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
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
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
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
pleaded and all the proceedings in their owne language and that the subject should choose his owne Counsell till which none had Advocates but by the Kings leave h Per conge du Roy. Iurisconsultus potius respicit scripta patronis verba ad barram jurisprudens rem Aucupes syllabarum togatos vultures qui canina facundia callide exercent causas qui carebat sillaba perdid t patrimonium As one man cannot have his right because the judgment is entred concessum consideratum est another because consideratum or some other word is not rightly spelled Isay 29 21. Obvnum punctum perdit Martinus asellum There were in Rome Some Jurisconsulti inferiour to the Patron Advocates which only studied a Cabalasticall unknowne formulary of words in notes and Cifers which would picke a quarrell in every pleading brought unto them Cicero called them hunters for sillables worse than those that will make a man an Offender for a word that would make a man loose his inheritance for want of a So or a thereof as Martin that laid his Asse was white lost the wager because his Advocate found one blacke haire in it which being found brambes and enemies to State policy were stubd up and removed yet not long since Amedens the good Duke of Savoy hearing complaints made against an Advocate that was a great rubbe in the Alley of Justice sent for him and told him that he owed his Baker 1000. Crownes but was not willing to pay him till needs must asking him how long he could delay it before Execution should issue against the Dukes estate the Advocate told him that he could certainly delay him at the least three yeares And if his Councell were not extraordinary subtill he should get nothing at the last what saies the Duke is this sufferable doe not I acknowledge the debt to be just whereupon he caused him how justly I determine not to be executed and excoriated but the streame of our Law runs in a purer Channell It hath beene the great wisdome of severall Parliaments to remedy defects in pleadings and I doubt not but in its due time it wil be taken into mature consideration to ripen causes for speedy tryall it being quicke Justice cures the lingring comsumption of a State I doubt not but England shall flourish with Religion and Justice these two noble Virgins shall bee set upon the Throne hand in hand in perpetuall Concord I cannot but observe the neerenesse betweene Westminster-Hall and the Abbey and this godly exercise every morning a Sermon calculated directly for Lawyers and Clients speakes out that Piety and Justice Maugre all Antichristan opposition shall be married together with an indissoluble conjunction but precipitions and rash justice must carefully bee avoyded as a dangerous pest as that of Pison Sen de ira lib. 1. cap 16. who condemned one for a supposed murder of I. G. and his necke being on the blocke the Conspirator that had plotted it being there disguised said hold I am the man who was supposed to bee killed the Centurion returned his prisoner with great joy to Pison who said Justice must speedily be done and the case was difficult therefore sentenced them all three to be executed the first because hee was condemned fiat Justitia I. G. because he was dead in reputation and the Officer because he did not execute his office instantly I am not of some Turkes mindes that so the difference be ended it matters not much whether right be done or wrong because a peace is made without expence of time or Coyne but all differences betweene men ought to be ended with as much expedition as conveniently may be according to Law so as no more hast be made then good speed but what if legall proceedings be too circular and tedious I desire leave to speake to this question whereof neither Clients nor Councell are properly competent Judges the duty of the one being like good wax to receive and retain the impression of faithful advise of the other to be like a good Pilot to make what haste he can to bring his Client to the desired Haven and surely the shortest cut to the Harbour is ever best for as the end of War so the end of the Law is peace now the end of the profession and the professors shou d be the same He that delights in suits loves to be in a storme at Sea but truly I speak it knowingly and to the honour of our great practisers that they do for their 10 s. give good and faithfull advice casting about which way the Client may speedily receive justice And the reverend Judges when a certain thing is ripened for their judgments they speedily passe a definitive sentence and when they sit pronouncing judgment me thinks I see a rich Cabinet of precious jewels opened and admirable reasons expressed for the full satisfaction of Counsell and Clients which I cannot but mention for their honour because beyond sea the Judge will give no reason of his judgment and the Sentence is past in private that so Judges may not incurre the dangerous displeasure of the Client whereas justice with us is publikely pronounced in the gates of our City But do not Writs of Errour immortalize suits One sayes that those wooden Angels which support Westminster Hall are made of Irish oake that no Spider of errour should hang upon them Another sayes that in reason the errour should be assigned before the Record be removed because for the most part the common errour is only assigned but this