a more speciall Oath may be held as requisite that the Jurors had a more special and particular Oath when they are summoned and do appear but before they are sworn of the Jurie to know whether they have been forestalled by Informations or Persuasions as well as that they will give their Verdict without any particular respects to either side for it is like they will make more conscience being examined upon their Oath before they come to the Trial than after when they have suddenly swallowed the Oath without publick examination of the Justices upon Oath or particular and private of their own Consciences by this Oath And although there is good provision already taken by our Law that exception and chalenge may be taken upon reasonable and just causes allowed by the Law yet since this cannot be certainly known who is laboured and dealt withall before-hand but by the examination of a mans conscience upon a mans own Oath I am perswaded that this would prevent many corruptions in Trials by Juries whereunto the nature of man is subject to be drawn by solicitation of friends promise of reward or fear of displeasure And it would take away the scandal layed upon the Trial of Juries which as it is different from the course of other Laws so being well looked to by these and the like cautions there is no doubt but it is a most excellent kind of Trial especially in matters of Fact whereunto it is principally applied and being thus exactly executed I will be bold to say that it excells the Trialls of all other Laws and is one of the worthiest parts of proceedings in our law whatsoever some Calumniators have said to the contrary whereof he that shall desire to be farther satisfied may find it fully demonstrated in that noble and learned Chancellor of England Fortescue his Book Touching the other point wherein there may be some prejudice in Touching the Judges sinceritie the Trials of Suits for want of sinceritie in the Judges although there are at this time as reverend upright and learned Judges as hath been at any time within this kingdome yet that amongst them there have been always some who might be sometimes led by affection or by some other private respects may not be denied unless we should think that they all and every of them had more priviledge of not crring or of not affecting liking or disliking than either any other Judges or men of any other profession in the world are induced withall Therefore as a great Prince was content nay did command that every day one should come into his Chamber and put him in mind of his estate and to tell him these words Remember that thou art a mortal Man In like sort it is a thing fit to be considered whether it were not convenient that the Judges every Term and at every Assise or at An addition to the Judges Oath least once every year should publickly in Court and in open audience of the people take an Oath That they have not received nor will receive any gift or reward or promise of reward for their favour in any Cause heard or to be heard before them nor will for favour fear or affection incline to either partie otherwise than as the very truth of the matter shall move nor shall receive private Information Messages or Letters of Recommendation to draw them aside from sincerity or to shew favour to any partie but that they shall speedily make known the same in open Court By which means the Judges shall be less importuned by men of power and shall keep their Consciences clear and unspotted If the like Oath were given to the A means for the Judges to avoid importunitie c. Masters of the Chancery who in some Cases and at some times do sit as Judges and most commonly by their Reports do much guide and direct the Decrees in that Court it might perchance avoid much imputation to themselves and prejudice to others But against this there is no doubt but there will be many Objections made As first That this Oath being new Objections against giving the Oath to the Judges and so often taken would argue distrust in the uprightness of the Judges and that it will be a disgrace not only unto them but to the Place wherein they sit and consequently an imputation to the Justices of the Realm that they should not be trusted upon an Oath as Christians ought to be in other Cases And next that it will be an impeachment of reputation to all former Judgments and Judges who were not tyed with so strict a Band. And therefore if this were now necessary then were they in former times let goe with too long raines of libertie and of looseness That which may be answered to Answ to these Objections these Objections is this First That this new more strict and frequent Oath doth not so much argue distrust in the Judges as put them in minde of their Duties no more than the often calling of a Steward or other great Officer to a strict and often Accompt doth presuppose that his Faith is alwaies doubted nay it is the best means for his discharge which most wise and honest men do much desire and so in this Case it may be said that this Oath thus taken is the strongest Argument that may be to free the Judges from suspicion of Corruption whereto they may many times be subject causlesly for what man of any charitable and reasonable consideration will conceive but that he that is more often and strictly sworn to doe his duty will be more carefull to discharge it than he who but once in his life receiveth that Oath And for some part of this Oath it is such that no Judges of this Land have been formerly sworn unto and yet it is such as by the opinion of some both wise and learned is held most necessary For the other Objections That it will be a disgrace to their Places and to precedent Judges and Judgments that these are oftner and more strictly sworn than were former Judges Divers do deem that neither of these consequents will ensue One reason is That if this Oath be a disgrace to precedent or to present Judges then the like would ensue That an Oath taken by a Bishop of this Land not long since of his clearness from Simony and from giving any thing for his Bishoprick would be a disgrace to him or to his Predecessors who had not taken the like Oath before Yet I think no man will conclude so but rather that this is a worthie Precedent fit to be followed and to be left unto posterities Also it may be said the more multiplicitie of Suits that doth increase as indeed they doe dailie the more caution is to be used and the more care to be enjoyned unto the Judges in the Trial of them Secondly The former Judges followed the Oath which was given them and therefore no disgrace to them that
