The Vindication of the profeſſors and profeſsion of the Law, ſo farre forth as Scripture and right reaſon may be Iudge and ſpeedy Juſtice, (which exalts a Nation) may be advanced.
EVery Anonimous impreſſion though nothing but truth ſhould be publiſhed (ſpecially in a divided Kingdome, where truth uſually gets as many Enemies as Freinds) is in my opinion a breach of the Peace, as tending directly to make diviſions, and breed quarrells by expoſing every man to unjuſt cenſures; for that Child which has no legall Father, is every mans Child in vulgar reputation,Qui non habet patrem populus eſt illi p•tor. then differences in Judgment unhappily through the pride of mans nature generate diſaffections: my ſelfe having beene brow-beaten as conceived to have a hand in ſome impreſſions whereas I had not a finger in any print, ſince theſe (commonly called) unhappy times, and I confeſſe in many reſpects ſo they are, though for my owne particular, I looke upon them as the moſt glorious times that ever were ſince the Apoſtles, becauſe I doubt not but Antichriſt, and all the Enemies of Jeſus Chriſt ſhall bee utterly deſtroyed, and He ſet upon the Throne which God grant.
Hee that thinkes he writes a truth, why ſhould hee be aſhamed to owne it? let him in the name of God ſtand boldly2 to it, for great is t•e truth both divine and morall, and it ſhall prevaile every Chriſtian is bound to free that which makes him Free, And when the iſſue is legitimate, no man denyes to be called Father, but every nameles Pamphletbb〈…〉〈 in non-Latin alphabet 〉. condemnes it ſelfe, and makes both the Author and Printer guilty of a conſpiracie againſt the Kingdome, for which I conceive they may be indited, and bound to their good behaviour, which if it be croſſe grained to his opinion who is author of a treatiſe concerning the liberty of the Preſſe, who is certainely a moſt ingenious & rational Gent. at leaſt we agree in the root as Brethren.
The motive inducing mee hereunto is, that I finde a generall aſperſion, caſt upon our profeſſion, which wee ought in honour to vindicate, for the difference will ſtand thus: when a particular perſon is abuſed, many times it may bee the moſt Chriſtian prudence to neglect a Calumny and let it die, as the rule isccMulta non•onfirmantur tacendo, Sed deſpiciuntur non•efellendo. many things are rather deſpiſed then confirmed by Silence. But when Courts, profeſſ•ons, or trades are traduced, then in ſuch a caſe an Anſwer muſt be given, as obliquely concerning the whole Kingdome, it reflecting upon the wiſdome of the Supreame power to ſuffer generall abuſes, and Silence may be interpreted to be a conſent according to the common ruleddQui tacet con•entire vid•tur. Silence gives conſent, which how ever learned Dodridg qualifies with this reſtriction when it is for the benefit of him that is ſilent,eeQ•ando loquitur pro ejus Commado tacens habetur pro•onſentiente in materia honorabili•no vitupe rabili. As that of the Jewes to our Saviour,ffohn 8.48. Say we not well that thou art a Samaritan, and haſt a Devill, Ieſus Anſwered and ſaid, I have no D•vill, implying himſelfe to be the good Samaritan mentioned by St.ggLuke 10.33 Luke. Yet upon the reaſon of our Law, if a man ſhall bee called Rogue or Thiefe to his face and hold his peace this may be ſome evidence againſt him, if he be afterwards queſtioned & affronted in the ſame kinde, therefore this being ſold it Weſtminſter Hall ſo as notice muſt needs be taken of it; And conſidering that many of my worthy Brethren are in the Country, and many otherwiſe imployed, And when many are concerned in a matter, it is uſually put off f•om one to another, and nothing don in it, I reſolved therefore to ſay ſomething againſt it, ſomething for it, ſomething about it, ſomething beſides it.
The Advertiſer begines with a Roman ſpirit, and I muſt3 embrace truth whereſoever I meete it, The Roman Barons indeed being ambitious of the Senate and chiefeſt Offices which were conferred by popular election, knowing it to bee the onely way to ingratiate themſelves with the people to get many ſuffrages ſtudied the Law and Phyſicke and pleaded cauſes without Fee, ſtudying, as the Cardinal did with a Net till hee had caught the Fiſh, or as it were fiſhing with a Gudgin to catch a Pike, and ſo they had(h)(h)Which occaſioned that miſtake in ſome Hiſtorians that there were no Phyſitians in Room for 500 yeares. Phyſitians without Fee. As poore men with us are in all Courts admitted both to ſue and defend, Gratis in forma pauperis, which might bee a ſufficient anſwer to that Roman inſtance, But why ſhould the taking of Fees be counted diſhonourable, which is not a(i)(i)Non mercenarium ſed honorarium mercenary wages, but an honorary requitall, which may be taken but not required, though I believe many pay a very va•uable and meritorious conſideration for what they receave, ſo many(k)(k)Per ambulatione facienda. walkes taken to Westminſter, and ſuch attendances there that a Porter would ſcarce take the paines for 5 s. that if ſome have too much, others have too little, I confeſſe it were a glorious thing rather to be(l)(l)Optandum non expectandum. wiſhed then as yet to bee hoped for, that Miniſters, Co•nſellors and Phyſitians being of ſuch noble profeſſions, would exact nothing if they had otherwiſe ſufficient,(m)(m)Ne videantur id vendere quod estimari nequeat. leaſt they ſhould ſeeme to ſell that which is invaluable, every man ought to give his Clyent(n)(n)Bonum & fidele Conſilium. good and faithfull Councell which is ineſtimable for though the paines may, yet the fidelity cannot be required, I have knowne a word put in by an eminent practiſer advantage his Client 1000 l. in the way of truth, yet in that caſe he muſt be content with a moderate Fee, and the further requitall muſt be in other Coine by a thankfull recognition, or by helping him to other Clients, He that lends me a Horſe which proves ſo ſwift of foote that I eſcape from the enemy, though I pay the horſe hire, I am ſtill engaged to the owner, if by Gods bleſſing upon the Phyſitians meanes a man recover of a dangerous ſickneſſe, health is a Jewell and invaluable, and if not the gift of the Holy Ghoſt, much leſſe can the ſpirit it ſelfe be purchaſed; But yet ſome incouragement there muſt be as a ſpurre to Learning, and what diſparagment is it that a Horſe will not goe without a ſpurre? And in ſuch•aſe the Proteſtants4 beyond Sea; and the beſt Polititians have allowed certainties as much as may be, as being the mother of quietneſſe, and that which prevents adulation and emulation.
It is conceived by many, that it is maintenance, and conſequently puniſhable to ſpeake unaſſigned without a Fee, and that a Lawyer may not ſpeake in his owne cauſe, which are certainly errors, for it may be I may know the Client to bee poore, and it is Charity to aſſiſt him which cannot help himſelfe,Quilibet poteſt renunciare juri pro ſe intr•ducto. beſides it is a rule in Law, that every man may renounce his owne benef t, And that a man ſhould not ſpeake for himſelfe is againſt the Law of nature, Speech and Reaſon being given to man to glorifie God and vindicate his owne innocencie, therefore what ever politike conſiderations may be Counterpleaded (as indeed our Law in many things is rather Politicke then morall) as that if one may ſpeake then all, and ſo confuſion at the Barre, and that men will ſpeak too paſſionately in their owne caſes, yet theſe being the indiſpenſable Laws of Nature and Charity, over which there is no humane power, if the Law bee ſo it ought to be altered, as it is reſolved in the Earle of Leiceſters Caſe,•lowd•ns•oument. that an Act of Parliament againſt the Law of God and nature is voyd, but this muſt be cautiouſly underſtood, that I ſpeake not of ſecondary and leſſe principall Lawes of nature; w•ich are not obvious to vulgar underſtandings, I confeſſe the Law is a great enemy to maintenance and imbraceary as being incendiaries giving fewell to all ſuites like that Pirracorax a Corniſh Chough which carryes fireſtickes from ground (where fire is made to make it fruitfull) to thatcht houſes and indangers all men.
But to give councell without a Fee muſt rather be a means to end Contentions, and I know no reaſon why I may not aſſiſt an engliſh man as wel as a ſtranger in Caſe of the Alien of Burgundy but to ſell debts and maintaine one another In all caſes promiſcuouſly,15 H, 7. 2. is a different caſe, and inſufferable. In the next Declamation againſt Lawyers there is an error at firſt, which like a thred miſplaced runs awry through the whole peece, for though every g•neration of men be ſubject to corruption, yet to ſpeak properly, the Councell cannot be corrupted, or bribed, poſſibly the judge may, therfore to ſay that Lawyers were never5 in that height of corruption as now they are, this clauſe rather ſavoring of ignorance then malice; in ſtrictnes requires no other anſwer; But becauſe cuſtom is the Miſtris that makes words ſignificant rather as they are commonly taken, then by the Etimologie, (though herein the ingenious Candor of the Law be very obſervable, that in ambiguous expreſſion which admit of a double interpretation, the Law rather ſtrives to heale then to hurt, as when one ſaies of another he hath ſtollen his Apples, becauſe it is indifferent whether they were growing and ſo part of his Free-hold which cannot bee ſtollen, or gathered the words are not Actionable) therefore I take the charge as it is intended, or as the words import in common parlance I hold that to ſeeke for Clients is as prepoſterous as for a woman to goe a woing, or a Phyſitian to ſeeke for Patients, indeed one of our Hiſtorians ſayes that Serjeants had their ſtations in Pauls, certaine afternoones in Terme time, and every one kept his Pillar, which is either a Cripticall and darke authority, or for ought I know to the contrary might bee meant by Searjeants of the Mace, peeping after debtors, but however it were that was time immemoriall, above the memory of any man lately living, And I cannot believe that Lawyers, for the generality had need to make ſuch diligent ſcrutiny to find out Clients, for ſince Edw. the 3d time (who much honoured the profeſſion as the Merchants grew rich ſo ſuites multiplyed, for ill humors will breed in a replete body) the Law hath ever ſince in times of peace much flouriſhed; but that pride ſhould be objected againſt us, I marvaile more and muſt needs ſay that a proud Lawyer is an unſeemly thing, but then that which is pride, in ſuch a one as my ſelfe who lye at Anchor, and beare no ſale is peradventure but keeping diſtance in a great practiſer.
Truly Curteſie and Humility in all, ſpecially in a Lawyer, Miniſter, and Phyſitian is like a rich Chaine about the neck of a Nobleman, the beſt ornament in his Chamber, though many rigid harſh men have gotten by the Law abundantly. I have thought ſometimes that for ſuch a man to hope for Clients, is as if a man ſhould goe to catch birds with a Drumme, ſo caption, in receaving inſtructions, and unaccoſtable, certainly6 curteſie is the moſt precious Pearle that any man in authority can weare, for it buyeth mens hearts, and the greateſt man in being curteous to his inferior looſes no more then the ſunne doth in comparting his glorious beames, I have often thought that a ſtiffe ſtarched proud carriage is not onely a ſigne of an adulterate Gentry, but a breach of the ſixth Commandement, our good Joſephs will not forget their poore brethren in their higheſt proſperity, much more reaſon has a Lawer to be curteous who receives a Fee from his Client.
Concerning the largneſſe of Fees, I thinke it a miſpriſion, or elſe ſuch a rarity, that there is little danger it ſhould bee drawne into example, Fees being reduced to a convenient certainty, yet if any man will give 10 l. for a watch that may have one as ſerviceable for 50 s. who ſhall blame him? when I receave my Fee, I reckon that untill I have done that which the Client expects, I am but his pursbearer, for there is a tacit Contract between the Councell and Client, that ſuch buſineſſe ſhall bee done as a conſideration for the Fee, which in equity alters the property of the money, for when a Client brings 10 s. of his, it cannot become, not his, but by his conſent or forfeiture; therefore if the Lawyer do not his endeavor to ſatisfie his Clients expectation (though in perſonall things,Quod meum eſt ſine conſenſu aut defectu meo alienari non poteſt. the Legall propertie followes the poſſeſſion) yet the Evangelicall right is in the Client, for though we ſay give him his Fee, yet neither doth the Lawyer take it as a gift, nor the Client ſo beſtow it, But hee which makes his Clients cauſe his owne, and layes it to heart as if it were really his owne caſe, And the matter ſucceeds well; may comfortably take what the Client will freely give, but with this proviſo (for ſo is my opinion for the preſent which I ſubmit to my worthy maſters, waiting for more light if it be an error in politiques) that I would not have any man take a Fee from him that cannot ſpare it, I doe not ſay that a man ſhould not take his Fee unleſſe he were in more need of it then the Client, for then rich Lawyers ſhould have very few Clients,) but whereas none are admitted as paupers if worth 5 l. I could wiſh it might rather be unleſſe they were worth 500 l. for can hee that hath a family to maintaine and not worth 100 l. afford to give Fees as they are generally taken, if 20 l. bee due from a contentious7 rich man to a poore man that is not worth 20.Anglia familia plernmque ex Septem Gallica, ex Se•conſiſtit. l. beſides, and hath ſix or ſeaven in familie, for this man to Commence a ſuit againſt his potent adverſary. Is for a Lambe to contend with a Lion, And if it bee feared that Men would be too Clamorous and never in quiet, it is eaſily Anſwered, that unleſſe there be probable Cauſe of Suit, let him bee puniſhed for a falſe Clamor. I know ſeverall perſons that have juſt debts owing them, ſome by Statutes, judgments, and other ſecurity, which are not able to pay Officers Fees to recover them, yet in great want, though peradventure worth in Houſeholdſtuffe above five pounds, yet never the nearer; for an extant upon a Bond of 200. li. will coſt 7. li. 10. s. to the Sheriffe to ſerve it, truly it is greatly to bee wiſhed that there might for the preſent be ſome new mixed Court erected for the out Pariſhes and Suburbs that poore men might recover their juſt debts, and have juſtice for the expence of five ſhillings at the moſt, for what a ſad thing is it that a poore man cannot ſue for his wages, for a matter of 20.Ne alter alteri Cedat. s. but it will coſt him fortie in the getting of it. But if wealthy men liſt to be litigious, and will contend leaſt one ſhould yeeld to the other, no man of competent underſtanding will blame us for taking our Fees, but with this caution (for truly I muſt adde one graine of Salt for weight and reliſh,) The Client I looke upon as a ſick man, diſtempered, paſſionate, wilfull, and extremely in love with his owne cauſe what ever it be, and many times the beſt advice to a reſolute Client, is but as a good leſſon ſet to a lute out of tune for affections praeingaged draw away the judgement. Now the Councellor in the leaſt meaſure ought not to feed the Corrupt, and Peccant humour, for that is not to act the honeſt Lawyer, but the flattering Courtier, who ſteeres his adviſe by the Starre of his Princes inclination, as our adverſary Sathan workes upon our fancies, and the wind makes the waters rage, nor is it inough to tell the Client faintly, that he doubts his Cauſe, but will doe the beſt he can,As the German Hoſt in Eraſmus, aliud quaeras diverſorium. but to deale freely with him, Sir; thus I would doe if it were my owne caſe, if you will not follow my advice, goe to another, you are in a Feaver, and muſt not eat and drinke after your owne appetite I aſſure you thereis great difference betweene one Councellor8 and another therefore the precious ought to bee diſtinguiſhed from others, the Shepherd and the Butcher looke upon the Mutton with a different eye, the one to doe him good, the other to eat him, the Client retains too Councel, the one cares not for the cauſe further then he may gaine by it, how ever it ſucceeds hee deſerves little in Conſcience; the other deſires the Client may have his right, and what is given him freely he accepts contentedly, but to ſpeake truth, many times the Clients deſerve the blame, and not we, for they conceale the worſt of their cauſe, and ſo for want of a true confeſſion as the Prieſt ſaies, the abſolution is worth nothing, for proofe being the Chariot which carries the Judge to give ſentence, how can the Councell tell what the ſucceſſe of a difference will bee; which Anſwers a common Cavill, that Lawyers will bee of any ſide, and there is but one ſide true, the truth lies many times in ſuch a deepe well,Vix eſt contenta doceri. that every Lawyer hath not a Bucket to draw, Titles of Law are very difficult perplext, knotty caſes which will hardly bee made plaine, the Judge hath one eare for the plaintife, another for the Defendant, but the Councell hath both eares for his Client, yet ſo as if he can diſcover the injuſtice of his Clients Cauſe, (and many times light may be ſeene at a little hole) I am perſwaded many of our great practiſers will not maintaine him in it,Deceptio viſus. for truly to ſpeak well in a bad cauſe is but to goe to Hell with a little better grace without repentance, it is but a kinde of juggling by an over curious flouriſh to make a ſhaddow ſeeme a ſubſtance, if any of my profeſſion think they may for their Fee maintaine a ſide which they think is diſhoneſt (becauſe in darke times of Popery ſuch opinions have beene held and diſtinctions invented, that if a man have right to Lands and miſtake his Action in ſuch caſe a man may with a good conſcience bee of Counſell with the Defendant, though hee know his Client have no right to the eſtate, (ſuch popiſh evaſions are abominable amongſt Chriſtians,) I would fain but aske them ſome ſuch queſtions; whether the leaſt evill may be done to procure the greateſt good? and whether every particular calling muſt not yeeld to the Generall of Chriſtianity? and whether a Chriſtian may doe any thing againſt the truth or9 muſt doe every thing for the truth? and whether to bee willingly inſtrumentall to condemne the innocent, and to juſtify the wicked, be not both an abomination to the Lord? and whether he can Anſwer it at the Barre of Heaven,Cadere in cauſa. that many a poore man ſhould be undone and want foode and rayment, becauſe he found out ſome formality of Law or defect in the proceedings, yet perſwaded in his Conſcience that the poore man had right to the thing in queſtion; If any man practiſe upon ſuch principalls, I had rather be tongue tied or not know how to write my name. Rather bee the Hall ſweeper and ſhould die with more comfort, but inough, I doubt not but good men will heare reaſon from their inferiours,Labor intu•erit. now the Client muſt be admoniſhed who will bring himſelfe into a laborinth doe we what we can.
