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
honour shall conferre honour upon them why should this be said an honouring of the whore I looke upon humility as an Vsher of honour and hope that every Iudge shall at the least hold by Barony the place and office being full of state and Majestie for if the habit of a Iudge be vocall and strikes a terror into the wicked and incourages the welldoers as the Seargeants party coloured Robes Argue their abundance and variety of learning how much more a title of Lordship and why should not this be virgin honour I dare say no profession hath more hated the whore then this of the Law have they not in Aegiptian times made a head and opposed Antichristian Courts did not Mr. Greene of Lincolnes-Inne suffer Martiredome for it in Queene Maries daies And with what Christian Courage did our vvorthy and learned Brethren Mr. Sherfield and Mr. Pryn oppose the superstitious and Court vanities and the pride of the Bishops the latter resisting unto bloud never to be forgotten and standing valiantly for our Lawes by which wee enjoy all that wee have But Anonimous is angry that many have got such great estates 10. or 12000. li. per Annum the matter of fact I shall not dispute it Faelix est cujus prosperitas est calcar pietati argentum bonum est non unde sis bonus sed facias bonum great estates lawfully acquired doe not exclude any man from hapinesse only make the way more craggy for riches in our Saviours time were like Thornes and I think they are much of the same nature I confesse I doubt our great practisers finde one maine inconvenience that they have scarce time enough to keep grace alive in the Soule by prayer meditation and holy Conference Spirituall Zeale which is the seale of the Spirit being often quenched if not lost in the throng and Croud of overmuch temporal imployments which made them heretofore give advise upon the Lords day a bad Custom for shall we take Fees on that day when Manna was not to be gathered upon the Sabbath Every student of the Law hath great need to be a practiser of Divinity much wisdome being required to walke in high places As heavenly Doctor Sibbâ— would often say unto me study the Law but practise Divinity he that advises or studies before himselfe hath beene a Client at the Throne of Grace It is not study but a studious vanity Botero and Paruta two Italian Politicians to abate the edge of Avarice Non est studium sed studiosa vanitas Optima lex vetat peccatum finding how infinitely and immeasurably the Advocates and Marchants were addicted to filthy lucre propounded a Law That no man should get above 20000. l. by his profession or occupation which being acquired he should either desist and give way to others or continue it for the publike good whereby no man should ever bee guilty of Coveting more because hee might not keep it I confes it is a very sad consideration to see how most men abuse their Callings the end whâ—reof is to serve God by serving men he that imployes his talent only to get honours profits and pleasures profanes his calling living to another end then God hath appointed him T is true every man must labour in his calling to maintaine his Family but that is not the maine scope and end of our lives the true end of life is to doe service to God in serving men in our severall stations And for a recompence of this service God blesses mens honest travailes and allowes them to take moderately for their labours according to the judgment of godly men but I see it is a very hard thing to finde a man that labours in his cal ing in love to Gods glory and his brethrens good Therefore a Writ which we have in Law will lye against many men another day Contra formam â—â—llationis N. B. Accipe dum delet but I know no calling makes more for the happy state of the kingdome then the Law and I am confident no profession so generous as ours in matter of recompence the Minister wilbâ— at a certainty for his Tithes and the Physitian will take whilst it akes though I would intreat our honest Doctors to consider that for a poore sicke man to give 10. s. for a Visit may bee more grievous to him then the disease it selfe I honour many of them for their worth sweetnesse you cannot take what and where you list upon credit onely you come into our studies put your Case leave your writings come as often as you please and if you leave nothing wee scorne to aske you whereas beyond Sea you cannot peepe into an Advocates study but hee cryes give give and if the Cause goe for his Client then he hath his Palmary Fee Feodum Parlâ—â—â—rium in token of Victory which I could wish were in use with us for he that gaines the cause may better afford to give 40. s. then the looser 10. s. Concerning our pleadings This I say that truth is the vertue of pleading and certainety is the beauty and grace of pâ—eading