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
he shall get nothing by the Cause he will be studious for his owne ease to doe speedy Justice for why then should it cumber the Court longer then needs must and that is the reason that many States maintaine Lawyers at the publick Charge that so expecting nothing from the Clyent they may steere their advise the speediest way to the haven of Iustice But whatever complaint may be made of us truely for the generality we doe but taste of the broth of commodity the Clerkes and great Officers of Courts put their ladles to the bottome of the Pot and are even drowned in the sweet liquor of potable gold 2 This honourable Calling and maintenance is in the nature of baile Acutos honoris stimulos Ingenius malvezzi as a cautionary assurance to the Kingdome to answer for their judiciall administrations and I conceive Honour obliges and engages more then profit yet not so as to superabound in wealth and power least they should command as Lords and not as fathers 3 Judges should therefore be great that they may dare to doe Justice as Gascoigne committed Hen. the 5. Hollinshed upon a Bishops complaint Hen. 4. rejoyced that he had a Iudge durst doe Iustice upon the Prince and a Son that would be so obedient I shall tell you of a gallant peece of Iustice to recompence that of Piso In the great Warres betweene Charles the fifth and Francis the first one Raynucio was imprisoned at Millan for betraying a Fort to the French his wife who for beauty was called the Nose-gay of the Parish petitioned the Governour for her Husbands inlargement the Governour our being so enamoured that there was little hopes of liberty had there been no more in it but that he might behold the Lady who daily attended with Petitions being able to conceale the fire no longer told her that his life was in her hands and he was as much her Prisoner as her Husband was his and that she must yeeld to his desire or be an undone widow the vertuous soule covered her cheekes with the colour of Roses and desired to speake with her Husband whom she made acquainted with it telling him that if her life would save his she would gladly lose it but my honour being required you must prepare for death he commended her magnanimity and how sad their parting was you may easier conceive then I can expresse the houre being appointed for his execution he considered that life was sweet and skin aâ—ter skin one thing after another what would not he doe to preserve a little momentary breath sends for his deare Consort Communis error non facit jus True honour consists in a Christian sufferance of the greatest misery rather then to commit the least sinne and cries to her as if he had beene her childe to yeeld to the Governour and to win her consent saies First that honour consists but in the opinion of the world and that a sinne wholly concealed is halfe pardoned as the Priests use to say Secondly That Spaniards are most faithfull in keeping promise and no doubt he would sweare never to reveale it Thirdly That he would be the death of him as by the Law of Spaine he might for any man may kill him that lyes with his wife the provocation being so great In Italy he must kill his wife as well as the Adulterer or else he dyes for it as being presumed that he did it not in the way of Iustice but revenge the poore soule yeelds for as Job saies if this be the condition of our temporall being The least fall from grace is a fall from Pauls that we never continue in the same condition much more are our spirits mutable as they are more subtill not that I speake this in the least title to justifie her for should I goe about to excuse it it might be a greater sinne in me then the offence was in her as for a Lawyer wittingly to Patronize an unjust Cause is worse in him then in the Clyent Garcias had her in his power as a bird insnared and being weary dismisses her with a promise to set her Husband at liberty but the Spaniard considering that a man or womans honour is like a great Fort take that and you command all the rest tells the Prisoner that he must pay ten thousand Crownes redemption she with much difficulty satisfies that demand likewise and was promised that her Husband should be sent home to her house the next day but the persidious Governour bethinking himselfe what danger he might incur from the Emperour and fearing that the man might be revenged on him for dead men doe not bite therefore in some places of Italy you may have a man killed for five shillings but not cudgelled under twenty sent a Priest to him to prepare himselfe for death and caused his body divided from his head to be sent home the next day in performance of his promise now for the poore soule to see her selfe deprived of Husband Honour and goods altogether her griefe was above expression and the torment the greater that if it were discovered she would be abhorred and if concealed it could not be cured at last with extreame shame she made it knowne to a friend both able and faithfull Hercules