Crowns upon the commencing of any Action eosdem ab eo quem Judicio superasset recuperaturus aut suae temeritatis si vinceretur Justam poenam laturus to be had again and recovered of him which is overcome or otherwise is to loose it as a just punishment for bringing his Action for that which he had no right unto And the Dutch who pretend so very much to Libertie have taken it to be so little or no prejudice at all unto their freedom as they do in this our present Age or Century besides two Stivers taken upon every Order or Petition in any Court of Justice for the lesser Seal with which the paper upon which it is written is marked and four Stivers or our four pence half-peny for a greater Seal imposed and do take at the beginning of every Action or Suit to be paid to the States thirty Stivers or three shillings English for every 50 Florens or five pounds English of the sum demanded as a Vectigal temerariè litigantium a fine or punishment for those which do not maintain or make good their Actions which far exceeds the rate and manner of our Fines paid upon the beginning of every Action And by laying some charge upon the fertility of contentious and in punishing such as without just cause of Action do molest and trouble one another have but done therein as the Hebrews or children of Israel did upon whom the light of the wisdome of the most High did first shine when finding that Nation as Rabbi Maimon saith to be litigiosum genus hominum duplum rependere coegerunt qui debitum scienter denegarent non incongruum sacrae paginae videtur and is not repugnant to the reason and equity of Gods own law wherein he ordained that the trespasser should pay double damages which the paying of costs with us either single or double in fineable or not fineable Actions did never arrive unto And is much better then when as anciently until a better course and way of bringing men to justice was found out by establishing of fixed and certain Courts times and places of justice with less trouble to the people They did where they did not fouly contend or fight it out by the bloody and direful chance of might or power of parties make choice of Arbitrators and bear their charges which when the law was in Cunabulis every one which hath travelled but easie journies in the Civil Law and the Law of Nations knows to be frequent to meet at an equal distance or other convenient place or at their houses Or when as it appeareth by Marculfus who living near the time of Charlemain the Emperour wrote about 800 years ago and Bignonius Notes or Comment upon him it was the custome in the reign of Charlemain that Judges being made itinerant by commission to hear and determine causes at the houses of those that complained for want of justice did not onely Freda exigere take a third part of the fine or penalty for themselves and enforced their entertainments to be defrayed but redhibitiones some other fees and rewards to be given to them Insomuch as some Abbies Monasteries beyond the Seas and our largely priviledged Abby of St. Albons in England who were well enough sitted for publick entertainments and Hospitality and much used unto it and divers great Cities and Towns did so little like of that trouble which those kind of Judges and their then necessary and greater trains and retinues brought upon them as they made shift to obtain immunities and priviledges from their Kings to be freed from those kind of troubles Which may the more perswade the right usage and reasonableness of Fees in Courts of Justice or Chancery where the reason and difference of Fees in and through all ages and times in the custome and usage of Courts in this and all places of Christendom have been grounded and made to be 1. According to the labour in writing 2. A more special care and skill to be taken and used as in a Real Action more then a Personal 3. The quality of the Judge And the superiority or eminency of the Court which granteth it As more in Parliament where the House of Commons takes for the least Order that is made 6 s. 8 d. and the House of Peers 14 s. 6 d. or more according to the length more in the Chancery for an Order then in the Kings Bench or Common Pleas and lesser Fees in the inferior or Pipowder Courts then in the superior and therefore when a Justice of Peace shall take 2 s. 4 d. for his Warrant or Writ a Writ issuing out of the high Court of Chancery may justly claim to be as much that of six pence which they have now for every Writ besides the Fine or where it is not fineable being far too little and so below an encouragement of their labours fidelity and well-being as may put them either into a carelesness of doing their business as they should do which when the Fines were put down were sufficiently experimented or a temptation to do things which they should not do Or if the Fee but of six pence more should be added to their Fee for common Writs if the Fines should be taken away and a recompence of 700 l. or 1000 l. per ann granted by the King to the Lord Chancellor and as much to the Master of the Rolls and their successours for what they shall be loosers by the taking away of the Fines it would all together amount to a greater charge upon the people then it was twenty years ago when the