is delivered as from Papinian some distinction betwixt the Roman Civil Laws and the Pretorian Laws made in the same City For it is said there that the Civil Laws did consist of the Statutes of the People the Ordinances of the Senate and Decrees of the Princes with the Authority of Wise men But the Pretorian Laws were those which the Pretors did introduce to supply to help or to correct the Civil Law So is there alledged in the same Digests out of Paulus another division of Laws The first is the Law of Nature the second is the Civil Law the first is freed from Injustice the second is deemed profitable to all or the greatest part of the City and there is added Jus The Pretorian Law differing from and correcting the Civil Law honorarium or the Pretorian Law as if it were no part of the Civil Law wherein it is said the Pretor doth give Law though he doth determine unjustly having relation not unto that which the Pretor doth but to that which is convenient for him to do So that it is not to be wondered that the Municipal Laws of every Country do differ from the Civil or Roman Law or that the Civil Roman Law hath not his full force in all Countries or that it is not the only Law that governeth in any Country Because the City of Rome it self did admit some other Law to be administred within the City than that which was called and accounted their own Civil Law or Jus Civile And where there was question made before concerning the Civil Law whether the same were only the Roman Laws or as well other Municipal Laws Some Civilians do distinguish A division of the Civil Law them into two parts the Roman Laws they call Jus Civile commune and the other Jus Civile particulare To the first they referr also some Municipal Laws especially those Constitutions of the Empire since it was translated to Germany as the Aurea Bulla of Charles the 4th Also the Constitutions and Edicts of The Municipal or Civil Laws of Germany the German Emperors in their Diets or Parliaments which are reckoned and referred to the common Civil Laws because they are ordained by Authority of the Emperor and yet they are in true construction but particular Civil or Municipal Laws because they bind none but such as are subject to the Empire or to those places of the Empire for which they are made and which do submit themselves thereto So hath the Kingdom of France The Municipal Laws of France certain particular Civil or Municipal Laws made in their Parliaments which were anciently the Councils of their Kings but when the Kings of France did separate their Councils of State from those Parliaments yet the Parliaments have been held in certain Cities of France as saith Brison President of the Parliament of Paris at certain times of the year The first and principal held at Paris established by Philip the Fair or as some say by Lewis Huttin his Son the second at Tholose for Languedoe the third at Bourdeaux for Aquitain the fourth at Grenoble for Daulphine the fifth at Dijon for Burgoigne the sixth at Rouen for Normandy the seventh at Aix for Provence the eighth for Bretaign instituted by Henry the 2d Anno 1553. They have also Municipal and particular The Municipal Laws of Spain Civil Laws ordained for the Kingdom of Spain as those set down by Alphonsus the 9th And the like for that and other Countries are extant and in use The Kingdom of Scotland hath as The Municipal Laws of Scotland and of England not altogether different this Realm of England several and particular Municipal Laws differing from the Roman Civil Laws As for the Laws of Scotland they are not so far different from the Laws of this Kingdom of England as divers do conceive and that the Laws of Scotland are not altogether unlike these of England but in many points do concurr with them is not improbable For that there is a Book concerning The Law Book of Regia Majestas in Scotland like to Glanvil's Book of the English Laws the antient Laws of that Kingdom termed Regia Majestas which as some Students having read the same do affirm and as it is set forth in the Printers Epistle to Glanvil's Book do agree much and in many places word for word with the said Glanvil's Book and doth often vouch him So that it is supposed the antient Laws of both these Realms did then agree and do yet in most points which have not been altered by Statute since in either of these Realms Also King James in one of his Speeches made to the Knights and Burgesses of the lower House of Parliament did pronounce and declare that the Tryal in the Chancery of Scotland was brought from this of England shewing the time Author and occasion thereof Therefore it An opinion that the Laws of both these Kingdoms may in main points be conveniently made all one may be conceived that there is not such great discrepancy or contrariety betwixt the Laws of both these Kingdoms but that by due examination it will be found that there is or at least may be a consonance betwixt them in many if not in most points But for the Laws of England how they do differ from the Civil and other Laws shall be shewed in the next ensuing Chapter CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws OUr Laws of England do differ as in name so in divers other circumstances considerations and conditions from the Laws of other Kingdoms and Commonweals First for the name they receive a common appellation of the Common Laws of England a name scarce given to the Laws of any other Nation Why our Laws are called the Common Laws of England Therefore whence it received this denomination of the Common Law may breed some question Some say that it is called the Common Law to distinguish it from the Laws of particular Customs or of Customs allowed for lawful within this Realm But this is not certain nor scarce probable as shall be shewed anon when it shall be demonstrated that these Customs allowed for Law are rather made parts than distinguished from the Common Law Some others suppose that it is called the Common Law of this Kingdom to make difference betwixt it and the Statute Laws which as they are of another kind of constitution than is the Common Law as will be made evident so are they of several sorts in themselves as some of these Statutes are general and ordained for all the Subjects some are particular and made for the settling of particular mens Estates and of particular Trades Corporations and Faculties Therefore these cannot be nor may not be called the Common Laws of the Kingdom that is common to all but only in this sence because they are constituted with the common consent of all The third opinion is that they
are called the Common Laws of the Kingdom because all the Subjects of this Kingdom must live under them and may challenge them as their Birth-right for the defence of their Estate Right and Liberty In which sence also the general Laws of any Kingdom or Commonwealth may be called their Common Law Howsoever it may be a question how at the first the name of our Common Law came or how the same may differ from the Statute Laws or from any other Law allowed within this Kingdom Yet it is certain that the The municipal Laws of England is the most proper Title of our Laws Term and title of the municipal Laws of this land is both proper to our Laws and doth include all our Laws as well the Statute as Common Law First it is proper in that our Laws of this land are peculiar to this Kingdom and the territories thereof and thereto adjacent being not elsewhere in use or allowed Now for the Municipal Laws of this Kingdom under which title the special and particular kindes of our Laws of England may The division of our Laws of England into several parts and grounds be most aptlie comprehended sundry persons have made several Divisions thereof Some have divided them into Customes which is like to the Civilians Jus privatum and into Statute Law others into Common Law Customes and Statute Law This last Division consisting of three Another division of the grounds and parts of the Laws of England parts Seingerman in his fundamental partition of our Laws doubleth by adding thereto another foundation and division of our Laws which is the Law of God the Law of Reason and certain principles or maximes which with the three former he maketh as several grounds of our Laws of England They which stand to the first bipartite division of our Laws setting them to stand only as it were upon two leggs do conjoyn Custom with our Common Law for they say what is any Custom allowed by the Laws of the land but the Common Law of the land since that the Judges to whom delegation is made for the Whether Customs allowed for lawful be ground or made parts of our Law determination of civil Causes do admit those Customs to be pleaded before them and do give judgment for the same yet the difference between them will be first that these Customs do not equally extend throughout the Realm and therefore if they be incorporated into our Laws they are but private and not our Common Laws Secondly the Judges do ex officio take notice of the one but not without a special pleading of the other So it may well be said in some sort that Customes allowed for Laws or for lawful may be made some part of our Laws but yet I can hardly allow them the honour to be made grounds of our Laws unless they be first reduced to certainties and so be made as it were maximes So are general received opinions by Custom continuance and approbation of authority and Judgment made Common Laws whereto some add this rule Communis error facit Legem As for the other addition of St. Germans St. Germans division of the grounds of our Laws not allowed sextuple division of our Laws of England although he hath therein shewed some learning yet without offence be it spoken he hath mustered together divers things different in name but the same in nature For what is the Law of reason other than the Law of God if it be rightly understood because what proceedeth from reason not darkned with the clouds of error but such things as were charactered in the soul by him which first framed it according to his likeness And saith Seneca quid est ratio he