this; one mark I find of a Court of Record is, That it con&s;i&s;ts by matter of Record, or Pa|tent, or Grant of the Prince; but I conceive that is not demon&s;tra|tive, becau&s;e that each Court &s;o con&s;tituted, is not, or will be al|lowed of Record.</P>
<P>Another note I finde to di&s;tingui&s;h by is, where a Writ of Error lyes upon any Judgement given in an inferiour Court, it's a token the inferiour Court is a Court of Record; but if a Writ of fal&s;e Judgement, then a ba&s;e Court: So that the difference is not be|tween
<PB N="15" REF="15"> Courts of Record, and inferiour Courts, but Courts of Re|cord, and ba&s;e Courts, then the conclu&s;ion mu&s;t be, all Courts, not ba&s;e, are of Record; but that will not be granted by the common Lawyer, for antient Deme&s;ne is not a ba&s;e Court; if ba&s;e be taken properly for a Court where ba&s;e tenure is; but if from the contra|ry, you come to conclude all Courts not of Record are ba&s;e, its evi|dently fal&s;e, if you take their own Rules; for whatever the civil Law Courts might be e&s;teemed from the learning and Pleaders, &s;pe|cially u&s;ed and imployed in tho&s;e Courts, &s;ure the <HI>Court</HI> of <HI>Chance|ry,</HI> which they call in deri&s;ion a <HI>Paper Court;</HI> &s;o that of Reque&s;ts, and others, are not ba&s;e, take ba&s;e from the &s;ubject matter there handled, or inferiority of power, and that as to the value or power, to inforce obedience, and the like.</P>
<P>The&s;e Courts, though partly u&s;ing Rules of common, partly of civil Law, yet the Practi&s;er being wholly according to the common Law con&s;titution, are not &s;o oppugned, as tho&s;e u&s;ing wholly, or mo&s;tly, the rule and practi&s;e of the civil Law, but will not be allow|ed of Record.</P>
<P>There are &s;ome other &s;uch notes, whereby you may, if you can, pick out what is a Court of Record, but its the &s;afe&s;t way to con|clude in this ca&s;e, as when the que&s;tion is, What are the Original Languages, and how many they are? Tho&s;e, and &s;o many as the antient learned Authors make them, and better &s;et down by that, then di&s;pute; &s;o they are tho&s;e Courts, and &s;o many as the learned and Authorized in tho&s;e Laws will have them, for I find no certain|ty, and am the more in doubt, when I &s;eriou&s;ly con&s;ider the mat|ter, from what I finde in a learned Author, who &s;eems to di&s;tin|gui&s;h between a Court of common Law, and a Court of Record: I know well he intends a Court that was by cu&s;tome originally, not by Patent, but I can conclude, what is Record, is not of common Law, and it mu&s;t be a good conclu&s;ion, or the other will prove vain to be a &s;ure de&s;cription. I &s;hall not &s;ay ought of a Patent in words expre&s;&s;ing it to be a Court of Record, for the Origination is plain, but what the di&s;tinct powers are, is never a whit thereby the more per&s;picuous and manife&s;t.</P>
<P>I am not &s;o ignorant, but I can tell, there may be a reduction of things to &s;ome certainty, both what makes a Court of Record, and
<PB N="16" REF="16"> al&s;o its powers, &amp;c. by that part of the Law of <HI>England</HI> called Common, from the Judgements and Ca&s;es in the Books of the &s;ame, or rather, by the powers the &s;everal Courts have u&s;ed in them&s;elves, and in and over each other, and again&s;t others, and the vertue and power they give to the Acts of their Courts, regu|larly Entred and Recorded, and the di&s;allowance of the Acts of other Courts, neglecting them, and calling them, yea though un|der Seal of the Court, and atte&s;ted by a Sworn Officer, but as papers, &s;crowls, or le&s;&s;e. Now to let all other things pa&s;&s;e at this pre&s;ent under &s;ilence, I &s;hall only offer to con&s;ideration, whether it be not e&s;&s;ential to every Court, and of nece&s;&s;ity to evidence the rea&s;on and Ju&s;tice of the con&s;titution of the &s;ame, that the judicial Acts of each Court, not only be drawn in writing and Regi&s;tred, but that the &s;ame be Records, and &s;o allowed in all Courts in that Nation, next that, each Court hath power to inforce its own Decrees within the bounds where its power reaches, to take Cognizance of any cau&s;e judicially.</P>
