CHAP. I. Of the Carriage and Demeanour of a Sollicitor.

MAn is not born to live with his arms across; but rather, as one of the most necessary members of this beautious Frame of the world, he must conferr and con­tribute his whole travel and pain, to the con­duction and conservation of that civil society in which he is placed; not only to the good of himself, but of others also. But because that in the choice which men make of a Calling, their happiness in the managery thereof doth depend; and that nothing so much avails to the leading a contented life, as when they find themselves [Page 2]fit for the same; they ought before all other things, to take a tryal of their own strength, and seriously bethink themselves of that charge they are about to embrace; because usually we presume too much upon our own strength, and attempt more then our ability is fit to atchieve: and this errour we see is incident almost to all our actions. Hence it is, That some will spend more then their estates may well bear; others, in labouring and toyling, go beyond their abi­lities: some are not masters of their passions; others there are, that in dalliance and sporting, waste their time: and another sort there are, who are so vehemently Satyrical, that they will not spare any person, no not the Prince, although thereby they incurr the hazard and penalty of loosing their heads. Some are unapt to man­age publick affairs, as being of a sullen and so­litary humour, or of a slack and slow disposition; and others as unfit for all employment, as any of the aforementioned, for that they be either obstinate in opinion, or discourteous and boorish in their behaviour and carriage. And that which maketh us to fall into these faults, is, for that we do not throughly see and look into our Selves. Whence it cometh to pass, That thus neglecting to take a true tryal of our own towardness and strength; we do often under­take business of such gravity and weight, as that afterwards we must either abandon them with [Page 3]ignorance and shame, or else to go on with them, we must needs suffer much grief, pain and dis­pleasure.

Now that a man may the more warily weigh an affair before he put his had to the plough, (as we say) or his back to the burthen, let him remember, hat the Bearer must always have more pith then the Burthen: for if it be too great or too heavy, who seeth not but that the Undertaker shall be constrained either to leave it, or else to sink and fall under it, ere it be long? It be­hooveth us also to consider, That there are d [...]vers kinds of affairs; some whereof are hard, uneasy and difficult; not so much, for that they be weighty and important of themselves, as for that they be matched and mingled with a mul­titude of other toylsome and troublesome busi­nesses which continually attend and wait upon them. I speak not this to dismay, or so to dis­courage any man, as to make him decline and eschew the undertaking of necessary and needful. Employments, (such as is this of our Sollicitor) because of the many Encumbrances and Cares wherewith they may be accompanied; so that not daring to intermedle with any matter of mo­ment, he should abide without business: But this is my whole intent and meaning, that seeing a mans life is naturally subject to pains, trou­bles and cares; it behooveth a man so wisely and warily to demean himself, that if it be his [Page 4]fortune to undertake the managing of any bu­sinesses, he neither be so feeble-hearted as to shun or relinquish them for their difficulty; nor yet so fool-hardy as to undertake such affairs as go beyond the reach of his ability. It behooveth therefore diligently to consider every underta­king; for, for want thereof, many have fallen into such kind of Employments, as have been painful for them to bear, and yet more uneasie to be abandoned: which being a case of so great difficulty, doth require both much prudence and patience; the two only proper remedies to lighten and ease an evil: with which two ver­tues, our Sollicitor ought in an especial manner to be indued, as being to encounter a hard and difficult study to gain the Knowledge of the Law in some reasonable measure, before he can, or ra­ther ought, to be admitted to the practick part; which as it hath in it something of gain and profit, so hath it also its extraordinary toyle and labour; which, its true, at the first seemeth very irksome and tedious; but, by continual usage, becomes even as a natural habit. Just like poor Prisoners, who suffer with great pains and torment at first the weight of the fetters that are put upon their legs; but after they are once ac­customed thereto, necessity teacheth them, by the constant wearing thereof, not to think the same so burdensome. By which it appears, there is no manner of life, how strict, hard, and [Page 5]laborious soever it be, which hath not some kind of sollace and refreshment, one or other, to sweeten the same. And truly there is not any one thing wherein Nature hath so much favour­ed mankind, as this, That she maketh us find the remedy and mitigations of our misfortunes, cares, toyle and labour, even in the very suffe­rance and undergoing of the same.

The case then so standing, as it doth, that man is born obnoxious and subject unto all manner of miseries, and that his whole life is nothing but a servitude, wherein every one ought to take good heed how to demean himself in his Calling, and how he may content himself therein, winking at that which is evil in it, and applying himself to that which is good: for there is no Calling (as I faid before) howsoever painful and toylsome it be, wherein the patient soul doth not find some contentment and gain; though that cunning and skill be more exquisite in time of Adversity, than of Prosperity: for when as difficulties do present themselves, then must we gather all the forces of our wits toge­ther, and set our whole vigour and vertue against such eminent and present evils.

Moreover, Envy and Ambition are the two Cankers that corrupt all that are once tainted therewith, and blear the eyes, so that they cannot see to perform their duty aright, and as they ought to do. And therefore our Sollicitor [Page 6]must not bear envy against such as are in higher place than himself, but ought to content himself in his proper station. For it is a main step to attain both Practice, Love and Preferment, when he does prudently and discreetly carry himself in that Estate and Calling which he hath made choice of, taking patiently the evils that fall out therein, and endeavouring to redress such Accidents as cross his desires. And for this cause Plato did compare the life of man to the play at Dice, whereat whose­ever doth play, ought alwayes to strive to have a fair throw, and yet should content himself with any Cast that cometh. The want of this satisfaction, maketh men of weak wit, upon the fortunate success of any busi­nesse, so to be elated and transported, that they scarcely know they do; they grow so in­solent, that no man can keep them company; they can abide no body, and no body can abide them: but if either by neglect, want of management, disfavour, or ill fortune, they are crossed in their designes, (though never so contrary to Reason) they are so enraged or amazed, that you shall see them like unto one sick of a long and languishing disease, which can nei­ther abide heat nor cold.