answereth himself naturae imitatio Therefore that our Laws of England are composed and wholly framed on the Laws of God is more than may be said of them or of any other humane positive laws but that they do depend on them and not mainly differ from them may be well and truly justified Now for as much as there hath bene mention made of three principal parts of our municipal Laws let us a little take some particular and several view of them what they are they are said to be the Common Law the Statute The particular parts of our Law examined Law and Customs allowed for law The first which is the Common Law of this land consisteth partly of the collection of such laws as were allowed by King William the Conquerour What Laws King William the Conqueror allowed in England who neither wholly introduced his Norman Laws nor altogether allowed of the former but out of the best parts of either took that which was fittest for the time and present government The former laws which he allowed of were such of the Saxons and Danish laws as he found fittest for the time And first of the Saxons who came into this Kingdom about Anno 449. whose King Ethelbert of Kent did constitute as Beda saith decreta judiciorum Some part of the Saxon and Danish Laws allowed by the Conqueror cum consilio sapientum quae conscripta saith he Anglorum sermone hactenus habentur observantur The succeeding Saxon Kings did in their Wintenagemotes or conventus sapientum which were in the nature of Parliaments make diverse constitutions cum consilio sapientum senatorum cum Episcopis as that Learned and industrious gentleman Mr. Lambert affirmeth who compiled some of them into one book as the Laws of Inas Alfred Athelstan Atheldred Canutus Edgar Edward the Confessor and others out of which the Conqueror took such as he thought convenient whereof some are enumerated by the forenamed Mr. Lambert and by Hoveden Also Gervasius Tilburiensis he The Conquerors allowance of the former Laws saith of the Conqueror decrevit subjectum sibi populum viri scripto legibusque subjicere propositis igitur Legibus Anglicanis secundum tripartitam earum distinctionem hoc est Merchenleg Daneleg West Saxenleg quasdam reprobavit quasdam autem approbans c. The first part of the Common Law of England So then we see that King William the Conqueror took some of the ancient Laws of this land which is the first part of our Common Law of England The residue which came for a supply unto the same sprang out of the judgments given since in particular cases upon arguments made before and by the learned Judges of this Land The second part of the Municipal The statute law differing from the Common Law yet a part of our Municipal Laws Laws of this land though not properly called but differing from the Common Law as the Pretorian Law amongst the Romans did differ from their Civil Law is the statute Law of this Realm made by the King as head with the Nobles and Commons as members of this body politique This Law was invented to give speedy remedy and redress unto such suddain matters as were mischievous in the
Enchiridion Legum A DISCOURSE CONCERNING The Beginnings Nature Difference Progress and Use OF LAWS in GENERAL And in Particular OF THE Common Municipal LAWS of ENGLAND LONDON Printed by Elizabeth Flesher Iohn Streater and Henry Twyford Assigns of Richard Atkins Edw. Atkins Esquires And are to be sold by G. S. H. T. J. P. W. P. J. B. T. B. R. P. C. W. T. D. W. J. C. H. J. L. J. A. J. W. J. P. M DC LXX III. THE HEADS Of the several CHAPTERS Conteined in this TREATISE CHAP. I. THE Definition Etymologie Division Perfection and Imperfection of Laws What is required to the making of them and of their necessity pag. 1. CHAP. II. The differences betwixt the Là ws of Nature of Nations the Civil and Municipal Laws pag. 16. CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws pag. 31. CHAP. IV. An answer to certain Objections usually made against the Laws of England pag. 57. CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is Chiefly obtained pag. 83. CHAP. VI. Of Estates allowed by the Law of England pag. 89. CHAP. VII Of Assurances Conveyances which grow out of these Estates by the Common-law pag. 95. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England pag. 103. CHAP. IX Of Trials allowed by the Laws of England pag. 106. CHAP. X. Of some things in the Ministers and proceedings of our Laws conceived worthy to be reformed pag. 111. Enchiridion Legum CHAP. 1. The definition etymologie division perfection and imperfection of Laws What is required to the making of them and of their necessity MEaning to treat first of Laws in general and next of the Common or Municipal Laws of this Kingdom I conceive it cannot be unprofitable for an Introduction unto this intendment to set down the definition of a Law whereof Justinian hath delivered three derived out of Demosthenes Chrysippus and Papinian One is that a Law is said to be that whereunto men ought to yield obedience as in other respects so especially in this because it is an invention of the Gods a decree of Wise men a correction of offences committed either wittingly or ignorantly a Covenant of the whole Commonwealth with one accord after the direction whereof every Citizen ought to order his life The other is that the Law is said to be a Soveraign of all things both Divine and Humane That is a Commander a Guide and a Square both of good and bad enjoyning that which is fit and forbidding the contrary The one of these is rather a description than a definition and it describeth rather the Natural than the Positive Law And the other is fitting rather to an Orator than a Lawyer We may therefore let them pass and proceed to the third which setteth down the Law to be a general determination of Wise men a Comptroller of Faults either escaped through ignorance or committed upon wilfulness And it is a general agreement of the Commonwealth Jason observeth that the Law is a general Commandment in three respects either because it is founded upon a general Authority or because it belongeth to and bindeth all or else because it is intended general for the profit of all Cicero defineth the Law to be a certain reason flowing from the Divine mind which doth perswade that which is right and prohibit the contrary And Plato saith that the Law obtaineth a name like to the name of the mind But whilst the Law is defined by the Divine mind it seemeth as one saith to be defined by that which is more remote and general than subject to common capacities Yet are these definitions in some sort true being rather referred to the eternal Law than to the positive and humane Laws as shall be shortly shewed in his place In the mean time for that these as the former are as was said before rather descriptions than perfect definitions to come more near to the purpose It may be said that humane Law is an Order and Ordinance including the Rule and Reason of Governing and giving to every man that which is his due directing to the end of publique good determining punishment to the Transgressors and reward to the Obedient Therefore to conclude humane Laws are nothing else but the ordinances and agreement of Wise men concluded by publick Authority for the peace and profit of the greater part of the people living together in society It is said for the greater part because no humane positive Law is so generally good unto all but that it is hurtful unto some by accident if not of it self If any do desire to know from The derivation of the word Lex which we call Law whence this word Lex which in English we call Law is derived Some will say with Isidorus that it hath his etymologie à legendo because after the Law was written it was wont to be read unto the people But this is not so certain in that the reading of the Law by way of promulgation was but accidentary and no essential part of the Law although some have endeavoured to prove that a Law could not be perfectly established until it were promulgated by way of Proclamation Others will derive the word Lex à ligando for as much as Divines hold that men are tyed in foro conscientiae to the observation of the Laws as well as they are bound under penalty to observe the same Yet Cicero concurreth with the first derivation but with a farther-fetch'd reason than the former quod Lex idem sit quod legendi hoc est eligendi regula the reason is nam regula dirigendo docet eligere It may yet well enough agree unto both for one saith Habet Lex quod sit Regula quod sit obligatoria praeceptio How soever these derivations of the word Lex do stand false or true it makes not much matter so we leave them as more Grammatical and Conjectural than certain and infallible The word Lex which in English we A double signification of this word Law call Law hath in our language a double signification or is taken two ways for it is taken both for that which the Latines term Lex and for that which they call Juris prudentia the one being the Art of the other For Lex is the rule and measure of things to be done and to be left undone but Juris prudentia is the knowledge and method of that rule as Justice is the Execution of them both which hath his force in giving to every man that which is his in praemio paena debito So then in the first sence the word Law is properly applyed but in the second it is somewhat largely extended yet use and common opinion hath so accepted it This Law hath for his subject and object the Rule of all Divine and Humane things except God himself who is the great Rule-giver and Law-maker and he
