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 Approx. 76 KB of XML-encoded text transcribed from 27 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2005-03 (EEBO-TCP Phase 1). A54684 Wing P2005A ESTC R31118 11779946 ocm 11779946 48997

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Early English books online. (EEBO-TCP ; phase 1, no. A54684) Transcribed from: (Early English Books Online ; image set 48997) Images scanned from microfilm: (Early English books, 1641-1700 ; 1491:9) 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. [20], 32 p. By Ja. Cottrel for Henry Marsh ..., Imprinted at London : 1663. Reproduction of original in the Harvard Law School Library.

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eng Fines and recoveries -- England. Great Britain -- History -- Charles II, 1660-1685. 2004-07 Assigned for keying and markup 2004-07 Keyed and coded from ProQuest page images 2004-11 Sampled and proofread 2004-11 Text and markup reviewed and edited 2005-01 Batch review (QC) and XML conversion

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 PHILIPPS, Esq One of the FILACERS of the Court of Common Pleas at Westminster.

Bracton, Lib. 1. Cap. 3.

Longaevi temporis usus & Consuetudinis non est vilis Authoritas.

Imprinted at London by Ja: Cottrel, for Henry Marsh, at the Princes Arms in Chancery-lane. 1663.

To the Honourable, SIR Harbotle Grimston, BARONET, Master of the ROLLS. SIR,

IF the holy Scriptures had not told us, that Rebellion was as the sin of witchcraft, we have had cause enough to believe it; when in the evil days of our last twenty years unhappy Wars and Confusions, we have seen so very much of the folly and madness of that Soul, as well as Kingdom Destroying-sin, and perceived all that traded therein to have met with Circes, & the fate of Vlysses his Companions, and to have been almost transformed into Swine, who muzling in the earth, and looking for some filth agreeable to their bruitish appetite and diet, can without any remorse or pity of better things, turn and overturn, spoyle and trample upon the fairest flowers; and are at the best no otherwise to be esteemed then as men bewitched, or hugely misled by their own Fancies, and arrived to a degree beyond Fanatiques, and as near unto madness as the most outragious Inhabitant of Bedlam: when as in the beginning of the long and unhappy Parliament, in the year 1641. it was their common Out-cry, that the Laws of England were their Birth-right, and they should be most miserable if they did not enjoy them; could after that, without any just cause, take Arms to defend and preserve them; and employ themselves, their Wives and Children in a procession or Pageant, to dig and make Out-works and Fortifications about the City of London, to secure their Laws and Liberties, when in effect they did but keep them out; and after that, engage themselves, and as many as they could enforce unto it by an illegal League and Covenant to maintain them, and yet after the Kings Murther, by that rebellious contrivance, and the consequence of it, and a Declaration made and published by those that called themselves a Parliament, that those Laws were most suitable to the good and constitution of the Nation, could in the Hirecano of their pretended Reformation of the same Laws, agitated and driven on by a Mechanick party that did not understand them, endeavour all they could to subvert and take away those very Laws, as they had done the Lives of many, and the Estates of most of those of the Kings party; who really and not hypocritically fought for them and their King, and adventured all they had in it; and in that furious, ignorant, and self-seeking humour of Reformation, could like nothing but what came out of their own groundless imagitions: the Discipline and Orders of the Church were looked upon as Antichristian; the Laws were pretended to be chargeable, dilatory and Antichristian; the equitable sense of Laws and Scripture of their own framing and picking out, were more (as they said) to be esteemed then the better or learned Interpretations of them: the inward spirit and intentions of men were to be the Rule of all our Justice and Actions: old Customs and Constitutions were to pass away, and be laid by, and the new Inventions