and I know no difference betweene putting a Case and pleading it but as Logicke and Rhetoricke the samething mere largely expressed yet I must agree that our pleadings are something difficult and hazardous Palma pro pugnâ— and therefore may it be called a Case at Common Law for the casualty of the successe Casus a Casu but a cause in Chancery for the cleerenesse of the matter Civilians challenge us for not admitting doubâ—e pleas saying wee force a man to fight and tye one hand behinde him as if an Infant Seale an obligation by dures he cannot take advantage both of Infancy and dutes by reason of duplicity least the Jury should bee too much incumbred which if the most intelligent Free-holders were alwayes impanelled might peradventure satisfie that scruple when Knights and Esquiors and the most Intelligent Gentlemen were Jurors the Kingdome was happy in this manner of tryall I wish it were reduced to the primitive practise or that every County might elect substantiall Jurors who in reason ought to have a competent allowance for their paines to serve annually for all matters As in Alderman Langham and Collonell Waltons cases for though our Reverend Judges doe their best leading the Jury by the eye and not by the Noses giving them all possible light in doubtfull matters yet it is commonly reported that very strong Verdicts have past And for our Colours in Writts of Assize and trespasse and plurality of Essoines in reall actions which are well remedied by tryalls in Ejectments yet remaine difficult for the Client where entryes are not congeable And some complaine that our proceedings are not in our Mother tongue a politicke Law left to the wisdome of Parliament as the Lawes of France were in Latine untill the time of Francis the first who for a summe of money consâ—nted to have them written
is against the Law of God for though the judicialls of Moses are not obligatory to us yet there is so much equity in them and so many direct precepts for mercy that no cruelty should bee used amongst professed Christians though it were in new Plantations where there is more reason to make sharper Lawes in the beginning Lex dura at regni novitas me talia cogit Dide in Vâ—rg At Geneva and in New-Eâ—gland Adultery is capitall with us it hath bin standing in a cold sheet a very difproportionable punishment for the flame of lust surely either their punishment is too heavy or ours too light but the constituâ—ion of Kingdomes and States is wisely to be considered Matth. 19.9 as also that place in Matthew if the Adulterer were to dye what need any liberty to marry another for then the civill Magistrate should by death dissolve the obligation The Law is likewise defective that after such a divorce the parties are not free nor the innocent party to make a new election Ad alia conâ—â—landa vota but must be necessitated to live in sin which no condition of life should bring a man into being grounded upon a popish distinction Separatio a thâ—roet mensa â—on a vinculo matrimonii between a separation from bed and board and an absolute divorce from the bond of Matrimony And truly that man of sin Antichrist wresting the Scriptures to advance his insatiable Luxury Avarice and Luciferian pride Ejus avaritiae totus non sufficit orbis ejus luxuriae meritrix non sufficit omnis prevailed with the most politique States of his religion to make severall Lawes that might be as flowers for his garland Ecclesiasticall and Civill Lawes being so twisted together and interweaved as Webbe and Woofe that the destruction of Antichrists Kingdome must of necessity cause a review of many Cases and opinions in our bookes I speake not of principles and pillars or of the frame and constitution of our Law but of secundary conclusions superstructures which may by the wisdome of Parliament be changed or removed without in dangering the ground work but with wonderfull circumspection and serious deliberation because reason is malleable and hath diverse faces and many times its contrary reason and is not equally evident to every mans Capacity As the poore Widow said to a deere friend if my husband had beene justly put to death it would not have so much grieved me what sayes he hadst thou rather thy husband should dye nocently then innocently So the Philosopher of his Wife if hansome pleasing if deformed honest it was retored if hansome in danger to be dishonest if deformed loathsome therefore that which we call the reason of Law is not every naturall mans reason but a practicall and studied experience acquired by much industry and long observation In that case which I put of the divorce it is very necessary to settle some Law concerning mariages for as I conceave many of the Popes Cannons are yet in force amongst us Tediâ— vitae concerning that particular that after a divorce there may be liberty to marry