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 [Page 5] 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 [Page 7] 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 [Page 8] 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 [Page 10] 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 [Page 11] 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 [Page 12] 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. [Page 13] 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 [Page 14] 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 [Page 15] 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 [Page 16] 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 [Page 17] 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, [Page 19] 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 [Page 20] 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 [Page 23] 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 [Page 24] 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 [Page 25] 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 [Page 26] 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.