<P>As to the fir&s;t, &s;ee the end of a Court, its agreed univer&s;ally to do Ju&s;tice, and give forth Judgement to the people, now this is either by Declaration, Plea, and Judgement in writing, or without; in <HI>England,</HI> by the general Law, there is none but in writing, nor in|deed where Judgements are &s;ubitane or &s;ummary, and pre&s;t, as in Fairs, Markets, &amp;c. upon &s;trict rea&s;on they ought to be in writing, though &s;hort, and not held to form, now if reduced into writing, why not Record, and to prove it &s;elf, and to manife&s;t and te&s;tifie the nature of the ca&s;e, and be evidence in ca&s;e of any &s;uit for the &s;ame in any other <HI>Court?</HI> Is not the tryal there? otherwi&s;e a deceit; it might not be &s;o grievous when time was, but now all is brought to the <HI>Courts</HI> at <HI>We&s;tmin&s;ter,</HI> it is &s;ound of very evil con&s;equence; I mu&s;t a|gree <HI>Court-Baron, Hundred, Towne</HI> and <HI>County Courts,</HI> are general|ly &s;o ill provided of Judges, they have nothing worthy the name of a <HI>Court</HI> of Ju&s;tice, but if you think fit to continue them <HI>Courts</HI> for the people, to receive Law thence, let their judgements be a&s;cer|tained, and al&s;o <HI>Records:</HI> But the que&s;tion here, is not concerning tho&s;e inferiour Juri&s;dictions, (for I humbly conceive all the ba&s;e <HI>Courts</HI> in <HI>England</HI> are upon true rule gone and extingui&s;hed) but concerning the Court of <HI>Probates,</HI> which for ought I can finde may
<PB N="17" REF="16"> have the cognizance of the proofe of all Wills, and that both to reall as per&s;onall e&s;tate, rather then the <HI>Chancery,</HI> and examine Witne&s;&s;es in perpetuall memo|ry, for the inconveniences to the people are great; for the per&s;onall e&s;tate prove the Will in the Court of Probates, for the reall, in Chancery, by Witne&s;&s;es: Yet the Court of Probates hath alwayes u&s;ed proofe, by Witne&s;&s;es upon oath: Then out comes the Originall Will from the Office, and though there it might re&s;t as a Record, upon Record, for the equall benefit of all concerned, which it very oft proves, yet by the Com|mon Law it comes to one parties hand principally, it may be concerned yet with many others, and upon a Suit he will not produce it; the Copy taken by the Officer on oath mu&s;t not be a Record, and unle&s;&s;e the Judge at Common Law will in equity, and for Ju&s;tice &s;ake, ad|mit it, he is not bound, and &s;o the Suit is lo&s;t; the truth indeed appeares, but it's not evidence in this Judges opinion, and &s;o the Law is as the Judge is mind+ed; and all this in <HI>England,</HI> under the &s;ame power&punc; and from cla&s;hing of Courts and Judges of the &s;ame Prince and people.</P>
<P>Thus by the end, and the inconveniences, it's cleare, each Court, Admini&s;tring Ju&s;tice, ought in the &s;ame Nation to be &s;o farre a Court of Record, that the Acts of the &s;ame in the publique Regi&s;try a&s;certained, &s;hould be of them&s;elves, if produced proofes (if by true Co|py &s;worne, to be accepted as proof.) And, I &s;ay, it's not materiall, whether the Regi&s;try be in Parchment or Paper, happily the fir&s;t, being now known more &s;ub|ject to alterations without di&s;covery, let as much of certainty be as you plea&s;e; but if you find incertainty in a Court judicial, remedy the incertainty, for it's of ne|ce&s;&s;ity to have all &s;uch acts Records.</P>
<PB N="18" REF="17">
