Seven Objections against the tryall of Causes by a Jury of 12. men.

1. THere is not a competent number of understanding and fit men to be had in the lesser Divisions of a County, for tryall of all Causes upon all occasions.

2. People are generally unwilling to be called upon for Jury-men, whereby they neglect their owne affairs.

3. Though they doe come to avoid the penalty, they seldome take the course to be rightly qualified and fitted, to judge of the matter in con­troversie.

4. Most commonly one or two active & nimble-pated men over-sway all the rest, of the Jury, and too often for the worst.

5. Though never so many of them dissent in judgement from the rest, they must notwithstandinding all concurr in the Verdict, or be wearyed into it.

6. If they give corrupt or erroneous Verdict, there cannot justly be a­ny penalty inflicted on them, because they may pretend they did at first de­clare themselves unfit for such employment: that they undertooke it not willingly, but were compelled thereunto; and when they saw there was no avoiding it, they endeavoured to proceed therein according to the up­rightness [Page 3] of their own consciences, if they be thought to have done amisse, it was but what they could not remedy, and are heartily sorry for it.

7. The keeping the Jury without fire, light, bread or drinke, as the Law requires, may possibly make the major part of them, if not all, agree upon a verdict contrary to their consciences to be freed from any of these exigencies, at least, some of them to strike up with the rest in a joynt ver­dict, since it is well neer impossible for 12. men, all circumstances consi­dered, much more in a doubtfull case, to be of one opinion; and though the case were never so cleare, yet one peremptory man of a strong consti­tution, whether his judgement be right or wrong, may sterve all the rest unlesse they will give verdict as he will have them.

Wherfeore in regard it is thus troublesom and chargeable for all people throughout the Land to come up to Westminst. for de­termining of Law-suits, & because a Jury of 12. understanding and upright men are not readily to be had at all times, in every Hundred, or such like Division, for the speedy deciding of such Differences as may arise: It is humbly propounded, that the Commons assembled in Parliament, out of the great desire they have, as much as in them lyes, to make this Nation happy, by endeavouring, so farr as is possible, that the people of all ranks may live in love and friendship one towards another, for all such differences as shall happen to arise, they may either be composed in a friendly Christian manner, with mutuall approbation of the parties, or else speedily and frugally determined, according to evidence produced, in manner following. [viz.]

The Perticulars of what is humbly propounded to be establi­shed by Act of Parliament.

THat in every City, Corporation, and such other divisions of each County throughout the Land, as the Parliament shall appoint, there shall reside one or more persons, with the title of Judg or Judges of such City, Corporation, or Division, to whom in consideration of a yearly salary to be allowed them, it shall appertain to hear, & determin all matters of Controversie, whe­ther Civil or Criminal, which shal be brought before them, con­cerning [Page 4] the publique, or any person within their City, Corpo­ration, or Division, as followeth, [viz.]

Whatsoever Person hath any difference with another, shall only be at liberty to sue such person before the Judg, or Judges of such City, Corporation, or Division where the person to be sued is found present, when the suite is first commenced, or doth usually abide:

And if the person to be sued, hath severall habitations, then, in such City, Corporation, or Division as hee was known, then, or lately to reside in, before the suit was commenced; or in any other place where hee is notified in person, at the first Commencement thereof as aforesaid: to which end,

Such person as hath a Controversie shall repair unto the re­spective Judg, or Judges of the place, or to his or their Clerk, and acquaint him or them, by whom, and in what manner the publick or he himselfe is injured; Whereupon the said Judg is to require both parties to appear before him, if they be willing, and use all possible meanes by himselfe, the Minister of the Pa­rish, or such discreet men as he thinks good, for composing of the difference, if it be meerely Civil, by Joynt consent before it be farther proceeded in.

In case the parties cannot be agreed, if the matter in Contro­versie exceed not 50. s. and the parties have their evidences in readinesse, then may the Judge determine it at the very first hearing, and making a briefe record of the whole proceeding, Ad perpetuam rei memoriam grant sudden execution.

