veral Offices and Employments, by an eternal Law and Statute of God's own making, appropriate and allowed unto them, † Qui quod pingue baberent otium, non tantum omnia legis, fed & medicine aliarumque artium diligentar edifcebant ut Egyptii facerdotes who having Leifure, did as the Egyptian Priests, not only diligently study the Law, but Phyfick, and other Arts and Sciences. Ideoque (faith the learned Grotius) primis Sæculis ex illis ut eruditioribus Senatus LXX. virum legi maxime folebat. And therefore in the first Ages the Se nate of LXX. were for the moft Part commonly chofen out of them.

Which the Light of Reafon, that Divini luminis radius, did fo well inform other Nations, as the Athenians would not think it fitting that their ftanding and continual Senate or Court, and their Judges fhould be without their competent Allowances and Rewards. And their famous and popular Orator Demosthenes underftood to be fo neceffary, as in his Oration against Timocrates; he faith, Lex eft vobis fi qua alia præclara ut qui facras publicafque pecunias poffident in Curia pendant, fin minus ut Senatus ab eis legibus ufus telonicis, exigat, hac igitur lege Pres communes adminiftrantur, fi quidem quæ in conciones, facrificia, & fenatum, ES equites, & alias res pecuniæ impenduntur bujus beneficio legis abunde suppetunt, cum enim vectigalia non fufficiunt qua ad penfiones dicuntur metu legis bujus penduntur quomodo igitur non omnes Reipublicæ partes dissolventur cum vectigalium penfiones non fuerint fatis neque bac nifi in exitu anni capere liceat Senatus autem & Judices eos qui ad penfiones non folvant vinciendi poteftatem non habeant quid agemus? non conveniemus? nec deliberabimus fi opus erit & amplius popularem ftatum retinebimus? non judicabunt fora & privata & publica? non inibit Senatus & trace: tabit ea quæ legibus continentur ? at gratis fcilicet hæc faciemus? quid vero iniquius eft quam fi ex lege quam tu mercede corruptus tulifti populus & Senatus & Judices mercede fua priventur. And Sigonius, who had very learnedly and induftriously fearched and traced their Customs, adds hereunto his own Opinion, That banc confuetudinem Athenienfium intuens. Ariftoteles qui fuos de Reis publica commentarios diligenti omnium rerum publicarum obfervatione & maxime fi quis attendat Athenienfis confeciffe videtur fcripfit populare maxime effe mercedem omnibus dare concionibus Senatui Judiciis & magiftratibus & ex concionibus maxime ordinariis & magiftratibus imprimis iis qui una effe & inter vefci quotidie cogerentur.

pro

For when the Scripture itself can tell us, that Operarius mercede dignus, the Workman is worthy of his Hire, or to be paid for his Labour; and Justice it felf perfuades it, if the Client or Party immediately concerned, who is moft perly to do it, fhall not pay it, the King is to do it by a Stipend or Salary yearly, to be paid out of the common Treafury; Which being to be furnished or fupplied by the People, will return heavier again upon them, and lay as Burden upon thofe which fhould not bear it, or never in their Lives may have O cafion to fue for Remedies at Law, or be or be Petitioners either as Plaintiffs or Defendants for Juftice. arabic of2 odɔ sv., 1.8 And the Defendants, and fuch as are Innocent and Victors, must in thofe publick Affeffments or Contributions help to bear the Prince's Charges, and pay

any

+Grotius Comment. in 17. Deut. 9. Ibidem.

Demofthenes adversus Timocratem,

for the Plaintiff's unjuft Vexations, if no Fees or Sportula's should be taken, a conftant and yearly Salary fhould be given to Officers and Clerks; which unlefs it be large, cannot probably be adequate to the Skill, Industry, Labours, and Fidelity of the Officers and Clerks, which in the Cafualties and Contingencles of Actions and Bufinefs, cannot well be forefeen, or made to be proportion able thereunto by any juft Measure to be taken before-hand, or any Prospect which can poffibly 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 Purpofe of Justice: of if too little, put a finful Neceffity upon the Officers to do their Bufinefs lazily and carelefly, or ftir up in them a greedy and craving Appetite, and Temptation of taking the Advantages of all Opportunities to fatisfy thofe Appetites, or that which they fhall finfully conceive to be a Recompence for their Labours: The Wickedness and Inconveniences whereof, have been fufficiently held forth unto us by what hath been feen, felt, heard and understood in the yearly Stipends or Salaries, with a Reftraint of taking any other Fees heretofore given to Officers and Clerks, both in England and Scotland, in our late Times of Pretences, rather than Reformations; when thofe Publick Spirits, as they thought themfelves, made up of the Outfides of Holiness, did only gather in their Prey, and a greater than otherwife they could have done, under Colour of it. As

