Courts with meer Brables If they Doubt let them down with their Dust to the Noble Lawyers they 'l soon Resolve them Divinity is much in the Mother Tongue with Astrology and other Arts but who 's the abler Divine or better Astrologer if Coverted in Characters uncipherable by none but the Learned 't were the Better The Law not Blind-folded but visible to Discerning Judgments 2. That the Law is Lovely and out of Dispute a Paragon but Hooded too close and not Discernable by some open Eyes Is no Dis-worship and so slanderous Law-Terms words of Art and most significant The 36 of E. 3. allows of those Veils as Shades and Airs incident to Science vocables though obscure very Emphatical and most Expressive of the Law and best known to Lawyers the like in use with other Professions and so Incorporated with Law that they 're now become very Essentials therefore words of Art shall not be supply'd by words aequipollent or that tantamount to the same sense and force though in many other Cases it hold good For Example A. voluntarity without any Provocation or Abuse offer'd And of precogitated malice slew B. Is not sufficient in an Indictment in favorem vitae without murdravit In brief to throw by the Terms as too crusty for lay Teeth were an over-hasty Inspection And might Endanger the whole Firmament of Law Pleadings Graceful and most Necessary 3. For Pleading if meer Fidling and nugation strange the Ingenium sine Exemplo Maximum or Advocate Laureat at Common Law should Counsel the Student to set his Courage chiefly to learn the Art of good Pleading as the most Honourable and Beneficial Part of the Law The use of Pleas The Inveigler Imprisonable and Finable The end of Pleading is to unfold the Intrigues of the Case to Evidence the matter of Fact for Ex facto Oritur Jus that the Court might more smoothly and certainly Pronounce the Law If not pertinent and close to the Point in Debate Advantage may be taken by Demurrer And for the Falsity of the Plea the Judgment is Capiatur for which the Pleadant shall be Fin'd and Imprisoned But if Conscious of his Error He waive his Plea He shall only be in Misericordia or Amerc'd Fraud and Falshood Prohibited by Law Hence to avoid Fourching or Circuity of Action Negative Pregnants Departures with Duplicity and Multiplicity of matter are Rejected Because of Inveigling that is wavering the Judgment from one single Point which would render Causes vexatious and Endless The benefit of Pleading The Right Apparanted Many chance Cases happen which primâ facie seem Rugged and Knotty but thrown into Form and legal Method by orderly Pleading The matter is unknotted and appears more smooth and Glib for the Judge and Jury to arbitrate Justice Thus Pleading is no Inveiglement wasting of Time Pratling nor Prating But the chief Ornament and Skill of Law in unravelling the Knottiness to reduce it to an Issue The Law no Art without Form In brief Pettishly or sowrly for I find both Passions boiling Hot against the Lawyers to reject all Form were not only a great Take off and Lessening its true lustre and Dignity but on the matter doltishly Debasing it as no Science The Fairness of Legal Forms In E. 3. Reign Pleadings arriv'd to a Compleatness neither Limping nor Picked Counts were not Abateable if the matter or Cause of Action were fully Declar'd And now nice Janglings with all Ambushments pur Enginer the substance of the matter appearing are Rejected Viciousness in Pleading Disallowable 1. Every Plea shall be taken most strongly against the Pleader it being Presumeable that every one is best Apprised of his own Right 2. That none are so Idle and Coltish wilfully to vitiate their own Cause 3. That every one will turn the best side of his Coat outwards that is make the best of his own Case 4. By a false or vicious Plea the Pleadant loses the Advantage of the Law and must pay Costs Deluding Pleas Illegal Small Faults mendable By W. 1. shifting and beguiling Pleas are Prohibited and a late Act of the Qu. doth provide that want of Form shall not prejudice except what the Party Demurring doth specially shew so that Pleadings at present are not Prevarications or gingling quiddities meer Quirks or Quillets of Fraud But Forms of Art richly useful and more stately than Studs of Gold In fine Beau-pleader or Care in Pleading would prevent the Chancery of Trouble and save many sweet Pounds in the Clients Purse 4. By Arrest of Judgments many are thereby Dismis'd from being oppress'd the Circumstance of Fact by Error in Pleading more clearly Arising and Justice more safely and speedily Administer'd 5. For a Writ of Error which is no more then a Commission to discuss and reverse Mistakes I see no mischief thereby for the Manucaptors must stare Juri that is satisfie the Condemnation if the Judgment be Affirm'd neither will the Principal rendring his Body answer the Law without Satisfaction as in other Cases 6. The Inhibitions so much Exclaim'd on and voted obstructive by heady weak Judgments the Law is therein Defam'd because Mistaken for in their right Constitution they 're of admirable use and necessity To prevent Interfering of