Reformation in courts, and cases testamentary. Parker, Henry, 1604-1652. This text is an enriched version of the TCP digital transcription A91346 of text R206722 in the English Short Title Catalog (Thomason E616_5). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 21 KB of XML-encoded text transcribed from 6 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2017 A91346 Wing P419 Thomason E616_5 ESTC R206722 99865835 99865835 118086 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A91346) Transcribed from: (Early English Books Online ; image set 118086) Images scanned from microfilm: (Thomason Tracts ; 94:E616[5]) Reformation in courts, and cases testamentary. Parker, Henry, 1604-1652. 11, [1] p. s.n., [London : 1650] Attributed to Henry Parker. Caption title. Imprint by Wing. Annotations on Thomason copy: p.1: "Nouemb: 14. 1650"; p.11: "Written by Henry Parker. Esqr. 15. Novemb. 1650". Reproduction of the original in the British Library. eng Justice, Administration of -- England -- Early works to 1800. Law reform -- England -- Early works to 1800. Jury -- England -- Early works to 1800. A91346 R206722 (Thomason E616_5). civilwar no Reformation in courts, and cases testamentary.: Parker, Henry 1650 3685 2 0 0 0 0 0 5 B The rate of 5 defects per 10,000 words puts this text in the B category of texts with fewer than 10 defects per 10,000 words. 2007-05 TCP Assigned for keying and markup 2007-05 Aptara Keyed and coded from ProQuest page images 2007-06 Mona Logarbo Sampled and proofread 2007-06 Mona Logarbo Text and markup reviewed and edited 2008-02 pfs Batch review (QC) and XML conversion REFORMATION IN COURTS , and Cases Testamentary . BEfore the late abolition of Episcopacie this Nation suffered under too many Testamentary Jurisdictions : some Counties had no lesse then 50. or 60. Peculiars : and in some Counties divers Lords of Manors , and Corporations had a priviledge to prove Wils , and speed businesse of that nature upon a Lay account . The People found themselves divers wayes aggrieved by this multiplicitie of Jurisdictions : and therfore to give some ease , and redresse therein , the Metropolitans Prerogative Courts were erected about 400. yeers ago . In the yeer 1643. Dr : Merick , Judge of the Prerogative Court of Canterbury , removed his office to Oxford : and then there was a Committee appointed to consider of a new settlement of that Court , but nothing was reported thereupon . In the yeer 1644. Mr: Maynard brought in an Ordinance for making Sir N : Brent Judge in Dr : Merricks place : and the same was passed with some other materiall alterations in the Prerogative Court . In the yeer 1646. All Episcopall Jurisdiction was taken away : since which there is no true power remaining anywhere to dispatch Testamentary businesse upon the Ecclesiasticall score , except that of Sir Na : Brents . Sir Na : Brents Jurisdiction has two defects , and so is as yet insufficient to do right to the whole Nation : it wants extesinon of bounds : and a competent Power of coertion . For want of Extension it cannot proceed duly within the Province of York , nor within the ancient Province of Canterbury : but onely in some speciall Causes . Hereupon occasion has been taken by divers private man without , and against Authority of Parliament , not onely where the Prerogative has no cognizance , but also where it has to exercise Testamentary Jurisdiction : and so by these misproceedings the deceived people is put to much unnecessarie charge , in as much as they are necessitated to take out Administrations the second time , and be at the expence of new Probates as often as any Suit arises . For want also of a sufficient Coercive Power ( for a Court without a Coersive Power is no Court ) the present Judge cannot force men to bring in true Inventories , or submit to order in other points : whereupon a vast licence is taken by many to defraud Creditors , Legatees , and other Interessents : yea the State it self is often injured hereby , aswell as multitudes of private men . There is now living at Guilford an Executor which refuses to bring in an Inventory : yet the Testator died under sequestration , owed good summes upon Bond to the Parliament : and besides the main bulk of his estate , He gave away in his Will above 900 l. in pety Legacies . In Order to a Reformation of these things , a Committee of Parliament was chosen in April 1646. which after 3. yeers sitting made Report in May : 1649. The matter of that Report was referred to a new Committee to be formed into a Bill , and in July following for the better maturing of that business , other Members were added to that Committee , and a speciall care thereof was recommended to Sir Pe : Wentworth , and Mr: Miles Corbet . Since that time a Bill has been prepared , and twice read in the House , but notwithstanding so much time is elapsed , it still hangs under a recommitment , and fails of giving satisfaction . The reason why the reforming of these things ( though the State it self , and thousands of particular men remain sufferers in the mean time ) proves so dilatory , and difficult , is supposed to be : because most men are possessed with two contrary extreme opinions : and few there are that pitch upon the middle and more moderate way . Some men are wholly for the Civilians , and out of favour to them , they would have no lesse then 20. Courts erected , wherein none but of that profession stould sit as Judges . Some men are as opposite to Civilians , and they would have that whole profession removed , and quite eradicated , aswell such as have been faithfull to the Parliament during these late troubles , as such as have been Enemies : only that Testamentary busines might be thronged , and obtruded upon the other Courts at Westminster . In the mean while there is a third opinion , that mitigates both these extremes , and thereby declines the inconveniences occurring on both hands . According to this Third Opinion : if the Court ( now cal'd the Prerogative ) were inabled with such a Coercive power , as other Courts of Justice have : if it had a Jurisdiction in all Causes Testamentary whatsoever , throughout the whole Land : if it were likewise animated with as many Judges , as use to sit in other Courts ( which the Lord Bacon thought necessary many yeers ago ) and if it were subordinated to another higher Court , of as many Judges , in all matters worthy of appeal : it would prove an excellent settlement : and without any further dangerous Innovations ( we take in all other restrictions , and points of Reformation prescribed to other Courts against delayes , excessive fees , and arbitrary proceedings ) would be sufficiently serviceable to those publick ends , we all aime at . It is remarkable also that the Advantages , and Conveniences , which commend to us this middle way are many , and very weighty . For , 1. Hereby that admirable light of the Civill Law , approvedly usefull in Monarchies , and yet by some held more usefull in Democracies , will be preserved in our English Horizon , and saved from utter extinction . There is scarce a State in Christendome , whose highest Councels , and Judicatories are not mainly swaid by the profound Professors of Civill Law : and as learned Polititians are generally the ablest servitors to all States ; so no other study , or breeding has more eminently accomplisht Learned Polititians , then this of the Civill Law . Without a competent practice this knowledge will be lost to our Natives : and this being so lost , we shall be driven , though to our shame , to have forreiners in p●nsion . Now to reject the service of Englishmen , when we are to treat with aliens : and not onely to trust , but also to gratifie with our English gold men born to a forrein Interest , will be a great discouragement to our own Students so rejected . Besides Testamentary busines is common to us with other Nations , it never had hitherto any thing peculiarly municipall in it , the formes and the processes , and proofs of the Civill Law have ever hitherto so prevailed , that Englishmen might confidently as to Testamentary Interests demand , and recover their rights abroad , and strangers might do the like in England . And t is not yet easie to foresee what inconveniencies may ensue if in this infancy of our Republick we presently depart too far from ancient legall communities and correspondencies with other neighbouring Nations . 2. As the study of the Civil Law will be preserved , by the number of Doctors and Advocates , that will be supported by one Admiralty , and these two Testamentarie Courts : so the Students of the Civil Law will be hereby the better reduced . Heretofore , when there were so many Peculiars , and Judicatories in England , the very number of them was oppressive to the people : and yet there is not left now the tenth part of busines , and imployment for Civilians , as was then . All the cognizance of Decimal cases , and questions about Matrimony , Incontinence , Canonicall obedience , and granting Licences of many severall sorts is taken away ; and therfore it remains , that we must lessen our Courts , as we have lessned the busines appertaining to our Courts , or else our Lawyers themselves will feel the inconvenience of it , as well as Clients . Countrey practise addes little to the skill , and ability of our Gownmen , wherfore when there is a scarcity of Countrey Practise too , ( as there must needs be , if no fewer then 20. Courts be establisht for so little busines , as is now remaining ) the very number of Professors will become a burthen to the Profession , rendring them , as indigent , as it does illeterate . 3. This due reducement of Civilians will be for the States ease , as wel as for the commodity of our long-robed Gentlemen . For multiplicity of Jurisdictions , what by their own clashings , and what by the craft of their Ministers , often begets multiplicity of needles Suits , and t is possible that more publick and dangerous differences may be occasioned by their disputed limits , and divisions , and all these will be damageable to the Common-wealth . If we calculate what the necessarie charge will be of maintaining twenty Courts , as some propose in favour of Civilians : or what will maintaine so many Clerks , and Officers , as there are Counties in England , according to the proposal of the other side , we shall finde , it will amount to no small value . 