ENGLAND'S COMPLETE Law-Judge, AND LAWYER.  
Declared in these ensuing Heads; 

1. Whether that Law and those Judges and practizers owned time out of mind by the Supreme Authority of the Nation, be not the Laws, Judges, and Lawyers of this Commonwealth, etc.  
2. Whether Courts so constituted are not Records of the Nation?  
3. Whether each Court hath not power, as such, to enforce its own Decrees.  
4. That the Decrees and usages of such a Court are as valid as of any Court.  
5. Whether it be not against Reason, that when divers Courts in the same Nation act by divers Laws, one of the Courts should have power to prohibit the other to proceed to bring the matters in difference before itself.  
6. Concerning Judges of Appeal.    
LONDON, Printed for Edmund Paxton at Paul's-chain over against the Castle-Taverne. 1656.   

TO HIS HIGHNESS THE Lord Protector Of ENGLAND, etc.  
Great Sir,  
IT is not any interest, or respect to the Professor of the Civil Law, nor envy at, or disobligement from the Practizer of the Municipal Law of this Nation puts me upon this work, but a pure zeal to, and love of Justice (or my own heart deceives me, and in sincerity I have searched it as narrowly as I could) You sit at Stern, and have laid hand to the Helm: where you find a good and just rule, I hope you will not alter; and where you find none, or a broken, weak, defective one, I see your desires are strong for Reformation: but you will see, that while you set one thing right, you bring not disorder upon all. Sir, 'tis your wisdom; for as in the natural, so in the politic body, each great alteration is dangerours; Constitutions must be altered slowly; the fowler the body, the more need of preparatives before the Purgation comes; yea, it is fit the patiented in some measure have some intimation of his condition, that he may more willingly receive his cure, that imagination obstruct not due operation, and that his Physician gain his affection, lest prejudice operate more for destruction, than the medicine for preservation; These things are as natural to Societies, as persons, to the Politic, as natural body. I have here discovered what of necessity requires a remedy, and that speedily: before a disease hath brought the body low, it will endure heats and colds, and many distempers, altar little or nothing visibly, but the dregs remain, and bring the disease by degrees to a height, and then each slight offence is taken, and strong distempers appear to danger and ruin. I fear the Politic State labours under a Critical sign, the disease is grown so strong, it hath such a height, that the utmost skill of a wise Physician, yea, guided and seconded by the all wise hand, must intervene for Restauration, or danger is threatened. This thing now presented to you was an evident symptom what time would and must work in the same; For, in this Nation of England you have variety of Jurisdictions, every of which have long bandied against each other: for although the Courts of Law and Equity were at variance, yet both seemed to join against the Civilian. Princes saw it, and it may be thought it a piece of policy to keep them at a distance; but it's a certain rule, the building is weak that is raised upon a lose foundation. There are as demonstrative rules in Government, as in Architecture; and the intention of Societies, Colledes, Fraternities, or what you will, were allowed for unity sake; and that not only in, and with the Society itself, but each with other mutually; for all make up but as members the body of the Commonwealth: the Head rules all. I shall not touch upon the varieties of Government, all which represent the Head, but must say, the Heads function and duty is to see each member act in his due place, and not suffer them to quarrel each with other to the general prejudice; I regard not who be chief Chancellor, nor Chief-Justice, I seek not Eminency, but a due of honour or reward for the Judges of Admiralty or Probates; I would not an enlarging of either jurisdiction to the prejudice of another: but though that part of the Civil Law here used be not only fitted to the Meridian of England, but all Europe allows the justice and reason of it; yet let it be the Law of England, and so owned by all English Judges. And though the Chancery be not a Court of Law, in regard of the Courts of Upper-Bench and Common-Pleas, yet while I conceive upon the due Rule, it ought in a legal way to allow nothing, but where the Law would have, that is not to go against Law, but to supply where extremity was ruinous, moderating the severity and rigour of the letter-Law, (and indeed there was a necessity of it in most cases, while an issue upon a point only was allowed) it is to be accounted the law of England, and let all the Acts of all those Courts be allowed in the Courts of Law, as with each other. The evil is apparent: there is a case proper to equity, state it, and go to a Lawyer for his opinion in Law, he takes Law only for that called the Common-Law, and puts a man upon suits to his overthrow, for he knows the Chancery will give relief against it; I know many Lawyers do not so, but they know many do. I would not be tedious: there is happily greater necessity of this then is conceived, and this may content more than other things have disrelished. The men to deal with in this case, are wise and prudent, and no doubt will, if consulted, agree to reason. I have only with as much moderation as I could, presented this to consideration. I have cleared my own conscience, and remain  
Your Highness' humble Servant, Theophilus Philopatros.   