common peace and society of Men lest the like occasion of wrong doing should grow general and so in the end hurtful to all So by this Secondary Law of Nations grew the division of Goods the distinction of Properties free Commerce betwixt Nations common Contracts and the like By this we see that the Secondary The secondary Law of Nations no part of the Law of Nature Law of Nations is no part of the Law of Nature and differing also from the Primary Law of Nations it self Now let us see next how the Civil Law differeth or is distinguished from these Laws of Nature and of Nations The Civil Law or the appellation The name of the Civil Law taken two wayes thereof is taken in two several significations for either it is in a strict signification accounted particularly and only for the Roman Law first set down by Papirius Papinian Vlpian and others and afterwards collected into the Institutes Pandects or Digests Novels Constitutions and the Feuda by Justinian's commandment or else in a more proper sence it is accepted for the particular Laws which every Kingdom and Commonwealth doth constitute for it self And although Caius with other learned Civilians do confess that the Laws which every City doth make for it self be properly intituled Jus Civile quasi jus proprium ipsius Civitatis yet the Romans having gotten under their subjection the greatest part of the known World gave Laws unto all Nations Conquered by them which by a kind of Excellency they termed Jus nostrum or Jus Civitatis Therefore Justinian after he had caused the Digests to be compiled commanded his Judges that these Laws should be used in all Countries and that his Pretors of the East of Illyria Lybia and other parts should put them in practice Whereby it came to pass that the Roman or Imperial Laws were generally called the Civil Laws and have for the most part in most places been ever since so observed Whereas otherwise in proper sence and signification the particular Laws of each free City and State ought to be called their Civil Laws But both these that is the Roman and Imperial Civil Laws and The Civil and Municipal Laws do not wholly differ from or depend on the Laws of Nature and Nations the particular Civil or Municipal Laws of every City Commonweal or free State do not wholly differ from the Laws of Nature and of Nations nor wholly depend on them in this because the Laws of Nature and of Nations are permanent and perpetual being alwayes the same without any alteration But the other that is to say the Roman Civil Laws have been subject to many The Roman Laws subject to sundry mutations mutations alterations and abrogations So likewise all other Civil and Municipal Laws have been and are according to the variation of Times of States and of sundry circumstances For example in the Roman Laws The Laws of the Kings of Rome whilst the Roman State was under the Government of Kings they made such Laws as they thought fit for that time the present state of the City and their own purposes which were all digested into one Volume by Sextus Papirius as is recorded by Pomponius But the force of these Laws ended with their Reign and as soon as the Commonwealth was transported into a New State at the first they could not frame any certain or constant Laws for the Commons and Gentry opposing each other for The Laws of the Consuls and Commons of Rome twenty years together such Laws as were then made did rather seem to cross and contend one with the other than to concurr in any mutual harmony for the good of the Commonwealth For the Consuls made Laws according to the minds of the Senate and the Tribunes of the people according to their affections untill they agreed to send certain Legates unto Athens and other Cities of Greece famous at that time for good Laws and Government that they might be better pleased with Foreign Laws who envied and held not their own indifferent Which done they drew those Laws brought The Laws of the 12 Tables fetch'd from Greece to Rome from thence into Ten Tables to which they added two more of their own these they called the Twelve Tables being the grounds of the Roman Laws But yet two years after these Laws were brought to Rome and established there the Authority of the Decemviri upon which the force of these Laws did depend ceased and was extinguished by the lust and licentious life of Appius Claudius being one of them And although those Laws of the Twelve Tables continued afterwards as grounds of other Laws yet were they still added to and altered as the Roman State did change For when The Emperors of Rome make and change Laws at their pleasure the Emperors set up their Soveraign and supreme Authority they made such Laws Edicts and Constitutions as were answerable to their own ends the succeeding Emperor often disannulling what his predecessor had ordained And as they abrogated the Laws of others so did they not long uphold their own For who almost was there amongst them that did not change their own Constitutions Besides as the state of the Empire The admixture of divers Laws in the City of Rome grew greater they were forced to alter their Laws with admixture of their Decrees of the Senate Statutes of the Commons Ordinances of the Magistrates As the Pretorian Laws called Jus honorarium which were of great force for the time but of no long continuance for they were founded upon the Authority of the Pretors and did often end with their years Thus the Roman Laws remained in much uncertainty till the Reign of Adrian the Emperor who with consent of the Senate did cause these Laws to be made perpetual whence grew the name of Edictum Adrian's Edictum perpetuum infringed perpetuum But yet in divers succeeding Ages sundry of these Laws were also abrogated and even the Laws compiled in the Pandects and Codes by Justinian's commandment were some of them by him altered and many taken away in a latter Book called the Authenticks All which is alledged to shew the instability change and uncertainty of the Roman Laws The like might be said of the Laws of other Nations which have been found uncertain in their grounds and unstable in their continuance Secondly We may see that there is difference betwixt the Civil Roman Laws and the Municipal Laws of other States For though the Roman Imperial called the Civil Laws do bear much sway in most Countries of Christendom and have place in All Countries have some particular Laws and Ordinances different from the Civil Roman Laws their proceedings of Justice but least of any place within this Kingdom of England yet have all Countries their several Customs Statutes and particular Ordinances discrepant in divers points from the Rules of the Roman Imperial Civil Laws which is no marvel since in the Digests there
Commonwealth the punishment and prevention whereof was defective dispunishable or not fully provided for by the Common Law the first of which statute Laws now extant was made in the nineth year The first statute law that is now extant of King Henry the third For the making of Statutes and assembling of Parliaments in which they were ordained he which will diligently read the ancient Stories of Malmesburie Huntingdon Hoveden and Math. Parisiensis especially above others shall find that there are no smal mistakings in some things about the antiquity and true conceipt of their Customs and strength There is according to the partition of some another part of our Law or at the least a derivative out of the same that is the Customs held for Law or judged lawful which have been allowed of ancient times Custom laws another part of our Laws as some hold it in particular Counties and places of this Kingdom as in Kent they have many and especially that of Gavelkind throughout the whole Country whereby as well the youngest as the eldest Son should equally inherit which they reserved and retained by offering battel to King William the Conqueror The Custom of Borough English is another whereby the younger Son is only inheritable and this is particular to some ancient Boroughs and peculiar only unto them There is likewise the Custom of Glocester Honour containing many priviledges particular to that place So have diverse other great Lordships Mannors and some Corporations their particular Customs and special priviledges which are therefore properly called priviledges quasi privatae leges How privileges are called Laws and these having by long Custom and consent had continuance and allowance they are thereby made lawful and in some sort stiled and reckoned as part of our Laws although in some points they do differ from the rules of the Common Law And therefore the Civillians call such Customs jus singulare quod contra tenorem rationis propter aliquam utilitatem authoritate constituentium introductum est That the Laws of England do differ from the Laws of other Countries there is no doubt as there is no Country but hath some constitutions contrary to any other even of their neighbour Countries Laws But if any do demand how the Wherein the Laws of England do differ from other Laws Laws of England do differ from other Laws it may be found somewhat in their institution and foundation more in their form and method but most in the course of their proceedings and execution For the first it is apparent that the Laws of other Countries for the most part are grounded or do fetch their Rules from the Roman and Imperial The Laws of England take not their grounds from the Civil Roman laws as other laws do Civil Law but the Laws of England are not founded nor do any way depend on the Civil or Roman Imperial Laws For the Laws of England take their grounds from the considerations and Rules of reason equity and general respects weighing therewith what is convenient or inconvenient to the whole Commonwealth or the greatest part thereof and holding it for a general Rule to be safer and better to suffer a mischief than an inconvenience The second difference betwixt the Institution of our Laws and the Laws of other Countries is because the Laws of this Kingdom are not made The Prince doth not of himself alone make the Laws of England as the Emperor and other Princes have done by the Prince only as sometimes the Laws of the Empire and of some other places were where the Princes had both an affirmative and a Negative power in ordaining Laws for the people under them But in England as the Laws concerning penalties in Criminal causes or in Civil cannot be enacted and established without the Kings Royal approbation So doth not the King make these Laws without the consent of his Parliament The Laws of England do likewise differ from the Laws of other Countries first because