4. This just apportionment of Civilians to the latitude of their busines , by bringing with it an inlargement of benefit , and subsistence to those few practisers which remaine unreduced , will inable them to serve the State more beneficially and cheaply then their predecessors have done hitherto . T is manifest that the same practise which with moderate fees will creditably and amply maintaine twenty practisers , will not maintain fourty , though they be permitted to exact fees more immoderately . It is proposed therefore in behalf of this new settlement , that the Judges , and their Dependents above , without any demand of new fees , shall at their proper cost maintaine , and depute sufficient Officers belowe in the chief Towne , or City of each County , that is distant above 60 , or 70 , miles from London : to dispatch all such Testamentary busines there , as is in common forme , and may be dispatched by letters : and so save the greatest number of suitors their travaile to London . It is also undertaken , that the said Deputies shall in favour of the poorer sort do busines gratis , and neither take gratification nor reward where the Inventory exceeds not 10 l. and in all other dispatches of greater value it shall be the same Deputies part to transmit all things up to London that deserve registring , and reserving , without grating upon Clients . Likewise , the same Deputies , if Authority thinke fit , which thus intend Testamentary busines below , may finde leasure , and opportunity enough to keepe authenticall entires , and records of all other contracts , and solemne acts betwixt party , and party , which deserve to be treasured up for publick search . How acceptable therefore such a settlement would be to the people , when it should speed all mens busines so compendiously , and the poores so gratuitously , and how full of grace it would appear to the generality , need not be further demonstrated . 5. Hereby the excessive incumbring , and over-charging of our Courts at Westminster with a surplusage of Testamentary busines ( not yet foreseen by some practisers of the Common Law ) will be aptly prevented . It will be the wisdome of the Parliament to provide , that we have neither too many Courts for our suits , nor too many suits for our Courts : both being attended with great inconveniencies , but the second with far greater , then the first , some would have in every County a Court , and reduce us to the old manner of Jurisdiction , which was used in England long before the Norman Conquest , when this was a cantoniz'd Country , and obeyed severall pety Princes : and this is pressed as very counsellable , by that party , which would cantonize us the second time : but t is to be fear'd , if this designe prevaile , our quarrels , and controversies will abound , and increase upon us , as fast as our Judicatories do . That fire which is now kept up in one hearth at Westminster , will be then scatered all over the House , and so spread its flame much wider then before . Other objections lie against too many Courts , espescially when they are attended with more illiterate Judges , and unexpert Counsellors : but the intent of this paper is to shew that there is lesse publick prejudice in too many Courts , then in too few . T is with the politick , as with the natural body : both finde obstructions more fatal then fluxes , and both receive more torture from a defect in the expulsive faculty , then from a defect in the relentive faculty . Too much vexation from many Courts may be compared to a disentery : but want of expedition by reason of too few Courts is like the nephriticall malady , and kils us with pangs inexpressible . The Parliament of late has taken away half our Courts almost at Westminster : and thereby doubtles it has taken away from amongst us many of our suits , and Law-questions ▪ but it is as far out of doubt withall , that all the differences that were formerly decided in those abolisht Courts , are not abolisht together with those Courts . This together with the calamity of our late broiles , and confusions , has begotten a very great glut of busines at Westminster Hall : and this glut of busines has most undeservedly begot a complaint against Westminster Hal. Every man sees that the Chancery at present grants not Clients such dispatch as is expected : but every man sees not the true cause of this : and the plain truth is , the fault is not in the Court , nor in the Commissioners , nor in the Pleaders : t is too great a confluence of busines that chokes up , and obstructs Chancery proceedings : and t were much better for the Common-Wealth to be at the charge of two Chanceries for too little busines , then to maintaine one that 's over burthened with too many Causes . Oh that the Parliament would consider what want of a due hearing , and redresse is in Chancery , and other Courts , yea and within its own walls . The greatest of our grievances , the grievance of all our grievances at present is ; that our grievances can have no vent , and that our complaints know no place , where they may effectually disburthen themselves , many thousands at this day being no where remediable but in Parliament , have wofull petitions to present , yet can obtaine no accesse at all to the House : and some thousands of those that obtaine accesse , either waste themselves in a diuturnall frustraneous attendance , or are at last denied their requests , or are undone for want of a timely deniall . There is now a