As to the firſt, I conceive there is but three wayes whereby Lawes have properly their birth; The firſt is, conſtitution, by the lawful, wonted, or authorized power of a Nation, Countrey, or the like, and promulgation by the ſame accordingly: which is certainly the pureſt ſettlement of a Law, for the Law ſo ſettled and promulgated is ever the ſame, and a living ſpeaking Record of the Will of the Law-maker; not properly alterable, but by the like power.

The ſecond way of uſhering a law into the world, (yet univerſally accepted) is Cuſtome and Uſage, which after once generally received, and publikely knowne, hath the force of a Law, and juſtly, for experience hath manifeſted both its fitneſſe and acceptation: yet have ever beene, and its of neceſſity that the Magiſtrate ſhould, when time hath given them the ſtrength of Lawes, require a publike aſcertaining of them to prevent the evils (evident in England) from the proofe of them by ignorant and intereſted Teſtimony.

The other way, as it may be called, is Allowance and uſage of a ſettled certaine conſtituted Law in a Countrey, though the Lawes were not made by the preſent legal authority of the ſame, (or by a ſtrange Prince of another Countrey) yet there uſed and not diſallowed, but rather by owning the Court, and not diſowning the Law allowed and confirmed, which certainly hath the vertue of Uſage, and the certainty of conſtitution in it.

Bring then either the Court of Probats or the Admiralty to their Trial, and I conceive the Law in them uſed and adminiſtred, will have either from Conſtitution or Uſage, or both, as great ſtrength as any Law in England to be radically veſted in the people as their birth-right. As to thoſe Caſes there Cognizable, the Uſage is, I conceive, without diſpute; but you will ſay, will you bring in the whole Civil-Law? or which part do you intend? Thoſe Courts uſe the whole body of the Civil Law, and then you will ſubvert the Law of England.

I ſhall anſwer with a caution, for I ſuppoſe moſt wiſe men when they ſee the objection, will ſee the weakneſſe of it, for it concludes a general from a particular. But I ſay, firſt, as to the Court of Probates, the matters there cognizable, are ſpecially Probates of Wills, and from that the Admiſſion; I ſay Admiſſion or Allowance of Executors, or diſallowance; for they cannot grant it to fooles and ideots, nor ſhould, to perſons Outlawed, convicted of great crimes, or notoriouſly debaucht, that the eſtate being ſpent, there may be a ſuit at Common Law, for waſting of it, and the Legatees wholly defrauded of their right; And they have, or are to have who are Judges of Wills, cognizance of the Teſtimony or Witneſſes, ſo as to reject or receive according to the Rules of the Law in that Court uſed. And ſo farre the whole Civil Law, as to thoſe Heads, ought I ſay, as uſed to be received. So in the proofe of Nuncupative Wills, or Wills by word of mouth, I intend not to the number of witneſſes, for England hath ſtill allowed its people the favour of a Military Teſtament, requiring but two witneſſes, but to be Judges of the validity of their Teſtimony. So in admitting Guardians to Minors. And alſo in granting Adminiſtrations, and revoking them upon grounds laid downe for revoking Adminiſtrations by the Civil Law, ſtill obſerving the Rule of the Statute-Law of the Nation in their ſecondary or after grant, as in their original; I ſay the ſame of Legacies, being but a member, and derivative from Wills, and that Law beſt fitted with Rules for ſettling the ſame; and its moſt agreeable to reaſon, that that Court which hath the principal, and is to Judge of the whole Will, ſhould beſt judge of a Legacie, being but a part of the ſame whole, and not firſt judge the whole in one Court, and after ſend part of it to be judged in another.

But here it will be objected, that the Statute gives the Ordinary onely power to grant Adminiſtration to the next of kinne, and gives no power of revoking.