and Notions acted (as they foolishly imagined) by a more Divine Light, were to take place, and rule in the stead of them. In order whereunto, the common people were taught in all their discourses to make that which before they had taken so much care of, to be as a By-word or Reproach; the Law it self must be called a Cheat; and the Lawyers,Constitut. Othoboni in Lindwood. whom the Heathen could stile Sacerdotes Justitiae, and our Christian Fore-fathers Laudabile genus hominum qui in Campo Justiciae tanquam Athletae militant, so hated and threatned, (except at such times as they had need of them) as it was some danger to wear a Gown; and one of their mighty Mechanick Commanders threatned to pull off their Gowns, and hang them up in Westminster-Hall amongst the Scotch Colours. The Judges were many times threatned to be pulled out of the Courts, and from their Tribunals; the Innes of Court, the Nurseries of the Law, designed to be turned into Brew-houses, Tenements or Garisons, and places for the quartering of their Rabbi Red-coat souldiers. That which was in our Law-books of French or Latine, must be translated, and the Writs, Process and Pleadings put into English; and they that knew not right reason, the Original and Foundation of all Laws, nor the way or method of it, would like no Laws further then their vulgar and shallow understandings could come up unto it: and where they might or could reach it, found it to be no loss unto themselves to pull down old Laws and Constitutions, to the end they might be gainers by the invention of setting up new. Every thing but themselves were Grievances: the Moral and Judicial Laws of Moses, were commended and desired to be introduced by some, and those of Holland and Scotland by others, that Parliament not long before as much adored by a factious and rebellious part of the people, as the Rebel-Israelites did their Golden Calf; when nothing but the Parliament was to be the standard of their Religion and Conscience: now seemed unto them not to be well constituted, or in an equal frame or Balance, but would be much better if the Venetian Balloting-Box were cast in amongst them, the Military Officers and Commanders, many of whom could not well read English, and worse write it, busying themselves in reading Livy and Plutarch, and other Heathen Authors translated into English; and not well observing the many mutinies, seditions, dangerous and trouble some alterations and changes, which the people of Athens & Rome had sadly experimented and dearly paid for, and how those levelling humours by necessity as well as fate fell afterwards into the better state and condition of Monarchy, thought nothing so good and profitable for the good of the people and of themselves (more especially) then to advance and increase the Changes of Government, which was most commonly cast into a frame and designe of their own interests. Every common Souldier thought himself as wise and as fit to frame a Commonwealth, as Lycurgus or Solon; and pretended that their business was not only to fight, but to be Legislators and Superintendents of our Parliaments as well as Laws, they were to bind and limit them (to their silly as well as knavish) contrivances. The Lands of the Crown, Church and Loyal party, were to be a part of their Land of Canaan: and they were to make what further progress they could in the altering of Laws and Customes, hitherto, and through many Ages, so very much approved: put down the old Offices and Employments, and erect new; and the Citizens and men of Trade finding fault 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 the use and dignity of that great Officer in most of the Kingdomes and Nations of Europe, and the necessity of his honourable support, do think it requisite to allow their gran Cancelliero a great Revenue out of the Publick stock.

And that it cannot be a grievance that the Master of the Rolls, and Cursistors in Chancery, are allowed some part of that small part of the Kings Revenue for their support and encouragement, which would be more chargeable to the people, and be more unequal, and not consist so well with the Rules of Justice, if it should be raised by any other way, or contrivancce, to give them a recompence proportioned to their cares and labours.

