Fines are to be paid according to the usage and course of Chancery may be as warrantable as that which is not to this day complained of or denied upon Writs of Formedon and other real Actions but willingly paid in to the Hanaper in Chancery or that profit which heretofore came to the King upon Writs of Assize of Novel disseisin where the Sheriffs did before the Statute of Westminst 2. take an Ox of the Disseisee or of him which purchased an Assize and were by that Statute commanded that they should not upon Writs of Assize which were then the usual remedies in many real Actions and sometimes in Trespass from thenceforth take an Ox of the Disseisee but of the Disseisor only nor receive any Ox but of five shillings price or value Or the half Mark usually paid by the Tenant or Defendant upon the Mise joyned in a Writ of Right that the grand Assize might enquire of the time that the Demandant alleadged he was seized of the Lands in question for it seemeth saith Littleton who was a Judge and wrote his Book after the fourteenth year of the Reign of King Edward the fourth that the grand Assize ought otherwise to be charged onely to enquire of the meer Right and not of the Possession c. And was no selling and bargaining for Justice as some have groundlesly supposed and may rectifie their errours by a due consideration that for our Magna Charta it self which was confirmed in the ninth year of the Reign of King H. 3. and wherein nulli vendemus Justitiam is provided and ordained the people of England did give to the King the fifteenth part of all their Moveables that in the levying of Fines for common assurance there is and hath been anciently a Dat. Domino Regi mony given or paid to the King pro licentia concordandi in the Court of Common Pleas at Westminster that for private Acts of Parliament at this day as well as heretofore Fees to the Speaker of the House of Commons and the Clerks thereof are usually paid without any sale of Justice or contradiction supposed of that branch of Magna Charta that in the Statute of 18 E. 3. and the Oath thereupon given to the Judges that they shall take no gift or reward nor any Fee of any person there is an exception unless it be meat drink or of small value For by the same reason that Fines upon some Original Writs for they are but upon some few are supposed to be a selling of Justice the Cursistors Fees ordained by the Statute of Westminster the second in anno 13. E. 1. to be but a penny for every Writ which the price of victuals and way of livelyhood which is now a great deal more then formerly considered amounts unto as much as ten pence for every Writ and will not now buy as it would do then the sixtieth part of an Ox which was then valued but at five shillings and the Fees of the Virgers and the Chyrographer in the Court of Common Pleas and all those many other Fees ordained by Act of Parliament would be as they are not a selling of Justice and a breach of Magna Charta and unwarrantable And howsoever those due and warrantable Fees which are paid to Clerks and Officers of Courts and the Fines which are paid upon Original Writs excusing greater Fees to the Cursistors who could not otherwise be contented with a pitiful Fee of six pence for the writing of every Original Writ cannot bear any proportion or resemblance of a Bribe or of the Kings or any of his Judges selling of Justice and if it did as it cannot being always paid by the Plaintiff must then conclude that all Plaintiffs must of necessity never or seldome fail of their designes or recovery which dayly experience manifestly contradicteth nor can possibly be so understood whenas in every Action the Defendants do pay Fees as well as the Plaintiffs Neither can it be any breach of Magna Charta or injury done to the clause therein of nulli vendemus Justiciam when as the wisdom of former as well as of later Parliaments did always foresee and allow of a necessity of something to be paid to the Judges Officials or Ministers of Justice in the obtaining or expediting of it for a provision and maintenance to support and encourage them in giving a dispatch to the people who came for remedies to the Courts of Justice or the Chancery And the Statute of Westminster the second which was not long after the making of Magna Charta intended certainly just recompences to the Clerks and Officers when it ordered them to use so great a diligence and care in the dispatch of justice to all that came for it as ne deficiat Justicia conquerentibus concordent Clerici c. all good ways and means were so to be taken by framing and forming of Writs according to every mans particular case ut nullus recedat â Cancellaria sine remedio For which the King was at charges to the Officers and Clerks of the Chancery for Robes and Liveries to be yearly given them and the Keepers of the Seal took care for their Diet and other conveniences as may appear by the usage and course of that