The Philosopher Theodorus was wont to say, That he gave his Scholars instructions and lessons with the right hand, but that they [Page 7]received them with the left. And so doth it fare oftentimes with not a few, who with the left hand take hold of that luck, which Providence reacheth to them with the right. It were much better, in my judgment, dis­creetly to imitato the wise diligence of the Bees; which of Thyme, that is but a dry and harsh herb; extract and confect sweet and pleasant honey: so should every man in his station, out of the troubles and sollicitudes of his life, draw whatever is good therein; and in the mean time, chase away what is evil, or so ease and over it, that it may not be dis­cerned. And who knoweth not, but that such as exercise themselves in the actions of ver­tue, can by a secret and supernatural kind of Alchymy, draw good out of evil? Diogenes was banished; but he made good use of his banishment, in that he did in the mean time betake himself unto the study of Wisdom. And this shall not be so difficult and hard to do, as it seemeth to be, if by frequent exer­cise he do endeavour to acquire the habitude and setled custome of living content in his condition. Can ye not abide in the houses of Princes or great men? Content you then with your own. Do ye find your self incapa­ble to govern, or sit at the Helm in the Com­monwealth? Play then the good Citizens part, and be content to obey: for it is ex­pedient, [Page 8]that he that will undertake to be a Sollicitor in every way compleat, must hold and keep a certain stayed and setled manner of living, and must not vary and change with every winde. Ye may see many, much sub­ject to this Vice (for so I must call it) of chan­ging their manner of living from day to day, so that they cannot ground or settle themselves upon any thing whatsoever. They appear like Proteus, never long in a shape: modo Causidi­cum, modo Rhetora, as the Poet speaks; where­in they resemble such as have never been ac­customed to the Sea, who assoon as they begin to sayl, run out of one Vessel into another, leaving the bigger to put themselves into a lesser, and by seaving the lesser to return to the bigger again. And thus they continue in changing, untill what time they know clearly that nothing can fit them, because that whi­thersoever they go, their queazy stomacks do still keep them company, and consequently their vo­miting-disease.

Likewise those that bring their passions with them unto their affairs, do seek incessantly af­ter a new manner of living, and never accom­plish what they have once begun. All things go against their stomacks, all things displease them; whether to be idle, or to be employed; to serve, or to command; to be married, or to be single; to have children, or to have none [Page 9]at all: finally, nothing doth fit their fancy, no­thing doth satisfy their desire, save only that which they have not: and such me-thinks must need, live miserably and restlesly, as Prisoners fettered in perpetual pain.

There is likewise another manner of men not much unlike the former, that cannot keep themselves quiet, nor be at any settlement, in any time, or in any place. They cease not to go and to come; alwayes intermedling with affairs, without being thereunto called; and busying and bestirring themselves about that which in no wise concerneth them. These men, when they go out of doors, they run along the streets; they haunt the publick places, and then they return home full of vexation and weariness, without any designe: for there is nothing that doth so much irk and weary mens minds, as to labour in vain. They are like unto the little Ants, which do creep upwards upon Trees; and after they have mounted up to the top, have but the pains to creep down again the same way that they went up, without bringing down with them any good at all. Many live in this manner, whose life is nothing else but a boyling leisure, full of tumults and toyls. Ye shall see them posting on with such vehemency and speed, as if they would carry away with them all that they find before them. The publick places, the Churches and Mar­kets, [Page 10]are ordinarily full of such Folks. These be they which forge and frame News at pleasure: They wi [...]l be scanners of all mens worths, and the givers of Garlands: Th [...]y will talk lavishly of other mens lives, and discourse of other mens offices. But the actions of a well-advised man, (such as a com­pleat Sollicitor ought to be) tend alwayes to some certain end; neither doth he burthen himself with more businesses then he can with conveniency turn his hand to, and put in exe­cution: according to that of Cicero, Omnis Cogi­tatio motus (que) animi aut in co [...]sil [...]is capiendis de rebus honestis, & pertinentibus ad bene beate (que) vivendum; aut in studiis scientiae cognitionis (que) versabitur: Omnes enim trahimur & ducimur ad cognitionis scientiae cupiditatem: in qui ex­cellere p [...]lchrum putamus; labi autem, & crrare, nescire, decipi, & malum & turpe ducimus: That is: ‘Every thought and motion of the mind ought to be employed either in con­sulting of honest things, and such as may lead to a good and happy life; or in the study of Arts and Sciences, and the way to gain knowledge: for we are all drawn, or, as it were, led by the hand to a desire of getting knowledge, and bettering our understanding: wherein to excel, is accounted an excellent thing; but to stray, deviate, be ignorant, and easie to be deceived, not only by others, [Page 11]but also by our selves, is counted a great stain to reputation.’

CHAP. II. Of the Qualities wherewith a Sollicitor ought to be endowed, to make him compleat.

THe former Chapter having treated in ge­neral of the necessity of knowledge to be sought and acquired by all men, we shall in this now descend to particularize the qualities wherewith every one ought to be endued, that in­tends to take on him the business of Sollicitation. To which purpose, we shall observe five things:

• First, He ought to have a good natural wit.
• Secondly, That wit must be refined by edu­cation.
• Thirdly, That education must be perfected by learning and experience.
• Fourthly, And lest, Learning should too much clate him, it must be balanced by discretion. And,
• Fifthly, To manifest all those former parts; it is requisite, that he have a voluble and free tongue to utter and declare his conceipts.

First, He ought to have a good natural wit, nor too slow nor too quick. Not too slow: for men of slow capacity are for such weighty under­takings altogether unfit; their conceit being [Page 12]so tough, that neither the Rules of Learning' nor Precepts of Wisdome, nor habit of Virtue, can make any Impression. Tardis mentibus vir­tus non committitur, saith Cicero; for the [...]r dul­ness is an enemy to Wisdome, and their slowness hurtful to the moments of occasion.

Some I have heard of, I confess, That in their choice of one to manage their affairs, have elected a man of this disposition; surely contemp­tu magis quam gratia: for I see no ground to allow their Opinion; since those ought to be preferred who are good, and know why they are so; whereas these simple wits are easily both altered and deceived.