Which my Endeavours, I have presumed to offer unto your view; not that I can believe that your known integrity, sincerity and care of Justice in that honourable Office and Dignity wherein his Majesty hath worthily placed you, can by any Byass of Self-interest lead you to a better liking or approbation of these my Labours in the vindication of a Legal duty which so many are ready to throw stones at; and do dislike it not because it is not a friend to Caesar, but because it is. But that I can be sure to be well-weighed in the Balance of Judgement by you who in the times of our unhappy Wars and turmoils of the Pen and Sword, when the Seas roared and swelled, the Winds and Waves cuft each other, and Mountains and short breaking Seas did onely busie themselves to run over one another, would not like the representation of our old Britannia, sit safely upon the rocks, & contemplate the fury of the Seas, but would with your Boat adventure to launch into the Deep, and help to rescue as wel as you could the Ship of the Commonwealth, which by the inconstancie of Winds and Weather, and the rage of many Waters, had lost her Anchors, Rudder, Masts, and Cables, and was ready to dash upon the next Rock she met with, or founder or sink into the bottom of an unmerciful heap of Waters: and when the Law was in Extremis, and at the last gasp, did like the undespairing Roman that bought a field, when Hannibal being at the Gates with a conquering and prevailing Army, had put Rome into more then an ordinary fit of an Ague, publish those excellent Reports of your learned Father-in-law Justice-Croke, to tell as well as instruct the Students of our Laws, that our Laws would notwithstanding like the triumphant Lawrel and peaceful Palm be green again, and ever flourishing, and did together with some other good Patriots and well-wishers to your King and Country, adventure your Estate, and not without some hazards and dangers, did by all the Rocks, Shelves, and Quicksands, more perilous then those of Goodwin, over the Scilla of a guilty party on the one hand, and by the Charibdis of a prevailing interested party of the other hand: and of as many more difficulties as summed up all together, made a Miracle, help to bring into the Port or Haven that Weather-beaten and distressed Ship, fraught with the unvaluable Riches of the hopes of England, and Restorer of our Peace and Plenty; who hath' built up and repaired our Jerusalem, and brought our Religion, Laws and Liberties from its captivity, and the waters of Babylon: in contemplation whereof, his Majesty well understanding how much it would conduce to the good and welfare of himself and his people, did intrust you with the keeping of his Records, being the Evidences of the people, as they were called in an Act of Parliament in 43 E. 3. together with those which have been since added thereunto, and do now remain in the Tower of London, and in the High Court of Chancery; and with the dispensing of Equity and Conscience in Causes accustomed to come before you: in which great Office and Employments, and care for the common good, that you may long continue; is; as it ought to be, the hearty well-wishes and desires of all that know you: Amongst whom you cannot erre, if you shall please to number.

Your most humble Servant, FABIAN PHILIPPS.
THE Antiquity, Legality, Right, Use, and ancient Usage of FINES, To be paid in Chancery upon the suing out, or obtaining some sorts of Original Writs retornable into the Court of Common Pleas at Westminster.

THe payment of Fines upon Original Writs in England, were anciently and originally; not as any exaction, purchase or mony given to defile or betray Justice, but as Retributions or Oblations to the Prince or supreme Magistrate for his grace and favour in granting Writs Remedial, and as some recompence of his charges and care in causing Justice to be done to all that have need, or should seek for it.

And some or such-like payments to the Magistrates or Ministers of Justice, were in use more then two thousand years ago amongst the Grecians, Sigonius lib. 3. de Repub. Athen. 525, 530. the grand Pretenders to Morality and Justice, that greatest of the Vertues, where besides a certain sum of money deposited by the Plaintiff for the making good of his Action or Complaint: he against whom Judgement was given did pay a Fine as a Vectigal Temerariè litigantis. Rous Archaeologia Attica 119, 135, & 136.

And when Judges were appointed for the hearing of a Cause, which amongst the Athenians were in many Civil Causes, but as Arbitri or Arbitrators, constituted by more supreme Judges or Magistrates, they were to meet at the place for them ordained, there to expect both parties until the evening: at which time if neither or but one of the parties appeared, it was in their power to fine the party neglecting according to Law. And at the time they entred the Suit, and wrote the Accusation with the Fine, which was required for Damages, the Judges received as a Fee from the Plaintiff one Drachm: which according to the Attick valuation, was in the lowest accompt seven pence half-peny; and the Aeginean, twelve pence half-peny.