Prisoner in Warwick Castle , whose long durance has sunk him into the deepest of all worldly afflictions , and his languishment is now almost desperate , because though He has alwayes in other matters deserved well of the Parliament , and no great ill in this ( as He hopes to prove , if He may be admitted to any Triall ) He sees the House which can hear his accusation , yet cannot find leisure to hear his defence , nor will provide for Him any other issue out of this miserable condition . I my self in a Case of no meer , private concernment have attended upon Committees for dispatch at least seven yeers : and though that attendance has much broken my Fortunes , and disappointed me of divers hopefull preferments , and given me cause to complain against my undoers : yet am I fain to strangle my griefes in private , lest I should by a new supplication condemne my self again to the torture of Sisyphus , for seven yeers longer . I uttet not this here , because it burns , and festers like a deep suppuration in my minde : but because I beleeve there are very many others in my condition , to whom want of expedition ( being like the stoppage of the stone in the uritories ) apears more intolerable , and procures more desperate disaffections then it does to me . Pardon this Digression , it means no ill : it would onely demonstate , that there is danger , and damage in too many Tribunals , yet not so great as in too few . 6. Hereby there will be one cettain place for all Suitors to dispatch their busines at , and that place will be London our Metropolis , incomparably the most commodious of the whole Land for such dispatches : when there are many Judicatories , and Registries in severall Counties , and Provinces to resort unto , there cannot but follow much uncertainty to Clients ; and uncertainty in matters of this nature is ever the mother of confusion , and distraction . Some men which look no further then to the ease of Executors and Administrators , suppose London too far distant from some Counties , and therefore they propose to have all Wils proved , and Administrations granted where each Testator or partie Intestate dyes : but these in the mean time have no regard to the ease of Creditors , Legatees , and other interessents who often are more in number , and whose rights are often of more value , then the Executors and Administrators . Wherfore forasmuch as one that lives in Cornwall , another in London , and a third in Norfolk , may be concerned in a Will or Administration at Barwick , or Carlile , and so by this Proposition must accidentally travail to Barwick or Carlile , the most incommodious places of all England : and still there is no certain place designed to any man before-hand ; what a generall vexation and perplexity is this likely to produce in many Cases ? Now London as it is a place alwayes fixed , and pre-determined , so it does for manifold conveniences deserve that preheminence before all other places whatsoever . For , 1. London is the Common Justice seat for all Suitors to resort unto in all other differences ; and therefore Testamentary Records are most necessarie to be there kept , where they are to be oftnest produced , and where they may be most ready at hand upon all occasions to be used . 2. All ages can testifie , that Testamentaries Records have there been ever most safely treasured up : whereas if an inquiry be now made of the Registries belowe , without doubt it will be a strange account that will be returned of their Records , and ancient minniments . 3. If suits arise ( as they do most frequently about Wills , Administrations , &c. ) No other place can afford so able Advocates , Sollicitors , &c. as London can. 4. London is so qualified for correspondence , by reason of the vast concourse of people there about other busines , that any man may write thither , and by writing have busines dispatcht there with lesse trouble and expence , then he can ride twenty miles any other way : And the greatest part of Testamentary busines is dispatchable by Letters . 5. As the best choise of Able responsall Registers and other Officers are to be had at London , so if they misdemeane themselves , there is the readiest remedy to be obtained against them . 6. The dispatch of busines below is not left to the meer care and costs of Interessents farr remote from London , that is in in great part to lie upon the shoulders of such as shall have Deputations from above as the busines is here stated : Upon the whole matter therefore it may rationally be concluded : 1. That a speedy settlement of some new Testamentary Jurisdiction is worthy of the Parliaments serious consideration . 2. That this settlement here proposed , is the most adequat to our publick , nationall interest of any that has been yet debated : if every man would know that the generall interest comprehends his particular , as the greater does the lesse : but not on the contrary : and so the common and Civill Jurist would not confine their thoughts to what is the advantage of their profession ; Nor the Burgesse of such a Town , nor the Lord of such a Mannor , nor the Knight of such a Sheere ; restrain themselves within their own narrower Circles , but would obey the rapture of the highest orbe ; all our motions would be far more regular , and concentrick .