Many have left their writings with me, and upon the peruſal I have adviſed them not to imbarque in ſuits, how diſcontentedly have they gone away with Gouty hands as if I had beene their profeſt Enemy? but ſpeake pleaſing words, tell them their cauſe is good, have honey in your mouth, and then money in the hand, another great fault in the Client is,Placentia. that he will ſeldome take advice in the beginning, but the Bill, Articles, and Indentures, are drawne by ſome illiterate pretender to the Law, who hath one formilarie for all bargaines, one Saddle for all Horſes,Expectata di•ſeges all•ſit avenis: ſo many impertinent words that they ingender ſtrife, ſome Covenants ſo Prolix that a man can ſcatcely ſee the fruit for the leaves, and the error being diſcovered, the Client poſts to Councell, with an oh Sir, if you, can but cure ſuch a miſtake, how thankfull ſhall I be unto you but the foundation being ſandy, all falls to the ground, and hope deferred makes the heart ſad,I ſpeake not againſt learned Preſidents. that I have often thought that for every contract put in writing concerning the value of 10. l. (and truly I would not have any man queſtion another for above 10. l. unleſſe hee have ſomething to ſhew for it in writing,Melior eſt juſtitia perveniens quam puniens. which would prevent much perjury and ſubornation) if the parties contracting would advice with Councell, to expreſſe their intentions according to Law, this would prevent numerous litigation•, and preventing Iuſtice is better then puniſhing, becauſe there is no offence commited10 ſo that I profeſſe the Client might purchaſe his quiet at a farre eaſier rate, then hee does, were it not many times for his owne perverſeneſſe, but in all profeſſions and relations there muſt be ſome graines of allowance. Now I come to Anſwer that hearing a Charge, that it is not an unuſual thing (therefore argumentatinely a uſuall thing) for a Lawyer to prevaricate, and Confederate with t•e adverſe party, this is a pure libell without mixture or blemiſh, I dare ſay that all of us do as much in our Iudgments and practiſes, abhorre all manner of Treachery as our bodies doe in nature loath and deteſt poiſon, the pureſt fountaine is not more free from mud, then the generality of our profeſſion from perfidiouſnes. It is in Accuſations many times as it is in griefes,L••vs dolores &c. Sene••. great griefes are ſilent, when leſſe are eloquent, this is a ſtrange Giant-like report, ſo far above the meaſure and ſtature of truth, that I want words to give it any other anſwer, H. the 6. being once ſtruck, admiring how any man durſt offer to ſtrike him, ſaid, you wrong your ſelfe to ſtrike the Lords anoynted, but I beleive you did it not out of any ill will to me, but to gaine applauſe, It ſhall be a Royall ſpirit to Condonate Anonimous, whom for my perticular I looke upon as ſome Malecontented Client that loſt his wooll in the Briars, through the injuſtice of his Cauſe or having bin abuſed by ſome ſilly fellow whom he too much truſted, railes upon the Lawyers, it being naturall to the Conquered to appeale to the people,Victi•eſt provocare ad populum. and therefore as Lewis the 11. that great tax-Maſter ſaid wee muſt give looſers leave to ſpeake, ſo ſay I: but I hope there are few (if any) practiſers now that prolong Cauſes to enrich themſelves, for that is to ad affliction to the afflicted, Hee that does ſo, builds upon the ruines & miſeries of his Brother, that Phiſitian or Chyrurgion which ſhall keepe the wound raw, and torture the Patient to multiply his Fees, feeds upon raw fleſh, And that Souldier which ſhall prolong the Warres to continue his pay lives upon the blood of poore Soules all which are hard meat, & muſt be vomited up againe by faith in the blood of Ieſus Chriſt,Pro. 20, 17 or elſe it is no hard matter to determine how ſad the iſſue will undoubtedly be, for ſweet is the bread of deceit, but his mouth11 is filled with gravell, but I muſt hedge my way leaſt ſtrange queſtions ſhould enter, we are called neceſſary evills, truly to ſpeake properly no evill is neceſſary, becauſe in reſpect of us it might have otherwiſe beene, not having a neceſſary Cauſe but defective, but it ſeemes he meanes that there is no more neceſſity of Lawyers in a Kingdome, then there is of Woemen who have beene called neceſſary evills, for my owne part; I love not to fiſh in troubled waters, much leſſe Nero like to inflame others to warme my ſelfe, I heartily wiſh that therewere no need of us, further then to ſettle Eſtates, and adviſe in difficult Law matters, for which there will be uſe of Lawyers ſo long as the world continues, for any thing I can as yet rationally imagine to the contrary: but that many Lawyers ſhould be an evident demonſtration of a decrepit Common wealth, is an ignorance in Politiques, for it is rather an argument of a flouriſhing Kingdome, for wealth increaſing, ſuites will ariſe; though I confeſſe it is rather a diſhonour to any ſtate to have multiplicity of cauſeleſſe contentions, and it is much to be wiſht that there were neither need of Lawyer, Phiſitian, or Souldier, in the Kingdom, for if the King would diſcharge his truſt, & every man deale honeſtly and no ſickneſſe, nor diſtempers, what Halcion daies ſhould we enjoy: But when will there be a perpetuall ſpring? for as our bodies by reaſon of the continuall expence of ſpirits have need of the Phiſitian who is therefore to be honoured, ſo offences will be given, and differences be daily emergent, becauſe right reaſon does not alwayes mannage the will, and conſequently Lawyers as neceſſary in a Kingdom. But Anonimous is angry becauſe Lawyers grow Grandees in ſtate,De legibus Anglia as if it were a fault for him that wins the race to weare the garland, Forteſcue obſerves it as a ſpeciall benediction, upon Iudges and great practiſers, that their Children proſper in the world, for the Generations of the righteous ſhall be bleſſed,, and Sir Edward Coke (the Phaebus and Lipſius of our age whom I the rather mention, becauſe we are all beholding unto him, for having diſpelled many miſts of error, otherwiſe a Cloud in many Caſes had12 dimm'd out eye ſights) obſerves that Lawyers have bin the founders of many of our eminent families. And is it not as honourable to get an eſtate honeſtly as to keepe it? neither virtue nor vice is properly hereditary, what diſparagment was it to Abraham that his Father was an Idolater in Vrre of the Culdees? and as little honour to curſed Cham to be the Son of noble Noah, but they who have bin an honour to the Law, why ſhould they not be honoured by the Law? this I obſerve as an argument of humility of the reverend Iudges and Maſters of the robe, which have no title of honour as Iudges or Serjeants, no more then an Alderman hath as he is a Cittizen, whereas the Civilians beyond Sea, give themſelves what titles they pleaſe, and if they ſay the Law is ſo, who can gainſay it? It had bin an eaſie matter for the Iudges of our Law to have adjudged themſelves honourable, Additionall Titles and degrees being matters within the verge of their owne Commiſſion and juriſdiction, and not matter of heraldry, but if the King who hath ever beene accounted the ſupreame fountaine of 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,13 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 Sibb•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 wh•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, Tis 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 this14 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••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 wilb•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 Parl•••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 p•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 pugn•. 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 doub•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 ſatisfie15 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 conſ•nted to have them written 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,hhPer 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 againſt16 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 legall15 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 of18 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 ſou•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 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 V•rg.At Geneva, and in New-E•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 conſtitu•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 con••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 th•roet menſa•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,Tedi•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 forf•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 ſpecia•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 Inditement23 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 no•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 mat•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 iſſu•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 dec•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,22 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.
•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 deſperate23 & 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 it26 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 calls to my remembrance how a Gentleman was Arreſted for 1500. l. the day that he was to be maried without any coulorable cauſe of Action ſpitefully to hinder the match, and was not able to put in baile, but the partie being non-ſuit the Gentleman had as I remember but 7 s. 2 d. coſt, loſt his monyes and indeed himſelfe by it, for I know it was the occaſion of his utter undoing, Anſwerable to this abuſe is the Bill of Middleſex. A man that is Canibally given, may devoure the credit of five hundred men, arreſting them for five thouſand a peece, never declare and yet pay no coſts, though the partie Arreſted had better have paid 500. l. that its commonly ſaid, Ile beſtow a Bill of Mid. upon ſuch a man to ſtay him in Towne, that I may have his company into the Country when I goe downe, and when coſts are paied I ſee they are ſo ſmall that he that ſues for a debt of 10. l. gaines but little by the bargaine beſides his will whereas it ſtands with more proportion of reaſon that he that ſpends 10. l. in a juſt cauſe ſhould have 20. l. allowed him, for he that has but any ordinary imployment ſhall hinder himſelfe at leaſt 10. l. in neglecting his trade or profeſſion, but ſhould full Coſts be paied, peradventure there ſhould not be ſo many ſuits Commenced may ſome ſay, though truly I think rather more, and I am perſwaded that if Cauſes were ſooner ended that both Lawyers, Atturneys and Solicitors might get more money then they doe, for many have beene loath to begin ſuits becauſe they were ſpun out to ſuch a length, and others would make a ſhift for money if there might bee a ſpeedy hearing upon the merrits of the Cauſe which are25 not able to maintaine a circular proceeding, theſe Sollicitors are ſtrangers and unknowne to the Records of our Law, but though it pleaſed a Lord Keeper to compare them to the Graſhoppers of Aegypt that devoured the whole Land, many of them being growne rich: yet truly in right reaſon if they bee honeſt men, (as all of them are for any thing I know to the contrary) I know nothing in right reaſon that can bee ſaid againſt their profeſſion, I believe they are very uſefull to the Client, and aſſiſting to the Councell, who many times in long buſineſſes ſees much by their ſpectacles, not having time to peruſe depoſitions.
I conceive that in this time of Reformation the Scripture being the Touchſtone of all humane actions,It is an honour for gold to come to the touchſtone Scriptura eſt Lapis lidius omnium humanarum actionum. Bracton Britton, Glanvill &c. being rather ornaments, then Authorities. Lex eſt rerum divinarum & humanarum ſcientia. it would be an excellent ſervice to the Kingdome for ſome grave judicious man who is Learned in our Lawes, and well read in the holy Scriptures, to ſet downe all the Law Caſes in our bookes, which are either properly and directly, or collaterally and obliquely contrary or repugnant to the Law of God; which muſt be done by reading all our legall authorities, beginning at 1. Edward 3. And ending at the juriſdiction of Courts lately publiſhed, and comparing humane reaſon, (whereof our Law is in moſt things the quinteſſence) with the Divine reaſon of Law and Goſpell, for Law is the ſcience of things humane and Divine, wherein my meaning is that for every judgement in Law, that a Divine can object nothing againſt it, from any expreſſe text nor by neceſſary concluſions and deductions, That is a good Law and may juſtly bee called the Law of God, put in execution by men, for it is not to be expected that there ſhould be an expreſſe Text in Scripture for every maxime or Canon of Law, but it is ſufficient that there is nothing in Scripture that doth contradict it, there being generall rules in Scripture applyable to every Kingdom and Society of men, for their happy government, direction and perpetuall guidance in the way to heaven, which being done the difference obſerved to bee humbly preſented to the26 moſt High Court of Parliament, to doe therein what they in their ſublime wiſdome ſhall thinke to be moſt conducible to the publike good, which is the white and Butt whereat they have levelled all the ſhafts of their indefatigable endeavours. Which expreſſions I could not omit without manifeſt injuſtice towards our Parliament Worthies, our moſt Noble Lords, and the Honourable Commons, who like the heavenly bodies have had little reſt now for theſe 5. years, therefore deſerve much veneration.
This worke requires an intire man without other diverſions,Totum hominem & mixtum hominem. and a mixt man both a Divine and a Lawyer, which though in an eminent and intenſe degree are peradventure hardly concurrent, yet in a competent meaſure and more remiſſe degree, there are of our profeſſion that are learned in the Law of God as amongſt the Jewes,2 Chro. 19.8. the Levites were Common Lawyers; though the reaſon of that was becauſe the Scriptures were the poſitive Lawes of the Jewes, not that callings ought in a popular Kingdome to be combined, but that Religion is a n•ceſſary ſtudy for a Lawyer, becauſe the Law of God is one principle ground of the Law of England;Dr. & ſtudent fro. Sedes miſericordiae beſt beſeeming chriſtians. As for the High and Honourable Court of Chancell which is like a graine of Powder, in the Eye of Anonineus it is of ſuch ſingular advantage to the Kingdome, that I hold it ſuperfluous to ſay much about it, it is the chiefe ſeate of mercy, therefore to be advanced before all Courts of ordinary Juſtice.
I conceive equity is pure Civill Law, either ſuppletive where Law is defective, or Corrective where the Law is too rigid the conſtant practiſe being that where there is any remedy at Law, the Bill is diſmiſſed; but what Cauſes are within the juriſdiction and cogniſance of this Court, is no eaſie matter to determine, it is in its originall inſtitution a magazine of right and Juſtice, like the good Emperours Court, from whoſe preſence no man ſhould depart ſad: wee read of many Chancellors before the Norman invaſion, but I do not find that ever the Kings Bench did reverſe errors of Chancery; but for that part which is not of record but to be releived in equity, Anonimus27 miſtakes like a Nonitiat•that knowes not our Law Antiquities, it is very true that untill Common Lawyers were made Chancellors about Hen. 8. time, this Court was not ſo full of buſineſſe, and afterwards Equitie began to be ſpun with ſuch a fine thred, that none but the eye of a Chancellor could diſcerne it, as Bacon (the Chriſoſtome of our Law in his time) was wont to ſay; Conſcionable equitie being converted into politique equity, for I have heard that when Clergy men were Chancellours they decreed matters according to that Evangelicall rule, of doing to others as we would be don unto our ſelves, that if any man had over reached another in barganing by getting that for 50. l. which was worth 100. l. it being againſt the rule of Charity, or if a man had loſt any conſiderable part of his eſtate at play, there being no meritorious conſideration for it, or if a man had contracted for a yeare to give 20. l. Rent for a Houſe,Major eſt beſtilitas Dei quam hominis. wherein he could not inhabit by reaſon of the Peſtilence, which is a divine hoſtility, like to a time of Warre, or if I.S. take a Leaſe for a yeare at 20. l. Rent, and the ground prove barren, ſo that he cannot by all his labour make 10. l. of it, in many ſuch like Caſes the Chancery afforded Convenable reliefe according to the words of the Statute, no man is to depart from the Chancery without remedy: for the Chancellors, juditial power is abſolute the ſpecial foundation & erection wherof is by Statute which Caſes compared with the preſent,Nemo reted a Cantellaria et ſine remedio. I humbly conceive (with ſubmiſſion to better judgments) that the weight of the objection ratherlies in the other ballance of defect, that for politique conſiderations many matters are diſmiſſed without reliefe,9. E. 4. 15. which ſhould in conſcience have bin relieved, as in the former inſtances, if a ſoole ſell Land worth 1000. l. to I. S. for 300. l. if the Chancery ſhould redreſſe this; would not this diſtroy Contracts? I conceive not, for though it is not poſſible to ſet an exact mathematicall price upon every thing yet no man ought to buy any thing for leſſe then halfe the worth of it, hath not I. S. an erroneous Conſcience in that particular, why then ſhould it not be rectified, to make him give above 500. l. or to Relinquiſh, the bargaine, I confeſſe I cannot ſee any reaſon why28 fooliſh contracts ſpecially when an Ideot ſhall ſell a great eſtate for a ſong, ſhould not be rectified in equity, though the contract cannot bee nullified in Law, by reaſon of a maxime that no man ſhal ſtultifie himſelfe, for all men that are 21. are not able to contract with old Vſurers; but how ſenſeles is it that a youth at 14.It were to bee wiſht that men were not of age with us till 25 many men being undone betweene 21. and 25. by ſuretiſhip and fooliſh bargaines as the Law is in all other places ſave Normandy. and a girle at 12. without their Parents conſent, ſhall have power to diſpoſe of themſelves in marriage, (which of all the turnings and windings of this life is the moſt important) and yet cannot before 21. give away a point or a row of pinns; it would be an excellent politique Law, that none ſhould diſpoſe of themſelves in that kind till their full age without conſent and approbation of their neareſt friends, the Civilian gives no man power to alienate his eſtate untill he be 25. and then if it be not ſold for halfe the worth, the bargaine is nullified, ſo in the other caſe of play it is objected that there was a hazard and the winner might aſwell have loſt, I Anſwer, thats but a Vtopian conſideration a poſſibility which never comes into Act but the Law of Conſcience requires a reall and valuable conſideration,Va•a potentia. In the other caſe it will be ſaid, that Contracts muſt be inviolably obſerved, I anſwer that in theſe civill matters men muſt be conſtrained to deale like Chriſtians, and if Anonimus meane that in Caſe a man be drawne into a judgment of 100.In the late caſe of Neriah the Iew. Nobilis vir Iohanes Seldenius inter Scholaſticos quos audi•i per t•tam Europam Anglorum celeberimus. Premiare ultra condignum punire citra. l. where 10. is not due, that hee would not have the Chancery to releife him, and to rectifie the Plaintiffes erroneous conſcience, it argues that hee hath no Conſcience, or a Cauterized one, and Hee muſt be redargued for a little ſaucineſſe that calls that boldneſſe, which deſerves the name of the goodneſſe of Chancery; abundantly manifeſted in doing execution upon a Judgment of 7. or 800. l. given for Tobacco not worth 30. l. I know the Chancery is to ſupply the Law and not to ſubvert it, and as that worthy Eſquier one of the faireſt flowers in the Garland of our profeſſion for excellent learning in his learned manuſcript concerning the Chancery, writes that in this court conſcience ought ſo to be regarded that the law ought not to be neglected yet as in Criminall Cauſes every Juſtice when the matter is doubtfull, is then moſt honourably ſeated when hee29 gives mercy the upper hand, ſo in equitable matters when the Cauſe is ambiguous, that Law and Equity cannot meet in ſome third in a moderation of extremity, let Conſcience take place as moſt worthy.