string must bee touched very tenderly A stone that is ill placed in a building must not violently be removed it is requisite there should be some breathing time to make satisfaction after the Recovery The Civillians allow dayes of grace to provide the money whereas our proceedings are so speedy that the party may be taken in Execution the same day the judgement is entered and that Execution which is the life of the Law proves many times through miserable indurance the death of the party To explicate my selfe I must premise two things as undeniable verities First that no politique Law ought to contradict the Law of God because only those may marre that can make and Princes having no hand in the making of Gods Laws therefore may not dispense with them Secondly No humane Law ought to live any longer then the reason of it continues for reason is the souâ—e of all humane Lawes without exception and therefore in ancient Kingdomes and States many politique Lawes wlll be fubject to alteration Our Ancestours certainly were great husbands to make it death to steal a sheep or a Pig worth above 12 d. though it be to satisfie hunger for which by the strict rule of Law he ought to dye And so it is if any ready to starve shall take a loafe of bread from a Baker Lex moralis est vivens judicialis mortua solumin equitate ceremonialis mortifera which certainly
Judges were to heare every Advocate according to their Seniorities successively I thought there was much beauty and a sweet order in it and one of them understanding that in our Courts of justice one man is retained five or six times for anothers once he answered that is all one as if one man at a Feast should devoure five or six dishes and not let the other guests to taste of them I have often marvelled why the Law that made such a respective privity and subordinate relation betweene the Ordinary and the Clerke should make none betweene the Judge and the Counsell the Bishop called the Clerke brother upon this presumption that their office for substance was the same serving both one Master and aiming at the same thing the welfarâ— of the peoples soules Now certainly the reverend Judges and the Practisers ought to minde the same thing and ayme at the same marke which is the White of Justice The Judge in executing justice the Counsell in requiring justice for the Law is declared and executed upon the request of the Lawyer if any bee otherwise minded that cares not for justice further then he may get applause and practise he deserves not the name of a Counsellour But as the Profession is no honour to him so let not him be any dishonour to the Profession a concealer or a worse name if you please better befâ—ts him But why then may not the reverend Judges bee said as it were to be Fathers of the Counsellors who may not bestow all their favours upon one child though never so vertues but rather like the Sun dart the beams of audience as much as may be upon all indifferently even upon barren heaths which otherwise become unprofitable A wife loving Father will not let any childe be long without victualls but if we be not worthy to be counted sons yet let us be reckoned of the Family that some provision may be made for us It were a happy thing that there were no contentious Pleadings in Westminster-hall and the lesse worke for Lawyers the sounder is the Body-politique yet for the present some having no other subsistence but their bare practise which have continued faithfull certainly it wou'd tend much to the honour of the reverend Judges and Justices to deale their favours as equally amongst us all as possibly may bee I cannot but smile many times to see a company of hypocrites as wee are stirring up and downe in our Gownes making men believe that we are full of employment and so we are indeed in a perpetuall motion measuring the length of the Hall but not a Motion perhaps from the first day of the Tearme to the last But would you have no favourites yes the worthy Parliament they are the Kingdoms favourites very fit they be first heard every way encouraged that so publike busines may not be hindered and truly their ingenuous Candor is much to be praised in this particular which bespeakes them not only excellent Lawyers but excellent humanists Secondly The Lawes favourites as life liberty and Dower it is very fit that all such necessary and important matters by reason of their dignity should be heard in priority whatsoever Counsell bee retained to move them before matters of property I allow also Judges fauourites for favour many times gives a quickning spirit to the Law There was a Prerogative of primogeniture a double portion belonging to the eldest sonne by the Law of God by the equity whereof a Judge may a low a double portion of time to whom hee pleases the best men that ever lived have had their favourites for affection flowes uncompelled Bacon observes that a man shall seldome see three at play but he shall wish better successe to one of them then the other though all strangers to him and I beleeve scarse a father or mother that have a numerous progeny but love some one childe better then any of the rest yet the child that is least beloved is not neglected but has his portion provided in due season I do not drive at it that all Lawyers should have equall practise I esteem parts and abilities wheresoever I finde them let the stronger practiser get three foure or five times as much as the weaker but this I aime at that one should not fâ—ast and two fast according to that most excellent saying When