Cases and in some Courts goeth out in the Kings name Also for the conventing and summoning of any man before the Judge greater Liberty is given by the Law of By the Civil Law one might not convent a Magistrate c. England than was antiently allowed by the Civil Law For by the Civil Law a man might not convent a Magistrate nor Judge nor one that was marrying a wife or a man that is performing the Funerals of his friend or a man that is pleading or following his Cause before a Judge nee parentem patronum parentes patroni in Jus saith the Praetor sine permissu meo ne quis vocet But by the None exempted from Suite by the Laws of England Laws of England none are exempted from Suite only Dukes Earles Barons and their Wives are priviledged that a man cannot attach or take their persons by Capias both for the honour of Nobility and because it is supposed they are never without some goods or land which may satisfy the Debts But if the action be against the Crown and Dignity or Contra pacem then for their violence their bodies also were subject to the Kings Writ The same Law is of Abbots and Priors The Civil Law allowed more exemptions from appearing to Suits than the Law of England But the Civil Law alloweth a greater Liberty and saith generally eas personas quibus reverentia praestanda est sine jussu Praetoris in Jus vocare non licet And yet although the Civil Law be more liberal in allowing exemptions from Citation and summoning of persons to appear than is our Law of England notwithstanding there is difference betwixt these Laws in the form of Suite and pleading upon divers process wherein these two Laws might perhaps correct each other whereof but a touch shall be given at this time and it may be more shall be said at the conclusion of this tract when the remedy and redress of some things conceived to be amiss in our Laws shall be spoken of The second point concerning the The second difference in the form of pleading difference betwixt our Laws of England and the Civil Laws being in the form of pleading and diversities of process For the first which is the form of pleading only they agree in this That both the Laws have had a special respect of nice observation and also have endured alteration in pleading For first the Civil Law after that in Rome the Decemviri had gotten the Law of the 12 Tables and that Interpretation grew frequent upon them then saith Pomponius Ex his legibus eodem fere tempore actiones compositae sunt quibus inter se homines disceptarent quas actiones ne populus ut vellet institueret certas solennesque esse voluerunt appellata haec pars juris legis actiones id est legitimae actiones and immediatly after saith he Omnium harum interpretandi scientia actiones apud Collegium pontificum erant c. Afterwards the Actions were as Livy reporteth and the Book of them gotten by C. Flavius Secretary to Appius Claudius was by him published and so communicated to the common people for which they bestowed on him the Tribuneship and other Magistracies they called that Book Jus Civile Flavianum Like to which also Sextus Aelius framed another which was called after his name Jus Aelianum These formulae Juris were used very strictly for saith Wesenbechius Olim ut omnia ordine recte procederent ne temere sineque causa quis ad jurgia lites conudaret impetrandum erat à praetore judicium qui actori postulatam à se actionem impertiebatur formulam agendi disceptandique pedaneo judici litigatoribus praescribebat So that then by the Civil Law the planitiffe did get his form of pleading from the Judge or Praetor which was afterwards upon experience of inconvenience altered by the rescript of Constantine which Justinian hath put in his Code likewise Theodosius and Valentinian hath done the same But the difference betwixt this and the pleading of our Common Law is That at no time was the A strict form of pleading required but not particularly prescribed by our Laws plaintiffe tied by the Common Laws of England to receive his whole form of pleading from the Judge although it be true that he is required to set down a strict form of pleading according to the Law upon his own peril Also another difference there is in Different forms of pleading in our own Law in several Courts and much more betwixt both the Laws the forms of pleading betwixt these two Laws First that our forms of pleading do differ according to the different forms of pleadings and declarations in several Courts which the Civil Law doth not Secondly and particularly the form of pleading in the Civil Law is in all actions personal because they do ex obligatione tanquam causa proxima competere actoribus in the Libel you must express the remote Cause and not only the next Cause as for example I lend mony to Titius now I may have an Action against him for it The remote cause is the lending the next and immediate of the Action is the obligatio as they call it Now if I Libel against Titius if I say Ago ad decem ad quae Titius est mihi obligatus This is naught saith Minsinger shewing it out of other The Civil Law in personal actions doth express the remote cause in the Libel but in real actions the next Cause authorities because the remote Cause is not in the Libel But if that had been in alone that had been good as Mutuam Titio decem peâ—o eum condemnari But in real Actions they go inversa via putting in always the next Cause but not of neccessity the remote but at the pleasure of the Advocate as Peto fundum istum à Sempronio quia ejusdem sum dominus fundi here the dominium is the Causa proxima and if the Advocate dare venture it he may say also sum dominus quia emi where the remote Cause is also contained A very nice difference which is not exacted in the form of pleadings How in our Law the remote and next Cause are both expressed in all actions in our Law But it is usual with us that in every Mans real personal and mixt Actions the Causa propinqua and remota are both put in the Declaration yet so that in the Common Pleas in the Writ commonly is expressed the next Cause and in the Declaration which containeth the Writ also the remote Cause but in some the Writ doth contain the other as in wast the Writ quare fecit vastum in terris quas tenuit ex dimissione ad exhaereditationemâ— here is the remote Cause But in Action of Debt praecipe quod reddat vj. libr. quas debet here is the next Cause and the Declaration contains the remote as Contract Bargain c. Neither is there any
their Successors have a more strict Oath nor is it any disgrace to them that receive it because it belongs unto latter times to provide for that which former Ages have left undone And in this new Oath no Judge is singled out or made a mark by himself which if he were it might indeed tend much to his disgrace as a great argument of distrust in him But whether this Oath or any part of it and whether the latter if not the former be to be used or whether it be often or seldom to be administred is a matter which I submit wholly to the Censure of such as are most Judicial and fit in the highest seats of Authority and Judgement To the second Point spoken of before which concerneth the over-burthening of the Subjects by delays and by diverting the right Proceedings of the Law This is not to be attributed to the Laws themselves nor to the Judges thereof but to the corrupt ministers officers and practitioners of the Law who do as most men in other Faculties are accustomed prefer their own private profit before the publick utility They from whom these faults do flow which are commonly but not justly imputed to the Laws are amogst others these that is to say Councellors at Law Atturneys Officers in Courts of Records Sheriffs and their Bailiffes c. For the first sort which are the Councellors at Law and Barristers as they are called the right Proceedings of the Law in divers particular mens Cases in Suits is many times diverted and sometimes overthrown by their multitude insufficiency advice of delatory or defective Pleas by their taking of excessive Fees and by their absenting of themselves from the Barrs and places appointed to plead for their Clients after that they have taken Fees First the multitude of Councellors Multitude of Councellors at