Court in the Reign of King E. 3. when the King conceived himself to be so much concerned in it as Writs were frequently sent to the Sheriffs and Bayliffs tam infra libertates quam extra to be aiding and assisting to the Pourveyors for the Chancery in diversis providenciis or Pourveyances de Pane vino Cervisia Carnibus puletria aliis victualibus feno avenis litteris cariagiis ad opus ipsius Cancellarii the Bishop of Winchester being then Chancellor pro denariis suis solvend when as also the profit arising by the Fines in those times and long after were collected and accompted for in the Exchequer And that or the like maintenance or support is again to be given to them or the Lord Chancello◠for them if the King should not be pleased to allow the profits arising by his Fines upon Original Writs in personal Actions to the Lord Chancellor or Lord Keeper and the Master of the Rolls for the support of those high and honourable Offices and Places which they hold and the Cursistors for their better encouragement in the service of the King and his people in Chancery in their several Orbs and employments or otherwise the people who will not do anything themselves without pay or sell their victuals to them without money are to pay the Cursistors such other Fees as their attendance skill and labour shall merit And therefore if the Statute of Westminster the second had not informed us that besides their provisions and livelyhood then provided for them they had their Sportula's Fees and encouragements allowed them for making of every Writ which with their victuals and necessary provisions made a greater benefit considering their then most
Crowns upon the commencing of any Action eosdem ab eo quem Judicio superasset recuperaturus aut suae temeritatis si vinceretur Justam poenam laturus to be had again and recovered of him which is overcome or otherwise is to loose it as a just punishment for bringing his Action for that which he had no right unto And the Dutch who pretend so very much to Libertie have taken it to be so little or no prejudice at all unto their freedom as they do in this our present Age or Century besides two Stivers taken upon every Order or Petition in any Court of Justice for the lesser Seal with which the paper upon which it is written is marked and four Stivers or our four pence half-peny for a greater Seal imposed and do take at the beginning of every Action or Suit to be paid to the States thirty Stivers or three shillings English for every 50 Florens or five pounds English of the sum demanded as a Vectigal temerariè litigantium a fine or punishment for those which do not maintain or make good their Actions which far exceeds the rate and manner of our Fines paid upon the beginning of every Action And by laying some charge upon the fertility of contentious and in punishing such as without just cause of Action do molest and trouble one another have but done therein as the Hebrews or children of Israel did upon whom the light of the wisdome of the most High did first shine when finding that Nation as Rabbi Maimon saith to be litigiosum genus hominum duplum rependere coegerunt qui debitum scienter denegarent non incongruum sacrae paginae videtur and is not repugnant to the reason and equity of Gods own law wherein he ordained that the trespasser should pay double damages which the paying of costs with us either single or double in fineable or not fineable Actions did never arrive unto And is much better then when as anciently until a better course and way of bringing men to justice was found out by establishing of fixed and certain Courts times and places of justice with less trouble to the people They did where they did not fouly contend or fight it out by the bloody and direful chance of might or power of parties make choice of Arbitrators and bear their charges which when the law was in Cunabulis every one which hath travelled but easie journies in the Civil Law and the Law of Nations knows to be frequent to meet at an equal distance or other convenient place or at their houses Or when as it appeareth by Marculfus who living near the time of Charlemain the Emperour wrote about 800 years ago and Bignonius Notes or Comment upon him it was the custome in the reign of Charlemain that Judges being made itinerant by commission to hear and determine causes at the houses of those that complained for want of justice did not onely Freda exigere take a third part of the fine or penalty for themselves and enforced their entertainments to be defrayed but redhibitiones some other fees and rewards to be given to them Insomuch as some Abbies Monasteries beyond the Seas and our largely priviledged Abby of St. Albons in England who were well enough sitted for publick entertainments and Hospitality and much used unto it and divers great Cities and Towns did so little like of that trouble which those kind of Judges and their then necessary and