But if it passe the value of 50. s. the party grieved may take the priviledge of putting in his bill, or Demaund fairly writ­ten in Court, unto the Judge or Judges, or his, or their Clerk, which ever after is to remain by him, or them, as in Court upon Record; And the Plaintiffe having first caused an Entry of the said Bill, to be made upon the said Bill, toge­ther with the date of the said Entry, by the Judge, or Clerk, he is than forthwith to take out a Ticket of Notification, un­der the said Judge or Clerk's hand, and cause it to be sent by an Officer for that purpose, unto the person so sued, whereby he may have notice of such a Bill put in against him, and have two or three dayes time, to put in his answer, according to [Page 5] the distance of the place, where he resides, and the Messenger re­turning is to make report unto the said Judg, or his Clerk, that he delivered such a Ticket unto the Party sued in person, or left it with some person of about the age of twenty, as might rati­onally be presumed by his, or her aspect, at the house of his usuall habitation, specifying the place where, and time when, the particulars whereof, the said Judge, or Clerk, is like­wise to make Entry of, upon the said Bill with the Messengers name.

And the Judge, or his Clerk is obliged to give a Copy of any Bill, Answer, or whatsoever else is entered upon Record in any suite in the said Court under his hand, unto either of the parties, or to any other desiring them, for such fees as are here­after specified.

If the Party so sued and notified appear not, or if appearing puts not in his Answer, if the Plaintiffe desire it, another no­tification is to be sent him, as before, to appear and hear judgment given within three dayes; and the said notification, and all others, to be entred as aforesaid.

Then if the party sued appeare not, upon this latter no­tification within the terme limited, Judgment for Principall Charges, and Dammages, is to be given according to the Plaintiffs demand, with expresse mention of the contumacy of the party sued, and reserving unto the said party sued, his right, what ever it be, to be made appeare in that Court, or any other, when and where the Lawes of the Land shall give him leave.

And if the Plaintiffe desires, execution is forth-with to be granted, both against person and goods, upon the Plaintiffes putting in sufficient security, unto the Court, to be accoun­table in case of undue Imprisonment, or for the whole value thereof, or so much as the person sued and condemned in through contumacy, shall within three moneths next ensuing make appeare to be unduely recovered, together with Dam­mages and Charges; And the said execution may be served by the person himselfe in whose favour it was graunted, or by whomsoever else he shall employ (provided that both one and other be persons of integrity) besides the Officers for that pur­pose, [Page 6] who are to be assisted if need be, by the Magistrates of the place, that no opposition be made, to impede or delay the Course of Justice.

But if the party sued appears, and puts in his answer, he is likewise to cause the Judge or his Clerk to make Entry thereof upon the said Answer, and that a notification thereof be sent to the Plaintiffe, which with the report thereof is to be En­tred as aforesaid.

Then may the Plaintiff reply within the term prescribed, and the Defendant rejoyn.

In case Witnesses be to be examined, such time is to be al­lowed, and no more, then is necessary for the effecting it, as also for producing Evidences from parts farther distant; And all Witnesses may be examined, whether upon Intergatories, or otherwise, by the Judg or his Clerk, of the place where the said Witnesses reside, to be transmitted unto the Court, where the cause depends.

Which being done, or such term as the Judg had assigned for such purpose, expired without effect, through negligence of the parties concerned therein, after a day, two or three, wherein the Judg is to peruse the Processe, and whole proceed­ings, it is in the liberty of either party to notifie the other, to appeare the second or third day according to the distance of the place, and the Judges leysure, at a convenient houre, for arguing the whole businesse in contradictory, before the Judg; And if neither party desire it, the Judg, if hee be not fully in­formed may notifie them, Ex officio, or either of them singly for the same purpose, to be fully satisfied in whatsoever he shall desire; and for that end may likewise deliver his doubts or seruples in writing to either, or both parties, and require answer accordingly, to be afterwards inserted with the rest of the proceedings in Court to remain upon Record.

And if any thing Materiall be alleadged and proved, by this contradictory debate which did not before appear, the Judg is to Order it to be put in Writing, and Entred with the other proceedings, notifying the parties thereof.

