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
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
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
a spurre to Learning and what disparagment is it that a Horse will not goe without a spurre And in such â—ase the Protestants beyond Sea and the best Polititians have allowed certainties as much as may be as being the mother of quietnesse and that which prevents adulation and emulation It is conceived by many that it is maintenance and consequently punishable to speake unassigned without a Fee and that a Lawyer may not speake in his owne cause which are certainly errors for it may be I may know the Client to bee poore and it is Charity to assist him which cannot help himselfe Quilibet potest renunciare juri pro se intrâ—ducto besides it is a rule in Law that every man may renounce his owne benef t And that a man should not speake for himselfe is against the Law of nature Speech and Reason being given to man to glorifie God and vindicate his owne innocencie therefore what ever politike considerations may be Counterpleaded as indeed our Law in many things is rather Politicke then morall as that if one may speake then all and so confusion at the Barre and that men will speak too passionately in their owne cases yet these being the indispensable Laws of Nature and Charity over which there is no humane power if the Law bee so it ought to be altered as it is resolved in the Earle of Leicesters Case â—lowdâ—ns â—oument that an Act of Parliament against the Law of God and nature is voyd but this must be cautiously understood that I speake not of secondary and lesse principall Lawes of nature wâ—ich are not obvious to vulgar understandings I confesse the Law is a great enemy to maintenance and imbraceary as being incendiaries giving fewell to all suites like that Pirracorax a Cornish Chough which carryes fire-stickes from ground where fire is made to make it fruitfull to thatcht houses and indangers all men But to give councell without a Fee must rather be a means to end Contentions and I know no reason why I may not assist an english man as wel as a stranger in Case of the Alien of Burgundy but to sell debts and maintaine one another In all cases promiscuously 15 H 7. 2. is a different case and insufferable In the next Declamation against Lawyers there is an error at first which like a thred misplaced runs awry through the whole peece for though every gâ—neration of men be subject to corruption yet to speak properly the Councell cannot be corrupted or bribed possibly the judge may therfore to say that Lawyers were never in that height of corruption as now they are this clause rather savoring of ignorance then malice in strictnes requires no other answer But because custom is the Mistris that makes words significant rather as they are commonly taken then by the Etimologie though herein the ingenious Candor of the Law be very observable that in ambiguous expression which admit of a double interpretation the Law rather strives to heale then to hurt as when one saies of another he hath stollen his Apples because it is indifferent whether they were growing and so part of his Free-hold which cannot bee stollen or gathered the words are not Actionable therefore I take the charge as it is intended or as the words import in common parlance I hold that to seeke for Clients is as preposterous as for a woman to goe a woing or a Physitian to seeke for Patients indeed one of our Historians sayes that Serjeants had their stations in Pauls certaine afternoones in Terme time and every one kept his Pillar which is either a Cripticall and darke authority or for ought I know to the contrary might bee meant by Searjeants of the Mace peeping after debtors but however it were that was time immemoriall above the memory of any man lately living And I cannot believe that Lawyers for the generality had need to make such diligent scrutiny to find out Clients for since Edw. the 3d time who much honoured the profession as the Merchants grew rich so suites multiplyed for ill humors will breed in a replete body the Law hath ever since in times of peace much flourished but that pride should be objected against us I marvaile more and must needs say that a proud Lawyer is an unseemly thing but then that which is pride in such a one as my selfe who lye at Anchor and beare no sale is peradventure but keeping distance in a great practiser Truly Curtesie and Humility in all specially in a Lawyer Minister and Physitian is like a rich Chaine about the neck of a Nobleman the best ornament in his Chamber though many rigid harsh men have gotten by the Law abundantly I have thought sometimes that for such a man to hope for Clients is as if a man should goe to catch birds with a Drumme so caption in receaving instructions and unaccostable certainly curtesie is the most precious Pearle that any man in authority can weare for it buyeth mens hearts and the greatest man in being curteous to his inferior looses no more then the sunne doth in comparting his glorious beames I have often thought that a stiffe starched proud carriage is not onely a signe of an adulterate Gentry but a breach of the sixth Commandement our good Josephs will not forget their poore brethren in their highest prosperity much more reason has a Lawer to be curteous who receives a Fee from his Client Concerning the largnesse of Fees I thinke it a misprision or else such a rarity that there is little danger it should bee drawne into example Fees being reduced to a convenient certainty yet if any man will give 10 l. for a watch that may have one as serviceable for 50 s. who shall blame him when I receave my Fee I reckon that untill I have done that which the Client expects I am but his pursbearer for there is a tacit Contract between