I anſwer, each eye may ſee the captiouſneſſe of the Objection. Did the Parliament that made that Law, think we, or can we ſuppoſe it intended only a ſnare to the people; ever theſe dark times of Religion had more light of morality, for it was never then queſtioned, though the Ordinary and his Judges then uſed a greater latitude of power then the preſent Judges will do. But lets enquire what was the end of the Law; and to ſee that, lets conſider firſt, what was the reaſon of making that Law. I ſuppoſe it's manifeſt, that many Ordinaries (there being no expreſſe penalty) having miſuſed the power to them intruſted, or by them uſed, in granting Adminiſtrations to ſtrangers to the defrauding the next and nigheſt kindred; to prevent that evil, and do the kindred right, that Law was made only, or chiefly, to limit the Ordinary to the perſon or perſons equal in degree according to Rules of Law, and according to the ſame capable to reſtrain ſuch exorbitants under a penalty, and not alter the Rule which was juſt, and the ſame, though abuſed before that Law was made. And therefore I conceive it clear, and not to be denied, whatever judgements and reaſons I have ſeen to the contrary; that notwithſtanding that Act for granting Adminiſtration to the next of kinne, the Judges may not only in caſe of a ſiſter and brother, grant to the ſiſter, but in caſe they ſhould both be legally unfit who are in next degree, grant it to the more remote, who then are as next; becauſe of the legal exception: The Law according to right rule and conſtruction, implying all thoſe things which by neceſſary conſequence are required to a juſt Law, and may alſo upon the ſame ground take bond for diſtribution (not according to the will of the Judges (that being purely arbitrary may (how well done ſoever) be very evill in effect) but according to the Rule of Law, which doth upon a pure and ſound Rule (as the Law then ſtood) divide, and it's fit ſhould be obſerved. I intend not to divide to (ſo called pious uſes) but amongſt the next of kinne, by rule of Law capable. The Reaſons are, this was uſed, the Law hath preſcribed no other remedy, the uſage was abſolutely certaine and allowed, the thing was juſt, and the Grounds and Reaſons be ſtill the ſame; therefore cannot by implication be annulled, nor is the Judges, by the Statutes limitting him to what party he ſhall grant the Adminiſtration, bounded in any other particular power before had, uſed, and ſo enjoyed, as to have the vertue of a Law. If we come to ſtate a Caſe or two, the Juſtice and Reaſon of the thing will moſt evidently appeare. A man hath one hundred, one thouſand, or ten thouſand pounds a yeare, and a perſonal eſtate of one thouſand, ten thouſand, or one hundred thouſand pounds, and hath two, three, foure, five or ſix children, ſonnes and daughters, be he Lord, Knight, Eſquire, Gentleman, or Burgeſſe now in England, all is one; here preſent riches controlls and carries all, money makes the man. The land unleſſe ſpecially ſettled by the Anceſtor or Anceſtors (which we are not to look here at, but at the courſe of Law, according to the old legal Rule, for our foundations are all cleane loſt, altered, or unknowne, that the Prince might be the better ſerved in his warre) went, and goes wholly and undivided to the eldeſt ſonne: well, be it ſo, though as I now apprehend the reaſon of the Law ceaſing, the Law ſhould be fitted according to the preſent condition of the Common-wealth; For as a City or Common-wealth conſiſts not in the walls and ſtructures, but in the people, ſo the reaſon of the Law is the life of it, not the letter, which the wiſe Judges well know, who can when and where they pleaſe, caſt the model of a Judgement according to the preſent intereſt of the Common-wealth, clean diverſe, if not quite contrary to the firſt Inſtitution, and that in conſtituted or latter Lawes, upon no other ground or rule viſible but that; but ſhall then the perſonal eſtate go to the eldeſt alſo, and ſhall all the other children be beggars, or ſet to work, (how highly ſoever educated) as if impotent, maintained by the Pariſh, go by degrees, and ſo to the diſpoſition by the letter of the Law, the eldeſt ought to have it, for he is properly the next of kinne (the wife being not within the letter of the Law, for indeed literally and legally ſhe is of no kinne, being part of himſelfe, while living, and is now his relict or widow, which hath no legal degree of kinne in it, but is in by the Statute) So the reaſon the eldeſt is naturally the Prince of the family, and is, though not nearer, yet in the ſame degree the more worthy, and what the Law gives him otherwiſe, 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 conſtituted Law to put his Oare into this Boate; If becauſe the eldeſt hath enough already, the ſame reaſon runnes ſtrong for a diſtribution to give each one a competencie; but admit the Anceſtor hath no land, but a perſonal eſtate, great or ſmall, the Law of 31. E. 3. bounded the Ordinary as aforeſaid ſufficiently, but under no expreſſe penalty; he might not appoint whom he pleaſed Adminiſtrator, but was regularly then tied to the next of kin, and they were made accomptable to the Ordinary: I cannot think devotion had in theſe times ſwallowed up charity, or charity natural reſpect, engagements, or common prudence: I ſhould erre much, ſeeing not only the generall Law which treats of diſtribution, made Rules for, who ſhould be capable to come in to claime Adminiſtration, and to require part of the eſtate; but alſo to ſettle the Rule of and for diſtributions, and from that even the conſtitutions Eccleſiaſtick of England ſettled the ſame.

I ſee alſo they take care for payment of debts, ſo that I muſt conclude the Law then truely conſtrued, conſiſted in a pious and diſcreet careing for the equal, and right wiſe diſpoſing of the eſtate left by the Law, as if the party himſelf had ſettled it. But for to prevent miſtakes, and reduce the Law, in certaine to its firſt and Primitive Rule.

The Law of 21. H. 8. gives the ordinary power to grant Adminiſtration 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 diſcretion. Now that Law hath this clauſe, taking ſurety for the true Adminiſtration of the Goods and Chattels, &c. which he or they ſhall be Authorized to Adminiſter, which clauſe was ſurely to ſome purpoſe; and to what could it be, but that the Ordinary might ſtill have ſecurity? Yea, were it from Wife or Childe, that the Adminiſtration of the Goods might be according to the Rule of Law; and the equall courſe of diſtributing to Wife, Children, and Kindred, according to the Rule of Law, was ſtill continued.