TO THE RIGHT HONOURABLE, THE JUDGES OF THE LAW OF England.  
Right Honourable,  
THough the Government of a Common-wealth be not a Head or quarter of the Municipal Law of Law, and so the practical Lawyer, little needing to study or know that point; yet most Students are from their ingenuous Education something seen in universal learning, and from that not ignorant of Politics; That providence which ordained you (my Lords) to so high trusts, gave you souls large, and of capacity for the places. You must know, both from your reading and experience, how to supply whatever might be defective in the most accurate settlement of a Commonwealth and how to govern according to every establishment; and know what is to be done, to proportionate the whole in every part, should necessity enforce any alteration. You are not unworthy men, whose ambition have made them catch at worthy places, and satisfy their consciences with a deliberative Vote, though they know no rule of Law; you are not only knowers, but lovers of Wisdom (and Justice is a right witness, otherwise a fool might, going according to his light, a child, or woman, give as good a judgement as the ablest Philosopher.) Judgement is a deep fountain, whose bottom each Bucket cannot arrive at; It's given to them that seek after it, (that is, by due search, and inquire into each particular action, and qualification of himself and others; for he must read himself well, who will know others aright): You are Sages, men, quick, and ready, from long experience to determine, not only in the deeper questions and resolutions of the Law, but also in the nice acquaint subtleties of wit and practice. I justly apprehend my inability to bring forth aught worthy your view, but I seek not applause nor acceptance to or for my person; but my aim, desire, intention and prayers are for the public, for the good of the Commonwealth, that each person in his place, and each place to the person might be so settled, constituted, and fitted, that the establishing of part, might but make the whole more glorious and lasting; It is an age of Interest, great, never greater; your places are high, and your pattern will be exemplary. If aught here convince you that any thing may be done for the bettering of the Commonwealth; be active in it, delay not, it's a season of Judgement as well as Interests; and it's truly noted, neither have Mercies alured, nor Judgements terrified hitherto. You know, not only the secrets of Government, but of Judgement: you may thence conclude how much more wisely, God deals in his both governing and judging the world: It's a truth in Politics to the State, as in reason to the person; Laws must be as well fitted to the times and offences, as  or shoes to the body or feet. Was it not a Tyranny to cut the stranger shorter that lay in the Tyrant's bed, to the dimension of that, as well as to stretch him that was too short to the length? There must be a jealousy lest the Laws be altered, and the principles of property and privileges lost by degrees: but let it be so, that we lose not more by the contest, than we can gain by having them; You are to declare the Law, but Evidence that Law salutary to the people, or you ruin us. You say, better an ill Law than none: And I say, better Judges to execute necessary power, though it be a question whether legally they have that power, so it were fit they should have it, then to let people do injustices for want of a Law, or power to enforce that Law. I leave the thing with you: the Lord set it home to your hearts, that what is just may be done justly, and the cry of the oppressed may cease: In prosecution of which, I shall ever beg the assistance of heaven upon you and your endeavours, and labour to approve myself a friend to England's Law, my birthright, and  
Right Honourable, Your servant Theophilus Philopatros.   

TO THE ENGLISH READER.  
I Have little to say to thee; each man is not fit to judge of all things: my scope is but to show thee a truth, which hath been much endeavoured to be kept from thy knowledge; Namely, that all the Administrations of Justice in England by what Law soever called, as Common, Civil, or Equitable, all make up but England's Law; and you have an equal Birthright to all; I agree, they may be altered according to the Rule of the Nation; And then I say, that alteration is the Law. So that I would not alter the Law, nor oust the Common-Law, nor introduce the  body of the Civil Law; no, I am to have Laws plain and easy, but Judges deep and searching: I desire certainty in Courts, and ascertaining the Jurisdiction of the Courts: and because difference may be, while some things may equally participate of both Laws, so it may (as to some part) belong to one Court, and other part fit to be tried in another upon the rigid letter of the Law. It may belong to a Common-law-Court, and yet the just decision of the Case from the nature of the Contract necessarily require the Rule of the Civil-Law: That there may be a way to settle this controversy before great expense be, and then to have it removed; And that as the case now stands upon so visible an Interest, as hath nothing of Reason to warrant it, is this intended; Boggle not then at this, nor at the Author, who professes to love God and his Country, and would not then do aught tending to subvert England's Law, or take away the least due privilege of an English man. Therefore that you may duly endeavour it, praying for it, and justly submitting to it when settled, is the sole and utmost end, with God's glory, of  
Theophilus Philopatros.   