As for that inſtance of the Amicable caſe, it is a miſtake,Caſus pro amic•. for if the demandant or plaintiffe have not cleere cauſe of ſuite, the libell and proceedings are diſmiſſed, for in the beginning of the ſuit the Law favours the plaintifes (not with perſonall but legall favours) as being preſumed that the man has wrong, done him, or elſe he would not begin a ſuit;9. H. 7. in the middle of the ſuite the Law favours the defendant, giving him time to make his legall defence,Non liquet. Caſus pinguis like our worthy Sergeants Caſe. Bertoldus ſuſpendatur quacunque a•bore placuerit, nulla arbor mihi placet.Lego totum ſtatum meum Jeſuiſtis & filio meo quicquid eis placuerit. In dubijs quod minimum eſt ſequimur at•ix.Fiat expoſitio in favorem legatarij at Tholoſe, Judicio dei relinquitur at Paris.Secundum ſcientiam ſecundum conſcientiam ſecundum juſtitiam. In the end it favours neither: but in things doubt full poſſeſſions are never diſturbed as preſuming every man honeſt till the contrary he proved.
But this puts me in minde of a recreation which they have upon ſome feſtivities or after ſome ſolemn arguments to recreate the ſpirits of the Judges and Advocates, which they call a Fat Caſe, as that of Bertoldus the French Kings Jeſter, that being ſentenced to dye obtained favour to be hanged on what Tree he pleaſed, and then ſaid, no tree pleaſes me, And that of the Duke of Oſſuna Vice Roy of Naples, the cunning Jeſuites had inveigled a rich man to leave his eſtate of 10000 l. to them and his ſonne to their tuition, the words were, I bequeath my whole eſtate to the Jeſuites, and to my ſonne what they pleaſe, the Duke asked them what they would allow the ſonne, they anſwered, 1000. l. then ſaies the Duke the ſonne ſhall have 9000 l. becauſe ſo much pleaſes you and you 1000 l. and that Pariſiens and to my ſonnes. I give achaſcun deux cens liures this was firſt reſolved to be but 100. linres b•cauſe in doubtful things the leaſt is taken, next it was reſolved 200. Thirdly, it was left doubtfull to the judgement of Heaven, for the poore French men complaine of the multiplicity of appeales that one Court will Judge according to ſcience, another according to Conſcience, and a third according to Juſtice, and that ambiguous caſe of the three Rings, A man ſettle30 his Land upon that Child, which ſhall have a certaine gold Ring, which was for many yeares enjoyed accordingly, at laſt one diſcreet Father bearing an equall affection to his three Sonnes, cauſed a skilfull Artificer to make two other Rings, for weight, matter, and forme, ſo exactly alike, that the true Ring could not be diſtinguiſhed and gave unto each ſonne a Ring, who after his death went to Law for the eſtate, but the right to this day cannot be determined, with many other ingenious Caſes wherein the Civilians abound but in this ſence too much honey is not good.
I know the ſwelling of any Court above the bankes, is like a deluge or an inundation of waters prodigious to a Kingdom, the other Courts muſt needs ſuffer, as when the ſpleene is in the Tide, the other parts are in the Ebb: but bleſſed be God, there is a muſicall concordance and ſweet harmoney betweene our Courts of Law and equitie,Sicut manus manum juvat. our Courts of Juſtice are all Siſters as the Muſes were that do not incroach upon, but are helpfull to one another, as one hand helpes another.
Concerning Delatory proceedings if Anonimus knew what tedious protractions the Subjects in F•ance, and other Kingdomes ſuffer under, hee would not bee ſo impatient: King Iames in that Speech of his in Starchamber, 1614. promiſed to expunge all unneceſſarie delayes, and Ceremoniall formalities which were adverſaries to the procuring of a ſpeedy & well grounded Juſtice, and truly it is much to be wiſhed that right might bee had at a cheaper rate, that Juſtice in all Courts might paſſe at an eaſier charge, that thoſe weeds of needleſſe charge, and brambles of expence that grow about the vine of Juſtice might be plucked up and rooted out, as farre as poſſible might be, that the Client might have that for 6. d. for which he paies 12. d. and bleſſed be God for hopefull beginnings, ſince theſe right honourable and right worthy Commiſſioners for the Great Seale have come in juſtice hath run in a more fluent ſtreame, and purer channell, not dropt as formerly, in two or three Termes the matter is ended unleſſe the courſe of the Court be interrupted by circular motions, which many times makes ſuch a diverſion, that it is31 hard to reduce it to a regular proceeding, for at the Barre too much is manytimes ſpoken, but not inough whatſoever tends to the victory in way of veritie is to be ſpoken for the Client, and no more when men come to fight they brave it not but ſtrike at the heart, let not an impertinent word be uſed in a Court of Juſtice, if no motion might be heard unleſſe the otherſide had notice of the intention to move, it might advantage both parties certainly, but the moſt ancient & honorable Courts are not without gray haires,As the German inventor of Guns told•Apollo it was that none ſhould dare to make Warres I wiſh all Copies might containe 20. lines in every ſheet to be written orderly and unwaſtfully, I have often thought that the wideneſſe of the lines was, that the parties might meet and agree finding copies ſo chargable and I conceive no anſwer ought to bee referred as inſufficient without ſhewing ſome particular point of the defect, and why ſhould not Bills be diſmiſt of courſe without motion; ſome other practiſes fall under conſideration, as common Recoveries, what neceſſitie there is of them, why a Fine may not aſwell ſerve to cut off reverſions? next whether in conſcience the will of the donor ought to be violated? then for collaterall Warranties, why ſhould not the ſtrongeſt preſumptions give place to the weakeſt proofes? we read of thoſe that have ſworne themſelves to be Whores to diſinherit their own iſſue. And for Out lawries why ſhould the perſonall Eſtate be forfeited, more reaſon to ſeiſe upon it for the debt; the profits of the Land forfeited til a Feofment be made & the Kings hand amoved and yet the Outlawry remaines, and how eaſily are Outlawries reverſed? and what fruit has the partie of all his labour. A man borrowes one thouſand pound and purchaſes Land, and dies, the heire before his Father bee cold makes a Conveyance? now the land is diſcharged from payment of debts. Why is the heyre bound unleſſe the Land bee chargeable after an alienation? other things are yet amiſſe in matters teſtimentary and matrimoniall: in charitie a man meddles with the goods of an inteſtate to ſee him buryed upon pleading that he was never Exector, I know not how farre a man may ſuffer in that caſe, why32 ſhould not our common Law Judges determine legacies for goods, as well as for lands? Why may not a Legatee bring an Action of Debt againſt the Executor, as well as a Creditor? why may not our Judges determine what is a Contract of Marriage, as well as other Contracts; but let no man deſpiſe the day of ſmall things: for my owne part when I conſider the noble propenſitie in our right Honourable Commiſſioners, and the Honourable the Maſter of the Rolls (whoſe names for their unwearied pains, and extraordinary diligence, in the judicious and faithfull diſcharge of thoſe great places of truſt committed unto them, ſo much conducing to publike ſecurity, will bee honoured and renowned to all poſterity) to expedite matters in difference, asking the counſell many times, will your Client referre the matter, telling us that they cannot endure trifling, and nicities. I rejoyce at that ſpirit of Reformation which I ſee orient in that court, and much marvell that cauſes ſhould depend halfe ſo long as they do, ſo true is it that negotiations are eaſily diſpatcht by many, and it is no ſmall ſecurity to the Kingdome, that the ſeale is intruſted into ſo many ſafe hands, for if the mole of Chancery, lay upon the ſhoulder of one ATLAS, hee would finde it weight inough to ſupport, and I have often thought that if it were poſſible a Chancellor or Lord Keeper ſhould not have only infallibility (becauſe his aſſertion is of Pythagorical authority, and that for the greateſt eſtate in the Kingdome upon ſuggeſtion of a Truſt, but likewiſe impeccability, leaſt he ſhould doe any thing againſt conſcience, yet notwithſtanding if the wiſdome of Parliament (in whom the publique Judgment of ſtate is lodged) ſhould conferre that honourable charge upon one as formerly, no doubt whom God calls to any place he gives ability to diſcharge it, for when God places any man in the Chaire of Juſtice, he never puts himſelfe beſides the Cuſhion, ſpecially when Gods favorites are made Judges he is with them in the Judgment, but of that more hereafter.
33Concerning Bills of Chancery, true it is that many times more is demanded then is due, that ſo the juſt debt may be confeſſed, but in reaſon why ſhould not the Plaintiffe put in his Bill upon oath? had not cuſtome incorporated many formalities and ſolemnities into our Courts of Juſtice, many of them would ſcarce hold weight in the ballance of the Sanctuary, but farre be it from any honeſt man to maintaine an old error againſt a new diſcovery of truth. Truly I thinke it was to be wiſhed,Civilians call it leſſe property, Juramentum calumniae. that the oath of integrity might betaken by every Councellor, and Attorney, never to ſet a hand to any Bill or writing, not to ſpeake any thing for the Client, but what they verily beleive in their Conſcience to bee juſt and true, this is practiſed in moſt parts of Chriſtendome, and ſome ſtates make the advocates to diſcover any thing that they know, which may advance Iuſtice though it be againſt their owne Clients but of that I make a Quere, but our Law ſeemes to comply with the former, for by Statute it is enacted, that if any pleader ſhall deceive the Court,Weſt. 1. c, 29. by informing that to be true which he conceives to be falſe, he is to be impriſoned a yeare and a day, and to practiſe no more. The learned Serjeants, are ſworne not to maintaine or defend any tort or falſitie ſciently,See the Sergeants oath in Magna Chorta, f. 213. Numero confiderato. but ſhall guerpe and abandon the Cauſe ſo ſoon as he perceives the injuſtice of it, and truly if Serjeants bee ſworne, why ſhould not the Barriſters? It cannot be denied, but there are as many worthy honeſt men (and as few others) of our profeſſion as of any other calling whatſoever, and many honeſt Aturneys and Sollicitors that looke at the merits and juſtice of the Cauſe, and deſire rather verity then victory in their undertakings, For my part, when any body cometh to adviſe with mee, about Commencing a Suit in Law, I begin to tremble, and bid him firſt examine his owne Conſcience ſeriouſly, whether he have bin wronged, and that in a conſiderable matter? for I would not have Chriſtians go to Law for trifles,Totus in ſerment•. my meaning is unles the thing recovered will quit the Coſt, to provide a Conſerve of Weſtminſter Hall Wormewood, and to be of a leavened34 Spirit for every treſpaſſe, was an error which Saint Paul blamed amongſt the Corinthians, he examines not who has the beſt cauſe but chides contentious natures,But in materia gravi & neceſſaria. that goe to Law for ſmall matters did Jeſus Chriſt write our ſinnes in the Duſt, and ſhall wee write every unkindneſſe in Marble? Secondly, whether he would not have done ſo to others as is done to him, then I adviſe him to uſe all means of peace, and all urbanity, before he do addreſſe himſelfe to a wager of Law, as knowing that going to Law is like a laborinth, the ingreſſe very eaſie, but the egreſſe very difficult; or like two encountring Rams, he that eſcapes beſt, is ſure of a blow.
I have heard a Debtor in Naples, offer a Creditor 50 l. to whom he owed 100 l. telling him, unleſſe he will accept it, he will make him ſpend another hundered, and hold him in ſuit with his own money, and then it may be hee may get 120 in concluſion. And thirdly, I aske my Client whether he can go to Law in love, which I finde to bee a very difficult thing, which being premiſed, no doubt God cals a man to go to Law to recover his right, as well as a kingdom to defend their Lawes and Liberties: but I ſhall not cenſure any Client, for I know the caſe may many times be ſuch, that both parties may have an invincible ignorance of one anothers right. It was ſo in the caſe of the Iſraelites and the Cananites, Ioſhua having a command from God, did juſtly invade their poſſeſſions, they not knowing of that command, juſtly defended the ſame. I proceed with my Adverſary, who is ſo farre in the right, that the maine or many ſtreams of our Law iſſued and flowed from the Normans, ſome veins from the Saxons, and many maximes and rules from Sicily, as might appear in a manuſcript which one Maſter Pettit employed by the Earle of Arundell to purchaſe Antiquities in forrein parts acquainted me with. In the leſſer cuſtomary of Normandy, you may read in ſubſtance the two firſt Books of Littleton, and to ſpeake truth, what ever is excellent in our Lawes, wee have taken the creame of it from them, and thereof compoſed35 ours; and as our language is moſt accurate and refined, ſo is our Law a moſt compleat body of humane reaſon. And now I muſt ſay ſomething concerning the Law and juſtice, and the reverend Judges, the Fathers thereof. For the firſt, the Law of England is a holy Sanction, commanding things honeſt, and forbidding the contrary;A Cheife Juſtice to Hen: 6. and after Chācellour, when Hen: 6. was driven into Scotland. it excludes all vice, and teaches all vertue, who would not fight to defend ſuch a Law? Forteſcue gives a high commendation of it, and ſayes all mankinde ſhould have been governed by the Lawes of England if Adam had not ſinned in Paradiſe, and herein our Lawes muſt needs exceed the Imperiall Roman Lawes which were made by the Emperours Counſellours,Actu vel potentia ut Evani Adamo antequam plaſmaretur. becauſe ours are made by generall conſent in Parliament; that I may moſt truly ſay that the Lawes of England are either actually, or potentially, the beſt in the world, becauſe if any thing be amiſſe, the Parliament may reforme it.
There are but ſix Kings (properly ſo called) in Chriſtendom, the French and the Spaniard who have too much power, Sweden and Poland, who have as ſome politicians ſay, too little power for their Titles; and England and Denmarke, who have juſt power enough by Law, for by the ſalutary advice and conſent of Parliament, they may enact ſuch Lawes as may make a people happy. Oh happy England, if we knew our own happines; In many places beyond ſea, the people pay the fourth part of all the Wine, beſides a fourth penny of all the Wine that is ſold, ſo that where the Wine growes, the people drinke water; and is it not an admirable thing, that we ſhould buy a quart of wine for leſſe then the Natives whence it comes; a quantity of every buſhell of their corne, every houſe-keeper forced to take ſuch a quantity of Salt at five times more then the worth of it. The land farre richer then ours, yet the people five times poorer then with us, the Souldiers conſtantly take what they pleaſe; the Countreymen and yeomen upon the matter go almoſt naked upon the worke dayes, in a hempen doublet on holy dayes: if any man have got a36 ſuppoſed ſtocke of money, he is deeply taxed and impleaded, and then that Advocate cannot want a reaſon that argues for the King; if the man refuſe to pay, then they adjudge him peremptory, and he is impriſoned, and counted an adverſary to the favourites of the Prince, and then its obſerved that they have the happines that ſeldome any of their adverſaries are long liv'd. And if the proofes be not cleere againſt a rich man, the Prince will hear the matter in his Chamber, and condemne him, and he is privately in the night time caſt into ſome River, or burnt, and the poore ſoule ſays, he is glad he has a life to loſe for his Princes pleaſure.
But what means this murmuring, that Taxes are multiplied? Vaine and miſerable men, truly miſerable both in ſoul and in body, that indeed have no mony, becauſe the money has them; he is the truly miſerable man, that loves his money better then his ſoule, for the ſervant of God is maſter of his eſtate: when a Kingdome lyes a bleeding, who would not willingly loſe a yeare or two profits to ſave the inheritance? Tell a Uſurer that hugs his yellow earth of Land at ten years purchaſe, and he willingly parts with his beloved darling; we willingly ſuffer the amputation of an arme or a leg to ſave the body naturall; ſhall any man be unwilling to part with a little wooll to preſerve the body Politique? It may be one reaſon why ſo many have taken up Arms to deſtroy the Law, and to poiſon the very fountain of all lawfull liberties, is, becauſe men do not know what an excellent thing the common Law of England is: It is called the common Law of England, as I conceive not by way of diſtinction in oppoſition to the Canon or Civill Law; for that would be abſurd, as to ſay the Catholike Church of Rome, beſides every Kingdome has a municipicall common Law, but by way of excellency, as David was called the King ſuperlatively and the Booke of books, the Bible, and the foure Courts of Record at VVeſtminſter are called the Kings Courts by way of eminencie.
Leſſe then this a Lawyer cannot ſay for himſelfe, becauſe37 no man muſt exerciſe any profeſſion,Hone••um & utile. Ineptio inſtrumenti faſtidit artificem. Debilitas mucronis reddit ignavum militem. but what is honeſt and profitable for the Common-weale, the unhanſomneſſe of the inſtrument is grievous to the Artificer; it makes a ſouldier ſluggiſh, and ſhames him to have a blunt ſword, and as I heard a worthy Divine lately ſay, if beleeving bee ſo precious, how precious are beleevers? So ſay I, if the Law be honourable, ſurely the Lawyers muſt bee highly eſteemed.