Now to the Suretiſhip, I conceive it clear, that the Bond taken faithfully to Adminiſter, proving queſtionable, and dubious from claſhing of Courts. The Common Law-courts ſeeking in the declining of the power of the Epiſcopall party, to intermeddle and umpire in and over the Eccleſiaſtick Juriſdictions▪ What was before wrapped up in generall words, was intended to be reduced to a more ſpeciall Declaration, at leaſt in that particular moſt ſtrukt at. But oh, the Common Lawyer beats his Buckler to his head, telling him the Ordinary hath no power to take ſuch a ſpecial Bond, for he hath no power, but onely to take Security truely to Adminiſter. And though theſe queſtions were from the prudence of former Judges (plainly convinced of the Juſtice and neceſſity of the thing) moſtly waved ſome perſons of late times, not onely queſtioned theſe ſecurities, but have ſo varied concerning the power of the Judges of Wills and Teſtaments. The ancient Juriſdiction of the Ordinary failing by the taking away Ordinaries, and by them of that Ordinary legall coerſion in thoſe Juriſdictions uſed, have endeavoured obliquely, and by the by, pretending thoſe Bonds ſuable no where but at Common Law, to obſtruct and ſubvert the whole buſineſſes, by delivering opinions, that thoſe Bonds were not valid in Law, and ſo conſequently enervate the diſtribution, by rendring the ſecurity fruitleſſe. Whereas the Statute require ſuch Bond to be taken, and conſequently intended, if broken, to be ſued. I ſhall exemplifie by the weakneſs of the foundation by inſtance, A man comes to the Court, craves Adminiſtration, his Brothers and Siſters, or next Kin within Rules of diſtribution, crave it alſo; the Judges grant it to one (to avoid the known covetuouſneſs, ſuits, waſting of the eſtate, and perpetual enmities ariſing from joynt Adminiſtrators, each one getting all they can, and then to ſuite; no due account, nor ought fit for men: and we all know, that the differences of Allies and neer relations, are the ſharpeſt and hotteſt) taking Bond to ſtand to the diſtribution of the Court, which is, as I ſay, ſetled upon known, legal, and rational grounds. The Adminiſtrator claimes an intereſt in all as Adminiſtrator, the Common Lawyer tells him he is onely to pay debts, and not knowing what debts may appear, he is never to account or diſtribute. The Judges of Wills have no power to take further Cognizance. The Judges of Probates queſtion him, or ſeek 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 England; and then a conteſt ariſes 'twixt the Courts, or might, were they but equally backed, then a ſuite in Chancery; nay this is, though the party taking Adminiſtration hath it onely upon conſent, nay ſubſcribes that conſent: and what's the reaſon? truely the Common Lawyer (in this Caſe and this Court) ſayes it is a forced conſent, for Adminiſtration would not be granted till conſent were; yet he was free to take or refuſe for the Election by the Law of H. 8. was in the Ordinary, and ſo now in the Judges. I conceive to any unintereſted party this will more then manifeſt, that pure intereſt over-rules in theſe caſes, and ſure the powers, if ordained of God, will lay theſe oppreſſions of the people to heart, and give eaſe to them, and ſettle the limitts of Juriſdictions; for it makes men knaves, and makes multitude of poor, and brings not onely Courts and Judges, but Juſtice it ſelf into contempt. This ſhall ſuffice for the Court of Probates as to this point, I intending onely to hint things, not make up all matters, to make the wound wide, and happily paſt healing, but by a Corraſive.

A word or two concerning the Admiralty: It is an ancient Court as muſt be acknowledged; yea, as ancient as any, that it hath a certain peculiar and proper Law, according to the ſubject matter of its Authority, is agreed, that it differs from the reſt of the Law of England, 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 ſo on the contrary, 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 ſuch places from whence a venue may ariſe, 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, perſpicuous and evident to that purpoſe; but ſuppoſe they were difficult, what conſtruction they ſhall bear is the queſtion? I take it clearly, that no preſcription ſhall run againſt an Act of Parliament, but I take it as clearly, that a non-uſer of an Act, invalidates the Act in time; as the Statute of Merton is agreed by Mr. Littleton, and if I be not miſtaken, the Sages of the Law have atcheived to themſelves a power, that no ſuch grand conſultations might be invalid, not onely to expound, beſides the open and vulgar evident meaning of an Act, but contrary to the litteral meaning of an Act, to quaſh thoſe evils which experience manifeſted, and might not at making of the ſame be foreſeen. If ſo, then they have a power not to prohibite where they ſee a greater evill would enſue, in caſe the ſtrict letter ſhould be obſerved. Put caſe then, two Engliſh Merchants, or one Engliſhman, and another Country man of any Nation, or a Merchant, with a Maſter of a ſhip, meet at Conſtantinople, Venice, Smyrna, or any part where the Common Law of England is not known, and by a Lawyer there practiſing, according to the Rules of the Civil Law, make a contract upon Land in writing, can it be intended the Common Lawyers ſhould judge this contract, becauſe done on land, or twelve men packed by an under Shrieff or Bayliffe of a liberty, ſervant to the Attorny in the caſe ſhould come in, and being onely to try the fact, ſum up the Law in a huddle, by finding for the Plaintiff or for the Defendant, when the Judge himſelf is not in ordinary ſuppoſal, able to inſtruct them; and how then ſhould they underſtand, for many Pleas are by the Civil Law admiſſible, which the Common Law takes no notice of, or the Judges will not, or would not ever yet allow. For example, ſuppoſe the contract were upon ſuch ſlaves money, &c. delivered the Maſter at Morocco in Barbary, to take ſo much Sugar at Morocco from his Factor, and deliver it at London, or any other Port in England; ſhall it be tryed by a Trover in England, or by a promiſe upon conſideration, or in caſe of money by account, theſe actions not admitting legally ſuch Pleas as the nature of ſuch Foraign contracts of neceſſity muſt allow. So ſuppoſe the ſame done in London, and the delivery to be in Forraign parts, if the ſame be drawn according to Rules of Common Law, upon the Lawes Civil, or of Merchants; ſo in caſe of the Conſuls Embaſſador and Merchant taking money, where it runs at fourty pound per cent. ſhall it be paid here by ſix, or ſtayed with a prohibition? So in caſe of hiring Sea-men and Marriners oft in an Ale-houſe, to debar the Maſter or outtrader of his lawful and juſt Pleas in Marrine contracts, becauſe of their being made on Land, is more then rigid Law, which is the moſt grievous wrong, ruining under colour of relieving, yet with prohibitions for ſuch like caſes (infinite of which might be put, but I ſay not an Infinity of prohibitions) are they (ſo the called) Civil and Common Law-courts at variance; yea ſometimes in caſe of Marriners wages; And had not a late good Act been, it likely more would have been. The evident evil in caſe of prohibitions rightly brought, if any be, yet ſeldom or never a prohibition comes, till the charge be paſt, and all things pubiſhed: ſo that there is a light to diſcover by the proofs, which way the caſe will go, and then that party likely to be overthrown, flies to a prohibition.

