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.
honour shall conferre honour upon them why should this be said an honouring of the whore I looke upon humility as an Vsher of honour and hope that every Iudge shall at the least hold by Barony the place and office being full of state and Majestie for if the habit of a Iudge be vocall and strikes a terror into the wicked and incourages the welldoers as the Seargeants party coloured Robes Argue their abundance and variety of learning how much more a title of Lordship and why should not this be virgin honour I dare say no profession hath more hated the whore then this of the Law have they not in Aegiptian times made a head and opposed Antichristian Courts did not Mr. Greene of Lincolnes-Inne suffer Martiredome for it in Queene Maries daies And with what Christian Courage did our vvorthy and learned Brethren Mr. Sherfield and Mr. Pryn oppose the superstitious and Court vanities and the pride of the Bishops the latter resisting unto bloud never to be forgotten and standing valiantly for our Lawes by which wee enjoy all that wee have But Anonimous is angry that many have got such great estates 10. or 12000. li. per Annum the matter of fact I shall not dispute it Faelix est cujus prosperitas est calcar pietati argentum bonum est non unde sis bonus sed facias bonum great estates lawfully acquired doe not exclude any man from hapinesse only make the way more craggy for riches in our Saviours time were like Thornes and I think they are much of the same nature I confesse I doubt our great practisers finde one maine inconvenience that they have scarce time enough to keep grace alive in the Soule by prayer meditation and holy Conference Spirituall Zeale which is the seale of the Spirit being often quenched if not lost in the throng and Croud of overmuch temporal imployments which made them heretofore give advise upon the Lords day a bad Custom for shall we take Fees on that day when Manna was not to be gathered upon the Sabbath Every student of the Law hath great need to be a practiser of Divinity much wisdome being required to walke in high places As heavenly Doctor Sibbâ— would often say unto me study the Law but practise Divinity he that advises or studies before himselfe hath beene a Client at the Throne of Grace It is not study but a studious vanity Botero and Paruta two Italian Politicians to abate the edge of Avarice Non est studium sed studiosa vanitas Optima lex vetat peccatum finding how infinitely and immeasurably the Advocates and Marchants were addicted to filthy lucre propounded a Law That no man should get above 20000. l. by his profession or occupation which being acquired he should either desist and give way to others or continue it for the publike good whereby no man should ever bee guilty of Coveting more because hee might not keep it I confes it is a very sad consideration to see how most men abuse their Callings the end whâ—reof is to serve God by serving men he that imployes his talent only to get honours profits and pleasures profanes his calling living to another end then God hath appointed him T is true every man must labour in his calling to maintaine his Family but that is not the maine scope and end of our lives the true end of life is to doe service to God in serving men in our severall stations And for a recompence of this service God blesses mens honest travailes and allowes them to take moderately for their labours according to the judgment of godly men but I see it is a very hard thing to finde a man that labours in his cal ing in love to Gods glory and his brethrens good Therefore a Writ which we have in Law will lye against many men another day Contra formam â—â—llationis N. B. Accipe dum delet but I know no calling makes more for the happy state of the kingdome then the Law and I am confident no profession so generous as ours in matter of recompence the Minister wilbâ— at a certainty for his Tithes and the Physitian will take whilst it akes though I would intreat our honest Doctors to consider that for a poore sicke man to give 10. s. for a Visit may bee more grievous to him then the disease it selfe I honour many of them for their worth sweetnesse you cannot take what and where you list upon credit onely you come into our studies put your Case leave your writings come as often as you please and if you leave nothing wee scorne to aske you whereas beyond Sea you cannot peepe into an Advocates study but hee cryes give give and if the Cause goe for his Client then he hath his Palmary Fee Feodum Parlâ—â—â—rium in token of Victory which I could wish were in use with us for he that gaines the cause may better afford to give 40. s. then the looser 10. s. Concerning our pleadings This I say that truth is the vertue of pleading and certainety is the beauty and grace of pâ—eading and I know no difference betweene putting a Case and pleading it but as Logicke and Rhetoricke the samething mere largely expressed yet I must agree that our pleadings are something difficult and hazardous Palma pro pugnâ— and therefore may it be called a Case at Common Law for the casualty of the successe Casus a Casu but a cause in Chancery for the cleerenesse of the matter Civilians challenge us for not admitting doubâ—e pleas saying wee force a man to fight and tye one hand behinde him as if an Infant Seale an obligation by dures he cannot take advantage both of Infancy and dutes by reason of duplicity least the Jury should bee too much incumbred which if the most intelligent Free-holders were alwayes impanelled might peradventure satisfie that scruple when Knights and Esquiors and the most Intelligent Gentlemen were Jurors the Kingdome was happy in this manner of tryall I wish it were reduced to the primitive practise or that every County might elect substantiall Jurors who in reason ought to have a competent allowance for their paines to serve annually for all matters As in Alderman Langham and Collonell Waltons cases for though our Reverend Judges doe their best leading the Jury by the eye and not by the Noses giving them all possible light in doubtfull matters yet it is commonly reported that very strong Verdicts have past And for our Colours in Writts of Assize and trespasse and plurality of Essoines in reall actions which are well remedied by tryalls in Ejectments yet remaine difficult for the Client where entryes are not congeable And some complaine that our proceedings are not in our Mother tongue a politicke Law left to the wisdome of Parliament as the Lawes of France were in Latine untill the time of Francis the first who for a summe of money consâ—nted to have them written