ENGLAND'S COMPLETE Law-Judge, AND LAWYER.  
ENGLAND hath always without question had Courts wherein the principal part of the Law administered, was not according to any particular part of the owned Common-Law of the Nation, but according to the ever used and accustomed Law of those Courts, set up for administrating Justice to the people of the Nation in special Causes; Concerning two parts whereof I principally intent this discourse. The first doth generally concern the people of this Nation; The other concerns equally any other Nation in the Universe. That which concerns the people of this Nation, is the Court (now commonly called) for Probate of Wills, and granting Administrations: The other which concerns all people, or may concern them is, the Court of Admiralty (so called) being a Court properly (not only) accommodated with Laws and Rules for Trade and Commerce by Sea; And with Nations and people using Laws divers from the Generality called Municipal Law of England, yet generally received in the Judicatories of most of the European Nations; All which with England, being originally Limbs of the vast body of the Roman Empire have universally retained the Laws, or the generality of the Laws of the old Empire, but yet have their Municipalia still, though their procedures be in them generally by the Rules of the Civil Law, so called, they admitting no diversity of practizers in their Laws as with us, but both the general Law of the Empire with them received, and the Laws of their particular Princes, Diets, Parliaments and Assemblies are equally owned; the Law of that Land, Nation, or people, and the Doctors of the Laws, as such, pleads both, as occasion requires, without controversy of Courts or practizers, while here many controversies have arisen to the obstructing of Justice, and infinite damage, vexation, and charge of the people, and to the dishonour of the Nation at home and abroad. The controversy I shall endeavour to render as truly and perspicuously, yet as briefly as may be; and therefore shall handle it under several Heads: As first, 

1. Whether that part of the Civil-Law which hath been time out of mind, received, used, and allowed in public Judicatories, authorized by the unquestionable Supreme power of the Nation in Parliament be not to be received as, and is part of the Law of the Land, and consequently the Judges of those Courts, Judges, etc. and practizers, practice of etc.  
2. Whether a Court so constituted and authorized, cannot be, and is not a Court of Record of this Nation?  
3. Whether it be not naturally and properly incident to every Court, to have power to enforce its own Decrees in what is properly cognizable by it?  
4. Whether the Usages, Rules, and stile of a Court in England, of as long continuance as any court so called of Common-Law, hath not as much power, virtue and energy, as in a Court that properly Judges of Usages and Customs, and other Laws esteemed more proper to the Nation?  
5. Whether in a Nation, where divers Courts are admitted, proceeding judicially, and definitely according to divers original Laws, it can stand with reason that one of these Courts should have power to prohibit the other to bring any matter before itself, or decide to what Court the Cognizance belongs?  
6. Concerning Judges of Appeals.    

As to the first, I conceive there is but three ways whereby Laws have properly their birth; The first is, constitution, by the lawful, wont, or authorized power of a Nation, Country, 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 Lawmaker; not properly alterable, but by the like power.  
The second way of ushering a law into the world, (yet universally accepted) is Custom and Usage, which after once generally received, and publicly known, hath the force of a Law, and justly, for experience hath manifested both its fitness and acceptation: yet have ever been, and it's of necessity that the Magistrate should, when time hath given them the strength of Laws, require a public ascertaining of them to prevent the evils (evident in England) from the proof of them by ignorant and interested Testimony.  
The other way, as it may be called, is Allowance and usage of a settled certain constituted Law in a Country, though the Laws were not made by the present legal authority of the same, (or by a strange Prince of another Country) yet there used and not disallowed, but rather by owning the Court, and not disowning the Law allowed and confirmed, which certainly hath the virtue of Usage, and the certainty of constitution in it.  