Me thinks Lawyers may be called repreſentative Warriours, for the lives and Patrimonies of our Clients are by us defended at the Barre, by reaſon mans chiefe excelencie: and though the Souldiers profeſſion be very noble and honourable, becauſe moſt dangerous; yet the profeſſion of the Law herein challenges precedency〈…〉〈 in non-Latin alphabet 〉becauſe the ſword is but a ſervant to juſtice conſecrated by God to maintain and defend the Law; for if men were juſt, the ſword might bee ſheathed: now that for whoſe ſake any thing is made, is more worthy then the thing ſo made, whence it is, that the weakeſt body is more worthy then the moſt coſtly raiment; for which reaſon the preſidentiall Nobles (unleſſe there be a duplicity of honour,By 31 Hen. 8. the Chancellour placed before the Conſtable and Marſhall. where the originary and accidentall honours meet together) precede the military Nobles. So in Phiſicke, though the ſubject about which Phiſitians are converſant is more noble then the Lawyers ſubject (health being to be preferred before all pecuniary reſpects) yet Lawyers are reckoned to precede them. Nay Divinity which I looke upon as the grace and glory of all other Sciences (all being but ciphers without the ſalvation of a mans ſoule) in the way of honour and precedency muſt give way to the profeſſion of the Law; the reaſon whereof is, becauſe Juſtice which is the Lawyers ſubject, is more neceſſary then either Divinity or Phiſicke,Ingenious ſir John Davies in his eloquent Epiſtle to the Iriſh reports. as without which no Kingdom can ſubſiſt one day: Wee ſee Heathen kingdomes ſubſiſt without Religion, and you may imagine a Kingdome to ſubſiſt without Phiſitians, as Rome did for ſome time; but all men, at all times, and in all places, ſtand in need of Juſtice38 and Law,Conciliarii ſunt organa juſtitia in corpore politic•. which is the commenſurate rule of Juſtice, and conſequently Lawyers which are the Miniſters, Servants, and Secretaries of juſtice the Queen and Empreſſe of all other morall vertues, which is as abſolutely neceſſarie as the Sun; for ſhould the Law be ſuſpended but one night, nay, ſhould juſtice (which is the ſoule of the Kingdome) depart but one minute, the Kingdome would bee deſtroyed, all humane ſociety diſſolved; for then every man might doe as he liſt, and ſcarce a man but hat•ſome enemy or other that would preſently kill him; and that is the reaſon that the Sageſt politicians alwayes looke firſt at a Being, before a well-being. Firſt whether a people ſhall live; next, for their comfortable ſubſiſtence, and this brings me to the noble Theame of juſtice whereof before I treat: I intreat leave to ſpeake of one Remora and great Hinderance which is multiplicity of buſineſſe in a Court,A great Practiſer may better afford to make a Motion for 5 s. then one of us for 10 s. that every man cannot be heard what hee has to ſay, and then the Client murmures that the buſineſſe is not done and the Counſell for ſeverall attendances (ſpecially having no other buſineſſe there) peradventure expects new Fees; therefore it were greatly to be wiſhed, that every man if it were poſſible might bee heard every day what he has to ſay for his Client, at leaſt, that no man having been heard once, ſhould move againe, till every one hath had his Motion; otherwiſe, a young Practiſer may peradventure ſcarſe make a Motion till the laſt day of a Tearm: but if the Court would pleaſe where they leave hearing, there to begin the next day, the Client might know when his buſineſſe ſhould be diſpatcht.
I would faine propound a queſtion to all rationall men of publike ſpirits, whether a Writ of conſcionable diviſion does not lye among Lawyers? that at leaſt every one may live by his profeſſion or whether there be any reaſon that one man ſhould get a 1000 l. per annum, and another of the ſame profeſſion not get halfe a hundered? I am ſure it has ever been condemned; for as great an error in politiques, as pluralities which were abhorred, even by that Trentine,39 or rather Tridentine Counſell as being a great diſcouragement to the profeſſours, and diſhonour to the profeſſion; ſure it is, that as all Clients have an equall intereſt in the Court, one as much as any other juſtice knowing neither father nor mother; ſo all practiſers are equally invited to the Barre, the Courts of juſtice, being like a great Prince that keeps open houſe for all, and makes a generall invitation.
Obſerving in Italy how carefull the Poteſtates and 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 welfar•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 bef•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 wife40 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;41 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 f•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 learne42 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,S•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 Treſ•erudite Seniors will not in their43 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 the44 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 juditially45 appeare to the Court, let every rationall man determine, away with all bugbeare objections of ignorance or confuſion, and carnall reaſonings, lets have Scripture Lawes, and ſummary quick proceedings and after Naſeby fight,Quaſi 2d. Angliae nativitas. lets 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 it was better to be once ſoundly wet with a great ſhower then to be ſubject to a continuall dropping, I cloſe with that likewiſe, but I beſeech you what need is there that any man ſhould bee undone for want of a ceremony or nicety in the proceedings, I am ſure the leaſt evill muſt not bee done for the greateſt good, and why any miſcheivous caſe ſhould bee ſuffered amongſt Chriſtians.
I am yet to learne, it will bee ſaid Polititians could never prevent all miſcheifes, I ſay Chriſtian Magiſtrates may and ought to make Lawes for every mans ſafety and property, a noble Gentleman for the good of a young Ward his Kinſman, has Compounded for 3. or 4000. l. payed part, ſecured the reſt, and the Ward before any profits received dead, the Gentleman deſires releife againſt his Bonds, the Anſwer is made better ſuffer a miſchiefe then an inconvenience, what inconvenience can happen in giving48 conſcience the upper hand? It is better to ſuffer one Fox in a Vineyard then twentie, but what then? muſt not that Fox be hunted out that he may not deſtroy the tender Vines? I ſay it againe and ſubmit it, that it is a ſhame that any man ſhould ſuffer in point of right in a Chriſtian Kingdome, it being a principall difference betweene Chriſtian and Heathen Magiſtrates, that the latter make lawes that concerne the moſt, but care not for private mens ſufferings.
And now concerning Iuſtice between man and man. Oh what a glorious thing ſpeedy Juſtice is it is the glory of the Ruler, and the happines of the people, what the ayre is to the elementary world, the ſunne to the celeſtiall, and the ſoule in the intelligible, the ſame is Juſt ce to the civill world, it is the healthfull ayre that all oppreſſed Clients deſire to breath, the ſun which diſſipates and diſpells all the Clouds and miſts of oppreſſion, injuries, and deceits, it is the ſoule which animates and gives life to all things, what an excellent juſticer was Iob, who would not delay the Cauſe of the Widdow, why may not ordinary cauſes ariſing within 100. miles of Weſtminſter be ended in a months ſpace, and all other private differences in the Kingdome, the moſt arduous and difficult in the ſpace of three Months, untill it ſhall pleaſe the Parliament for the eaſe of the ſubject to enact ſeverall judicatories in remote Countries, with liberty of appeale hither in doubtfull and weighty matters. Oh when will there be a determinate time to end all differences, why is it called a Terme, but to determine all controverſies: what! the Terme ended and the ſuit not ended? is not reaſonable, Solomon ſaies there is an appointed time for every thing; ſave only for a Law ſuit, how long it may laſt, the wiſeſt man cannot foreſee. Among the Proteſtants beyond Sea, if a man cannot bring his buſineſſe to an end in 3. Monethes, he muſt pay good coſts and be nonſuit, The appointed time for the performance of any ſingle combate is from Sun riſing to Sun ſet, if in that time the Chalenger cannot procure his Challenge upon49 the body, the Defendant is acquitted, ah ſpeedy Juſtice is the Cape of good hope, by which we paſſe to the fortunat Ilands, and this is the diſtinguiſhing vertue of it, that whereas all other virtues do good to themſelves (even Charity it ſelfe beginning at home) regarding more the good of the poſſeſſor, then others; Iuſtice doeth good to others as being the principall Pillar and foundation of the Kingdomes happineſſe.
Now promiſe being a debt, I am to performe it, and muſt ſpeake a word concerning the reverend ſages of the Law, I am perſwaded that the ambition of the Clergy, and the puſillanimity (to give it no other name) of the Iudges were the grand occaſions of theſe inteſtine calamities, who being intruſted by the Kingdome as guardians and ſentinells for the peoples liberties, ſpirituall and temporall, to make themſelves grandees at Court, made the Lawes to ſpeake what they never intended, by ſtraining to advance the prerogative above its proper altitude, and certainly that judgment of ſhip money (not to ſay any thing what is printed, where the ſame is moſt learnedly refuted) was the moſt divilliſh plot that ever was invented ſince the Qu•warranto in Ed. the 1. time when, knowing mens charters were loſt, in the Civill Warres they were forced to produce them, forceably raviſhing a Virgin,Parrium dici a te perpetrari poteſta me excuſari non poteſt. and then putting her to death, for the loſſe of her Virginity; for if the King may take what he pleaſe in caſe of neceſſity, and be judge of that neceſſity (as Lewis the 11. ſaid of France, was a meadow he might move as often as he judged it neceſſary) England muſt needs bee a neceſſitous people, when they were ſollicited to deliver their opinions againſt thoſe worthy Patriots, whoſe names ought to bee famous to all poſterity, they ſhould have anſwered as Papinian did [who ſaid, being Chancellor to Caracalla the Emperor who had murdered his Brother Geta] you may perpetrate, I may not excuſe fratricid, for which he was preſently put to death, the end of the Iudge is, to do juſtice, and the end of a Lawyer, but to perſwade the truth, a man muſt not for48 to ſave his life,Non propter vitam vinendi perdere cauſam. looſe the end of his living, the only neceſſity is for every one to be honeſt, but it is no unuſuall queſtion why ſo many Judges and learned Lawyers deſerted the Parliament, and inclined to the other party.
It was a queſtion at Trent, why more great Scholers held that the Pope was above a Councell, then the Councell above the Pope, honeſt Vergeus made anſwer that the reaſon was plaine, becauſe the Pope had more Cardinalls Caps Croſiers-ſtaffes, ſat Biſhopricks, and Larded benefices at his diſpoſall to recompence ſuch opinions then the Councell had; as one being asked what the Arminians held? anſwered merrily, moſt of the fatte livings in the Kingdome.
But now ſince by Gods gracious providence, the wiſedome of ſtate have the power to repleniſh and fill the Courts of Juſtice, what qualifications are required in the reverend Juſtices? fall under conſideration?
Firſt Science for the ignorance of the Judge is the calamity of the innocent,Ignorantia judicis eſt calamitas innocentis. an ignorant Judge being worſe then a corrupt Judge, for the one may ſell Juſtice aſwell as injuſtice, but he that underſtands not what right is cannot be ſaid to doe juſtice to any, be learned ye that are Judges of the earth.
2ly. ſapience, not wiſe to doe evill, but that wiſdome, that he which the evangelicall Prophet calls Councellors adviſes;2. Pſ. 10. that a Chriſtian ſhould bee innocent as a Dove, never to hurt any body, and as wiſe as a Serpent, that no body ſhould hurt him, there is much wiſdome required in a Judge to diſcover fallacies, which ſometimes may bee preſented as verities; for many times by artificiall deceit (which is of all other the worſt) the matter is ſo tricked, ſhadowed and heightened by colour of painted Art, that the Judges themſelves may be abuſed and beguiled if they be not very wiſe; The Civilians ſay that if a Judge be wiſe, no advocate can hurt a good Cauſe, for if the Lawyer can by his wit diſguiſe and varniſh over a rotten cauſe, and ſpeake well in a bad matter, which is not eloquence but49 loquacity, certainly the Judge is able to ſpeake much better in a good cauſe, and to ſet a farre clearer gloſſe upon the truth if need require.
3ly. Prudence which acts in every individuall circumſtance, Law caſes being as mens faces, ſeldom 2. caſes ſo like, but there is ſome difference, now in ſuch multiplicity of buſineſſe, a Iudge had need be very prudent, not to embrace a cloud for Iuno, I am perſwaded if one obſervation might but take place,Imbeculum pr•Junone. it would be a meanes to retrench and cut off all unneceſſary delaies & tedious protractions of Law ſuits which are ſo greivous to the ſubject, and that is, that every mans Grant, and all bargaines, Contracts, and words, ſhould be taken and conſtrued according to the parties meaning that, the Judge and Jury ſhould have nothing to do but by the manuduction of reaſon to inveſtigate and find out the parties reall intentions and plaine meaning, and ſo find and declare the Law accordingly, It is a rule that mens grants and intentions muſt be regulated and conſtrued according to the Law, and not the Law according to their intentions, I agree, that the Law muſt be the rule of all juſtice, and that Law which is moſt certaine and leaves leaſt to the Judges arbitrary diſcretion is ever the beſt, but undoubtedly this rule would be the mother of the greateſt certainty that can be imagined, for every mans meaning will eaſily be found out and made evident, and this would beget a ſweet harmony and friendſhip in all Civill affaires, for no man ſhould be ſuffered to defraud or goe beyond his Brother in barganing, whereas ſome crafty Fox that hath obſerved the ſtrict formalities and niſeties of Law,He was a moſt excellent man for naturall ſcience and diſcourſe Cecil moſt famous for prudence and direction practicall. will eaſily ſurprize a credulous nature which ſuſpects no hurt, many times to his utter undoing, I know what my Lord Bacon ſaies in his third rule againſt this, but I ſubmit it to juditious conſideration, And this is practiſed in matters teſtamentary, All agree that matters of Parliament, Arbitrement, Teſtament, and other words that end in ment, muſt be conſtrued according to intention, why not aſwell in all contracts? the reaſon is50 given, that when men lie ſicke, they have no opportunity to get Councell, pray, why can you not aſwell ſend for a Lawyer as a Phyſitians,Iacentes in extremis. if ſick men have that favour, why ſhould not the Law be as kind to men in health?
4ly. Purity of hands and chaſt eyes for a bribe will make the moſt eloquent man mute as a Fiſh, I know our reverend Judges who take their delight in the Law of the Lord, ſtudy the 1. Kings 8. where I note that it was the avarice of the Iudges that made the people of Iſraell revolt from Samuel, and deſire a King, and in Deut. and Iſaiah, no Kite,Deut. 27.19. Eſa. 5.20.23. Eagle, or griping Bird, was to be admitted into the Temple of juſtice, and I hold it a dangerous thing for Iudges to take any preſents from any man, though in things commeſtible and corruptible in 2. or 3. dayes which the Romans allowed, for there is a kinde of hope in the giver to receive favour from him, if any cauſe come before him, and a generous propenſitie in Engliſh ſpirits to requite the leaſt curteſie; I remember an hoſt in Languedoc told us that he had a Turkey coſt 40. s. Engliſh, and marveling at it, he told us that it was firſt preſented to a Iudge whoſe ſervant ſold it for 5 s. to a Client which preſented it to another Iudge, and his ſervant ſold it for 4. s. to one who ſold it to another Client for more, who preſented it to another, and ſo in a circular motion till 8. or 10 Iudges had beene preſented with it, till about the end of three daies the hoſt bought it,Integer vita ſacleriſque purus quam ſumme fieri poteſt in humana natura. and truly few ingenious men could ſcarce bridle their cheeks from laughing at ſtories about preſents made heretofore (though now bleſſed be God, we heare of no ſuch matter) that have ſerved for table talke, a time which Chriſtians ſhould improve for ſpirituall advantages.
Integritas juſtitiariorum eſt ſelus ſubditarum.Fifthly, Integrity of Converſation; Hee that is to judge the Lives, Honours, Eſtates, and fortunes of others, had need himſelfe bee exempt from blame, Hee that is eſtabliſht to reprove others, ought himſelfe to be irreprehenſible as much as may bee in humane nature, the integrity of the Judges is the health of the Subjects,51 therefore as Calvin ſaid at Geneva, Gentlemen, ſuperſtition hath formerly kept her Throne and Court in this place therefore we muſt be more zealous then others for the purity of Gods holy ordinances, ſo ſay I, what heavy oppreſſions and iniquities were perpetrated and groaned under in our Courts of Iuſtice before this happy Parliament, every man knowes it too well, let it not bee told in Gath, nor publiſhed to the diſhonour of our Engliſh Iſraell but as a ſtumble may prevent a fall by taking the better heed,2. Sam. 1.20. ſo I doe not doubt but for the future we ſhall have ſuch worthies preferred to places of judicature, that ſhall make it their meat and drinke, to execute juſtice, to witneſſe their love to Ieſus Chriſt.
The former qualifications are neceſſary in all ſtates as well heatheniſh as Chriſtian, therefore there muſt be ſome other diſtinſtuiſhing Characters, I would gladly ſpeake my thoughts about two things,I looke upon this Covenant as the moſt admirable human writing that ever was in the world. Malignancy commonly ſo called, certainly a Malignant Iuſticer is the worſt of all Malignants, or if any be a neuter the difference is but graduall, we have ſolemnly covenanted neither directly nor indirectly to give our ſelves to a deteſtable indifferency or neutrality in this glorious cauſe which hath never offended, and which indeed is rather Gods then mans.
Therefore if any man ſhould ſit upon the bench that is diſaffected, it muſt needs be of dangerous conſequence, becauſe by common intendment, he conſerves and carries the Law in his breaſt, and if a Iudge ſhould come into any County and there declare any thing done by the Parliament to bee illegall, and twenty worthy Commoners ſhould make ſpeeches to the contrary, it is no hard matter to determine which would take the deeper impreſſion, in vulgar breaſts, nay certainly if a man bee but ſuſpected by the generality of Cordiall men, hee is no Idoneous perſon for ſo high a place, nay what if I ſhould ſay, unleſſe hee be active and zealous? for a Judge ſhould be couragious in executing his Office and in Gods cauſe.