Courts keeping every Judicatore within its proper Bounds That the Cause be not wrested ad aliud Examen before a remediless Trier And the Client thereby between two stools fall to the Ground and be crush'd to pieces on good Cause shew'd that the Court has been mis-inform'd a Consultation by the 24 E. 1. is granted on Course and the Cause Remanded to its proper Court SECT VI. Par. 31. Complainings against Equity ADmitting the Common Law the Son and Heir apparent of Reason pretty Just and of easie Address the Courts of Equity with Dissenters are Burdenous sucking Shavers and gilded iniquity Being direct whirpools one order begets Another and we are still swung round Toss'd from Pillar to Post from Report to Exceptions Till our Pockets are turn'd outwards and at last Drown'd for want of white Earth to wade through For a Cause to be Depending several Revolutions of Mercury 3 or 4 Prentiships is frequent 'T is better to put up an Injury and throw our Right down Thames then pray Relief in Equity The charge so great the Delay Intolerable The Freekishness Responded For the sluggishness of Equitable Courts in Killing the Orator Piece-meal with swooning Fits and Reviving Him again as long as there 's any Life left in the Pouch is an ignorant Mistake They 're Rivers of Mercy in Asswaging the Grimness of the Law the Causes are often weighty having been long at Law and they usually put in at Equity for a Breathing as well as for a final Dispatch if they find some Pause they may fall out with their own Comitial Spirit or litigious Itch that will wrangle with Goliah for a wisp of straw not blame the Court that dare not to be over spurring in their Hearing lest they assign the Child
King that scourg'd the Hellespont for by their Actings I find naught but Gravity and Wisdom And therefore to be Embrac'd with Bone-fires of Joy for so Pick'd an Assembly Par. 66. No Parliament without an Act. 'T IS held in strictness of Law properly no Parliament only an Assembly unless some Act pass or Record be made thereof though all Formalities requisite in State as one would think hath been perform'd to denominate it a Parliament 1. No Meeting on their own Heads without a lawful Citation being summon'd by orderly Precept to the Sheriff 2. No surprise without due notice of his Writ to the Country who by virtue of his Warrant Royal Convene such a Day at the usual Hours directed by Law to appear and Elect. 3. They personally appear and make their Choice the Party Elected accepts the Trust and is formally Return'd 4. The two Houses meet at the Day set in the Writ with the Appearance of his Majesty or his Chancellour if in Remotis to signifie his Call 5. Imagine several Sittings with interlocutory Discourses and Conferences of both Houses the Journal full of Movings and Debates with Bills past ready for the Royal Hand Now what shall hinder but according to the meaning and Common Acceptation of the Word here 's a Compleat Parliament yet in Law without some Act pass'd strictly 't is no Parliament only a Convention And so several times Agreed by all the Judges of England I confess this is no small Nicity for in Law in case of an Arbitrement if once a Controversie be submitted by Deed or by Parol and Arbitratours actually Chosen and they meet and Debate labouring to Reconcile though their Labours prove successless making no Award yet 't is proper to averr an Arbitration as in Pleading to say the matter was submitted to Arbitrement The Arbitrours meet and Consulted Examining the matter in variance in order to end all Differences but could not Agree to make an Award in this fense 't is good enough to alledge an Arbitrement and Arbitours though nullum fecerunt Arbitrium why not the like in the Parliamentary Point Obsequiousness Applied No I find the Modern Authorities clear against it though by the 18 R. 2. a Judgment given in B. R. was revers'd but no Statude made yet Adjug'd a Parliament Let this lesson us how vain and Impudent Conscience is to winnel and nose Law if Law there 's no Disputing Par. 67. Whether the whole Establishment may be subverted 'T IS scrupled by ome Constultors or gingling Enquirors whether perverting Acts are Binding I shall not trouble my Head in stating this Curiousness But at Common Law if one depute a Proxey to give seisin on Condition and he delivers it Absolute 't is void or if the Warrant be absolute and He deliver it Conditionally 't is the same The like in this Point the Members of that Consultation are no Com-peers of Sovereignty at most the one but the Princes Advisers the other the Peoples Delegates both limited and Controulable being Entrusted ad tractandam de quibusdam urgentibus to treat of certain Arduous and Important Affairs and therein to use their Power Prudently in preserving Fundamentals and accommodating the State by redressive Acts in lopping of all Excrescencies or annoying Stems inconvenient or oppressive but not at all Authoris'd to mangle Settlements or dispute with Princes Par. 68. Their Priviledges not Disputable BY Thorps Case the Priviledges of these High Counsellors are not to be touch'd on much less to