the Councell and Client that such businesse shall bee done as a consideration for the Fee which in equity alters the property of the money for when a Client brings 10 s. of his it cannot become not his but by his consent or forfeiture therefore if the Lawyer do not his endeavor to satisfie his Clients expectation though in personall things Quod meum est sine consensu aut defectu meo alienari non potest the Legall propertie followes the possession yet the Evangelicall right is in the Client for though we say give him his Fee yet neither doth the Lawyer take it as a gift nor the Client so bestow it But hee which makes his Clients cause his owne and layes it to heart as if it were really his owne case And the matter succeeds well may comfortably take what the Client will freely give but with this proviso for so is my opinion for the present which I submit to my worthy masters waiting for more light if it be an error in politiques that I would not have any man take
is against the Law of God for though the judicialls of Moses are not obligatory to us yet there is so much equity in them and so many direct precepts for mercy that no cruelty should bee used amongst professed Christians though it were in new Plantations where there is more reason to make sharper Lawes in the beginning Lex dura at regni novitas me talia cogit Dide in Vâ—rg At Geneva and in New-Eâ—gland Adultery is capitall with us it hath bin standing in a cold sheet a very difproportionable punishment for the flame of lust surely either their punishment is too heavy or ours too light but the constituâ—ion of Kingdomes and States is wisely to be considered Matth. 19.9 as also that place in Matthew if the Adulterer were to dye what need any liberty to marry another for then the civill Magistrate should by death dissolve the obligation The Law is likewise defective that after such a divorce the parties are not free nor the innocent party to make a new election Ad alia conâ—â—landa vota but must be necessitated to live in sin which no condition of life should bring a man into being grounded upon a popish distinction Separatio a thâ—roet mensa â—on a vinculo matrimonii between a separation from bed and board and an absolute divorce from the bond of Matrimony And truly that man of sin Antichrist wresting the Scriptures to advance his insatiable Luxury Avarice and Luciferian pride Ejus avaritiae totus non sufficit orbis ejus luxuriae meritrix non sufficit omnis prevailed with the most politique States of his religion to make severall Lawes that might be as flowers for his garland Ecclesiasticall and Civill Lawes being so twisted together and interweaved as Webbe and Woofe that the destruction of Antichrists Kingdome must of necessity cause a review of many Cases and opinions in our bookes I speake not of principles and pillars or of the frame and constitution of our Law but of secundary conclusions superstructures which may by the wisdome of Parliament be changed or removed without in dangering the ground work but with wonderfull circumspection and serious deliberation because reason is malleable and hath diverse faces and many times its contrary reason and is not equally evident to every mans Capacity As the poore Widow said to a deere friend if my husband had beene justly put to death it would not have so much grieved me what sayes he hadst thou rather thy husband should dye nocently then innocently So the Philosopher of his Wife if hansome pleasing if deformed honest it was retored if hansome in danger to be dishonest if deformed loathsome therefore that which we call the reason of Law is not every naturall mans reason but a practicall and studied experience acquired by much industry and long observation In that case which I put of the divorce it is very necessary to settle some Law concerning mariages for as I conceave many of the Popes Cannons are yet in force amongst us Tediâ— vitae concerning that particular that after a divorce there may be liberty to marry againe in the Lord By the Law if the Father through the tediousnesse of life kill himselfe which is cause of griefe sufficient to the poore Children yet all the personall estate is forfeited to the Kings Almoner a Popish Constitution Dame Hales Case Com. Stamford upon this ground that the King is supreame Ordinary and will dispose of his estate for the good of his soule and the poore Orfans left to begge this is to adde more weight to the oppressed Nay if the Wife kill the Husband the pepsonall estate is forfâ—ited from the Children So in Leonard Sonir Case 11. Rep. 83. Grauatis addere gravamina the heire shall be in ward though he hath no estate left him and the booke Corfesses that affliction is added to the afflicted for the preventing whereof and for the enfranchising of our Noble Gentry for truely it is but a gentile Villenage I hope that COURT will be abolished before any further mischiefes happen Villenagium gentile fervile which hath beene an eminent badge and speciaâ—l livery of the Norman Conquest the Conqueror to mixe the English and Normans manacled and constrained the will and consent in point of marriage which as the apple of Contention betweene man and wife hath tended to the destruction of many families Durissimum est ut matrimonium non fit liberum unde nascantur liberi it being the hardest thing in the world That mariage should not be free amongst free people truly that I may speake my mind freely as it is free of its owne nature I conceive there are many defects in our Law both in matters Criminall on the Crown side and Civill As that witnesses should not be examined upon oath for the prisoner as well as for the King that Counsell is not allowed as well for matter of life as for estate that so many men slayers escape upon the Law of man slaughter I know by reason of the