I would faine aske another queſtion (for thankes bee to52 God and our good Parliament, theſe are times of Chriſtian liberty, the Lord grant that no man abuſe it by turning liberty into licentiouſneſſe, for a man to beat himſelfe and ſtrike every man that hee meets, and ſpeake irreverently againſt authority, this is no Chriſtian liberty, but a furious Bedlam meriting madneſſe) whether he that is not a good man can be a good Iudge?To feare God and honour authority are inſeperable the image of God ſhining in the face of a Parliament obliges to all reverence and obedience. the reaſon of the doubt is, becauſe Iuſtice is a morall virtue, and not religious, for no doubt there are many good Iuſtices amongſt infidells, and ſome that doe juſtice even for the love of it, for a Phyloſopher may goe ſo farre, but in a Kingdome, profeſſing Chriſtianity as in the preamble of the Covenant (which is as the key to open the meaning of it) the words are, having before our eyes the glory of God, and the advancement of the Kingdome of our Lord and Saviour Ieſus Chriſt, &c.
I conceive no man ought to be ſet upon ſo high a pinnacle of honour, as to be intruſted with the lives, reputaions,Zelo vindictae pro fama, virtutis amore non pro honore Dei.Vltra ſphaeram activitatis, ſi manducat peccàt (minus lamen) ſi non eſt homicidd. Exod. 18.21. 2. Sam. 22.3. Se the Annotations of the learned Divines upon 2 Sam. 23.3. a work very praiſe worthy. and eſtates of the Kingdome, unleſſe he can have that before his eyes which no unregenerate man can have, a naturall man may doe juſtice betweene partie and partie for a private revenge, or to gaine popular applauſe, or for the love to juſtice, (a virtue in it ſelfe ſo ſweet and amiable) but for Gods enemy (as every unconverted man is) to ayme at his glory, and to ſet Ieſus Chriſt upon his throne, that is above the ſphere of his activity, the naturall man cannot act ſupernaturally; if he eates he ſinnes, if not he is a murderer, as not acting from right principles nor to a right end.
Moſes was commanded to appoint Judges which had 4. excellent qualities.
Firſt, able men no doubt, he meant ſanctified abilities for learning without Religion, is lame, and Religion without Learning is blinde.
Secondly, fearing God, hee that ruleth over men muſt be juſt, ruling in the feare of God, hee that commands others to deale juſtly muſt be juſt himſe•fe, otherwiſe you53 thinke to ſtraighten a ſticke by a crooked rule, which muſt bee from an inward principle, the feare of God in whoſe right and place he ruleth; a Judge muſt ſo feare God, as to be altogether juſt, not in part onely, but intirely juſt in meaſure and degree, not to be juſt to ſome, but to all, and to all alike, and at all times and ſeaſons.
3. Men of truth, every man is naturally a true man, every honeſt man is morally and legally a true man, but a Judge muſt bee a man altogether compoſed of ſanctified truth and Juſtice.
4. Hating Covetouſneſſe, its one thing not to be a covetous, man and another thing to hate Covetouſneſſe, as it is one thing not to ſweare, another thing to feare an oath, for any man that is notoriouſly known to be a Griper and a covetous perſon to be made a juſticer, is to place Avarice upon the Bench, and not Juſtice, But who ſhall be Judge in this matter? Truly, who ſhall judge whether it be day or no? how doe I know that I am a man? In doubtfull matters the ſupream and ultimate judgment (from which there can bee no appeale to any earthly Tribunall) is the high Court of Parliament,An Ordinanc of man is an Ordinance of God, not to be diſputed but obeyed in all caſes actively, or paſſively, faciendo aut patiend•. when that has made or declared a Law, then every mans mouth is ſtopt, it is an anointed truth, and may not bee queſtioned by any murmuring or contradiction, I know a reaſon why every man ſhould be reckoned irreligious, unleſſe the contrary appeare, becauſe every man is borne ſo, to judge him religious, I muſt ſee ſome fruits of it, which in a Judge ſhould always be green, viſible and conſpicuous to the eye and judgment of every godly profeſſor; But all is not gold that gliſters, true, yet there is no Gold but doth gliſter, certainely men that in theſe times are preferred to fit at the Sterne ought to be eminent, for Grace and Piety, others that are but at the Oares, honeſt, civill, ſober men may do much good in their ſtations.
But the queſtion truely ſtated will be this; what if the beſt Lawyers be not the beſt men? or what if hee that is as it were heire apparent to a Judge, be not in the appearance54 of good men an heire of heaven, would you have Lawyers leape into the Chaire, and not by degree take their turnes?Per ſaltum & non per gradum but before I anſwer, I aske further, Is he fit to bee a prime Courtier on earth to execute the Lawes of God that is not a daily Courtier at the Thron of grace? and ſuch a juſt man that lives by his faith in Jeſus Chriſt? what may the full ſcope of the Apoſtle be to the Corinthians concerning this matter?See the learned Annotations upon the firſt Cor. 6. this is a cleare truth that as all lawfull externall callings are from men, ſo the internall is from God; I ſhall preſume to inſert a pleaſant ſtory, By the conſtitution of the Popedome, upon the death of a Pope, ſo ſoone as the Cardinals can conveniently meet together, they are all put into the conclave and have nothing but bread and water, till they be agreed, and the Election muſt bee by two parts of the ſuffrages as it there be 30. Cardinalls, he that is choſen Pope muſt have twentie voyces, now a Pope being to be choſen, fifty Cardinalls met 30.Divine Beza called him Cardinall, Quadrato, He was ſo good a trencher man, Qui habebat naſum cherubinum & quia non potuit eſſe cardo eccleſia apoſtatia per caput vult eſſe per•aſum mentioned by Horace Nunc eſt bi•endum, &c. were for one and twenty for another which being no Election, and they having continued 3. or foure dayes, and no hopes of agreement, one fat Cardinall that ſtomackt the buſineſſe for want of his Capons and Pigeons, and unguentary Greeke and Albauwines fell a ſleepe, and waking told them that now the difference would bee ended, for neither of the two muſt be the man, for he had received a revelation in his dreame that it was the will of Jeſus Christ, that one Clement ſhould be Pope, and he askt them whether hee was not without exception the fitteſt man whom Ieſus Chriſt would chooſe if he were perſonally preſent, this put them to a ſtand, but they ſaid they were not aſſured that it was the minde of Jeſus Chriſt, Graſſo ſlumbers againe and ſtarting up as if there had been ſome apparition, told them that it was now out of queſtion for Saint Peter had appeared to him and told him that it was the wil of Jeſus Chriſt, that they ſhould make choice of that man without any further conteſtation; therupon, concluding that none knew the minde of Ieſus Chriſt better than Peter they choſe him Pope and diſmiſt the Conclave,55 I ſhall make no application but this I ſay, that when a good man is advanced the Kingdome indeed rather than hee is preferred, for a good Judge is an epidemicall bleſſing, yet I muſt further enquire what learning is principally required in a Judge.
Firſt for matter of Oratory, to read Cicero, Demoſthenes,Orator eſt adulator niſi ſit vir bonus dicendi peritus. Iſocrates, Quintilien and politique Authors which have intreated of the Roman policies, as Plutarque, Pliny, Seneca, Caſſiodore, for Philoſophy; certainly all good humane Lawes had their ſource and originall from reaſon, well regulated and conducted from the precepts of good morall Philoſophy beſt handled and made forth by Socrates and his Diſciple Plato called the Divine and prime of the Philoſophers,Plato Gratis vult ſibi credi exiſtimans homines ut pueros ſcepteo ferulae regi poſſe. Veris nugis verbis nudis non conſiderata qualitate humanarum literarum. but they were rather contemplative and ſpeculative in occult inventions then uſefull and practicall for government. Ariſtotles learning for a Judge is rather to bee deſired, but yet I doe not hold any of theſe abſolutly neceſſary for a Judge, for I conſider that life is but ſhort and that the Law is a thorny ſtudy.
And here I would crave leave (out of a ſenſible apprehenſion of my owne wants, and a viſible experience how many Gentlemen are gravelled) to propound my ſerious thoughts to the honoured and learned Benchers of the ſeverall Societies, heartily wiſhing for the Students good, that there might bee in every reſpective houſe two at the leaſt appointed as profeſſors of the Law to direct yong Students in the Method and courſe of their Studies,Studemus potius ſubtilia quam utilia. Lucifera non fructifera. that they may rather apply themſelves to caſes profitable then ſubtill, for the difficulty of the ſtudy diſcourages many. I have often thought that for an ingenuous ſpirit that has taſted of thoſe pleaſing liquors of Ethiques, Rhetoriques and Philoſophy to betake himſelfe to Juſtice Littletons Tenures is to have a jumpe of Beefe after a grand dinner;M. Britkenden to whom I am much obliged. I remember that having read Littleton three times over, I told my worthy Maſter (who honoured me with a lodging in his Chamber) that I thought Litileton was no Scholler,56 and had nothing worth the reading, but his Latine ſentences, he adviſed me to make it my meat and drinke, and to read Doctor and Student for a recreation, which the more I read, the more I might, for I thought my ſelfe in Paradiſe, worthy Maſter Shurland who read at twenty two yeares ſtanding told us in his Speech that hee had loſt three or foure yeares ſtudy for want of direction, becauſe he ſpecially minded moot points and ſpeculative conceits, neglecting caſes uſefull and practicall: and truly whereas we allow ſeaven yeares ſtudy under the Barre, I would have 3. of them ſpent upon the body of Divinity, (it being as the Sunne among the Luminaries) and 4. in the ſtudy of the morall and rational part of the Common Law which is the rule of ſpeedy juſtice to give every man his due with expedition, for to what purpoſe now ſhould young Gentlemen gravell themſelves in the quick ſands of villenage Frankalmoigne, Quare impedits, and ſuch unneceſſary conteſtations, I would intreat the Gentle ſtudents forthwith to addreſſe themſelves to the Readers to have ſuch a thing eſtabliſhed.
And now after this diſcontinuance of readings if the Learned Readers would be pleaſed inſtead of reading upon Statutes (which when the reading begins are plaine and eaſie, & wherupon peradventure ſcarce one caſe ſhal hapen in a mans life time) would acquaint the ſociety with the moſt uſefull knowledge and daily occurrences in actions of debt, upon the caſe, of treſpaſſes and ejectments, the preſent Law of the times, which is worth our beſt ſtudies, one juditious Reader, might in a fortnights ſpace argue moſt of the controverſall points which are now agitated, propounding 5. or 6. points a day, either about conveiances aſſumpſits or words actionable which are the daily ſubjects and diſputes in Weſtminſter Hall, and what matter is it, whether every point goe to the concluſion of the caſe, indeed what matter is it whether it be made a caſe or only put by way of ſingle queſtions, and then I57 would have every man to be at liberty, to ſpeake as he conceives the Law to be, for truly I doe not like it that any man for Argument ſake ſhould argue againſt his Opinion; pray thee good Reader doe not object, that old formes muſt be obſerved, I tell thee, one ounce of reaſon is worth a pound of formality, as one acre of performance is worth a whole land of promiſe; and he that ſhall preferre the ſhadowes before ſubſtances, and reſtingly delights ſo much to ſit upon the forme, let him never come to the Bench by my conſent; Time onely can demonſtrate the utility of the praemiſed deſigne, which cannot be chargeable to the Students, for he that inſtructs others teaches himſelfe, and it will occaſionally increaſe his Practice; beſides, every one of the Houſe might repaire to the Profeſſors for private advice, for what a ſhame is it that one ſhould take Fees of any Gentleman of the ſame Society, though to the praiſe of ſome be it ſpoken, they have given faithfull and able advice, and refuſed their Fees to my knowledge, and I know a Brother Barreſter that hath refuſed five hundred Fees, but what is loſt in the Hundred will be gained in the Shire.
If any man in his youth in the Schooles of Humanity, ſhall attaine to a ſummary generall knowledge in Grammar, Rhetorique, Phiſiques, and Meta-phiſiques, the Ethiques and Politiques of Ariſtotle, they are uſefull as ſcaffolds and praiſe-worthy, but not neceſſary; and for the Greeke Tongue in regard that the Authours are ſo faithfully tranſlated into Latine, though in many Caſes it holds, that the water is never ſo pure as in the Fountaine, yet all things conſidered, it is better to relye upon the Tranſlation being ſo exact, then take ſuch infinite paines to ſearch the Originall, as Raſis; Avicen and other Arabian Phiſitians are made uſe of onely in the Latine, and Greeke Tranſlations, and as Travellers know that its better to come into a French Hiſtory, where all things are in a readines upon the Table, then to an Inne in Spain, where in ſtead of repoſing your ſelfe, you muſt fetch Bread here,58 and Wine there, and Fleſh in another place, and ſtay two or three houres till it be made ready; and this makes me wiſh not onely that all good Bookes whatſoever were Tranſlated into ou•owne Language (which would advantage Children three or foure yeares ſchooling, who are cracking the ſhell to underſtand Latine, whereas they would eaſily get the kirnell, and learne Logicke, Rhetorique, Philoſophy, and other Sciences, as they doe to know the names of Creatures, Beaſts, Fowles,•iſhes, Corn, and Houſhold-ſtuffe and other neceſſaries; if all Bookes and Authors were in Engliſh, which might eaſily be done by our learned Schollars now in towne, a work that would more advance and dignifie the Kingdo•e then Prima faci•can be imagined: For hence it is that Schollars in Fran•e know more at ſeventeen then with us at twenty; the Gentry, even the women generally, excellently principled in morall Philoſophy and all humane literature) but alſo that our Law Caſes were all Printed, and all our Writs Proceſſes, and proceedings in Engliſh, for that Statute in 36. Edw. 3.36. Edw. 3. recites, that great miſchiefes happen to the Realme, becauſe the Lawes are ſhewed in the French Tongue, which the Clyents doe not underſtand, but does not fully cure the malady;The Freneh Lawes were in Latin untill Francis the 1. which being altered they ſaid, now is the Kingdome out of ward. for truly I am aſhamed that a Sub-paena ſhould be ſerved upon a Country-man in Latine, when peradventure ſcarce any one within five miles underſtands it; beleeve it, 'tis a badge of the Norman Conqueſt, which by degrees I doubt not but will weare out. I am no enemy to Learning, but this I affirme confidently, that were all Authors, Divine & Humane, faithfully and exactly tranſlated (as I know no reaſon why they may not) there would be little uſe in compariſon, or rather trouble of any Language but our owne, unleſſe it be for Statiſts in point of correſpondency with other Nations. Indeed Hiſtory is in ſome ſort neceſſary for our reverend Judge,We ſhould ſtudy the〈…〉〈 in non-Latin alphabet 〉as well as the〈…〉〈 in non-Latin alphabet 〉. eſpecially our Engliſh Hiſtories, without which a Stateſ-man is as one that hath a crick and cannot looke backe, and I conceive that to be the greateſt defect in our Profeſſion, that59 not being verſed in our Hiſtories we content our ſelves, that the Law is ſo, not looking into the reaſon why it is ſo; but for other Arts and Sciences let him that is to goe to Rome,Abſtine inutil: labori ut profituro ſufficias. not trouble himſelfe to learne all the waies thither, but that which may be the ſafeſt and neareſt way for him; for if any matter concerning the Civill Law, or Phiſicke, or Mayhem, or the quantity of Land, or any other forraigne ſcientificall matter be brought in queſtion before our reverend Judges, they ſend for other Artiſts,Cuilibet in arte ſua perito credendum eſt, potius viliſſimo ſutori de calceis diſputanti quam graviſſimo Catoni. skilfull in thoſe matters, and adviſe with them; according to our rule in Law, every man muſt be credited in his owne Art, the Shoo-makers Judgement about making Shooes, before a grave Cato Diſputing about the ſame matter, and ſo far I thinke all underſtanding men will agree with me; but now here it ſticks, whether the knowledge of God in Jeſus Chriſt be not a very expedient perquiſite, if not a neceſſary requiſite to make up a compleat Iudge, and truly I hold it is in a Chriſtian Kingdome; the reaſon is, becauſe without this no man can come to be a good Polititian, for Policy is but a branch of Divine Wiſedome, there being no Policy againſt God, for all ſaving ſpirituall wiſedome comes from God as the fountaine, through Jeſus Chriſt as the Ciſterne, effectually drawne out by the Pipe of Faith, and all reaſon of State muſt doe homage, and render obeyſance to Divine reaſon, which hath its Authority more elevated. But put caſe then that one Lawyer hath a large ſtocke of Law, five talents for the purpoſe and not one ſparke of Grace viſible, another is a viſible holy man and hath but two talents of Law, which of theſe two is fitteſt to be a Judge? I thinke the latter, but put it thus; that one hath four talents of Law, and two of Grace, and the other hath•wo talents of Law, and foure of Grace, and then what is to be anſwered? I ſhall not determine it, but this I ſay; that Grace and Gifts meeting together make a ſweet harmony, and when Grace is preferred then the figure ſtands before the ciphers, our Engliſh Proverbe is very ſignificant, Set not the Cart before the Horſe; that is, preferre not dead40 things before living, to place a religious man in the Chair, to make a good man a great man, what is it but to ſet Jeſus Chriſt upon the Bench, it being an invincible Argument, that he that loves the Childe for his fathers ſake, beares the greater love to the father. Ariſtotle ſaies, that Religion is abſolutely neceſſary for a King, for no man will thinke that he will doe right to men that performes not his duty to God; neither dare men offend him that feares God. How happy was Conſtantine for putting his truſt in the Croſſe, as Papiſts vainly imagine; but that Kingdome that truſts onely in God what can be done againſt it? Oh make much of, and honour religious men for his ſake whoſe true pictures they are, for the houſe of Obed Edom was bleſſed for the Arke ſake; indeed it was the Court-caveat, Take heede of Puritan Judges, were but our Chriſtian Magiſtrates, Miniſters, and Juſtices, rightly zealous for the glory of God (as bleſſed be God many of them are) I meane ſuch as doe not only make profeſſion of Religion, but take it into their protection, what glorious times ſhould we live to ſee, all terreſtriall Deities (as ſacred Scripture calls Judges) are Images of the ever-living God; Now is it not moſt reaſonable that the Portracture ſhould reſemble the Originall. A Picture that reſembles us, we make much of it, if it deforme us, and carry our name unjuſtly, being nothing like us, we burne it; the Draughts of Gods Viſage are Piety, Juſtice, and Clemency; good Kings and Judges are kept in the boſome of the Eternall as his beloved reſemblances, but a counterfeit ſhilling we naile it to a Poſt, and if any man thinke any way to advance himſelfe by exceeding thoſe bounds which God hath preſcribed, the Almighty Judge does but fatten ſuch a man for the ſlaughter, to make the ſtrok of his Judgement more ſignall. The•reverend Fathers ſo adorned and qualified ſhould therefore be made honourable and rich the firſt day of their Charge, or have an honourable ſupport for three Reaſons.