Estius Now the Duke of Ferrara being Generall for the Emperour Aemelia presents her requests for Iustice against Garcias who was convented at Ferrara and thinking that as the Adultery of Mars and Venus served onely for sport in the Court of the Heathen Gods thought that the Generall would but laugh at the conceit or at the worst would remand him to his Command at Milan perswading himselfe that in such a case his Souldiers would not let him suffer he confessed the fact said it was so pleasing a sinne that it was impossible he should ever repent of it and upon the matter told the Generall that the Traitor was deservedly executed and therefore he was not troubled at what might be the event of it Saies the Duke Why am I made great but that I should doe Justice upon the greatest offender Garcias said the Duke you must restore to this Lady her ravisht honour Sir saies he That is impossible and what 's past helpe shall be past greife But you may Marry her saies the Duke for you loved her once and you must love her for ever or lose your life and that you shall doe this day I loved her indeed saies Garcias as Herod loved Mariamma or as the Hunter loves the Venison to make sport or to feed upon it but I am not prepared for death therefore I chuse rather to Marry her Aemilia upon her knees intreates that she may rather dye then Marry him whom she so much abhorred but the Duke having whispered with her she submitted to his good pleasure The same Priest joyned them together by vertue whereof she was intitled to his Estate and of a forced bargaine Garcias hoped to make the best
THE VINDICATION OF The Law So far forth as Scripture and right Reason may be Iudge and speedy Iustice which exalts a Nation may be advanced VVherein is declared what manner of persons Christian Magistrates Iudges and Lawyers ought to be By Iohn Cooke of Graies Inne now chief Justice of the Province of Munster 1652. LONDON Printed for Matthew Walbancke and are to be sold at his shop at Graies Inne Gate 1652. The Vindication of the professors and profession of the Law so farre forth as Scripture and right reason may be Iudge and speedy Justice which exalts a Nation may be advanced EVery Anonimous impression though nothing but truth should be published specially in a divided Kingdome where truth usually gets as many Enemies as Freinds is in my opinion a breach of the Peace as tending directly to make divisions and breed quarrells by exposing every man to unjust censures for that Child which has no legall Father is every mans Child in vulgar reputation Qui non habet patrem populus est illi pâ—tor then differences in Judgment unhappily through the pride of mans nature generate disaffections my selfe having beene brow-beaten as conceived to have a hand in some impressions whereas I had not a finger in any print since these commonly called unhappy times and I confesse in many respects so they are though for my owne particular I looke upon them as the most glorious times that ever were since the Apostles because I doubt not but Antichrist and all the Enemies of Jesus Christ shall bee utterly destroyed and He set upon the Throne which God grant Hee that thinkes he writes a truth why should hee be ashamed to owne it let him in the name of God stand boldly to it for great is tâ—e truth both divine and morall and it shall prevaile every Christian is bound to free that which makes him Free And when the issue is legitimate no man denyes to be called Father but every nameles Pamphlet b 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 condemnes it selfe and makes both the Author and Printer guilty of a conspiracie against the Kingdome for which I conceive they may be indited and bound to their good behaviour which if it be crosse grained to his opinion who is author of a treatise concerning the liberty of the Presse who is certainely a most ingenious rational Gent. at least we agree in the root as Brethren The motive inducing mee hereunto is that I finde a generall aspersion cast upon our profession which wee ought in honour to vindicate for the difference will stand thus when a particular person is abused many times it may bee the most Christian prudence to neglect a Calumny and let it die as the rule is c Multa non â—onfirmantur tacendo Sed despiciuntur non â—efellendo many things are rather despised then confirmed by Silence But when Courts professâ—ons or trades are traduced then in such a case an Answer must be given as obliquely concerning the whole Kingdome it reflecting upon the wisdome of the Supreame power to suffer generall abuses and Silence may be interpreted to be a consent according to the common rule d Qui tacet conâ—entire vidâ—tur Silence gives consent which how ever learned Dodridg qualifies with this restriction when it is for the benefit of him that is silent e Qâ—ando loquitur pro ejus Commado tacens habetur pro â—onsentiente in materia honorabili â—no vitupe rabili As that of the Jewes to our Saviour f ohn 8.48 Say we not well that thou art a Samaritan