Reformation in courts, and cases testamentary. Parker, Henry, 1604-1652. 1650 Approx. 21 KB of XML-encoded text transcribed from 6 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2008-09 (EEBO-TCP Phase 1). A91346 Wing P419 Thomason E616_5 ESTC R206722 99865835 99865835 118086

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Early English books online. (EEBO-TCP ; phase 1, no. A91346) Transcribed from: (Early English Books Online ; image set 118086) Images scanned from microfilm: (Thomason Tracts ; 94:E616[5]) Reformation in courts, and cases testamentary. Parker, Henry, 1604-1652. 11, [1] p. s.n., [London : 1650] Attributed to Henry Parker. Caption title. Imprint by Wing. Annotations on Thomason copy: p.1: "Nouemb: 14. 1650"; p.11: "Written by Henry Parker. Esqr. 15. Novemb. 1650". Reproduction of the original in the British Library.

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eng Justice, Administration of -- England -- Early works to 1800. Law reform -- England -- Early works to 1800. Jury -- England -- Early works to 1800. 2007-05 Assigned for keying and markup 2007-05 Keyed and coded from ProQuest page images 2007-06 Sampled and proofread 2007-06 Text and markup reviewed and edited 2008-02 Batch review (QC) and XML conversion
REFORMATION IN COURTS, and Caſes Teſtamentary.

BEfore the late abolition of Epiſcopacie this Nation ſuffered under too many Teſtamentary Juriſdictions: ſome Counties had no leſſe then 50. or 60. Peculiars: and in ſome Counties divers Lords of Manors, and Corporations had a priviledge to prove Wils, and ſpeed buſineſſe of that nature upon a Lay account.

The People found themſelves divers wayes aggrieved by this multiplicitie of Juriſdictions: and therfore to give ſome eaſe, and redreſſe therein, the Metropolitans Prerogative Courts were erected about 400. yeers ago.

In the yeer 1643. Dr: Merick, Judge of the Prerogative Court of Canterbury, removed his office to Oxford: and then there was a Committee appointed to conſider of a new ſettlement of that Court, but nothing was reported thereupon.

In the yeer 1644. Mr: Maynard brought in an Ordinance for making Sir N: Brent Judge in Dr: Merricks place: and the ſame was paſſed with ſome other materiall alterations in the Prerogative Court.

In the yeer 1646. All Epiſcopall Juriſdiction was taken away: ſince which there is no true power remaining any where to diſpatch Teſtamentary buſineſſe upon the Eccleſiaſticall ſcore, except that of Sir Na: Brents.

Sir Na: Brents Juriſdiction has two defects, and ſo is as yet inſufficient to do right to the whole Nation: it wants exteſinon of bounds: and a competent Power of coertion.

For want of Extenſion it cannot proceed duly within the Province of York, nor within the ancient Province of Canterbury: but onely in ſome ſpeciall Cauſes. Hereupon occaſion has been taken by divers private man without, and againſt Authority of Parliament, not onely where the Prerogative has no cognizance, but alſo where it has to exerciſe Teſtamentary Juriſdiction: and ſo by theſe miſproceedings the deceived people is put to much unneceſſarie charge, in as much as they are neceſsitated to take out Adminiſtrations the ſecond time, and be at the expence of new Probates as often as any Suit ariſes.

For want alſo of a ſufficient Coercive Power (for a Court without a Coerſive Power is no Court) the preſent Judge cannot force men to bring in true Inventories, or ſubmit to order in other points: whereupon a vaſt licence is taken by many to defraud Creditors, Legatees, and other Intereſſents: yea the State it ſelf is often injured hereby, aſwell as multitudes of private men.

There is now living at Guilford an Executor which refuſes to bring in an Inventory: yet the Teſtator died under ſequeſtration, owed good ſummes upon Bond to the Parliament: and beſides the main bulk of his eſtate, He gave away in his Will above 900 l. in pety Legacies.

In Order to a Reformation of theſe things, a Committee of Parliament was choſen in April 1646. which after 3. yeers ſitting made Report in May: 1649.

The matter of that Report was referred to a new Committee to be formed into a Bill, and in July following for the better maturing of that buſineſs, other Members were added to that Committee, and a ſpeciall care thereof was recommended to Sir Pe: Wentworth, and Mr: Miles Corbet.

Since that time a Bill has been prepared, and twice read in the Houſe, but notwithſtanding ſo much time is elapſed, it ſtill hangs under a recommitment, and fails of giving ſatisfaction.

The reaſon why the reforming of theſe things (though the State it ſelf, and thouſands of particular men remain ſufferers in the mean time) proves ſo dilatory, and difficult, is ſuppoſed to be: becauſe moſt men are poſſeſſed with two contrary extreme opinions: and few there are that pitch upon the middle and more moderate way.