Bring then either the Court of Probates or the Admiralty to their Trial, and I conceive the Law in them used and administered, 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 birthright. 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 intent? Those Courts use the whole body of the Civil Law, and then you will subvert the Law of England.  
I shall answer with a caution, for I suppose most wise men when they see the objection, will see the weakness 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 fools and idiots, nor should, to persons Outlawed, convicted of great crimes, or notoriously debauched, 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 fare the whole Civil Law, as to those Heads, ought I say, as used to be received. So in the proof of Nuncupative Wills, or Wills by word of mouth, I intent 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 down 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 it's most agreeable to reason, that that Court which hath the principal, and is to Judge of the whole Will, should best judge of a Legacy, 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 only power to grant Administration to the next of kin, and gives no power of revoking.  
I answer, each eye may see the captiousness 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 let's inquire what was the end of the Law; and to see that, let's consider first, what was the reason of making that Law. I suppose it's manifest, that many Ordinaries (there being no express penalty) having misused the power to them entrusted, 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 chief, 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 kin, 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 evil in effect) but according to the Rule of Law, which doth upon a pure and sound Rule (as the Law then stood) divide, and its fit should be observed. I intent not to divide to (so called pious uses) but amongst the next of kin, by rule of Law capable. The Reasons are, this was used, the Law hath prescribed no other remedy, the usage was absolutely certain 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 limiting 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 virtue of a Law. If we come to state a Case or two, the Justice and Reason of the thing will most evidently appear. A man hath one hundred, one thousand, or ten thousand pounds a year, and a personal estate of one thousand, ten thousand, or one hundred thousand pounds, and hath two, three, four, five or six children, sons and daughters, be he Lord, Knight, Esquire, Gentleman, or Burgess now in England, all is one; here present riches controls and carries all, money makes the man. The land unless 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 clean lost, altered, or unknown, that the Prince might be the better served in his war) went, and goes wholly and undivided to the eldest son: 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 Commonwealth; For as a City or Commonwealth 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 Commonwealth, clean divers, if not quite contrary to the first Institution, and that in constituted or latter Laws, upon no other ground or rule visible but that; but shall then the personal estate go to the eldest also, and shall all the other children be beggars, or set to work, (how highly soever educated) as if impotent, maintained by the Parish, go by degrees, and so to the disposition by the letter of the Law, the eldest aught to have it, for he is properly the next of kin (the wife being not within the letter of the Law, for indeed literally and legally she is of no kin, being part of himself, while living, and is now his relict or widow, which hath no legal degree of kin 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 bar him of any right) if then he be waved, it's 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 Oar into this Boat; If because the eldest hath enough already, the same reason runs strong for a distribution to give each one a competency; 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 express penalty; he might not appoint whom he pleased Administrator, but was regularly then tied to the next of kin, and they were made accountable to the Ordinary: I cannot think devotion had in these times swallowed up charity, or charity natural respect, engagements, or common prudence: I should err much, seeing not only the general Law which treats of distribution, made Rules for, who should be capable to come in to claim Administration, and to require part of the estate; but also to settle the Rule of and for distributions, and from that even the constitutions Ecclesiastic of England settled the same.  
I see also they take care for payment of debts, so that I must conclude the Law then truly construed, consisted in a pious and discreet caring 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 certain to its first and Primitive Rule.  
The Law of 21. H. 8. gives the ordinary power to grant Administration to the Widow, or to one or more claiming as next of kin in equal degree, or when more be in equal degree, and one claim according to his discretion. Now that Law hath this clause, taking surety for the true Administration of the Goods and Chattels, etc. 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 Child, that the Administration of the Goods might be according to the Rule of Law; and the equal course of distributing to Wife, Children, and Kindred, according to the Rule of Law, was still continued.  