the Common Law of England is not all written and certainly set down but doth rest much The Law of England not all written nor all set down in Method as some say in Pectore Judicis and also it doth differ in Method from the Civil Law and from some other Laws because it is not digested into Method by Titles Chapters and distinctions For the first though it were to be wished that the Common Law were all written and that it were so made certain if that might be possible as it should not need to depend upon private and particular opinions yet if that may not be the inconvenience is not altogether so great as some conceive it for all Countries Some countries had their Laws written and some had not have not had their Laws written and set down alike The Athenians used only written Laws The Lacedemonians had none written The Romans had both The last difference betwixt the Law of England and other Laws but especially the Civil Law being in the proceedings and execution thereof which will appear principally in these three parts First in the manner of Three differences betwixt the Laws of England and the Civil Laws Summoning as we say or Citation as the Civilians call it Secondly in the form of pleading in the Courts Thirdly in the Judgment or Sentence to which may be annexed also the Execution upon the same For the manner of summoning or citation by that which was anciently used in Rome a man might of himself Difference in summoning or Citation without any process cite his Adversary and compel him by force to come into the Court whence the phrases of in Jus rapere in Jus ducere and such like are used by Plautus Horace and other authours This was not in ure at any time within this Kingdom of England but it hath been held better and always fit That there might be some processe sent forth and so a plainer more peaceable and lawful course should be taken as if the King who is the head and fountain of Justice or the Judge under him had been first informed of the Suite the like course was afterwards and is now taken in the Civil Law For a Citation by Math. Wisenbich is defimed to be actus Judicialis seu Judicii praeparatorius quo is quem corà m sisti opus est Judicis mandato legitime vocatur jur is experiendi causa of which according to other Civilians he in his paratitles maketh three parts 1. Praeceptio Judicis Three parts of a Citation according to the Civil Laws now used 2. Verbalis citatio nuncii 3. ejusdem nuncii relatio quae saith he nisi exactis appareat non valet citatio In these three parts of summoning or Citation the Civil Laws and the Laws The Writ of Summons in our Law goeth out in the Kings name in some Courts but not so in the Civil Law of England do not disagree save that in England the Writ of Sommons in many
Cases and in some Courts goeth out in the Kings name Also for the conventing and summoning of any man before the Judge greater Liberty is given by the Law of By the Civil Law one might not convent a Magistrate c. England than was antiently allowed by the Civil Law For by the Civil Law a man might not convent a Magistrate nor Judge nor one that was marrying a wife or a man that is performing the Funerals of his friend or a man that is pleading or following his Cause before a Judge nee parentem patronum parentes patroni in Jus saith the Praetor sine permissu meo ne quis vocet But by the None exempted from Suite by the Laws of England Laws of England none are exempted from Suite only Dukes Earles Barons and their Wives are priviledged that a man cannot attach or take their persons by Capias both for the honour of Nobility and because it is supposed they are never without some goods or land which may satisfy the Debts But if the action be against the Crown and Dignity or Contra pacem then for their violence their bodies also were subject to the Kings Writ The same Law is of Abbots and Priors The Civil Law allowed more exemptions from appearing to Suits than the Law of England But the Civil Law alloweth a greater Liberty and saith generally eas personas quibus reverentia praestanda est sine jussu Praetoris in Jus vocare non licet And yet although the Civil Law be more liberal in allowing exemptions from Citation and summoning of persons to appear than is our Law of England notwithstanding there is difference betwixt these Laws in the form of Suite and pleading upon divers process wherein these two Laws might perhaps correct each other whereof but a touch shall be given at this time and it may be more shall be said at the conclusion of this tract when the remedy and redress of some things conceived to be amiss in our Laws shall be spoken of The second point concerning the The second difference in the form of pleading difference betwixt our Laws of England and the Civil Laws being in the form of pleading and diversities of process For the first which is the form of pleading only they agree in this That both the Laws have had a special respect of nice observation and also have endured alteration in pleading For first the Civil Law after that in Rome the Decemviri had gotten the Law of the 12 Tables and that Interpretation grew frequent upon them then saith Pomponius Ex his legibus eodem fere tempore actiones compositae sunt quibus inter se homines disceptarent quas actiones ne populus ut vellet institueret certas solennesque esse voluerunt appellata haec pars juris legis actiones id est legitimae actiones and immediatly after saith he Omnium harum interpretandi scientia actiones apud Collegium pontificum erant c. Afterwards the Actions were as Livy reporteth and the Book of them gotten by C. Flavius Secretary to Appius Claudius was by him published and so communicated to the common people for which they bestowed on him the Tribuneship and other Magistracies they called that Book Jus Civile Flavianum Like to which also Sextus Aelius framed another which was called after his name Jus Aelianum These formulae Juris were used very strictly for saith Wesenbechius Olim ut omnia ordine recte procederent ne temere sineque causa quis ad jurgia lites conudaret impetrandum erat à praetore judicium qui actori postulatam à se actionem impertiebatur formulam agendi disceptandique pedaneo judici litigatoribus praescribebat So that then by the Civil Law the planitiffe did get his form of pleading from the Judge or Praetor which was afterwards upon experience of inconvenience altered by the rescript of Constantine which Justinian hath put in his Code likewise Theodosius and Valentinian hath done the same But the difference betwixt this and the pleading of our Common Law is That at no time was the A strict form of pleading required but not particularly prescribed by our Laws plaintiffe tied by the Common Laws of England to receive his whole form of pleading from the Judge although it be true that he is required to set down a strict form of pleading according to the Law upon his own peril Also another difference there is in Different forms of pleading in our own Law in several Courts and much more betwixt both the Laws the forms of pleading betwixt these two Laws First that our forms of pleading do differ according to the different forms of pleadings and declarations in several Courts which the Civil Law doth not Secondly and particularly the form of pleading in the Civil Law is in all actions personal because they do ex obligatione tanquam causa proxima competere actoribus in the Libel you must express the remote Cause and not only the next Cause as for example I lend mony to Titius now I may have an Action against him for it The remote cause is the lending the next and immediate of the Action is the obligatio as they call it Now if I Libel against Titius if I say Ago ad decem ad quae Titius est mihi obligatus This is naught saith Minsinger shewing it out of other The Civil Law in personal actions doth express the remote cause in the Libel but in real actions the next Cause authorities because the remote Cause is not in the Libel But if that had been in alone that had been good as Mutuam Titio decem peâ—o eum condemnari But in real Actions they go inversa via putting in always the next Cause but not of neccessity the remote but at the pleasure of the Advocate as Peto fundum istum à Sempronio quia ejusdem sum dominus fundi here the dominium is the Causa proxima and if the Advocate dare venture it he may say also sum dominus quia emi where the remote Cause is also contained A very nice difference which is not exacted in the form of pleadings How in our Law the remote and next Cause are both expressed in all actions in our Law But it is usual with us that in every Mans real personal and mixt Actions the Causa propinqua and remota are both put in the Declaration yet so that in the Common Pleas in the Writ commonly is expressed the next Cause and in the Declaration which containeth the Writ also the remote Cause but in some the Writ doth contain the other as in wast the Writ quare fecit vastum in terris quas tenuit ex dimissione ad exhaereditationemâ— here is the remote Cause But in Action of Debt praecipe quod reddat vj. libr. quas debet here is the next Cause and the Declaration contains the remote as Contract Bargain c. Neither is there any