valour and heate of English spirits it has been an ancient Law but upon serious consideration I feare that the Land has beene defiled with much bloud by that meanes not as yet washt off indeed in case of an assault the Law makes every man a Magistrate to defend himselfe but to kill a man for a Box of the eare or any man that I may save without manifest danger of my owne life is death by all other Lawes in Christendome As murdedrum for murderum seloniter for selinice c. Rep. 121. but the Statute of stobbing is a most excellent Law That a Murder or other grievous offender should escape for an error in the inditement in a word or Letter is horrible for Justice should be speedily executed upon Delinquents the want whereof is many times an occasion of terrible enormities So that if the Clerk or prosecutor wil but insert one insensible word into the Inditement A Ravillat or a Vaux may peradventure escape for the present and then men are apt to say he was tryed once and acquitted and the prosecutors being discouraged seldome is any man further questioned as in Lambes Case who being indited for Witchcraft for exercising certaine divilish Arts Artes veneficas non diabolicas exception was taken to the Inditement that it should have beene veneficall Arts the word Diabolicall being too generall and many others that have beene by the Jury found guilty of Murther and Capitall offences yet have escaped death by reason of some error in the Inditement which how disagreeable to the sacred Scripture I submit to better Iudgments As for the Common Objection that if the curiosity and exactnesse of pleadings should be neglected ignorance and barbarisme would soone be introduced This puts me in minde of Savage Boners Argument that if the Scripture should be in English and Lay men have liberty to read and expound the
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
in reason why should not the Plaintiffe put in his Bill upon oath had not custome incorporated many formalities and solemnities into our Courts of Justice many of them would scarce hold weight in the ballance of the Sanctuary but farre be it from any honest man to maintaine an old error against a new discovery of truth Truly I thinke it was to be wished Civilians call it lesse property Juramentum calumniae that the oath of integrity might betaken by every Councellor and Attorney never to set a hand to any Bill or writing not to speake any thing for the Client but what they verily beleive in their Conscience to bee just and true this is practised in most parts of Christendome and some states make the advocates to discover any thing that they know which may advance Iustice though it be against their owne Clients but of that I make a Quere but our Law seemes to comply with the former for by Statute it is enacted that if any pleader shall deceive the Court West 1. c 29. by informing that to be true which he conceives to be false he is to be imprisoned a yeare and a day and to practise no more The learned Serjeants are sworne not to maintaine or defend any tort or falsitie sciently See the Sergeants oath in Magna Chorta f. 213. Numero confiderato but shall guerpe and abandon the Cause so soon as he perceives the injustice of it and truly if Serjeants bee sworne why should not the Barristers It cannot be denied but there are as many worthy honest men and as few others of our profession as of any other calling whatsoever and many honest Aturneys and Sollicitors that looke at the merits and justice of the Cause and desire rather verity then victory in their undertakings For my part when any body cometh to advise with mee about Commencing a Suit in Law I begin to tremble and bid him first examine his owne Conscience seriously whether he have bin wronged and that in a considerable matter for I would not have Christians go to Law for trifles Totus in serment◠my meaning is unles the thing recovered will quit the Cost to provide a Conserve of Westminster Hall Wormewood and to be of a leavened Spirit for every trespasse was an error which Saint Paul blamed amongst the Corinthians he examines not who has the best cause but chides contentious natures But in materia gravi necessaria that goe to Law for small matters did Jesus Christ write our sinnes in the Dust and shall wee write every unkindnesse in Marble Secondly whether he would not have done so to others as is done to him then I advise him to use all means of peace and all urbanity before he do addresse himselfe to a wager of Law as knowing that going to Law is like a laborinth the ingresse very easie but the egresse very difficult or like two encountring Rams he that escapes best is sure of a blow I have heard a Debtor in Naples offer a Creditor 50 l. to whom he owed 100 l. telling him unlesse he will accept it he will make him spend another hundered and hold him in suit with his own money and then it may be hee may get 120 in conclusion And thirdly I aske my Client whether he can go to Law in love which I finde to bee a very difficult thing which being premised no doubt God cals a man to go to Law to recover his right as well as a kingdom to defend their Lawes and Liberties but I shall not censure any Client for I know the case may many times be such that both parties may have an invincible ignorance of one anothers right It was so in the case of the Israelites and the Cananites Ioshua having a command from God did justly invade their possessions they not knowing of that command justly defended the same I proceed with my Adversary who is so farre in the right that the maine or many streams of our Law issued and flowed from the Normans some veins from the Saxons and many maximes and rules from Sicily as might appear in a manuscript which one Master Pettit employed by the Earle of Arundell to purchase Antiquities in forrein