Law and outer Barristers is so great that many of them are not able to maintain themselves and some have few or no Clients at all especially such of the second sort as were named to be insufficient who if any Suitors at Law come unto them for Counsel by reason of their acquaintance kindred or other private respects they many times send them away unsatisfied or if they rely on such weak Councellors sometimes their good Causes for want of sound Counsel are overthrown The reason of the multitude and insufficiency of many of these Councellors The Insufficiency of divers Councellors at Law at Law as I conceive it is because divers of them are admitted to the Barr before they have read over half the Volumes of the Law and before they have with any good Commendation or allowance performed the exercises at Mootes and at Readings which is requisite for the place and for the testimony of their Profession and sufficiency but having lived so long in one of the Inns of Court as is prescribed by the orders of that house wherein they are although they be and are known to be no profitable or painfull students yet by favour they find meanes to be called to the Barr many times to their own hindrance and much to the hurt of such as have their Counsell The second Cause of this their insufficiency is for that they have of late been permitted to plead at Barr and to put their hands unto Pleadings as soon as they are made Barristers whereas in former times it was neither usual or allowed that they should either plead at Barr or put their hands to Pleadings till three years after they were called and in those times they were kept more hardly and strictly to their Mootes and Pleadings in those houses wherein they continued The Inconveniencie of this generall untimely and promiscuous kinde of Pleading and counseling by all sorts of Lawyers in Rome aswell the unlearned as the able and sufficient was foreseen and in some sort prevented by Augustus the Emperor in his time who ordained Augustus his restraint of Lawyers in Rome that no Lawyer should practise without his royal assent and approbation first had If the King's Majestie did take this course with our Common Lawyers or else assigned some others of greatest authoritie and Judgement in the Law to take good notice and assurance of their sufficiency before they should be admitted to practise there would not be such a deluge of insufficient Councellors at Law within this Kingdome by whose Ignorance and want of knowledge many mens Inheritances and Estates are overthrown For their perillous advice of delays The ill advice of Councellors given to their clients and of other evasions to procure gain unto themselves and less unto others it is sure that there are divers Councellors at Law who study nothing more than as it may be truly termed the Gall of the Law how to seek evasions and to defeat the true meaning of the Law and aswell to draw some into danger of the Law and to overthrow the Right of others by their own incircumspection by their Adversaries cunning and by the advices of such wicked Councellors against whom there should be some sharp Law made for their punishment or if not so yet it should seem requisite that every Councellor at the Law should An Oath necessary to be given unto Councellors at Law when he is called to the barr take some special Oath for his upright dealing in the advice of his Clients to proceed according to Equity and that he should not lead them into any by paths of indirect and un-conscionable evasions contrary to the true meaning and upright course of Law and of a good Conscience By this means if they who take this Oath have any good Conscience in them the expence of much money in Law may be saved and honest peaceable men kept from the trouble of quarrelsome and unquiet Neighbors in Causless Suits Another abuse there is offered by The excessive Fees that Councellors take the Councellors at Law in the taking of excessive Fees which late Custome their extream covetousness and the necessities of mens Estates in their Suites have introduced For of late years and in the memory of many men yet living xx s. was a good Fee for a great Councellor not onely to move but to plead at the Barr and if a Serjeant at Law had x s. for to argue a Case he thought himself well rewarded But now what Councellor of account and of good practice is there that will think xl s. a sufficient recompence if he do argue any mans Case at the Barr nay that Serjeant at Law who hath but v l. given for such a purpose will goe thither with an ill-will or else not come at all besides how often Many Fees every Term for one Cause they must be feed in one Case even in one Term although of the poorest Client they have if they have occasion to come often unto them common experience and many poor mens Purses can too well tell Therefore when it pleased the King's Majesty at his first coming to this
being Liberum agens is subject to no Law but his own Will is the perfect Law of Justice which is the Fountain from whence all Laws are derived to all things in Heaven and in Earth Law hath a threefold respect and is divided according to the diversity of things to which this great Law-giver doth dispense Law They are of three kinds to wit the Natural Sensible and Reasonable agents To the first are referred the Elements and all compounded things without life They are guided by that Law which was imposed on them at the begining and they do never break it The second which is the Sensible agents are all living Beasts which are guided not with so forcible a Law of necessity as the first for they are not ordained to keep their certain and setled stations but they do follow their own kind and appetite wherein yet they do not transgress the Laws of Nature The third kind of agents called Reasonable are Men and Angels and they at first were created with a possibility of performing or not performing the Laws imposed on them According to these three forenamed A threefold Law Subjects of Law there is a threefold Law as some say given unto them that is the Divine Natural and Humane The first delivered by God and written by the direction of his Holy Spirit in the Old and New Testament The second stamped and as it were engraved by him in mens hearts The third derived out of the two first and devised for Government and Society amongst men Some others do divide Laws into four parts that is the Law of Providence or the eternal Law of God which is his wisdom by which from Eternity he that is called Antiquus dierum hath pre-ordained all things before their beginning whereof St. Paul speaketh when he saith that Deus voeat ea quae non sunt tanquam ea quae sunt The second is the Divine Law which God hath given in his Old and New Testament to conduct men unto their supernatural end for his Glory and Service and for their own final Salvation Of this Jeremiah speaketh by the Spirit and as in the Person of God Dabo Legem meam in visceribus eorum scribam eam Of the third which is the Natural Law the Apostle Paul maketh mention Gentes quae legem non habent naturaliter quae legis sunt faciunt Of the fourth which is the Humane Law warranted by Gods Word the Apostle Paul likewise speaketh Omnis anima potestatibus sublimioribus subdita a sit So that all these Laws have their warrant from Gods Word save the Eternal Law which was his will and wisdom being from the beginning before any Law was