againe in the Lord By the Law if the Father through the tediousnesse of life kill himselfe which is cause of griefe sufficient to the poore Children yet all the personall estate is forfeited to the Kings Almoner a Popish Constitution Dame Hales Case Com. Stamford upon this ground that the King is supreame Ordinary and will dispose of his estate for the good of his soule and the poore Orfans left to begge this is to adde more weight to the oppressed Nay if the Wife kill the Husband the pepsonall estate is forfâ—ited from the Children So in Leonard Sonir Case 11. Rep. 83. Grauatis addere gravamina the heire shall be in ward though he hath no estate left him and the booke Corfesses that affliction is added to the afflicted for the preventing whereof and for the enfranchising of our Noble Gentry for truely it is but a gentile Villenage I hope that COURT will be abolished before any further mischiefes happen Villenagium gentile fervile which hath beene an eminent badge and speciaâ—l livery of the Norman Conquest the Conqueror to mixe the English and Normans manacled and constrained the will and consent in point of marriage which as the apple of Contention betweene man and wife hath tended to the destruction of many families Durissimum est ut matrimonium non fit liberum unde nascantur liberi it being the hardest thing in the world That mariage should not be free amongst free people truly that I may speake my mind freely as it is free of its owne nature I conceive there are many defects in our Law both in matters Criminall on the Crown side and Civill As that witnesses should not be examined upon oath for the prisoner as well as for the King that Counsell is not allowed as well for matter of life as for estate that so many men slayers escape upon the Law of man slaughter I know by reason of the valour and heate of English spirits it has been an ancient Law but upon serious consideration I feare that the Land has beene defiled with much bloud by that meanes not as yet washt off indeed in case of an assault the Law makes every man a Magistrate to defend himselfe but to kill a man for a Box of the eare or any man that I may save without manifest danger of my owne life is death by all other Lawes in Christendome As murdedrum for murderum seloniter for selinice c. Rep. 121. but the Statute of stobbing is a most excellent Law That a Murder or other grievous offender should escape for an error in the inditement in a word or Letter is horrible for Justice should be speedily executed upon Delinquents the want whereof is many times an occasion of terrible enormities So that if the Clerk or prosecutor wil but insert one insensible word into the Inditement A Ravillat or a Vaux may peradventure escape for the present and then men are apt to say he was tryed once and acquitted and the prosecutors being discouraged seldome is any man further questioned as in Lambes Case who being indited for Witchcraft for exercising certaine divilish Arts Artes veneficas non diabolicas exception was taken to the Inditement that it should have beene veneficall Arts the word Diabolicall being too generall and many others that have beene by the Jury found guilty of Murther and Capitall offences yet have escaped death by reason of some error in the Inditement which how disagreeable to the sacred Scripture I submit to better Iudgments As for the Common Objection that if the curiosity and exactnesse of pleadings should be neglected ignorance and barbarisme would soone be introduced This puts me in minde of Savage Boners Argument that if the Scripture should be in English and Lay men have liberty to read and expound the
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
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
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
sinfull populous State to get two men to sweare an affirmative and indeed by the strength of our Common Law-reason I can discover many weaknesses errours in the Lawes of other Kingdomes but what a silly allegation is it that we are not usefull in other Kingdomes Lex est determinatio legis naturae integrae non corruptae learned Mr. Selden Every Kingdome hath it's Common Law Tanquam inter viburna Cupressi for all Lawes are but determinations of the Lawe of Nature incorrupted though every State has its distinct municipall Lawes and herein we exceed that many of us understand their Civill and Common Lawes beyond sea but not a man of them that so well understandeth our Common Lawe which for certainty perspicuity and many other respects farr advances it selfe above any other humane policie but to keepe to the poynt whether an honest Lawyer be not a necessary and usefull member in the publique service to hold the contrary is to maintaine so weake an error that I think never yet deceived any man If thou intend Anonimous