Declaration in our Laws as the form is now used but contains both Causes in it besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws which would be too long and tedious to recite The next difference is in the Process 3. The third difference in the awarding of Process awarded in both the Laws Concerning the awarding of Process we find that with us in personal actions I mean in many of them joyning Statute Law and Common Law together In Actions personal more Process and delay permitted by our Law than by the Civil Law there are commonly awarded if the Suite be commenced in the Common Pleas summons attachment distress three capias with an exigent at the last whereby the King hath Title for the parties contumacy to his Goods and Chattels So that the plaintiffe hath now remedy by accident only and if the defendant appear and reverse the Outlary or get pardon and so answer c. which is a long time before this can be brought to pass and by this means this Suite may depend long yet the defendant never convented but at two or three years end the plaintiffe may be driven to declare anew as if he had but then begun his Suite But by the Civil Law as the Pandects shew us and Wesenbech affirmeth the Term to be now in the Empire post absentiam adversarii petat quis edictum primum mox alterum per intervallum non minus decem dierum tertium quibus propositis tunc peremptoriè impetret quod inde hoc nomen sumpsit quod perimeret disceptationem hoc est ultra non pateretur adversarium tergiversari Then if the defendant appear at the day given him by the Peremptory edict No judgment given in the absence of the plaintiffe at the Civil Law or if he do not the matter shall be discussed and judgment given for him whose part shall be found best But if the plaintiffe appear not then nothing shall be done but circumducendum erit edictum perpetuum And the peremptory edict may at the pleasure of the Judge be granted at the first by the same authority So that The interest of the plaintiffe lesse subject to prejudice in Actions personals by the Civil Law than by our Law hereby the Interest of the party who hath right is less subject to prejudice by that Law than by ours And this course of the Civil Law doth not admit so much delay as doth our Common Law For by our Law in such Cases where no Outlawry lieth in personal Actions there the Process of distress goeth out infinitely and then is there no end of the Suite as in per quae servicia quae juris clamat and such like wherein it is true that our Law severely punisheth the party which so much sheweth contumacy to the Law yet doth it no good or very little to the plaintiffe for his satisfaction But there is another difference that in Actions altogether real as Entry Escheate Right Dower and such like the remedy allowed by the Laws of England is far better for in them if at the day appointed upon the first summons the party make default and the quarto diepost be past then is there a graund cape to take his land into the hands of the King and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath that he was not summoned according to the Law or such like always remembred that Essoynes upon just occasion may herein breed much delay And herein is there much difference betwixt the Civil Law and our Law for in the Civil Law upon their peremptory edict notwithstanding the defendant A main difference betwixt the proceeding of our Law and the Civil Law in Actions real doth not appear the right shall be examined and thereupon judgment given but with us upon the default at the graund cape the plaintiffe shall have the land by judgment although the right be not examined As also upon the appearance if by oath he cannot save the first default likewise if he once appear and afterwards make default before judgment given there must be a petit cape awarded at which Writs return if he do not save the first default there shall be judgment given against him That all this was antient Law may be seen in Bractons Treatise de defaltis So that in personal actions the Civil In personal actions the Civil Law is more severe but in real more remiss than our Law of England Law hath a more severe and speedy course for recovery than the Common Law of England but in real actions it is somewhat more remiss or at the least ours is more severe For the last difference spoken of betwixt 4. The last difference is in the giving and Execution of judgment these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem although the form and circumstance thereof may be divers yet in these real actions quoad substantiam effectum the difference is not very great for both Laws must make Execution of the same thing though perchance not in the same manner But for personal actions it is manifest by the course of antient and present times that for Debt ever since King Edward the third his time and damages and accompt ever since Henry the third his time in actions upon the Case ever since King Henry the 7th his time and in all actions Execution against the person after judgment by our Law in actions personal where Capias lieth in the Process before judgment there Capias ad satisfaciendum lieth after judgment to put the party in prison for Execution than the which although a more rigorous Law were by the 12 Tables whereby Corpus inter creditores secari licebat whereof Rivallius saith an example is not read in any History or other Book yet afterwards by their Lex Petilia it was decreed as Livy reporteth that no man should be for Debt nervo aut compedibus vinctus which notwithstanding was used sometimes by the violence of Vsurers and therefore sometimes renewed by the Laws Portia Sempronia Popilia and other whereby terga civium were made tanquam sacrosancta Also by the Lex Julia if the Debtor would leave his goods his Body was free as appears by the same reported in the Code But this Law Hottoman thinketh not to extend unto Banquerupts or such as are non solvendo by their own default But by the Anthentiques and Latine Law if The Civil Law more mild of latter time than ours for Execution against ones person in debt c. a man were poor by some external misfortune and not by his own means if he would ejurare copiam bonam he need not leave his goods for his Creditors nor subject himself to Prison which is so mild a Law towards Debtors that it hath no proportion
since his death A little after him began Mr. Ploden who reported the speciall Cases which hapned from the second of King Edw. the sixt until the fifteenth of Queen Elizabeth they are but few Cases yet more fully reported than any before him Then the voluntary Reporter is the late Lord Coke who hath set forth thirteen Volumes of Reports Since that we have had Hobart Bulstrod Hutton and divers others especially Justice Croke who continues his Reports till the middle of the reign of King Charles the first There are besides these Reporters Writers of Rules and the application of them to Cases some other Writers of the Common Law whose Works are mixt partly of Rules and partly of Application of them to certain Cases of their own knowledg and collection such is the Book called The old Tenures and another commonly called Littleton's Tenures This Book serveth for an Introduction to the young Students in the common-Common-law of England as Justinian's Institutions doth for the beginners in the civill-Civill-law Mr. Perkins did likewise draw certain Rules and Cases of some Titles of the Common law into a method but not of equall or like authoritie with Littleton's It is alledged by Ploden in his Epistle that in antient time as he had upon credit heard there were four Reporters of our Cases Reporters of the Law in former times authorized 2nd allowed by the King of Law which were chief men and had a yearly Stipend for their travell therein paid by the Kings of this Realm and they conferred together at the making and setting forth of the Reports It were to be wished that there were the like course still continued and allowance given So should we not have been bereaved of so many worthy and unrecoverable Cases and Judgments which are wanting and no doubt either perished or buried in silence by which means the Students are deprived of the Lights and Helps which they might have thereby CHAP. VI. Of Estates allowed by the Law of England HAving said somewhat of the Grounds of our Common-law of England it should seem proper in the next place to shew the Estates which the Common-law doth allow And that briefly for neither my Judgment in the Laws nor this place will fitly allow such aperfect and exact Discourse as may pass without exception of the Learned in our Laws or fully satisfie such as are well experienced in the same Onely that which shall be said is rather set down as a general view to consider the state and course of our Laws than as a platform and precise instruction thereof The Estates most absolute which Fee-simple of two sorts the law doth allow are either Fee-simple absolute of Land to a man and to his heirs and assignes for ever Estate of Fee-simple conditional now made an Estate in Fee-taile or Fee-simple conditional that is to him and the heires of his body general or special as it was at the Common-law which is accompted Fee-taile to his Heirs males or females according to the particular limitation This Estate of Fee-simple absolute How times have altered the state of Fee-simple and general is as ancient as our Common-law and perchance before the use of our Common-laws as they are now in ure for from the beginning there was giving and granting of Lands though not altogether in that exact and express form which later times have required because at the first if one man had given Lands to another for ever this had been held a sufficient grant to him and to his heires But now the law hath so expounded and distinguished that if the word Heirs be not in the grant it is no Fee-simple but an estate for life The estate in Fee-simple donditional was likewise for the general practice thereof introduced upon later considerations of which at the first there was no recovery left in the Giver nor remainder could be limited over but after issue had which was the condition annexed the Donee or he to whom the Gift was made had power to aliene the whole Land and Estate But afterwards this Estate in Fee-simple conditional was in the thirteenth year of King Edw. the first by a Statute made an Estate in tayle in the Donee and a Reversion in the Donor or giver And then the Donee might not by any Act barr his issues neither by forfeiture of offence as Treason nor by conveiance though never so strong as Fine c. Thus we see how the greatest and most beneficial Estate of Fee-simple which the Common-law doth admit hath received his degrees his limitation and alteration according as time increase of knowledg in the Laws and of Conveyances and Assurances amongst men have thought it meet the like alterations we may finde in other Estates of least extent and benefit in the Laws Where mention was