written or could be divulged Therefore next to the Eternal Law The excellency of the Divine Law the Divine Law springing from the same hath his place and preheminence before all other in Dignity and Antiquity because from it all other good Laws have their derivation and foundation or else are squared by it and for that it suffereth no mutation in it self In amplitude because it affordeth the self-same Rules and measure to all Men and Nations without difference of Persons Place and Time or any other such like circumstances by which other Laws are often altered And of this Divine Law the Decalogue or Ten Commandments delivered by God unto Moses on the Mount and by him to Gods people is a Compendium or full Epitome of all the rest as unto which the rest may be reduced as Conclusions drawn out of certain Principles The Law Divine delivered by God The Law of Moses or of the Old Testament more antient than any humane Law unto Moses is in Antiquity before all Humane Laws for though Pliny goeth about to prove that Ceres was the first gave Laws unto men and as others attribute that honour unto Radamanthus yet Josephus writing against Apion directly proveth that Moses was the first did promulgate unto men the Laws delivered unto him from God and that long before those Law-givers whom Isidorus nameth as Pharonius to the Grecians Mercurius Trismegistus to the Aegyptians Solon to the Athenians Lycurgus to the Lacedemonians Numa Pompil to the Romans The Law of Nature is next to the The Law of Nature next to the Divine Law Divine Law in excellency antiquity immutability and severity because it began with mans Creation it never changeth being nothing else as one defineth it according to the part of the Law of Nature which is called secondary whereof we shall have cause to speak somewhat in the next Chapter but dictamen rationis in rationabili creatura therefore this Law of Nature secondary is the effect of Gods Law in the mind of man and the impression thereof as a step in dust is the effect of the foot which first framed it And this secondary Law of Nature is in some sort contrary to that first Law which St. Paul calleth the Law of the Members being a natural inclination to sensuality After these Laws followeth the Humane or Positive Laws of men which being the prescript and particular rules by which the actions of men should be reduced and conducted to their due ends and this grounded on the Eternal Divine and Natural Laws mentioned before but yet still measured and moulded by the reason invention and disposition of men which is most commonly variable and diverse no marvel then if also the Laws of men setled upon such slippery foundation of different reasons and affections be also changeable and subject to imperfection whereof Justinian in his Preface to the Digests doth render the like reason saith he Sed quia divinae res quidem perfectissimae sunt humani vero juris conditio semper in infinitum decurrit nihil est in eo quod stare possit perpetuo multas enim formas natura novas edere deproperat No Humane Laws can be made absolutely perfect no more than other Arts and Sciences can be perfected by men since Art is the imitator of Nature and even Nature her self is imperfect in her works The conclusion therefore is short and certain That those Humane Laws tend most although hardly can they attain to perfection which do square most and most depend on the Divine Eternal and Natural Laws And on the contrary those positive Laws of men are most corrupt and unprofitable which swerve most from them Since we see what Laws are perfectest and which are subject to most imperfection let us a little consider what conditions are required in Humane Laws to help them towards perfection They by Isidorus are described to be these that is that they be honest Certain conditions requisite to bring Laws towards perfection just possible according to nature and custom convenient and agreeable to the time and place that they be necessary and profitable manifest and perspicuous lest by their obscurity the uncircumspect be intrapped that they be not made for private profit but for publick utility Others require fewer yet as
are called the Common Laws of the Kingdom because all the Subjects of this Kingdom must live under them and may challenge them as their Birth-right for the defence of their Estate Right and Liberty In which sence also the general Laws of any Kingdom or Commonwealth may be called their Common Law Howsoever it may be a question how at the first the name of our Common Law came or how the same may differ from the Statute Laws or from any other Law allowed within this Kingdom Yet it is certain that the The municipal Laws of England is the most proper Title of our Laws Term and title of the municipal Laws of this land is both proper to our Laws and doth include all our Laws as well the Statute as Common Law First it is proper in that our Laws of this land are peculiar to this Kingdom and the territories thereof and thereto adjacent being not elsewhere in use or allowed Now for the Municipal Laws of this Kingdom under which title the special and particular kindes of our Laws of England may The division of our Laws of England into several parts and grounds be most aptlie comprehended sundry persons have made several Divisions thereof Some have divided them into Customes which is like to the Civilians Jus privatum and into Statute Law others into Common Law Customes and Statute Law This last Division consisting of three Another division of the grounds and parts of the Laws of England parts Seingerman in his fundamental partition of our Laws doubleth by adding thereto another foundation and division of our Laws which is the Law of God the Law of Reason and certain principles or maximes which with the three former he maketh as several grounds of our Laws of England They which stand to the first bipartite division of our Laws setting them to stand only as it were upon two leggs do conjoyn Custom with our Common Law for they say what is any Custom allowed by the Laws of the land but the Common Law of the land since that the Judges to whom delegation is made for the Whether Customs allowed for lawful be ground or made parts of our Law determination of civil Causes do admit those Customs to be pleaded before them and do give judgment for the same yet the difference between them will be first that these Customs do not equally extend throughout the Realm and therefore if they be incorporated into our Laws they are but private and not our Common Laws Secondly the Judges do ex officio take notice of the one but not without a special pleading of the other So it may well be said in some sort that Customes allowed for Laws or for lawful may be made some part of our Laws but yet I can hardly allow them the honour to be made grounds of our Laws unless they be first reduced to certainties and so be made as it were maximes So are general received opinions by Custom continuance and approbation of authority and Judgment made Common Laws whereto some add this rule Communis error facit Legem As for the other addition of St. Germans St. Germans division of the grounds of our Laws not allowed sextuple division of our Laws of England although he hath therein shewed some learning yet without offence be it spoken he hath mustered together divers things different in name but the same in nature For what is the