Some men are wholly for the Civilians, and out of favour to them, they would have no leſſe then 20. Courts erected, wherein none but of that profeſſion ſtould ſit as Judges.

Some men are as oppoſite to Civilians, and they would have that whole profeſsion removed, and quite eradicated, aſwell ſuch as have been faithfull to the Parliament during theſe late troubles, as ſuch as have been Enemies: only that Teſtamentary buſines might be thronged, and obtruded upon the other Courts at Weſtminſter.

In the mean while there is a third opinion, that mitigates both theſe extremes, and thereby declines the inconveniences occurring on both hands.

According to this Third Opinion: if the Court (now cal'd the Prerogative) were inabled with ſuch a Coercive power, as other Courts of Juſtice have: if it had a Juriſdiction in all Cauſes Teſtamentary whatſoever, throughout the whole Land: if it were likewiſe animated with as many Judges, as uſe to ſit in other Courts (which the Lord Bacon thought neceſſary many yeers ago) and if it were ſubordinated to another higher Court, of as many Judges, in all matters worthy of appeal: it would prove an excellent ſettlement: and without any further dangerous Innovations (we take in all other reſtrictions, and points of Reformation preſcribed to other Courts againſt delayes, exceſsive fees, and arbitrary proceedings) would be ſufficiently ſerviceable to thoſe publick ends, we all aime at.

It is remarkable alſo that the Advantages, and Conveniences, which commend to us this middle way are many, and very weighty. For,

1. Hereby that admirable light of the Civill Law, approvedly uſefull in Monarchies, and yet by ſome held more uſefull in Democracies, will be preſerved in our Engliſh Horizon, and ſaved from utter extinction. There is ſcarce a State in Chriſtendome, whoſe higheſt Councels, and Judicatories are not mainly ſwaid by the profound Profeſſors of Civill Law: and as learned Polititians are generally the ableſt ſervitors to all States; ſo no other ſtudy, or breeding has more eminently accompliſht Learned Polititians, then this of the Civill Law. Without a competent practice this knowledge will be loſt to our Natives: and this being ſo loſt, we ſhall be driven, though to our ſhame, to have forreiners in p nſion. Now to reject the ſervice of Engliſhmen, when we are to treat with aliens: and not onely to truſt, but alſo to gratifie with our Engliſh gold men born to a forrein Intereſt, will be a great diſcouragement to our own Students ſo rejected. Beſides Teſtamentary buſines is common to us with other Nations, it never had hitherto any thing peculiarly municipall in it, the formes and the proceſſes, and proofs of the Civill Law have ever hitherto ſo prevailed, that Engliſhmen might confidently as to Teſtamentary Intereſts demand, and recover their rights abroad, and ſtrangers might do the like in England. And tis not yet eaſie to foreſee what inconveniencies may enſue if in this infancy of our Republick we preſently depart too far from ancient legall communities and correſpondencies with other neighbouring Nations.

2. As the ſtudy of the Civil Law will be preſerved, by the number of Doctors and Advocates, that will be ſupported by one Admiralty, and theſe two Teſtamentarie Courts: ſo the Students of the Civil Law will be hereby the better reduced. Heretofore, when there were ſo many Peculiars, and Judicatories in England, the very number of them was oppreſſive to the people: and yet there is not left now the tenth part of buſines, and imployment for Civilians, as was then. All the cognizance of Decimal caſes, and queſtions about Matrimony, Incontinence, Canonicall obedience, and granting Licences of many ſeverall ſorts is taken away; and therfore it remains, that we muſt leſſen our Courts, as we have leſſned the buſines appertaining to our Courts, or elſe our Lawyers themſelves will feel the inconvenience of it, as well as Clients. Countrey practiſe addes little to the skill, and ability of our Gownmen, wherfore when there is a ſcarcity of Countrey Practiſe too, (as there muſt needs be, if no fewer then 20. Courts be eſtabliſht for ſo little buſines, as is now remaining) the very number of Profeſſors will become a burthen to the Profeſſion, rendring them, as indigent, as it does illeterate.

3. This due reducement of Civilians will be for the States eaſe, as wel as for the commodity of our long-robed Gentlemen. For multiplicity of Juriſdictions, what by their own claſhings, and what by the craft of their Miniſters, often begets multiplicity of needles Suits, and tis poſſible that more publick and dangerous differences may be occaſioned by their diſputed limits, and diviſions, and all theſe will be damageable to the Common-wealth. If we calculate what the neceſſarie charge will be of maintaining twenty Courts, as ſome propoſe in favour of Civilians: or what will maintaine ſo many Clerks, and Officers, as there are Counties in England, according to the propoſal of the other ſide, we ſhall finde, it will amount to no ſmall value.