first made of the state of Fee-simple to be very antient though not always in one expresse form It is true with a several respect of times in antiquitie For among the Saxons Fee-simple was Fee-simple in use in the Saxons time and that by the name of Land to a man and his heires as it appeareth in the Saxon Laws of Alfred where it is said qui terram habuerit per scripturae seriem the Saxon word is boclande sibi relictam ab haeredibus ad alios alienandi potestas ei non esto siquidem praesentibus cognatis coram rege aut episcopo scriptura aut testimonio potentum omni alienatione interdixisse illum qui prius concessit talemque ei imposuisse legem cum primo dederit out of which may be noted both the Fee-simple absolute and conditional were then allowed and in use And also Fee-simple conditional also known in the Saxons time a man may see that in antient time how a gift to a man and his heires and a gift to a man for ever were all one For when Erle Godwine came to the Bishop of Canterbury to get the mannor of Boseham in Sussex he first jestingly said to him as Mr. Camden saith out of Mapaeus Da mihi Boseham The Bishop as it should seem scarcely knowing his meaning answered him Do tibi Boseham whereupon without any more livery the Erle took and had possession thereof to him and to his heirs by which also we may see two things that the word heirs was not then of absolute necessitie in a grant to create a Fee-simple and that then such strict words and forms of Conveyances were not required as of later times to passe Estates of Lands There are other Estates of inferior degree and dignity allowed by the Common-law whereof some are accompted Inheritances and Freehold Others but uncertain and not for a prefixed season or term Of the first sort is an Estate for life Estates for life two-fold and that two-fold either created by the party as by Lease c. or else created by the Law as Tenant by the Curtefie of England by having issue of a wife Inheritrix or
upon an Estate-tayle and to destroy perpetuities which no other Conveyance doth as a Fine is used to barr estrangers that pretend right of Possession or Action which no other Conveyance can doe Conveyance of Land by Will or Conveyance of Land by Will how it stood at first last Testament in antient time was only in such antient Cities and Boroughs which specially prescribed for the same and that the Lands were devisable by Custome But the greatest part of the Land within this Realm was not subject to this kind of Conveyance unless the same Land were first granted over to Uses or in Trust and then the said Trust was devisable by Will because it was a matter in Conscience and a Subpoena in Chancery was the only remedy But in the 27 year of King H. 8. all those Uses were transferred into Possessions so that by means thereof no Land by any means was deviseable but Customary-lands untill the 32 and 34 years of King H. 8. when it was Enacted that all Lands Farther liberty granted by statute to convey Lands by Will might be devised by Will and if the same were held in Socage tenure the whole passeth by Will But if of the King in Chief or of a Subject by Knight-service two parts only do pass by Will and the King or Lord of whom it is holden is to have a third part during the nonage of the Heir and the Heir the said third part afterwards The Conveyance by Uses was in Conveyance by Uses when and how it begun antient time unknown and began in the time of the Civil-warrs of Ed. 2. against the Barons and of Lancaster and York bred and begotten by fear for the owners of Lands doubting lest themselves by partaking should be attainted and so their livings forfeited did convey their Lands over to their Friends in trust but received the profits themselves which perception or propertie by Law was called Use And the party who was Owner in Conscience was called Cestuy a que use or pernor of the profits Also afterwards Uses were invented by fraud to deceive Creditors of their Debts Purchasers of their Bargains and Men that had right of their Actions all which was remedied by the Statute of the 27 of H. 8. whereby the Possession of the parties trusted was transferred to the Cestuy a que use and the Use and Possession were incorporated and united But yet at this day Conveyance by Use is very common and many kindes of Conveyances are lately sprung up out of this Statute of 27 of H. 8. as Bargains and Sales for money But this must be enrolled within six monthes by the Statute of 27 H. 8. CHAP. VIII Of Actions and of their Trials according to the common-Common-laws of England IT is a saying both in the civil-Civil-laws and Common-laws of this Kingdome that Actions whereupon the Trials of Suits betwixt party and party do depend are of three sorts either real personal or mixt The Actions of 3 sorts first concerneth the Title of man's Lands and Freeholds the second of their Goods and Chattells and the third are in Rem personam simul as Waste Quare impedit Ejectione and the like Actions heretofore used for real Actions real matters were Assises Writts of Entry and Writts of Right for Fee-simple and as some hold for Fee-tail confirmed by Precedents of experience also Formedon for Fee-taile Cui in vita for a Woman upon the discontinuance of her Inheritance by her husband And for personal Matters and Actions personal Contracts it was as at this day which real Actions were so used because the partie oftentimes was barred of his Entry by a discent that if one did disseise or unlawfully dispossess another of any Land and the Disseisor or Wrong-doer died thereof seised the lawfull Heir or he that had the Right might not put the other out of possession or enter for his Right but ought to sue first for it But by the Statute of 32 of H. 8. The most usual Trial of Actions real at this day no discent to take away an Entry may be without five years peaceable possession And therefore now to bring such Titles to trial the use is either to enter and bring an Action of trespass and thereby to try the Title or to distrein some Cattel upon the ground and upon a Replevin to avow a dammage Fesant that by affirming the Cattell hath trespassed his ground the interest thereof may thereby be tryed but the common course is to seale a Lease upon the Land and so to try it by an Action of Ejectione firmae Few real Actions now used being full of delay At this day few real Actions are used because they are more full of delay and also they are more peremptory and binding against the party for a former Recovery was a good Plea but in these personal Actions it is not for in them the party may bring as many Actions as his purse will maintain Also Actions upon the Case for Actions upon the Case are common Words are very common CHAP. IX Of Trials allowed by the Laws of England AS it is usual amongst men to commence Suits and Actions so it is of necessity that some certain Form should be prescribed by which those Variances Suits and Actions should be brought to Conclusion so hath the Laws of this Land and Wisdome of the Law-makers found out two wayes for the Trial of Suits Two ways for the Trial of Suits and Variances which is either by Jury upon the Oaths and Verdict of twelve Free-holders or else by Battaile between the parties but this is out of use or their Champions or by the Oath of the defendant which is called Ley Gager Some have conceitedly said that A conceited opinion of Trials the Trials except Battaile have confisted upon the number of twelve with a triple distinction as twelve Judges for matter in Law twelve Jurors and twelve in Wager of Law for so is the form There is a Trial also by the Certificate Trial by Certificate of the Bishop c. of the Bishop for Bastardy and Mariage also of Infancie by Inspection of the Court also of Villanage by his Kinsfolks also Death of the Husband by proofs in Dower But these especially the latter of these are not so much in use though allowed by our Laws Of which Trials although Trial by Trial by Battaile not abolished nor lately used Battaile being antiently used and is not yet abolished by any Statute yet by reason of the unchristian and bloody proceedings thereof when the strongest Hand and Heart may overcome the best Right and losse of Living is determined with losse of Life it is therefore obsoleted and grown out of use Such Trial by Battaile was appointed to be in Tuttle-Field in the 13 Eliz. where the Champions Lists Judges and all being prepared the Demandant was non-suite and so that Trial ceased And another was appointed in the same
there that bringeth a Ticket under the hands of the Councellors and Officers to whom the same is paid This is an abuse worthy to be reformed and this Statute very necessary to be executed In the 33 year of King Henry the 6. a Law was made that there should be but six common Attornies in Norffolk six in Suffolk and two in Norwich If then the Country were pestered with Attornies and that a Law must be made to ascertain the A Law already made necessary to be executed for the admission of Attornies number which likewise should be elected and admitted by the two chief Justices how much more needfull is it now to have the like Law of restraint for all the Counties of this Kingdom when we see how even in those Shires then thus provided for there are far greater numbers of Attornies and such for the most part as they are specially noted by them who know these Countries to be full of cunning and many of them nourishers of contention and contenders themselves with their neighbours These being commonly the Conduits that convey Suits and Gain to covetous and unconscionable men desiring Law with the losse and impoverishment of many there is therefore great need that their numbers should be lessened and their dispositions who shall be allowed to practise well known to be good and honest A third sort there are of the ministers of our Law which do offer oppression and wrong unto the subjects of this Kingdom in their Suits And they are the Officers of the Courts of Records and their Clerks Abuse of Officers and their Clerks in the Courts of Record whereof many