that those which have knowledge in the Lawes are not fit to be Commoners thou then art so silly that I should be sorry for this incounter but if thy meaning be as I beleeve it is that you would not have Parliament men to practise then there are these two things considerable quere whether it be fitting a Lawyer should have two places till his Brethren be imployed I hold it negative upon reasons irrefragable it being destructive to all State-policie 1 Whether it be fit that a Judge of a superiour Court should give attendance upon an inferiour Barr because we know what excellent service the Lawyers of the house of Commons have performed concerning the Judges who have been deservedly judged 2ly Whether to be of the Honourable house of Commons doe not require a whole man To the first it may be answered that sitting the Parliament all other Courts must doe homage to that in any competible poynt of power But when they are out of the house of Commons they are in particuler resolved into their private capacities and he that is an Esquire and a Commoner will not take place of a Knight that is not of the Honourable house though truly I could wish that every Knight of the Shire especially during Parliament time and so long as they live considering their hard serivce might precede all the Knights of his shire The Knight of the Shire pâ—r excellentiam who for breaking the Ice in that perticular deserves much commendâ—tions and so the Burgesses proportionably for never did mortalls act in so glorious a Cause as this is as that excellent ingenious moderator clearly proves that the King is greater then all particulars but lesse then the universe as the Chapter capitularly congregated are superiour to the Deane but apart subordinate to him To the second I answer that when ten men are obliged to pay 20 li. if one man payes it it is in Lawe the payment of all the rest so all men and women being equally obliged to marry for the publique good when the Kingdome is populous and no want of posterity they are discharged as to that politique Consideration So if twenty Commoners are practising in other Courts if the busines of the House go on as effectually as if they were present then that scruple is removed but indeed I would have it with this caution that if ever it should come to a vote in the House of Commons about the regulation of Fees or redressing of delatory proceeding or any matter whatsoever that is to be reformed in Courts of justice concerning the profit of Gown-men I would have them desired to be absent at such votes for truly if the question were put to me whether any thing should be enacted against my particular profit I should suspect my own judgement nor ought any man to be judge in his own cause when it concernes his privat advantage for as Gold is tryed by the touchstone so are men by gold it is too heavy a temptation to be layed upon any mans shoulders for the best Man is but a Man at the best the spawn root of all sin will have a being in the most sanctified man so long as he hath any being heer below the highest poynt of policy is so to settle matters that no man may hope to gain by prolonging suites or muliplicitie of busines Machiavill sayes Râ—pente ex â—â—timo fit turpessimus As that Honorable Gentleman said at the C. P. for the encouragement of the Reverend Iudges Procurator Cesaris At Brides by Mr. Peters a man of a pure Evangelicall spirit who goeth about doing good and may be a looking glasse for others qui optime meritus est de Regno do but tell a good Prince that he may doe what he list and presently he becomes a Tyger I am sure experience shewes and it shall be acknowledged to all posteritie the excellent service that hath bin done by men learned in the Lawes since this Parliament their names shall be had in everlasting remembrance Faithfulnesse to the State and uprightnesse hath bin their brightnesse glory and which hath bin more set off with a greater lustre by reason of the reciduation and unfaithfulnesse of others of whom I will say but this the Lord pardon them their great transgression for they knew the Lawe yet contemned it I am sure they have been a dishonor to our noble profession but I leave them to the wisdome of Parliament onely I confesse I was much affected with an expression I lately heard in a Sermon that should our enemyes prevaile over us should they whom the Parliament have judged rightfully have been Iudges of the Parliament wrongfully they would not leave one of a thousand but every mans private judgement is concluded in Parliament whom not to beleeve in all State matters is morall infidelity Onely I may not forget the recognition of all humble gratitude to our most honourable Parliament for imprinting a distinguishing character upon us that have been London Residentiares and faithfull Adherents to the publique Cause