And in case one party refuse to appear before the Judg, for thus arguing of the businesse, in contradictory, he is not after­wards [Page 7] to be admitted to produce any new evidence or proof; but upon request of either of the parties in Writing, which is to be notified to the other as aforesaid, the Judg is to proceed, and give judgment both for Principall, Dammages, and Char­ges, according to what appears to be alleadged and proved, and sudden execution to be granted, at that very Instant, a­gainst body and goods, unlesse the party condemned being pre­sent, or any body in his name, sufficiently authorized there­unto, appeal from such Judgment of the Division Court, unto the Judges of the Shire-Town, which it shall be lawful for him to do, within 8. dayes next following, and there to prosecute the same in manner hereafter specified.

And if the party condemned appeal before execution be gran­ted, then must he, in whose favour the Judgment was, desiring execution, first put in sufficient security to stand to such farther judgment, as the Court, to which the appeal is made, shall think good to passe, to be entred with the rest of the proceedings, o­therwise not.

The Appeallant therefore is to Enter his appeal in writing, to be kept with the other proceedings, where the Judgment was given; and that Judg, or his Clerk is forth-with to give him a Copy thereof under his hand, as also of the whole proceedings, or of so much as is desired, so soon as it can conveniently be made, which the Appeallant is to transmit unto the Court of the Shire-Town, where it is to be admitted upon the Appeal­lants putting in sufficient security unto the Court of the Shire-Town, that he will effectually prosecute the said Appeal within eight dayes following, and be lyable to such Charges, penalty, and otherwise, as that Court shall condemn him in, in case hee be found to have appealed unduely.

And it shal be likewise lawful for both parties to appeal from one and the same Judgment in such part thereof as they appre­hend themselves agrieved, and prosecute the same in such man­ner as aforesaid; and the Shire-Court in such case obliged to observe the same Orders concerning Fines and Charges as a­foresaid.

This being done, and the appeal admitted, notification there­of is to be made unto the party, in whose favour the Judgment [Page 8] was graunted, in the Hundred-Court, who is to answer to this appeal in the Shire-Court; and the whole proceedings, and Pro­cesse to be framed as aforesaid, in the Hundred-Court.

And if nothing more Materiall be alleadged and proved, than what was before in the Hundred Court; If the Judg of the Shire Court shall see good to confirm the said Judgment of the Hundred Court, hee is likewise obliged to condemn the Ap­peallant in all manner of Charges, and one sixth part more then the businesse in controversie amounted to, by way of penalty, to the use of him that had both Judgments in favour, and exe­cution forthwith to be had accordingly.

But if no new matter being alleadged and proved, the Judg of the Shire Court shall see cause to reverse the Judgment of the Hundred Court, in the whole or in part, the Defendant in the Shire Court is not to be condemned in Charges disbursed since the Appeal to the said Court; but the Judg of the Hundred Court, for his unjust, or erroneous Judgment, is to be fined so much, as the Charges of both parties, in the Shire Court, a­mounted to, and so much more as the full Dammages of the Appeallant will any ways amount to, with speedy execution as abovesaid.

And in case new matter be alleadged, and proved, for which cause the Judgment happens to be altered in part, or in the whole, than the Defendant is not to be condemned in Charges, nor the Hundred Judge in any Fine, so far as the new matter al­leadged, and proved, was cause thereof.

And if the Judg or Judges of the Shire Court shall pass unjust or erroneous judgment, such judgment shall notwithstanding be valid, ultimate, and binding, in respect to the parties litigant, and have sudden execution both against body and goods of the party condemned, without putting in security, as was before required.

And if either, or both parties find themselves agrieved, it shall be lawful for them, or either of them to addres themselves unto the Parliament, against such Judg or Judges of the Shire Court, who hereby are made accomptable, and lyable to be condemned in all manner of Dammages, cost and charges, such party or parties complaining against them, shall have suffered through [Page 9] their unjust erroneous Judgment, be put by their Office, and suffer such other punishment, as the Justice and wisdome of the Parliament, think good to inflict upon them.

But if any person shall be found to have without cause Ap­pealed from the Shire Court, and unjustly to have accused the Judg, or Judges thereof in Parliament, then shall the said Judg or Judges be absolved.

And such person be lyable to be condemned by the Par­liament in the same penalties, which he required, by way of de­mand, to be inflicted on the said Judg, or Judges, and sudden execution to be granted, to the use and benefit of the said Judg or Judges only, together with their full Charges to be rated by authority of Parliament, and all other Charges to be like­wise rated by the respective Courts, where Judgment was given for payment of them.