Sure if reaſon be reaſon, and there be ought of Juſtice amongſt men, theſe things be cruelties and oppreſſions to be remedied; the guilt muſt lye ſome where, God grant whom it moſt concernes may lay it to heart. I ſhall not touch upon the laying Actions betwixt high and low water mark, when done at Sea, nor laying things done in the furtheſt part of Europe, nay of Aſia, in the Ward of Cheap. becauſe I will not overlabour things; for its evident, an Engliſh Jury was never intended to try them, for ſo the Act expreſſes, contracts, pleas, and quarrels ariſing within the bodies of Counties, as well by water as Land. This is enough to clear up what the juſt and due intendment of Law ought to be, if Courts and Judges be for Juſtice ſake, and for the peoples benefit and quiet, and not the contrary; and if ſo, I conceive it will follow from the premiſes, that the Subject and people of England have a right, yea a birthright, in that part of the ſo called Civil Law, uſed in England equally with, and in any part of the ſo called Common Law, the whole making up, but the Laws of the Nation and people, though by words, according to the cuſtome or mode of ſpeech, the ſame be variouſly called and diſtinguiſhed, and conſequently the Judges of thoſe Courts are Judges of England, and of the Laws of England, and ought to have reſpect and eſteem accordingly, and indeed deſerve it, for no man of ingenuity, but will acknowledge (though the meaneſt Barriſter at Law almoſt will not regard them) their ſtudy is full of high and deep knowledg (I knowingly put thoſe extremities together) renders the Nation more glorious abroad, and is ſo more univerſally beneficial: Indeed heretofore the Judges being but the Admirals Deputies, (or by the Common Lawyer ſo eſteemed) the great regards due to them, and the Prerogative Judges, who then were in like manner but the Ordinaries Subſtitutes, were fore-clozed.

But now the Prince wiſely giving immediate power from himſelf, layes a ſure foundation of regard, if meet incouragements follow: From this it will be as clear, that the Doctors and Practizers of the Civil Law have their due rights to be heard, not only in the Courts of Civil Law ſo called, but alſo in caſe of any queſtion ariſing in any Court of Common Law, concerning any matter originally cognizable, or which hath had any proceeding in any of the Courts of England, what the Rule of the Civil Law ſo called is practiſed, and followed, and not only to be conſulted with, which the antient Sages of the Law, as occaſion offered practiſed, but to be admitted to plead in the Courts of Common Law, in ſuch caſes, as the Serjeants and Barriſters at Common Law do and ought to do, both in the Admiralty and Court of Probates, in caſe a queſtion upon any Statute, or other part of the Common Law of England comes in queſtion, and then much more where a queſtion comes, whether the Cognizance of the caſe belongs to this or that Court; and this is ſurely reaſonable upon the ſcore of general and univerſal reaſon, whatever it may be upon the ſcore of intereſt or particular benefit.

2. Head.

I now proceed to the ſecond Head propoſed, viz. Whether Courts, whoſe ſpecial known Origination ſtands principally upon uſage and allowance of the Supreme power, though uſing a diſtinct Law from the general received Law of the Nation, may not be, and are not Courts of Record of and in that Nation, and ſo to be allowed by the Courts of Common Law?