And as they should not herein be too slow, so neither should their wit be too pregnant and sharp, lest it become like a Razor, whose edge the keener it is, the sooner it is reba [...]ed; or like soft wood, which is ready to receive the impress of the Limner; but is regard of its warping, is unable to keep it, and therefore is not fit for any worthy Portraicture. Men of this dispo­fition are of a more quick than sound conceipt, in all their actions unstayed and fickle: one while embracing an Opinion, as seeming the best; then again looking more nearly, and not able to answer the doubts which are ready to enter an open invention, fall to a strange kind of uncertainty. In their negotiating of business, they decree that of other mens proceedings, which [Page 13]in their own case they would do: and in this security are oftentimes so over-reached by their Adversary, that they cannot return without great disadvantage and loss. Commonly they follow rather subtile than wise counsels; which, for the most part do not speed, being only prima specie laeta, thing of appearance, and no sub­stance, tractu dura: for by how much the subtilty is greater, by so much it is necessary that the handling be very curious and exact, else they sort to no end; being like a Clock, which most artificially composed, is soonest disordered, and put out of frame: and then they are Eventu tristia; so odious and unsavoured, that they are alwayes waited on by a sinister success. And therefore wit may in this case be said to resem­ble the Sun, which so long as his beams wan­der abroad, and disperse according to their natural liberty, doth gently warm and cheen the earth; but when they are by a violent reduction contracted and drawn together in the hollow of a burning-glass, consumeth what on­ly should be refreshed. In brief, then such should and must be the wit that is fit to negotiate affairs, whose over-pregnancy must be tempered with a measure of solidity; by which means becoming actu otiosis simillimi, they dispach their business with much moderation. And with such a wit our Sollicitor being endued, will even in the executi­on perceive; and upon present occasion determine [Page 14]and take counsel, as Fencers do in the Lists, whom the countenance of the Adversary, the bending of his Body, and the moving of his hands, doth admonish how to proportion the distance, how to offend where is least ward, and how to defend where there is likely to be made the strongest assault.

1. But it is not enough for our Solliciror to have such a wit, unless the same be further refined by education. Now education (as the Philosopher speaks) is a good and continual meaning of the mind: this being indeed the prin­cipal foundation of all humane happiness, and as this is the formal cause of our life; so the efficient both of a clear Understanding, and so consequen­ly of a good life: without which, meh are bur­thens and eye-sores to the Commonweal; no­thing but a cypher—Et fruges consumere nati. Now Education may be atchieved as well by association as inculcation: for good Company is like a wholesome Air; a man may profit much even by the changeable interview of a good man. This is a thing of a very great consequence in young minds, according to that of the Poet, Quo semel est imbuta recens servabit odorem—Testa diu — They are apt to be seasoned either with good or had Resolutions, and to receive the im­press of any custom, which their fi [...]st company shall by the silent perswasions of their acti [...]ns impose upon them. So then, though company is a [Page 15]great matter, and will prevail much; yet evil customes may be deleted, at least altered or a­mended by inculcation; which must not be done with terms of affected indignation, but in a more moderate way, mixing reprehensions with fair perswasions, and laying before the eves of their Understanding the gentrous Examples of several persons: so by recording tractable and officious dutifulness, to enslame them to imitate and surpass them.

3. Having thus both by Precept and Exam­ple received the benefit of Education towards the refining of his natural wit; it is in the next place necessary, that our Sollicitor should be perfected by Learning. Now, although Learning have a private and pleasing end in it self, as being the harbour where the free and untroubled Conside­ration hath a delightful repose from the Sea of more unquiet thoughts; yet it is but a serving­quality, preparing the mind to a nobler end of well-doing: for Knowledg or Learning teacheth not her own use, but as a necessary mean enabl­eth us to good actions: and it ought to be mea­sured by Vertue; and if loved for any rhing, it must be because it informeth us to do vertuously. It is an excellent Commendation that Pliny giv­eth to Trajan, Praestas quaecun (que) tibi praecipiunt, tantum (que) eas literas diligis, quantum ab illis proba­ris. We must use the Precepts of Learning as the Laws of our behaviour; we must remember, [Page 16]that the glory and encrease of Knowledg consists in the exercising of Goodness; and the mas­culine and active power of the mind must be joy­ned thereto, to make us perform good and great things. But as it is to be followed, so it is not to embraced with too vehement fervency: but let that saying of Cato be remembred, ‘That active minds cannot be with a more honest idleness, then the study of Letters, corrupted; not idle­ness by any greater or more dangerous policy find easie entertainment in a well-governed Commonweal.’

This Learning will at length teach to lay hold on another most excellent branch of her self, which is, Experience: and indeed it is the most entire part of Learning, without which, the most absolute Schollars and learnedest men cannot attain to any degree of perfection in civil actions. For there is more of certainty in the Principles of Practice, then in the most necessary Demonstrations or clearest discourses of Reason. And these men that are intendants, (as our Sol­licitor ought to be) and practized in the Occur­rents of Courts, are fitter for any active employ­ment, and can with better easiness dispatch any business: Quoniam enim habent oculum ab ipsa experientia, vident ipsum principium. These be­come as it were Trusty Oracles, on whose judg­ment a man may safely repose his whole fortunes: they are on earth, instar praesciorum [Page 17]numinum; whose advice a man ought to take, before he engage himself in any action.

For the mean by which Wisdom enableth to foresee a success, and accordingly, after due Consideration, rule the present, is Conjecture; which by comparing things passed, presupposeth out of the same causes the same effects. Now in this obscure and incertain deliberation upon the future, our Sollicitor being experienced, is like him, who having tryed a dangerous passage in his own person, and noted the by-turnings which might divert him into an Errour, can in the darkest night, with a secure and forward alacrity, go the same; and overcoming all diffi­culties, arrive at the appointed place: whereas another, though furnished with the soundest directions, (yet never having proved it) quak­eth at every shadow; and having his spirits shut up in amazement, plainly hazardeth his per­son. Now the Rules to perfect this Experience in our Sollicitor, are, to frequent the Courts of Justice, as Free-Schools of civil Learning; to endeavour to understand all Occurrences there­in; to confer thereof with men expert, real, of a deep insight, such as are not carried away with apparences, but can spy day at a little hole, (as the Proverb speaks) and make judgment out of matters themselves, and discern between truth, and truth's likeness, and know when covert designes are the foyls of more eminent intenti­ons.

4. And now our Sollicitor being thus forward toward perfection, lest he should be too much elated and puft up, all those his foregoing parts must be ballanced and kept eaven, by the unby­assed Rules of a sound Judgment and solid Dis­cretion, which should be the balance in which he should weigh all his actions.