greater trains and retinues brought upon them as they made shift to obtain immunities and priviledges from their Kings to be freed from those kind of troubles Which may the more perswade the right usage and reasonableness of Fees in Courts of Justice or Chancery where the reason and difference of Fees in and through all ages and times in the custome and usage of Courts in this and all places of Christendom have been grounded and made to be 1. According to the labour in writing 2. A more special care and skill to be taken and used as in a Real Action more then a Personal 3. The quality of the Judge And the superiority or eminency of the Court which granteth it As more in Parliament where the House of Commons takes for the least Order that is made 6 s. 8 d. and the House of Peers 14 s. 6 d. or more according to the length more in the Chancery for an Order then in the Kings Bench or Common Pleas and lesser Fees in the inferior or Pipowder Courts then in the superior and therefore when a Justice of Peace shall take 2 s. 4 d. for his Warrant or Writ a Writ issuing out of the high Court of Chancery may justly claim to be as much that of six pence which they have now for every Writ besides the Fine or where it is not fineable being far too little and so below an encouragement of their labours fidelity and well-being as may put them either into a carelesness of doing their business as they should do which when the Fines were put down were sufficiently experimented or a temptation to do things which they should not do Or if the Fee but of six pence more should be added to their Fee for common Writs if the Fines should be taken away and a recompence of 700 l. or 1000 l. per ann granted by the King to the Lord Chancellor and as much to the Master of the Rolls and their successours for what they shall be loosers by the taking away of the Fines it would all together amount to a greater charge upon the people then it was twenty years ago when the accompt of the Fines was a great deal more then in the last year And if they should have so much for every common Writ whereupon no Fine is paid which in London where most Fines are paid are not one in every twenty and in the Country where few fineable Writs happen are not one in every two hundred the charge thereof making many to bear the burthen of a few would be unequal and unjust and more to the subject in general then that which upon seldome or particular cases are now paid Which may please the peoples fancies but will in the end or consequence of it but delude their imaginations and they will really finde no more ease thereby then he that is to carry a bushel of Wheat shall do when he shall put some in his large Pockets some in his Boots or Stockings or some in a Hawking-bag at his Girdle and carry the rest upon his Shoulders or one that shall be so wise as to think a pound of Feathers to be less in weight then a pound of Lead Wherefore all things being as they ought to be duely considered and the great benefit which all the people of England do receive by having a Court of Chancery and Officina Justitiae and the several Offices therein open as well in the Vacations as Terms to resort unto for their Writs
the use and dignity of that great Officer in most of the Kingdomes and Nations of Europe and the necessity of his honourable support do think it requisite to allow their gran Cancelliero a great Revenue out of the Publick stock And that it cannot be a grievance that the Master of the Rolls and Cursistors in Chancery are allowed some part of that small part of the Kings Revenue for their support and encouragement which would be more chargeable to the people and be more unequal and not consist so well with the Rules of Justice if it should be raised by any other way or contrivancce to give them a recompence proportioned to their cares and labours Which my Endeavours I have presumed to offer unto your view not that I can believe that your known integrity sincerity and care of Justice in that honourable Office and Dignity wherein his Majesty hath worthily placed you can by any Byass of Self-interest lead you to a better liking or approbation of these my Labours in the vindication of a Legal duty which so many are ready to throw stones at and do dislike it not because it is not a friend to Caesar but because it is But that I can be sure to be well-weighed in the Balance of Judgement by you who in the times of our unhappy Wars and turmoils of the Pen and Sword when the Seas roared and swelled the Winds and Waves cuft each other and Mountains and short breaking Seas did onely busie themselves to run over one another would not like the representation of our old Britannia sit safely upon the rocks contemplate the fury of the Seas but would with your Boat adventure to launch into the Deep and help to rescue as wel as you could the Ship of the Commonwealth which by the inconstancie of Winds and Weather and