Law of reason other than the Law of God if it be rightly understood because what proceedeth from reason not darkned with the clouds of error but such things as were charactered in the soul by him which first framed it according to his likeness And saith Seneca quid est ratio he answereth himself naturae imitatio Therefore that our Laws of England are composed and wholly framed on the Laws of God is more than may be said of them or of any other humane positive laws but that they do depend on them and not mainly differ from them may be well and truly justified Now for as much as there hath bene mention made of three principal parts of our municipal Laws let us a little take some particular and several view of them what they are they are said to be the Common Law the Statute The particular parts of our Law examined Law and Customs allowed for law The first which is the Common Law of this land consisteth partly of the collection of such laws as were allowed by King William the Conquerour What Laws King William the Conqueror allowed in England who neither wholly introduced his Norman Laws nor altogether allowed of the former but out of the best parts of either took that which was fittest for the time and present government The former laws which he allowed of were such of the Saxons and Danish laws as he found fittest for the time And first of the Saxons who came into this Kingdom about Anno 449. whose King Ethelbert of Kent did constitute as Beda saith decreta judiciorum Some part of the Saxon and Danish Laws allowed by the Conqueror cum consilio sapientum quae conscripta saith he Anglorum sermone hactenus habentur observantur The succeeding Saxon Kings did in their Wintenagemotes or conventus sapientum which were in the nature of Parliaments make diverse constitutions cum consilio sapientum senatorum cum Episcopis as that Learned and industrious gentleman Mr. Lambert affirmeth who compiled some of them into one book as the Laws of Inas Alfred Athelstan Atheldred Canutus Edgar Edward the Confessor and others out of which the Conqueror took such as he thought convenient whereof some are enumerated by the forenamed Mr. Lambert and by Hoveden Also Gervasius Tilburiensis he The Conquerors allowance of the former Laws saith of the Conqueror decrevit subjectum sibi populum viri scripto legibusque subjicere propositis igitur Legibus Anglicanis secundum tripartitam earum distinctionem hoc est Merchenleg Daneleg West Saxenleg quasdam reprobavit quasdam autem approbans c. The first part of the Common Law of England So then we see that King William the Conqueror took some of the ancient Laws of this land which is the first part of our Common Law of England The residue which came for a supply unto the same sprang out of the judgments given since in particular cases upon arguments made before and by the learned Judges of this Land The second part of the Municipal The statute law differing from the Common Law yet a part of our Municipal Laws Laws of this land though not properly called but differing from the Common Law as the Pretorian Law amongst the Romans did differ from their Civil Law is the statute Law of this Realm made by the King as head with the Nobles and Commons as members of this body politique This Law was invented to give speedy remedy and redress unto such suddain matters as were mischievous in the
Commonwealth the punishment and prevention whereof was defective dispunishable or not fully provided for by the Common Law the first of which statute Laws now extant was made in the nineth year The first statute law that is now extant of King Henry the third For the making of Statutes and assembling of Parliaments in which they were ordained he which will diligently read the ancient Stories of Malmesburie Huntingdon Hoveden and Math. Parisiensis especially above others shall find that there are no smal mistakings in some things about the antiquity and true conceipt of their Customs and strength There is according to the partition of some another part of our Law or at the least a derivative out of the same that is the Customs held for Law or judged lawful which have been allowed of ancient times Custom laws another part of our Laws as some hold it in particular Counties and places of this Kingdom as in Kent they have many and especially that of Gavelkind throughout the whole Country whereby as well the youngest as the eldest Son should equally inherit which they reserved and retained by offering battel to King William the Conqueror The Custom of Borough English is another whereby the younger Son is only inheritable and this is particular to some ancient Boroughs and peculiar only unto them There is likewise the Custom of Glocester Honour containing many priviledges particular to that place So have diverse other great Lordships Mannors and some Corporations their particular Customs and special priviledges which are therefore properly called priviledges quasi privatae leges How privileges are called Laws and these having by long Custom and consent had continuance and allowance they are thereby made lawful and in some sort stiled and reckoned as part of our Laws although in some points they do differ from the rules of the Common Law And therefore the Civillians call such Customs jus singulare quod contra tenorem rationis propter aliquam utilitatem authoritate constituentium introductum est That the Laws of England do differ from the Laws of other Countries there is no doubt as there is no Country but hath some constitutions contrary to any other even of their neighbour Countries Laws But if any do demand how the Wherein the Laws of England do differ from other Laws Laws of England do differ from other Laws it may be found somewhat in their institution and foundation more in their form and method but most in the course of their proceedings and execution For the first it is apparent that the Laws of other Countries for the most part are grounded or do fetch their Rules from the Roman and Imperial The Laws of England take not their grounds from the Civil Roman laws as other laws do Civil Law but the Laws of England are not founded nor do any way depend on the Civil or Roman Imperial Laws For the Laws of England take their grounds from the considerations and Rules of reason equity and general respects weighing therewith what is convenient or inconvenient to the whole Commonwealth or the greatest part thereof and holding it for a general Rule to be safer and better to suffer a mischief than an inconvenience The second difference betwixt the Institution of our Laws and the Laws of other Countries is because the Laws of this Kingdom are not made The Prince doth not of himself alone make the Laws of England as the Emperor and other Princes have done by the Prince only as sometimes the Laws of the Empire and of some other places were where the Princes had both an affirmative and a Negative power in ordaining Laws for the people under them But in England as the Laws concerning penalties in Criminal causes or in Civil cannot be enacted and established without the Kings Royal approbation So doth not the King make these Laws without the consent of his Parliament The Laws of England do likewise differ from the Laws of other Countries first because the Common Law of England is not all written and certainly set down but doth rest much The Law of England not all written nor all set