Husbandman would give over his calling for feare he should looke back because it is written hee that putteth his hand to the Plough and looketh back is not fit for the Kingdome of Heaven And the Baker would use no Leaven because a little Leven leavens the whole lumpe Tantum noâ— bonus in Episcopatu whereunto Reverend Latimer answered let us have it so untill men be so grosly ignorant and no longer if it should please the wisdome of Parliament to ordain that if a case be pleaded sufficiently for matâ—er substance that the right is most conspicious evident to the judgment of the Court though there bee some Clericall error or misprision yet the partie shall have the fruit and benefit of his suit or if there should be a law made that every defendant in all actions may plead the general issuâ— and give the speciall matter in evidence it would be a great ease and benefit for the Subject and why should not every man have as much ease in pleading his Cause as Officers doing any thing concerning their Office and as the Subject in informations of intrusion who have that liberty by Statutes for since Justice is impartiall 21. Iac. 12. 14. it being the honour of our Law that Iustice is to bee had against the King why should not every man have as much freedom in the meanes and way tending to Justice as a any man whatsoever this I must say concerning defective pleadings qui decrevis finem decâ— media that in all reason the innocent Client ought not to suffer the losse should rather lye upon the mistaker bee it Councell Atorney or Clerke who makes an implicte contract with the Kingdome to have skill in his profession and the Fee is a consideration of the Assumpsit as the Law in Sicilye is where there are poisonous wells if the Cattell drinke there the Shepherds that are hired to looke to them must pay for them because they die through their negligence but if any error happen by the Clients misinformation Bergieri hee must beare his owne burthen I know it will be said in the Case of theft that Clergy is allowed for the the first offence which I thinke deserves consideration whether it be not some kinde of incouragement for men to transgresse in that kinde but certainely the matter of Clergy is purely popish Why not some other severe punishment though not mortall for in reason it is a greater offence for a Scholler that knowes his duty and the danger of the Law to offend then an illiterate man that knowes nothing in comparison as in the Leviticall Law a Bullocke was required to make satisfaction for the Priests sinne which a Kid or a paire of Pigeons would expiate for an ignorant mans transgression â—evit 4.3 All cruelty whatsoever amongst professed Christians is diametrically opposite to the Gospell of grace such as domineering and ruling over the bodyes of our Brethren as wee say proverbially make dice of his bones the meaning whereof is that if a Prisoner die in Execution after the Crowner has viewed his body the Creditor hath Dice delivered him at the Crowne Office as being all that he is likely to have it cannot be presumed that the Keeper desires the death of the prisoner for he gaines by his life does not therefore the Law presume malice in the creditor or else why is the crowner more troubled then for the death of any other man And yet if any in whose custody they are be so mercifull and tenderhearted as to connive a little at their going abroad the Creditor complaines against him such Enemies are men not only to their spirituall but temporall estates to which purpose I doubt not but the humble Petition and printed Remonstrance of the many distressed prisoners for debt will bee taken into consideration by our ever to be honoured worthies and sages in Parliament who either have estates to satisfie which is hard to imagine that any man should be so desperate shameles to suffer such a lingering death by perpetuall indurance if possibly he could help it nor would the Creditor irrevocably by electing the body discharge the estate if hee knew of any though it is to be wished that creditors were inabled to fel the estate strictly to examine the debtor all suspected trustees upon Oath for the discovery thereof who in Case of forswearing ought to be severely punished which course might cure that panique feare of concealing estates or else they are not able to pay so inforced to an impossibility the party punished yet the debt still increasing like that mountaine of Brimstone neare Naples ever burning never consuming a very emblem of Gehenna Suefaterra which I the rather presume to mention because I know it is the foulest blot in the tables of our Law and of all objections which English Gentlemen who travaile to inrich their mindes meet with the hardest to be answered One thing I