The Lady Russel's and all Lords of Manners case and reasons against the bill for erecting a court of conscience

The Lady RƲSSEL's, and all Lords of Manners, CASE and REASONS against the BILL for Erecting a Court of Conscience.

1. AS to the Matter of the Act, it takes away (as to the Cause mentioned in the Act) the Ancient Tryals by Jury, and gives an Arbitrary Power to the Commissioners to Hear and Determine Finally, without any Appeal from them to any Judicature whatsoever: And great Inconve∣niences must ensue, by giving an Absolute Power to the Commissioners to dispose of all Debts under 40 s. at their sole Wills and Pleasures, and takes from every Man his Birthright to the Ancient Law of the Land.

2. Parliaments have been ever very Careful to Maintain the Ancient Law in its Fundamentals, (of which, Tryals by Jury is a Chief one) and there∣fore it was once the Answer of a Parliament, upon almost the like occasion, Nolumus mutare Leges Angliae.

3. Causes under 40 s. are, by the Common Law, tryable in Inferiour Courts, only as Courts-Barons, &c. and not in the Superiour Courts at West∣minster, by several Statutes which were never yet Repeal'd. This Act destroys all those Courts, alters the Law, and takes the Power out of Persons of Quality, that are Lords of Mannors, vests it in Shopkeepers; so that if a Lord of a Mannor (within his Jurisdiction) have a Contest for Debt under 40 s. with another Person, he must apply himself to a Company of Shopkeepers for Relief, and make them his Judges, who, by the Common Law, had a Court belonging to his Mannor, where Causes were properly tryable.

4. Justices shall not take Assizes in their own Country, prohibited by Statute-Law, because of the Favour they may use to their Acquaintances. This Law, just contrary to the Reason of that Statute, gives a Jurisdiction to persons over their Neighbors; and whether it be not likely that Partiality may prevail.

5. Supposed some of the persons to be named Commissioners should be Indebted to their Neighbors in Sums of Mony under 40 s. Those to whom they are Debtors are absolutely without Remedy; for, either they must be Judges in their own Cases, (which is not to be supposed the Statute does intend) or else they are exempt from Paying for the time they are Judges, not suable elsewhere. Put likewise, in case that several persons should be In∣debted to the Commissioners under 40 s. they being made Commissioners, are disabled to recover their Debts for the Reasons aforesaid.

Now, as to the Design of the Act, to hinder the expending of great Costs and Charges at Law, for Small Debts, which there is an absolute necessity for, because some persons had better lose such small Debts than venture the expending 10 l. in the superiour Courts for the recovery thereof, and also paying the Defendant Cost, if he be Nonsuited; others must Lose such small Debts, because they are not able to Sue for them: But the greatest Sufferers are those that are taken upon Arrests, who are first squeezed by Bailiffs out of as much (most times) as such small Debts come to, for their Fees and Attendance, then liable to pay about 10 l. Cost to the Plaintiff (if they are cast) besides their own Charges in defending it, or lye in a Jayl for it till they perish, which is very deplorable, Prisons being glutted with such miserable People, and has been the Ruin of many Families, and is directly contrary to the Letter of the Law, for Debts under 40 s. And, 1. As to that, the Law has provided already inferiour Courts, where the Defendants are only summoned, and their Body never liable to be taken for such small Debts; the Charge of a Tryal so small, (if they come to it) that will hardly amount to the Charge of the Bailiffs upon an Arrest, and the Recovery quick and easie: And if the Defendant (upon the first Sum∣mons, or Notice of a Suit against him) tenders to the Plaintiff what is justly due to him; if the Plaintiff refuseth to accept of it, but will (notwith∣standing such tender) wilfully proceed, it shall be at the Plaintiff's own Costs and Charges, by the Course and Practice of the said Courts. And in case poor Persons do either Sue or be Sued there, they are admitted in Forma Pauperis, and pay no Fees at all.

Equal Difficulty in a Case of Forty Shillings as Forty Pounds, yet left to the decision of Ʋnlearned Men.

If it be Objected, That Juries are always of the Neighborhood, which the Common Law appoints. For Answer, 1. In case of a Jury either Plaintiff or Defendant hath his Lawful Challenge. 2. If they go against their Evidence, or against the Law, an Attaint lies against them, upon which the wronged Party is restored. 3. New Tryals are given after ill Verdicts by the Court; but to these Commissioners, no Challenge lies beforehand, nor Attaint after; nor from their Judgment is there any Appeal.

In case of Arbitrement, where Shopkeepers are chosen Judges, 'tis observable, how Zealous each Person is for his Friend, particular Acquaintance, and Customer, even beyond Equity and Reason; And 〈◊〉〈◊〉 to be hoped they will prove more moderate when they are nominated by any other Means than by the joint Consent of the Parties submitting.