4. This juſt apportionment of Civilians to the latitude of their buſines, by bringing with it an inlargement of benefit, and ſubſiſtence to thoſe few practiſers which remaine unreduced, will inable them to ſerve the State more beneficially and cheaply then their predeceſſors have done hitherto. Tis manifeſt that the ſame practiſe which with moderate fees will creditably and amply maintaine twenty practiſers, will not maintain fourty, though they be permitted to exact fees more immoderately. It is propoſed therefore in behalf of this new ſettlement, that the Judges, and their Dependents above, without any demand of new fees, ſhall at their proper coſt maintaine, and depute ſufficient Officers belowe in the chief Towne, or City of each County, that is diſtant above 60, or 70, miles from London: to diſpatch all ſuch Teſtamentary buſines there, as is in common forme, and may be diſpatched by letters: and ſo ſave the greateſt number of ſuitors their travaile to London. It is alſo undertaken, that the ſaid Deputies ſhall in favour of the poorer ſort do buſines gratis, and neither take gratification nor reward where the Inventory exceeds not 10 l. and in all other diſpatches of greater value it ſhall be the ſame Deputies part to tranſmit all things up to London that deſerve regiſtring, and reſerving, without grating upon Clients. Likewiſe, the ſame Deputies, if Authority thinke fit, which thus intend Teſtamentary buſines below, may finde leaſure, and opportunity enough to keepe authenticall entires, and records of all other contracts, and ſolemne acts betwixt party, and party, which deſerve to be treaſured up for publick ſearch. How acceptable therefore ſuch a ſettlement would be to the people, when it ſhould ſpeed all mens buſines ſo compendiouſly, and the poores ſo gratuitouſly, and how full of grace it would appear to the generality, need not be further demonſtrated.

5. Hereby the exceſsive incumbring, and over-charging of our Courts at Weſtminſter with a ſurpluſage of Teſtamentary buſines (not yet foreſeen by ſome practiſers of the Common Law) will be aptly prevented. It will be the wiſdome of the Parliament to provide, that we have neither too many Courts for our ſuits, nor too many ſuits for our Courts: both being attended with great inconveniencies, but the ſecond with far greater, then the firſt, ſome would have in every County a Court, and reduce us to the old manner of Juriſdiction, which was uſed in England long before the Norman Conqueſt, when this was a cantoniz'd Country, and obeyed ſeverall pety Princes: and this is preſſed as very counſellable, by that party, which would cantonize us the ſecond time: but tis to be fear'd, if this deſigne prevaile, our quarrels, and controverſies will abound, and increaſe upon us, as faſt as our Judicatories do. That fire which is now kept up in one hearth at Weſtminſter, will be then ſcatered all over the Houſe, and ſo ſpread its flame much wider then before. Other objections lie againſt too many Courts, eſpeſcially when they are attended with more illiterate Judges, and unexpert Counſellors: but the intent of this paper is to ſhew that there is leſſe publick prejudice in too many Courts, then in too few. Tis with the politick, as with the natural body: both finde obſtructions more fatal then fluxes, and both receive more torture from a defect in the expulſive faculty, then from a defect in the relentive faculty. Too much vexation from many Courts may be compared to a diſentery: but want of expedition by reaſon of too few Courts is like the nephriticall malady, and kils us with pangs inexpreſsible. The Parliament of late has taken away half our Courts almoſt at Weſtminſter: and thereby doubtles it has taken away from amongſt us many of our ſuits, and Law-queſtions but it is as far out of doubt withall, that all the differences that were formerly decided in thoſe aboliſht Courts, are not aboliſht together with thoſe Courts. This together with the calamity of our late broiles, and confuſions, has begotten a very great glut of buſines at Weſtminſter Hall: and this glut of buſines has moſt undeſervedly begot a complaint againſt Weſtminſter Hal. Every man ſees that the Chancery at preſent grants not Clients ſuch diſpatch as is expected: but every man ſees not the true cauſe of this: and the plain truth is, the fault is not in the Court, nor in the Commiſſioners, nor in the Pleaders: tis too great a confluence of buſines that chokes up, and obſtructs Chancery proceedings: and twere much better for the Common-Wealth to be at the charge of two Chanceries for too little buſines, then to maintaine one thats over burthened with too many Cauſes. Oh that the Parliament would conſider what want of a due hearing, and redreſſe is in Chancery, and other Courts, yea and within its own walls. The greateſt of our grievances, the grievance of all our grievances at preſent is; that our grievances can have no vent, and that our complaints know no place, where they may effectually disburthen themſelves, many thouſands at this day being no where remediable but in Parliament, have wofull petitions to preſent, yet can obtaine no acceſſe at all to the Houſe: and ſome thouſands of thoſe that obtaine acceſſe, either waſte themſelves in a diuturnall fruſtraneous attendance, or are at laſt denied their requeſts, or are undone for want of a timely deniall.