shall humbly propound to juditious considerations whether it be not as an image in the bed of David to enter an action in the inferiour Court and when the partie expects a tryall 1. Sam. 19.13 then to have it removed and drawne into another Court why should not the partie as well sweare the cause of action to arise within the liberty aswell as the defendant were his discharge in an Action of debt brought upon a Bond in London Ad aliud examen the defendant may not have the liberty to plead a release or payment in Yorkeshire according to H. the 4. and the statute of forraigne vouchers extending not to it being a personall Action I see no reason but whatsoever suit is legally Commenced in London or else where that it should be removed for no cause but meerly for delay As in a Court of Pipowders the plaintiffe must sweare that the contract was made in the time and jurisdiction of the fare is such a practise that I am confident admits no paralell I know writs of error and appeales from one Court to another upon allegations of error and precipitance in judgement are usuall but whether appeales to the Judges delegates in ordinary matter testamentary when a difinitive sentence has bin pronounced by a most learned experienced Judge are not more common then commendable I make a quere of it and wish that the malice of Clients might be more obviated then it has bin but that a man should enter his Action and proceed in it and bee made believe that he shall have speedy justice and when the Jury is summoned Councell Feed and all charges disbursed but for entring the Judgement then to draw this businesse away at the pleasure of him that owes the money cannot hold the weight of one graine in the ballance of reason if inferiour Judges are not fit to bee trusted with matters above five pounds or such inconsiderable sums let the businesse never be brought before them and this
over reached another in barganing by getting that for 50. l. which was worth 100. l. it being against the rule of Charity or if a man had lost any considerable part of his estate at play there being no meritorious consideration for it or if a man had contracted for a yeare to give 20. l. Rent for a House Major est bestilitas Dei quam hominis wherein he could not inhabit by reason of the Pestilence which is a divine hostility like to a time of Warre or if I.S. take a Lease for a yeare at 20. l. Rent and the ground prove barren so that he cannot by all his labour make 10. l. of it in many such like Cases the Chancery afforded Convenable reliefe according to the words of the Statute no man is to depart from the Chancery without remedy for the Chancellors juditial power is absolute the special foundation erection wherof is by Statute which Cases compared with the present Nemo reted a Cantellaria et sine remedio I humbly conceive with submission to better judgments that the weight of the objection ratherlies in the other ballance of defect that for politique considerations many matters are dismissed without reliefe 9. E. 4. 15. which should in conscience have bin relieved as in the former instances if a soole sell Land worth 1000. l. to I. S. for 300. l. if the Chancery should redresse this would not this distroy Contracts I conceive not for though it is not possible to set an exact mathematicall price upon every thing yet no man ought to buy any thing for lesse then halfe the worth of it hath not I. S. an erroneous Conscience in that particular why then should it not be rectified to make him give above 500. l. or to Relinquish the bargaine I confesse I cannot see any reason why foolish contracts specially when an Ideot shall sell a great estate for a song should not be rectified in equity though the contract cannot bee nullified in Law by reason of a maxime that no man shal stultifie himselfe for all men that are 21. are not able to contract with old Vsurers but how senseles is it that a youth at 14. It were to bee wisht that men were not of age with us till 25 many men being undone betweene 21. and 25. by suretiship and foolish bargaines as the Law is in all other places save Normandy and a girle at 12. without their Parents consent shall have power to dispose of themselves in marriage which of all the turnings and windings of this life is the most important and yet cannot before 21. give away a point or a row of pinns it would be an excellent politique Law that none should dispose of themselves in that kind till their full age without consent and approbation of their nearest friends the Civilian gives no man power to alienate his estate untill he be 25. and then if it be not sold for halfe the worth the bargaine is nullified so in the other case of play it is objected that there was a hazard and the winner might