do exact unreasonable and unlimited Fees not or very seldome vouchsafing to set down in a note under their hands what their Fees are but demanding so much or else nothing must be done or if it be first done they will often detain it untill their own demands be satisfied So the Subject must give whatsoever No certainty of Fees in most Courts it pleaseth them to ask Wherein it hath been the hearty desire of such as wish well unto their Country without any private respect unto themselves that there might be a certainty of Fees set down for every Court and the same to remain in written Tables in open Court subject to every mans view whereby the Subjects who have Suits in Law may not have so great cause of loss and of complaint as now they have Of the same nature and indeed a part of this exaction is the excessive Excessive Rates for the writing of Copies Rates taken for writing the Copies of all Bills and Answers Replications and Rejoinders and of all other Records within the Court of Westminster and the Offices belonging to the same First for the foule and Wastfull Writing of purpose wastfull Writing next for the few numbers of Lines in every Sheet and for the smallness of the Paper wherein they write they alwayes demanding so much for the sheet how few soever of lines letters or syllables there be in the same and allwayes they strive to write the least they can with great letters full of large dashes to make the more distance and very spacious lines for their more Gain and the greater Charge of them who are forced to take out these Copies whereby they raise great summes of mony out of the Subjects purses keep good houses purchase much living enrich themselves and impoverish many Sutors at Law If that some reasonable stint of this Writing and the certainty of Fees withall might be set down and observed it would without doubt yield great contentment prosit and ease unto the people of this Land who for the most part feel and some sink under this burden Besides these before mentioned Abuses in the Ministers and Officers of our Law there are some other declinations and with-drawings from the right Proceeding of Law by such as seek to pervert the same As The Judges select certain Lawyers whom they hear most willingly and often first in every Court of Record in Westminster the Judges have certain selected men on whom they are pleased to bestow their favours in yielding them ready hearing before others which being perceived they are the more resorted to and must have the more Fees This increaseth the charge of the subjects and yet many times disappointeth them of their expectation And although it be not unreasonable that the Judge should extend his favour more unto some than unto the rest by hearing them before others yet considering the inconveniency of this favour it were far better forborn and to be some way else shewed unto them that deserve it There is also some Rules of the Courts uncertain and unknown to the Judges defect in the Courts concerning the Rules of the Courts that sometimes the Judges themselves are ignorant of the Rules of their Courts touching the times of Answer Reply Rejoynder Imparlance with the like circumstances whereby they are forced to ask the opinions of the antientest and best experienced Attornies and Officers of the Court touching those Rules where it were much better that time were taken by the Judges to examine these Rules wherein perchance somewhat might be amended for the more speedy execution of Justice and the same set down in writing might be more certain and subject to all mens knowledge with lesse hindrance to Suitors and to their Causes There are also some Courts in Westminster where the Judges as for example the Barons of the Exchequer do alter upon new motions out of Court as in the Chequer Chamber or in other places the Orders Alteration of Orders out of the Court. made in Court And that which was publickly ordered by all the Barons in open Court is often reversed by one of the Barons when either the plaintiff or defendant bringeth his Counsel and upon some new information getteth the former Order to be dissolved which tendeth much to the Trouble Charge and Delay of many Suitors In the Kings Bench and somewhere else as it is said writing out of Record must be twice or thrice unnecessarily copied as upon a Prohibition Unnecessary Copies to be taken out a copie of the Suggestion then after Declaration a new Copy after issue or Demurrer a third Copy whereas each of them sometimes cost three four or five pounds and yet with a little alteration it is thought that one might serve for all The incertainty and intricate ambiguity Incertainty and intricacy of Pleadings of Pleadings in the Courts of Records bring much dammage and danger unto the Subjects of this Kingdom wherein many men wishing well unto our Laws have exceedingly desired That either some certain Formes of these Pleadings if it were possible to be performed might be drawn by expert men and the same considered and corrected by the Judges might stand for good and those Forms to be allowed as in Rome at the first the Forms of Actions were given to the Actors of the Law by the Pretors Or if this may not be performed Advantages of pleadings not to be so penal yet that some other Course were taken upon the advantage of a Pleading mistaken than is in the Case betwixt the King and his Subject If also in Actions personal a shorter A shorter course to be taken in Actions personal and more certain Course were taken than is by our Common-law whereof somewhat hath been spoken before as that which the Civil Law alloweth or some other such like for speedy and direct Trial without evasion or circumvention it would yield no small profit unto the People that are forced to prosecute these Suits FINIS A Catalogue of some Law Books printed for and sold by several Booksellers in Fleetstreet and Holborn 1. Rastell's Entries fol. price 3li. 2. Pulton's Statutes continued to the year 1670. price 50s. 3. Cook 's Commentary on Littleton price 18s. 4. Dalton's Office of Sheriffs with very large Additions printed in the year 1670. fol. 12s. 5. Townsend's Tables to most of the printed precedents Writs and Returns at Commom Law fol. 12s. 6. The Law of Common Assurances touching Deeds in General viz. Feoffments Gifts Grants Leases with two Alphabetical Tables by W. Sheppard Esq fol. price 14s. 7. The Country Justice containing the practice of the Justices of the Peace as well in as out of Sessions and with Additions by Michael Dalton in fol. price 8s. 8. A Collection of all the Acts and Statutes made in the Raigns of King Charles the first and King Charles the second fol. price 14s. 9. Lord Cook 's eleven books of Reports in French fol. printed 1672. price 3li. 10. Lord Cook 's Book of Entries fol. price 3li. 11. Lord Hobart's Reports with Additions in fol. price 10s. 12. 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their Successors have a more strict Oath nor is it any disgrace to them that receive it because it belongs unto latter times to provide for that which former Ages have left undone And in this new Oath no Judge is singled out or made a mark by himself which if he were it might indeed tend much to his disgrace as a great argument of distrust in him But whether this Oath or any part of it and whether the latter if not the former be to be used or whether it be often or seldom to be administred is a matter which I submit wholly to the Censure of such as are most Judicial and fit in the highest seats of Authority and Judgement To the second Point spoken of before which concerneth the over-burthening of the Subjects by delays and by diverting the right Proceedings of the Law This is not to be attributed to the Laws themselves nor to the Judges thereof but to the corrupt ministers officers and practitioners of the Law who do as most men in other Faculties are accustomed prefer their own private profit before the publick utility They from whom these faults do flow which are commonly but not justly imputed to the Laws are amogst others these that is to say Councellors at Law Atturneys Officers in Courts of Records Sheriffs and their Bailiffes c. For the first sort which are the Councellors at Law and Barristers as they are called the right Proceedings of the Law in divers particular mens Cases in Suits is many times diverted and sometimes overthrown by their multitude insufficiency advice of delatory or defective Pleas by their taking of excessive Fees and by their absenting of themselves from the Barrs and places appointed to plead for their Clients after that they have taken Fees First the multitude of Councellors Multitude of Councellors at Law and outer Barristers is so great that many of them are not able to maintain themselves and some have few or no Clients at all especially such of the second sort as were named to be insufficient who if any Suitors at Law come unto them for Counsel by reason of their acquaintance kindred or other private respects they many times send them away unsatisfied or if they rely on such weak Councellors sometimes their good Causes for want of sound Counsel are overthrown The reason of the multitude and insufficiency of many of these Councellors The Insufficiency of divers Councellors at Law at Law as I conceive it is because divers of them are admitted to the Barr before they have read over half the Volumes of the Law and before they have with any good Commendation or allowance performed the exercises at Mootes and at Readings which is requisite for the place and for the testimony of their Profession and sufficiency but having lived so long in one of the Inns of Court as is prescribed by the orders of that house wherein they are although they be and are known to be no profitable or painfull students yet by favour they find meanes to be called to the Barr many times to their own hindrance and much to the hurt of such as have their Counsell The second Cause of this their insufficiency is for that they have of late been permitted to plead at Barr and to put their hands unto Pleadings as soon as they