The first part hereof is Deliberation; in which he must neither resolve with haste nor affection: the one not giving time enough to discuss those things which ought to be conside­red; the other so occupying the mind, that no thought can creep in, which doth not in all re­gards conform it self to give sufferance to that passion. He must promise himself nothing, be­fore his Conceptions are by great presumptions assured of successe: for the fervency of hope maketh men somewhat more retchlesly negli­gent; insomuch that when they are disappoin­ted, they are as impatiently grieved, as if they had fallen from an essential felicity. Like No­vice-Marchants, who fore-counting great gains, and failing of their fresh expectation, are sud­denly embarked in that irrecoverable mischief of Debt.

Another point of discretion which he ought to make use of, is, Principiis obstare, to provide at the beginning, and not linger till he be sur­prized both in his business and judgment; And what he cannot compass at the first, it is best [Page 19]by timing and waiting to expect an opportuni­ty: for often, things by time receive contrary revolutions, and conclude clean different from their apparence and likelihood. And although he may sometimes wait long, yet he must continue in Action, and managing of the matter: so may new businesses arise out of the former, both by reason of the coherency and way that opens one to another. Herein must be observed that of Ci­cero; he must non solum animis, sed etiam oculis servire civium: he must not think himself dis­charged, except he accompany his actions with fair likelyhoods. This, if it be not affected, sets a splendour, and gives a grace to our actions; teaching us to put a difference in persons, and with divers natures to treat diversly, applying to every mans humour.

Some men are so incapable, that they make small things great, easy businesses impussible: and enter prize nothing, which through their per­versness, is not with difficulty accomplished; whose folly a man may compare to the unskil­fulness of some Chirurgions, who in stead of hea­ling, fester a wound; and in stead of mitigati­on, make the torments more grievously dange­rous: whereas expert ones do with gentle Leni­tives redress the malady, before the Patient have any thorow sense or feeling of pain. So our Sol­licitor being thus guided by discretion, and ha­ving his spirit awaked to all circumstances, doth [Page 20]manage matters with a more delicate deport­ment; and by certain premised Preparatives, so disposeth the mind of the other Agent, as it may be apt to receive any form which shall be im­posed; using the same Consideration which good Players at Tennis have, who, not to suffer a rest, do not only stand attentive to send it to their Companion, but with like heed provide to re­take it, by accommodating their person, and ex­pecting it in the likelyest place: so he, to avoid all hinderances, doth not only suit his own words, but also gives favourable Constructions to the speeches of the other Agent, by dissembling the discontentments which might arise. In brief, some few other Rules for our Sollicitor's discre­tion, may be these: He must avoid sudden chan­ges, for that doth hold of violence; and, Nullum violentum est diuturnum. Again, he must settle more assurance in him that doth expect, than in him who hath received, a benefit; for by spee­ding in suits, men become slack waiters; when hope of gaining will certainly keep them in due devotion. He must also be wisely diffident, and put on a judicial distrust: put on, I say, because there is nothing less familiar and easy to honest men, then to suspect warily.

Having thus far trained him up in the way to perfection, and laid him down some few Rules to walk by, come we now in the last place to shew how,

5. He shall manifest the same, and com­ment on his actions. To which purpose it is necessary that he have a free and voluble tongue to utter and declare his conceits; in the use whereof, it is necessary that he avoid affectation, and that his speech be honest, com­ly, significant, expressive, proper, and void of all fear and effeminate terms, without any dis­simulation: for doubtfull and ambiguous words, with particular ceserves, cafgues a base mind, and imbecillity of spirit. He must not alwayes shew himself a Scholer, but sparing­ly, and when sit occasion requires it: for sometimes to use conceits of Learning as Em­broideries, is requisite; but then it should be in an hidden manner, like as Apparel doth re­present the proportion, but not the barrenness of our members: but generally, it is the grea­test wisdome rather to attend others, then to be an eloquent Merchant of self conceits: for men expert and practised, can out of another mans words deduce great consequences, and take light of matters of great importance.

With these five Qualities so rectified as a­foresaid, our Sollicitor being rightly, adorned, he shall he able with credit to run through all the hazards and difficult nies which in his pra­ctice he shall or may meet with.

Object. But here I meet with an Objecti­on viz. What need is there of all this coyle and ado about a Sollicitor? Do not all men know, there are many Sollicitors who have much pra­ctice and great dealing, that have never been bred to any of those things? simple follows, who had not wit or honesty enough to learn a mean Trade, and in truth cannot write their own names, and yet are accounted brave fellows in that business?

Answ. To this I answe: True it is, and to the shame both of the Law and the Pro­fessors thereof be it spoken, that will suffer such fellows by their ignorance and deceits to abuse so many as they daily do. 'Tis by the means of these cheating devouring Caterpil­lers, that the honourable Professors of the Law are so often cryed out upon for bribing and taking excessive Fees; and it will be no wonder hereafter if Ignoramus be revived, when such a company of simple [...] shall be ad­mitted or suffered to usurp (and therein abuse and make vile) the worthy name of a Lawyer. It is an abuse well worthy to be inspected by the discerning eyes of the learned Judges of the Land, and some severe course to be taken for the remedy thereof; whereof, under favour and permission, I shall make bold only of one small hint, as follow.

Whereas now every idle fellow, whose pro­digality [Page 23]and ill husbandry hath forced him out of nis trade or employment, takes upon him to be a Sollicitor; and thereby not only by their multitudes and swarming in every corner, they who have been at great labour, expence and study, either can have no pra­ctice at all, or at best so little that it is not worthy their looking after; and not only so, but the Clyent also receives a double damage; first, in the tedious delay, and sometimes the loss of his cause; and then in the vast expence of his money, whereof he can have no ac­count: for remedy whereof, it would be well that it should be declared, That no man should dare to undertake to be a Sollicitor, ei­ther at Common Law or in Equity, unless he had for five years before at least been of some of the Inns of Court, or Inns of Chancery, and shall be legally admitted and entred in a Roll for that purpose, to be kept in the Pettybag-Office in Chancery, under a certain pain and punishment; and that no Clyent do entertain any other than one so qualified; by which means, if any abuse be offered, the Court may take a Cognizance thereof, and punish the same. This shall suffice to have spoken in an­swer to that Objection: I shall now proceed, and shew the dury of our Sollicitor, both in what he ought to do, and what he ought to [Page 24]know. But for that, I shall refer you to the next and following Chapters.