accompt of the Fines was a great deal more then in the last year And if they should have so much for every common Writ whereupon no Fine is paid which in London where most Fines are paid are not one in every twenty and in the Country where few fineable Writs happen are not one in every two hundred the charge thereof making many to bear the burthen of a few would be unequal and unjust and more to the subject in general then that which upon seldome or particular cases are now paid Which may please the peoples fancies but will in the end or consequence of it but delude their imaginations and they will really finde no more ease thereby then he that is to carry a bushel of Wheat shall do when he shall put some in his large Pockets some in his Boots or Stockings or some in a Hawking-bag at his Girdle and carry the rest upon his Shoulders or one that shall be so wise as to think a pound of Feathers to be less in weight then a pound of Lead Wherefore all things being as they ought to be duely considered and the great benefit which all the people of England do receive by having a Court of Chancery and Officina Justitiae and the several Offices therein open as well in the Vacations as Terms to resort unto for their Writs
corruptus tulisti populus Senatus Judices mercede sua priventur And Sigonius who had very learnedly and industriously searched and traced their customes addes hereunto his own opinion That hanc consuetudinem Atheniensium intuens Aristoteles qui suos de Reipublica commentarios diligenti omnium rerum publicarum observatione maxime si quis attendat Atheniensis confecisse videtur scripsit populare maxime esse mercedem omnibus dare concionibus Senatui Judiciis magistratibus ex concionibus maxime ordinariis magistratibus imprimis iis qui una esse inter vesci quotidie cogerentur For when the Scripture it self can tell us that Operarius mercede dignus the work-man is worthy his hire or to be paid for his labour and Justice it self perswades it if the Client or party immediately concerned who is most properly to do it shall not pay it the King is to do it by a Stipend or Salary yearly to be paid out of the common Treasury which being to be furnished or supplyed by the people will return heavier again upon them and lay a burden upon those which should not bear it or never in their lives may have any occasion to sue for remedies at Law or be Petitioners either as Plaintiffs or Defendants for Justice And the Defendants and such as are innocent and Victors must in those publick Assessments or Contributions help to bear the Princes charges and pay for the Plaintiffs unjust vexations if no Fees or Sportula's should be taken but a constant and yearly Salary should be given to Officers and Clerks which unless it be large cannot probably be adaequate to the skill industry labours and fidelity of the Officers and Clerks which in the Casualties and Contingencies of Actions and Business cannot well be foreseen or made to be proportionable thereunto by any just measure to be taken before hand or any prospect which can possibly be made of it And therefore a yearly Stipend or Salary being likely to be either too narrow or too large Will if plentiful or too much violate the Rule or purpose of Justice or if too little put a sinful necessity upon the Officers to do their business lazily and carelesly or stir up in them a greedy and craving appetite and temptation of taking the advantages of all opportunities to satisfie those Appetites or that which they shall sinfully conceive to be a recompence for their labours the wickedness and inconveniences whereof have been sufficiently held forth unto us by what hath been seen felt heard and understood in the yearly Stipends or Salaries with a restraint of taking any other Fees heretofore given to Officers and Clerks both in England and Scotland in our late times of Pretences rather then Reformations when those Publick Spirits as they thought themselves made up of the Out-sides of Holiness did onely gather in their prey and a greater then otherwise they could have done under colour of it And the Plaintiff by paying and depositing that most commonly small sum of money beforehand or giving of it doth it but in the confidence of the Justice of his Cause and hopes to recover it of him that did him wrong And if his Action proves to be unjust did but justly pay for his abusing of the Ears of Justice by his unjust complaint or vexation put upon the Innocent who having Costs allowed him a means to recover it hath no reason to claim any share or part in the money paid for the Fine if it were a Depositum for that it would then be as a Caducum or thing which neither the Plaintiff nor Defendant after it is paid can have any Title unto and is therefore according to the ancient custome if it were not an Oblatum which it is rather conceived to be to be paid to the King whose Lord Chancellour hath towards his support in that high and eminent place and care of Justice under the Soveraign one part in four allowed him the Master of the Rolls another part and the Cursistor or Clerk that makes the Original Writ the moyety or the other two parts And in the highest time of Suits in Law of that kind when they were four times as much or more then