parts acquainted me with In the lesser customary of Normandy you may read in substance the two first Books of Littleton and to speake truth what ever is excellent in our Lawes wee have taken the creame of it from them and thereof composed ours and as our language is most accurate and refined so is our Law a most compleat body of humane reason And now I must say something concerning the Law and justice and the reverend Judges the Fathers thereof For the first the Law of England is a holy Sanction commanding things honest and forbidding the contrary A Cheife Justice to Hen 6. and after Chācellour when Hen 6. was driven into Scotland it excludes all vice and teaches all vertue who would not fight to defend such a Law Fortescue gives a high commendation of it and sayes all mankinde should have been governed by the Lawes of England if Adam had not sinned in Paradise and herein our Lawes must needs exceed the Imperiall Roman Lawes which were made by the Emperours Counsellours Actu vel potentia ut Evani Adamo antequam plasmaretur because ours are made by generall consent in Parliament that I may most truly say that the Lawes of England are either actually or potentially the best in the world because if any thing be amisse the Parliament may reforme it There are but six Kings properly so called in Christendom the French and the Spaniard who have too much power Sweden and Poland who have as some politicians say too little power for their Titles and England and Denmarke who have just power enough by Law for by the salutary advice and consent of Parliament they may enact such Lawes as may make a people happy Oh happy England if we knew our own happines In many places beyond sea the people pay the fourth part of all the Wine besides a fourth penny of all the Wine that is sold so that where the Wine growes the people drinke water and is it not an admirable thing that we should buy a quart of wine for lesse then the Natives whence it comes a quantity of every bushell of their corne every house-keeper forced to take such a quantity of Salt at five times more then the worth of it The land farre richer then ours yet the people five times poorer then with us the Souldiers constantly take what they please the Countreymen and yeomen upon the matter go almost naked upon the worke dayes in a hempen doublet on holy dayes if any man have got a supposed stocke of money he is deeply taxed and impleaded and then that Advocate cannot want a reason that argues for the King if the man refuse to pay then they adjudge him peremptory and he is imprisoned and counted an
the matter is so tricked shadowed and heightened by colour of painted Art that the Judges themselves may be abused and beguiled if they be not very wise The Civilians say that if a Judge be wise no advocate can hurt a good Cause for if the Lawyer can by his wit disguise and varnish over a rotten cause and speake well in a bad matter which is not eloquence but loquacity certainly the Judge is able to speake much better in a good cause and to set a farre clearer glosse upon the truth if need require 3ly Prudence which acts in every individuall circumstance Law cases being as mens faces seldom 2. cases so like but there is some difference now in such multiplicity of businesse a Iudge had need be very prudent not to embrace a cloud for Iuno I am perswaded if one observation might but take place Imbeculum prâ— Junone it would be a meanes to retrench and cut off all unnecessary delaies tedious protractions of Law suits which are so greivous to the subject and that is that every mans Grant and all bargaines Contracts and words should be taken and construed according to the parties meaning that the Judge and Jury should have nothing to do but by the manuduction of reason to investigate and find out the parties reall intentions and plaine meaning and so find and declare the Law accordingly It is a rule that mens grants and intentions must be regulated and construed according to the Law and not the Law according to their intentions I agree that the Law must be the rule of all justice and that Law which is most certaine and leaves least to the Judges arbitrary discretion is ever the best but undoubtedly this rule would be the mother of the greatest certainty that can be imagined for every mans meaning will easily be found out and made evident and this would beget a sweet harmony and friendship in all Civill affaires for no man should be suffered to defraud or goe beyond his Brother in barganing whereas some crafty Fox that hath observed the strict formalities and niseties of Law He was a most excellent man for naturall science and discourse Cecil most famous for prudence and direction practicall will easily surprize a credulous nature which suspects no hurt many times to his utter undoing I know what my Lord Bacon saies in his third rule against this but I submit it to juditious consideration And this is practised in matters testamentary All agree that matters of Parliament Arbitrement Testament and other words that end in ment must be construed according to intention why not aswell in all contracts the reason is given that when men lie sicke they have no opportunity to get Councell pray why can you not aswell send for a Lawyer as a Physitians Iacentes in extremis if sick men have that favour why should not the Law be as kind to men in health 4ly Purity of hands and chast eyes for a bribe will make the most eloquent man mute as a Fish I know our reverend Judges who take their delight in the Law of the Lord study the 1. Kings 8. where I note that it was the avarice of the Iudges that made the people of Israell revolt from Samuel and desire a King and in Deut. and Isaiah no Kite Deut. 27.19 Esa 5.20.23 Eagle or griping Bird was to be admitted into the Temple of justice and I hold it