CHAP. III. What our Sollicitor ought to know, the better to enable him in his practice.

AS we suppose, our-Sollicitor to be chiefly, if not wholly concerned in matters of Equity; so we shall to that purpose inform him, that he must of necessity be knowing in Courts of Equity: whereof the Chancery in this Kingdome being indeed the chief and on­ly lawfull Court, if so be that he be truly in­structed therein, it will be sufficient to guide him in all the rest. Therefore.

In this Court the Lord Chancellor of Eng­land is the chief Judg; who in case of sick­ness, infirmity, or other extraordinary busi­ness, may depute one of the Judges to sit in his place at any time: but in the Terms, the Master of the Rolls is equall with, him, and sitteth at Westminster-Hall in the mornings; and three dayes in every week, during the con­tinuance [Page 25]of the Terms, sitteth alone, assisted by two Masters of the Chancery, in the Chap­pel of the Rolls: and these in their several places, in manner aforesaid, do make Orders and Decrees.

The twelve Masters in ordinary, which are Assistants both to the Lord Chancellor and Master of the Rolls, as aforesaid, and sit with them; and to whom References are made, and before whom Deeds and Recognizances are acknowledged, and Affidavits made. This formerly might have been done before any Master at his own bouse, by the option of the party concerned: but now, by an Act of Parliament made in the thirteenth year of King Charls the second's Reign, there is a general Office erected for the said Masters, wherein there are at certain hours every day, at least two Masters attending to dispatch the said business; which may not be done other­wise, or other-where, but by special Order.

The Register of the Court, who hath divers under him that sit in Court, and take notice of all Orders and Decrees made in Court, ei­ther before the Chancellor or Master of the Rolls; and accordingly afterwards, at the re­quest [Page 26]of the party concerned, or his Sollici­tor, draw up those Orders and Decrees which are afterwards to be entred in the said Office, in a Book of Entryes to that purpose kept; and being so entred, they must be returned to the Register; who having set his hand thereto, the same thenceforth are authentick, and may not be altered without especial order from the Court. In this Office also are filed all Reports from the Masters, and all exceptions taken to any of the same Reports.

The six Clerks, in whose Office all procee­dings upon Bill and Answer, unto the very Decree, yea, and after Decree, are acted; and from whom likewise issue some Patents, as for pardon of a man for Chance-medly, Pat­tents for Embassadors, Commissions for Bank­rupts: and these are done by their sitting Clerks, of which each Six-Clerk keeps a set number.

The Cursitors of the Court, who were in­corporated, by Queen Elizabeth, by the name of the Twenty four Cursitors; amongst whom all the business that lyes in the several Shires is severally distributed. These make all Ori­ginal Writs in the Chancery, which are re­turnable in the Common Pleas; and all Writs of Entry, and Covenants.

The Masters of the Subpoena-Office, the [Page 27]Clerk of the Affidavits, where all Affidavits are to be filed which you would use in Court. Heretofore they used them in Court, and after filed them; but now they must be first filed, and a Copy thereof taken to be read in Court, or else they signify nothing.

The Clerks of the Petty-bag, who have ma­ny Clerks under them; and these Clerks have much variety of business that comes through their hands, and requires very much knowledg and experience for the managing thereof: for this Office hath the making out of all Writs of Summons to the Parliament. To this Office are all Offices that are found post mortem, brought to be filed. In this Office are all Pleadings of the Chancery concerning the validity of any Patent, or other thing whatsoever that passeth the Great Seal. And these Pleadings are all in Latine, although most of the rest of their Proceeds were in En­glish. If any question arise about the acknow­ledgment of any private Deed between Sub­jects, which is acknowledged in Chancery be­fore the Lord Chancellor or Master of the Rolls, or any of the Masters in Chancery; and all Statutes and Recognizances taken be­fore any Officers to that purpose deputed, are transmitted hither, and here prosecuted. Here also are all suits for or against any person pri­viledged [Page 28]in the Court. And lastly, It is a hand whereby to transmit divers things from the riding Clerk and the Inrolment-Office, to the Chappel of the Rolls.

The Examiners are Officers of this Court, who take the Depositions of Witnesses, and are to examine them, and to make out Copies of the Depositions.

There are likewise Clerks of the Rolls, who sit constantly in the Rolls to make sear­ches for Deeds, Offices, &c. and to make out Copies thereof.

The Ushers of the Court hath the recei­ving and custody of all monies ordered to be deposited in Court, and maketh Certificates thereof, and payeth the same back again by order of the Court, and not otherwise.

The Serjeant at Arms, who carrieth the Mace before the Lord Chancellor; to him all persons, standing in high contempt, are brought up by his Substitutes as priso­ners.

The Warden of the Fleet likewise is bound to attend this Court, to receive such prisoners as stand committed by the Court to him.

The Court consists of a double power, or­dinary and extraordinary: the ordinary power is (as in the cases of Scire facias) to repeal Patents in case of Traverse, Endowment of a [Page 29]Woman, and the like: and herein the Court is limited and confined to the Rules used in Common Law. The other is extraordinary and unlimited, (as in cases of Equity) where­in relief is to be had by a Suit here by way of Bill and Answer.

By the power of this Court are issued forth Commissions for charitable Uses, Bankrupts and Sewers. In some cases Commissions have been here granted to examine Wastes, to set out meet wayes for Passages, to prove a Childe legitimate, to prove Customes, and to examine Witnesses in perpetuam rei memo­riam.

It proceeds by way of Bill and Answer, and gives relief in many cases besides, and beyond the Rules of the Common Law: whereof practice will shew many experiments.

And to this purpose, it is necessary for our Sollicitor to read Tothills and Caryes Re­ports.

CHAP. IV. Of the whole duty of our Sollicitor in his Practice.

HAving in the former Chapter gone through the most necessary things which our Sollicitor ought to know barely; it re­mains now, we should come to the practick part of it; wherein we shall set down plain and easy Directions for the greatest part of their manner of proceedings; wherein, for methods sake, we will begin with their first Process, called a Subpoena.