now amounted to no more then 5000 l. per annum amongst them all or little more then a third part of that miscalled sum of 12000 l. per annum which some of the Members in the Long Parliament were by the factious and giddy Calculations of those little Foxes that could spoile any Vineyard they did but bark at well contented to believe And must otherwise as to their support and employment have been satisfied either by the people or the King which as the Head and well-being of the Body Politick is as in the Natural to be supported by the Members And with the greater reason in this particular of the Fines upon Original VVrits issuing out of the Chancery for that whether they be as Deposita's or Oblations or Mulcts imposed profalso clamâ—re if the profit were greater it will be but a small part of the peoples retribution and thankfulness for the great charges of the King amounting to near as much as twenty thousand pounds per annum for the Salaries of his Judges and Ministerial Officers in the administration and execution of Justice the safe-keeping of the Records thereof and giving cheap and easily-to-be-obtained remedies to his subjects and people for all their complaints and grievances who cannot without the blemish of a great Ingratitude take it to be any thing less then Right Reason saith the excellently learned Sir Francis Bacon that the benefited Subject should render some small portion of his gain as well for the maintenance of those Rivulets and Springs of Justice and his own ease and commodity arising thereby as for the supportation of the Kings expences and the reward of the labours of those who are wholly imployed in the making of VVrits Remedial And therefore it was well said by Littleton 34 H. 6. so 38. That the Chancellor of England is not bound to make VVrits without the due Fees for the writing and seals of them And hath had so general an allowance of Nations as that the custome of paying Fines or some little Oblations at the commencement of their Suits is at this day continued amongst many of our Neighbour-Nations For the Emperour or great Duke of Russia hath five Alteenes or so many five pences sterling for every name contained in every Writ which passeth out of his Courts of Justice besides a penalty or mulct of 20 Dingoes or pence upon every Rubble or Mark which is to be paid by the party convicted by Law In Florence and Tuscany Litigantes omnes cum primum actionem suam instituunt certam summam Duci solvunt quam Sportulam vocant And by an Edict or Proclamation of King Charles the 9. who reigned in France in the time of our Queen Eliz. every man is to deposite two
Session as they there are called did no longer ago then in anno 1606 in the Reign of King James the sixth by his Commission limit and set down the Prices or Fees to the Director of the Chancery which varied according to the qualities of the persons and values of the matters or things as twenty shillings Scots money for a second or third Precept and for a Summons of Errour past the quarter Seal four pounds Scotish money and to the Keepers of the Signet ten shillings Scots money for a Summons which were ratified by Act of Parliament in that Kingdom in anno Dom. 1621. And do at this day keep their Chancery and the Fees and Profits thereof so high as for a Defendants entring into a Recognizance or Obligation in a Suit depending before the Lords of Session or Court of Justice so called which with us without passing the great Seal would not have cost twenty shillings being to pass the Seals in their Chancery no less then fourty pounds Sterling is demanded for the incident charges thereof Long before which and many of those or the like Customs in other Nations the payment of Fines in England upon Original Writs issuing out of the Chancery did by imitation of the Greeks and Romans or the light and law of Nature and the same or a like reason very early come unto us As may be perceived by that Law of King Ina in anno 720. when the Defendant did pignora deponere ante litem aestimatam And by the Wytas Overseunesses and emendationes pacis paid to the King in the time of our Saxon Ancestors and King Henry the 1. and the Sachas which were in that nature paid in those days to the Lords of Mannors upon Suits or Actions in their petty Courts And it appears by the Fine-Rolls in the Reigns of King John H. 3. E. 1. E. 2. and until 25 E. 3. that Fines were paid upon very many if not all manner of Writs Original issuing out of the Chancery and even upon Actions of Trespass and being since 25 E. 3. by the grace and favour of the Chancery and Chancellors notwithstanding divers Petitions in Parliament in that Kings Reign to some of which he had given negative Answers and to others referred them to the Chancellor to deal favourably with them therein reduced to that which they now are viz. where the debt or damage demanded and expressed doth exceed the sum of forty pounds there is onely paid six shillings and eight pence from thence to one hundred marks and thence to one hundred pounds ten shillings and so proportionably according to that rate as the sum of money demanded and expressed shall exceed the sum of one hundred pounds Which probably might be so limited or restrained by occasion of a