Now to the Suretyship, 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 Episcopal party, to intermeddle and umpire in and over the Ecclesiastic Jurisdictions▪ What was before wrapped up in general words, was intended to be reduced to a more special 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 only to take Security truly 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 only 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 legal coersion in those Jurisdictions used, have endeavoured obliquely, and by the by, pretending those Bonds suable no where but at Common Law, to obstruct and subvert the whole businesses, by delivering opinions, that those Bonds were not valid in Law, and so consequently enervate the distribution, by rendering the security fruitless. Whereas the Statute require such Bond to be taken, and consequently intended, if broken, to be sued. I shall exemplify 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 joint Administrators, each one getting all they can, and then to suit; no due account, nor ought fit for men: and we all know, that the differences of Allies and near relations, are the sharpest and hottest) taking Bond to stand to the distribution of the Court, which is, as I say, settled upon known, legal, and rational grounds. The Administrator claims an interest in all as Administrator, the Common Lawyer tells him he is only 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 compel 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, than a suit in Chancery; nay this is, though the party taking Administration hath it only upon consent, nay subscribes that consent: and what's the reason? truly the Common Lawyer (in this Case and this Court) says 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 than manifest, that pure interest overrules 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 limits of Jurisdictions; for it makes men knaves, and makes multitude of poor, and brings not only Courts and Judges, but Justice itself into contempt. This shall suffice for the Court of Probates as to this point, I intending only to hint things, not make up all matters, to make the wound wide, and happily past healing, but by a Corrosive.  
A word or two concerning the Admiralty: It is an ancient Court as must be acknowledged; yea, as ancient as any, that it hath a certain peculiar and proper Law, according to the subject matter of its Authority, is agreed, that it differs from the rest of the Law of England, may be acknowledged, but not contrary; the Common Law not treating at all, nor intermeddling 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 tried 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 only in such places from whence a venue may arise, and terms of that Law publicly 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 only to expound, besides the open and vulgar evident meaning of an Act, but contrary to the literal meaning of an Act, to quash those evils which experience manifested, and might not at making of the same be foreseen. If so, than they have a power not to prohibit where they see a greater evil 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 Bailiff of a liberty, servant to the Attorney in the case should come in, and being only 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 slave's money, etc. 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 tried 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 Foreign contracts of necessity must allow. So suppose the same done in London, and the delivery to be in Foreign parts, if the same be drawn according to Rules of Common Law, upon the Laws Civil, or of Merchants; so in case of the Consul's Ambassador and Merchant taking money, where it runs at forty pound per cent. shall it be paid here by six, or stayed with a prohibition? So in case of hiring Seamen and Mariners oft in an Alehouse, to debar the Master or out-trader of his lawful and just Pleas in Marrine contracts, because of their being made on Land, is more than 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 Mariners 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 published: 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 aught of Justice amongst men, these things be cruelties and oppressions to be remedied; the guilt must lie some where, God grant whom it most concerns may lay it to heart. I shall not touch upon the laying Actions betwixt high and low water mark, when done at Sea, nor laying things done in the furthest part of Europe, nay of Asia, in the Ward of Cheap. because I will not overlabour things; for its evident, an English Jury was never intended to try them, for so the Act expresses, contracts, pleas, and quarrels arising within the bodies of Counties, as well by water as Land. This is enough to clear up what the just and due intendment of Law ought to be, if Courts and Judges be for Justice sake, and for the people's 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 custom 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 aught 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 knowledge (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 Admiral's 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, lays a sure foundation of regard, if meet encouragements 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 ancient 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 Sergeants and Barristers at Common Law do and aught to do, both in the Admiralty and Court of Probates, in case a question upon any Statute, or other part of the Common Law of England comes in question, and then much more where a question comes, whether the Cognizance of the case belongs to this or that Court; and this is surely reasonable upon the score of general and universal reason, whatever it may be upon the score of interest or particular benefit.   

2. Head.  
I now proceed to the second Head proposed, viz. Whether Courts, whose special known Origination stands principally upon usage and allowance of the Supreme power, though using a distinct Law from the general received Law of the Nation, may not be, and are not Courts of Record of and in that Nation, and so to be allowed by the Courts of Common Law?  