This Writ of Subpoena is the leading Pro­cess of this Court, as to the procedure, by Bill and Answer; and is a close Writ, and doth require the Defendants appearance in Court at a certain day, and under a certain pain therein limited, to make answer to the complaint of the Plaintiff, which is indeed the Bill: which in former times was wont to be put in, before the Subpoena sued forth; but now of long time hath been otherwise used. This first Subpoena is called Subpoena ad re­spondendum; and is distinguished by that [Page 31]name, because there are several other Sub­poena's in order to further proceeding; as, a Subpoena for Costs, a Subpoena to make a bet­ter answer, a Subpoena to rejoyn, a Subpoena for Wi [...]nesses to testifie, a Subpoena to hear Judgment, and a Subpoena ducens tecum, for Writings, Evidences, &c. Touching the Sub­poena to answer, you must be very careful that there be no mistake in the body of the Writ; for that may prejudice the Plaintiff; and the Defendant may take advantage thereof, if he find it: but if there be a mistake only in the Label, no advantage can be taken by it. In none of these Writs may there at any time be put more then three names.

This Writ may be returnable two wayes: either upon the common dayes of Return, as die Jovis proximè post tres Michaelis; or else upon any day certain, which now is the most usual course. And it is to be served before the Return thereof be past: and this is to be done either by the delivery of the Writ it self under Seal to the Defendant in person, or by shewing to him the Writ under Seal, deli­vering him a Note or Label of the day of his appearance. And this last course is most usual, because oftentimes there are more per­sons than one in the Subpoena, and then the body of the Writ is reserved to be left with the [Page 32]last. Neither indeed is it at all required to serve this Writ personally: for it hath often been declared a good Service, when the Writ or Label thereof hath only been left at the Defendants Dwelling-house, with some rela­ting to him, and Affidavit thereof made; otherwise, no contempt can be grounded there­on. And where a Defendant doth hide him­self, or refuse to be spoken with, it hath been allowed to be good service, to leave the Writ hanging upon the door of the House, or to put it into the house under the door, or in at the window of the house of his usual Residence. Also it is taken for a good service, although it be served on the fame day, it is returnable, if it be served before Noon of that day, or be­fore the rising of the Court. Where a Sub­poena is had against Husband and Wife, and the husband alone is served, and hath notice, that it is against him and his wife; this is a good service to both; and for want of an ap­pearance, an attachment may be had either against the wife only, or both. The Subpoena being served as aforesaid, the Bill must be put in, in due time; or else the Defendant will have costs: to prevent which, you must take notice what time is prefixed for the exhibiting the Bill, after the return of the Subpoena: which is thus; If the Subpoena be returnable [Page 33]upon a general Return-day, as Crasti [...]o Octa­bis, Tres Mens. &c. post, &c. then hath the Plaintiff time to put in his Bill untill the second day before Noon next following, being the fourth day following every of the said Re­turns; and you must account the Return-day, and the fourth day after it, for two of the said four day. But where the Subpoena is returna­ble upon a certain day of the Month, then the Bill must be filed the second day after be­fore Dinner. And if the Bill be not filed, (the Subpoena being returnable on a certain day of any moneth) then the Defendants ap­pearance being entred, his Clerk in Court may prefer costs the next day after: and if the Bill come not in the next day after costs so preferred, before Noon, or presently after Dinner; then the Defendant is discharged with such costs as a Master of the Court shall tax him. But where the Subpoena is returna­ble on a Return day, the next day after the fourth day is costs day: and if the Bill come not in the next after the costs day, as afore­said, (the costs being preferred the day be­fore) then the Defendant is discharged from attendance, as aforesaid, with his costs.

Where the costs are not voluntarily paid for want of a Bill, by the Plaintiff or his Clerk, to the Defendant or his Clerk; in such case [Page 34]the Defendant may have a Subpoena for the said costs, which must be personally served on the Plaintiff: and if thereupon the costs be not yet paid, then the Defendant may (up­on Affidavit made and filed, that the said Subpoena was served) have an Attachment di­rected to the Sheriff of the County where the Complainant lives, to attach him for the said costs: and if the Sheriff make return, upon the attachment, that the Complainant cannot be found, then a Proclamation may be sued out against him; and that also being returned with a Non est inventus, then a Com­mission of Rebellion may be taken forth.

On the other side, if the Plaintiff do in due time file his Bill, and the Defendant ap­peareth not the next day after costs day; then the Complainant, upon Oath made, That the Defendant was served with the Sub­poena, may have an Attachment; and if the Sheriff return Non est inventus thereon, he may sue out a Proclamation and Commission of Rebellion in manner aforesaid, successively one after another.

The Affidavit that must be made of the service of the Subpoena, must be made accor­ding as the manner of the service was: for if the Affidavit made, do not prove a good ser­vice, as before is set forth, then no attach­ment [Page 35]can be had upon it: for there can be no attachment regularly made out against the Defendant for not appearing, untill there be a certain and positive Oath made of the time, place, and manner of serving the Subpoena, in­setting therein the Return of the Writ.

And where any person served with a Sub­poena doth injury or wrong, either by word or deed to the party who acted in the service of it, or doth set at nought or contemn the Writ it self, or the Authority of the Court from whence it issues; upon Oath made there­of, and motion thereupon, such person will be committed to the Fleet.

Where there is appearance made by the Defendant within the time limitted, and the Bill also filed; in such case, upon a Rule gi­ven by the Plaintiffs Clerk to the Defendants Clerk, & the same entred into the Register, the Defendant is to answer to the Bill by the same day seven-night then next to come: which if he fail to do; and do not otherwise in that time satisfy the Court, by shewing sufficient cause of such his delay, then the Complainant's Clerk may make out an Attachment against him.

Now this Writ of Attachment cannot be duly had, unless the Subpoena before-going were duly obtained: for if the Subpoena be [Page 36]counterfeit, or if true, not legally served, the Attachment is irregular; and the Defendant arrested by it, upon disclosing the matter to the Court, will be discharged thereof: whereas an Attachment duly gotten, may not be discharged till the Defendant have first paid 25 s. costs; and every succeeding Pro­cess, double so much; and upon account thereof, he is discharged of course.

The Husband appeared, and the Wife not: an Attachment was granted against both. Ab [...]lls Case; 19 Eliz. Caryes Rep. 65.