and hast a Devill Iesus Answered and said I have no Dâ—vill implying himselfe to be the good Samaritan mentioned by St. g Luke 10.33 Luke Yet upon the reason of our Law if a man shall bee called Rogue or Thiefe to his face and hold his peace this may be some evidence against him if he be afterwards questioned affronted in the same kinde therefore this being sold it Westminster Hall so as notice must needs be taken of it And considering that many of my worthy Brethren are in the Country and many otherwise imployed And when many are concerned in a matter it is usually put off fâ—om one to another and nothing don in it I resolved therefore to say something against it something for it something about it something besides it The Advertiser begines with a Roman spirit and I must embrace truth wheresoever I meete it The Roman Barons indeed being ambitious of the Senate and chiefest Offices which were conferred by popular election knowing it to bee the onely way to ingratiate themselves with the people to get many suffrages studied the Law and Physicke and pleaded causes without Fee studying as the Cardinal did with a Net till hee had caught the Fish or as it were fishing with a Gudgin to catch a Pike and so they had (h) Which occasioned that mistake in some Historians that there were no Physitians in Room for 500 yeares Physitians without Fee As poore men with us are in all Courts admitted both to sue and defend Gratis in forma pauperis which might bee a sufficient answer to that Roman instance But why should the taking of Fees be counted dishonourable which is not a (i) Non mercenarium sed honorarium mercenary wages but an honorary requitall which may be taken but not required though I believe many pay a very vaâ—uable and meritorious consideration for what they receave so many (k) Per ambulatione facienda walkes taken to Westminster and such attendances there that a Porter would scarce take the paines for 5 s. that if some have too much others have too little I confesse it were a glorious thing rather to be (l) Optandum non expectandum wished then as yet to bee hoped for that Ministers Coâ—nsellors and Physitians being of such noble professions would exact nothing if they had otherwise sufficient (m) Ne videantur id vendere quod estimari nequeat least they should seeme to sell that which is invaluable every man ought to give his Clyent (n) Bonum fidele Consilium good and faithfull Councell which is inestimable for though the paines may yet the fidelity cannot be required I have knowne a word put in by an eminent practiser advantage his Client 1000 l. in the way of truth yet in that case he must be content with a moderate Fee and the further requitall must be in other Coine by a thankfull recognition or by helping him to other Clients He that lends me a Horse which proves so swift of foote that I escape from the enemy though I pay the horse hire I am still engaged to the owner if by Gods blessing upon the Physitians meanes a man recover of a dangerous sicknesse health is a Jewell and invaluable and if not the gift of the Holy Ghost much lesse can the spirit it selfe be purchased But yet some incouragement there must be as
pleaded and all the proceedings in their owne language and that the subject should choose his owne Counsell till which none had Advocates but by the Kings leave h Per conge du Roy. Iurisconsultus potius respicit scripta patronis verba ad barram jurisprudens rem Aucupes syllabarum togatos vultures qui canina facundia callide exercent causas qui carebat sillaba perdid t patrimonium As one man cannot have his right because the judgment is entred concessum consideratum est another because consideratum or some other word is not rightly spelled Isay 29 21. Obvnum punctum perdit Martinus asellum There were in Rome Some Jurisconsulti inferiour to the Patron Advocates which only studied a Cabalasticall unknowne formulary of words in notes and Cifers which would picke a quarrell in every pleading brought unto them Cicero called them hunters for sillables worse than those that will make a man an Offender for a word that would make a man loose his inheritance for want of a So or a thereof as Martin that laid his Asse was white lost the wager because his Advocate found one blacke haire in it which being found brambes and enemies to State policy were stubd up and removed yet not long since Amedens the good Duke of Savoy hearing complaints made against an Advocate that was a great rubbe in the Alley of Justice sent for him and told him that he owed his Baker 1000. Crownes but was not willing to pay him till needs must asking him how long he could delay it before Execution should issue against the Dukes estate the Advocate told him that he could certainly delay him at the least three yeares And if his Councell were not extraordinary subtill he should get nothing at the last what saies the Duke is this sufferable doe not I acknowledge the debt to be just whereupon he caused him how justly I determine not to be executed and excoriated