aswell have lost I Answer that 's but a Vtopian consideration a possibility which never comes into Act but the Law of Conscience requires a reall and valuable consideration Vaâ—a potentia In the other case it will be said that Contracts must be inviolably observed I answer that in these civill matters men must be constrained to deale like Christians and if Anonimus meane that in Case a man be drawne into a judgment of 100. In the late case of Neriah the Iew. Nobilis vir Iohanes Seldenius inter Scholasticos quos audiâ—i per tâ—tam Europam Anglorum celeberimus Premiare ultra condignum punire citra l. where 10. is not due that hee would not have the Chancery to releife him and to rectifie the Plaintiffes erroneous conscience it argues that hee hath no Conscience or a Cauterized one and Hee must be redargued for a little saucinesse that calls that boldnesse which deserves the name of the goodnesse of Chancery abundantly manifested in doing execution upon a Judgment of 7. or 800. l. given for Tobacco not worth 30. l. I know the Chancery is to supply the Law and not to subvert it and as that worthy Esquier one of the fairest flowers in the Garland of our profession for excellent learning in his learned manuscript concerning the Chancery writes that in this court conscience ought so to be regarded that the law ought not to be neglected yet as in Criminall Causes every Justice when the matter is doubtfull is then most honourably seated when hee gives mercy the upper hand so in equitable matters when the Cause is ambiguous that Law and Equity cannot meet in some third in a moderation of extremity let Conscience take place as most worthy As for that instance of the Amicable case it is a mistake Casus pro amicâ— for if the demandant or plaintiffe have not cleere cause of suite the libell and proceedings are dismissed for in the beginning of the suit the Law favours the plaintifes not with personall but legall favours as being presumed that the man has wrong done him or else he would not begin a suit 9. H. 7. in the middle of the suite the Law favours the defendant giving him time to make his legall defence Non liquet Casus pinguis like our worthy Sergeants Case Bertoldus suspendatur quacunque aâ—bore placuerit nulla arbor mihi placet Lego totum statum meum Jesuistis filio meo quicquid eis placuerit In dubijs quod minimum est sequimur at â—ix Fiat expositio in favorem legatarij at Tholose Judicio dei relinquitur at Paris Secundum scientiam secundum conscientiam secundum justitiam In the end it favours neither but in things doubt full possessions are never disturbed as presuming every man honest till the contrary he proved But this puts me in minde of a recreation which they have upon some festivities or after some solemn arguments to recreate the spirits of the Judges and Advocates which they call a Fat Case as that of Bertoldus the French Kings Jester that being sentenced to dye obtained favour to be hanged on what Tree he pleased and then said no tree pleases me And that of the Duke of Ossuna Vice Roy of Naples the cunning Jesuites had inveigled a rich man to leave his estate of 10000 l. to them and his sonne to their tuition the words were I bequeath my whole estate to the Jesuites and to my sonne what they please the Duke asked them what they would allow the sonne they answered 1000. l. then saies the Duke the sonne shall have 9000 l. because so much pleases you and you 1000 l. and that Parisiens and to my sonnes I give achascun deux cens liures this was first resolved to be but 100. linres bâ—cause in doubtful things the least is taken next it was resolved 200. Thirdly it was left doubtfull
the Master of a feast shall observe one guest fasting when all the rest are full even exhilerated whom do you thinke hee had rather should eat the next bit I know some that move not above 3. or 4. times in a yeare which a man would thinke should please the Court for their variety like Summer fruits if such a one crowd the last day of a terme how unequall is it that he should not be so heard that he may not endanger the losse of a motion at another Bar if he can get it oh saies the loving Father your Brother is fasting you have had a double portion marke what I say my worthy Masters and good Brethren of the Gown the excessive gaine of some Lawyers and others gaining nothing in comparison if not timely remedied will be the destruction of our profession for men will give over studying the Law when they see the practise is ingrossed for no wise man will venture his money at a Lottery because there are such few gainers But are all Barristers able to practise I hope the objector will be well advised before he question the judgment of the learned Benchers of every house who call and approve