a dangerous thing for Iudges to take any presents from any man though in things commestible and corruptible in 2. or 3. dayes which the Romans allowed for there is a kinde of hope in the giver to receive favour from him if any cause come before him and a generous propensitie in English spirits to requite the least curtesie I remember an host in Languedoc told us that he had a Turkey cost 40. s. English and marveling at it he told us that it was first presented to a Iudge whose servant sold it for 5 s. to a Client which presented it to another Iudge and his servant sold it for 4. s. to one who sold it to another Client for more who presented it to another and so in a circular motion till 8. or 10 Iudges had beene presented with it till about the end of three daies the host bought it Integer vita saclerisque purus quam summe fieri potest in humana natura and truly few ingenious men could scarce bridle their cheeks from laughing at stories about presents made heretofore though now blessed be God we heare of no such matter that have served for table talke a time which Christians should improve for spirituall advantages Integritas justitiariorum est selus subditarum Fifthly Integrity of Conversation Hee that is to judge the Lives Honours Estates and fortunes of others had need himselfe bee exempt from blame Hee that is establisht to reprove others ought himselfe to be irreprehensible as much as may bee in humane nature the integrity of the Judges is the health of the Subjects therefore as Calvin said at Geneva Gentlemen superstition hath formerly kept her Throne and Court in this place therefore we must be more zealous then others for the purity of Gods holy ordinances so say I what heavy oppressions and iniquities were perpetrated and groaned under in our Courts of Iustice before this happy Parliament every man knowes it too well let it not bee told in Gath nor published to the dishonour of our English Israell but as a stumble may prevent a fall by taking the better heed 2. Sam. 1.20 so I doe not doubt but for the future we shall have such worthies preferred to places of judicature that shall make it their meat and drinke to execute justice to witnesse their love to Iesus Christ The former qualifications are necessary in all states as well heathenish as Christian therefore there must be some other distinstuishing Characters I would gladly speake my thoughts about two things I looke upon this Covenant as the most admirable human writing that ever was in the world Malignancy commonly so called certainly a Malignant Iusticer is the worst of all Malignants or if any be a neuter the difference is but graduall we have solemnly covenanted neither directly nor indirectly to give our selves to a detestable indifferency or neutrality in this glorious cause which hath never offended and which indeed is rather Gods then mans Therefore if any man should sit upon the bench that is disaffected it must needs be of dangerous consequence because by common intendment he conserves and carries the Law in his breast and if a Iudge should come into any County and there declare any thing done by the Parliament to bee illegall and twenty worthy Commoners should make speeches to the contrary it is no hard matter to determine which would take the deeper impression in vulgar breasts nay certainly if a man bee but suspected by the generality of Cordiall men hee is no Idoneous
his sweet spirit we are to love him and exalt him with our most studious praises and truly I hope the time is comming that good men shall be great men and that grace and honesty shall be of more authority then stamps in Gold and every man principally valued according to the impresse of Iesus Christ upon his soule If any man should vainly object that by reason of the novelty of some expressions I seeme to give a blow to the Laws I answere that it is the ceremoniall Law that I strike at and I can demonstrate to any intelligent man that there are Ceremonies and formalities in Law which are as impedient and inexpedient in Courts of justice as ever the Ceremonies or any Popish traditions were burdensome to Gods people in matter of worship This which I contend for would be no alteration of the Law but additionall to it for is it any alteration of the rule to lay it to the timber must not the Phisique be applyed to the diseases why then ought not the Law which is the rule of Iustice be alwayes constrained to make good men honest and plaine intentions why not as well as in the Kings case I complaine not of the Law but of the incroachments made upon the Subjects previledge by Ministers of Justice and that so universally that in going to Law he that speeds best buyes Gold too deare The reason of some proceedings being as obscure as Trades-mans marke past all discovery I admire and honour the wisdome of the Common Law and I would have no man to judge it or be wiser then it but that must be understood of fundamentall Lawes the alteration whereof as Sir Ed. Cooke observes introduces manifold inconveniences as in that Statute of imprisoning mens bodies for debt devise of Lands as if he that lay on his death bed could be wiser then the Law if it were a just and perfect law but much of a Banbury Cheese may be pared away without any destruction of the substance I would not have Law Bookes to be dealt withall like the Common Prayer Booke which as happily laine aside like an old Caske for its ill savour but refined purged and conformed to right reason speedy Justice and consconable equity let this expurgation be at the first dash of all matters Ecclesiasticall and Bishops appurtenances for what feare is there to expell the brats having banisht the Father Another scruple I would humbly crave leave to speake unto I heare it often objected that a Court must not make new Presidents I