the rage of many Waters had lost her Anchors Rudder Masts and Cables and was ready to dash upon the next Rock she met with or founder or sink into the bottom of an unmerciful heap of Waters and when the Law was in Extremis and at the last gasp did like the undespairing Roman that bought a field when Hannibal being at the Gates with a conquering and prevailing Army had put Rome into more then an ordinary fit of an Ague publish those excellent Reports of your learned Father-in-law Justice-Croke to tell as well as instruct the Students of our Laws that our Laws would notwithstanding like the triumphant Lawrel and peaceful Palm be green again and ever flourishing and did together with some other good Patriots and well-wishers to your King and Country adventure your Estate and not without some hazards and dangers did by all the Rocks Shelves and Quicksands more perilous then those of Goodwin over the Scilla of a guilty party on the one hand and by the Charibdis of a prevailing interested party of the other hand and of as many more difficulties as summed up all together made a Miracle help to bring into the Port or Haven that Weather-beaten and distressed Ship fraught with the unvaluable Riches of the hopes of England and Restorer of our Peace and Plenty who hath ' built up and repaired our Jerusalem and brought our Religion Laws and Liberties from its captivity and the waters of Babylon in contemplation whereof his Majesty well understanding how much it would conduce to the good and welfare of himself and his people did intrust you with the keeping of his Records being the Evidences of the people as they were called in an Act of Parliament in 43 E. 3. together with those which have been since added thereunto and do now remain in the Tower of London and in the High Court of Chancery and with the dispensing of Equity and Conscience in Causes accustomed to come before you in which great Office and Employments and care for the common good that you may long continue is as it ought to be the hearty well-wishes and desires of all that know you Amongst whom you cannot erre if you shall please to number Your most humble Servant FABIAN PHILIPPS THE Antiquity Legality Right Use and ancient Usage of FINES To be paid in Chancery upon the suing out or obtaining some sorts of Original Writs retornable into the Court of Common Pleas at Westminster THe payment of Fines upon Original Writs in England were anciently and originally not as any exaction purchase or mony given to defile or betray Justice but as Retributions or Oblations to the Prince or supreme Magistrate for his grace and favour in granting Writs Remedial and as some recompence of his charges and care in causing Justice to be done to all that have need or should seek for it And some or such-like payments to the Magistrates or Ministers of Justice were in use more then two thousand years ago amongst the Grecians the grand Pretenders to Morality and Justice that greatest of the Vertues where besides a certain sum of money deposited by the Plaintiff for the making good of his Action or Complaint he against whom Judgement was given did pay a Fine as a Vectigal Temerariè litigantis And when Judges were appointed for the hearing of a Cause which amongst the Athenians were in many Civil Causes but as Arbitri or Arbitrators constituted by more supreme Judges or Magistrates they were to meet at the place for them ordained there to expect both parties until the evening at which time if neither or but one of the parties appeared it was in their power to fine the party neglecting according to Law And at the time they entred the Suit and wrote the Accusation with the Fine which was required for Damages the Judges received as a Fee from the Plaintiff one Drachm which according to the Attick valuation was in the lowest accompt seven pence half-peny and the Aeginean twelve pence half-peny And are nothing like either a burden or oppression when it shall be as it ought to be considered that amongst the Romans who imitated them and were so exact and curious in their Justice as they would not a great while permit their Magistrates Praetors or Lord Chief-Justices to take their wives with them into their Provinces Nè feminae in avaritiam suapte natura propensae potentiae subnixae provinciam expilarent And that the Plaintiff could not vetustissimo jure by a most ancient Law or Usage go to Law as Varro tells us nor the Defendant be permitted to make his defence without an equal or certain sum of money deposited both by the Plaintiff and the Defendant which the Sponsiones Sacramenta and Stipulationes amongst the ancient Romans do testifie and that of the monies deposited as well by the Defendants as the Plaintiffs Qui Judicio vicerat suum Sacramentum id est pecunia interpositum auferebat victi ad aerarium redibat But that being found too troublesome was afterwards reduced onely unto the Plaintiffs depositing of the tenth part of the money demanded by undertaking
