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justice_n	according_a	law_n	power_n	2,633	5	4.9144	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A02833	An aduertiseme[nt] to the subjects of Scotland of the fearfull dangers threatned to Christian states; and namely, to Great Britane, by the ambition of Spayne: with a contemplation, of the truest meanes, to oppose it. Also, diverse other treatises, touching the present estate of the kingdome of Scotland; verie necessarie to bee knowne, and considered, in this tyme: called, The first blast of the trumpet. Written by Peter Hay, of Naughton, in North-Britane.	Hay, Peter, gentleman of North-Britaine.	1627 (1627)	STC 12971; ESTC S118431	133,365	164

and nowrish the Seedes of Civill Sedition Farther say they it doeth procure to those who possess● chiefe Offices in perpetuitie too much Grandour and Authoritie it draweth away after it the Eyes and Dependance of the People and as it were stealeth a little of that Splendor that is due to the Royall Majestie and beeing in the Persons of great Subjectes prepareth the Way to Popularitie and Ambition Agayne they vvho reason agaynst the frequent change of Magistrates they vse that Argument vvhich the wittie Tyberius vsed vvhen his Friendes tolde him that he did continue Men in great Offices too long agaynst the Custome of that State hee sayde it vvas better for People to endure those vvho were al-readie satiate and full of their Blood meaning their Goods than vnder-ly the Hunger and Avarice of a new Entrant Nec enim parcit populis regnum breve With-all they say that the changeable Magistrate hath no Cowrage nor Boldnesse to administer Iustice but feareth the displeasure of Men being shortlie him-selfe to descend to a private Condition perhaps inferior to manie over whome hee is Iudge for the tyme So that betwixt these two Extremities one vvould thinke the Mid-way verie fitting to bee followed by prudent Princes vvhere they may neyther bee perpetuall nor much frequentlie changed vvhere they be only to the pleasure of the Prince and with-all made Syndicable and Censurable For certaynlie as all Men know vvho vnderstand Policie Histories there was never a Magistracie invented by Men that did ad more to the Vertue Increase and Stabilitie of a State than that of the Censor amongst the Romanes vvhen once a Yeare the Consuls the Senators the Generals the Knightes the Captaynes the Tribunes the Pretors the Questors all vvho had the meanest Intromission vvith the State did compeare tremble in presence of a Censor fearing Disgrace or Deposition from their Offices or Dignities The Spanyardes keepe in their Provinces of Italie an Image of this sort of Magistrate called by them Syndicator and so they doe in the State of Genua Of this they haue some shadow in England al-be-it not in the person of one Man by those who are called Their Court of Conscience And of this it seemeth that our Soveraigne King hath now erected an Image amongst vs if I be not misse-taken in establishing The Iudicatorie of Grievances Of the which Iudicatorie because Men doe dispute diversly as of a thing newe and vnknowne amongst vs I will shortlie consider two Circumstances which I trust shall serue some-what for our Information touching the Importance there-of First the Vse and Ende of it secondlie the Warrand and Auctoritie where-by it may be established For the first The Scope there-of is not onlie Politicke and Vertuous but of most Necessarie and Profitable Vse for the Common-wealth that is To purge the Land from devowring Cormorants and those who sucke the Blood of the People to wit Corruption of Iudges and Officers of State if anie be Extorsion of Seale-Keepers and Wryters to Seales exorbitant Vsurers Transporters of Coyne Detracters and Traducers of His Majesties Counsels and Actions all which being the Ground and Source of Publicke Povertie and Pillage are particularlie ordayned to vnder-ly this Iudicatorie And if there-with the Commission had bene also granted expresselie agaynst Transporters of Oxen Kyne and Sheepe whereby our Countrey is incredibly damnified and also agaynst all Prodigall and Profligate Persons who by Ryot of Lascivious and Distemperate Lyfe doe destroy their Patrimonie and there-with their Wyues and Children that such might bee punished according to the Custome amongst the ancient Greeks and Romanes then I say these beeing committed to the Censures of entire and intelligent Men there is no Policie that could more reallie yeeld manie Popular Comforts There is indeed a Generall Clause in this Commission vvhere-by His Majestie taketh Power to Him-selfe to referre there-vnto what-so-ever shall please Him agaynst the which wee seeme to take this Exception to say that this may import a Controlling Reduction of the Decreets of our Session if His Majestie would so a Practise thought too too extravagant and extraordinarie and yet this may be rather Mistaking than True Iudgement of those who thinke so vvhich I doe demonstrate in this manner We say there hath not beene neyther ought there to bee anie Appellation agaynst the Supreame Iudicatorie of our Session vnlesse it were ordayned by a Parliament this is our Exception but leaving the Hypothesis touching our Session I will take me in generall agaynst the Thesis it selfe to say thus farre That it is not onlie agaynst Christian