marvaile by what rule the first Chancellor made orders and decrees or were there understandings so cleerely illuminated in the darke times of Popery and prophanenesse that it is impossible any further light should be discovered besides are not causes so various by reason of the continuall multiplicity and vicissitude of humane affaires that as no man goes twice into the same water or seldome are two causes without some different circumstances have there not bin more lamentable cases happened within these few yeares matters of transcendent equitie and conscience then in many ages before and must wee alwayes keepe the same pace in foule way and weather as in faire Our Bookes tell us that the Rule of Chancery is equall and good and if there have bin 10000. decrees unlesse the present Iudge see the equitie and goodnesse of them certainly they ought not to be any rule for his conscience can any man give right Iudgement by another mans conscience certainly that will be as dangerous to the body politique as the Popish implicite faith was to Christs body misticall I confesse former Iudgements and decrees are good grounds of deliberation and serious consideration but not of resolution to Iudge accordingly because it was so held formerly unlesse I see evident reason concurring with that authority If men had good Iudgments they need not read Histories nor search for Presidents for put case that new Courts should be created as the happy demolition of some will necessitate the erection of others by what compasse should the Iudges steere the course of their proceedings but by right reason the force whereof is great That an exact Rider governing with the bridle which is universall Iustice all the world over Reason being like the highest and lowest Honors Vniversall where Tyranny makes no obstruction as King Iames in his Starchamber speech tells the Iudges that if they cannot make forth the reason of a Iudgement or decree to an intelligent Scholler it was much to be suspected Besides Christian Majestrates stand upon the vantage ground having the great-summinary of sacred writ to sublinate the lesse luminary of Humane prudence for Divinity perfects and refines all mentall endowments But then it will be said that by this meanes all things will be uncertaine if one Judge or Chancellour shall crosse their predecessors I answer nothing lesse for it is the greatest certainty and security imaginable to judge all things by right reason when no Justicer will proceed further then hee sees reason for it enlightned by former presidents but if otherwise that Justicers shall be tyed to proceed according to former presidents without understanding the cleare reason and conscience of them then if the first president was erroneous as who dare sweare that it was not we must bee undone for ever It is further Objected that in such cases the Parliament must be attended and much I have heard spoken concerning Judges Oathes I presume to answer it thus That I am confident it was never the intent of the Parliament nor of any oath that ever was administred by Protestants that any Judge or Justicer should deliver his judgment or make any blinde decree untill he see reason for it though there be millions of judgments in the very point for as the intent of every statute is principally to bee regarded so is the reason of every judgment if there be most excellent reason for it yet if I understand it not it is not my reason and consequently an unreasonable judgment I say it again for feare of mistake that every Judge must proceed according to his owne judgement and conscience for when I see the reason of a former judgment then it becomes my reason and there is nothing can be objected against this but I can improve the argument to the Popes advantage for no wit of man can finde out a medium between an implicit faith and that for which I see a reason I had all most forgotten one observation concerning actions upon the case for slanderous words King James told the Learned Lord Hobart that the wisdom of our Law was admirable in this that a man may not strike though never so much injured by words because betweene words and blows there is no proportion but I am doubtfull whether in Conscience a man ought to recover damages for scandalous words when in truth hee is not damnified but the thing I ayme at is that wee want a Court Marshall or some Court
a Fee from him that cannot spare it I doe not say that a man should not take his Fee unlesse he were in more need of it then the Client for then rich Lawyers should have very few Clients but whereas none are admitted as paupers if worth 5 l. I could wish it might rather be unlesse they were worth 500 l. for can hee that hath a family to maintaine and not worth 100 l. afford to give Fees as they are generally taken if 20 l. bee due from a contentious rich man to a poore man that is not worth 20. Anglia familia plernmque ex Septem Gallica ex Seâ— consistit l. besides and hath six or seaven in familie for this man to Commence a suit against his potent adversary Is for a Lambe to contend with a Lion And if it bee feared that Men would be too Clamorous and never in quiet it is easily Answered that unlesse there be probable Cause of Suit let him bee punished for a false Clamor I know severall persons that have just debts owing them some by Statutes judgments and other security which are not able to pay Officers Fees to recover them yet in great want though peradventure worth in Householdstuffe above five pounds yet never the nearer for an extant upon a Bond of 200. li. will cost 7. li. 10. s. to the Sheriffe to serve it truly it is greatly to bee wished that there might for the present be some new mixed Court erected for the out Parishes and Suburbs that poore men might recover their just debts and have justice for the