petition of the Commons in Parliament in the 25 year of the Reign of King E. 3. where they did pray That les graces de la Chancellarie pour briefs avoir ne sont desormes si dures nési Estreites come ore ont estre de novel quar home en prent ore en la Chauncellerie Fins de chescun maner de briefs ceux Fins serront paier maintenant en le Haneper que de ceo en arere ne estoit fait quel chose est si grant damage au peuple que gentz ne poient leur droit poursuier par reasone de le grant charge susdite en granâ—â—rrerissement de profit le Roy. To which the King answered Il plest au Roy que le Chaunceller soit si gracious come il purra bonement sur le grant des briefs considerant l'estat des persones quiles pourchasent And may with probability and warrant enough be well conjectured to have been if not as those ancient Deposita's which the Romans and the Civil Laws might long before have introduced or as the customs in the Empire or large walk or extent of the Civil or Caesarean Law have brought into a well-allowed Praxis yet as Honoraria's or Oblata's Retributions or Free-will-offerings of the people for favours received Of which some of the Fine-rolls of King Johns time do bear that Title Where it appeareth that Abbas de Burgo dat Domino Regi unum Palfridum pro habendo brevi de nova disseisina Johannes le Tanner dat dimid marcam pro habendo Pone coram Justic. domini Regis apud Westemonasterium Magister Honorius Archidiaconus Richemund dat unum Palfridum pro capiendo quosdam Excommunicatos And before the custome of giving or assessing Costs either to Plaintiffs or Defendants the Plaintiff could not as appeareth by the form of the Original Writs mentioned by Glanvil Lord Chief Justice of England when he wrote his Book de Consuetudinibus Angliae in the Reign of King Henry the second prosecute his Action upon an Original VVrit which was then for ought appears to the contrary long before used and accustomed nor have any thing done by the Sheriff to whom it was directed or any process out of the Court of Common Pleas where it was made retornable before he had put in to the Sheriff two real Sureties or Pledges de clamore suo prosequend which for some Ages after continuing it was in 36 Edward the third ordained by Act of Parliament That Costs should be taken before the Justices in the presence of the Pledges and that the Pledges know the sum of their Fine before their departing But it being afterwards found to be an obstruction of Justice and a denial or delay of it where poor men or of low and mean condition were not able or could not without great trouble or inconveniencies before-hand procure Sureties in their Suits or seeking for Justice especially against rich or potent Adversaries although the Judges did by discretion of Court not seldome as the Records do witness propter paupertatem dispense with the putting in of Sureties to prosecute it did by reason of a more rational or speedy way and course of taxing or assessing Costs and putting it in the same execution for the principal debt or cause of Action grow into a desuetude and a meer formality of retorning Pledges or Sureties for the payment of the Costs to the party vanquishing and the Fines which were before carefully collected for the King and together with the Misericordia's which upon non Prosequendo's and upon every Judgement are now onely entred with a Misericordia in the Margent and made a considerable Revenue to the King as by the Estreat-Rolls of the Iters or Circuits in the Reign of King Edward the first may appear being not now imposed the feigned and usual names of John Doo and Richard Roo to avoid alterations in the Formula's or Proceedings of the Law and the evil consequences which do often happen by Innovations do onely yet remain to tell us the former reason and designe of the Law therein Which payments of Fines upon the suing out of Original Writs in debt for sums of mony for which
Fines are to be paid according to the usage and course of Chancery may be as warrantable as that which is not to this day complained of or denied upon Writs of Formedon and other real Actions but willingly paid in to the Hanaper in Chancery or that profit which heretofore came to the King upon Writs of Assize of Novel disseisin where the Sheriffs did before the Statute of Westminst 2. take an Ox of the Disseisee or of him which purchased an Assize and were by that Statute commanded that they should not upon Writs of Assize which were then the usual remedies in many real Actions and sometimes in Trespass from thenceforth take an Ox of the Disseisee but of the Disseisor only nor receive any Ox but of five shillings price or value Or the half Mark usually paid by the Tenant or Defendant upon the Mise joyned in a Writ of Right that the grand Assize might enquire of the time that the Demandant alleadged he was seized of the Lands in question for it seemeth saith Littleton who was a Judge and wrote his Book after the fourteenth year of the Reign of King Edward the fourth that the grand Assize ought otherwise to be charged onely to enquire of the meer Right and not of the Possession c. And was no selling and bargaining for Justice as some have groundlesly supposed and may rectifie their errours by a due consideration