1 To anticipate not onely the inconveniences of want,61 and temptations of preſents, but to prevent dejection of ſpirits, for when a Judge ſees that he ſhall get nothing by the Cauſe, he will be ſtudious for his owne eaſe to doe ſpeedy Juſtice, for why then ſhould it cumber the Court longer then needs muſt; and that is the reaſon that many States maintaine Lawyers at the publick Charge, that ſo expecting nothing from the Clyent they may ſteere their adviſe the ſpeedieſt way to the haven of Iuſtice. But whatever complaint may be made of us, truely for the generality we doe but taſte of the broth of commodity, the Clerkes and great Officers of Courts put their ladles to the bottome of the Pot, and are even drowned in the ſweet liquor of potable gold.
2 This honourable Calling and maintenance is in the nature of baile,Acutos honoris ſtimulos. Ingenius malvezzi. as a cautionary aſſurance to the Kingdome to anſwer for their judiciall adminiſtrations; and I conceive Honour obliges, and engages more then profit, yet not ſo as to ſuperabound in wealth and power, leaſt they ſhould command as Lords, and not as fathers.
3 Judges ſhould therefore be great that they may dare to doe Juſtice, as Gaſcoigne committed Hen. the 5.Hollinſhed. upon a Biſhops complaint, Hen. 4. rejoyced that he had a Iudge durſt doe Iuſtice upon the Prince, and a Son that would be ſo obedient; I ſhall tell you of a gallant peece of Iuſtice to recompence that of Piſo; In the great Warres betweene Charles the fifth, and Francis the firſt, one Raynucio was impriſoned at Millan for betraying a Fort to the French, his wife (who for beauty was called the Noſe-gay of the Pariſh) petitioned the Governour for her Huſbands inlargement; the Governour our being ſo enamoured that there was little hopes of liberty (had there been no more in it but that he might behold the Lady, who daily attended with Petitions,) being able to conceale the fire no longer told her that his life was in her hands, and he was as much her Priſoner as her Husband was his, and that ſhe muſt yeeld to his deſire or be an undone widow; the vertuous ſoule covered her cheekes with the colour of Roſes, and62 deſired to ſpeake with her Husband, whom ſhe made acquainted with it, telling him that if her life would ſave his, ſhe would gladly loſe it, but my honour being required you muſt prepare for death; he commended her magnanimity, and how ſad their parting was you may eaſier conceive then I can expreſſe; the houre being appointed for his execution, he conſidered that life was ſweet, and skin a•ter skin, one thing after another, what would not he doe to preſerve a little momentary breath! ſends for his deare Conſort,Communis error non facit jus. True honour conſiſts in a Chriſtian ſufferance of the greateſt miſery, rather then to commit the leaſt ſinne. and cries to her as if he had beene her childe, to yeeld to the Governour, and to win her conſent ſaies; Firſt, that honour conſiſts but in the opinion of the world, and that a ſinne wholly concealed is halfe pardoned, as the Prieſts uſe to ſay. Secondly, That Spaniards are moſt faithfull in keeping promiſe, and no doubt he would ſweare never to reveale it. Thirdly, That he would be the death of him, as by the Law of Spaine he might (for any man may kill him that lyes with his wife, the provocation being ſo great. In Italy he muſt kill his wife as well as the Adulterer, or elſe he dyes for it, as being preſumed that he did it not in the way of Iuſtice, but revenge) the poore ſoule yeelds, for as Job ſaies, if this be the condition of our temporall being,The leaſt fall from grace is a fall from Pauls. that we never continue in the ſame condition, much more are our ſpirits mutable as they are more ſubtill, (not that I ſpeake this in the leaſt title to juſtifie her, for ſhould I goe about to excuſe it, it might be a greater ſinne in me then the offence was in her; as for a Lawyer wittingly to Patronize an unjuſt Cauſe, is worſe in him then in the Clyent;) Garcias had her in his power as a bird inſnared, and being weary diſmiſſes her, with a promiſe to ſet her Husband at liberty; but the Spaniard conſidering that a man or womans honour is like a great Fort, take that and you command all the reſt, tells the Priſoner that he muſt pay ten thouſand Crownes redemption, ſhe with much difficulty ſatiſfies that demand likewiſe, and was promiſed that her Husband ſhould be ſent home to her houſe the next day, but the63 perſidious Governour bethinking himſelfe what danger he might incur from the Emperour, and fearing that the man might be revenged on him (for dead men doe not bite, therefore in ſome places of Italy you may have a man killed for five ſhillings, but not cudgelled under twenty) ſent a Prieſt to him to prepare himſelfe for death, and cauſed his body divided from his head to be ſent home the next day in performance of his promiſe; now for the poore ſoule to ſee her ſelfe deprived of Husband, Honour, and goods altogether, her griefe was above expreſſion, and the torment the greater that if it were diſcovered ſhe would be abhorred; and if concealed, it could not be cured; at laſt with extreame ſhame ſhe made it knowne to a friend both able and faithfull. Hercules Eſtius.Now the Duke of Ferrara being Generall for the Emperour, Aemelia preſents her requeſts for Iuſtice againſt Garcias who was convented at Ferrara, and thinking that as the Adultery of Mars and Venus ſerved onely for ſport in the Court of the Heathen Gods, thought that the Generall would but laugh at the conceit, or at the worſt would remand him to his Command at Milan, perſwading himſelfe that in ſuch a caſe his Souldiers would not let him ſuffer, he confeſſed the fact, ſaid it was ſo pleaſing a ſinne, that it was impoſſible he ſhould ever repent of it, and upon the matter told the Generall that the Traitor was deſervedly executed, and therefore he was not troubled at what might be the event of it. Saies the Duke, Why am I made great but that I ſhould doe Juſtice upon the greateſt offender? Garcias ſaid the Duke, you muſt reſtore to this Lady her raviſht honour. Sir, ſaies he, That is impoſſible, and what's paſt helpe, ſhall be paſt greife. But you may Marry her, ſaies the Duke, for you loved her once, and you muſt love her for ever, or loſe your life, and that you ſhall doe this day. I loved her indeed, ſaies Garcias, as Herod loved Mariamma, or as the Hunter loves the Veniſon to make ſport or to feed upon it, but I am not prepared for death, therefore I chuſe rather to Marry her. Aemilia upon her knees intreates that ſhe may64 rather dye then Marry him whom ſhe ſo much abhorred. but the Duke having whiſpered with her, ſhe ſubmitted to his good pleaſure. The ſame Prieſt joyned them together, (by vertue whereof ſhe was intitled to his Eſtate) and of a forced bargaine Garcias hoped to make the beſt of it, but that which was as luſhious as Locuſts, proves as bitter as Coloquintida, for the Duke adjudged him to loſe his head inſtantly, and the ſame Prieſt appointed to prepare him for that fatall blow.
And bleſſed be God for any good beginnings in this kind, which the eyes of good men behold with comfort, both at Weſtminſter, and this new election of Councell in this renowned City, the Hieruſalem of England. Of which famous City our Profeſſion being ſo much indebted to it, I muſt in duty ſay thus much of it, it is the Ieruſalem of our England, and now the receptacle of the Saints; the Lord hath had in all ages, ſome hiding-place for his people untill his indignation be appeaſed, and where but here? A ſtrong argument to me in all theſe Commotions, that the enemy ſhould never ſet his dirty foot upon this Virgin City, it is an Epitome of the whole Land, the heart of the Kingdome, the Chamber of the great and moſt Honourable Councell, and the nerves and ſinewes of our juſt defenſive Warres; and next under God, and our Worthies in Parliament, the chiefe preſerver of the whole Kingdome, and now in true eſteeme the moſt glorious City in all the world,Fateor naevos in vultu veneris but I ſpy a mole in the face of Venus; Beggers are ſuffered in our Engliſh Iſrael; Oh the fearefull noiſe that the poore Priſoners make for bread, for bread; the hydious noiſe that was made at the Sacrifice to Molech that the childrens skrikes might be drowned, is nothing to it,Audio vocem eſurientis. becauſe we are Chriſtians; what Engliſh heart but muſt cleave if it were a Rocke, melt if it were Ice, ſoften if it were Iron, diſſolve if it were a Diamond? to heare a poore ſoule in ſuch anguiſh of ſpirit bitterly cry out; Oh Bread, Bread for the Lord Ieſus Chriſts ſake, Bread; we are a great company of poore Priſoners, almoſt ſtarved and65 pined, (as if their Soules were ready to take their flight for ſuch unkinde uſage) did not cuſtome take away the ſcandall of it, and inure us to it, as thoſe that can ſleepe quietly neare the Catadupes and great falls of the water of Nilus; ſhall we deny bread to thoſe, or to any for whom Jeſus Chriſt ſhed his precious blood, having ſuch plenty as bleſſed be God we ſtill enjoy to admiration, and profeſſing our ſelves bretheren of the ſame faith? Indeed for Priſons, the Banquet is a moſt excellent compoſition of Charity, but I feare many are in extreame want, it may be ſuch as are aſhamed to begge; truely ſince by our Law (which is contrary to the practice of other places) the Creditor is not bound to maintaine the Debtor, whom he has diſabled from geting his living; it lyes much upon the Governours that no man want Bread and neceſſaries, one man is thruſt downe into the Hole not having two pence to pay for his Lodging,Is not this againſt the Commandement. another ſtands at the Gate blowing his fingers, becauſe the Creditor will not let him get his living by the ſweat of his browes, a third lives upon the Basket, that had he his liberty might releeve others, as formerly Merchants have done; now truely if it ſhall appeare that any man ſhall fraudulently, or ſubdolouſly get into his hands another mans eſtate, I thinke he ought to be ſeverely puniſhed, as in Roan, a Father and two Sonnes were executed as decoctors and melters of other mens Eſtates,Decoctores bonorum al•orum ſuſpendantur. that had borrowed ten thouſand pounds not being worth a Groat, nor any probable poſſibility to be ever able to ſatisfie; but for a Merchant that has loſt his Eſtate by the immediate hand of God, through ſhipwracke, or other caſualty, to be perſecuted upon the Statute of Banckrupts, and the Wife to be examined againſt the Husband, and if twenty pound be concealed to preſerve a numerous family from ſtarving, to be ſet upon the Pillory, and loſe an Eare (whereas if right reaſon might take place, the Banckrupts Wife ſhould be provided for in the firſt place, according to the Portion ſhe brought, it being the moſt ancient and primitive Debt, a66 man being more ſtraightly bound to his Wife and Children then he can be to any Creditor) and after all this to lye in Priſon perpetually. Scripture priſons were for cuſtody, not puniſhment.Oh that we had the tender bowels of our Father, and would ſeriouſly ſtudy, Mat. 18.23. that famous Parable or ſimilitude. But ſome object, that little Money will be lent upon ſuch ſecurity, truly I am confident there would be more honeſt Bargaines, and leſſe fraud, and how was it amongſt the Jewes when there was a yeare of Jubile, that all Debts were releaſed the ſeventh yeare? now the word fraud puts me in minde of a good remedy to prevent it, which is, that there might be an Office in every County, to Regiſter all Leaſes made for any Land in that County, and indeed all conveyances whatſoever, and all charges upon the Lands, and all Bonds and Contracts of any great value (for 'tis a hard matter to finde out Recogniſances, Judgements, Extents, and other Charges, and too chargeable for the Subject) that ſo for twelve pence or ſome ſuch ſmall matter, every man might know in whom the intereſt of Land remaines, and what incumbrances lye upon it, and every Eſtate or Charge not entred there to be void in Law; but then ſaies a miſerable hunkes, My Eſtate will be diſcovered, and what will become of truſts? truly till about thoſe unquiet times of R. 2. and H. 4. we reade of few truſts or uſes, and if it pleaſe God to ſettle a well-grounded Peace, (as I hope comparing what has been done with what is to be done, two parts of the difficulties are ſurmounted) I know little uſe of any private truſts, the ſquare dealer cares not who ſees his Commodity. No doubt it were a happy thing if every mans Eſtate in the Kingdome were generally knowne, then he that is not worth a Groat would not goe in a garbe of five hundred a yeare, and incurre Debts irrecoverably; another hugs himſelfe that he can couſen mens expectations, making men beleeve by his old ſhooes that he is not worth five pound, when he has thouſands in his Coffers;As the Gebeonites. Ioſ. 9. of which diſſimulations the latter is the worſe, it being better for a woman to67 paint then to blurre her countenance. It is to be wiſhed that the poore ſoules of Priſoners were better fed,Elemoſina cordis manori eſt quam corporis. that ſo the loſſe of their Temporall liberties might be recompenced by ſpirituall advantages, though to the praiſe of this place be it ſpoken, that here are Miniſters appointed for moſt Priſons, but in Country Goales it is ſad to conſider their deplorable condition, a ſmall matter yearely laid upon every Towne in the County would maintaine a Miniſter for the Goale,Five ſhillings a Towne. who by love might gaine much upon their ſpitits (for truly when all is done the way of love is the beſt, and a more winning way, and if any thing about, yet the faireſt) when the poore wretch ſhall ſee that the Magiſtrate loves his ſoule, and is ſorry for his miſery, and would not puniſh him but that the neceſſity of Juſtice exacts it; now till this be effected, why may not the Priſoners where there is no danger of running away, goe out with their Keepers to the publike Preaching? or if not all, why not ſo many as can be conveniently attended upon? It will be ſaid that this might be conſtrued to be an eſcape in Law; What? if a poore Priſoner ſhould goe out in the morning on the Lords Day, to ſerve God, and returne at night, will any Creditor be ſo divelliſh to Count that an eſcape? As if like one that had the Peſtilence, he ſhould envie the ſalvation, and wiſh the deſtruction of his Chriſtian Brother, whom ſurely he reckoned ſo at firſt, or elſe he would have had no dealing with him.
There is ſome queſtion about Arreſts on the Lords Day, but I thinke the queſtion ſhould rather be, whether any but Accomptants ought to be impriſoned for Debts; there is I confeſſe a difference taken in our Bookes,67•25. on 27. E. 3. 9 Rep. 66. Mackallyes caſe that no judiciall act may be done upon the Lords Day, but that miniſteriall acts, ſuch as to Arreſt men may be done; the reaſon is rendred, becauſe it is a good thing to doe well upon the Sabbath; certainly there is more dexterity of wit, then ſolidity of Chriſtian Judgement in this difference; I am ſorry the reverend Author ſhould put a Briſtolſtone68 amongſt ſo many diamond Reaſons as are in that caſe, what manner of reaſoning is this? A poore man in debt would faine ſerve God upon the Chriſtian Sabbath if he might goe free from Arreſt;The Law priviledges men going to Faires cundo morando redeundo. no, ſaies that Booke, if you goe to the Market for your Soule you muſt be arreſted, and ſo the poore man it may be drinkes away the day, and ſplits his Soule even upon the rocke of diſpaire, and whether this be not a breach of the fourth Commandement, judge you; for this is an everlaſting rule for all Chriſtian Magiſtrates, that whatever any mans offence be, they muſt take care for that mans ſoule.
I am perſwaded that that which was formerly ſpent in Pageantlike vanities upon a Lord Mayors day, would have fed all the mendicant poore about the City; I profeſſe, conſidering what fopperies are beyond Seas, a man might well have askt whether the Lord Mayor was a Chriſtian, or did honour to ſome Heathen Deity? but bleſſed be God the moderation of this City is knowne, and beloved of all good men; me thinkes a crowne a houſe within the Line, advanced by the Landlord, ſhould make a comfortable proviſion for all the Beggers; I know the ſtreetes in that populous City of Paris were ſo covered with Beggers, that as you walkt along upon their Holy-daies you might have imagined your ſelfe in a continued Hoſpitall; one Gedouen, famous Gedouen Provoſt of the City, a compaſſionate man prevailed to lay a Leavy of five ſhillings a houſe throughout the City, wherewith the Beggers were cloathed, thoſe that could worke imployed, the impotent provided for, that in a moneths ſpace a Begger was as hard to be found as a Wolfe now in England, or as I hope ere long it will be to finde an Enemy to the Kingdome in the bowels of it; we have many excellent Statutes to this purpoſe,42 Eliz. which are in ſubſtance the Law of God, and can never be repealed; and were there once no Beggers in London, I ſhould have ſome probability to nouriſh my faith that it would be Univerſall, for this69 City is an excellent Copy for the whole Kingdome to write after. I heare others complaining of numerous Priviledges, but I hope the Noble Peeres, and worthy Patriots will not renounce their legall rights to gratifie a company of old Uſurers, or cozoning oppreſſors, (for I obſerve, that thoſe which are conſcionable in lending are curteous in forbearing) and at that word Uſurer my heart riſes, and is ſo brim full that it muſt needs a little run over; poore Soules, they loſt a fifth part of their comforts when Money was reduced from Ten to Eight, cruelty is their Genius, but I hope that Trade is not long lived, Luther thunders againſt it; indeed, ſincere Calvin uppon occaſion of many Engliſh mens flying for Religion to Franckford and Geneva, taking ſome Money with them intreated the Bankers to allow them three or foure in the Hundred, becauſe they knew not how to imploy it; but he delivered his Opinion with many cautions, ſo as the lender gaine by it, and be well able to pay it, and ſo as none be offended by it.