expence of five shillings at the most for what a sad thing is it that a poore man cannot sue for his wages for a matter of 20. Ne alter alteri Cedat s. but it will cost him fortie in the getting of it But if wealthy men list to be litigious and will contend least one should yeeld to the other no man of competent understanding will blame us for taking our Fees but with this caution for truly I must adde one graine of Salt for weight and relish The Client I looke upon as a sick man distempered passionate wilfull and extremely in love with his owne cause what ever it be and many times the best advice to a resolute Client is but as a good lesson set to a lute out of tune for affections praeingaged draw away the judgement Now the Councellor in the least measure ought not to feed the Corrupt and Peccant humour for that is not to act the honest Lawyer but the flattering Courtier who steeres his advise by the Starre of his Princes inclination as our adversary Sathan workes upon our fancies and the wind makes the waters rage nor is it inough to tell the Client faintly that he doubts his Cause but will doe the best he can As the German Host in Erasmus aliud quaeras diversorium but to deale freely with him Sir thus I would doe if it were my owne case if you will not follow my advice goe to another you are in a Feaver and must not eat and drinke after your owne appetite I assure you thereis great difference betweene one Councellor and another therefore the precious ought to bee distinguished from others the Shepherd and the Butcher looke upon the Mutton with a different eye the one to doe him good the other to eat him the Client retains too Councel the one cares not for the cause further then he may gaine by it how ever it succeeds hee deserves little in Conscience the other desires the Client may have his right and what is given him freely he accepts contentedly but to speake truth many times the Clients deserve the blame and not we for they conceale the worst of their cause and so for want of a true confession as the Priest saies the absolution is worth nothing for proofe being the Chariot which carries the Judge to give sentence how can the Councell tell what the successe of a difference will bee which Answers a common Cavill that Lawyers will bee of any side and there is but one side true the truth lies many times in such a deepe well Vix est contenta doceri that every Lawyer hath not a Bucket to draw Titles of Law are very difficult perplext knotty cases which will hardly bee made plaine the Judge hath one eare for the plaintife another for the Defendant but the Councell hath both eares for his Client yet so as if he can discover the injustice of his Clients Cause and many times light may be seene at a little hole I am perswaded many of our great practisers will not maintaine him in it Deceptio visus for truly to speak well in a bad cause is but to goe to Hell with a little better grace without repentance it is but a kinde of juggling by an over curious flourish to make a shaddow seeme a substance if any of my profession think they may for their Fee maintaine a side which they think is dishonest because in darke times of Popery such opinions have beene held and distinctions invented that if a man have right to Lands and mistake his Action in such case a man may with a good conscience bee of Counsell with the Defendant though hee know his Client have no right to the estate such popish evasions are abominable amongst Christians I would fain but aske them some such questions whether the least evill may be done to procure the greatest good and whether every particular calling must not yeeld to the Generall of Christianity and whether a Christian may doe any thing against the truth or must doe every thing for the truth and whether to bee willingly instrumentall to condemne the innocent and to justify the wicked be not both an abomination to the Lord and whether he can Answer it at the Barre of Heaven Cadere in causa that many a poore man should be undone and want foode and rayment because he found out some formality of Law or defect in the proceedings yet perswaded in his Conscience that the poore man had right to the thing in question If any man practise upon such principalls I had rather be tongue tied or not know how to write my name Rather bee the Hall sweeper and should die with more comfort but inough I doubt not but good men will heare reason from their inferiours Labor intuâ— erit now the Client must be admonished who will bring himselfe into a laborinth doe we what we can Many have left their writings with me and upon the perusal I have advised them not to imbarque in suits how discontentedly have they gone away with Gouty hands as if I had beene their profest Enemy but speake pleasing words tell them their cause is good have honey in your mouth and then money in the hand another great fault in the Client is Placentia that he will seldome take advice in the beginning but the Bill Articles and Indentures