And are nothing like either a burden or oppression, when it shall be, as it ought to be, considered, that amongst the Romans who imitated them,Rosinus de Antiquitat. Rom. and were so exact and curious in their Justice, as they would not a great while permit their Magistrates, Praetors, or Lord Chief-Justices to take their wives with them into their Provinces,Hottoman in parte Juris de Actionibus. Nè feminae in avaritiam suapte natura propensae potentiae subnixae provinciam expilarent. And that the Plaintiff could not vetustissimo jure, Sigonius lib. 1. de Judiciis ca. 21. Varro de lingua Latina. Bodin de Repub. lib. 6. by a most ancient Law or Usage go to Law, as Varro tells us; nor the Defendant be permitted to make his defence without an equal or certain sum of money deposited both by the Plaintiff and the Defendant; which the Sponsiones, Sacramenta, and Stipulationes, amongst the ancient Romans do testifie, and that of the monies deposited as well by the Defendants as the Plaintiffs. Qui Judicio vicerat suum Sacramentum, id est, pecunia interpositum auferebat, victi ad aerarium redibat. But that being found too troublesome, was afterwards reduced onely unto the Plaintiffs depositing of the tenth part of the money, demanded by undertaking 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,Leg. ult. Antiq. Cod. Novel. 112 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,Math. de Afflictis in 4 cap. praeterea Sect. & de prohibit. feud. alien. per Frederic. n. 6. & Frantzkius de Laudemiis. 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,d. l. i. C. de princip. agen. & Pancirollꝰ Comment. in noticiam utrius que Imperii. 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;LL. Salick & Alman. 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, Bignonius in Marcul i Formulas 496. 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, In legibus Hungariae Dec er. Mathie Regis anno 1486. Artic. 76. 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: Consuetudines Burgundiae, lib. de Gabels, 1787. 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 us que 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, Goldastus constitutiones Imperiales, 264. tit. 33. & 447. tit. 25. 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,Besoldus de Aerario publico Quest. 5. Simon de Praetis, lib. 3. 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,Bodin de Repub. lib. 6. 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 Session (as they there are called) did no longer ago then in anno 1606, 23 Pa l. Jacobi, anno 1621. 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,LL. lnae 63. LL Edwardi Regis, 4 Edgari Regis 2 Canuti 12. Edwardi Confessoris. Gulielmi Conquestoris, LL. H. 1. cap. 35 & 53. 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 gran rrerissement de profit le Roy.Ro. Parl. 25 E. 3. m 29. 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.Fines 6. Johannis 10.

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,3 E. 3. ca. 3. 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,Westm. 2. cap. 25. 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,Littleton, tit, Releases 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;Claus. 24. E. 3. and the Keepers of the Seal took care for their Diet, and other conveniences,Rot. Pat. 7 E. 3. 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 commonly single and unmarried condition, then the Cursistors Fees and parts of the Fines do now amount unto.

It will be no more improbable, that the Clerks and Officers of the Chancery when they either lived in the House with the Lord Chancellor, or had their Dyet and necessary maintenance elsewhere provided for them, had their Sportula's also and Fees for their labour and care in the making and dispatch of Writs Remedial.

Then that the Secretaries and Clerks attending upon a Lord Chancellor, or Keeper of the great Seal, of the Judges, should as they now have and ought to have, besides their Dyet, Lodging, and other necessaries, some Fees and establishments for their rewards in their care and dispatch of businesses.

All which that Parliament which was almost in the infancie of our then lately setled and contested for Magna Charta, well understood when they limited and setled Fees, and legal and just rewards in the Courts of Chancery, Common Pleas, and Kings Bench, and all our succeeding Parliaments did the like in their creating other Fees, or giving allowance to those which they found to be rationally introduced by time and ancient usage, though no Original constitution or creating of many of them by a Law can be found, but onely by the Authority and power of Courts, and discretion of Judges, or the light and guidance of common Reason, which teacheth the Clyents themselves, or the most ordinary sort of men, to know how to reward or value benefits and accommodations received, and to proportion payments or satisfactions for one anothers labours.