And the Plaintiff by paying and depofiting that most commonly fmall Sum of Money before-hand, or giving of it, doth it but in the Confidence of the Ju-S ftice of his Caufe, 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 abufing of the Ears of Juftice by his unjuft Complaint or Vexation put upon the Innocent, who having Cofts allowed him, and a Means to recover it, hath no Reafon to claim any Share or Part in the Money paid for the Fine, if it were a Depofitum, 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 Cuftom, if it were not an Oblatum (which it is rather conceived to be) to be paid to the King: Whofe Lord Chancellor hath towards his Support in that high and eminent Place and Care of Juftice under the Sovereign, one Part in four allowed him; the Mafter of the Rolls another Part; and the Curfitor or Clerk that makes the original Writ, the Moiety of 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 than now, amounted to no more then Five Thoufand Pounds per Annum amongst them all; or little more then a third Part of that mifcalled Sum of Twelve Thousand Pounds per Annum, which fome of the Members of the Long Parliament were (by the factious and giddy Calcula tions of thofe little Foxes that could fpoil any Vineyard they did but bark at) well contented to believe.

And muft otherwife 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 Bod Politick, is, as in the Natural, to be fupported by the Members. And with the greater Reafon in this particular of the Fines upon original Writs iffuing out of the Chancery, for that whether they be as Depofita's or Oblations, or Mulcts

ai

Mulets impofed pra falfo clamore, if the Profit were greater, it will be but a fmall Part of the People's 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 Minifterial Officers in the Administration and Execution of Justice, the fafe-keeping of the Records thereof; and giving cheap and eafily-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 than right Reafon, faith the excellently learned Sir Francis Bacon, that the benefited Subject fhould render fome fmall Portion of his Gain, as well for the Maintenance of thor and his own Eafe and Commodity arifing thereby; as for the SupportaRivulets and Springs of Justice, tions of the King's Expences, and the Reward of the Labours of those who are wholly employed in the making of Writs remedial. And therefore it was well faid by Littleton, 34 H. VI. fo. 38. That the Chancellor of England is not bound to make Writs, without the due Fees for the Writing and Seals of them, And hath had fo general an Allowance of Nations, as that the Cuftom of ing Fines, or fome little Oblations at the Commencement of their Suits, is at this Day continued amongst many of our Neighbour-Nations.

4

*

pay

For the Emperor or Great Duke of Ruffia hath five Alteenes, or fo many five Pence Sterling, for every Name containing in every Writ which paffed out of his Courts of Justice, befides a Penalty or Mulet of twenty Dingoes or Pence upon every Ruble for Mark, which is to be paid by the Party convicted by Law. snow mill bis dat

4

In Flarence and Tuscany †, Litigantes omnes cum primum a&tionem fuam inftituunt certam fummam Duci folvunt quam Sportulam vocant or Proclamation of King Charles IX. who reigned in France in the Time of our And by an Edict Queen Elizabeth, every Man is to depofit two Crowns upon the commencing of any Action, eafdem ab eo quem Judicio fuperaffet recuperaturus, aut fuæ teme ritatis fi vinceretur Justam pœnam laturust, to be had again and recovered of him which is overcome, or otherwife, is to loofe it as a juft Punishment for bringing his Action for that which he had no Right unto.

And the Dutch, who pretend fo much to Liberty, have taken it to be fo little or no Prejudice at all unto their Freedom, as they do in this our prefent Age or Century, befides Two Stivers taken upon every Order or Petition in any Court of Justice, for the leffer Seal with which the Paper upon which it is written is marked, and Four Stivers or our Four Pence Half-penny for a greater Seal im pofed, and do take at the beginning of every Action or Suit to be paid to the States, Thirty Stivers, or Three Shillings Englife, for every Fifty Florins, or Five Pounds Engh of the Sum demanded, as a Vectigal temerariè litigantium, a Fine or Punishment for thofe 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 fome Charge upon the Fertility of Contentions, and in punishing fuch as without juft Caufe of Action do moleft and trouble one another, have but done therein as the Hebrews or Children of Ifrael did, upon whom the Philippus Cæfius à Zefen in Leone Bel

Fletcher's Hift. of Ruffia. +Segethus de Principalibus Italiæ. Bodin lib. 6. de Repub

gico.

the Light of the Wisdom of the most High did firft fhine, when finding that Nation, as Rabbi Maimon faith, to be litigiofum genus hominum duplam rependere coegerunt qui debitum fcienter denegarent, & non incongruum facræ pagine videtur; and is not repugnant to the Reafon and Equity of God's own Law, wherein he ordained, that the* Trefpaffer fhould pay double Damages: which the paying of Cofts with us, either fingle or double, in finable or not finable Actions, did never arrive unto.

And is much better than, when as anciently, until a better Courfe and Way of bringing Men to Jultice was found out, by establishing of fixed and certain Courts, Times and Place of Justice with lefs Trouble to the People.