Session as they there are called did no longer ago then in anno 1606 in the Reign of King James the sixth by his Commission limit and set down the Prices or Fees to the Director of the Chancery which varied according to the qualities of the persons and values of the matters or things as twenty shillings Scots money for a second or third Precept and for a Summons of Errour past the quarter Seal four pounds Scotish money and to the Keepers of the Signet ten shillings Scots money for a Summons which were ratified by Act of Parliament in that Kingdom in anno Dom. 1621. And do at this day keep their Chancery and the Fees and Profits thereof so high as for a Defendants entring into a Recognizance or Obligation in a Suit depending before the Lords of Session or Court of Justice so called which with us without passing the great Seal would not have cost twenty shillings being to pass the Seals in their Chancery no less then fourty pounds Sterling is demanded for the incident charges thereof Long before which and many of those or the like Customs in other Nations the payment of Fines in England upon Original Writs issuing out of the Chancery did by imitation of the Greeks and Romans or the light and law of Nature and the same or a like reason very early come unto us As may be perceived by that Law of King Ina in anno 720. when the Defendant did pignora deponere ante litem aestimatam And by the Wytas Overseunesses and emendationes pacis paid to the King in the time of our Saxon Ancestors and King Henry the 1. and the Sachas which were in that nature paid in those days to the Lords of Mannors upon Suits or Actions in their petty Courts And it appears by the Fine-Rolls in the Reigns of King John H. 3. E. 1. E. 2. and until 25 E. 3. that Fines were paid upon very many if not all manner of Writs Original issuing out of the Chancery and even upon Actions of Trespass and being since 25 E. 3. by the grace and favour of the Chancery and Chancellors notwithstanding divers Petitions in Parliament in that Kings Reign to some of which he had given negative Answers and to others referred them to the Chancellor to deal favourably with them therein reduced to that which they now are viz. where the debt or damage demanded and expressed doth exceed the sum of forty pounds there is onely paid six shillings and eight pence from thence to one hundred marks and thence to one hundred pounds ten shillings and so proportionably according to that rate as the sum of money demanded and expressed shall exceed the sum of one hundred pounds Which probably might be so limited or restrained by occasion of a petition of the Commons in Parliament in the 25 year of the Reign of King E. 3. where they did pray That les graces de la Chancellarie pour briefs avoir ne sont desormes si dures nési Estreites come ore ont estre de novel quar home en prent ore en la Chauncellerie Fins de chescun maner de briefs ceux Fins serront paier maintenant en le Haneper que de ceo en arere ne estoit fait quel chose est si grant damage au peuple que gentz ne poient leur droit poursuier par reasone de le grant charge susdite en granâ—â—rrerissement de profit le Roy. To which the King answered Il plest au Roy que le Chaunceller soit si gracious come il purra bonement sur le grant des briefs considerant l'estat des persones quiles pourchasent And may with probability and warrant enough be well conjectured to have been if not as those ancient Deposita's which the Romans and the Civil Laws might long before have introduced or as the customs in the Empire or large walk or extent of the Civil or Caesarean Law have brought into a well-allowed Praxis yet as Honoraria's or Oblata's Retributions or Free-will-offerings of the people for favours received Of which some of the Fine-rolls of King Johns time do bear that Title Where it appeareth that Abbas de Burgo dat Domino Regi unum Palfridum pro habendo brevi de nova disseisina Johannes le Tanner dat dimid marcam pro habendo Pone coram Justic. domini Regis apud Westemonasterium Magister Honorius Archidiaconus Richemund dat unum Palfridum pro capiendo quosdam Excommunicatos And before the custome of giving or assessing Costs either to Plaintiffs or Defendants the Plaintiff could not as appeareth by the form of the Original Writs mentioned by Glanvil Lord Chief Justice of England when he wrote his Book de Consuetudinibus Angliae in the Reign of King Henry the second prosecute his Action upon an Original VVrit which was then for ought appears to the contrary long before used and accustomed nor have any thing done by the Sheriff to whom it was directed or any process out of the Court of Common Pleas where it was made retornable before he had put in to the Sheriff two real Sureties or Pledges de clamore suo prosequend which for some Ages after continuing it was in 36 Edward the third ordained by Act of Parliament