Practise and Profession but agaynst Humanitie to holde That there should bee no Soveraigne Power aboue all ordinarie Iudges to soften and mittigate the Rigour of Lawes Quia summum jus summa injuria the Rigour of the Law is a Rigorous Oppression for Example A poore Man is found Yeare and Day at the King's Horne beside his knowledge perhaps for a naughtie matter of fiue or sixe Shillings Striveling where-by his Lyfe-Rent of such things as he hath falleth into the Hands of the Lord his Superiour who presentlie getteth before our Session a Declarator there-vpon in his Favours These Iudges cannot helpe this disstressed Partie because there is a Law standing agaynst him and they are sworne to the King who did place them to administrate Iustice according to the Law So manie such yea and more pittifull Cases doe daylie occurre before Ordinarie Iudges vvhere-in Conscience and Iustice stand in contrarie Tearmes that I need no more to exemplifie it The Iudges must giue way to Iustice and haue no power to mittigate yet no Man will deny that this kynd of Iustice is a grievous Oppression Here wee see a manifest Necessitie of Appellation to some Soveraigne Power who may dispense with Legall Rigour in Favours of weake and distressed Parties None can dispense with a Law but a Law-Giver No Subject is a Law-Giver Ergo No Subject may dispense with a jot of the Law except he haue Cōmission from Him who gaue the Law The power to moderate Legall Extremitie or to absolue from Lawes hath ever bene properlie annexed to that Soveraigne Majestie that gaue the Law in anie State whether that Soveraignitie was Popular or Princelie Before the Ejection of King Tarquinus by the Romanes it was annexed to the Royaltie as their Histories doe clearlie show After the Expulsion of their Kings that Soveraigne Majestie of giving Lawes vvas transferred to the People as wee may perceiue by the wordes vsed by the Senate when they did present anie Law to the People Quod bonum faustum felixque sit vobis Reipub. velitis jubeatis that is Ye will be pleased to authorize this Law which the Gods may grant may bee for the happinesse of your selues and of the Common-wealth And therefore vnto the People also as then the onlie Law-Givers was transferred the Power to dispense and absolue from Lawes and to that effect a

as wee see that the Consent of the World the Practise of all Ages these of our owne Nation doe giue to Kinges the Royall Priviledge of granting Grace and Remission from Lawes even where the LAW of GOD doeth ordayne Punishment by Death And the most temperate Christian Kings doe assume and exercise this Priviledge to pardon Persons Criminall for Slaughter at their owne pleasure It beeing so how much more ought the Royall Soveraignitie to haue this latter Appellation annexed vnto it from all Iudges and Causes Civill vvhere Legall Decreets are found to be hard and tyrannous Or if a King cannot bestowe this Grace vpon a distressed Subject to repledge him from the tyrannie of Law how can hee bee sayde to carrie in His Person a Soveraegne Power This Priviledge of a last Appellation in difficult Cases is not onelie proper to Soveraignitie but lykewyse a thing ever sought and challenged by Subjects as due vnto them to bee granted by their Kings Nero and Caligula Princes givē to private Laesciviousnesse they did for their owne Ease and Freedome from Effaires ordayne that no Appellation should be frō the Senate vnto them but yet the Romanes would never quyte that Benefite of a latter Refuge to their Emperours And if we shall try thinges well wee should find that the present Practise of almost all Christian Princes hath put Commissioners or Lieuetennants in their Place to exercise that Poynt of the Soveraigne Majestie for receiving of latter Appellations in Causes Compassionable as the foure Courts of Spayne to which as to the Royall Soveraignitie there are Appeales from all Iudges Their Syndicators in their Provinces abroad are instituted to the same end and that so profitablie that there is not in any Christian State a surer Means for mayntaynance of Peace Iustice amongst People The Chamber Imperiall in Germanie vvhere-vnto there are drylie Appellatious from all the Cities Dutc●ies Counties Baronies within the whole Empyre In England they haue their Court of Conscience for the same vse and ende So that I doe thinke for this Commission for Grievances here presenting the King His owne person to receiue these latter Appellations due to the Soveraignitie albeit it seeme to bee a newe Iudicatorie of late Invention yet it is not so because it was ever incorporate and inseparablie included in the Soveraigne Maiestie I trust we will all thinke that nothing is more agreeable with Pietie Good Conscience than the allowing of such Appellations from Legall Rigour and Extremitie neyther anie thing more becomming the Soveraignitie that GOD hath placed in Christian Kinges than to receiue and heare them since Iudges Ordinarie may not doe it in the nature of their Office being sworne to administrate Iustice in Legall tearmes wanting power to dispense with Lawes vnlesse that His Maiestie vvould grant to the Lords of our Session the same Commission and Power appoynting some of them for Lawe and others for Conscience and so consolidate both the Offices in one Alwayes if the King ought or may heare the Grievances