It it the honour of our Nation that the Practice of Uſury is not by any Law allowed,13 Eliz. 8. 39 El. 18. 21 Jac. 17. in point of Religion or Conſcience, and the words of the Statute are, That all Uſury being forbidden by the Law of God is ſinne, and deteſtable, and therefore enacts, that he that takes leſſe then ten ſhall forfeit the intereſt though it be under eight, which is in force to this day, and might be of ſingular uſe, if the proceedings by way of information or action were quick (but in truth they move like ponderous bodies, it is rolling a Stone upon a Hill, and if there be the leaſt miſtake down it tumbles upon the Plaintiffe) to compell men to deal like Chriſtians, who worſe then Jewes cry out for Intereſt in theſe ſtraight times, from their Chriſtian Brethren, who have been plundered of all in the Country, driven from their habitation, ſcarce having food and rayment, and where to hide their heads, and yet the Uſurer cries I have nothing to live upon but my Uſe, not conſidering that the Debtor hath neither70 Uſe nor Principall; and this is true in caſe of Sureties contrary to the true intent of the ancient Law, that the Surety ſhould not be queſtioned but in default of the Principall,Si defeceris principalis. untill the witty Arch-Biſhop Keeper being angry with a Surety ſaid, That he that was firſt in intention ſhould be firſt in execution, and for his conceit ſake ſent him to the Fleet, though the principall was able to have made ſatisfaction; beſides there are too many evaſions out of good Statutes; if a man give Bond of an hundred pound for a Horſe not worth ten pound, this, they ſay, is no uſurious Contract. An old Uſurer delivers twenty pound to a young Heire, and an old Bond of eighty pound not worth ſixe pence,Morſura non uſura. who gives Bond to pay one hundred pound, this is divelliſh biting, but it muſt not be called Uſury within the Statute, though I conceive it cleerly within the intent of the Law-makers. When we object ſtewes againſt the Papiſts, they ſay they will ſuppreſſe them, when Proteſtants forbid Uſury: but I doe not ſay any thing againſt a tolleration of it, in caſe of Orphans; neither doe I make any queſtion but that in great and weighty matters a Kingdome may allow eight or ten in the Hundred, to get Money to preſerve it ſelfe; fot in caſe of neceſſity it was lawfull to eate the Shew-Bread, and for Adams Sonnes to Marry with Adams Daughters, beſides what the wiſedome of a State ſhall conclude upon in ſuch caſes cannot be thought prejudiciall, but that which I drive at is, that rich men in theſe daies make it an Inſtrument of oppreſſion, he that would be fully ſatisfied, let him reade a Booke which I finde written by R. F. of Graies Inne, 1611. I beleeve the moſt judicious that ever was concerning this Subject; now to reſume the matter of Priviledges, which are private Lawes to be maintained and defended as well as the Publique, ſome Noble Peeres deſerve much Honour in maintaining their ancient and undoubted Priviledges, and placing their legall favours upon fit Objects; if any of their followers be any way ingaged, they ſatisfie as they are71 able, and the Creditors have returned their Lordſhips humble thankes for ſome Hundreds of pounds paid by the Creditors, who had never paid a penny had they been impriſoned; others may thanke that Noble Knight for their Debts, who for his clemency and commiſeration entended to poore Priſoners, deſerves to be ſtiled, The Humaniſt of England.
And here I would humbly beſeech thoſe Honourable Perſonages who are moved to grant Habeas Corpuſſes for poore Priſoners in Execution, to goe abroad in vacations, (either like Bees to fetch in a little Honey to the Hive, gathered from the flowers of their friends charity, or to get in their eſtates which is a hard matter; for every man concludes that nothing can be due to a Priſoner) Chriſtianly to conſider whether they can ſo cheerefully anſwer the deniall thereof, as the granting of them at the day of Judgement; when it will be eaſier to anſwer an errour of Indulgence and mercy, then ſeverity and ſtrictneſſe: The Reverend Judges fitting for Lord Keepers granted many, and Creditors found the benefit of it,Hutton, Harvy, Crooke, Vernon, &c. and when preſidents are various it is preſumed for liberty, in Mitiorem partem, much may be ſaid in favorem libertatis. for no man will returne to a Dungeon if he can ſatisfie; the Bird will not come into the Cage unleſſe enſnared. But Habeas Corpuſſes have been abuſed, ſaies the Creditor, truly if he may be Judge it is in vaine for the Priſoner to plead not guilty; But what has not been abuſed? have not the Sunne, Moone, Starres, nay Women, Wine, and all things ſublunary been abuſed? me thinkes theſe neceſſitous times ſhould be as a golden Key to open the doore of hope for poore Priſoners, it being almoſt a Proverbe beyond Sea, or rather a progidie, that an Engliſh Uſurer may have as many ſlaves as he pleaſe, though a Lord could not impriſon his Villaine; and it was reſolved that a ſlave brought from Ruſſia by an Engliſh Merchant was inſtantly a Free-man, comming upon Engliſh ground, and breathing our pure ayre.
And now concerning the neceſſary and laudable recrute of the Honourable Houſe of Commons,11 Eliz. Cartwrights Caſe, Camb. who may72 juſtly ſay,The Motto of a Commoner like a glorious Torch, Aliis inſerviendo conſumor. We conſume our ſelves in giving light to the Kingdome. Anonimus brings in a floud of words, but not one drop of reaſon to make good his aſſertion, that Lawyers are not fit in this comjuncture of time to be choſen Members, the weakeneſſe whereof will eaſily be diſcovered by the ſtrength of reaſon and authority, which are the two inſtruments to confirme all truthes; in reaſon we ſee with our owne eyes,Sapientis eſt propriis oculis videre. in matters of Authority by other mens; the Divine begins with reaſon, proceeds to experience, and ends in Authority; the Phiſitian begins with Authority, proceeds by reaſon, and concludes in experience; the Lawyer begins with Authority, proceeds to experience, and ends in reaſon; therefore for the diſcuſſion of this point, I ſhall begin with the Authority in the laſt inſtitutes, the words are theſe: At a Parliament holden at Coventry, 6 Hen. 4. by colour of an Ordinance made in the Lords Houſe, in 46 Edw. 3. it was forbidden that no Lawyer ſhould be choſen Knight, Citizen, or Burgeſſe, by reaſon whereof the Parliament was fruitleſſe, and Lawyers ever ſince for the great and good Service of the Common-wealth have been eligible;Corpus cauſidicorum eſt ſeminarium Magiſtratus. now let right reaſon be Judge in all things, the Innes of Court are the Academy of the Law, and the body of the Lawyers is the ſeminary of all Magiſtracy.
Does not the Supreame Power governe the Kingdome by Law, and are any ſo fit to be Law-makers as thoſe that muſt be the Executors and Diſpencers of them; King James (who certainly was the Phaenix of Princes for ſubſtantiall learning) admires the wiſedome of our Lawes, that the Judges have no Vote in Parliament, and the Pen of famous Bacon is of that Judgement, the excellency of that obſervation in my weake apprehenſion lyes very deep, I want a Bucket to draw, can any man declare the meaning of an Act of Parliament ſo well as the makers? who knowes the ſpirit of another man ſo well as himſelfe? the reverend Judges are bound to expound Statutes according to the minds of the Legiſlators, otherwiſe they73 that are at the oares, rowe contrary to him that ſits at the helme, & then the Ship of State would quickly be in danger of drowning. That the knowledge of out Municipall Lawes is not a neceſſary ingredient to the conſtitution of a Statesman, is a fundamentall errour in Politiques; I doe not hold that Reaſon is circumſcribed within the limits of our profeſſion & perſcrutation, but I am confident that the common Lawyers of England are as underſtanding rationall men as any Practiſers of any Profeſſion whatſoever be in the world, and I dare ſay that there are more Godly Religious Lawyers, Attourneys and Solicitors in England, then in all that habitable part of the World, called Chriſtendome;
But my Adverſary would faine make his Ignorance ſeeme Iugdement, I know not why he mentions Calice, I confeſſe I do not love the leaſt gall in inke (the rather for that any thing I know to the contrary he may be an honeſt man and a good Chriſtian, though in ſome things erroneous) I ſhould tell him that he miſtakes our Lawes As the Prieſt when we loſt Calice, took our Engliſh brawn for ſturgeon, and eate it luſtily in Lent, and ſent for more Engliſh Sturgeon; I can by that little knowledge I have in the Common Lawe tell the Civillians that our tryalls by Jury are more excellent then theirs by Witneſſes onely: for how eaſie a thing is it,It is a merri•Story in Hollinſheds reigne of Queen Mary. in a 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 uſefull74 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. p•r excellentiam. who for breaking the Ice in that perticular deſerves much commend•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 on75 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,R•pente ex••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 beleeve76 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 party threatens to deſtroy the Parliament, and ſo to drye up the fountaine of all our lawfull Libertyes; the Parliament deſires not to diminiſh his Majeſties juſt grandor, but to defend themſelves and the Kingdom from violence and oppreſſion; For what ayme can a Houſe of Commons have but the Common good?
But I leave that & bleſſe God for what I ſee of ſome new elections of honeſt & religious Lawyers of our ſociety; my life upon it Anonimous, they will have no deſigne but the Kingdomes happineſſe: I tell thee none ſo fit as ſuch Laweyers to be elected; I doe not one whit diſparage Gold when I ſay a Diamond is more valluable, but I will make no ſuch difference, this I know I may ſay without offence, that an honeſt Lawyer is as a 22 s. peece: and an honeſt Gentleman as a 20 s. the reaſon is becauſe he is both a good man and a Lawyer; now a double ſufficiency & abillity muſt alwaies be preferred before a fing•e.
I would not ſo much adviſe as intreat my dear Countreymen that they would ſerioſly conſider that the happines of77 this Kingdome is principally wrapt up in good elections it being of as great publique concernement for Countyes and Burroughs to chooſe worthy Patriots for Knights and Burgeſſes as the choyce of a wife is for any mans private happineſſe, wherein once to erre is to be undone perpetually. And therefore to be exceeding carefull to chooſe men well principled, for truly if there be not the Anchor of ſincerity a principle of grace above pure naturalls it is a gre•t marvaile if ſuch men be not carried away with the winde & tide of private advantages: looking too much after the cock-boat of particular pecuniarie or amicable intereſts and ſo neglecting the ſhip of Sate.
Men of publique ſpirits that have been active and faithfull in times of greateſt danger; It is all the juſtice in the world that thoſe which have ſuffered moſt for the Kingdome ſhould be honoured by the Kingdome: not to chooſe lookers on much leſſeaaIt was a moſt gallant ſpeach of My much honoured Lord the Noble Earle of Deubigh, that if his Lordſhip knew of one drop of Malignant blood tunuing in his veines he would let it out himſelfe. Malignants or Neutrals, which wiſe Solon could never indure, as judging them rotten-hearted to the State that lay onely upon advantages to joyn with the ſtronger Party. Then FaithbbSpiritus Regenerationis et Regiminis faciunt felix Maritaginum. & Faithfulnes being premiſed the more humane learning, the greater parts, abillities & indowments in all other reſpects both mentall and corporall, the better it muſt needs be without exception: becauſe humane learning is conſecrated and appoynted by God for publique government; and certainly, he that undertakes ſo weighty a buſineſſe with feare and trembling, and a Godly jealouſie over his owne heart and abillities, continually imploring Caeleſtiall aſſiſtance is the likelieſt man to be inſtrumentall for all our happineſſe; forccAs ingenious Mr. Withers obſerves who hath prevented me in this ſubject in many juditious Obſervations and directions. Had it not been for our Renowned H•mdens, Pyms, Goodwin•, non•e actum fuiſſ••de Libertatibus? truly to be a Parliament man requires a piercing judgement, and a deep foreſight into publique adminiſtrations, this I would onely begg of my deare Countrey men that in doubtfull caſes when many may juſtly be elected, that they would allwayes preferre him who in the conſtant courſe and tenor of his life hath given largeſt teſtimony of his love and affection to God and goodneſſe; for truly Ieſus Chriſt hath ſaved the Kingdome.
78But if all Electors ſhould not walke by that rule, it does not any way reflect upon the non elected, no more then when two noble Gentlmen court a worthy Lady where one muſt needs have a deniall He that in the ſincerity & integrity of his heart deſires to ſerve God by ſerving the Kingdome in a publ•ck way if he be lawfully called thereunto internaly by God, & externally by man, he may l ve with content, and ſhall dye with comfort; as the wiſe Venetian that was not called to the Senate ſaid, I rejoyce that there are 500. abler men in the Citie then my ſelfe.
It is a moſt happy condition to be ever doing good, and to be juſt & ſerviceable to our generation in ſincerity without hipocriſy; but what paines ſoever any man takes for his Countrey it is but cracking an hard ſhell, the kernell is his owne, ſweet content here, and perpetuall manſions hereafter;Vendidit hic auro Patriam. As on the contrary Traitors to their Countrey, Subverters of Lawes and Libertyes will be placed in the worſt chambers in Hell before ſelfe-Murderers.
As for Reformation in Courts of Juſtice where any thing is amiſſe, I proteſt it is my higheſt ambition, I ayme it in my profeſſion, there is an envious opinion which I would fain remove; that Lawyers are enemyes to Reformation in matters of Juſtice. I am ſure every honeſt Lawyer heartily deſires the good of his Country, & whatſoever the Parliament ſhall conclude moſt conducible to publique juſtice. I hope we ſhall embrace with all alacritie knowing that we are a conſiderable part of the Kingdom, & what is good for the whole body muſt needs be good for every part of it; Indeed if there be any malignant or newtrall Gown-men or Swordmen that have publick imployments, & high Places.
•erdate v•i••iori. ••iſta loqui•qui eſt om•homo. •t conſpira•ta Daemonia.Take heed Gentlemen ſaies the Italian, when a Jeſuit comes to aske any queſtion: for where great parts and little honeſty concurr, then Caveto be your Councellor.
And truly that word Sword men puts me in minde of our pretious Armies, which no doubt are dear to the remembrance of every good man, as the moſt vertuous Lady to an inamored Suitor. It would be a very unrighteous79 thing, and me thinks blame worthy to forget their extraordinary labours of love, and to conclude a Lawe treatiſe, or indeed to write any booke without an Honourable remembrance of them that have been ſo inſtrumentall to maintaine our Lawes and happy Government; For I know no greater Argument to perſeverance, next to an inward Principle of goodneſſe, then that honeſt men are fully perſwaded that a man is juſt and gratious; for a great ingagement lyes upon him to anſwer expectation. Greater love did never any Nation ſhow, then the moſt honoured Brethren of the Kingdom of Scotland to come in ſo freely to help the Lord againſt the mighty; the Lord recompence it, and all the good that they have done for us unto them, with all Spirituall and Temporall Benedictions.
What Laurels of honourable Prayſes are due to the moſt Noble late Lord Generall Illuſtrious Eſſex & to numerous gallant Commanders under his Excellencies command, Oh that we had an Homer to ſing the praiſes of every good and great Achilles.
The King of Sweden was wont to ſay upon the death or change of any great Commander, that when God rides poſt for the good of his Church: he uſes many times to change horſes that one may not have all the honour; many of our Centurions have done ſo gallantly that many Volumes cannot containe their juſt praiſes: therefore I intreat their pardon that I doe not name any in perticuler leaſt I ſhould not pay them half their due, & ſo be thought to exclude the reſt, dear Soules, they have marched many a myle to ingage for us, therfore if I make a little digreſſion to teſtifie my honourable reſpect to them, it cannot be thought unreaſonable.
Concerning our Noble Generall, whom I truſt ſhall ſhortly have the Olive for his juſt Guerdion (for I hope we ſhall not long continew under the Malignant conſtellation of Mars & Saturne, as Crowes amongſt Carcaſſes but every honeſt man ſhall live peaceably under the gratious influence of Iupiter & Venus) for matters of millitary prowes &80 gallant valour; I need not ſay any more but that he is the ſon of the Right Honorable the Lord Fairfax, and of the noble Daughter of the truly Noble Earle of Mulgrave.
And here Duty and Gratitude muſt make a parentheſis, I cannot mention this good Earle without an honorable remembrance in whom Greatneſſe and Goodneſſe keepe their cohabitation: for having had the honour to adviſe his Lordſhip concerning his eſtate, I finde a mine of wiſedome in his noble minde; our late Soveraigne King Iames rejoyced at his magnanimous comporting the loſſe of his three noble Sonnes: The Relation whereof deſerves a whole volume, one ſaying was moſt remarkeable: that Ieſus Chriſt my Saviour dyed without iſſue;Salvato meus mortuus eſt fine exitu. how zealouſly affected his Lordſhip hath been for God and his Countrey ſince 88. I am ſure all good men love and honour him for it; Indeed the Piety Humillity and chaine of Graces in the noble Counteſſe and the vertuous Ladyes (wherein all their ambition is to excell one another) far exceed the moſt invaluable Diamons and Iewels, and to ſay much in little So much as a man brings of Chriſt with him thither; ſo much welcome there.
