« ForrigeFortsett »
and what a charge are the people at to attend their tedious and vexatious trials! Consider, what doth it cost to ride and go from all countries and towns to London, to attend the terms. It can. not be less than one million of money yearly; and to what pur. pose observe:
Whosoever contends in law against another either for land, debt, or trespass, must, by the law, try his title, debt, or das mage, by witness, after it hath been never so long delayed by sophistry, quirks, and quibbles of the lawyers. Now, therefore, if it must be of necessity proved at the last, why is i: not better to have it tried in the neighbourhood, while it is fresh, green, and new, when the witnesses are alive, and in places, wherein their lives and conversations are known, than seven, ten, twenty, or thirty years after the suit is commenced, when knights of the post may be taken as witnesses, when the lawyers shall baffle and con. found witness and jury by their impudent sophistry and prattle, when things at great courts assizes are passed over in hugger-mugger for want of time to examine them, there being more care taken to keep a precise hour for a dinner, than precisely and strictly to see the execution of justice and true judgment, in behalf of the poor, the fatherless, the widow, and the orphan; and when either party sees he is like to have the worst, by common law, then they bave liberty to remove unto the Chancery, where a suit commonly depends as long as a buff coat will endure wearing, especially if the parties have, as it is said, good stomachs and strong purses; but, when their purses grow empty, their stomachs fail; then, when no more corn is like to be brought to the lawyer's mill, it is usual to ordain some men to hear and end the business; but, alas! then it is too late, for then, probably, both parties, or at least one of them, are ruined utterly in prosecuting the suit, want of his stock, and following of his calling. What a folly is it, that all bargains in trade and commerce, foreign and domestick, must unavoidably run into this channel, to be debated by lawyers, that understand it as little as they have uprightness, and be tried by jurymen, of which, probably, not one of the number hath the least knowledge in merchandise? What an injustice is it, that all wills must be proved io London, at such a vast charge and distance from the place where the party deceased, where they usually cannot know the truth of things, or little care whether they do or no, so their fees be paid; where they often either take no security at all, or, if they do, it may be it is such that is as good as nothing; where every tapster or chamberlain, &c. that pretends himself a freeman, is legal security; how many fatherless, widows, and orphans, are utterly ruined by this? The scripture saith, “ he is worse than an infidel, that provides not for his family;" and to what purpose is it in these times of corruption to work for children? If men die, while their children are young, then they chuse some, whom they expect will prove shepherds to preserve their children; but if they prove wolves, where is the remedy? If men be in a way of trade, it is probable they may have, in goods, twice or three times
as much left in their hands, as they are really worth. These goods the executors or overseers may and often have procured means to be appraised at half, or one-third of the value; so accordingly they pay debts with a plene administravit. These poor young children or simple women think not, neither know how to prea vent it. By this means, let a man die that is worth one thousand pounds, and the goods in his custody worth three or four thousand pounds, his creditors may be cheated of the most part of their debts, and his children left a burthen to the parish, England! England! why dost thou profess thyself the most sincere nation for christianity on the earth, and dost suffer these things, that the yery heathens have abhorred.
Object. --But, if men were not contentious, they might speedily and cheaply try any suit at law. It is the fault of froward spirits that cause the great. charge and delay, and not the law itself: and it is just that the law should be chargeable, else every man would be at strife with his neighbour, when the charges were little.
Answ. It is true, that injustice, of one part or- other, is in. disputably the cause of all difference, for both the plaintiff and defendant cannot be in the right; but, were the law made accord. ing to the mind of God, for punishment of those that do evil, and for encouragement of those that do well, then it would be founded on principles of justice indeed; it would suppress strife, contention, and debate; it would quickly put an end to all suits and controversies; it would not protect the contentious spirits, nor -nourish their devilish nature; it would not suffer might to over. come right, as ually it doth in these days; it would not shelter great landed men in prison, in the King's Bench and Fleet, &c. that have large, real estates, which they spend volu, tuously and riotously, whilst their poor creditors lie starving in nasty prisons. This is monstrum horrendum, an abomination that, let what will be pretended for it, is not tolerable under the government of a right constituted commonwealth, how long soever it hath been continued under tyrannical monarchy. But, to sum up all in brief, the law in the generality is unjust and irrational, the execy. tion desperately dangerous and chargeable; it is easier to find a thousand evils in it, than one true principle in matter and form, What, if an attorney or council take cunningly a bribe from an adversary, and make a compact with him to cheat his client, as it is too often practised, and seldom discovered ?