but the streame of our Law runs in a purer Channell It hath beene the great wisdome of severall Parliaments to remedy defects in pleadings and I doubt not but in its due time it wil be taken into mature consideration to ripen causes for speedy tryall it being quicke Justice cures the lingring comsumption of a State I doubt not but England shall flourish with Religion and Justice these two noble Virgins shall bee set upon the Throne hand in hand in perpetuall Concord I cannot but observe the neerenesse betweene Westminster-Hall and the Abbey and this godly exercise every morning a Sermon calculated directly for Lawyers and Clients speakes out that Piety and Justice Maugre all Antichristan opposition shall be married together with an indissoluble conjunction but precipitions and rash justice must carefully bee avoyded as a dangerous pest as that of Pison Sen de ira lib. 1. cap 16. who condemned one for a supposed murder of I. G. and his necke being on the blocke the Conspirator that had plotted it being there disguised said hold I am the man who was supposed to bee killed the Centurion returned his prisoner with great joy to Pison who said Justice must speedily be done and the case was difficult therefore sentenced them all three to be executed the first because hee was condemned fiat Justitia I. G. because he was dead in reputation and the Officer because he did not execute his office instantly I am not of some Turkes mindes that so the difference be ended it matters not much whether right be done or wrong because a peace is made without expence of time or Coyne but all differences betweene men ought to be ended with as much expedition as conveniently may be according to Law so as no more hast be made then good speed but what if legall proceedings be too circular and tedious I desire leave to speake to this question whereof neither Clients nor Councell are properly competent Judges the duty of the one being like good wax to receive and retain the impression of faithful advise of the other to be like a good Pilot to make what haste he can to bring his Client to the desired Haven and surely the shortest cut to the Harbour is ever best for as the end of War so the end of the Law is peace now the end of the profession and the professors shou d be the same He that delights in suits loves to be in a storme at Sea but truly I speak it knowingly and to the honour of our great practisers that they do for their 10 s. give good and faithfull advice casting about which way the Client may speedily receive justice And the reverend Judges when a certain thing is ripened for their judgments they speedily passe a definitive sentence and when they sit pronouncing judgment me thinks I see a rich Cabinet of precious jewels opened and admirable reasons expressed for the full satisfaction of Counsell and Clients which I cannot but mention for their honour because beyond sea the Judge will give no reason of his judgment and the Sentence is past in private that so Judges may not incurre the dangerous displeasure of the Client whereas justice with us is publikely pronounced in the gates of our City But do not Writs of Errour immortalize suits One sayes that those wooden Angels which support Westminster Hall are made of Irish oake that no Spider of errour should hang upon them Another sayes that in reason the errour should be assigned before the Record be removed because for the most part the common errour is only assigned but this string must bee touched very tenderly A stone that is ill placed in a building must not violently be removed it is requisite there should be some breathing time to make satisfaction after the Recovery The Civillians allow dayes of grace to provide the money whereas our proceedings are so speedy that the party may be taken in Execution the same day the judgement is entered and that Execution which is the life of the Law proves many times through miserable indurance the death of the party To explicate my selfe I must premise two things as undeniable verities First that no politique Law ought to contradict the Law of God because only those may marre that can make and Princes having no hand in the making of Gods Laws therefore may not dispense with them Secondly No humane Law ought to live any longer then the reason of it continues for reason is the souâ—e of all humane Lawes without exception and therefore in ancient Kingdomes and States many politique Lawes wlll be fubject to alteration Our Ancestours certainly were great husbands to make it death to steal a sheep or a Pig worth above 12 d. though it be to satisfie hunger for which by the strict rule of Law he ought to dye And so it is if any ready to starve shall take a loafe of bread from a Baker Lex moralis est vivens judicialis mortua solumin equitate ceremonialis mortifera which certainly
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—bâ—cause in doubtful things the least is taken next it was resolved 200. Thirdly it was left doubtfull
