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
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
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