Were it now the time, when Abbots, Bishops, Canonists, and Civilians were the chief (if not the only) Judges of this Nation, and sat 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 discuss the case, that the grounds of things may so appear, that some judgement and conclusion may be raised; it's certainly a difficult matter from what I can find, 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 privileges of such a Court, for their learning may be much, but it is confused, and in a Chaos for the generality, and loath they are to have it modelled 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 find to distinguish by is, where a Writ of Error lies upon any Judgement given in an inferior Court, it's a token the inferior Court is a Court of Record; but if a Writ of false Judgement, than a base Court: So that the difference is not between Courts of Record, and inferior Courts, but Courts of Record, and base Courts, than the conclusion must be, all Courts, not base, are of Record; but that will not be granted by the common Lawyer, for ancient 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, it's 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 employed 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 enforce 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 it's 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 ancient learned Authors make them, and better set down by that, than 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 find 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 custom 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 aught of a Patent in words expressing it to be a Court of Record, for the Origination is plain, but what the distinct powers are, is never a whit thereby the more perspicuous and manifest.  
I am not so ignorant, but I can tell, there may be a reduction of things to some certainty, both what makes a Court of Record, and also its powers, etc. 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 virtue and power they give to the Acts of their Courts, regularly Entered 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 less. Now to let all other things pass 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 Registered, but that the same be Records, and so allowed in all Courts in that Nation, next that, each Court hath power to enforce 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, it's 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 pressed, as in Fairs, Markets, etc. 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 itself, and to manifest and testify the nature of the case, and be evidence in case of any suit for the same in any other Court? Is not the trial 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 Courtbaron, Hundred, Town 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 inferior 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 aught I can find may have the cognizance of the proof of all Wills, and that both to real as personal estate, rather than the Chancery, and examine Witnesses in perpetual memory, for the inconveniences to the people are great; for the personal estate prove the Will in the Court of Probates, for the real, in Chancery, by Witnesses: Yet the Court of Probates hath always used proof, by Witnesses upon oath: Then out comes the Original Will from the Office, and though there it might rest as a Record, upon Record, for the equal 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 unless 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 appears, but it's not evidence in this Judge's 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 clear, each Court, Administering Justice, aught in the same Nation to be so fare a Court of Record, that the Acts of the same in the public Registry ascertained, should be of themselves, if produced proofs (if by true Copy sworn, to be accepted as proof.) And, I say, it's not material, 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 Loss, 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 Foreign Princes of Europe, will allow them judicially in proof, if under Seal 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 special 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 Sergeants, which these Judges were; and how the interest of Societies in education runs, and hath its work, even to deprave Judgement, and to maintain things evidently irrational, needs no proof: I profess sincerely I have impartially weighed things, and can find no ground in reason for it, and can only settle it upon the interest of education, private benefit to them of like study, etc.   

3. Head.  
I will not enlarge 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 enforce 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 enforce those Judgements, it gave in cases there cognizable: Indeed its evident to reason, it were not otherwise a Court of Justice, for Justice is not giving sentence, but seeing the thing done accordingly, which is called justly execution.  
Now this question is out of doors in the Admiralty, it enforces, 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 Council; let's see how it stood before, while the Ordinary had it, who being an Ecclesiastic, had in this case of Wills, and Testaments, and Administrations, first power to excommunicate, which if the party obeyed not, was after forty days 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 itself, was before a Writ for Attachment, a kind 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 proceed 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 itself; 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, etc. include in them, not only a power to hear, but to Judge, and to enforce that sentence; for as nature, so the Law doth nothing in vain, it settles not a power in any to make Judges, but to have power also to enforce, for otherwise their sentence were in vain.  
It's plain, that the power Ecclesiastic by censures is gone, and the Judges civil cannot execute it; but my reason is, that ceasing, the Judges now, that the Law may not want his course, and that Justice be done to the people; the general reason of the Law requires, that coersion be. The question now is, what I must acknowledge, the liberty of man is precious, and so are goods, for property is little, if liberty be encroached 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 own; the common Law meddled 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 practice, for the letter of the Law is not observeed. Now than if the procedure of the Judge be according to the practical Law of the Nation in general, I should conceive the Officer ought to be free from Action, and plead the Rule of the Court, I know there is no settled Prison to which he can be committed, and that private houses ought not to be Goals.  
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 general 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, lest there should be any encroachment under colour of Justice.   