poore men enjoy necessaries then let the rich enjoy superfluities for in every Christian society one mans superfluities must give way to anothers conveniencies his conveniencies to anothers necessities his lesser necessities to anothers extreame necessities But it is alleadged for the great Monopolists Impropriatours of practise Funditus exterpra monopolus nomopolas 3. instit 183. that they best understand the course of the Court which makes the Law we say in our books that a common errour makes a Law Truly in this I willingly acknowledge my ignorance I do not conceive how the course of a Court can make Law or equity it can only declare how the judgement of the Court hath been in that particular but Law is reason adjudged in a Court of Record where reason is the kinde and judgement the difference that distinguishes it from legall reason spoken extrajudicially he that hath served the space of two Prentiships let young Barristers grow up like Vines by the support of others and hath a competent stocke of Law and reason it is very strange if he should not be able to tell his Clients cause in plaine expressions Justice is an intemerate Virgin that does not love to be too much courted it may be a question whether artificiall and forced objections do not many times hinder and obscure the glory of noble Lady Justice Ignorantia legis non excusat as blew bottles many times hide and hurt the precious Corne or why should the Law and equity bee so obscure since every ignorant man is bound to take notice of it but how came they to understand the course of the Court but by their great practise he that will first learne to be a good Pilot must goe to Sea upon calme waters but shall not every man choose his owne Lawyer what else but who are retained but they that can soonest be heard who has bin observed to get most money when Queene Iustice goes her progresse what Counsell doth the Client enquire after Sâ—ctam ad nolendinum to whom do the Attorneys and Solicitors make suit I say but this as it would bee the honour of the Court to have the businesse passe through many hands that every man might labour in the Vineyard so it is no hard matter to disperse and distribute the practise with more equality as before is hinted This I affirme confidently that a Judge is obliged in point of honour at the least if not in point of Iustice to give all incouragement to heare him first that has the fewest motions nothing more just then to leave the Client at liberty but if
person for so high a place nay what if I should say unlesse hee be active and zealous for a Judge should be couragious in executing his Office and in Gods cause I would faine aske another question for thankes bee to God and our good Parliament these are times of Christian liberty the Lord grant that no man abuse it by turning liberty into licentiousnesse for a man to beat himselfe and strike every man that hee meets and speake irreverently against authority this is no Christian liberty but a furious Bedlam meriting madnesse whether he that is not a good man can be a good Iudge To feare God and honour authority are inseperable the image of God shining in the face of a Parliament obliges to all reverence and obedience the reason of the doubt is because Iustice is a morall virtue and not religious for no doubt there are many good Iustices amongst infidells and some that doe justice even for the love of it for a Phylosopher may goe so farre but in a Kingdome professing Christianity as in the preamble of the Covenant which is as the key to open the meaning of it the words are having before our eyes the glory of God and the advancement of the Kingdome of our Lord and Saviour Iesus Christ c. I conceive no man ought to be set upon so high a pinnacle of honour as to be intrusted with the lives reputaions Zelo vindictae pro fama virtutis amore non pro honore Dei Vltra sphaeram activitatis si manducat peccà t minus lamen si non est homicidd Exod. 18.21 2. Sam. 22.3 Se the Annotations of the learned Divines upon 2 Sam. 23.3 a work very praise worthy and estates of the Kingdome unlesse he can have that before his eyes which no unregenerate man can have a naturall man may doe justice betweene partie and partie for a private revenge or to gaine popular applause or for the love to justice a virtue in it selfe so sweet and amiable but for Gods enemy as every unconverted man is to ayme at his glory and to set Iesus Christ upon his throne that is above the sphere of his activity the naturall man cannot act supernaturally if he eates he sinnes if not he is a murderer as not acting from right principles nor to a right end Moses was commanded to appoint Judges which had 4. excellent qualities First able men no doubt he meant sanctified abilities for learning without Religion is lame and Religion without Learning is blinde Secondly fearing God hee that ruleth over men must be just ruling in the feare of God hee that commands others to deale justly must be just himseâ—fe otherwise you thinke to straighten a sticke by a crooked rule which must bee from an inward principle the feare of God in whose right and place he ruleth a Judge must so feare God as to be altogether just not in part onely but intirely just in measure and degree not to be just to some but to all and to all alike and at all times and seasons 3. Men of truth every man is naturally a true man every honest man is morally and legally a true man but a Judge must bee a man altogether composed of sanctified truth and Justice 4. Hating Covetousnesse it s one thing