down in Method as some say in Pectore Judicis and also it doth differ in Method from the Civil Law and from some other Laws because it is not digested into Method by Titles Chapters and distinctions For the first though it were to be wished that the Common Law were all written and that it were so made certain if that might be possible as it should not need to depend upon private and particular opinions yet if that may not be the inconvenience is not altogether so great as some conceive it for all Countries Some countries had their Laws written and some had not have not had their Laws written and set down alike The Athenians used only written Laws The Lacedemonians had none written The Romans had both The last difference betwixt the Law of England and other Laws but especially the Civil Law being in the proceedings and execution thereof which will appear principally in these three parts First in the manner of Three differences betwixt the Laws of England and the Civil Laws Summoning as we say or Citation as the Civilians call it Secondly in the form of pleading in the Courts Thirdly in the Judgment or Sentence to which may be annexed also the Execution upon the same For the manner of summoning or citation by that which was anciently used in Rome a man might of himself Difference in summoning or Citation without any process cite his Adversary and compel him by force to come into the Court whence the phrases of in Jus rapere in Jus ducere and such like are used by Plautus Horace and other authours This was not in ure at any time within this Kingdom of England but it hath been held better and always fit That there might be some processe sent forth and so a plainer more peaceable and lawful course should be taken as if the King who is the head and fountain of Justice or the Judge under him had been first informed of the Suite the like course was afterwards and is now taken in the Civil Law For a Citation by Math. Wisenbich is defimed to be actus Judicialis seu Judicii praeparatorius quo is quem corà m sisti opus est Judicis mandato legitime vocatur jur is experiendi causa of which according to other Civilians he in his paratitles maketh three parts 1. Praeceptio Judicis Three parts of a Citation according to the Civil Laws now used 2. Verbalis citatio nuncii 3. ejusdem nuncii relatio quae saith he nisi exactis appareat non valet citatio In these three parts of summoning or Citation the Civil Laws and the Laws The Writ of Summons in our Law goeth out in the Kings name in some Courts but not so in the Civil Law of England do not disagree save that in England the Writ of Sommons in many
Declaration in our Laws as the form is now used but contains both Causes in it besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws which would be too long and tedious to recite The next difference is in the Process 3. The third difference in the awarding of Process awarded in both the Laws Concerning the awarding of Process we find that with us in personal actions I mean in many of them joyning Statute Law and Common Law together In Actions personal more Process and delay permitted by our Law than by the Civil Law there are commonly awarded if the Suite be commenced in the Common Pleas summons attachment distress three capias with an exigent at the last whereby the King hath Title for the parties contumacy to his Goods and Chattels So that the plaintiffe hath now remedy by accident only and if the defendant appear and reverse the Outlary or get pardon and so answer c. which is a long time before this can be brought to pass and by this means this Suite may depend long yet the defendant never convented but at two or three years end the plaintiffe may be driven to declare anew as if he had but then begun his Suite But by the Civil Law as the Pandects shew us and Wesenbech affirmeth the Term to be now in the Empire post absentiam adversarii petat quis edictum primum mox alterum per intervallum non minus decem dierum tertium quibus propositis tunc peremptoriè impetret quod inde hoc nomen sumpsit quod perimeret disceptationem hoc est ultra non pateretur adversarium tergiversari Then if the defendant appear at the day given him by the Peremptory edict No judgment given in the absence of the plaintiffe at the Civil Law or if he do not the matter shall be discussed and judgment given for him whose part shall be found best But if the plaintiffe appear not then nothing shall be done but circumducendum erit edictum perpetuum And the peremptory edict may at the pleasure of the Judge be granted at the first by the same authority So that The interest of the plaintiffe lesse subject to prejudice in Actions personals by the Civil Law than by our Law hereby the Interest of the party who hath right is less subject to prejudice by that Law than by ours And this course of the Civil Law doth not admit so much delay as doth our Common Law For by our Law in such Cases where no Outlawry lieth in personal Actions there the Process of distress goeth out infinitely and then is there no end of the Suite as in per quae servicia quae juris clamat and such like wherein it is true that our Law severely punisheth the party which so much sheweth contumacy to the Law yet doth it no good or very little to the plaintiffe for his satisfaction But there is another difference that in Actions altogether real as Entry Escheate Right Dower and such like the remedy allowed by the Laws of England is far better for in them if at the day appointed upon the first summons the party make default and the quarto diepost be past then is there a graund cape to take his land into the hands of the King and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath that he was not summoned according to the Law or such like always remembred that Essoynes upon just occasion may herein breed much delay And herein is there much difference betwixt the Civil Law and our Law for in the Civil Law upon their peremptory edict notwithstanding the defendant A main difference betwixt the proceeding of our Law and the Civil Law in Actions real doth not appear the right shall be examined and thereupon judgment given but with us upon the default at the graund cape the plaintiffe shall have the land by judgment although the right be not examined As also upon the appearance if by oath he cannot save the first default likewise if he once appear and afterwards make default before judgment given there must be a petit cape awarded at which Writs return if he do not save the first default there shall be judgment given against him That all this was antient Law may be seen in Bractons Treatise de defaltis So that in personal actions the Civil In personal actions the Civil Law is more severe but in real more remiss than our Law of England Law hath a more severe and speedy course for recovery than the Common Law of England but in real actions it is somewhat more remiss or at the least ours is more severe For the last difference spoken of betwixt 4. The last difference is in the giving and Execution of judgment these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem although the form and circumstance thereof may be divers yet in these real actions quoad substantiam effectum the difference is not very great for both Laws must make Execution of the same thing though perchance not in the same manner But for personal actions it is manifest by the course of