How far forth special Agreements bind, and upon what Considerations Promises for the Payment of Mony are obliging, is a very nice Point of the Law. Therefore,

From hence it must follow, that many Errors must of necessity be in the Decrees of this Judicature, and yet from such Decrees there is no Appeal.

It seems to be no good Answer, to say, That the Decrees of this Judicature are but for small Debts, inasmuch as Justice is equally abused and trans∣gressed in Small as Great Things, tho' the Losses sustained vary.

This Judicature is Impower'd to Examin and Determin upon the Oaths of the Parties themselves, as well as Witnesses, (not allowable by our Laws) which will cause frequent Perjuries amongst poor People, who will be enticed to Forswear themselves, not only to enrich their Pockets, but to gratifie their Revenge and Anger.

This Judicature will cause Dissention in the Neighborhood where practised; for, Tradesmen being made Judges over Tradesmen, and every man thinking best of his own Cause, will certainly blame their Neighbors that give Judgment against them; which will breed ill Blood and Heart-burn∣ing amongst them.

This Arbitrary Proceeding, contrary to the Law and Magna Charta, (being the Subject's Birthright) will bar the Subject of the Benefit of other Good Laws, and most especially of the Statute of Limitation, made 21 Ja••. and revive old antiquated Controversies, which that Law had buried in Oblivion. Who knows where this will end, if once the Fence be broken, and a Breach made in this strong Wall of Safety, which guards our Lives, Good Names, and Estates, from the Violence of the Multitude? The Breach is easier widen'd than it was first made; and tho' it begins with Actions under 40 s. it may quickly encrease to 5 l. or more, &c. The Subject's Right is not more or less, according to the quantum of the Sum, but he hath the same Right to any Sum under 40 s. due to him, as to any above; and he is as much depriv'd of his Right when he is deny'd to Sue at Law for the one as for the other.

To prevent the many Perjuries, Partialities, Corruptions of Commissioners, and other Inconveniencies, which must unavoidably fall out, if the Bill for the Courts of Conscience do Pass into an Act, it's Humbly Offer'd as an Expedient, That an Act of Parliament may be made to strengthen the said An∣cient Courts-Barons, &c. and, That the Law may be Restored as to the Recovery of Small Debts, the Arrest taken away, both in mean Process and in Execution, in all Cases where the Debt or Damages do not exceed 40 s. and the Process be by Summons, or reasonable Distress of the Goods. And if it be enacted by Parliament, That on Proof by Oath of the Execution of the Summons, by leaving it in Writing with the Defendant, or his Wife, or fixing it on the Door of his Dwelling House, or on Oath made that the Party was distreined:

If the Defendant do not appear according to the Summons, the Plaintiff may File his Declaration in Court, and proceed as if the Defendant had appear'd. And further, That if the Plaintiff shall proceed in any Court by Arrest, and not by Summons and Distress only, and shall not recover above 40 s. Debt or Damages, that he shall have no more Costs than Damages: The County-Courts, Hundred-Courts, and Courts-Baron of Lords of Man∣nors, will be saved, and small Debts and Damages may be recovered, with little Charge, and no Vexation to Debtors, without Bail or Imprisonment, in the ordinary Legal Methods, without seeking a Remedy by the Arbitrary way of a Court of Conscience, as proposed to be erected; where the Body is yet to remain liable to Imprisonment, and the Defendant may, during such Suit within those Courts, which is from month to month, or from three weeks to three weeks, with his Labour, get Mony to discharge the same.

And if it be put into the Power of such Courts to give Time for the Defendant to pay the Debt or Damages recover'd by the Plaintiff, so that the Whole be to be paid within One whole Year after the recovery, and the Fees of such Courts be setled by Act of Parliament, or left to be setled by the Judges in Westminster-Hall; This Act, if it be made, will fully answer all the Ends the Promoters of the said Bill for Courts of Conscience do pre∣tend to aim at; And the Law will thereby be Preserved, Small Debts and Damages easily Recovered, and all Inconveniencies will be Removed.

Note, That in London there is no Court in nature of the County Court; for, the Sheriff's Court there, by Custom, begins with a Capias, and for that Reason a Court of Conscience was first set up there, by a By-Law, and afterwards Confirm'd by Parliament.

Notes

• ••. t. Mabridg, 2 H. 3. ca. 23. ••tat Westm. •• cap. made ••1 Ed. 1. ••5 Ed. 3. c. 17. ••tat. 25 Ed. 3. ••tat. Gloc. Ed. 1. cap. 8.
• Note, The ounce of Silver which is now worth 5 s. was not, when the Stat. of Gloc. was made, worth above 1 s. 8 d. so that what was 40 s. then is now above 6 l.