them formerly the Judges nominated the Sergeants as Fortescue observes by the same proportion of reason the Tresâ—erudite Seniors will not in their Magistrall determinations call any to the Barre but such as have competent though not eminent abilities I am sure in our House they are for the most part very exact in the exploration of mens abilities and performance of their exercises but the poore Client waites and prayes and is exhausted the Officers and attendants of some Courts naturally desire to keepe their proceedings in a mistery and in a becance that if a stranger come to make a motion upon the right and merits of the Cause they say oh Sir you mistake the course of the Court you are out you must begin againe something did issue irregularly the Corne is not ripe for the Sickle that as it was said in the Court of Wards before these noble and religious Masters and the learned Attorneys time when Counsell pressed that the Law was for their Client it was answered but equity was against him or if not equity then the prerogative must helpe it or if not that then the course of the Court makes a Law and yet I have heard at the same Barre that if the Law and the course of the Court come in competition the Law must bee preferred as most worthy Are not the sinewes Leviathan perplexed whereas if right reason I meane legall reason such as we finde in our Books might be Iudge in all matters then every man that had read the Law and studied equity might in some competent measure be able to advise his Client to take the safest way to speedy Iustice how many demurres do wee daily meet withall certainly it were to bee wished that every Court were enabled to do right and justice and not to constraine a man to begin againe when he has run hard and got to the end of one marke and goale to enter new lists begin a new combate I speake it to my great greife that as the Civilians in Causes Matrimonial spend much time if there be an oath and in Wills if I die or when I die I may take or I will take an eloquent discourse to little purpose so many times wee have much heaving and shoving about removing a Feather whether such a thing duly issued or was rightly entred or such a punctuality observed or the course was so in such a mans time now it is otherwise truly much course stuffe nothing but chaffe wherein the pure Corne of Justice is many times smothered or to delay a poore man that has not money to follow his Cause what is it but to deny him if I have but 4. l. 19. s. 11. d. to give for a Horse whose price is 5. l. what am I the nearer if the Plaintiffe have right upon the merrits of the cause to the thing in demand why is he not made Master of it if not why is not his clamorous mouth stopt I confesse the Spiders Web is an artificiall curiosity and wit is a beautifull creature the use whereof is to make doubtfull cases plaine not plaine cases doubtfull to flourish over a bad matter is as dangerous as to violate a Virgin vitious the Ant is wise for it selfe but ill for the Garden I could be content to heare ingenious exceptions taken to pleadings subtill distinctions insisted in upon in Writs The Civilians have their Libell Answer duplication triplication quadruplication Courts Declarations Pleas in Barre Relpications Rejoynders Surrejoynders Rebutters Surrebutters and so to the day of Judgment if this tryall of wit might not be chargable to the Client but when a poore man must pay the reconing for every man to call for more Wine to inflame the shot I confesse my heart riseth against it and wish from my soule that 10000. formalities were rather dispensed with then that a poore man should be kept from his right one minute for shall we not preferre the substance before the shadow the Corne before the Chaffe the Kernell before the shell the Jewell to the Box such and no other are the most exact formalities and ornaments of Law in respect of right and Justice tell not mee what is the course of the Common Law or Civill Law or such a Court but what does right reason require this is the Case a poore man has 100. l. owing him he sues in Chancery is dismist to Law recovers in the Common-pleas Error is brought in the Kings Bench a fault is discovered it may be some sillabicall mistake in the entring of the judgment whether this poore soule ought not to have his money without further suit and so in all cases when the right shall juditially appeare to the Court let every rationall man determine away with all bugbeare objections of ignorance or confusion and carnall reasonings le ts have Scripture Lawes and summary quick proceedings and after Naseby fight Quasi 2d Angliae nativitas le ts never distrust God for any thing And truly if hereafter the Kingdome may enjoy so great a benefit I assure them it is a sufficient and valuable recompence for all their disbursments and poore soules if they desire no more they deserve no lesse But then comes in a Hierculean objection that it is better suffer a mischeife then an inconvenience and what that is in plaine English I shall spend my thoughts upon it when I complaine many times that many honest Causes are lost for want of some formality in pleading or other miscariage I am answered that old formes must be observed and better one be undone then many now truly if the meaning be that it is better one Offendor suffer then a unity be indangered I am clearely of the same opinion or if the meaning bee as the Philosophers was who first said