to the judgement of Heaven for the poore French men complaine of the multiplicity of appeales that one Court will Judge according to science another according to Conscience and a third according to Justice and that ambiguous case of the three Rings A man settle his Land upon that Child which shall have a certaine gold Ring which was for many yeares enjoyed accordingly at last one discreet Father bearing an equall affection to his three Sonnes caused a skilfull Artificer to make two other Rings for weight matter and forme so exactly alike that the true Ring could not be distinguished and gave unto each sonne a Ring who after his death went to Law for the estate but the right to this day cannot be determined with many other ingenious Cases wherein the Civilians abound but in this sence too much honey is not good I know the swelling of any Court above the bankes is like a deluge or an inundation of waters prodigious to a Kingdom the other Courts must needs suffer as when the spleene is in the Tide the other parts are in the Ebb but blessed be God there is a musicall concordance and sweet harmoney betweene our Courts of Law and equitie Sicut manus manum juvat our Courts of Justice are all Sisters as the Muses were that do not incroach upon but are helpfull to one another as one hand helpes another Concerning Delatory proceedings if Anonimus knew what tedious protractions the Subjects in Fâ—ance and other Kingdomes suffer under hee would not bee so impatient King Iames in that Speech of his in Starchamber 1614. promised to expunge all unnecessarie delayes and Ceremoniall formalities which were adversaries to the procuring of a speedy well grounded Justice and truly it is much to be wished that right might bee had at a cheaper rate that Justice in all Courts might passe at an easier charge that those weeds of needlesse charge and brambles of expence that grow about the vine of Justice might be plucked up and rooted out as farre as possible might be that the Client might have that for 6. d. for which he paies 12. d. and blessed be God for hopefull beginnings since these right honourable and right worthy Commissioners for the Great Seale have come in justice hath run in a more fluent streame and purer channell not dropt as formerly in two or three Termes the matter is ended unlesse the course of the Court be interrupted by circular motions which many times makes such a diversion that it is hard to reduce it to a regular proceeding for at the Barre too much is manytimes spoken but not inough whatsoever tends to the victory in way of veritie is to be spoken for the Client and no more when men come to fight they brave it not but strike at the heart let not an impertinent word be used in a Court of Justice if no motion might be heard unlesse the otherside had notice of the intention to move it might advantage both parties certainly but the most ancient honorable Courts are not without gray haires As the German inventor of Guns toldâ— Apollo it was that none should dare to make Warres I wish all Copies might containe 20. lines in every sheet to be written orderly and unwastfully I have often thought that the widenesse of the lines was that the parties might meet and agree finding copies so chargable and I conceive no answer ought to bee referred as insufficient without shewing some particular point of the defect and why should not Bills be dismist of course without motion some other practises fall under consideration as common Recoveries what necessitie there is of them why a Fine may not aswell serve to cut off reversions next whether in conscience the will of the donor ought to be violated then for collaterall Warranties why should not the strongest presumptions give place to the weakest proofes we read of those that have sworne themselves to be Whores to disinherit their own issue And for Out lawries why should the personall Estate be forfeited more reason to seise upon it for the debt the profits of the Land forfeited til a Feofment be made the Kings hand amoved and yet the Outlawry remaines and how easily are Outlawries reversed and what fruit has the partie of all his labour A man borrowes one thousand pound and purchases Land and dies the heire before his Father bee cold makes a Conveyance now the land is discharged from payment of debts Why is the heyre bound unlesse the Land bee chargeable after an alienation other things are yet amisse in matters testimentary and matrimoniall in charitie a man meddles with the goods of an intestate to see him buryed upon pleading that he was never Exector I know not how farre a man may suffer in that case why should not our common Law Judges determine legacies for goods as well as for lands Why may not a Legatee bring an Action of Debt against the Executor as well as a Creditor why may not our Judges determine what is a Contract of Marriage as well as other Contracts but let no man despise the day of small things for my owne part when I consider the noble propensitie in our right Honourable Commissioners and the Honourable