are made Barristers whereas in former times it was neither usual or allowed that they should either plead at Barr or put their hands to Pleadings till three years after they were called and in those times they were kept more hardly and strictly to their Mootes and Pleadings in those houses wherein they continued The Inconveniencie of this generall untimely and promiscuous kinde of Pleading and counseling by all sorts of Lawyers in Rome aswell the unlearned as the able and sufficient was foreseen and in some sort prevented by Augustus the Emperor in his time who ordained Augustus his restraint of Lawyers in Rome that no Lawyer should practise without his royal assent and approbation first had If the King's Majestie did take this course with our Common Lawyers or else assigned some others of greatest authoritie and Judgement in the Law to take good notice and assurance of their sufficiency before they should be admitted to practise there would not be such a deluge of insufficient Councellors at Law within this Kingdome by whose Ignorance and want of knowledge many mens Inheritances and Estates are overthrown For their perillous advice of delays The ill advice of Councellors given to their clients and of other evasions to procure gain unto themselves and less unto others it is sure that there are divers Councellors at Law who study nothing more than as it may be truly termed the Gall of the Law how to seek evasions and to defeat the true meaning of the Law and aswell to draw some into danger of the Law and to overthrow the Right of others by their own incircumspection by their Adversaries cunning and by the advices of such wicked Councellors against whom there should be some sharp Law made for their punishment or if not so yet it should seem requisite that every Councellor at the Law should An Oath necessary to be given unto Councellors at Law when he is called to the barr take some special Oath for his upright dealing in the advice of his Clients to proceed according to Equity and that he should not lead them into any by paths of indirect and un-conscionable evasions contrary to the true meaning and upright course of Law and of a good Conscience By this means if they who take this Oath have any good Conscience in them the expence of much money in Law may be saved and honest peaceable men kept from the trouble of quarrelsome and unquiet Neighbors in Causless Suits Another abuse there is offered by The excessive Fees that Councellors take the Councellors at Law in the taking of excessive Fees which late Custome their extream covetousness and the necessities of mens Estates in their Suites have introduced For of late years and in the memory of many men yet living xx s. was a good Fee for a great Councellor not onely to move but to plead at the Barr and if a Serjeant at Law had x s. for to argue a Case he thought himself well rewarded But now what Councellor of account and of good practice is there that will think xl s. a sufficient recompence if he do argue any mans Case at the Barr nay that Serjeant at Law who hath but v l. given for such a purpose will goe thither with an ill-will or else not come at all besides how often Many Fees every Term for one Cause they must be feed in one Case even in one Term although of the poorest Client they have if they have occasion to come often unto them common experience and many poor mens Purses can too well tell Therefore when it pleased the King's Majesty at his first coming to this
Crown of England graciously to take notice of this enormity and to make known his Pleasure that indifferent and reasonable Fees should be taken by the Councellors at Law of their Clients some of them did restore or at least offer to restore part of the Fees profered unto them which continued no longer with any of them than the dread of punishment or of danger drew them thereto But where it is alledged by some that the sufficiency of all Councellors is not alike All Lawyers not of like sufficiency or merit nor their pains and travell all alike and therefore their Recompence cannot be equally measured no more than in other Faculties can the professors thereof merit as much the one as the other To this I think it may be easily answered That although the sufficiency and pains of every one be not answerable unto the best yet there should some proportion be limited what the best might deserve and how much he should take in such Some proportion of Fees to be limited and such particular Cases by which also somewhat a correspondent Recompence might be awarded to others of inferior degrees and sufficiency though not to be scanted by the penny yet at the least to be rated by the pound whereby a man of reasonable Estate in a suite of reasonable value might compass his Right without his undoing and although the Labourer be worthy of his hire yet is it hard that the Labourer for his hire should have the value of the Land whereon he laboureth or more as many Lawyers have But chiefly divers of the Councellors do offend and abuse their Clients sometimes to their utter undoing when some of them do take round Fees against a day of Hearing and yet neither come to the place or if they do they depart before it be heard and sometimes in the midst of the Argument being sent for unto another Barr in another Cause where perchance their Fee is greater or their Client of more reputation or nearer unto them whereby men depending on them according to promise after Fees taken receive much prejudice and sometimes the subversion of their Estates In this Case many men have much wished that either they were enjoyned to plead at one Barr only according to antient order so should they be certainly found and their Clients not frustrated of their help or else if that were not thought fit yet that some severe punishment may be ordained and afflicted on such Councellors as take Fees for several Courts in one day and do break with their Clients The 2d sort of Ministers towards The Abuse of Attornies the Law who do mislead the people in their Suits and sometimes make them misspend their money in undertaking of unjust Suits and setting on of men to causeless quarrels for their own private commodity are the Attorneys at Law who do divers ways offend and many of them offer much wrong First for their The Multitude of Attornies Multitude for they have increased to such a huge number of later years that they cannot chuse but make much work for the Lawyers and Law in the parts wherein they live as in the Courts of Records at Westminster First to begin with the Court of Common-pleas Since this Attornies of the Common-pleas Chief Justice of that Court came to his Place he commanding an Enquiry to be made by Jury of the number and condition of Attornies belonging to that Court it is said that there were no less than 800. of them found already by Jury so that the Complaint is common that every Scrivener and other mens Clerks who have desired that place paying a certain sum have been all thereto admitted to the no small hurt of the Subjects of this Kingdom But if the Lord chief Justice who hath begun this laudable course do perfect it with out remission to weed out both the excessive surplusage of their number and discharge all them that are ill conditioned or not of sufficient understanding and experience as no doubt but that there are divers of that sort and no question but he will doe it especially if he be required thereto By this good example other Courts of Justice may be purged of their ill members to the generall good of the whole Realm There is the like though not so great an excesse of Attornies in the Attornies in the Kings bench Kings Bench at Westminster wherein there are estimated to be about 200 and yet within the memory of some yet living there were not above eight or twelve at the most for indeed they ought not to be other than the Prignatories Clerks of that Court But besides these who only make out Writts there are nine parts of ten that are reckoned Attornies Attornies at large at large as they call them who neither take Oath nor have any power to make out Writts but yet every one of them keeps a Clerk and some two to write under them who must be maintained by their Masters countenance and sometimes they maintain their Masters by bringing Causes and Clients unto them these swarming in so great numbers cannot live and grow rich as many of them do without they hearten and increase Suits and stirs betwixt their neighbours which enormities might partly be reformed by the Statutes already made if they were put in execution and by some other provision for it should seem Provision made by former Laws against Attornies that former times have had trial of their abuses and care to reform them though there were not then such urgent cause to take a sharp course with them as at this instant By the Statute of the 4 of Henry the 4. every Attornie should be sworn truly to serve in their Offices but now no Oath at all given unto many of them especially to deal justly and uprightly other than for the profit of their Court. By the same statute if any Attornie were openly found in default by Record or otherwise he should forswear the Court and never after be allowed to prosecute any Suite in any of the King's Courts By a late Statute made 3 Jacobi nuper Regis Angliae none should be henceforth admitted Attornies in any of the King's Courts of Record but such as have been brought up in the same Courts or have been well practised in soliciting of Causes and have been found of honest disposition which Statute so well and lately made is already set aside and grown out of use By the same Statute no Attornie shall be allowed from his Client for any Fee or for any Disbursement in charge of Law without a ticket subscribed with the hands of them to whom the same is given or paid and shall give a bill subscribed with his hand of all such Charges concerning the said Suits But yet we see this Law no sooner made but already altogether infringed by the Attornies and Solicitors for it may be that some of them do deliver a Bill of the Charges but who is