Were it now the time, when Abbots, Biſhops, Canoniſts, and Civilians were the chief (if not the only) Judges of this Nation, and ſate upon the Benches of Common Law at Weſtminſter, it would be labour in vain to make this a queſtion; but I ſhall wave thoſe ſuggeſtions, that I may not irritate if poſſible, and only diſcuſſe the caſe, that the grounds of things may ſo appear, that ſome judgement and concluſion may be raiſed; 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 deſcription of this great queſtion, What properly conſtitutes a Court of Record, and what are the proper and peculiar rights, powers, and priviledges of ſuch a Court, for their learning may be much, but it is confuſed, and in a Chaos for the generality, and loth they are to have it model'd for common and general uſe. I ſhall not attempt to diſcover the reaſons, but only eſſay to clear up what I find of this; one mark I find of a Court of Record is, That it conſiſts by matter of Record, or Patent, or Grant of the Prince; but I conceive that is not demonſtrative, becauſe that each Court ſo conſtituted, is not, or will be allowed of Record.

Another note I finde to diſtinguiſh by is, where a Writ of Error lyes upon any Judgement given in an inferiour Court, it's a token the inferiour Court is a Court of Record; but if a Writ of falſe Judgement, then a baſe Court: So that the difference is not between Courts of Record, and inferiour Courts, but Courts of Record, and baſe Courts, then the concluſion muſt be, all Courts, not baſe, are of Record; but that will not be granted by the common Lawyer, for antient Demeſne is not a baſe Court; if baſe be taken properly for a Court where baſe tenure is; but if from the contrary, you come to conclude all Courts not of Record are baſe, its evidently falſe, if you take their own Rules; for whatever the civil Law Courts might be eſteemed from the learning and Pleaders, ſpecially uſed and imployed in thoſe Courts, ſure the Court of Chancery, which they call in deriſion a Paper Court; ſo that of Requeſts, and others, are not baſe, take baſe from the ſubject matter there handled, or inferiority of power, and that as to the value or power, to inforce obedience, and the like.

Theſe Courts, though partly uſing Rules of common, partly of civil Law, yet the Practiſer being wholly according to the common Law conſtitution, are not ſo oppugned, as thoſe uſing wholly, or moſtly, the rule and practiſe of the civil Law, but will not be allowed of Record.

There are ſome other ſuch notes, whereby you may, if you can, pick out what is a Court of Record, but its the ſafeſt way to conclude in this caſe, as when the queſtion is, What are the Original Languages, and how many they are? Thoſe, and ſo many as the antient learned Authors make them, and better ſet down by that, then diſpute; ſo they are thoſe Courts, and ſo many as the learned and Authorized in thoſe Laws will have them, for I find no certainty, and am the more in doubt, when I ſeriouſly conſider the matter, from what I finde in a learned Author, who ſeems to diſtinguiſh between a Court of common Law, and a Court of Record: I know well he intends a Court that was by cuſtome originally, not by Patent, but I can conclude, what is Record, is not of common Law, and it muſt be a good concluſion, or the other will prove vain to be a ſure deſcription. I ſhall not ſay ought of a Patent in words expreſſing it to be a Court of Record, for the Origination is plain, but what the diſtinct powers are, is never a whit thereby the more perſpicuous and manifeſt.

I am not ſo ignorant, but I can tell, there may be a reduction of things to ſome certainty, both what makes a Court of Record, and alſo its powers, &c. by that part of the Law of England called Common, from the Judgements and Caſes in the Books of the ſame, or rather, by the powers the ſeveral Courts have uſed in themſelves, and in and over each other, and againſt others, and the vertue and power they give to the Acts of their Courts, regularly Entred and Recorded, and the diſallowance of the Acts of other Courts, neglecting them, and calling them, yea though under Seal of the Court, and atteſted by a Sworn Officer, but as papers, ſcrowls, or leſſe. Now to let all other things paſſe at this preſent under ſilence, I ſhall only offer to conſideration, whether it be not eſſential to every Court, and of neceſſity to evidence the reaſon and Juſtice of the conſtitution of the ſame, that the judicial Acts of each Court, not only be drawn in writing and Regiſtred, but that the ſame be Records, and ſo allowed in all Courts in that Nation, next that, each Court hath power to inforce its own Decrees within the bounds where its power reaches, to take Cognizance of any cauſe judicially.

As to the firſt, ſee the end of a Court, its agreed univerſally to do Juſtice, and give forth Judgement to the people, now this is either by Declaration, Plea, and Judgement in writing, or without; in England, by the general Law, there is none but in writing, nor indeed where Judgements are ſubitane or ſummary, and preſt, as in Fairs, Markets, &c. upon ſtrict reaſon they ought to be in writing, though ſhort, and not held to form, now if reduced into writing, why not Record, and to prove it ſelf, and to manifeſt and teſtifie the nature of the caſe, and be evidence in caſe of any ſuit for the ſame in any other Court? Is not the tryal there? otherwiſe a deceit; it might not be ſo grievous when time was, but now all is brought to the Courts at Weſtminſter, it is ſound of very evil conſequence; I muſt agree Court-Baron, Hundred, Towne and County Courts, are generally ſo ill provided of Judges, they have nothing worthy the name of a Court of Juſtice, but if you think fit to continue them Courts for the people, to receive Law thence, let their judgements be aſcertained, and alſo Records: But the queſtion here, is not concerning thoſe inferiour Juriſdictions, (for I humbly conceive all the baſe Courts in England are upon true rule gone and extinguiſhed) but concerning the Court of Probates, which for ought I can finde may have the cognizance of the proofe of all Wills, and that both to reall as perſonall eſtate, rather then the Chancery, and examine Witneſſes in perpetuall memory, for the inconveniences to the people are great; for the perſonall eſtate prove the Will in the Court of Probates, for the reall, in Chancery, by Witneſſes: Yet the Court of Probates hath alwayes uſed proofe, by Witneſſes upon oath: Then out comes the Originall Will from the Office, and though there it might reſt as a Record, upon Record, for the equall benefit of all concerned, which it very oft proves, yet by the Common Law it comes to one parties hand principally, it may be concerned yet with many others, and upon a Suit he will not produce it; the Copy taken by the Officer on oath muſt not be a Record, and unleſſe the Judge at Common Law will in equity, and for Juſtice ſake, admit it, he is not bound, and ſo the Suit is loſt; the truth indeed appeares, but it's not evidence in this Judges opinion, and ſo the Law is as the Judge is minded; and all this in England, under the ſame power▪ and from claſhing of Courts and Judges of the ſame Prince and people.