the Master of the Rolls whose names for their unwearied pains and extraordinary diligence in the judicious and faithfull discharge of those great places of trust committed unto them so much conducing to publike security will bee honoured and renowned to all posterity to expedite matters in difference asking the counsell many times will your Client referre the matter telling us that they cannot endure trifling and nicities I rejoyce at that spirit of Reformation which I see orient in that court and much marvell that causes should depend halfe so long as they do so true is it that negotiations are easily dispatcht by many and it is no small security to the Kingdome that the seale is intrusted into so many safe hands for if the mole of Chancery lay upon the shoulder of one ATLAS hee would finde it weight inough to support and I have often thought that if it were possible a Chancellor or Lord Keeper should not have only infallibility because his assertion is of Pythagorical authority and that for the greatest estate in the Kingdome upon suggestion of a Trust but likewise impeccability least he should doe any thing against conscience yet notwithstanding if the wisdome of Parliament in whom the publique Judgment of state is lodged should conferre that honourable charge upon one as formerly no doubt whom God calls to any place he gives ability to discharge it for when God places any man in the Chaire of Justice he never puts himselfe besides the Cushion specially when Gods favorites are made Judges he is with them in the Judgment but of that more hereafter Concerning Bills of Chancery true it is that many times more is demanded then is due that so the just debt may be confessed but
Judges were to heare every Advocate according to their Seniorities successively I thought there was much beauty and a sweet order in it and one of them understanding that in our Courts of justice one man is retained five or six times for anothers once he answered that is all one as if one man at a Feast should devoure five or six dishes and not let the other guests to taste of them I have often marvelled why the Law that made such a respective privity and subordinate relation betweene the Ordinary and the Clerke should make none betweene the Judge and the Counsell the Bishop called the Clerke brother upon this presumption that their office for substance was the same serving both one Master and aiming at the same thing the welfarâ— of the peoples soules Now certainly the reverend Judges and the Practisers ought to minde the same thing and ayme at the same marke which is the White of Justice The Judge in executing justice the Counsell in requiring justice for the Law is declared and executed upon the request of the Lawyer if any bee otherwise minded that cares not for justice further then he may get applause and practise he deserves not the name of a Counsellour But as the Profession is no honour to him so let not him be any dishonour to the Profession a concealer or a worse name if you please better befâ—ts him But why then may not the reverend Judges bee said as it were to be Fathers of the Counsellors who may not bestow all their favours upon one child though never so vertues but rather like the Sun dart the beams of audience as much as may be upon all indifferently even upon barren heaths which otherwise become unprofitable A wife loving Father will not let any childe be long without victualls but if we be not worthy to be counted sons yet let us be reckoned of the Family that some provision may be made for us It were a happy thing that there were no contentious Pleadings in Westminster-hall and the lesse worke for Lawyers the sounder is the Body-politique yet for the present some having no other subsistence but their bare practise which have continued faithfull certainly it wou'd tend much to the honour of the reverend Judges and Justices to deale their favours as equally amongst us all as possibly may bee I cannot but smile many times to see a company of hypocrites as wee are stirring up and downe in our Gownes making men believe that we are full of employment and so we are indeed in a perpetuall motion measuring the length of the Hall but not a Motion perhaps from the first day of the Tearme to the last But would you have no favourites yes the worthy Parliament they are the Kingdoms favourites very fit they be first heard every way encouraged that so publike busines may not be hindered and truly their ingenuous Candor is much to be praised in this particular which bespeakes them not only excellent Lawyers but excellent humanists Secondly The Lawes favourites as life liberty and Dower it is very fit that all such necessary and important matters by reason of their dignity should be heard in priority whatsoever Counsell bee retained to move them before matters of property I allow also Judges fauourites for favour many times gives a quickning spirit to the Law There was a Prerogative of primogeniture a double portion belonging to the eldest sonne by