be describ'd or determin'd To busie then our Pates in designing the Form or Jurisdiction of that transcendent Court is for silly Questionists for every sober Person is bound to shape his Conceptions thereof with an humble and obedient Reverence Par. 69. The Priviledge not Releasable Transferrable nor Extinguishable I Conceive the Priviledge neither suspendible nor Abateable by any private nor even judicial Act of the Person Priviledg'd without notorious Breach of Trust and the Peril too of the Publick safety Neither can this admit of any Curiosity or wonder when his Condition is throughly viewed and in what capacity he mov'd The capacity being publick so not to be quitted on a personal Account or Privacy of Design And therefore if weary of his Procuratorship He ought to signifie his Debility or Weariness to Continue And the Delegators or Parties Electing left to their choice to depute another in his stead Not Deputable or Assignable Hence it is Regularly in Law that he cannot Depute a Proxy or Assigne because chosen and Trusted by others Moving in auter Droit and so not Master of himself to Assign or transfer the publick Deligacy or Trust to others Trusts not Delegable To illustrate this more plainly by the Common Practice If A. be intrusted by B. for the use of C. and others and he accept the Trust He can hardly transfer this Trust without the consent of the Parties entrusting should he do it without their Privity and Assent Equity as well as common Civility will take it ill and award the Parties Damages the Injury being Relievable by Action The Case of Factorship or Common Attorneyship makes it plainer for if either undertake more then what they can well perform if the Clients receive loss 't is Remediable by Action so they 're Confin'd to Mediocrity though they usually moyl themselves over shooes and Boots and engross more then they can well grasp Much stronger in the Parliamentary undertaking there 's no Remedy over if any the Damage may be so Immense that 't is Impossible for a single fortune to satisfie therefore on necessity the Priviledge not Quittable otherwise the Publique shall be in a worse Condition then the Private which no Law will admit but still on the Contrary the Rule being undeniable over the whole Face of the Earth Better one suffer then the whole The Case lately of the Lord S. in B. R. was strange where on a Trial by Consent the Priviledge was Halted at though He affirmed very positively a surprise being fain to attend publick Affairs wholly taken up therewith and so Disabled to fit himself for a Trial And therefore Prayed a further Day 't was Denied with some judicial Assertion that the Priviledge was wayv'd which may be Doubted because I take the Lords to sit on the Behalf of the whole Nation as well as the Commons and therefore their Hinderance as publickly Damageable Neither can Consent in Adjournment though a vacancy from the publick Employ quit the Priviledge because Demandable at the Royal Pleasure before the time appointed In Prorogations I agree the Priviledge suspended But that 's by Act of Law and a quasi Dissolution for the time and so no Right violated the Publick at no Detriment or Danger Should any be so easie in Relinquishing the Priviledge I Conceive 't is a Contempt and no small Dishonour to the House no way to extinguish it but by Act and I much question whether that can do it because of Entailing a Wrong on Posterity With
Action Not Relinquishable in State 1. Can the Ruffest Person be so Doltish so lamentably clownish to Conceive it Handsome or at all Just for his Majesty to be evicted of his Servants without leave or to Dispence with a Discharge to incur an Inconvenience without his Privity 2. A fine Comeliness in Honour for the Servants to be snatch'd up and the Prince to wait on himself 3. Once Sworn 't is Conceiv'd the Party can by no Devise of his own Head for self Ends Relinquish Discharge or Forfeit his Attendance 4. That his Majesty may chuse to allow of any such Disabling without his Knowledge and Assent 5. Both Punishable for Attempting to disaccommodate his Majesty by nulling or indeed waiving the Priviledge No way Dispriviledgable without Leave A Fondness or rather Dotishness of Conceit strongly reigns with some that Outlawry after Judgment will Attach a Courtier Being then Judicially outed of all Aulical Indulgence or indeed Protection of Law This is Commonly Receiv'd for Law and many times Practis'd too but Communis Error non facit Jus is a Maxim in Law and a Canon in Politiques And therefore Conceiv'd by some a gross Error and Solecism of State a very uncivil and irregular Practice and strictly a surprise without leave and so a Contempt and Punishable To the Head-Officers the Deemsters of Priviledge Some may be over-noble and easie in giving leave others too Importuning in Requesting more then Justice or Civility can possbly grant 'T is thought they may still Protect the Servant from being Impleaded for any Act though voluntary and with Consent because uncapable to Contract and a third Person is mischief'd thereby which the Law will not suffer The Relinquisher