What, if a judge accept of a bribe, and, by over-awing to · court, carry a case against law and right? if he make it a prece. dent, may it not be the ground to cheat many after it? It is remarkable, when neither the letter of the law nor reason carry a business, then those, that are subtle counsellors, and are highly feed, for, without that, nothing can be expected, usually produce precedents; and these are imposed on the jury for current justice, when probably the ground of them was bribery and Þaseness,
There is law, reason, or equity, in England, to try and end all tiiles, debts, and trespasses, depending by suits, in all courts, or there is not. If there be, let the parliament appoint a certain number of knowing men, the most conscientious they can think of, in several cities and counties, to make it their sole business, in a limited time, to hear and determine all old suits, allowing them a moderate salary by the pound, to be paid by him that is found the offender; and let not things depend ad infinitum in courts. There may be as much injury suffered by the delay of justice, as by denial of justice. When all old suits are ended, were there order taken in hundreds and counties to have all laws, leases, mortgages registered, and all those that should pretend any title, to make their claim in such a limited time, as in reason may be thought fit, reserving some exceptions for some years for children, men in foreign parts, &c.; and, when all old suits were ended, all lands registered, and none to be leased, sold, or mortgaged, in each respective hundred, within one month after the contract, it would take away the cause of most contention, and, until the canse be taken away, the effect will never cease. Having often discoursed with lawyers and others about the delays, burthen, and uncertainty of trials at law, I very seldom found any averse to merchants courts; in regard, that it is apparent the affairs and dealings of merchants cannot properly be understood but by mer. chants who know the mystery of trade, which neither judge, council, nor gentlemen, that never were educated therein, can possibly do; for what a ridiculous thing is it, that the judges in chancery must determine of merchants negotiations transacted in foreign parts, which they understand no better than do their seats they sit on; and so they are as capable to do equity therein, as a blind man to shoot a hare. Now, if courts of merchants are most, nay, I
say, absolutely necessary for deciding of controversies in commerce, (and the reason given for it is, because they best understand it); the same reason holds good, that countrymen, clothiers, weavers, &c. are most competent judges of country affairs, of those callings they live on, and understand. They better know the value of tres. pass that is committed by cattle on corn, &c. than do the citizens that hardly know how corn groweth. Can the people of London, or masters of chancery, judge the equity of things acted in Corn. wal or Wales, better than the chief able men of the neighbourhood? Now, if England was so happy to have respective hun. dred courts, and no appeals to be made further than the quarter sessions ; were these courts rightly constituted, and strict penalties to be inflicted on the receivers of bribes, as cutting off their noses, banishment, or the like (which is absolutely necessary for a false judge, as both a thief and murtherer), where none of the court, the register excepted, should continue in power to judge, but one year together; where they should not be mercenary; where a man might speak his own cause, or employ his friend whom he pleased to speak for him ; there would be then ground to expect justice and equity speedily: there would not be, neither rationally could,
lying sophistry, or quibbles, to pervert the understanding of the court, there being always time deliberately to hear the business, and to examine the witnesses, when the matter was green and new. Were it ordained, that all wills should be registered in each respective hundred where the party had his abode or trade; that the overseers of the parish were bound by oath and penalty forth with to inform some members of the court, who had power upon the first notice to appoint one or two able men to take care for the preservation of the goods of the party deceased; that, at a certain day, all the moveables were to be sold to him that would give most; with this reservation made, that the wife, children, executor, or administrator might, when the highest price were offered, have liberty to take it at the same; that, when the goods were sold, the true value was registered in the court; that no executor should have any administration granted, without giving security, to the court's liking, of two able men besides himself; that, in case the executor neither could nor would give good security, that then the court