That Costs should be taken before the Justices in the presence of the Pledges and that the Pledges know the sum of their Fine before their departing But it being afterwards found to be an obstruction of Justice and a denial or delay of it where poor men or of low and mean condition were not able or could not without great trouble or inconveniencies before-hand procure Sureties in their Suits or seeking for Justice especially against rich or potent Adversaries although the Judges did by discretion of Court not seldome as the Records do witness propter paupertatem dispense with the putting in of Sureties to prosecute it did by reason of a more rational or speedy way and course of taxing or assessing Costs and putting it in the same execution for the principal debt or cause of Action grow into a desuetude and a meer formality of retorning Pledges or Sureties for the payment of the Costs to the party vanquishing and the Fines which were before carefully collected for the King and together with the Misericordia's which upon non Prosequendo's and upon every Judgement are now onely entred with a Misericordia in the Margent and made a considerable Revenue to the King as by the Estreat-Rolls of the Iters or Circuits in the Reign of King Edward the first may appear being not now imposed the feigned and usual names of John Doo and Richard Roo to avoid alterations in the Formula's or Proceedings of the Law and the evil consequences which do often happen by Innovations do onely yet remain to tell us the former reason and designe of the Law therein Which payments of Fines upon the suing out of Original Writs in debt for sums of mony for which
commonly single and unmarried condition then the Cursistors Fees and parts of the Fines do now amount unto It will be no more improbable that the Clerks and Officers of the Chancery when they either lived in the House with the Lord Chancellor or had their Dyet and necessary maintenance elsewhere provided for them had their Sportula's also and Fees for their labour and care in the making and dispatch of Writs Remedial Then that the Secretaries and Clerks attending upon a Lord Chancellor or Keeper of the great Seal of the Judges should as they now have and ought to have besides their Dyet Lodging and other necessaries some Fees and establishments for their rewards in their care and dispatch of businesses All which that Parliament which was almost in the infancie of our then lately setled and contested for Magna Charta well understood when they limited and setled Fees and legal and just rewards in the Courts of Chancery Common Pleas and Kings Bench and all our succeeding Parliaments did the like in their creating other Fees or giving allowance to those which they found to be rationally introduced by time and ancient usage though no Original constitution or creating of many of them by a Law can be found but onely by the Authority and power of Courts and discretion of Judges or the light and guidance of common Reason which teacheth the Clyents themselves or the most ordinary sort of men to know how to reward or value benefits and accommodations received and to proportion payments or satisfactions for one anothers labours And King Richard the 2. was well informed of when by advice of his Council learned in the Law and otherwise he did in the fifth year of his Reign to the Petitions of the Commons in Parliament who prayed That Come per le grand Chartre soit ordene affirme communement en touz autres Parlaments que la ley ne serra point denie ne venduz nullui à contraire de que le Chartre est use en la Chancellarie de prendre Fins pur diverses briefs avoir à grant arrerisement de l' estat de tout le peuple de la ley que plese ordener en ce present Parlament que chescun qui vendra purchaser brief en la dite Chancellarie eit le dit brief sans Fin faire answer That nostre Seignor le Roy nentende mye de soi desinetra de si grant Commodite quad este usez continualment en dit Chancellarie si bien avant come apres la confection del dit Chartre en temps de-touz ses nobles progenitors qui depuis aient este Rois dengleterre And is no more a buying of Justice then the Fees taken by the Stewards of the Lords of Mannors in their Court Barons wherein an inferiour sort of Justice is administred when they take Fees upon Plaints and Actions and largely enough for Admissions Surrenders and Licenses or the Fees which are taken by Guilds Corporations and Companies of Trades for binding or making free Apprentices or for Quartridges to their Halls for the maintenance of the good and credit of their Companies or which is paid by the poor Tankard or Water-bearers at the Conduits in London where every one payeth three shillings six pence at his admittance and a penny a quarter for the support of that poor and pitiful society No more a buying of Justice then when every Ship trading to Ligorn or Smyrna pays a certain rate of ten shillings