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A54684 The antiquity, legality, right, use, and ancient usage of fines paid in chancery upon the suing out, or obtaining some sorts of original writs retornable into the Court of Common-Pleas at Westminster / by Fabian Phillips ... Philipps, Fabian, 1601-1690. 1663 (1663) Wing P2005A; ESTC R31118 24,218 54

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that the Defendant should have it if the Plaintiff did not make good his Action Which Justinian at the time of his compiling the Civil Laws finding almost grown out of use and thinking it fit to abolish did afterwards see cause enough to restore and set up again And it did come to be so usual and customary as there were Gratuitae Oblationes for remedies in matters of Right and Justice or for lawful favours and they were sometimes and not unfrequently called Pennam Auream quod tantum habeat Dominus de Assensu subscriptione quod posset ●ieri una Penna Aurea were frequently offered and paid And the Primiscrinius or Lord Chancellor or Princeps Praetorii omnium sportularum quae à litigantibus solvebantur particeps erat majus stipendium quam ceteri Officii summates perciptebat Which necessity or custome of paying Fines for Suits or Controversies was so well liked by the Goths and that inundation of Northern Nations which in the unweildiness of the Roman Empire and declension of it had overrun a great part of its European Territories as though they hated the Civil Law prohibited its use and did all they could to destroy and burn the Books thereof it obtained amongst them as good an entertainment as it had formerly in the Civil Law by an allowwance of that manner of depositing of the Decimam partem litis Notwithstanding which they did also after Judgement given exigere and carefully collect their Fredas or penalties imposed upon the Vanquished by the Judges as the Salique and Alman Laws and Customes do frequently evidence From whence it came to be in use amongst the old Franks now metamorphosed into the French a people once esteemed to be as free as their name imported and taken to be the Custodes Libertatis of that part of Germany there being then and for many Ages after no other expensae litis or charges given to him that prevailed in Law but the tenth part of the money so deposited until that Charles the fourth King of France who lived in the latter end of the reign of our King Edward 2. made a Law or Decree Ut victus victori in expensis teneretur That the party condemned should pay the charges of the other party yet so notwithstanding as the tenth part continued to be paid to the Exchequer Sportularum Judicii nomine or as Mercedes Judicantium for the rewards and fees of the Judges and their Maintenance In Hungary being an elective Kingdom where the people kept a continual guard upon their Liberties in the Minori Cancellariae Regis Taxa they did not think it in anno 1486. to be a grievance to pay for certain Writs or Letters a certain rate per cent and for many other Juxta quantitatem possessionis seu rei obtentae habita concordia inter Causantes Protonotarium And was in other Countries and Kingdomes by a custome of paying moderate Fees in Chancery upon the obtaining Writs or Process Remedial from the Prince or supreme Magistrate so allowable as in that great Dominion of Burgundy and its large extent of Provinces in anno Domini 1383. which was in the Reign of our King Richard the 2. the Fees or Rates of the Chancery were set and ordained Pour la lettre a Writ being no other then a short Letter or Rescript du petit seel pour le droit de Monseigneur Six Deniers pour le droit du Tabellion 3 Deniers le coadjuteur 11 Den. litera 3 Francorum usque ad 13 exclusive pro duobus Juribus 2 solidos sex den Turon de quibus Dominus Dux capit 17. Denarios Tabellio reliquum coadjutor 20. Denarios sic in totum duos solidos cum denario litera 120 Francorum being but seven pound English 15 Solidos 5 Den. Turon debet de quibus Dominus Dux capit 10 solid quinque Den. Turon pro Registro Tabellio capit reliquum pro coadjutore 55 Den. in litera retentionis bestiarum like our VVrits of Recordari to remove Plaints upon Distresses non computatur fructus neque Domus c. VVhich the Princes of the German Empire a people supposing themselves to be very free in a Diet under their Emperor Sigismond in ann 1425. which was in the Reign of our King Henry the 6. did hold to be so legal and reasonable as they ordained That in Cancellaria redemptiones literarum Judiciarum Conservatarum tenetur Antiqua consuetudo ejusdem Cancellariae and that for Fees of VVrits in Chancery pro literis generalibus 24 Denarii should be paid c. And in a Diet holden in anno 1546. and 1548. which wa● in the beginning of the Reign of our King Edward the sixth the Princes of Germany did ordain and limit the Taxes Cancellariae viz. amongst many other Rates pro simplici citatione unus Florenus quarta pars Floreni And when an Inhibition is inserted duo Floreni duo pars Floreni c. Atqui tamen cum aequum sit Cancellariae ob laborem operam in qualibet causa habere rationem aequam mercedem accipiat victores causarum quibus expensae adjudicantur in omnibus causis in quibus nullae sententiarum literae which before that time usually paid great Fees and being accounted unnecessary were left arbitrio partis whether he would sue them out or no sumuntur teneantur se cum administratore laborum operum ergo ad ipsius taxationem quam quovis tempore juxta magnitudinem qualitatem adeoque conditionem causae ac partium mediocri tolerabili modo faciat priusquam expensae ad taxandum producantur aut Executoriales Cancellariae partibus concedantur Notwithstanding that there is besides a collecta Provincialis quae Landsteur vocatur quae non nudè in signum subjectionis vi absolutae superioritatis sed pro fructibus emolumentis Jurisdictionis item procuris laboribus nec non ob recompensationem Expensarum quas Domini facere pati debent pro pace quiete tenenda inter subditos pro sua dignitate servanda pro salariis Officialium ad justitiam administranda exigitur Which Oblata ' s or Pledges beforehand towards the satisfaction of Costs and the Fine pro falso Clamore were in France by a Law or Edict of Charles the ninth made to be vectigal Judiciarum ad cohibendam litigatorum hominum indomitam effraenatam licentiam Quo vix ullum saith Bodin afflictis aerarii opibus utilius Galliae Imperio litium innumerabili multitudine oppressos splendidius cogitari poterat a kinde of Revenue out of the Law to lessen or take away those great multitudes of Law-suits with which France then abounded which brought a great supply to the publique Treasury and produced the effect intended And our Reforming Brothers of Scotland have found so little fault with those or the like Customs as the Lords of Secret Council and