should be the executor, and take care for the discharging the debts, providing for the widow and children; that none belonging to this court, the register excepted, should continue in power above one year together; that the executor should yearly give an account how he did dispose and manage the estate to the court; how he educated or bred up the children, &c.; that, if the court remained in possession of the estate, then that it might be lawful for the widow, children, or friends, to have redress by the sessions court; upon complaint and proof of injury; that the lands and estates of all and each respective person in the hundred were liable to make satisfaction for any widows, fatherless, or orphans estates, that were put into the court's hands. This would make the people take care in the choice of their yearly court, called judges, orejuries, or the like. Now, if these registers of lands were kept; if the estates of the deceased were so to be se. cured; if all debts were liable to be recovered in cach respective hundred; this would prevent law-suits; this would disable the cunning, subtle people, from finding out ways to cheat their neighbours; this would discover those that were contentious and troublesome; on which people truly, I think, it were but just to inflict some badge of disgrace; whereas, in these days, none are more encouraged by lawyers, counsellors, &c, than those that are most contentious.
A WORD TO THE PARLIAMENT.
Right HONOURABLE, I do not give this title to flatter and collogue with you, but do really hope that your future actions and designs will make you worthy of it. Ye have now a great and weighty work to per
form, even the restoring to life, liberty, and security, a dying, inslaved, destroyed nation, whose utter ruin will quickly ensue, unless you work whilst it is day, unless you make use of the present opportunity that God hath put into your hands. It is not now time for you to think of framing a commonwealth govern. ment, by any precedent or practices of monarchical laws, formerly made by king or single persons, which solely tended to preserve themselves and their posterities in their unlimited oppres. sions. Monarchy is an absolute antagonist to a free state; and so are all the laws and rules made by monarchs. The Hollanders, when they relished the tyranny and persecution of the Spanish king (who had a far more legal title to be their sovereign, than the late Norman Scottish family had to be the English), never consulted with the laws of their king to make fundamentals for a free state; they nobly and resolvedly shook off all the props of tyranny, as they had done the tyrant himself: and to their gallant resolution God gave such a blessing, that, from a poor miserable people, a distressed state, they are now become potent, rich, and dreadful. Ye are now involved in a labyrinth of debts, contracted by the late usurper, not on necessity, but on ambition. The people of the land are almost generally impoverished and indebted; and yet ye will unavoidably be forced to raise great sums to pay the arrears of the army and fleet.
Now, as ye are necessitated yet to continue some burdens op the people, so also there is a little necessity, in point of justice and prudence, for you to ease the people of others. The lawyer's interest tends neither to the honour, safety, nor benefit of the people, nor your own in particular. Who have been greater enemies against the establishing a free state than that generation? Who have done and still do more discourage the nation from a cordial compliance to this government than they? How often have they cried up a necessity of the executing law in the name of a single person, alledging the laws of England couid not be managed any other way? As their interest is engaged to mo. narchy, so let it fall with it; let them be condemned out of their own mouths, “ nec lex est justior ulla, quam necis artifices arte perire suą.” Must the people not only pay for the charge of your forces by land and sea, but must they pay also millions of money hereby to a mercenary, corrupt, useless generation of men, who are worse than the Ægyptian caterpillars, for they devour not only the green leaves, but hundreds of poor widows, fatherless, and orphans. These are the insatiate cannibals, whose carcasses will never be full gorged with the spoil of the poor and innocent, until the worm gorgeth himself on theirs. Those gentlemen of the long robe that are amongst you, I hope, cannot say less, than that there is great reason to ease the people herein. What, if they have heretofore thriven highly by the practice of law, “ nunquam sera ad bonos mores via:” are they not thereby the better able to maintain their port and garb? Is it now time to think of their latter end, to cease to do evil, and learn to do well? I hope the proverb will not hold true in them," the older the more