Thus by the end, and the inconveniences, it's cleare, each Court, Adminiſtring Juſtice, ought in the ſame Nation to be ſo farre a Court of Record, that the Acts of the ſame in the publique Regiſtry aſcertained, ſhould be of themſelves, if produced proofes (if by true Copy ſworne, to be accepted as proof.) And, I ſay, it's not materiall, whether the Regiſtry be in Parchment or Paper, happily the firſt, being now known more ſubject to alterations without diſcovery, let as much of certainty be as you pleaſe; but if you find incertainty in a Court judicial, remedy the incertainty, for it's of neceſſity to have all ſuch acts Records.

Now if this be ſo, and ſo it ought in the Court of Probates, then much more in the Admiralty, which is a Court hath as great a latitude of power in the Cognizance of caſes of Life, Maim, Wounding, Impriſonment, Damage and Loſſe, to the greateſt value, as any Court in England, yet its acts, with the Judges of England, are not Records, and which is the wonder, the Judges of all Forraign Princes of Europe, will allow them judicially in proofe, if under Seale of the Court, or judicially atteſted; but the Judges of England will not, What is the reaſon? becauſe for the benefit of the Nation in ſpeciall cauſes, they uſe a Law allowed and practiſed by other Nations: No, that is not the thing, but practiſed by Doctors, and not Barriſters and Serjeants, which theſe Judges were; and how the intereſt of Societies in education runs, and hath its work, even to deprave Judgement, and to maintaine things evidently irrationall, needs no proofe: I profeſſe ſincerely I have impartially weighed things, and can finde no ground in reaſon for it, and can only ſettle it upon the intereſt of education, private benefit to them of like ſtudy, &c.

3. Head.

I will not inlarge upon that, but come to the other part of this Queſtion, which is the third Head or Propoſition, Whether it be not naturally and properly incident to every Court to have power to inforce its own Decrees? The queſtion is here, concerning the coerſive power of a Court; there is no Court in England, nor in any place, but it had a certainty of power, either againſt body, or goods, or both, to inforce thoſe Judgements, it gave in caſes there cognizable: Indeed its evident to reaſon, it were not otherwiſe a Court of Juſtice, for Juſtice is not giving ſentence, but ſeeing the thing done accordingly, which is called juſtly execution.

Now this queſtion is out of doores in the Admiralty, it inforces, as well as it can, the power there is not denied, but in the Court of Probates wholly, though it hath the Ordinance of the Parliament and his Councel; let's ſee how it ſtood before, while the Ordinary had it, who being an Eccleſiaſtique, had in this caſe of Wills, and Teſtaments, and Adminiſtrations, firſt power to excommunicate, which if the party obeyed not, was after fourty daies of common right aſſiſted by the Civil Magiſtrate, and of courſe there iſſued a Writ to the Sheriff, to impriſon the party till he obeyed, which amounted to as much as a Capias ad ſatisfac, or Execution at common Law, and the Excommunication it ſelfe, was before a Writ for Attachment, a kinde of Uthagary, debarring him right of a lawful man in matters of greateſt concernment, and then pleadable, even in the Court of common Law. Now this power, Judge, and Court of proceedings being gone, and Lay-Judges, as in other Courts conſtituted, whether, while a Court, it hath not coerſive power, is the queſtion: I conceive, even by the very conſtituting of it a Court, it hath power coerſive in it ſelfe; for as there are words of Art which include much, which the ignorant ones know not, ſo this word Court, or making, or conſtituting men Judges of, &c. include in them, not onely a power to hear, but to Judge, and to inforce that ſentence; for as nature, ſo the Law doth nothing in vaine, it ſettles not a power in any to make Judges, but to have power alſo to inforce, for otherwiſe their ſentence were in vain.

It's plaine, that the power Eccleſiaſtique by cenſures is gone, and the Judges civill cannot execute it; but my reaſon is, that ceaſing, the Judges now, that the Law may not want his courſe, and that Juſtice be done to the people; the general reaſon of the Law requires, that coerſion be. The queſtion now is, what I muſt acknowledge, the liberty of man is precious, and ſo are goods, for property is little, if liberty be incroached on, and liberty little, if property be taken away; whether then this ſhould extend to body, or goods, or both, is the queſtion I muſt owne; the common Law medled not with the perſon, while there were goods, but attached him by his goods, but that was found inconvenient, which principally altered that Law, or courſe of practiſe, for the letter of the Law is not obſerveed. Now then if the procedure of the Judge be according to the practicall Law of the Nation in generall, I ſhould conceive the Officer ought to be free from Action, and plead the Rule of the Court, I know there is no ſetled Priſon to which he can be committed, and that private houſes ought not to be Goales.