calls to my remembrance how a Gentleman was Arrested for 1500. l. the day that he was to be maried without any coulorable cause of Action spitefully to hinder the match and was not able to put in baile but the partie being non-suit the Gentleman had as I remember but 7 s. 2 d. cost lost his monyes and indeed himselfe by it for I know it was the occasion of his utter undoing Answerable to this abuse is the Bill of Middlesex A man that is Canibally given may devoure the credit of five hundred men arresting them for five thousand a peece never declare and yet pay no costs though the partie Arrested had better have paid 500. l. that its commonly said I le bestow a Bill of Mid. upon such a man to stay him in Towne that I may have his company into the Country when I goe downe and when costs are paied I see they are so small that he that sues for a debt of 10. l. gaines but little by the bargaine besides his will whereas it stands with more proportion of reason that he that spends 10. l. in a just cause should have 20. l. allowed him for he that has but any ordinary imployment shall hinder himselfe at least 10. l. in neglecting his trade or profession but should full Costs be paied peradventure there should not be so many suits Commenced may some say though truly I think rather more and I am perswaded that if Causes were sooner ended that both Lawyers Atturneys and Solicitors might get more money then they doe for many have beene loath to begin suits because they were spun out to such a length and others would make a shift for money if there might bee a speedy hearing upon the merrits of the Cause which are not able to maintaine a circular proceeding these Sollicitors are strangers and unknowne to the Records of our Law but though it pleased a Lord Keeper to compare them to the Grashoppers of Aegypt that devoured the whole Land many of them being growne rich yet truly in right reason if they bee honest men as all of them are for any thing I know to the contrary I know nothing in right reason that can bee said against their profession I believe they are very usefull to the Client and assisting to the Councell who many times in long businesses sees much by their spectacles not having time to peruse depositions I conceive that in this time of Reformation the Scripture being the Touchstone of all humane actions It is an honour for gold to come to the touchstone Scriptura est Lapis lidius omnium humanarum actionum Bracton Britton Glanvill c. being rather ornaments then Authorities Lex est rerum divinarum humanarum scientia it would be an excellent service to the Kingdome for some grave judicious man who is Learned in our Lawes and well read in the holy Scriptures to set downe all the Law Cases in our bookes which are either properly and directly or collaterally and obliquely contrary or repugnant to the Law of God which must be done by reading all our legall authorities beginning at 1. Edward 3. And ending at the jurisdiction of Courts lately published and comparing humane reason whereof our Law is in most things the quintessence with the Divine reason of Law and Gospell for Law is the science of things humane and Divine wherein my meaning is that for every judgement in Law that a Divine can object nothing against it from any expresse text nor by necessary conclusions and deductions That is a good Law and may justly bee called the Law of God put in execution by men for it is not to be expected that there should be an expresse Text in Scripture for every maxime or Canon of Law but it is sufficient that there is nothing in Scripture that doth contradict it there being generall rules in Scripture applyable to every Kingdom and Society of men for their happy government direction and perpetuall guidance in the way to heaven which being done the difference observed to bee humbly presented to the most High Court of Parliament to doe therein what they in their sublime wisdome shall thinke to be most conducible to the publike good which is the white and Butt whereat they have levelled all the shafts of their indefatigable endeavours Which expressions I could not omit without manifest injustice towards our Parliament Worthies our most Noble Lords and the Honourable Commons who like the heavenly bodies have had little rest now for these 5. years therefore deserve much veneration This worke requires an intire man without other diversions Totum hominem mixtum hominem and a mixt man both a Divine and a Lawyer which though in an eminent and intense degree are peradventure hardly concurrent yet in a competent measure and more remisse degree there are of our profession that are learned in the Law of God as amongst the Jewes 2 Chro. 19.8 the Levites were Common Lawyers though the reason of that was because the Scriptures were the positive Lawes of the Jewes not that callings ought in a popular Kingdome to be combined but that Religion is a nâ—cessary study for a Lawyer because the Law of God is one principle ground of the Law of England Dr. student fro Sedes misericordiae best beseeming christians As for the High and Honourable Court of Chancell which is like a graine of Powder in the Eye of Anonineus it is of such singular advantage to the Kingdome that I hold it superfluous to say much about it it is the chiefe seate of mercy therefore to be advanced before all Courts of ordinary Justice I conceive equity is pure Civill Law either suppletive where Law is defective or Corrective where the Law is too rigid the constant practise being that where there is any remedy at Law the Bill is dismissed but what Causes are within the jurisdiction and cognisance of this Court is no easie matter to determine it is in its originall institution a magazine of right and Justice like the good Emperours Court from whose presence no man should depart sad wee read of many Chancellors before the Norman invasion but I do not find that ever the Kings Bench did reverse errors of Chancery but for that part which is not of record but to be releived in equity Anonimus mistakes like a Nonitiatâ— that knowes not our Law Antiquities it is very true that untill Common Lawyers were made Chancellors about Hen. 8. time this Court was not so full of businesse and afterwards Equitie began to be spun with such a fine thred that none but the eye of a Chancellor could discerne it as Bacon the Chrisostome of our Law in his time was wont to say Conscionable equitie being converted into politique equity for I have heard that when Clergy men were Chancellours they decreed matters according to that Evangelicall rule of doing to others as we would be don unto our selves that if any man had
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