not to be a covetous man and another thing to hate Covetousnesse as it is one thing not to sweare another thing to feare an oath for any man that is notoriously known to be a Griper and a covetous person to be made a justicer is to place Avarice upon the Bench and not Justice But who shall be Judge in this matter Truly who shall judge whether it be day or no how doe I know that I am a man In doubtfull matters the supream and ultimate judgment from which there can bee no appeale to any earthly Tribunall is the high Court of Parliament An Ordinanc of man is an Ordinance of God not to be disputed but obeyed in all cases actively or passively faciendo aut patiendâ— when that has made or declared a Law then every mans mouth is stopt it is an anointed truth and may not bee questioned by any murmuring or contradiction I know a reason why every man should be reckoned irreligious unlesse the contrary appeare because every man is borne so to judge him religious I must see some fruits of it which in a Judge should always be green visible and conspicuous to the eye and judgment of every godly professor But all is not gold that glisters true yet there is no Gold but doth glister certainely men that in these times are preferred to fit at the Sterne ought to be eminent for Grace and Piety others that are but at the Oares honest civill sober men may do much good in their stations But the question truely stated will be this what if the best Lawyers be not the best men or what if hee that is as it were heire apparent to a Judge be not in the appearance of good men an heire of heaven would you have Lawyers leape into the Chaire and not by degree take their turnes Per saltum non per gradum but before I answer I aske further Is he fit to bee a prime Courtier on earth to execute the Lawes of God that is not a daily Courtier at the Thron of grace and such a just man that lives by his faith in Jesus Christ what may the full scope of the Apostle be to the Corinthians concerning this matter See the learned Annotations upon the first Cor. 6. this is a cleare truth that as all lawfull externall callings are from men so the internall is from God I shall presume to insert a pleasant story By the constitution of the Popedome upon the death of a Pope so soone as the Cardinals can conveniently meet together they are all put into the conclave and have nothing but bread and water till they be agreed and the Election must bee by two parts of the suffrages as it there be 30. Cardinalls he that is chosen Pope must have twentie voyces now a Pope being to be chosen fifty Cardinalls met 30. Divine Beza called him Cardinall Quadrato He was so good a trencher man Qui habebat nasum cherubinum quia non potuit esse cardo ecclesia apostatia per caput vult esse per â—asum mentioned by Horace Nunc est biâ—endum c. were for one and twenty for another which being no Election and they having continued 3. or foure dayes and no hopes of agreement one fat Cardinall that stomackt the businesse for want of his Capons and Pigeons and unguentary Greeke and Albauwines fell a sleepe and waking told them that now the difference would bee ended for neither of the two must be the man for he had received a revelation in his dreame that it was the will of Jesus Christ that one Clement should be Pope and he askt them whether hee was not without exception
he shall get nothing by the Cause he will be studious for his owne ease to doe speedy Justice for why then should it cumber the Court longer then needs must and that is the reason that many States maintaine Lawyers at the publick Charge that so expecting nothing from the Clyent they may steere their advise the speediest way to the haven of Iustice But whatever complaint may be made of us truely for the generality we doe but taste of the broth of commodity the Clerkes and great Officers of Courts put their ladles to the bottome of the Pot and are even drowned in the sweet liquor of potable gold 2 This honourable Calling and maintenance is in the nature of baile Acutos honoris stimulos Ingenius malvezzi as a cautionary assurance to the Kingdome to answer for their judiciall administrations and I conceive Honour obliges and engages more then profit yet not so as to superabound in wealth and power least they should command as Lords and not as fathers 3 Judges should therefore be great that they may dare to doe Justice as Gascoigne committed Hen. the 5. Hollinshed upon a Bishops complaint Hen. 4. rejoyced that he had a Iudge durst doe Iustice upon the Prince and a Son that would be so obedient I shall tell you of a gallant peece of Iustice to recompence that of Piso In the great Warres betweene Charles the fifth and Francis the first one Raynucio was imprisoned at Millan for betraying a Fort to the French his wife who for beauty was called the Nose-gay of the Parish petitioned the Governour for her Husbands inlargement the Governour our being so enamoured that there was little hopes of liberty had there been no more in it but that he might behold the Lady who daily attended with Petitions being able to conceale the fire no longer told her that his life was in her hands and he was as much her Prisoner as her Husband was his and that she must yeeld to his desire or be an undone widow the vertuous soule covered her cheekes with the colour of Roses and desired to speake with her Husband whom she made acquainted with it telling him that if her life would save his she would gladly lose it but my honour being required you must prepare for death he commended