<P>Now if this be &s;o, and &s;o it ought in the Court of Pro|bates, then much more in the Admiralty, which is a Court hath as great a latitude of power in the Cognizance of ca&s;es of Life, Maim, Wounding, Impri&s;onment, Da|mage and Lo&s;&s;e, to the greate&s;t value, as any Court in <HI>England,</HI> yet its acts, with the Judges of <HI>England,</HI> are not Records, and which is the wonder, the Judges of all Forraign Princes of <HI>Europe,</HI> will allow them judicially in proofe, if under Seale of the Court, or judicially atte&s;ted; but the Judges of <HI>England</HI> will not, What is the rea|&s;on? becau&s;e for the benefit of the Nation in &s;peciall cau&s;es, they u&s;e a Law allowed and practi&s;ed by other Nations: No, that is not the thing, but practi&s;ed by Doctors, and not Barri&s;ters and Serjeants, which the&s;e Judges were; and how the intere&s;t of Societies in education runs, and hath its work, even to deprave Judgement, and to maintaine things evidently irrationall, needs no proofe: I profe&s;&s;e &s;incerely I have impartially weighed things, and can finde no ground in rea&s;on for it, and can only &s;ettle it upon the intere&s;t of education, private benefit to them of like &s;tudy, &amp;c.</P>
</DIV2>
<DIV2 N="3" TYPE="part">
<HEAD><HI>3.</HI> Head.</HEAD>
<P>I will not inlarge upon that, but come to the other part of this Que&s;tion, which is the third Head or Pro|po&s;ition, Whether it be not naturally and properly inci|dent to every Court to have power to inforce its own De|crees? The que&s;tion is here, concerning the coer&s;ive pow|er of a Court; there is no Court in <HI>England,</HI> nor in any place, but it had a certainty of power, either again&s;t bo|dy, or goods, or both, to inforce tho&s;e Judgements, it gave in ca&s;es there cognizable: Indeed its evident to rea|&s;on,
<PB N="19" REF="17"> it were not otherwi&s;e a Court of Ju&s;tice, for Ju&s;tice is not giving &s;entence, but &s;eeing the thing done accordingly, which is called ju&s;tly execution.</P>
<P>Now this que&s;tion is out of doores in the Admiralty, it inforces, as well as it can, the power there is not denied, but in the Court of Probates wholly, though it hath the Ordinance of the Parliament and his Councel; let's &s;ee how it &s;tood before, while the Ordinary had it, who be|ing an Eccle&s;ia&s;tique, had in this ca&s;e of Wills, and Te&s;ta|ments, and Admini&s;trations, fir&s;t power to excommunicate, which if the party obeyed not, was after fourty daies of common right a&s;&s;i&s;ted by the Civil Magi&s;trate, and of cour&s;e there i&s;&s;ued a Writ to the Sheriff, to impri&s;on the party till he obeyed, which amounted to as much as a <HI>Ca|pias ad &s;atisfac,</HI> or Execution at common Law, and the Excommunication it &s;elfe, was before a Writ for Attach|ment, a kinde of Uthagary, debarring him right of a law|ful man in matters of greate&s;t concernment, and then plead|able, even in the Court of common Law. Now this pow|er, Judge, and Court of proceedings being gone, and Lay-Judges, as in other Courts con&s;tituted, whether, while a Court, it hath not coer&s;ive power, is the que&s;tion: I conceive, even by the very con&s;tituting of it a Court, it hath power coer&s;ive in it &s;elfe; for as there are words of Art which include much, which the ignorant ones know not, &s;o this word <HI>Court,</HI> or making, or con&s;tituting men Judges of, &amp;c. include in them, not onely a power to hear, but to Judge, and to inforce that &s;entence; for as nature, &s;o the Law doth nothing in vaine, it &s;ettles not a power in any to make Judges, but to have power al&s;o to inforce, for otherwi&s;e their &s;entence were in vain.</P>
<P>It's plaine, that the power Eccle&s;ia&s;tique by cen&s;ures is gone, and the Judges civill cannot execute it; but my rea&s;on
<PB N="20" REF="18"> is, that cea&s;ing, the Judges now, that the Law may not want his cour&s;e, and that Ju&s;tice be done to the people; the general rea&s;on of the Law requires, that coer&s;ion be. The que&s;tion now is, what I mu&s;t acknowledge, the liberty of man is precious, and &s;o are goods, for property is little, if liberty be incroached on, and liberty little, if property be taken away; whether then this &s;hould extend to body, or goods, or both, is the que&s;tion I mu&s;t owne; the com|mon Law medled not with the per&s;on, while there were goods, but attached him by his goods, but that was found inconvenient, which principally altered that Law, or cour&s;e of practi&s;e, for the letter of the Law is not ob&s;erve|ed. Now then if the procedure of the Judge be accord|ing to the practicall Law of the Nation in generall, I &s;hould conceive the Officer ought to be free from Action, and plead the Rule of the Court, I know there is no &s;et|led Pri&s;on to which he can be committed, and that private hou&s;es ought not to be Goales.</P>