deserves little Protection for wilfully Intangling Himself however 't is not Just nor Civil that his Majesty should be disserv'd for anothers Folly Par. 76. The Sequel of Vulgar Oversights THese mistakes have begot a general Prejudice on Monarchs and some Greeks in chief the Physicians Son tumbling in muckey Republiques have somewhat besmear'd Monarchy writing not only coldly but depravedly thereof perchance more out of Ignorance then Envy because they knew no better But it hath been found true enough by woful wringings that no Last will fit an English Foot but the Rule by a single Person Monarchy the best Government To speak unbiasly 't is the Exactest Platform and freest from Corruption least inclin'd to twinge the Purse or wrench the Conscience because not given to Faction and great Parties In brief the speediest Termination of Justice and if Credit may be given to Scripture the Pattern of Heaven and therefore most universally receiv'd by all Mankind Par. 77. The Easiness of living under Princes NEither can Monarchy be so Burdenous and subject to Groanings as other species of Regency if fierce and chargeable 't is safer to dread one Tyger than many And less smoaking the Purse to feed one spendal then a Multitude One or two Counsellors in Physick or Law their Judgments mellow'd by Experience are more cheap and safe than many Variety of opinions seldom unite and do but retard the Cure Par. 78. Princes Reclaimable IF a Monarch should chance to be Raw and Riotous if Advice and Honour cannot Age must on Force reclaim But a Senatory or Popular State grows feverish and worse and ever continues so to the end of the Chapter And when all Medicines are Essayed no Remedy by Hook nor Crook can be found out but the Scab totally given over by Counsel and Patience Death will assuredly help the one by Remove and there 's Hopes a better may spring up and please every Tooth but what 's perish'd with the Phanatick Worm But the other is for ever succourless because out of reach of Vicissitude being swath'd with Eternity Par. 79. Supremacy Hereditary more safe then Elective 'T IS stifly disputed by some Athenian whifflers that post-pone Monarchy to hold a Trencher to a popular Elbow whether Supremes by Descent or Choice are the aptest Rulers and most Available for the People 't is said by the Railers against Succession that a Prince may happen to be a Minor unable to govern and Guardians will but make Hay while the Sun Shines Taking Advantage of the Guardianships to Christen their own Child and neglect the publick Good Secondly if at ripe years the Prince may prove a waster and in Dandling his Affection destroy the People And therefore the Scepter is best bestow'd on the Sharpest Sword or the Worthiest Par. 80. A setled Monarchy not Damageable by Infancy THE Disputers against Election may rejoyn and Alledge in case of Minority the Council will supply the Defect and be more watchful for the Shame will be theirs if the Prince suffer through Slothfulness or sinister Conduct An Elective State proves more Heavy and Chargeable for the Party Elected to gratifie his Faction must impair the Crown by large Donatives And to raise his own Stock pull much from the Domain Royal Knowing his Regency is no Entail but must Terminate in him which is often practis'd by Electives and Usurpers as lately with us by H. 4. Par. 81. The Monarchy of England Avowed 'T IS said by the Stormers against Sovereignty that the King cannot Reverse a Decree nor Countermand a Judgment at Law therefore no Compleat Monarch That Judicial Acts are not Countermandable 't is not for want of Omnipotency in the King but Possibility in the Affair for the King in operation of Law is ever Present in Court and hence by the 28 E. 1. En Presence del Roy is taken for the Kings Bench because He is there Virtually though not Presentially therefore cannot be non-suit because not Demandable in Judgment of Law being never Absent but still Potentially Sitting For Instance A stroke within the Resiancy of the Royal Person unless Blood thereupon Ensue is no Amputation or loss of the Hand But in the Iudgment-Hall by the 41 E. 3.280 22 E. 3.13 but the 1 Trin. E. 4. Rot. 3. is in point the Courts sitting for very striking the Hand must be Amputated or Cut off which I find by that Record was accordingly executed on the striker Apud le Standard de Cheap the Reason of the severity is render'd Because in Judgment of State Majesty is Present And the Law the great Preserver of Peace and Reverence to the Sovereign will not away with such an Insolence Now the Lords Justices represent the Sacred Person and what 's Pronounc'd by them is tacitly Declar'd by him And so to reverse or controul what is Decreed by Himself were Absurd and Acts of Justice more changeable then the Moon no Body ever safe and the Glory of England the Law more useless then scribled Paper I 'me loth to let my Pen run in Discussing this Point a fit Theam for an Hubert de Burgo for though welted never so Candidly and Warrantably too by Studied Reason Law I shall hardly slip the Censure of Dodging as a Clawer of the one and an Abaser of the other