4. Head.  
The fourth Head, will from these former Reasons and Grounds laid down, receive a full proof, and no way conclude (to spare expense of time and words, for I would no more reiterate then irritate) that a certain continued, and constant known practice and usage in a judicial Court, aught to have the force of a Law, the same aught to be allowed in any Superior 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 Superior Court admonish the Inferior, and if it doth not then rectify, let the Judges and Officers be punished, otherwise the Suitor will be ground between two Millstones, one Court enforces 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 Superior, where it is not, or declare the Acts of an inferior Court erroneous upon a coliteral occasion, which may indeed supplant and enervate the whole settled Jurisdiction of the inferior Court, and bring all to the Superior, by which means all County Jurisdictions have been destroyed, and the whole stream and current of business, is brought to the Superior 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 original Laws, it can stand with reason, that one of those Courts should prohibit the other; to bring any matter before itself, or decide to what Court the Cognizance belongs.  
I see all times and persons professedly taking care, by all means possible, to decline interests; as seeing how subject, even the best of men are to turn and bend aside, drawn 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, unless able to balance interests, and how loath to suppress an evil by power, lest they should give cause to men to doubt, they might call good evil, and suppress 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 reform, and interest having so strong a Bulwark to defend itself by as usage, interest will be called property, and we know what strength custom 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 only wise men, but Christians will give the Supremacy to reason, and then yielding for public good, shall Crown them as Benefactors to the Commonwealth. Is there then benefit to the Judges from the cases depending in, and tried 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 honour, and consequently these things will (yea, even with wise men) work, yea, and ancient men, who more desirous of riches and honour, yea, who more jealous of it, than even dying men. Now if you shall look at the Usage, I say that is the ground of the complaint, the evil 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 progress hath been in it, and what the cause appears to them to be. I know how indifferent the ancient practice of the Law was between the Civilian and the Common Lawyer, while the Civilian managed Legacies, Marriages, Alimony, Tithes, and the like, under the Title of Court Christian: I shall profess I know the learning of the Common Law to be great and deep, but it being not used to many questions, which the Civil Law hath fully handled, it's not complete, nor is the Law of England therefore complete, 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 encouragement 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 will but render him more ridiculous, from the greatness 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 than the Judges, to have the Cause in that Court, so that there is interest upon interest, and where should they now sue for a consultation, either Judge, as Bishop (which ought to be) or party; then there was great conscience to defraud the Churches or Court-Christian of any due, Excommunications were feared: now there is as it were a feud, which all the learning of the Civil Law for Pope interest sake. I say therefore, the intetest being clear, the reason is evident, they ought not to be Judges, for they are parties in this quarrel.  
But it will be said, the Judges at Westminster are specially trusted with the observance of the Laws, and have as it were, the trust of general Inquisitors for the Public 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 yield the Honourable and learned Judges all their deuce to my utmost, but I must say, they ought to hear what can be opposed, the interest of their Courts is plain, 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, special conservators of the Law, the Prince's Council always advising him, and informing him of the Law, yearly visiting the Counties, as the Prince each fourth or seventh year to see to the equal Administration of Justice, according to the Plot of England's Government, I should, and aught to hold them as indifferent Judges betwixt two other Courts; but as now gathering all the business of the whole Nation to the sole determination, I can see it, but not the reason of it, no not one jota or Tittle, and yet I think myself 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 pass to the consideration of Judges of Appeals, 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 only 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 Laws, Doctors and men of degrees, ranks, and qualities whatsoever, but unless it be that all to Doctors, they are so incertain a Court to get together, having no encouragement to come together, but their affection to the case, that it's so extreme dilatory, that he that gets the money in hand to come to that Court, may account it half as good as his own. It's in some part a great cause of confusion, for from the many cases all the Doctors are engaged at the same Court, both as Judges and Advocates, and so the same person now a Judge, presently an Advocate, than a Judge again: 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 main 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 discern the interest. Therefore to remedy all these evils of contentions, 'twixt Courts as well as parties, it's of necessity to keep a Class of Judges, as the Original settlement of England's Laws intended, fitted for, and only to be employed in the determination of all cases that can fall out in England, etc. Who shall not Originally hear any case, but shall be Moderators in all cases, of all Laws Common, Civil, or Equitable; and in case any Ecclesiastic power should ever have head, of that also, both as to difference 'twixt Court and Court, and also to decide and determine all Appeals 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 tried by Juries, but only upon the rigour of Law, which will indeed and really according to England's 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 settled Rule.  
I well know there are objections of no weight offered scatteringly, by way of Oratory now and then at some public meetings against this offered, let them give them openly, and in certain 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 England's 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.   
FINIS.