with all but the multiplyed Deceits and Knaveries of their own Trades which with the adulterating and enhauncing of all Manufactures and Commodities have not onely lost and spoiled our Trade in forreign parts but do by the connivence of their Companies or Mysteries and for want of a due execution of Laws and Regulations of Falshoods yearly cozen and cheat the people at home as much as amounts to some Millions of Sterling-money or a great deal more then doubles our Taxes and not understanding the right reason just ends and intentions of our Laws nor distinguishing betwixt the right use and abuse of Laws of the which onely the Cozening part of the people are guilty neither contented to have gained so much as they had done by the Law and its residence at London could not be satisfied unless they could pull it all in pieces and make a Merchandize of it and believed a Citizen in a Committee by the study and help of ● Diurnals being the Tinder to the greatest of all Rebellions to be as grand a States-man as the late Lord Burleigh or as if he had been bound Apprentice to Solomon and served out his time in the compiling of his Proverbs and their multiplying costly Orders at 6 s. and 8 d. or ten shillings a piece for a few lines to be as great a blessing and refreshing to the people as the land of Promise was to those that had endured a forty years tedious journey thorow the wilderness and when as too many of themselves were and are by their tricks of Trade the grand superlative grievances of the Kingdome could at the same time raise their false and groundless clamours and scandals against the King the Church and the Laws because he would not quit his Regalities and suffer a rebellious and prevailing part of the people to enslave the residue and our Religion and Laws did forbid it In the midst of which Frenzies whilst the Trades-men did drive on the soldiers many of whom had been their Run-a-gate or Cast-off Apprentices and the soldiers were driven on and encouraged by some Lecturers men of extempore Non-sense rather then Divinity and the Devil leading them with his new lights and false expositions of Scripture and a gaining ungodly part of the people were busie in plundering and oppressing the loyal honest small and remaining part of them and used our excellent Laws and Customes as the Bactrians are said to do by their Parents when they are sick or aged and set their Canes Sepulchrales dogs kept on purpose to tear and devour them it would have been a wonder how any of the most refined Right Reason or Constitutions of our Laws could rest in quiet when the Graves of some of our British and Saxon Kings were in a most unchristian and barbarous manner opened and disturbed and their dust and bones cast into the Air and High-ways and the Book of God it self suffered a kinde of Martyrdome in their suspecting the Original and covering the sense and meaning thereof with ridiculous Notions and ignorant Interpretations Or that a very innocent and legal part of the Kings Revenue so well employed in the support and administration of Justice should escape a disturbance and therefore the Fines which were usually through many past Centuries and Ages paid in Chancery upon all Original Writs in personal Actions wherein the debt or damages demanded exceeded forty pounds must have its share in the suffering under those grand and continued persecutions of Truth Loyaly and Right Reason and be forbidden by an Act of a Factious part of the people supposing themselves to be the Commons of England assembled in Parliament and sacrificed but to the pretended Liberties of the people to the intent to leave them as little as they could of their Liberties in greater matters which being with other of our good Laws Customs worried and cryed down by the causless out-cries and clamors of those that better understood their own evil purposes designes in it then the Original institution benefit and right use of them could not rise again or be revived until that happy restauration of our King Religion Laws and Liberties nor then neither without the Cicatrices and skars of the wounds under which they formerly languished and as the imagination being once hurt is seldome ever after free from those melancholicque impressions which it once harboured so did those of a necessity of reforming our Laws or of supposed evils or grievances in them beget an ill opinion in the minds of the people where yet it sticks so much as some well-meaning and good men are not so willing as they should be to abandon the causless suspitions and prejudices which they had entertained of them and those illusions and inconsiderately-received impressions have as yet kept up in too many the humour of endeavouring to overthrow those and many other of our good Laws Constitutions which if Understanding or Knowledge may be the Judges or Touch-stone of them will appear to deserve a better usage The more then ordinary misapprehension whereof by those that build upon no better a foundation then the ignorance of its Legal Original and Right Use hath summoned my Duty to our Soveraign and his Laws to hinder what I may the unjust Censures and ill-advisedness of some people who are as ready to cast away their own good as those who to avoid a little cold which their delicacy and a surfeit upon peace and plenty cannot perswade them to endure can think it to be no small part of prudence to tear up and burn the planks of the Ship wherein they are sailing at Sea and far from the Shore and run the inevitable hazard of perishing by the fury of a cooler Element and that I might satisfie such as mislike the payment of Fines in Chancery upon some Original Writs and that it hath for many Ages past been a most Legal and useful part of the Crown-Revenue without any the least of grievance to the people or our so often reiterated Magna Charta or any other our Laws or Liberties and shew them that the usefulness and Legality of it is not taken away or diminished because a part of it is paid or goeth to the support of the Lord Chancellour or Lord Keeper of the great Seal of England for the time being in that great and as eminent as careful place of Administration of Justice in granting Writs Remedial or abating by moderation and equity the rigour and justice of the Laws many times too unconscionably made use of or put in execution by the people one upon the other who are to be enforced and kept from being over-severe or taking unjust advantages one upon another which hath taught the most of Nations to look upon that high and superlative Officer of State as greatly necessary and to give him allowances becoming so great and honourable a charge and employment insomuch as the very thrifty and prudent Commonwealth of Venice well understanding