So he alone appeared, and put in a Demur­rer in both their names, without excusing her: Attachment was granted against both. Spi­cers Case, Caryes Rep. 39.

The Defendant made Oath, He could not answer without sight of Evidences, and had time given him, and afterwards put in a De­murrer: Attachment went out against him Pasch. 21: Eliz. Farmers Case.

Where the Defendant is served with a Sub­poena; and afterwards, for not appearing, an Attachment issues against him, if he do not appear thereon, but suffer a Non est inventus to be returned, there will go out Proclamati­on of Rebellion against him. Yet note, That the Process of Contempt, and all Attachments in Process, are to be discharged upon the [Page 37]Defendants payments of the ordinary costs of the Court to the Plaintiffs Clerk, or his ten­der thereof to the same, and his refusal to take it, and filing of the Plea, Answer or Demur­rer, as the case merits, without any motion: and if the Plaintiff do prosecute the Contempt afterwards, the Defendant will be discharged with costs.

Where an Attachment is had, if the She­riff do not make his Return, a day will be gi­ven; and if he do not by that time, the Court will set an Amerciament upon him.

Where any party is attached, and afterward proclaimed, and he comes not in, but stands further out in contempt, in such case a Com­mission of Rebellion may be issued forth against him, for the apprehending of him, and bringing him into the Fleet, (the proper Prison of this Court) and this Commission of Rebellion is sometimes directed to the She­riff, and sometimes to private persons; as in the Case of Gage and Etrington, Trin. 38. Jacob. Tethil. 37. This course is likewise taken against those that perform not obedience to Orders or Decrees to pay costs, or the like.

Where private persons are made Commis­sioners, and to take the person in contempt; if they suffer him to escape, the Sollicitor [Page 38]may by motion get them committed, till they bring him in; as in the Case of S [...]che­vorel against Sachevorel, Hill. Term, 18. Jacob. Tothil. 38.

If any person rescue one taken by a Com­mission of Rebellion, the Rescuer may be gotten to be committed. And if the Commis­sioners, upon such a Commission, let the party in contempt go where he list, whereby he make an escape, they may be procured to be committed to the Fleet, till they pay the Debt. See Nelsons Case against Yelverton in Trin. 18 Jacob. Tothil. 39.

If a party appears not, but stands further out in contempt, a Sergeant at Arms may be sent out to take him: and if he cannot, either by reason of his hiding or resistance; or having taken him, he escape, and so persist higher in his contempt; in such case, a Se­questration may be obtained, upon a motion and Affidavit thereof, of his Land: and if the Suit be for Land, a Sequestration and Injunction for the profits of the Land, to be delivered to the Plaintiff by the Sheriff, or other Commissioners for that purpose: as in the Case of Boles against Walleg and his wife. Caryes Rep. 38, 58, 105, 109.

In all these Cases, it behooves a good Sol­licitor to be careful, watchful, and diligent, [Page 39]that he may not slip any opportunity that may work for the advantage, benefit, and be­hoof of his Clyent and his Cause.

CHAP. V. Shewing our Sollicitor several other Incidents which be ought to be skilled in, and much re­lating to his Practice.

HAving now in the former Chapter, and the several Sections thereof, passed through the general proceedings of the Chan­cery, upon Bills, Answers, and all other things, even to the Decree and Review thereof; there are yet some things remaining, which, in many cases, are not only incident, but even essential to those affairs wherein our Sol­licitor ought to be particularly skilled. And the first of these is concerning Injuncti­ons.

And this is looked upon in the general Ac­ceptation, as a main and chief branch of the power of the Court, for that it makes stay of Procedings at Common Law; and, as before is said, is many times granted to gain possessi­on of Land, and so becomes subsequent to the Decree.

Where it stays proceedings at Law, in some cases it gives leave to go to Tryal and [Page 73]Judgment, but stays Execution; and where the matter of Law is tryed, it bars them from Judgment, as the cause may be.

Or where there is a Judgment, and that executed, it will stay the money in the Sheriffs hand, after the party is arrested at Law for the money.

This Writ is commonly procured, either upon some Writing or matter of Record plainly appearing, or upon a very old Debt that hath long slept, Creditor and Debtor be­ing both dead: or in such cases, where the Defendant doth not appear, but fits an At­tachment; or if he appear, either Answers not the Bill, or confesseth not so much thereof as is sufficient.

Where either the Defendant is beyond the Sea, or being in the Kingdom, doth absent himself, so that he cannot be served; or where upon any pretence he hath gotten time to an­swer; the Court doth usually in those cases, upon motion, grant an Injunction to stay suit, till the Defendant doth appear.

Where a Commission is granted to take an Answer in the Country, an Injunction upon motion will be granted to stay the Defendants Suit at Law (if any be) till the Answer come in: and of this the Defendant is bound to take notice, though he be not served therewith.

Where there is a Verdict at Common Law in an Action of Debt, and a Bill be af­terwards here exhibited for Relief, the money must be deposited in Court, before an Injuncti­on can be obtained, unless in some cases, where some special matter in Equity appears by the Defendant's Answer, or in some former Decree.

Where a person priviledged in this Court, is sued elsewhere, that Suit may be stayed by an Injunction.

Where Timber is unjustly felled, ancient Meadow-ground plowed up, ancient Pastures that have not been plow'd up in twenty years before, or for the Maintenance of Inclosures kept in twenty years before, an Injunction is grantable according to the case.

Where an Injunction is granted to quit a possession, it is granted of Houses and Land only, and not of a Rent, or such-like thing: and it is not to be granted before the hea­ring of the cause, unless upon an Oath, that the Plaintiff was in possession at the time of the Bill put in; and then only of that possessi­on he had then and three years before, and at the time of the motion, and not be extended to the possession of those from whom he claims. And this shall not hinder the De­fendants Suit in Law, making of a Lease, [Page 75]taking of a Distress, &c. And this Injunction will soon be dissolved again, if the Plaintiff delay his Suit.

Where it is to stay or remove a Suit by Cer­tiorare, Bond must be first given, that the Bill hath matter sufficient in it to bear it, and shall be proved true within fourteen days af­ter he hath the Writ; and if it be not done in that time, after Certificate of his neglect from the Examiners, it shall be dismissed with costs, and a Procedendo granted.