antient and present times that for Debt ever since King Edward the third his time and damages and accompt ever since Henry the third his time in actions upon the Case ever since King Henry the 7th his time and in all actions Execution against the person after judgment by our Law in actions personal where Capias lieth in the Process before judgment there Capias ad satisfaciendum lieth after judgment to put the party in prison for Execution than the which although a more rigorous Law were by the 12 Tables whereby Corpus inter creditores secari licebat whereof Rivallius saith an example is not read in any History or other Book yet afterwards by their Lex Petilia it was decreed as Livy reporteth that no man should be for Debt nervo aut compedibus vinctus which notwithstanding was used sometimes by the violence of Vsurers and therefore sometimes renewed by the Laws Portia Sempronia Popilia and other whereby terga civium were made tanquam sacrosancta Also by the Lex Julia if the Debtor would leave his goods his Body was free as appears by the same reported in the Code But this Law Hottoman thinketh not to extend unto Banquerupts or such as are non solvendo by their own default But by the Anthentiques and Latine Law if The Civil Law more mild of latter time than ours for Execution against ones person in debt c. a man were poor by some external misfortune and not by his own means if he would ejurare copiam bonam he need not leave his goods for his Creditors nor subject himself to Prison which is so mild a Law towards Debtors that it hath no proportion
place about the 8 of King Charles 1. but it was taken up and so ended This Trial was both in civil and criminal Pleas. In civil Pleas it was only in a Writt of right by Champions in criminal Pleas it was in an appeal of Death by the parties Battaile is also termed a Trial in A Trial termed Battail but by Writ a Writ of right of Advouson and Rationabilibus divisis and other Writs which concern the Right only as Fitz-herbert witnesseth and also in civil Causes the Defendant might sometimes wage Battle himself as Glanvil saith lib. 2. Cap 3. Trial by Oath is as heretofore Trials by Oath used by wager of Law upon Contracts without specialtie in an Action of Debt This trial about Edw. 3. and Edw. 2. time was used in Actions which began ex maleficio as in contracts ex stipulatione for in Trespasses it hath been used as divers authorities are in the Year-books But yet of late by reason mens Consciences were found to be large and foul whereby the Oath of a perjured person for his owne profit might much prejudice an honest Man the Trial by Oath is Trial by Oath is much prevented much prevented by turning the formerly used Action of Debt into an Action upon the Case wherein no Wager of Law lyeth The most common and proper Trial by Jury most frequent and in force Tryal of Suits in this Kingdom heretofore and now in force is by Jury that is by Oath and Verdict of twelve Freeholders both in Actions reals for Lands and Actions personals for Contracts and Trespasses In this Trial the Jury is not tied only to the Evidence of two men or of more Witnesses but may find Veritatem facti upon Circumstances or by Witnesses or sometimes especially for want of manifest or probable Evidence upon their own Knowledges And in Cases doubtfull concerning points of Law the Judges are to deliver Veritatem Juris If the Jury erre in their Verdict Attaint of a Jury erring an Attaint lyeth against them wherein the matter must be tried by 24 sufficient and substantial Jurors and that to be final If it be found by them that the former Jury hath given a false Verdict and were forsworn the party wronged is to be restored to his Right and the first Jury grievously punished by the Common-law which punishment is mitigated by the Statute of 23 H. 8. If upon any Action or Suite commenced Error of Judgement how reformed the Judges do erre in Judgement in any Court of Record or that the same be supposed A Writt of Error lyeth before other Judges superiors If in the Exchequer it lyeth in the Exchequer Chamber by the Statute of 31 E. 3 Cap. 12. If in the Common-pleas or Chancery in Latine proceedings it lyeth in the Kings-bench If in the Kings-bench heretofore it lay only in Parliament but now by the Statute of 27 Eliz. in the Exchequer-chamber before the Justices of the Common-pleas and Barons of the Exchequer CHAP. X. Of some things in the Ministers and Proceedings of our Laws conceived worthy to be reformed BEcause there are divers who do complain much against our Laws whereof I may be bold to say that many if not the most part do not rightly distinguish betwixt the Use and the Abuse of our Laws The Use and Abuse of our Laws not well distinguished by some or betwixt the Laws themselves and the ill Practice and Proceedings of some corrupt persons in the handling and trial of them and for that I have formerly made some Apologie for our Laws in answer of these accusations I hold it as fit in plain and sincere dealing to deliver what defects or other indirect proceedings I do conceive there are practised in the Trials of Suits tending to the delay overburdening and deluding of the Subjects in their Suits or to the defrauding of the Law it self The Authors intention in the withdrawing or declining of it from its natural pure and upright Course which I shall set down by way of supposition only as farr as I can conceive rather than of any peremptory position And in the same sence have I spoken all the rest allwayes submitting the same unto deeper Judgement of them that are learned in our Laws The Defects whereof I spake before Defects of 2 sorts that is in Trials Proceedings of the Law are of two sorts Defects in Trials and Defects in the Proceedings of our Law The first whereof as I conceive proceedeth specially from two causes want of understanding or indifferency in Jurors who trie want of Integritie in Judges who direct Jurors much in matter of Fact and have the whole power in deciding points of Law Touching the former whereby in Want of understanding in Jurors course the Verdict of Juries the Rights Inheritances whole Estates of most of the Subjects within the Kingdome are either tryed or subject to be tryed and yet in many places the Jurors for the most part are found to be simple of mean capacitie and of as small substance in Estate for either no better are impannelled or if better be they of best Abilitie and Judgement do absent themselves presuming that either by some excuse made for them or by some other means they may be dispenced withall or if this serve not the worst is but to pay some small Fine So usually the Service is imposed on them that are least able to discharge it Sometimes to the no small prejudice of mens Rights wherein it were to be wished that either by some farther Laws or at the least by better Execution of the former Laws Sheriffs Sheriffs to be compelled to impannell able men in Juries were compelled to impannell in Juries none but men able for Judgement and Substance And that such being impannell'd a more strict No dispensation with Jury men to be permitted Course were taken by the Justices for their better appearance and attendance without any kind of dispensation or connivence Care hath been taken to remedie this by the Statute made 16 and 17 Car. 2. 3. Also another abuse there is concerning the impannelling of Jurors worthy of reformation which is That the Jurors of the principal pannel seldome appearing full it is found an usual practice for the Plaintiff to request Free-holders his friends to Free-holders desired to stand in view that they may be retorned of the Jury stand ready within view of the Court to be put into the Tales therefore to avoid this mischief it were necessary to have a special Oath always administred unto the Jurors thus added That they are not requested by either partie or laboured by any for them It should seem that the like Oath were needfull to be given unto the Sheriff or some severe penaltie appointed against the impannelling of Jurors at the nomination of the parties or their freinds whereby many men have received great hurt and prejudice Also it The Sheriff and the Jury to have