And King Richard the 2. was well informed of, when by advice of his Council learned in the Law, and otherwise, he did in the fifth year of his Reign to the Petitions of the Commons in Parliament, who prayed, Pet. Parl. 5 R. 2. par. 1. nu. 88. That Come per le grand Chartre soit ordene & affirme communement en touz autres Parlaments que la ley ne serra point denie ne venduz nullui à contraire de que le Chartre est use en la Chancellarie de prendre Fins pur diverses briefs avoir à grant arrerisement de l' estat de tout le peuple & de la ley que plese ordener en ce present Parlament que chescun qui vendra purchaser brief en la dite Chancellarie eit le dit brief sans Fin faire; answer, That nostre Seignor le Roy nentende mye de soi desinetra de si grant Commodite quad este usez continualment en dit Chancellarie si bien avant come apres la confection del dit Chartre en temps de-touz ses nobles progenitors qui depuis aient este Rois dengleterre.

And is no more a buying of Justice then the Fees taken by the Stewards of the Lords of Mannors in their Court Barons, wherein an inferiour sort of Justice is administred when they take Fees upon Plaints and Actions, and largely enough for Admissions, Surrenders and Licenses; or the Fees which are taken by Guilds, Corporations and Companies of Trades for binding or making free Apprentices, or for Quartridges to their Halls for the maintenance of the good and credit of their Companies; or which is paid by the poor Tankard or Water-bearers at the Conduits in London, where every one payeth three shillings six pence at his admittance, and a penny a quarter for the support of that poor and pitiful society.

No more a buying of Justice then when every Ship trading to Ligorn or Smyrna pays a certain rate of ten shillings per cent. towards the support of the Consuls there resident, to assist them in the matters of Trade, and procuring Justice from the Superiours of the Territory.

Or the Espices, or money in lieu of them, given to the Judges and Ministers of Justice in France, in the Parliament of Paris, or other Parliaments or Courts of Justice in that Kingdome.

But may be the more approved, whenas our Sportulae and Fees allowed in England are not without some resemblance (if it extend not to a direct pattern or warrant) of the courses held by Gods own appointment in his righteous Theocracy or Government, which he himself framed for his chosen people of Israel; where the Levites and Priests of the Jews, whose Offices were not meerly or altogether Ecclesiastical,Cunaeus de Repub. Hebraeorum, ca. 12. Grotius in Deut. 17. 19. but having some mixture of civil Affairs and Judicature, as in the cases of Leprosie and Jealousie, hard matters and controversies, and the like, had besides the forty eight Cities, with their Suburbs belonging and given unto them for their support and maintenance,2 Chron. 19, 5, 6. some parts of the Sacrifices and Offerings,Levit. 7. 8. as not onely to eat of the flesh of the Sin and Trespass-offerings,Deut. 17. 8 but were to have the Shoulders and Heave-offerings,Lev. 14. 29 the Wave-brest,Numb 3. 47, 48. cap. 18. 11, 15, 16, 17, 18. and a part or Oblation of every sort of Oblations, with the redemption of the first-born of men, as casualties and fees happening unto them in their several Offices and Employments,Ezek. 46. 24. by an eternal Law and Statute of Gods own making,Grotius Comment. in 17 Deut. 9. appropriate and allowed unto them: Qui quod pingue haberent otium, non tantum omnia legis, sed & medicinae aliarum que artium diligenter ediscebant ut & Egyptii sacerdotes: who having leasure, did as the Egyptian Priests, not onely diligently study the Law, but Physick, and other Arts and Sciences. Ideo que Ibidem. (saith the learned Grotius) primis Saeculis ex illis ut eruditioribus Senatus LXX. virum legi maxime solebat. And therefore in the first Ages the Senate of LXX were for the most part commonly chosen out of them.