<P>But I &s;tand upon this as a ca&s;e of nece&s;&s;ity, wherein much more damage mu&s;t come to the people from defect of Ju|&s;tice; and therefore I know, though they may not be war|ranted by a particular Law, yet they have the generall Rule of &s;aving, and not ruining the Commonwealth in your tru&s;t to plead for them, to avoid both puni&s;hment or rebuke; yet it may be more fit certainly to declare the coer&s;ive power thereof, and how far it extends, lea&s;t there &s;hould be any incroachment under colour of Ju|&s;tice.</P>
</DIV2>
<DIV2 N="4" TYPE="part">
<PB N="21" REF="18">
<HEAD><HI>4.</HI> Head.</HEAD>
<P>The fourth Head, will from the&s;e former Rea&s;ons and Grounds laid down, receive a full proofe, and no way conclude (to &s;pare expence of time and words, for I would no more reiterate then irritate) that a certain continued, and con&s;tant known practi&s;e and u&s;age in a judiciall Court, ought to have the force of a Law, the &s;ame ought to be al|lowed in any Superiour Court after &s;uch u&s;age, yea, though it might &s;eem otherwi&s;e again&s;t Law; for while Common Error (upon the Rule for the &s;afety of the people) makes a Law, this cannot be denied; but let the Superiour Court admoni&s;h the Inferiour, and if it doth not then rectifie, let the Judges and Officers be puni&s;hed, otherwi&s;e the Suitor will be grownd between two Mil&s;tones, one Court inforces to do, and in another he is overthrown, for doing, but how? there's the my&s;tery, not for doing as that Court ordered; but becau&s;e that Court is adjudged not to have power to make &s;uch order, but it may be, a Court may claim to be Superiour, where it is not, or declare the Acts of an inferi|our Court erronious upon a coliteral occa&s;ion, which may indeed &s;upplant and enervate the whole &s;etled Juri&s;diction of the inferiour Court, and bring all to the Superiour, by which means all County Juri&s;dictions have been de&s;troyed, and the whole &s;tream and current of bu&s;ine&s;&s;e, is brought to the Superiour Courts, this aptly brings me to di&s;cu&s;s the fifth head or Propo&s;al.</P>
</DIV2>
<DIV2 N="5" TYPE="part">
<PB N="22" REF="19">
<HEAD><HI>5.</HI> Head.</HEAD>
<P>Whether in a Nation, where divers Courts are admit|ted, proceeding judicially and definitively, according to di|vers originall Lawes, it can &s;tand with rea&s;on, that one of tho&s;e Courts &s;hould prohibit the other; to bring any mat|ter before it &s;elf, or decide to what Court the Cognizance belongs.</P>
<P>I &s;ee all times and per&s;ons profe&s;&s;edly taking care, by all meanes po&s;&s;ible, to decline intere&s;ts; as &s;eeing how &s;ubject, even the be&s;t of men are to turne and bend a&s;ide, drawne by the baits and allurements of worldly allurements, of worldly riches, honour, power, and the like: I know in the mo&s;t &s;edate and quiet times, Princes have been wary to ex|a&s;perate potent per&s;ons, or multitudes, unle&s;&s;e able to ba|lance intere&s;ts, and how loth to &s;uppre&s;&s;e an evill by power, lea&s;t they &s;hould give cau&s;e to men to doubt, they might call good evill, and &s;uppre&s;&s;e that al&s;o in a like way; but &s;till wi&s;e and ju&s;t Princes, Rulers, and Powers, have done what they could, and effected it as &s;oon as opportu|nity &s;erved. I know this is a que&s;tion of concernment, u|&s;age mixing with intere&s;t, which makes it the more difficult to reforme, and intere&s;t having &s;o &s;trong a Bulwark to de|fend it &s;elfe by as u&s;age, intere&s;t will be called property, and we know what &s;trength cu&s;tome hath; but this being the intere&s;t but of a few, and to the damage of the whole bo|dy, I &s;hould conceive, if the rea&s;on be apparent, not onely wi&s;e men, but Chri&s;tians will give the Supremacy to rea|&s;on, and then yeelding for publique good, &s;hall Crowne them as Benefactors to the Commonwealth. Is there then benefit to the Judges from the ca&s;es depending in, and tryed