But I ſtand upon this as a caſe of neceſſity, wherein much more damage muſt come to the people from defect of Juſtice; and therefore I know, though they may not be warranted by a particular Law, yet they have the generall Rule of ſaving, and not ruining the Commonwealth in your truſt to plead for them, to avoid both puniſhment or rebuke; yet it may be more fit certainly to declare the coerſive power thereof, and how far it extends, leaſt there ſhould be any incroachment under colour of Juſtice.

4. Head.

The fourth Head, will from theſe former Reaſons and Grounds laid down, receive a full proofe, and no way conclude (to ſpare expence of time and words, for I would no more reiterate then irritate) that a certain continued, and conſtant known practiſe and uſage in a judiciall Court, ought to have the force of a Law, the ſame ought to be allowed in any Superiour Court after ſuch uſage, yea, though it might ſeem otherwiſe againſt Law; for while Common Error (upon the Rule for the ſafety of the people) makes a Law, this cannot be denied; but let the Superiour Court admoniſh the Inferiour, and if it doth not then rectifie, let the Judges and Officers be puniſhed, otherwiſe the Suitor will be grownd between two Milſtones, one Court inforces to do, and in another he is overthrown, for doing, but how? there's the myſtery, not for doing as that Court ordered; but becauſe that Court is adjudged not to have power to make ſuch order, but it may be, a Court may claim to be Superiour, where it is not, or declare the Acts of an inferiour Court erronious upon a coliteral occaſion, which may indeed ſupplant and enervate the whole ſetled Juriſdiction of the inferiour Court, and bring all to the Superiour, by which means all County Juriſdictions have been deſtroyed, and the whole ſtream and current of buſineſſe, is brought to the Superiour Courts, this aptly brings me to diſcuſs the fifth head or Propoſal.

5. Head.

Whether in a Nation, where divers Courts are admitted, proceeding judicially and definitively, according to divers originall Lawes, it can ſtand with reaſon, that one of thoſe Courts ſhould prohibit the other; to bring any matter before it ſelf, or decide to what Court the Cognizance belongs.

I ſee all times and perſons profeſſedly taking care, by all meanes poſſible, to decline intereſts; as ſeeing how ſubject, even the beſt of men are to turne and bend aſide, drawne by the baits and allurements of worldly allurements, of worldly riches, honour, power, and the like: I know in the moſt ſedate and quiet times, Princes have been wary to exaſperate potent perſons, or multitudes, unleſſe able to balance intereſts, and how loth to ſuppreſſe an evill by power, leaſt they ſhould give cauſe to men to doubt, they might call good evill, and ſuppreſſe that alſo in a like way; but ſtill wiſe and juſt Princes, Rulers, and Powers, have done what they could, and effected it as ſoon as opportunity ſerved. I know this is a queſtion of concernment, uſage mixing with intereſt, which makes it the more difficult to reforme, and intereſt having ſo ſtrong a Bulwark to defend it ſelfe by as uſage, intereſt will be called property, and we know what ſtrength cuſtome hath; but this being the intereſt but of a few, and to the damage of the whole body, I ſhould conceive, if the reaſon be apparent, not onely wiſe men, but Chriſtians will give the Supremacy to reaſon, and then yeelding for publique good, ſhall Crowne them as Benefactors to the Commonwealth. Is there then benefit to the Judges from the caſes depending in, and tryed in a Court? and is there not glory in multitude of Suitors in a Court, and the like, then there's an evident intereſt, both of profit and honor, and conſequently theſe things will (yea, even with wiſe men) work, yea, and ancient men, who more deſirous of riches and honor, yea, who more jealous of it, then even dying men. Now if you ſhall look at the Uſage, I ſay that is the ground of the complaint, the evill is evident before, therefore it's fit to aboliſh it: The Judges if they ſhould conſult with prudence firſt, before they agree a Prohibition, ſhould know from the Judges of that Court where the caſe hath been depending, when the cauſe came into the Court, and what progreſſe hath been in it, and what the cauſe appeares to them to be. I know how indifferent the antient practiſe of the Law was between the Civilian and the Common Lawyer, while the Civilian mannaged Legacies, Marriages, Alimony, Tythes, and the like, under the Title of Court Chriſtian: I ſhall profeſſe I know the learning of the Common Law to be great and deep, but it being not uſed to many queſtions, which the Civill Law hath fully handled, it's not compleat, nor is the Law of England therefore compleat, but by that learning which the Civilians uphold: I know 'tis ſhort in many things, I conceive it of neceſſity to keep up that learning, be it but to know what is done abroad, ſhould you ſupply what is defective by Statute, if you would have it known, give incouragement to it, ſee but how a few years have waſted all the ingenious ſpirits intended that way, and all men know, if you keep not up the particular part, the ſpeculative will be weak and low. Take a contemplative man from his ſtudy to the Bar, & his learning wil but render him more ridiculous, from the greatneſſe of expectation, he can do nothing: But to return, you will ſay, the caſe is opened to the Judges, I ſay it is by Common Lawyers, whoſe intereſt it is equally, if not more then the Judges, to have the Cauſe in that Court, ſo that there is intereſt upon intereſt, and where ſhould they now ſue for a conſultation, either Judge, as Biſhop (which ought to be) or party; then there was great conſcience to defraud the Churches or Court-Chriſtian of any due, Excommunications were feared: now there is as it were a feud, which all the learning of the Civil Law for Pope intereſt ſake. I ſay therefore, the inteteſt being clear, the reaſon is evident, they ought not to be Judges, for they are parties in this quarrell.