per cent towards the support of the Consuls there resident to assist them in the matters of Trade and procuring Justice from the Superiours of the Territory Or the Espices or money in lieu of them given to the Judges and Ministers of Justice in France in the Parliament of Paris or other Parliaments or Courts of Justice in that Kingdome But may be the more approved whenas our Sportulae and Fees allowed in England are not without some resemblance if it extend not to a direct pattern or warrant of the courses held by Gods own appointment in his righteous Theocracy or Government which he himself framed for his chosen people of Israel where the Levites and Priests of the Jews whose Offices were not meerly or altogether Ecclesiastical but having some mixture of civil Affairs and Judicature as in the cases of Leprosie and Jealousie hard matters and controversies and the like had besides the forty eight Cities with their Suburbs belonging and given unto them for their support and maintenance some parts of the Sacrifices and Offerings as not onely to eat of the flesh of the Sin and Trespass-offerings but were to have the Shoulders and Heave-offerings the Wave-brest and a part or Oblation of every sort of Oblations with the redemption of the first-born of men as casualties and fees happening unto them in their several Offices and Employments by an eternal Law and Statute of Gods own making appropriate and allowed unto them Qui quod pingue haberent otium non tantum omnia legis sed medicinae aliarumque artium diligenter ediscebant ut Egyptii sacerdotes who having leasure did as the Egyptian Priests not onely diligently study the Law but Physick and other Arts and Sciences Ideoque saith the learned Grotius primis Saeculis ex illis ut eruditioribus Senatus LXX virum legi maxime solebat And therefore in the first Ages the Senate of LXX were for the most part commonly chosen out of them Which the light of Reason that Divini luminis radius did so well inform other Nations as the Athenians would not think it fitting that their standing and continual Senate or Court and their Judges should be without their competent allowances and rewards And their famous and popular Orator Demosthenes understood to be so necessary as in his Oration against Timocrates he saith Lex est vobis si qua alia praeclara ut qui sacras publicasque pecunias possident in Curia pendant sin minus ut Senatus ab eis â—â—gibus usus telonic is exigat hac igitur legeres communes administrantur si quidem quae in conciones Sacrificia Senatum Equites alias res pecuniae impenduntur hujus beneficio legis abunde suppetunt cum enim vectigalia non sufficiunt quae adpensiones dicuntur metu legis hujus penduntur quomodo igitur non omnes Reipublicae partes dissolventur cum vectigalium pensiones non fuerint satis neque hac nisi in exitu anni capere liceat Senatus autem Judices eos qui adpensiones non solvant vinciendi potestatem non habeant quid agemus non conveniemus nec deliberabimus si opus erit amplius popularem statum retinebimus non judicabunt fora privata publica non inibit Senatus tractabit ea quae legibus continentur at gratis scilicet haec faciemus quid vero iniquius est quam si ex lege quam tu mercede
corruptus tulisti populus Senatus Judices mercede sua priventur And Sigonius who had very learnedly and industriously searched and traced their customes addes hereunto his own opinion That hanc consuetudinem Atheniensium intuens Aristoteles qui suos de Reipublica commentarios diligenti omnium rerum publicarum observatione maxime si quis attendat Atheniensis confecisse videtur scripsit populare maxime esse mercedem omnibus dare concionibus Senatui Judiciis magistratibus ex concionibus maxime ordinariis magistratibus imprimis iis qui una esse inter vesci quotidie cogerentur For when the Scripture it self can tell us that Operarius mercede dignus the work-man is worthy his hire or to be paid for his labour and Justice it self perswades it if the Client or party immediately concerned who is most properly to do it shall not pay it the King is to do it by a Stipend or Salary yearly to be paid out of the common Treasury which being to be furnished or supplyed by the people will return heavier again upon them and lay a burden upon those which should not bear it or never in their lives may have any occasion to sue for remedies at Law or be Petitioners either as Plaintiffs or Defendants for Justice And the Defendants and such as are innocent and Victors must in those publick Assessments or Contributions help to bear the Princes charges and pay for the Plaintiffs unjust vexations if no Fees or Sportula's should be taken but a constant and yearly Salary should be given to Officers and Clerks which unless it be large cannot probably be adaequate to the skill industry labours and fidelity of the Officers and Clerks which in the Casualties and Contingencies of Actions and Business cannot well be foreseen