The Judg, or Judges of the Division or Shire Court are ob­liged hereby, if either of the parties desire it, to draw out the motives in brief, which swayed them in giving such judgment, to remaine upon Record, together with the Processe; and so soone as any suit is fully ended, whether in the Hundred, or Shire Court, all papers and proceedings are to be made up by themselves, and bound together with others orderly, accor­ding to the date of the Judgment, in as great a Volume as is well manageable, with an Alphabet at the end thereof, speci­fying the names both of the Plaintiffs and Defendants.

And in case the Judg or Judges of the Hundred, or Shire Courts should dye, whilst any unjust or erroneous Judgment rested depending upon appeale, then the respective Heirs, Exe­cutors, or administrators of the said Judg or Judges, shall be­come lyable unto all Penalties & Fines which happen to be in­flicted; by reason of such unjust & erroneous judgment, whether by the Shire Court or Parliament; Provided such Appeals were made to the Shire Court, within the eight dayes afore speci­fied, and unto the Parliament then sitting if there were any, or else unto the next Parliament ensuing such unjust and errone­ous judgment.

And concerning all suits which shall be primarily Com­menced, in the Shire Court, and brought thither by Ap­peal; [Page 10] they are totally to be managed, in all other respects and circumstances, as was before prescribed, concerning such cau­ses, as were commenced, prosecuted, and determined in the Hun­dred Courts.

And it is expresly hereby Enacted, that no Judg, or Judges Clerk shall take any other, then the fees hereby allowed, nor other moneyes, or any manner of thing money-worth, from any person whomsoever: And that no person shall give, or so much as offer to any Judg or Clerk, greater fees then are hereby allowed, nor money, nor any thing money-worth, upon pe­nalty both to taker and giver, of being condemned in twenty times the value unto the discoverer, by the next Hundred Court, or any other within the said Shire, where the fact was done, and before which the party shall be accused, besides the forfei­ture of Place, or Office unto the Judg and Clerk so offending; and the Giver or Taker not only to escape unpunished, for the first time, upon discovery of the other, but also to enjoy the be­nefit as Discoverer.

And the said Judg, or Judges, and their Clerk shall take no other fees, than these that follow, [viz.]

Whereby in one word is meant, no other or larger fees than barely after the rate of so much a sheet, as other men will be contented with, to copy out in a fair hand-writing, such Bills and Answers, as Plain­tiff, Defendant, or any other person shall desire copies of; the said Judges or their Clerks being to receive such Salaries out of the Publique Treasury, as may prove a large and full maintenance for themselves and Families.

FƲRTHER CONSIDERATIONS.

COnsider who shall choose the Judges; whether the Repre­sentative, and the Councell of State, in the Intervalls, or the People of each Division.

May it not be best that the People choose them not, lest they make choise of such as may be swayed with alliance, of one kind or other, and whether a Judg that were the greatest stranger to them, might not prove best, and such Judges moveable from one place to another, every third or fifth yeare, to prevent all engagements of alliance or acquaintance.

If the Representative or Councell of State in the Intervals choose: whether is it best to have them fixed, quam diu se bene gesserint; or moveable of course every 3. or 5. yeare, from one Division or Shire Court unto another, to prevent the gaining of alliance to oversway them: But if they should be quite ca­shiered at three or 5. years end, or upon any other cause than misbehaviour of some kind or other, they would then be dis­appointed of a livelihood, and though they deserved never so well, be more unhappy than men of any other Calling.

It being requisite that the Judges in their respective Residen­cies with the under Officers, should attend the duties on e­very weeke day, and all day long at seasonable hours; It is necessary for them to have a competent and full maintenance allowed them, to prevent all manner of Distractions and Temp­tations.

Querie. Whether the Shire Court if found erroneous, ought not to be repealed? If no, it may induce the party upon a weighty tryall to corrupt the Judg the rather: And yet if the Judg impeach him for giving bribes, he is likewise fineable more than the Judgment imported: and the sooner a definitive Judg­ment may be had, upon good grounds, the better.