<PB N="23" REF="19"> in a Court? and is there not glory in multitude of Suitors in a Court, and the like, then there's an evident intere&s;t, both of profit and honor, and con&s;equently the&s;e things will (yea, even with wi&s;e men) work, yea, and ancient men, who more de&s;irous of riches and honor, yea, who more jealous of it, then even dying men. Now if you &s;hall look at the U&s;age, I &s;ay that is the ground of the com|plaint, the evill is evident before, therefore it's fit to aboli&s;h it: The Judges if they &s;hould con&s;ult with prudence fir&s;t, before they agree a Prohibition, &s;hould know from the Judges of that Court where the ca&s;e hath been depending, when the cau&s;e came into the Court, and what progre&s;&s;e hath been in it, and what the cau&s;e appeares to them to be. I know how indifferent the antient practi&s;e of the Law was between the <HI>Civilian</HI> and the <HI>Common Lawyer,</HI> while the <HI>Civilian</HI> mannaged Legacies, Marriages, Alimony, Tythes, and the like, under the Title of <HI>Court Chri&s;tian:</HI> I &s;hall profe&s;&s;e I know the learning of the Common Law to be great and deep, but it being not u&s;ed to many que&s;tions, which the Civill Law hath fully handled, it's not compleat, nor is the Law of <HI>England</HI> therefore compleat, but by that learning which the <HI>Civilians</HI> uphold: I know 'tis &s;hort in many things, I conceive it of nece&s;&s;ity to keep up that learning, be it but to know what is done abroad, &s;hould you &s;upply what is defective by Statute, if you would have it known, give incouragement to it, &s;ee but how a few years have wa&s;ted all the ingenious &s;pirits intended that way, and all men know, if you keep not up the particular part, the &s;peculative will be weak and low. Take a contemplative man from his &s;tudy to the Bar, &amp; his learning wil but render him more ridiculous, from the greatne&s;&s;e of expectation, he can do nothing: But to return, you will &s;ay, the ca&s;e is opened to the Judges, I &s;ay it is by Common Lawyers, who&s;e intere&s;t it is equally, if not more then the Judges, to have the Cau&s;e in that Court, &s;o that there is intere&s;t upon intere&s;t, and
<PB N="24" REF="20"> where &s;hould they now &s;ue for a con&s;ultation, either Judge, as Bi&s;hop (which ought to be) or party; then there was great con&s;cience to defraud the Churches or Court-Chri&s;tian of any due, Excommunications were feared: now there is as it were a feud, which all the learning of the Civil Law for Pope intere&s;t &s;ake. I &s;ay therefore, the intete&s;t being clear, the rea&s;on is evident, they ought not to be Judges, for they are parties in this quarrell.</P>
<P>But it will be &s;aid, the Judges at <HI>We&s;tmin&s;ter</HI> are &s;pecially tru&s;ted with the ob&s;ervance of the Lawes, and have as it were, the tru&s;t of general Inqui&s;itors for the Publique good, &s;o as to &s;ee to the Regulating of all Courts, and though the Civilian may plead and urge the meaning and intent|ment of his Authors, yet the Judges of the three Courts at <HI>We&s;tmin&s;ter,</HI> are to Judge of each Act of Parliament.</P>
<P>Really, I from my heart &s;hall yeeld the Honourable and learned Judges all their dues to my utmo&s;t, but I mu&s;t &s;ay, they ought to hear what can be oppo&s;ed, the intere&s;t of their Courts is plaine, &s;o that as things now &s;tand, it may be, &s;hould they admit Doctors to plead, in ca&s;e of prohi|tions and que&s;tions of Civil Law, cognizance, their deter|minations might be the more warrantable. But not hearing any but Common Lawyers, the complaint of &s;uitors carry &s;omething of credit with them. Indeed were the Judges at <HI>We&s;tmin&s;ter</HI> as at fir&s;t, &s;peciall con&s;ervators of the Law, the Princes Councel alwayes advi&s;ing him, and informing him of the Law, yearly vi&s;iting the Counties, as the Prince each fourth or &s;eventh yeer to &s;ee to the equall Admini&s;tration of Ju&s;tice, according to the Plot of <HI>Englands</HI> Government, I &s;hould, and ought to hold them as indifferent Judges betwixt two other Courts; but as now gathering all the bu&s;ine&s;&s;e of the whole Nation to the &s;ole determination, I can &s;ee it, but not the rea&s;on of it, no not one Iota or Tittle, and yet