There is now a Priſoner in Warwick Caſtle, whoſe long durance has ſunk him into the deepeſt of all worldly afflictions, and his languiſhment is now almoſt deſperate, becauſe though He has alwayes in other matters deſerved well of the Parliament, and no great ill in this (as He hopes to prove, if He may be admitted to any Triall) He ſees the Houſe which can hear his accuſation, yet cannot find leiſure to hear his defence, nor will provide for Him any other iſſue out of this miſerable condition. I my ſelf in a Caſe of no meer, private concernment have attended upon Committees for diſpatch at leaſt ſeven yeers: and though that attendance has much broken my Fortunes, and diſappointed me of divers hopefull preferments, and given me cauſe to complain againſt my undoers: yet am I fain to ſtrangle my griefes in private, leſt I ſhould by a new ſupplication condemne my ſelf again to the torture of Siſyphus, for ſeven yeers longer. I uttet not this here, becauſe it burns, and feſters like a deep ſuppuration in my minde: but becauſe I beleeve there are very many others in my condition, to whom want of expedition (being like the ſtoppage of the ſtone in the uritories) apears more intolerable, and procures more deſperate diſaffections then it does to me. Pardon this Digreſsion, it means no ill: it would onely demonſtate, that there is danger, and damage in too many Tribunals, yet not ſo great as in too few.

6. Hereby there will be one cettain place for all Suitors to diſpatch their buſines at, and that place will be London our Metropolis, incomparably the moſt commodious of the whole Land for ſuch diſpatches: when there are many Judicatories, and Regiſtries in ſeverall Counties, and Provinces to reſort unto, there cannot but follow much uncertainty to Clients; and uncertainty in matters of this nature is ever the mother of confuſion, and diſtraction. Some men which look no further then to the eaſe of Executors and Adminiſtrators, ſuppoſe London too far diſtant from ſome Counties, and therefore they propoſe to have all Wils proved, and Adminiſtrations granted where each Teſtator or partie Inteſtate dyes: but theſe in the mean time have no regard to the eaſe of Creditors, Legatees, and other intereſſents who often are more in number, and whoſe rights are often of more value, then the Executors and Adminiſtrators. Wherfore foraſmuch as one that lives in Cornwall, another in London, and a third in Norfolk, may be concerned in a Will or Adminiſtration at Barwick, or Carlile, and ſo by this Propoſition muſt accidentally travail to Barwick or Carlile, the moſt incommodious places of all England: and ſtill there is no certain place deſigned to any man before-hand; what a generall vexation and perplexity is this likely to produce in many Caſes? Now London as it is a place alwayes fixed, and pre-determined, ſo it does for manifold conveniences deſerve that preheminence before all other places whatſoever. For, 1. London is the Common Juſtice ſeat for all Suitors to reſort unto in all other differences; and therefore Teſtamentary Records are moſt neceſſarie to be there kept, where they are to be oftneſt produced, and where they may be moſt ready at hand upon all occaſions to be uſed. 2. All ages can teſtifie, that Teſtamentaries Records have there been ever moſt ſafely treaſured up: whereas if an inquiry be now made of the Regiſtries belowe, without doubt it will be a ſtrange account that will be returned of their Records, and ancient minniments. 3. If ſuits ariſe (as they do moſt frequently about Wills, Adminiſtrations, &c.) No other place can afford ſo able Advocates, Sollicitors, &c. as London can. 4. London is ſo qualified for correſpondence, by reaſon of the vaſt concourſe of people there about other buſines, that any man may write thither, and by writing have buſines diſpatcht there with leſſe trouble and expence, then he can ride twenty miles any other way: And the greateſt part of Teſtamentary buſines is diſpatchable by Letters. 5. As the beſt choiſe of Able reſponſall Regiſters and other Officers are to be had at London, ſo if they miſdemeane themſelves, there is the readieſt remedy to be obtained againſt them. 6. The diſpatch of buſines below is not left to the meer care and coſts of Intereſſents farr remote from London, that is in in great part to lie upon the ſhoulders of ſuch as ſhall have Deputations from above as the buſines is here ſtated:

Upon the whole matter therefore it may rationally be concluded: 1. That a ſpeedy ſettlement of ſome new Teſtamentary Juriſdiction is worthy of the Parliaments ſerious conſideration. 2. That this ſettlement here propoſed, is the moſt adequat to our publick, nationall intereſt of any that has been yet debated: if every man would know that the generall intereſt comprehends his particular, as the greater does the leſſe: but not on the contrary: and ſo the common and Civill Juriſt would not confine their thoughts to what is the advantage of their profeſsion; Nor the Burgeſſe of ſuch a Town, nor the Lord of ſuch a Mannor, nor the Knight of ſuch a Sheere; reſtrain themſelves within their own narrower Circles, but would obey the rapture of the higheſt orbe; all our motions would be far more regular, and concentrick.