that for our Magna Charta it self which was confirmed in the ninth year of the Reign of King H. 3. and wherein nulli vendemus Justitiam is provided and ordained the people of England did give to the King the fifteenth part of all their Moveables that in the levying of Fines for common assurance there is and hath been anciently a Dat. Domino Regi mony given or paid to the King pro licentia concordandi in the Court of Common Pleas at Westminster that for private Acts of Parliament at this day as well as heretofore Fees to the Speaker of the House of Commons and the Clerks thereof are usually paid without any sale of Justice or contradiction supposed of that branch of Magna Charta that in the Statute of 18 E. 3. and the Oath thereupon given to the Judges that they shall take no gift or reward nor any Fee of any person there is an exception unless it be meat drink or of small value For by the same reason that Fines upon some Original Writs for they are but upon some few are supposed to be a selling of Justice the Cursistors Fees ordained by the Statute of Westminster the second in anno 13. E. 1. to be but a penny for every Writ which the price of victuals and way of livelyhood which is now a great deal more then formerly considered amounts unto as much as ten pence for every Writ and will not now buy as it would do then the sixtieth part of an Ox which was then valued but at five shillings and the Fees of the Virgers and the Chyrographer in the Court of Common Pleas and all those many other Fees ordained by Act of Parliament would be as they are not a selling of Justice and a breach of Magna Charta and unwarrantable And howsoever those due and warrantable Fees which are paid to Clerks and Officers of Courts and the Fines which are paid upon Original Writs excusing greater Fees to the Cursistors who could not otherwise be contented with a pitiful Fee of six pence for the writing of every Original Writ cannot bear any proportion or resemblance of a Bribe or of the Kings or any of his Judges selling of Justice and if it did as it cannot being always paid by the Plaintiff must then conclude that all Plaintiffs must of necessity never or seldome fail of their designes or recovery which dayly experience manifestly contradicteth nor can possibly be so understood whenas in every Action the Defendants do pay Fees as well as the Plaintiffs Neither can it be any breach of Magna Charta or injury done to the clause therein of nulli vendemus Justiciam when as the wisdom of former as well as of later Parliaments did always foresee and allow of a necessity of something to be paid to the Judges Officials or Ministers of Justice in the obtaining or expediting of it for a provision and maintenance to support and encourage them in giving a dispatch to the people who came for remedies to the Courts of Justice or the Chancery And the Statute of Westminster the second which was not long after the making of Magna Charta intended certainly just recompences to the Clerks and Officers when it ordered them to use so great a diligence and care in the dispatch of justice to all that came for it as ne deficiat Justicia conquerentibus concordent Clerici c. all good ways and means were so to be taken by framing and forming of Writs according to every mans particular case ut nullus recedat â Cancellaria sine remedio For which the King was at charges to the Officers and Clerks of the Chancery for Robes and Liveries to be yearly given them and the Keepers of the Seal took care for their Diet and other conveniences as may appear by the usage and course of that Court in the Reign of King E. 3. when the King conceived himself to be so much concerned in it as Writs were frequently sent to the Sheriffs and Bayliffs tam infra libertates quam extra to be aiding and assisting to the Pourveyors for the Chancery in diversis providenciis or Pourveyances de Pane vino Cervisia Carnibus puletria aliis victualibus feno avenis litteris cariagiis ad opus ipsius Cancellarii the Bishop of Winchester being then Chancellor pro denariis suis solvend when as also the profit arising by the Fines in those times and long after were collected and accompted for in the Exchequer And that or the like maintenance or support is again to be given to them or the Lord Chancello◠for them if the King should not be pleased to allow the profits arising by his Fines upon Original Writs in personal Actions to the Lord Chancellor or Lord Keeper and the Master of the Rolls for the support of those high and honourable Offices and Places which they hold and the Cursistors for their better encouragement in the service of the King and his people in Chancery in their several Orbs and employments or otherwise the people who will not do anything themselves without pay or sell their victuals to them without money are to pay the Cursistors such other Fees as their attendance skill and labour shall merit And therefore if the Statute of Westminster the second had not informed us that besides their provisions and livelyhood then provided for them they had their Sportula's Fees and encouragements allowed them for making of every Writ which with their victuals and necessary provisions made a greater benefit considering their then most