are drawne by some illiterate pretender to the Law who hath one formilarie for all bargaines one Saddle for all Horses Expectata diâ— seges allâ—sit avenis so many impertinent words that they ingender strife some Covenants so Prolix that a man can scatcely see the fruit for the leaves and the error being discovered the Client posts to Councell with an oh Sir if you can but cure such a mistake how thankfull shall I be unto you but the foundation being sandy all falls to the ground and hope deferred makes the heart sad I speake not against learned Presidents that I have often thought that for every contract put in writing concerning the value of 10. l. and truly I would not have any man question another for above 10. l. unlesse hee have something to shew for it in writing Melior est justitia perveniens quam puniens which would prevent much perjury and subornation if the parties contracting would advice with Councell to expresse their intentions according to Law this would prevent numerous litigationâ— and preventing Iustice is better then punishing because there is no offence commited so that I professe the Client might purchase his quiet at a farre easier rate then hee does were it not many times for his owne perversenesse but in all professions and relations there must be some graines of allowance Now I come to Answer that hearing a Charge that it is not an unusual thing therefore argumentatinely a usuall thing for a Lawyer to prevaricate and Confederate with tâ—e adverse party this is a pure libell without mixture or blemish I dare say that all of us do as much in our Iudgments and practises abhorre all manner of Treachery as our bodies doe in nature loath and detest poison the purest fountaine is not more free from mud then the generality of our profession from perfidiousnes It is in Accusations many times as it is in griefes Lâ—â—vs dolores c. Seneâ—â— great griefes are silent when lesse are eloquent this is a strange Giant-like report so far above the measure and stature of truth that I want words to give it any other answer H. the 6. being once struck admiring how any man durst offer to strike him said you wrong your selfe to strike the Lords anoynted but I beleive you did it not out of any ill will to me but to gaine applause It shall be a Royall spirit to Condonate Anonimous whom for my perticular I looke upon as some Malecontented Client that lost his wooll in the Briars through the injustice of his Cause or having bin abused by some silly fellow whom he too much trusted railes upon the Lawyers it being naturall to the Conquered to appeale to the people Victi â—est provocare ad populum and therefore as Lewis the 11. that great tax-Master said wee must give loosers leave to speake so say I but I hope there are few if any practisers now that prolong Causes to enrich themselves for that is to ad affliction to the afflicted Hee that does so builds upon the ruines miseries of his Brother that Phisitian or Chyrurgion which shall keepe the wound raw and torture the Patient to multiply his Fees feeds upon raw flesh And that Souldier which shall prolong the Warres to continue his pay lives upon the blood of poore Soules all which are hard meat must be vomited up againe by faith in the blood of Iesus Christ Pro. 20 17 or else it is no hard matter to determine how sad the issue will undoubtedly be for sweet is the bread of deceit but his mouth is filled with gravell but I must hedge my way least strange questions should enter we are called necessary evills truly to speake properly no evill is necessary because in respect of us it might have otherwise beene not having a necessary Cause but defective but it seemes he meanes that there is no more necessity of Lawyers in a Kingdome then there is of Woemen who have beene called necessary evills for my owne part I love not to fish in troubled waters much lesse Nero like to inflame others to warme my selfe I heartily wish that therewere no need of us further then to settle Estates and advise in difficult Law matters for which there will be use of Lawyers so long as the world continues for any thing I can as yet rationally imagine to the contrary but that many Lawyers should be an evident demonstration of a decrepit Common wealth is an ignorance in Politiques for it is rather an argument of a flourishing Kingdome for wealth increasing suites will arise though I confesse it is rather a dishonour to any state to have multiplicity of causelesse contentions and it is much to be wisht that there were neither need of Lawyer Phisitian or Souldier in the Kingdom for if the King would discharge his trust every man deale honestly and no sicknesse nor distempers what Halcion daies should we enjoy But when will there be a perpetuall spring for as our bodies by reason of the continuall expence of spirits have need of the Phisitian who is therefore to be honoured so offences will be given and differences be daily emergent because right reason does not alwayes mannage the will and consequently Lawyers as necessary in a Kingdom But Anonimous is angry because Lawyers grow Grandees in state De legibus Anglia as if it were a fault for him that wins the race to weare the garland Fortescue observes it as a speciall benediction upon Iudges and great practisers that their Children prosper in the world for the Generations of the righteous shall be blessed and Sir Edward Coke the Phaebus and Lipsius of our age whom I the rather mention because we are all beholding unto him for having dispelled many mists of error otherwise a Cloud in many Cases had dimm'd out eye sights observes that Lawyers have bin the founders of many of our eminent families And is it not as honourable to get an estate honestly as to keepe it neither virtue nor vice is properly hereditary what disparagment was it to Abraham that his Father was an Idolater in Vrre of the Culdees and as little honour to cursed Cham to be the Son of noble Noah but they who have bin an honour to the Law why should they not be honoured by the Law this I observe as an argument of humility of the reverend Iudges and Masters of the robe which have no title of honour as Iudges or Serjeants no more then an Alderman hath as he is a Cittizen whereas the Civilians beyond Sea give themselves what titles they please and if they say the Law is so who can gainsay it It had bin an easie matter for the Iudges of our Law to have adjudged themselves honourable Additionall Titles and degrees being matters within the verge of their owne Commission and jurisdiction and not matter of heraldry but if the King who hath ever beene accounted the supreame fountaine of