of His Subjects as due vnto His Soveraignitie and if he may doe so much in His own person then there is no doubt but He may doe it by Commissioners and must doe so because of Remotenesse of Pla●e for our Ease and because of multitude of Effaires for His owne Ease I thinke it not amisse heere to declare how our Historiographer Buchanan treating of the Originall Election of our Colledge of Iustice vnder King Iames the fift hee did esteeme it a meere Tyrannie if no Appellation should bee there-from Quando Collegiam Iudicum sayeth hee in his fourteenth Booke Edinburgi constitutum fuisset tamen qui sperabatur eventus non est consecutus nam cum in Scotianullae pene sint leges praeter conventuum decreta eaque pleraque non in perpetuum sed in tempus facta judices●que quod in se est lationem legum impediant omnium civium bona quindecem hominum arbitrio sunt commissa quibus perpetua est potestas imperium plane tyrannicum that is to say When the Colledge of Iustice was planted and authorized at Edinburgh there did not follow there-on the good Events which were expected for there beeing no other Lawes in Scotland almost but Actes of Parliament and Iudges given so farre as lyeth in them to hinder the promulgation of Lawes the Lands Goods of all the Subjects were committed to the arbitriment of fifteene Men to whome was granted a perpetuall power and Authoritie playnlie tyrannous Now to proceede touching Ordinarie Magistrates As Lawes are not perpetuall so are not Magistrates everie-where nor at all tymes neyther is it absolutelie expedient or necessarie to be so albeit we must all confesse that it is not without great publicke detriment that old and faythfull Magistrates should be often changed yet the Current of States is so fluxable subject to so manie casuall Changes that very good Princes haue changed verie good Magistrates for verie good Causes Marc. Aurol going abroad through his Provinces to view and consider the Administration and Order of Iustice he did displace hang even of the best and speciall Magistrates because that hee vvould suffer no Man to beare Office in the Countrey where hee dwelt namelie a Great Man as if His Majestie should not permit a Noble-man inhabiting the North of Scotland to bee heritable Shyreffe or Lieuetennant there and respected there by that Meanes as a Prince Which kinde of doing as I vnderstand is observed thorow all Spaine where everie Iudge Ordinarie is a Stranger there where hee judgeth And oft-times as wee may reade into their Histories it hath beene acted by the Parliaments of France that two of one Familie should not bee of one Session and most sufficient Magistrates to haue beene remooved for that Respect and briefe there is no Question but Princes not onlie may change their Magistrates but doe often finde it verie good Policie to doe so being alwayes oblished to place into their Rowmes Men truelie sufficient for Knowledge and Sinceritie Plutarch a rare Man both for Morall and Statelie VVisdome saide against those who would establish perpetuall Magistrates Videmini aut non multi facere Magistratum aut non multos Magistratu dignos habere But I come to speake which appearinglie is not yet in Head of another Point of Reformation into our Seate of Iustice than the which there is nothing that would breede greater Solace to the whole Bodie of this Kingdome and would to GOD His Majestie should take it to Heart and bee truelie enformed of the Importance there-of And this is of the great numbers of Advocates who for their Commoditie Particular doe breed the longsomnesse of Processes that spoileth so manie good People and which manie good and great Kings haue endevoured to correct By this Abuse the Seate of Iustice is turned to bee a Sinke that draweth into it the greatest part of the Ritches of the Land and this aboue all

thinges doeth make so manie vnable to serue their Prince and Countrey These are the Men whom Cuiacius who knew them well did call Foecem vomitorium juris forensia pecora vulturesque togates the Dreg and Extrement of Lawes Confounders of Lawes Men who spue out their Braines in subtill Inventions to maske Lawes and make them of endlesse Dispute which is the reason why so manie of them doe possesse the Pallaces and Castels of their Clients This is an Abuse that the greatest of States haue beene by times forced to resent and goe about to reforme it The Ancients who were so contrarious to haue anie new sort of Imposts vpon their People they did for repressing of the noysome multitude of Advocates the wrackfull iniquitie of lingering Processes invent an Impost vpon everie Processe of Law even to the tenth part of the whole that Parties did pleade for as we reade in Festus Pompeius and Varro in his Bookes De Lingua Latina Diverse of the French Kinges namelie Lewis called Le Sainct who went into Africke against the Saracens hee did almost vtterlie extinguish this Trade of Advocation and did appoint as well Disputers as Hearers and Iudges of Processes who were not Mercenarie And hee him-selfe gaue ordinarie Audience to Causes in Pallaces and Gardens at certaine affixed Houres to that vse so did hee hate the Cavalli● as he did contemptuouslie call them of Advocates It was for manie Ages in France acted and observed for stopping of this Streame of Iniquitie and Spoile that commeth vnder Pretext and Name of Law that