or made to be proportionable thereunto by any just measure to be taken before hand or any prospect which can possibly be made of it And therefore a yearly Stipend or Salary being likely to be either too narrow or too large Will if plentiful or too much violate the Rule or purpose of Justice or if too little put a sinful necessity upon the Officers to do their business lazily and carelesly or stir up in them a greedy and craving appetite and temptation of taking the advantages of all opportunities to satisfie those Appetites or that which they shall sinfully conceive to be a recompence for their labours the wickedness and inconveniences whereof have been sufficiently held forth unto us by what hath been seen felt heard and understood in the yearly Stipends or Salaries with a restraint of taking any other Fees heretofore given to Officers and Clerks both in England and Scotland in our late times of Pretences rather then Reformations when those Publick Spirits as they thought themselves made up of the Out-sides of Holiness did onely gather in their prey and a greater then otherwise they could have done under colour of it And the Plaintiff by paying and depositing that most commonly small sum of money beforehand or giving of it doth it but in the confidence of the Justice of his Cause and hopes to recover it of him that did him wrong And if his Action proves to be unjust did but justly pay for his abusing of the Ears of Justice by his unjust complaint or vexation put upon the Innocent who having Costs allowed him a means to recover it hath no reason to claim any share or part in the money paid for the Fine if it were a Depositum for that it would then be as a Caducum or thing which neither the Plaintiff nor Defendant after it is paid can have any Title unto and is therefore according to the ancient custome if it were not an Oblatum which it is rather conceived to be to be paid to the King whose Lord Chancellour hath towards his support in that high and eminent place and care of Justice under the Soveraign one part in four allowed him the Master of the Rolls another part and the Cursistor or Clerk that makes the Original Writ the moyety or the other two parts And in the highest time of Suits in Law of that kind when they were four times as much or more then now amounted to no more then 5000 l. per annum amongst them all or little more then a third part of that miscalled sum of 12000 l. per annum which some of the Members in the Long Parliament were by the factious and giddy Calculations of those little Foxes that could spoile any Vineyard they did but bark at well contented to believe And must otherwise as to their support and employment have been satisfied either by the people or the King which as the Head and well-being of the Body Politick is as in the Natural to be supported by the Members And with the greater reason in this particular of the Fines upon Original VVrits issuing out of the Chancery for that whether they be as Deposita's or Oblations or Mulcts imposed profalso clamâ—re if the profit were greater it will be but a small part of the peoples retribution and thankfulness for the great charges of the King amounting to near as much as twenty thousand pounds per annum for the Salaries of his Judges and Ministerial Officers in the administration and execution of Justice the safe-keeping of the Records thereof and giving cheap and easily-to-be-obtained remedies to his subjects and people for all their complaints and grievances who cannot without the blemish of a great Ingratitude take it to be any thing less then Right Reason saith the excellently learned Sir Francis Bacon that the benefited Subject should render some small portion of his gain as well for the maintenance of those Rivulets and Springs of Justice and his own ease and commodity arising thereby as for the supportation of the Kings expences and the reward of the labours of those who are wholly imployed in the making of VVrits Remedial And therefore it was well said by Littleton 34 H. 6. so 38. That the Chancellor of England is not bound to make VVrits without the due Fees for the writing and seals of them And hath had so general an allowance of Nations as that the custome of paying Fines or some little Oblations at the commencement of their Suits is at this day continued amongst many of our Neighbour-Nations For the Emperour or great Duke of Russia hath five Alteenes or so many five pences sterling for every name contained in every Writ which passeth out of his Courts of Justice besides a penalty or mulct of 20 Dingoes or pence upon every Rubble or Mark which is to be paid by the party convicted by Law In Florence and Tuscany Litigantes omnes cum primum actionem suam instituunt certam summam Duci solvunt quam Sportulam vocant And by an Edict or Proclamation of King Charles the 9. who reigned in France in the time of our Queen Eliz. every man is to deposite two