and the Oxford Absentees The shorter the better as more healthfull to the body Politique or Malignant Lawyers that they are not suffered like Pharohs leane Kine to eate up I cannot say the fat pastures but our short commons for my own part I love their persons and will be so charitable as to think it their error in judgement but their ill examples have been of such dangerous consequence that what may be construed nugatory in others is piaculary in Gown-men As Adultery is held the greatest offence that can be committed against the husband being so directly against the conjugall contract and alliance so for a Lawyer to be active for the destruction of the Lawe is a most transcendent enormitie For as the difference between Cesar and Pompey was not who should reigne but who should live So the Oxford
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
repugnant to Gods command of not pittying the poor in Judgement because it is after Judgement in the nature of an equitable clemency to mitigate the severity of an introductive Lawe made and continued at the best for the hardnesse of mens hearts for by the Common Law it is not so Indeed the malignity of writs of Error consisted in this that rich men will scarce ever obey the Law when Judges have ordered reason P. 39. l 31. If there be any such Counsellors that sell their silence as well as their words take money not to be against them as the Indians are said to present the dâ—vil least he should hurt them Ne noâ—â—at that promise to be at 3 Bars at the same time ubiquitary Practisers as I hope there be none that purposely do soe let them think of the day of Judgement quando Iudicia erunt reversa post Iudicium Luther which will be a righteous Declaration without the least Error and tremble for fear least another day they should run about to the Courts of Radamanthus Eacus and Minos I cannot omit a story told us going to see the finest prison in the World at Pavia at the crossing of the Po Padus every mans horse leapt boldly into the Barke but one that would not by any meanes enter till at length a passenger whispered in the horses eares and in he came with courage the Ferry-man thinking it might stand him in great stead to know the words prevailed with the passenger to tell him which were these Sicome lanima de Cattivo Avocato va al casa del diavolo cosi va tu sopra questa barca As the Soule of a wicked Lawyer that cozens his Clients goeth to the house of the devill so leape thou into this Boat P. 43. l. 26. Yet I confesse there may be somtimes good use made of Law-subtilties and niceties to find out a starting hole for the poore and oppressed as the Phisicians make good use of poyson or sometimes to pay an old oppressor in his own coyne I confes I doe not hold a it Christian proverbe to deceive the deceiver because we must ever in bargaining doe good against evill yet peradventure a man that hath bin cozened without legall remedy may by some after subtilty make himselfe a saver and that justly the Spaniard saies to cuckold the Adulterer is but to get a Fox or wolfe into a trap however that be not righteous yet many times I observe the finger of God in the mistake of a word or syllable to helpe the oppressed P. 48. l. 27. For truly to be no more dextrous in administrations of justice now then formerly is for a man to be no wiser at 60. then at 30. for it is not in Courts as in our bodies that men are at their strength at 30. and then a staye and after a declination but a fountaine continually sending forth fresh and sweet waters of justice P. 54. l. 1. Would you have finer cloth then is made of English wooll no blessed be God there are enough that are Infra causam meriti But is there any way alwayes to be sure to have good Judges I know one and that 's infallible that the Lawyers be all of them good men for they are heires to judiciall places P. 55. l. 29. For truly to put a young Gentleman to study the Lawe without direction is to send a Bark without a steeres-man saile or anchor into an angry Sea Mr. Littleton being undoubtedly the most crabbed Author to begin with of any Science in the world plaine ground is ever best for young excercisers P. 50. l. 4. Truly It did me good to heare in a Kentish Case the last Terme where the question was upon a tryall about passing an inheritance without the word heires now the reverend Judges declared the Lawe according to the intent of the parties in purusance of the consideration which is the meritorious cause of every Contract Page 69. Tacitus said of usury quod in Civitate nostra semper vetabitur semper retinebitur obduritiem cordis Page 75. l. 20. After Tyrant read but I am utterly against their practising before the right honourable Lords for though the Judicatories and priviledges be distinct to many purposes yet as to the Grand Concernments of state it is