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
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
his sweet spirit we are to love him and exalt him with our most studious praises and truly I hope the time is comming that good men shall be great men and that grace and honesty shall be of more authority then stamps in Gold and every man principally valued according to the impresse of Iesus Christ upon his soule If any man should vainly object that by reason of the novelty of some expressions I seeme to give a blow to the Laws I answere that it is the ceremoniall Law that I strike at and I can demonstrate to any intelligent man that there are Ceremonies and formalities in Law which are as impedient and inexpedient in Courts of justice as ever the Ceremonies or any Popish traditions were burdensome to Gods people in matter of worship This which I contend for would be no alteration of the Law but additionall to it for is it any alteration of the rule to lay it to the timber must not the Phisique be applyed to the diseases why then ought not the Law which is the rule of Iustice be alwayes constrained to make good men honest and plaine intentions why not as well as in the Kings case I complaine not of the Law but of the incroachments made upon the Subjects previledge by Ministers of Justice and that so universally that in going to Law he that speeds best buyes Gold too deare The reason of some proceedings being as obscure as Trades-mans marke past all discovery I admire and honour the wisdome of the Common Law and I would have no man to judge it or be wiser then it but that must be understood of fundamentall Lawes the alteration whereof as Sir Ed. Cooke observes introduces manifold inconveniences as in that Statute of imprisoning mens bodies for debt devise of Lands as if he that lay on his death bed could be wiser then the Law if it were a just and perfect law but much of a Banbury Cheese may be pared away without any destruction of the substance I would not have Law Bookes to be dealt withall like the Common Prayer Booke which as happily laine aside like an old Caske for its ill savour but refined purged and conformed to right reason speedy Justice and consconable equity let this expurgation be at the first dash of all matters Ecclesiasticall and Bishops appurtenances for what feare is there to expell the brats having banisht the Father Another scruple I would humbly crave leave to speake unto I heare it often objected that a Court must not make new Presidents I marvaile by what rule the first Chancellor made orders and decrees or were there understandings so cleerely illuminated in the darke times of Popery and prophanenesse that it is impossible any further light should be discovered besides are not causes so various by reason of the continuall multiplicity and vicissitude of humane affaires that as no man goes twice into the same water or seldome are two causes without some different circumstances have there not bin more lamentable cases happened within these few yeares matters of transcendent equitie and conscience then in many ages before and must wee alwayes keepe the same pace in foule way and weather as in faire Our Bookes tell us that the Rule of Chancery is equall and good and if there have bin 10000. decrees unlesse the present Iudge see the equitie and goodnesse of them certainly they ought not to be any rule for his conscience can any man give right Iudgement by another mans conscience certainly that will be as dangerous to the body politique as the Popish implicite faith was to Christs body misticall I confesse former Iudgements and decrees are good grounds of deliberation and serious consideration but not of resolution to Iudge accordingly because it was so held formerly unlesse I see evident reason concurring with that authority If men had good Iudgments they need not read Histories nor search for Presidents for put case that new Courts should be created as the happy demolition of some will necessitate the erection of others by what compasse should the Iudges steere the course of their proceedings but by right reason the force whereof is great That an exact Rider governing with the bridle which is universall Iustice all the world over Reason being like the highest and lowest Honors Vniversall where Tyranny makes no obstruction as King Iames in his Starchamber speech tells the Iudges that if they cannot make forth the reason of a Iudgement or decree to an intelligent Scholler it was much to be suspected Besides Christian Majestrates stand upon the vantage ground having the great-summinary of sacred writ to sublinate the lesse luminary of Humane prudence for Divinity perfects and refines all mentall endowments But then it will be said that by this meanes all things will be uncertaine if one Judge or Chancellour shall crosse their predecessors I answer nothing lesse for it is the greatest certainty and security imaginable to judge all things by right reason when no Justicer will proceed further then hee sees reason for it enlightned by former presidents but if otherwise that Justicers shall be tyed to proceed according to former presidents without understanding the cleare reason and conscience of them then if the first president was erroneous as who dare sweare that it was not we must bee undone for ever It is further Objected that in such cases the Parliament must be attended and much I have heard spoken concerning Judges Oathes I presume to answer it thus That I am confident it was never the intent of the Parliament nor of any oath that ever was administred by Protestants that any Judge or Justicer should deliver his judgment or make any blinde decree untill he see reason for it though there be millions of judgments in the very point for as the intent of every statute is principally to bee regarded so is the reason of every judgment if there be most excellent reason for it yet if I understand it not it is not my reason and consequently an unreasonable judgment I say it again for feare of mistake that every Judge must proceed according to his owne judgement and conscience for when I see the reason of a former judgment then it becomes my reason and there is nothing can be objected against this but I can improve the argument to the Popes advantage for no wit of man can finde out a medium between an implicit faith and that for which I see a reason I had all most forgotten one observation concerning actions upon the case for slanderous words King James told the Learned Lord Hobart that the wisdom of our Law was admirable in this that a man may not strike though never so much injured by words because betweene words and blows there is no proportion but I am doubtfull whether in Conscience a man ought to recover damages for scandalous words when in truth hee is not damnified but the thing I ayme at is that wee want a Court Marshall or some Court