the Law of God by the equity whereof a Judge may a low a double portion of time to whom hee pleases the best men that ever lived have had their favourites for affection flowes uncompelled Bacon observes that a man shall seldome see three at play but he shall wish better successe to one of them then the other though all strangers to him and I beleeve scarse a father or mother that have a numerous progeny but love some one childe better then any of the rest yet the child that is least beloved is not neglected but has his portion provided in due season I do not drive at it that all Lawyers should have equall practise I esteem parts and abilities wheresoever I finde them let the stronger practiser get three foure or five times as much as the weaker but this I aime at that one should not fâ—ast and two fast according to that most excellent saying When poore men enjoy necessaries then let the rich enjoy superfluities for in every Christian society one mans superfluities must give way to anothers conveniencies his conveniencies to anothers necessities his lesser necessities to anothers extreame necessities But it is alleadged for the great Monopolists Impropriatours of practise Funditus exterpra monopolus nomopolas 3. instit 183. that they best understand the course of the Court which makes the Law we say in our books that a common errour makes a Law Truly in this I willingly acknowledge my ignorance I do not conceive how the course of a Court can make Law or equity it can only declare how the judgement of the Court hath been in that particular but Law is reason adjudged in a Court of Record where reason is the kinde and judgement the difference that distinguishes it from legall reason spoken extrajudicially he that hath served the space of two Prentiships let young Barristers grow up like Vines by the support of others and hath a competent stocke of Law and reason it is very strange if he should not be able to tell his Clients cause in plaine expressions Justice is an intemerate Virgin that does not love to be too much courted it may be a question whether artificiall and forced objections do not many times hinder and obscure the glory of noble Lady Justice Ignorantia legis non excusat as blew bottles many times hide and hurt the precious Corne or why should the Law and equity bee so obscure since every ignorant man is bound to take notice of it but how came they to understand the course of the Court but by their great practise he that will first learne to be a good Pilot must goe to Sea upon calme waters but shall not every man choose his owne Lawyer what else but who are retained but they that can soonest be heard who has bin observed to get most money when Queene Iustice goes her progresse what Counsell doth the Client enquire after Sâ—ctam ad nolendinum to whom do the Attorneys and Solicitors make suit I say but this as it would bee the honour of the Court to have the businesse passe through many hands that every man might labour in the Vineyard so it is no hard matter to disperse and distribute the practise with more equality as before is hinted This I affirme confidently that a Judge is obliged in point of honour at the least if not in point of Iustice to give all incouragement to heare him first that has the fewest motions nothing more just then to leave the Client at liberty but if
supreame Court in any Kindome should bee limited nor can it limit its owne power no more thâ—n a man can continue alive and cease from breathing and exercising other naturall functions true it is that the body represented is stronger then the representative but the legall authority is in the parliament where it has bin planted and settled for many hundred yeares and let that hand wither that shall seeke to Rob them of it for a government there must be and no human policy could ever finde out a better Loving Reader I pray the likewise take notice of a 3. leaved Pamphlet intituled newes from Hell Rome and the Inns of Court and believe it that Hell and Rome are the two Elders and the Innes of Court the chast Susana when our Clients give us a Fee wee take it in love as a Chast virgin does a paire of Gloves sent unto her for a love token if the giver expect any bruitish thing we abominate the first risings of dishonesty the Author like one of Machiavells Schollars thinkes by his over confident calumniation to make some thing stick upon our noble and Gospell profession but it is but shooting a headlesse Arrow against Armour of proffe for our profession is pure Marble 1 Tit. 3.13.14 and no dishonour can be imprinted upon it but upon a second perusall of it I finde that in a Charitab e construction what he said may be intended only of such Lawyers that are of the Oxford party therefore I passe by it And now Curteous Reader to draw to a conclusion because I will not trouble those that need not know so much nor weary the intelligent Reader I have but one word to speake to my adversary which is to intreat him as a brother to retract this fond and weake oppinion