repugnant to Gods command of not pittying the poor in Judgement because it is after Judgement in the nature of an equitable clemency to mitigate the severity of an introductive Lawe made and continued at the best for the hardnesse of mens hearts for by the Common Law it is not so Indeed the malignity of writs of Error consisted in this that rich men will scarce ever obey the Law when Judges have ordered reason P. 39. l 31. If there be any such Counsellors that sell their silence as well as their words take money not to be against them as the Indians are said to present the dâ—vil least he should hurt them Ne noâ—â—at that promise to be at 3 Bars at the same time ubiquitary Practisers as I hope there be none that purposely do soe let them think of the day of Judgement quando Iudicia erunt reversa post Iudicium Luther which will be a righteous Declaration without the least Error and tremble for fear least another day they should run about to the Courts of Radamanthus Eacus and Minos I cannot omit a story told us going to see the finest prison in the World at Pavia at the crossing of the Po Padus every mans horse leapt boldly into the Barke but one that would not by any meanes enter till at length a passenger whispered in the horses eares and in he came with courage the Ferry-man thinking it might stand him in great stead to know the words prevailed with the passenger to tell him which were these Sicome lanima de Cattivo Avocato va al casa del diavolo cosi va tu sopra questa barca As the Soule of a wicked Lawyer that cozens his Clients goeth to the house of the devill so leape thou into this Boat P. 43. l. 26. Yet I confesse there may be somtimes good use made of Law-subtilties and niceties to find out a starting hole for the poore and oppressed as the Phisicians make good use of poyson or sometimes to pay an old oppressor in his own coyne I confes I doe not hold a it Christian proverbe to deceive the deceiver because we must ever in bargaining doe good against evill yet peradventure a man that hath bin cozened without legall remedy may by some after subtilty make himselfe a saver and that justly the Spaniard saies to cuckold the Adulterer is but to get a Fox or wolfe into a trap however that be not righteous yet many times I observe the finger of God in the mistake of a word or syllable to helpe the oppressed P. 48. l. 27. For truly to be no more dextrous in administrations of justice now then formerly is for a man to be no wiser at 60. then at 30. for it is not in Courts as in our bodies that men are at their strength at 30. and then a staye and after a declination but a fountaine continually sending forth fresh and sweet waters of justice P. 54. l. 1. Would you have finer cloth then is made of English wooll no blessed be God there are enough that are Infra causam meriti But is there any way alwayes to be sure to have good Judges I know one and that 's infallible that the Lawyers be all of them good men for they are heires to judiciall places P. 55. l. 29. For truly to put a young Gentleman to study the Lawe without direction is to send a Bark without a steeres-man saile or anchor into an angry Sea Mr. Littleton being undoubtedly the most crabbed Author to begin with of any Science in the world plaine ground is ever best for young excercisers P. 50. l. 4. Truly It did me good to heare in a Kentish Case the last Terme where the question was upon a tryall about passing an inheritance without the word heires now the reverend Judges declared the Lawe according to the intent of the parties in purusance of the consideration which is the meritorious cause of every Contract Page 69. Tacitus said of usury quod in Civitate nostra semper vetabitur semper retinebitur obduritiem cordis Page 75. l. 20. After Tyrant read but I am utterly against their practising before the right honourable Lords for though the Judicatories and priviledges be distinct to many purposes yet as to the Grand Concernments of state it is rightly stiled the High Court not Courts of Parliaments which being the two eyes of