Crown of England graciously to take notice of this enormity and to make known his Pleasure that indifferent and reasonable Fees should be taken by the Councellors at Law of their Clients some of them did restore or at least offer to restore part of the Fees profered unto them which continued no longer with any of them than the dread of punishment or of danger drew them thereto But where it is alledged by some that the sufficiency of all Councellors is not alike All Lawyers not of like sufficiency or merit nor their pains and travell all alike and therefore their Recompence cannot be equally measured no more than in other Faculties can the professors thereof merit as much the one as the other To this I think it may be easily answered That although the sufficiency and pains of every one be not answerable unto the best yet there should some proportion be limited what the best might deserve and how much he should take in such Some proportion of Fees to be limited and such particular Cases by which also somewhat a correspondent Recompence might be awarded to others of inferior degrees and sufficiency though not to be scanted by the penny yet at the least to be rated by the pound whereby a man of reasonable Estate in a suite of reasonable value might compass his Right without his undoing and although the Labourer be worthy of his hire yet is it hard that the Labourer for his hire should have the value of the Land whereon he laboureth or more as many Lawyers have But chiefly divers of the Councellors do offend and abuse their Clients sometimes to their utter undoing when some of them do take round Fees against a day of Hearing and yet neither come to the place or if they do they depart before it be heard and sometimes in the midst of the Argument being sent for unto another Barr in another Cause where perchance their Fee is greater or their Client of more reputation or nearer unto them whereby men depending on them according to promise after Fees taken receive much prejudice and sometimes the subversion of their Estates In this Case many men have much wished that either they were enjoyned to plead at one Barr only according to antient order so should they be certainly found and their Clients not frustrated of their help or else if that were not thought fit yet that some severe punishment may be ordained and afflicted on such Councellors as take Fees for several Courts in one day and do break with their Clients The 2d sort of Ministers towards The Abuse of Attornies the Law who do mislead the people in their Suits and sometimes make them misspend their money in undertaking of unjust Suits and setting on of men to causeless quarrels for their own private commodity are the Attorneys at Law who do divers ways offend and many of them offer much wrong First for their The Multitude of Attornies Multitude for they have increased to such a huge number of later years that they cannot chuse but make much work for the Lawyers and Law in the parts wherein they live as in the Courts of Records at Westminster First to begin with the Court of Common-pleas Since this Attornies of the Common-pleas Chief Justice of that Court came to his Place he commanding an Enquiry to be made by Jury of the number and condition of Attornies belonging to that Court it is said that there were no less than 800. of them found already by Jury so that the Complaint is common that every Scrivener and other mens Clerks who have desired that place paying a certain sum have been all thereto admitted to the no small hurt of the Subjects of this Kingdom But if the Lord chief Justice who hath begun this laudable course do perfect it with out remission to weed out both the excessive surplusage of their number and discharge all them that are ill conditioned or not of sufficient understanding and experience as no doubt but that there are divers of that sort and no question but he will doe it especially if he be required thereto By this good example other Courts of Justice may be purged of their ill members to the generall good of the whole Realm There is the like though not so great an excesse of Attornies in the Attornies in the Kings bench Kings Bench at Westminster wherein there are estimated to be about 200 and yet within the memory of some yet living there were not above eight or twelve at the most for indeed they ought not to be other than the Prignatories Clerks of that Court But besides these who only make out Writts there are nine parts of ten that are reckoned Attornies Attornies at large at large as they call them who neither take Oath nor have any power to make out Writts but yet every one of them keeps a Clerk and some two to write under them who must be maintained by their Masters countenance and sometimes they maintain their Masters by bringing Causes and Clients unto them these swarming in so great numbers cannot live and grow rich as many of them do without they hearten and increase Suits and stirs betwixt their neighbours which enormities might partly be reformed by the Statutes already made if they were put in execution and by some other provision for it should seem Provision made by former Laws against Attornies that former times have had trial of their abuses and care to reform them though there were not then such urgent cause to take a sharp course with them as at this instant By the Statute of the 4 of Henry the 4. every Attornie should be sworn truly to serve in their Offices but now no Oath at all given unto many of them especially to deal justly and uprightly other than for the profit of their Court. By the same statute if any Attornie were openly found in default by Record or otherwise he should forswear the Court and never after be allowed to prosecute any Suite in any of the King's Courts By a late Statute made 3 Jacobi nuper Regis Angliae none should be henceforth admitted Attornies in any of the King's Courts of Record but such as have been brought up in the same Courts or have been well practised in soliciting of Causes and have been found of honest disposition which Statute so well and lately made is already set aside and grown out of use By the same Statute no Attornie shall be allowed from his Client for any Fee or for any Disbursement in charge of Law without a ticket subscribed with the hands of them to whom the same is given or paid and shall give a bill subscribed with his hand of all such Charges concerning the said Suits But yet we see this Law no sooner made but already altogether infringed by the Attornies and Solicitors for it may be that some of them do deliver a Bill of the Charges but who is