Now that I may be true to my firſt principles, I ſhall ſay nothing of his Excellence but in relation to Ieſus Chriſt. This fully diſcovers the excellency of our Noble Generalls ſpirit, that deſerving ſo much he will not take the leaſt honour to himſelf, but all muſt be aſcribed to God & thoſe numerous victoryes looked upon as love tokens from Heaven handed over by the Lord Chriſt, as forerunners of that abſolute Victorye which He will have over all his enemyes, and rejoyces ſo far form as God makes him inſtrumentall for the good of the Kingdome.
What an honour is it to command them who command themſelves,Omnis denominatio ſumiter a digniori vel a Majori. and thoſe whom the Angels rejoyce to ſerve, and for an Army of Lyons to be commanded by a Lyon, who is commanded by the Lyon of the Trybe of Iudah what Anti-Chriſtian Power can make reſiſtance, when it pleaſes God to lead them by the hand, who hath promiſed81 to ſtand at the right hand of his ſervants, and will honour them that ſo unfainedly out of right principles by true meanes and for glorious ends honour him.
I cannot but take notice that our Noble Generall is of Graies Inne, nor can I forbeare a general remembrance of many precious gentlemen in the Army of the ſame ſociety in whom the ſeeds of vertue have bin ſowne even from their yeares of diſcretion.
I wiſh many Armes were taken downe from our Hall windowes, and theſe noble Gentlemen placed in their roome, for as hee that fights for the Law,Ex parte Dei et ex parte rei. Annot. 2. Tim. 4.7. Lachrymae ſunt ſudores cordis. wins an honourable eſteem, of all good men, ſo they that oppoſe the Law ought by the Law of Armes to have their Coates removed, and juſt as I was writing, there comes newes to mee that there is one heavenly light more in Heaven, ſweet Colonell Pickering having fought a good fight and kept the faith, and profeſſed a good profeſſion before many witneſſes hath finiſhed his Courſe, & received his garland even a Crowne of righteouſneſſe,Sir Gilbert Pickering one of the noble Knights for Northamptonſhire. and were it manly the ſweat of my heart would blot my paper, and were it not that pure love cannot conſiſt with much greife when the party beloved is made a Saint, and that his noble Brother carries al the graces and vertues by ſurvivorſhip, they being joynt tenents of them all, his loſſe ſhould ever be green in my rememberance.
What actings of faith do we heare of for the taking of ſtrong holds from the Enemies; that gallant Gentleman ſecond in command (who feares nothing but to offend God) at the ſtorme of Baſing, being acted with the ſame ſpirit that the propheticall Pſalmiſt was confident that God would enfeeble the hands and legs of Popery,Pſalm. 115. •. and that their Idolls were but vanity, and not only then, but many other times the Lord hath graciouſly ſaid unto them according to your faith, ſo be it unto you.
The Generall queſtion is ſtill, what is the minde of Ieſus Chriſt in this particular, was there ever ſuch glorious things done by faith ſince the 11th. of the Hebrews.
82Oh what heavenly breathings of the ſpirit and religious Conference is there in the Army! when will Sion be eſtabliſht in perfect beauty ſaies one, when ſhall Ieſus Chriſt be ſet gloriouſly upon his throne ſaies another, God can ſave by one as by many ſaies a third, lets do our worke and truſt Jeſus Chriſt for our wages, ſhall we think much to looſe our blood for him, who has ſhed his precious blood for us? Jeſus Chriſt tooke Briſtoll; no Iron barres can keepe out Jeſus Chriſt, if we die, we live, and our Indentures are but given us in a little before their ordinary time, with many ſuch ſweete divine expreſſions that they are in heaven upon earth, abounding in that excellent grace of ſpirituall reſignation in all the diſpenſations of divine providence, the hand of God is allwayes good, and his time is ever the beſt; that I am even raviſhed at the apprehenſion of them, never having heard the like, unleſſe it were in that moſt comfortable ſpeech of that deare ſervant of Chriſt, Mr. Burton at his ſuffering the like glorious manifeſtation of the ſpirit in my oppinion is not legible, in Mr. Foxes worthy labours, beſides a moſt admirable ſpirit of love Commands as in cheife throughout the Army, that I heard a gallant man ſay it were worth riding 5000. miles to behold it, but I ſhall turne my prayſes of them into prayers for them that not a haire of their heads may periſh, though truly I do not ſo much praiſe them as the gifts and graces of God in them, whereſoever we meete Jeſus Chriſt and ſee but the leaſt dawnings and breathings of 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 there83 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 ſhould84 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.
85But 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 whether86 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 of Honour to determine ſuch difference, for many men care not what they ſay, if the words bee not actionable, and a Gentleman may be called Devill, Knave, Rogue, Raſcall, baſe paltry fellow, Jackſtraw, and a Ventum ſadi, Jade, Witch, Whore, and many other barbarous provoking ſpeeches, (which for the preſent are not fit to be knowne, therefore I forbeare to mention them,) which being not actionable, the parties provoked fall to ſtriking, to reſcue their raviſht honour, and ſo take the ſword out of the hands of Juſtice, to the great diſhonour of Government and many cunning fellowes will purpoſely give ſuch Curtiſh language to ingage men to ſtrike, and ſo to bring an action, and then the Law is defective in this, that he that is ſtricken may beate the ſtriker outragiouſly, and yet may juſtifie in his own defence, wheras between one blow and twenty there is no equality of reaſon.
But when a man is diſhonoured by words, Actionable, the Law is ſo tedious, mens ſpirits being inflamed and inraged during the ſuite, and hazardous, that a quiet ſpirit has little minde to ſue, beſides the judgment of reparation is left to i. e. men that underſtand common honeſty, but are not ſenſible of honour and reputation with us, the very life and bloud of a Gentleman and the ſweeteſt flower in every mans Garden, therefore it is requiſite that Juſtice in theſe caſes might bee don in a more ſummary way, that having ſeriouſly conſidered.
1. The occaſion (if juſt or unjuſt.)
2. The perſons (if inferior or ſuperior.)
3. The times. And
Fourthly The places, whoſoever has ſcandelized or diſparaged any man that the wronger bee adjudged to aske him forgiveneſſe to unſay it publikely, and if he be damnified in his eſtate, to repaire it, and his eſtate ſeized for the money, and himſelfe impriſoned during his contempt, and87 to be eſteemed of all honeſt men, a barbarous rude and uncivill perſon, unfit for civill company, and humane ſociety, for men that will not ſubmit their action to bee tryed by Law (which is the Levell that all good men deſire to walke by) and by Juſtice which is the chiefe of all the vertues (it being but juſt and reaſonable that every man that wrongs another in any kinde ſhould make him ſatisfaction to his ability) are fitter to live amongſt Beares and Tigers, then in a well governed Kingdome, and if this be not according to the minde of Ieſus Chriſt, I ſhall retract it upon conviction.
Kinde Reader;
There is a late Treatiſe ſet forth by William Ball of Barkham Gentleman, intituled The Sphere of Government; wherein, there is one dangerous opinion, (Like a Fly in a Box of Oyntment) he puts a Caſe by way of ſuppoſition, that ſuppoſe the King and Parliament ſhould make an Act, that they would and might diſpoſe of all Subjects eſtates in Engl. and that they might take from whom they pleaſe and what they pleaſe, in ſuch an impoſſible poſſibility, as he ingeniouſly cals it, he anſwers, that the Counties might & ought firſt to Petition (and ſo far I agree with him in it, being an humble tryall and commendable way but addes further that if it be not remedied, then they may declare and proteſt againſt it, if violated, then they may defend themſelves by Armes.
I would not willingly conſtrue any mans words beyond his meaning, but this I muſt ſay, that it is an expreſſion of more dangerous conſequence, and more derogatory to the juſt power of that ſupreame Court then any thing that I have ſeene or heard this Parliament; for doe but imagine any refuge or ſhelter from that which the ſupreame Court ſhall declare to be juſt in civill affaires, and you inſtantly erect a higher tribunall, which muſt bee as prodigious as many Sunnes in one Firmament (as Jupiter ſaid if the Sunne ſhould marry and beget another Sunne, there would inſtantly follow a generall condagration and burning up88 of all things) for if the people ſhould but once drinke in that error, that the Parliament is not the ſupreame Judicature in all caſes, but that they may in ſome caſes araign the greateſt Court no man ſhall weare a new Garment, then ſadde diſtraction would be but a flea-biting to what would follow.
And whether it be in a matter indiſputable or diſputable, it will not make any difference, for if the ſupreame Court bee not ſupreame to all intents, it is not ſupreame to any intent,Magis & Mi•••. becauſe there is a higher above it; There is in the Kingdome ſo many thouſand Acres of land, either the Parliament may ſettle and determine the right of all their Acres, or not of any one of them, for there is no medium, and more and leſſe make no eſſentiall difference in reaſon, the latter whereof is ſuch a Parodox, that he that is halfe ſound in his Intellectualls, will be aſhamed to owne it, but many a man maries a Widdow that would gladly be rid of her Children.
The high and honourable Kings Bench is a ſuperintendent Court, and deales in matters Capitall, which the Parliament rarely does; yet cannot bee called the ſupreame Court, becauſe accountable for adminiſtrators irregular and illegall. The deciding point of power muſt reſt in ſome Court determinatly,Apex poteſtatis. for there is and muſt be in every Kingdome, one ſupreame Tribunall from which there can be no appeale, otherwiſe the ſtronger will deſtroy the weaker, and Civill Warre muſt follow unevitably. True it is that the Law is a rule to the Parliament, ſo long as it is in force, but any Law may bee ſuſpended or abrogated and a new one introduced and ſurrogated, as to the publike judgment of State ſhall be adjudged moſt conducible for generall ſafety and tranquillity, according to ſeverall exigencie and State emergencie, otherwiſe the Kingdome would be in a ſad condition, for the Law which is for its preſervation would occaſionally be its ruine and deſtruction. But I ſhall tell him in love, where I finde his feet ſliding hee miſtakes the nature of democracy, where the power reſides89 in the people (as all lawfull power originally is) they may nominate what Governours they pleaſe, and may preſcribe in what forme they will bee governed, but when they have ſettled a forme and elected Governours, they may not diſplace and change that Government. As for the purpoſe, Geneva is a pure democracy, every inhabitant has a voice in the election of 200. which are the grand Counſell, and they elect, 25. who elect 4. annually, this muſt endure to the day of Judgement, unleſſe changed by mutual conſent, the people in reverend Mr. Calvins time having caſt out their Biſhop, would have changed their government, Mr. Calvin tould them it was a direct breach of the 5. Commandement that he would be a paſtor of ſheep and not of Wolves and left them till they were convinced of that error, His inſtances of Arbitrators and Feoffees in truſt are lame, if they abuſe their truſt the Law provides a remedy, becauſe their power is limited, but it is impoſſible that the ſupreame Court in any Kindome ſhould bee limited nor can it limit its owne power, no more th•n a man can continue alive, and ceaſe from breathing and exerciſing other naturall functions, true it is that the body repreſented is ſtronger then the repreſentative but the legall authority is in the parliament where it has bin planted and ſettled, for many hundred yeares, and let that hand wither that ſhall ſeeke to Rob them of it for a government, there muſt be, and no human policy could ever finde out a better.
Loving Reader I pray the likewiſe take notice of a 3. leaved Pamphlet intituled newes from Hell, Rome and the Inns of Court, and believe it that, Hell and Rome are the two Elders, and the Innes of Court the chaſt Suſana, when our Clients give us a Fee, wee take it in love, as a Chaſt virgin does a paire of Gloves, ſent unto her for a love token, if the giver expect any bruitiſh thing, we abominate the firſt riſings of diſhoneſty, the Author like one of Machiavells Schollars thinkes by his over confident calumniation to make ſome thing ſtick upon our90 noble and Goſpell profeſſion but it is but ſhooting a headleſſe Arrow againſt Armour of proffe, for our profeſſion is pure Marble,1 Tit. 3.13.14 and no diſhonour can be imprinted upon it, but upon a ſecond peruſall of it, I finde that in a Charitab e conſtruction what he ſaid may be intended, only of ſuch Lawyers that are of the Oxford party, therefore I paſſe by it.
And now Curteous Reader to draw to a concluſion, becauſe I will not trouble thoſe that need not know ſo much nor weary the intelligent Reader I have but one word to ſpeake to my adverſary which is to intreat him as a brother to retract this fond and weake oppinion as being (though I am perſwaded not intentionally yet conſequentially) deſtructive of all ſtate pollicy, or elſe truly Anonimus,Though it bee ſuch an error that thou maiſt carry to Heaven. I ſhall not bee freinds with thee that is with thy oppinion, for I will ever be a freind to thy perſon for I praiſe God J am not ſo wedded to my owne opinion as to love no man, but he that ſhall concurre with me, hee that loves another man, only becauſe he is of his Judgement loves himſelfe in that man as hee that mournes for the death of a friend, mournes perhaps rather for his owne loſſe.
If there were ſome lines of Communication, and rules of aſſociation, or ſuch principles of union that all honeſt peaceable men though of different judgements might walke with indeared affections to one another,Duraeus inclitus Scotus peregrinavit multos ann•s pro Concordia inter Lutheranos & Calviniſtas, Beati pacifici Jlluſ•rior eſt vnio, quae naſcitur ex charitate quam vnio cujus precium oritur ex raritate. till every mans ſpirituall eye ſight bee equally alike, provided that no oppinion be any way deſtructive of State policy, as tending naturally to inflamations, certainly it would exceedingly conduce to a moſt hapy reformation, I bluſh to read ſuch extreame bitter paſſages and railing invectives as daily come forh to gratifie and make muſique for our Enemyes, for ſhame forbeare or ceaſe to be Engliſhmen.
I would preſume for the reconciling of various oppinions and preventing all diſaffections as much as may bee to propound to our moſt noble Senators that learned Godly and ſweet ſpirited men might bee appointed, ſo91 ſoone as they heare of any erronious opinion (ſo generally conceaved) mildly to anſwer every printed error to repaire to the Authors, or maintainers of it loveingly to ſhew them their error and to admoniſh them convictingly whereby thouſands by Gods bleſſing may be convinced (for ſpirituall maladies require ſpiritual remedies) and the Governors not ſo much as acquainted with it, unleſſe it be a moot point, and very diſputable, and then further light muſt diſcover the nakedneſſe of it,We Lawyers know what is a breach of the peace, and for prevention let men be bound to keepe it if there be a juſt feare. for no rationall doubt can diſturbe the peace of the Kingdome as that Noble Peere who went to Heaven as in a fiery Chariot in an active Martyredome for the publique good cleerely demonſtrates in his divine treatiſe concerning Biſhops, reaſon being the perfection of every Kingdome.
What a ſtir there was in the Biſhops times about privat meetings as if poore ſoules that meet in Corners to pray (and that for the happineſſe of the Kingdome whoſe prayers no doubt were heard as being favorites of heaven) would thereby diſturbe or endanger the peace of the Kingdome, oh that ever rationall men ſhould give ſuch a Bill of divorſe to common ſence and underſtanding
This is practiſed amongſt the Pontificians with great ſucceſſe anſwerable to the Venetian policy, where when any man is injured by another the patrons of Iuſtice, finde out the party wronged,Quadruplat•res. and follow the cauſe for him to take of all vindictive proſecutoins, that every thing may be done for the love of Iuſtice, and 3. or 4. in every County, authoriſed as arbitrators generall to take up and compoſe all private quarrells and differences in a Chriſtian way of love would prevent numerous ſuits, and vaſt expences, and truly every man that profeſſes to be a Chriſtian ſhould ſtudy hard to bee a Sonne of Truth and Peace.
One thing I muſt inſert that may anſwer all objections, that whenſoever any man in humility, propounds any thing tending to a politique reformation of ſomething92 that he conceives to be amiſſe in a Kingdome, that he muſt cheerefully ſubmit unto the preſent practiſe, untill the wiſdome of State ſhall otherwiſe determine, according to that excellent ſaying, we tollerate or rather ſubmit to many things which we do not love.
Multa toleramus quae non amamus.Farewell Anonimus that I may ſpeake freely.
I think thou art an honeſt man and of a publique ſpirit, two excellent qualities for which I eſteeme thee, but in this thy zeale is not managed by right reaſon.
If any man towards the Law be unconcionable in his practiſe, the Lord worke repentance in him, ſo as to make reſtitution, as in the caſe of Zacheus, No period better then prayer, Therefore here I caſt Anchor, and bind up theſe ſpreading lines.
Additionalls omitted in my abſence, P. 17. L. 31. adde
I heare many complaints that writs of Error are not determined, truly, if any man will not pay his debts that is able, but takes advantage of the Benches Vacancy, I wiſh he were in excecution to morrow: but if poore men bring writs of Error meerly to preſerve their Liberties, it is far better for the Kingdome that they ſhould hang in ſuſpence and abeiance till domeſday:As in the Iewes divorces•Difficillimum eſt homines ampliſſima fortuna ditatos legibus•ntinere. Plato. then that any man by Indurance ſhould be diſabled from ſerving God and his Countrey in their lawfull callings and this is not 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 d•vil leaſt93 he ſhould hurt them,Ne no••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,
94P. 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 thats 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 honourab•e Houſes ſhould humbly be•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 Judge95 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,96 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 o•corruption of the Officers, or ſubordination, and perjurie of witneſſes or ſuch like ſhi•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 numb•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 on•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•he Crowne againſt the Chancery, (oh that his Majeſty would yet at the length forſaking a•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.