the Body politique can no more look severall wayes then a man can with one eye looke up and downe with the other and then if any matter which hath bin dijudicaced in one of the honourabâ—e Houses should humbly be â—resented to the other how can it be avoyded but that the same person would be both Judge and Counsell which I conceive to bee a stronger case then my Lo. Dyers that a man cannot be Judge of the Kings Bench and Common pleas for so he might reverse his owne Judgements and that was the reason that if a Parson had bin made a Bishop it had bin an avoydance by reason of subordination certainly for a man to bee Judge in one Court and a practiser in another is a great Error in politiques and I am sure not permitted in any other Christian Kingdome Page 77. l. 12. Good Countrymen bee for ever exceeding carefull in all your Elections let no subtill crafty Malignant for feare or favour procure himselfe to be Elected to disturbe our blessed Counsells If a pure Virgin should cry out and crave your helpe would you not sly to her assistance truly Justice is an immaculate Virgin and craves your helpe to send Religious just and sweet spirited men to keepe the fountaine pure or else no marvaile if the streames of Justice be polluted Page 38. For he makes more motions in a Tearme then another in a yeare as the famous Florentin Sculptor Donatello being desired by the Consuls to make a statue askt 50. l. for it they thinking it too much imployed an ordinary artificer who askt 100. l. for it they being angry referred the price to Donatello who awarded him 80. l. saying I could have made it in a Moneth but the other was three Moneths about it Page 6. And so I have seene a Petion in the behalfe of the poore Cloth-workers full of sad complaints If those many poore soules might have Justice at a cheape rate and speedily against the transgressors of many excellent statuts how could it revive their drooping spirits but let all honest hearts chere up I doubt not but we shall have speedy Iustice the wages of the servant recovered before morning Libertie written upon every Mans doore Christian Lawes in all points establishd free trade for the glory of the Nations and all Monopolies banisht for ever Lastly But the ancient Maximes of the Common Law are in many cases manifestly deluded for contrary to the Statute of 4. H. 4. after Judgements in Ejectments new actions are brought verdit against verdit Judgement against Judgement without Attaint or Error as in the case of the Kentish custome of devising to use the word of the Lord Chancellor ELLESMEre suits for one and the same cause are caried from Court to Court as power and might of the parties or favour and affection of the Judge oâ— corruption of the Officers or subordination and perjurie of witnesses or such like shiâ—ts and trickes as can best accommodate the businesse but blessed bee God never such worthy Judges as now the Lord be with them in all their Jugdements and increase the numbâ—r of Religious and faithfull Judges for this Kingdomes happinesse Because there is some oppinion printed that the Equity or Iniquity of a Jugdement ought not to be questioned in Chancery I think fit to subjoyne the Lord Egertons words some that take pleasure ludere in verbis dormitare in sensibus and so dispute de apicibus juris aequi boni ratione praetermissa and professe learning pueritia literali non Intelligentia spirituali have prest and strained the statute of 4. H. 4.23 not onâ—y against the Popes usurped Authority but the Chancery thereby opposing the King against himselfe who is equally present in all his Courts and what need had the Lords and Commons to ingage themselves to stand with â—he Crowne against the Chancery oh that his Majesty would yet at the length forsaking aâ—l destructive ways ingage himselfe with his Noble Lords and Commons against all Antichristian power sinne and profanenesse grounding their conceit upon the words or else where which was at Anignon where the Pope resided aswell as at Rome and so I hope I have fully satisfied my Antagonist Antinomist to whom I wish well in Christ Jesus FINIS ERRATA PAge 10. line 5. for heaâ—ing a read heavy p. 15. l. 30. for his r. the others p 16. r. precipitous p. 19. r. Lovies case 20. r. murderer p. 23. l. 23. r. sweare his discharge Sulfa terra p. 26. r. Chancery p. 43. l. 8. r. in abeiance p. 44. l. 17. r. Counts p. 45. r. secunda 48. Vergerus falls p. 49. r. nubeculam p. 57. r Hosterie 83. of land is happily l. 29. r. this 3 r. r. the p. 84. l. 3. r. so ls 27. r. that should be lâ—ke 35. r. luminary 36. r. sublimate the lesser p. 87. for tryall r. legall p. 88. l. 4. r. these sad distractions l. 12. r. these p. 71. for creditors r. debtors and read 11. Eliz. Cartwrights case Camb.