as being though I am perswaded not intentionally yet consequentially destructive of all state pollicy or else truly Anonimus Though it bee such an error that thou maist carry to Heaven I shall not bee freinds with thee that is with thy oppinion for I will ever be a freind to thy person for I praise God J am not so wedded to my owne opinion as to love no man but he that shall concurre with me hee that loves another man only because he is of his Judgement loves himselfe in that man as hee that mournes for the death of a friend mournes perhaps rather for his owne losse If there were some lines of Communication and rules of association or such principles of union that all honest peaceable men though of different judgements might walke with indeared affections to one another Duraeus inclitus Scotus peregrinavit multos annâ—s pro Concordia inter Lutheranos Calvinistas Beati pacifici Jllusâ—rior est vnio quae nascitur ex charitate quam vnio cujus precium oritur ex raritate till every mans spirituall eye sight bee equally alike provided that no oppinion be any way destructive of State policy as tending naturally to inflamations certainly it would exceedingly conduce to a most hapy reformation I blush to read such extreame bitter passages and railing invectives as daily come forh to gratifie and make musique for our Enemyes for shame forbeare or cease to be Englishmen I would presume for the reconciling of various oppinions and preventing all disaffections as much as may bee to propound to our most noble Senators that learned Godly and sweet spirited men might bee appointed so soone as they heare of any erronious opinion so generally conceaved mildly to answer every printed error to repaire to the Authors or maintainers of it loveingly to shew them their error and to admonish them convictingly whereby thousands by Gods blessing may be convinced for spirituall maladies require spiritual remedies and the Governors not so much as acquainted with it unlesse it be a moot point and very disputable and then further light must discover the nakednesse of it We Lawyers know what is a breach of the peace and for prevention let men be bound to keepe it if there be a just feare for no rationall doubt can disturbe the peace of the Kingdome as that Noble Peere who went to Heaven as in a fiery Chariot in an active Martyredome for the publique good cleerely demonstrates in his divine treatise concerning Bishops reason being the perfection of every Kingdome What a stir there was in the Bishops times about privat meetings as if poore soules that meet in Corners to pray and that for the happinesse of the Kingdome whose prayers no doubt were heard as being favorites of heaven would thereby disturbe or endanger the peace of the Kingdome oh that ever rationall men should give such a Bill of divorse to common sence and understanding This is practised amongst the Pontificians with great successe answerable to the Venetian policy where when any man is injured by another the patrons of Iustice finde out the party wronged Quadruplatâ—res and follow the cause for him to take of all vindictive prosecutoins that every thing may be done for the love of Iustice and 3. or 4. in every County authorised as arbitrators generall to take up and compose all private quarrells and differences in a Christian way of love would prevent numerous suits and vast expences and truly every man that professes to be a Christian should study hard to bee a Sonne of Truth and Peace One thing I must insert that may answer all objections that whensoever any man in humility propounds any thing tending to a politique reformation of something that he conceives to be amisse in a Kingdome that he must cheerefully submit unto the present practise untill the wisdome of State shall otherwise determine according to that excellent saying we tollerate or rather submit to many things which we do not love Multa toleramus quae non amamus Farewell Anonimus that I may speake freely I think thou art an honest man and of a publique spirit two excellent qualities for which I esteeme thee but in this thy zeale is not managed by right reason If any man towards the Law be unconcionable in his practise the Lord worke repentance in him so as to make restitution as in the case of Zacheus No period better then prayer Therefore here I cast Anchor and bind up these spreading lines Additionalls omitted in my absence P. 17. L. 31. adde I heare many complaints that writs of Error are not determined truly if any man will not pay his debts that is able but takes advantage of the Benches Vacancy I wish he were in excecution to morrow but if poore men bring writs of Error meerly to preserve their Liberties it is far better for the Kingdome that they should hang in suspence and abeiance till domesday As in the Iewes divorcesâ— Difficillimum est homines amplissima fortuna ditatos legibus â—ntinere Plato then that any man by Indurance should be disabled from serving God and his Countrey in their lawfull callings and this is not