They did, where they did not foully 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 in Cunabulis, every one which hath travelled but eafy 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 Charle main the Emperor, wrote about eight hundred Years ago; and Bignonius's Notes or Comment upon him; it was the Cuftom in the Reign of Charlemain, that Judges being made itinerant by Commiffion to hear and determine Causes at the Houses of thofe that complained for Want of Juftice, did not only Freda exigere, take a third Part of the Fine or Penalty for themselves, and enforced their Entertainments to be defrayed; but redhibitiones, fome other Fees and Rewards to be given to them.

Infomuch as fome Abbies and Monafteries beyond the Seas, and our largely privileged Abby of St. Albans in England, who were well enough fitted for publick Entertainments and Hofpitality, and much used unto it; and diverfe great Cities and Towns, did fo little like of that Trouble which thofe kind of Judges t, and their then neceffary and greater Trains and Retinues brought upon them, as they made fhift to obtain Immunities and Privileges from their Kings to be freed from those kinds of Troubles.

Which may the more perfuade the right Ufage and Reasonableness of Fees in Courts of Juftice or Chancery, where the Reafon and Difference of Fees in and through all Ages and Times, in the Cuftom and Ufage 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 fpecial Care and Skill to be taken and used, as in a Real Action more than in a Perfonal. 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 leaft Order that is made Six Shillings and Eight Pence, and the House of Peers Fourteen Shillings and Six Pence, or more, according to the length; more in the Chancery for an Order than in the King's Bench or Common Pleas; and leffer Fees in the inferior or Pipowder Courts than in the fuperior: And therefore when a Justice of Peace fhall take Two Shillings and Four Pence for his Warrant or Writ, a Writ

*Exod. 22. 9.

+ Marculfus Formulas & Bignonii nota in eundem.

t Mat. Paris.

Write iffuing out of the High Court of Chancery may juftly claim to be as much, that of Six-pence which they have now for every Writ, befides the Fine; or where it is not finable, being far too little, and fo below Encouragement of their Labours, Fidelity and Well-being, as may put them either into a Carelefness of doing their Bufinefs as they fhould do, (which, when the Fines were put down, were fufficiently experimented) or a Temptation to do Things which they should not do.

to Or if the Fee but of Six-pence more fhould be added to their Fee for common-Writs, if the Fines fhould be taken away, and a Recompence of Seven Hundred Pounds or One Thoufand Pounds per Annum, granted by the King to the Lord Chancellor, and as much to the Master of the Rolls, and their Succeffors, for what they shall be Loofers by the taking away of the Fines, it would altogether amount to a greater Charge upon the People than it was twenty Years ago, when the Accompt of the Fines was a great deal more than in the last Year. supai ed of awo...f

And if they fhould have fo much for every common Writ, whereupon no Fine is paid, which in London, where moft Fines are paid, are not one in every twenty and in the Country where few finable Writs happen, are not one in every two hundred; the Charge thereof making many to bear the Burthen of a 1 few, would be unequal and unjust, and more to the Subject in general, than that which upon feldom or particular Cafes are now paid,

Which may please the People's Fancies, but will in the End or Confequence of it but delude their Imaginations; and they will really find no more Eafe thereby, than he that is to carry a Bufhel of Wheat fhall do, when he fhall put fome in his large Pockets, fome in his Boots or Stockings, or fome in a Hawking Bag at his Girdle, and carry the rest upon his Shoulders; or one that fhall be fo wife as to think a Pound of Feathers to be lefs in Weight than a Pound of Lead data y por

Wherefore all Things being as they ought to be duly confidered, and the great Benefit which all the People of England do receive by having a Court of Chancery, and Officina Juftitie, and the feveral Offices therein open, as well in the Vacations, as Terms to refort unto for their Writs Remedial, and of course, being as a Balm of Gilead, never denied to any that want it ; and not being put to petition for them to the King or his Lord Chancellor, as anciently and originally all Men did for their Writs, or to be at much Expence of Money and Time to obtain Orders thereupons and that Men of no ordinary Judgments, and Experience in the Courts of Common Pleas did find themselves deceived in their Opinions, when they did verily believe that when the Fines in Chancery fhould be taken away, as they were for fix or feven Years in the Time of the late Confufion and Ufurpation, by an Act of Parliament, as it was then focalled, a great Encreafe of Bufinels would have followed ins that Court, but could never perceive any: or if any, it was fo very fmall as it was not difcernable. When it is well known, that Fines (when the Bufinofs was by many Times or Parts a great deal more than now it is) were chearfully and willingly paid. I That the Unwillingness of fome of the People to pay them, is by Reafon of an illegal Track or beaten Road of fuing Actions in the King's Bench, which do by Law belong to the Court of Common Pleas, and the Attorneys of the Court

VOL. III.

of