But it will be ſaid, the Judges at Weſtminſter are ſpecially truſted with the obſervance of the Lawes, and have as it were, the truſt of general Inquiſitors for the Publique good, ſo as to ſee to the Regulating of all Courts, and though the Civilian may plead and urge the meaning and intentment of his Authors, yet the Judges of the three Courts at Weſtminſter, are to Judge of each Act of Parliament.

Really, I from my heart ſhall yeeld the Honourable and learned Judges all their dues to my utmoſt, but I muſt ſay, they ought to hear what can be oppoſed, the intereſt of their Courts is plaine, ſo that as things now ſtand, it may be, ſhould they admit Doctors to plead, in caſe of prohitions and queſtions of Civil Law, cognizance, their determinations might be the more warrantable. But not hearing any but Common Lawyers, the complaint of ſuitors carry ſomething of credit with them. Indeed were the Judges at Weſtminſter as at firſt, ſpeciall conſervators of the Law, the Princes Councel alwayes adviſing him, and informing him of the Law, yearly viſiting the Counties, as the Prince each fourth or ſeventh yeer to ſee to the equall Adminiſtration of Juſtice, according to the Plot of Englands Government, I ſhould, and ought to hold them as indifferent Judges betwixt two other Courts; but as now gathering all the buſineſſe of the whole Nation to the ſole determination, I can ſee it, but not the reaſon of it, no not one Iota or Tittle, and yet I think my ſelf no enemy to the Judges or the Law of England, who would have it a juſt balance in each part of it, which God grant. And ſo I paſſe to the conſideration of Judges of Appeales, which briefly holds forth the expedient to all theſe conteſts.

6. Head.

We uſe in England in all Courrs, when that called the Civil Law hath its courſe, not to bring the appeal by Writ of Error to the Judges at Weſtminſter, but by Appeal to ſeveral perſons which may juſtly be called Delegates; and they are of ſeveral ſorts, ſome onely to Doctors, ſome to Judges of the Common Law and Doctors, wherein there is a Quorum, and thoſe are Judges of the Common Law, others are to Judges of Common and Civil Lawes, Doctors and men of degrees, rankes, and qualities whatſoever, but unleſſe it be that all to Doctors, they are ſo incertaine a Court to get together, having no incouragement to come together, but their affection to the caſe, that its ſo extreame dilatory, that he that gets the money in hand to come to that Court, may account it halfe as good as his own. Its in ſome part a great cauſe of confuſion, for from the many caſes all the Doctors are ingaged at the ſame Court, both as Judges and Advocates, and ſo the ſame perſon now a Judge, preſently an Advocate, then a Judge againe: were it not grown to ſuch an Abject condition, that there are few or no ſpectators, it would be ridiculous. But this is tolerable, becauſe Juſtice may be done, which is the maine work: but the great fault is, men are choſen Judges by parties, and eſpecially in caſes of marriage of their moſt confiding friends; all given in by one ſide, and though there be noble and learned perſons Approvers, yet they cannot diſcerne the intereſt. Therefore to remedy all theſe evils of contentions, 'twixt Courts as well as parties, its of neceſſity to keep a Claſſe of Judges, as the Original ſettlement of Englands Laws intended, fitted for, and onely to be imployed in the determination of all caſes that can fall out in England, &c. Who ſhall not Originally hear any caſe, but ſhall be Moderators in all caſes, of all Lawes Common, Civil, or Equitable; and in caſe any Eccleſiaſtique power ſhould ever have head, of that alſo, both as to difference 'twixt Court and Court, and alſo to decide and determine all Appeales in caſes Appealable, for it is fit to bring all caſes to appeal and determine all ſuch caſes and differences as there ariſe, ſpeedily and ſummarily hearing Court and Court, as well as party and party; there coming nothing before them to be tryed by Juries, but onely upon the rigor of Law, which will indeed and really according to Englands good Law given the people, Juſtice, and well will it be if ſuch Judges be appointed, as they may have it as the Law pretends at their own doors, according to a ſetled Rule.

I well know there are objections of no weight offered ſcatteringly, by way of Oratory now and then at ſome publike meetings againſt this offered, let them give them openly, and in certaine concluſions, that they may be brought to the Teſt, either of Law or Reaſon, that we be not blindfold led out of the juſt path of Englands Law, which holds a juſt balance Originally 'twixt Prince and People, Court and Court, party and party, which ſhould be the endeavour and prayer of all good men.