Where the Injunction is to be obtained by motion, for matter in the Answer, there the case must be put in writing to the Court.

Where it is granted upon the merit of the cause, or upon special cause in equity, it is to stand till the hearing, unless the Plain­tiff delay his Suit.

This Writ thus obtained, must be served either on the party himself, his Counsel, At­torney or Sollicitor, &c. as the case requires; and the manner of serving is much like to that of serving a Subpoena.

A bare Petition only will not dissolve an Injunction; nor, if it be had by motion, can it be dissolved without a motion of the adverse party.

Where an Injunction is granted till the Answer be put in, and no order be made to [Page 76]continue it within fourteen days after the Answer come in; in this case, it shall be dis­solved upon the Register's Certificate thereof only. And if no Motion be made that Term, or at the next General Seal after the Term, to continue it for insufficiency of, or matter confessed in, the Answer; it is of course dissol­ved: so where it is to stay a Suit at Common Law, and the Plaintiff doth not proceed for three years together.

Where the Injunction is disobeyed, (if you would force obedience thereunto) upon Oath made thereof, all the Processes of Con­tempt are to go out against him one after another; and being taken, he is to be im­prisoned till he yield obedience to it, or give security to do it. Nor is he to be heard in the principal case, till he yield obedience in every thing to the Injunction. Tothil 107. Caryes Rep. 112, 113.

CHAP. VI. By way of Advice and Corollary.

THus have I, with brevity, plainness, and truth, run over all the most material and effectual things which are required from a Sollicitor, or indeed from any belonging to the Court. I suppose I shall not need to say any thing of Sollicitation in the Courts of Kings Bench and Common Pleas at Westmin­ster, neither of the Exchequer-proceedings by English Bill, they being in effect one and the same with the Chancery, only a little more chargable. The Office of Pleas agrees with the Kings Bench; and all other Offices be­longing to that Court, may rather be looked upon as pertaining to the Kings Revenue, then matter of Record between private subj [...]cts. The Hustings of London are of so quick dispatch, and little charge, that the very meanest per­sons in the City understand the practice there­of, though sometimes there are some de­layes put upon them by the Practisers, who keep the mystery of their dealing wi [...]hin [Page 102]their Walls. In short, I suppose Sollicita­tion is either only or chiefly needful in Chan­cery, where always the Causes are of great weight, importance and intricacy; and not in Courts of Law, where the Attornies and their Clerks are able to manage and go through much more business then they have, their Proceedings being certain and concise, and tyed to stricter Rules, then the Chancery, being a Court of Equity, can be. But if our Sollicitor will stoop to those smaller Courts, let him know, all that he hath to do there, is but to be able to breviate his Clyents Cause, fit to instruct Counsel: for in all other things he is but a Servant to the Attorney. Yet would I not have him either negligent or ignorant; but, as leisure shall serve, still to have an eye to the practice of all Courts: for by that means at one time or other he shall be enabled either to serve his Friend or Cly­ent. And though by practice he cannot assist, yet by his knowledge he may advise what may be the safest way to tread in. So shall he me­rit the praises of a knowing and industrious person; making good that of Cicero in his first Book de Offi [...]iis, to wit, Nulla vitae pars, ne (que) publicis, ne (que) privatis, ne (que) forensibus, ne (que) domesticis in rebus, ne (que) si tecum quid agas, ne (que) si cum altero contrabas, vacare officio potest: in [Page 103]co (que) excolendo sita est vitae honestas omnis, & in negligendo turpitudo. And in another place of the same Book: Praeclarè scriptum est à Platone, Non nobis solum nati sumus, ortûs (que) nostri partem patria vendicat, partem amici. At (que) ut placet Stoicis, Quae in terris gignuntur ad hominum usum emnia creari, homines autem ho­miaum causa esse procreatos, ut ipsi inter se alii aliis prodesse possint. In hoc Naturam de­bemus sequi ducem, & communes utilitates afferre in media commutatione officiorum, dando, accipiendo, tum artibus, tum op [...]ra, tum faculta­tibus devincire hominum inter homines societatem. ‘It was most excellently written by the divine Plato, (saith he) that we were not born for our Selves only: for of our Beeing, our Country challengeth one part, and another our Friends. And, as the Stoicks said, That as all things that were bred by the Earth, were brought forth for the use of man: so men were born for the sake of one another, that one might help and be profitable one to another. And herein indeed we should follow our great Commandress Nature, by giving and receiving, To do common good, by all the Arts, Ways, Means and Endea­vours that they can possibly find to oblige and tye men together one to another in civil society, of bond of friendship.’ But every [Page 104]man is not fit for this; Ex quovis ligno non fit Mercurius: therefore it is fit, that none should meddle in Affairs belonging to Law, but such as have found discerning Judgments, and know what they go about; lest they be­come not only punishable, but ridiculous. As it once happened to Megabyzes the Persian, a man otherwise of great Reputation and Va­lour, who having upon a time entred into the Lodging, where the famous Painter Apelles did ply and practise his Art, began to dis­course touching the same; and would needs give him to understand, that he knew the nature and secrets thereof: To who Apelles, as being a wise and well-conditioned man, thus answered, Truly, Megabyzes, before I heard you speak, I held you for a discrect man; for your silence did grace your brave apparrel: but since ye have medled to talk of my Trade, trust me not, if the very smallest Boy here that brayeth the Oker, will not mock at, and flout you, for your labour. Which may teach every man to keep him­self within the compass of his Calling, and not every foolish Fellow to undertake so weighty a profession as that of a good Sollici­tor ought to be. This was inculcated by the Poets, when they feign that their gods do con­tent themselves each within his own Sphere; Mars medleth with War, Minerva with Arts, [Page 105] Mercury with Eloquence, Cupid with Love, Neptune with the Sea, Pluto with Hell, Jupi­tur with Heaven. Hence we may gather, That all things do not befit all men: The Horse is fit for riding and running, the Ox for labouring the Ground. Yet there are a sort of men (and I wish they were not) who without leaving any part of their idleness and vices, would be as wise as the Philosophers, that have both Night and Day studied so much. But in these, and such other Occur­rents, which at the present cannot be helped, let us take occasion to be more watchful and wary, lest we become one of those that forget to carry our selves discreetly, and while we blame others, run into the same fault our selves.