rightly stiled the High Court not Courts of Parliaments which being the two eyes of the Body politique can no more look severall wayes then a man can with one eye looke up and downe with the other and then if any matter which hath bin dijudicaced in one of the honourabâ—e Houses should humbly be â—resented to the other how can it be avoyded but that the same person would be both Judge and Counsell which I conceive to bee a stronger case then my Lo. Dyers that a man cannot be Judge of the Kings Bench and Common pleas for so he might reverse his owne Judgements and that was the reason that if a Parson had bin made a Bishop it had bin an avoydance by reason of subordination certainly for a man to bee Judge in one Court and a practiser in another is a great Error in politiques and I am sure not permitted in any other Christian Kingdome Page 77. l. 12. Good Countrymen bee for ever exceeding carefull in all your Elections let no subtill crafty Malignant for feare or favour procure himselfe to be Elected to disturbe our blessed Counsells If a pure Virgin should cry out and crave your helpe would you not sly to her assistance truly Justice is an immaculate Virgin and craves your helpe to send Religious just and sweet spirited men to keepe the fountaine pure or else no marvaile if the streames of Justice be polluted Page 38. For he makes more motions in a Tearme then another in a yeare as the famous Florentin Sculptor Donatello being desired by the Consuls to make a statue askt 50. l. for it they thinking it too much imployed an ordinary artificer who askt 100. l. for it they being angry referred the price to Donatello who awarded him 80. l. saying I could have made it in a Moneth but the other was three Moneths about it Page 6. And so I have seene a Petion in the behalfe of the poore Cloth-workers full of sad complaints If those many poore soules might have Justice at a cheape rate and speedily against the transgressors of many excellent statuts how could it revive their drooping spirits but let all honest hearts chere up I doubt not but we shall have speedy Iustice the wages of the servant recovered before morning Libertie written upon every Mans doore Christian Lawes in all points establishd free trade for the glory of the Nations and all Monopolies banisht for ever Lastly But the ancient Maximes of the Common Law are in many cases manifestly deluded for contrary to the Statute of 4. H. 4. after Judgements in Ejectments new actions are brought verdit against verdit Judgement against Judgement without Attaint or Error as in the case of the Kentish custome of devising to use the word of the Lord Chancellor ELLESMEre suits for one and the same cause are caried from Court to Court as power and might of the parties or favour and affection of the Judge oâ— corruption of the Officers or subordination and perjurie of witnesses or such like shiâ—ts and trickes as can best accommodate the businesse but blessed bee God never such worthy Judges as now the Lord be with them in all their Jugdements and increase the numbâ—r of Religious and faithfull Judges for this Kingdomes happinesse Because there is some oppinion printed that the Equity or Iniquity of a Jugdement ought not to be questioned in Chancery I think fit to subjoyne the Lord Egertons words some that take pleasure ludere in verbis dormitare in sensibus and so dispute de apicibus juris aequi boni ratione praetermissa and professe learning pueritia literali non Intelligentia spirituali have prest and strained the statute of 4. H. 4.23 not onâ—y against the Popes usurped Authority but the Chancery thereby opposing the King against himselfe who is equally present in all his Courts and what need had the Lords and Commons to ingage themselves to stand with â—he Crowne against the Chancery oh that his Majesty would yet at the length forsaking aâ—l destructive ways ingage himselfe with his Noble Lords and Commons against all Antichristian power sinne and profanenesse grounding their conceit upon the words or else where which was at Anignon where the Pope resided aswell as at Rome and so I hope I have fully satisfied my Antagonist Antinomist to whom I wish well in Christ Jesus FINIS ERRATA PAge 10. line 5. for heaâ—ing a read heavy p. 15. l. 30. for his r. the others p 16. r. precipitous p. 19. r. Lovies case 20. r. murderer p. 23. l. 23. r. sweare his discharge Sulfa terra p. 26. r. Chancery p. 43. l. 8. r. in abeiance p. 44. l. 17. r. Counts p. 45. r. secunda 48. Vergerus falls p. 49. r. nubeculam p. 57. r Hosterie 83. of land is happily l. 29. r. this 3 r. r. the p. 84. l. 3. r. so ls 27. r. that should be lâ—ke 35. r. luminary 36. r. sublimate the lesser p. 87. for tryall r. legall p. 88. l. 4. r. these sad distractions l. 12. r. these p. 71. for creditors r. debtors and read 11. Eliz. Cartwrights case Camb.