<PB N="25" REF="20"> I think my &s;elf no enemy to the Judges or the Law of <HI>Eng|land,</HI> who would have it a ju&s;t balance in each part of it, which God grant. And &s;o I pa&s;&s;e to the con&s;ideration of Judges of Appeales, which briefly holds forth the expe|dient to all the&s;e conte&s;ts.</P>
</DIV2>
<DIV2 N="6" TYPE="part">
<HEAD><HI>6.</HI> Head.</HEAD>
<P>We u&s;e in <HI>England</HI> in all Courrs, when that called the Civil Law hath its cour&s;e, not to bring the appeal by Writ of Error to the Judges at <HI>We&s;tmin&s;ter,</HI> but by Appeal to &s;eve|ral per&s;ons which may ju&s;tly be called Delegates; and they are of &s;everal &s;orts, &s;ome onely to Doctors, &s;ome to Judges of the Common Law and Doctors, wherein there is a <HI>Quorum,</HI> and tho&s;e are Judges of the Common Law, others are to Judges of Common and Civil Lawes, Doctors and men of degrees, rankes, and qualities what&s;oever, but un|le&s;&s;e it be that all to Doctors, they are &s;o incertaine a Court to get together, having no incouragement to come toge|ther, but their affection to the ca&s;e, that its &s;o extreame di|latory, that he that gets the money in hand to come to that Court, may account it halfe as good as his own. Its in &s;ome part a great cau&s;e of confu&s;ion, for from the many ca&s;es all the Doctors are ingaged at the &s;ame Court, both as Judges and Advocates, and &s;o the &s;ame per&s;on now a Judge, pre|&s;ently an Advocate, then a Judge againe: were it not grown to &s;uch an Abject condition, that there are few or no &s;pectators, it would be ridiculous. But this is tolerable, becau&s;e Ju&s;tice may be done, which is the maine work: but the great fault is, men are cho&s;en Judges by parties, and e&s;pecially in ca&s;es of marriage of their mo&s;t confiding friends; all given in by one &s;ide, and though there be noble and learned per&s;ons Approvers, yet they cannot di&s;cerne
<PB N="26" REF="21"> the intere&s;t. Therefore to remedy all the&s;e evils of conten|tions, 'twixt Courts as well as parties, its of nece&s;&s;ity to keep a Cla&s;&s;e of Judges, as the Original &s;ettlement of <HI>Eng|lands</HI> Laws intended, fitted for, and onely to be imployed in the determination of all ca&s;es that can fall out in <HI>Eng|land,</HI> &amp;c. Who &s;hall not Originally hear any ca&s;e, but &s;hall be Moderators in all ca&s;es, of all Lawes Common, Civil, or Equitable; and in ca&s;e any Eccle&s;ia&s;tique power &s;hould ever have head, of that al&s;o, both as to diffe|rence 'twixt Court and Court, and al&s;o to decide and deter|mine all Appeales in ca&s;es Appealable, for it is fit to bring all ca&s;es to appeal and determine all &s;uch ca&s;es and differen|ces as there ari&s;e, &s;peedily and &s;ummarily hearing Court and Court, as well as party and party; there coming no|thing before them to be tryed by Juries, but onely upon the rigor of Law, which will indeed and really according to <HI>Englands</HI> good Law given the people, Ju&s;tice, and well will it be if &s;uch Judges be appointed, as they may have it as the Law pretends at their own doors, according to a &s;etled Rule.</P>
<P>I well know there are objections of no weight offered &s;catteringly, by way of Oratory now and then at &s;ome pub|like meetings again&s;t this offered, let them give them openly, and in certaine conclu&s;ions, that they may be brought to the Te&s;t, either of Law or Rea&s;on, that we be not blindfold led out of the ju&s;t path of <HI>Englands</HI> Law, which holds a ju&s;t balance Originally 'twixt Prince and People, Court and Court, party and party, which &s;hould be the endeavour and prayer of all good men.</P>
</DIV2>
<TRAILER>FINIS.</TRAILER>
<PB REF="21">
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