who did lose the Processe should pay the whole Charges and Expenses made by the Partie Gainer during the Pley This indeede seemeth to bee hard and rigorous and yet say these who stand for it that being compared with the other Extreame that is to say with this Insolence and Libertie of Advocates to make Lawes and Processes to bee endlesse it is the most easie and tollerable of the two and ten times more tollerable for why it should but restraine this foolish Frequencie of the Lawes and constraine Parties to more Friendlie Appointments of their Controversies at Home For Example if His Maiestie should make a Law by advice of His Parliament that all Processes vnder the availe of 10000 Marks should bee referred to so manie Noble-men or Barrons with so manie Church-men dwelling nearest vnto the Parties and that none should be heard to speake but the Partie him-selfe or his best informed Friends it were a great Reformation of this evill of Lawes And who doubteth but the Bodie of the People would gladlie embrace it for is there anie thing more ordinarie now than to see Men in the sute of a thousand Pounds spende as much perhaps before hee can haue it Againe wee reade of another Practise assayed in France for avoyding of this Inconvenient they had a kinde of Impost on their Subjects called Capitation Census where-by everie Man payed so much as for having libertie of a naturall Subject this they did abrogate as an Ignominious Exaction and in place there-of did erect an Impost vpon Lawyers Wryters and Superfluous Prodigalities as Parthian Furres Perfumes Fairding Cloath of Gold Indigo and such as these thinking that the most honourable and innocent Impost that could be layd vpon a People Wee reade againe into the lyfe of that famous Emanuel of Portugall of whom I spake before that hee was vvonderfullie given to this kinde of Reformation of the Evils and Abuses of Advocation Hee sent yearlie Visiters to all the Seats of Iustice with power to punish some vvith remoue all from their Places some vvith Mults of their Goods yea and with Death if the weightinesse of the matter of their Transgressions did merite so much He went about him-selfe to giue Personall Audiences Wee reade againe that in Rome vnder Pope Gregorie the tenth and Iohn the twentie one and Nicolaus the third it was intended and vrged by those Popes to eradicate and cast out that multitude of Advocates and Notars who as a noysome Vermine did gnaw the Bowels of their People but by reason of the brevitie of their lyues which as everie one knoweth doeth intercept manie good intended Policies there it tooke no Effect Againe in Switzerland Almanie and other Northerne Regions all Processes are decerned by deduction of Causes onelie by the Parties them-selues without anie Advocate at all In Venice their Supreame Seate of Civill Iustice called Quarantia consisting of 40 of the Nobilitie of Venice they doe sende out at ordinarie times of the Yeare a sort of Syndicators vvho goe to all the Iustice Seats through-out their Territories to censure their Proceedings and where they finde them to haue exceeded the short Dyet of Tyme appointed for decyding of Causes they doe remoue them and where they finde matter vvorthie of Appellation they bring it before the Quarartia where the Advocates get two severall Audiences everie of them to an Houre-Glasse and there is all Where-as heere our Advocates must haue not Houres nor Dayes nor Moneths nor Yeares but vvhole Ages if they please neither is there anie possibilitie of correcting this but by a Soveraigne and Absolute Misericord of His Majestie absolute I say even to take vpon himselfe● by his Regall Authoritie to breake downe that devowring Monster which they call the Order of their House consisting of so manie Steps and Degrees of Processe that it were better for a Meane Man to goe through the Fyre of Purgatorie than through these If His Majestie would weede foorth the most subtill Advocates and make them Iudges banish the most ignorant and employ to the Office of Advocation those of mid-ranke assigning vnto them so manie Dayes of Pleading without more As for Multiplication of Iudges it is rather profitable than perilous Quia multum aquae difficilius quam tantillum corrumpitur Et melius omnibus quam singulis creditur Et nemo omnes neminem unquam omnes fefellerunt Certaynlie without some Reformation of the Barre the Reformation of our Session for the vse of the Subjectes will bee without much perceiueable good If Reformation of things should bee by reducing of them to their first Institution doubtlesse the Foundation of our Session hath bene free from these multitudes of Advocates and as yet manie People doe liue vertuouslie and happilie where there be none permitted at all It were a notable Reformation if what Subiectes in Scotland doe employ this way to the mutuall over-throwe one of another it were saved and exacted for the service of the Common-wealth Alwayes to proceed for Reformation We reade in the French Histories that Lewis the eleventh finding manie Bayliries Shyreffships heritable annexed to the Houses and Successions of Great Men he did revoke and annull them making them not onlie changeable but Syndicable Of such wee haue great numbers in Scotland with verie great necessitie also of Reformation at least as is well knowne there beeing nothing more aliene