her magnanimity and how sad their parting was you may easier conceive then I can expresse the houre being appointed for his execution he considered that life was sweet and skin aâ—ter skin one thing after another what would not he doe to preserve a little momentary breath sends for his deare Consort Communis error non facit jus True honour consists in a Christian sufferance of the greatest misery rather then to commit the least sinne and cries to her as if he had beene her childe to yeeld to the Governour and to win her consent saies First that honour consists but in the opinion of the world and that a sinne wholly concealed is halfe pardoned as the Priests use to say Secondly That Spaniards are most faithfull in keeping promise and no doubt he would sweare never to reveale it Thirdly That he would be the death of him as by the Law of Spaine he might for any man may kill him that lyes with his wife the provocation being so great In Italy he must kill his wife as well as the Adulterer or else he dyes for it as being presumed that he did it not in the way of Iustice but revenge the poore soule yeelds for as Job saies if this be the condition of our temporall being The least fall from grace is a fall from Pauls that we never continue in the same condition much more are our spirits mutable as they are more subtill not that I speake this in the least title to justifie her for should I goe about to excuse it it might be a greater sinne in me then the offence was in her as for a Lawyer wittingly to Patronize an unjust Cause is worse in him then in the Clyent Garcias had her in his power as a bird insnared and being weary dismisses her with a promise to set her Husband at liberty but the Spaniard considering that a man or womans honour is like a great Fort take that and you command all the rest tells the Prisoner that he must pay ten thousand Crownes redemption she with much difficulty satisfies that demand likewise and was promised that her Husband should be sent home to her house the next day but the persidious Governour bethinking himselfe what danger he might incur from the Emperour and fearing that the man might be revenged on him for dead men doe not bite therefore in some places of Italy you may have a man killed for five shillings but not cudgelled under twenty sent a Priest to him to prepare himselfe for death and caused his body divided from his head to be sent home the next day in performance of his promise now for the poore soule to see her selfe deprived of Husband Honour and goods altogether her griefe was above expression and the torment the greater that if it were discovered she would be abhorred and if concealed it could not be cured at last with extreame shame she made it knowne to a friend both able and faithfull Hercules Estius Now the Duke of Ferrara being Generall for the Emperour Aemelia presents her requests for Iustice against Garcias who was convented at Ferrara and thinking that as the Adultery of Mars and Venus served onely for sport in the Court of the Heathen Gods thought that the Generall would but laugh at the conceit or at the worst would remand him to his Command at Milan perswading himselfe that in such a case his Souldiers would not let him suffer he confessed the fact said it was so pleasing a sinne that it was impossible he should ever repent of it and upon the matter told the Generall that the Traitor was deservedly executed and therefore he was not troubled at what might be the event of it Saies the Duke Why am I made great but that I should doe Justice upon the greatest offender Garcias said the Duke you must restore to this Lady her ravisht honour Sir saies he That is impossible and what 's past helpe shall be past greife But you may Marry her saies the Duke for you loved her once and you must love her for ever or lose your life and that you shall doe this day I loved her indeed saies Garcias as Herod loved Mariamma or as the Hunter loves the Venison to make sport or to feed upon it but I am not prepared for death therefore I chuse rather to Marry her Aemilia upon her knees intreates that she may rather dye then Marry him whom she so much abhorred but the Duke having whispered with her she submitted to his good pleasure The same Priest joyned them together by vertue whereof she was intitled to his Estate and of a forced bargaine Garcias hoped to make the best
supreame Court in any Kindome should bee limited nor can it limit its owne power no more thâ—n a man can continue alive and cease from breathing and exercising other naturall functions true it is that the body represented is stronger then the representative but the legall authority is in the parliament where it has bin planted and settled for many hundred yeares and let that hand wither that shall seeke to Rob them of it for a government there must be and no human policy could ever finde out a better Loving Reader I pray the likewise take notice of a 3. leaved Pamphlet intituled newes from Hell Rome and the Inns of Court and believe it that Hell and Rome are the two Elders and the Innes of Court the chast Susana when our Clients give us a Fee wee take it in love as a Chast virgin does a paire of Gloves sent unto her for a love token if the giver expect any bruitish thing we abominate the first risings of dishonesty the Author like one of Machiavells Schollars thinkes by his over confident calumniation to make some thing stick upon our noble and Gospell profession but it is but shooting a headlesse Arrow against Armour of proffe for our profession is pure Marble 1 Tit. 3.13.14 and no dishonour can be imprinted upon it but upon a second perusall of it I finde that in a Charitab e construction what he said may be intended only of such Lawyers that are of the Oxford party therefore I passe by it And now Curteous Reader to draw to a conclusion because I will not trouble those that need not know so much nor weary the intelligent Reader I have but one word to speake to my adversary which is to intreat him as a brother to retract this fond and weake oppinion as being though I am perswaded not intentionally yet consequentially destructive of all state pollicy or else truly Anonimus Though it bee such an error that thou maist carry to Heaven I shall not bee freinds with thee that is with thy oppinion for I will ever be a freind to thy person for I praise God J am not so wedded to my owne opinion as to love no man but he that shall concurre with me hee that loves another man only because he is of his Judgement loves himselfe in that man as hee that mournes for the death of a friend mournes perhaps rather for his owne losse If there were some lines of Communication and rules of association or such principles of union that all honest peaceable men though of different judgements might walke with indeared affections to one another Duraeus inclitus Scotus peregrinavit multos annâ—s pro Concordia inter Lutheranos Calvinistas Beati pacifici Jllusâ—rior est vnio quae nascitur ex charitate quam vnio cujus precium oritur ex raritate till every mans spirituall eye sight bee equally alike provided that no oppinion be any way destructive of State policy as tending naturally to inflamations certainly it would exceedingly conduce to a most hapy reformation I blush to read such extreame bitter passages and railing invectives as daily come forh to gratifie and make musique for our Enemyes for shame forbeare or cease to be Englishmen I would presume for the reconciling of various oppinions and preventing all disaffections as much as may bee to propound to our most noble Senators that learned Godly and sweet spirited men might bee appointed so soone as they heare of any erronious opinion so generally conceaved mildly to answer every printed error to repaire to the Authors or maintainers of it loveingly to shew them their error and to admonish them convictingly whereby thousands by Gods blessing may be convinced for spirituall maladies require spiritual remedies and the Governors not so much as acquainted with it unlesse it be a moot point and very disputable and then further light must discover the nakednesse of it We Lawyers know what is a breach of the peace and for prevention let men be bound to keepe it if there be a just feare for no rationall doubt can disturbe the peace of the Kingdome as that Noble Peere who went to Heaven as in a fiery Chariot in an active Martyredome for the publique good cleerely demonstrates in his divine treatise concerning Bishops reason being the perfection of every Kingdome What a stir there was in the Bishops times about privat meetings as if poore soules that meet in Corners to pray and that for the happinesse of the Kingdome whose prayers no doubt were heard as being favorites of heaven would thereby disturbe or endanger the peace of the Kingdome oh that ever rationall men should give such a Bill of divorse to common sence and understanding This is practised amongst the Pontificians with great successe answerable to the Venetian policy where when any man is injured by another the patrons of Iustice finde out the party wronged Quadruplatâ—res and follow the cause for him to take of all vindictive prosecutoins that every thing may be done for the love of Iustice and 3. or 4. in every County authorised as arbitrators generall to take up and compose all private quarrells and differences in a Christian way of love would prevent numerous suits and vast expences and truly every man that professes to be a Christian should study hard to bee a Sonne of Truth and Peace One thing I must insert that may answer all objections that whensoever any man in humility propounds any thing tending to a politique reformation of something that he conceives to be amisse in a Kingdome that he must cheerefully submit unto the present practise untill the wisdome of State shall otherwise determine according to that excellent saying we tollerate or rather submit to many things which we do not love Multa toleramus quae non amamus Farewell Anonimus that I may speake freely I think thou art an honest man and of a publique spirit two excellent qualities for which I esteeme thee but in this thy zeale is not managed by right reason If any man towards the Law be unconcionable in his practise the Lord worke repentance in him so as to make restitution as in the case of Zacheus No period better then prayer Therefore here I cast Anchor and bind up these spreading lines Additionalls omitted in my absence P. 17. L. 31. adde I heare many complaints that writs of Error are not determined truly if any man will not pay his debts that is able but takes advantage of the Benches Vacancy I wish he were in excecution to morrow but if poore men bring writs of Error meerly to preserve their Liberties it is far better for the Kingdome that they should hang in suspence and abeiance till domesday As in the Iewes divorcesâ— Difficillimum est homines amplissima fortuna ditatos legibus â—ntinere Plato then that any man by Indurance should be disabled from serving God and his Countrey in their lawfull callings and this is not