Which the light of Reason, that Divini luminis radius, did so well inform other Nations, as the Athenians would not think it fitting that their standing and continual Senate or Court, and their Judges, should be without their competent allowances and rewards. And their famous and popular Orator Demosthenes understood to be so necessary, as in his Oration against Timocrates he saith; Lex est vobis si qua alia praeclara ut qui sacras publicas que Demosthenes adversus Timocratem. pecunias possident in Curia pendant, sin minus ut Senatus ab eis •• gibus usus telonic is exigat hac igitur legeres communes administrantur, si quidem quae in conciones, & Sacrificia, & Senatum, & Equites, & alias res pecuniae impenduntur hujus beneficio legis abunde suppetunt, cum enim vectigalia non sufficiunt quae adpensiones dicuntur metu legis hujus penduntur quomodo igitur non omnes Reipublicae partes dissolventur cum vectigalium pensiones non fuerint satis neque hac nisi in exitu anni capere liceat Senatus autem & Judices eos qui adpensiones non solvant vinciendi potestatem non habeant quid agemus? non conveniemus? nec deliberabimus si opus erit & amplius popularem statum retinebimus? non judicabunt fora & privata & publica? non inibit Senatus & tractabit ea quae legibus continentur? at gratis scilicet haec faciemus? quid vero iniquius est quam si ex lege quam tu mercede 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 &Sigonius de rep. Athen. lib. 2. cap. 3. 495, 496. 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 clam 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, Fletchers Hist of Russia. 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, Segethus de principatibus Italiae. 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 Crowns upon the commencing of any Action, eosdem ab eo quem Judicio superasset recuperaturus, aut suae temeritatis si vinceretur Justam poenam laturus, Bodin lib. 6. de Repub. 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, Philippus Caesius à Zesen in Leone Belgico. 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,Exod. 22. 9. 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,Marculfus Formulas, & Bignonii notae in eundem. 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,Mat. Patis. 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 Remedial, and of course, being as a Balm of Gilead, never denied to any that want it; and not being put to peitition 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 thereupon; and that men of no ordinary judgements and experience in the Courts of Common Pleas, did finde themselves deceived in their opinions, when they did verily believe that when the Fines in Chancery should be taken away, as they were for six or seven years in the time of the late confusion and usurpation, by an Act of Parliament, as it was then so called, a great encrease of business would have followed in that Court, but could never perceive any: or if any, it was so very small as it was not discernable.

When it is well known, that Fines (when the business was by many times or parts a great deal more then now it is) were cheerfully and willingly paid.

That the unwillingness of some of the people to pay them, is by reason of an illegal track or beaten road of suing Actions in the Kings Bench, which do by Law belong to the Court of Common Pleas; and that the Attorneys of the Court of Common Pleas do more then needs, for their own ease and advantage, and to trouble themselves as little as they can with the learning of the Law, or the knowledge how to frame an Action, sue almost as many Actions out of that Court as their own, the cheapness of the Latitat and other Fees in that Court being more then is or can be in the Court of Common Pleas, if the Fines were taken away.

That the cheapness of process, and contention, doth not seldome breed, encourage and heighten the humor of suits and controversies, as is dayly experimented in ten or twelve thousand Bills of Midlesex, taken forth to arrest men in every year in that small county and jurisdiction, because they are easily and quickly had for 18 d. apiece.

And by the Broom-men (since the extravagancies of the Marshalsea-court, by their taking cognisance of all manner of personal Actions within the Virge, or twelve miles of the Kings Courts, where neither Plaintiffs or Defendants are of the Kings houshold) who whilst they are crying Brooms in the streets and in Cliffords Inne, can ask at the same time for the Office of the Marshalsea, and for a Writ of eighteen pence, and go to Law with one another for many times less then the Writs cost them.

And that such a cheapness may be as prejudicial to the people, as that old Law was amongst the Romans; which when money was more scarce then it was afterwards, did enact, That whosoever did strike a man upon the mouth or face, should pay to the party beaten twenty and five Asses, which were a certain small coyn, about the value of our English half-peny.

But the wealth of Rome encreasing, and that penalty coming to be very little, one Neratius a rich Hector, or debaucht Gentleman of those times, finding how cheap it was to beat men, did frequently as he went along the streets, strike on the mouth or face such as he thought fitting, and presently command his servant attending him with a bag of money, to pay him the money or recompence which the Law awarded him: which gave the Senate of Rome the occasion to repeal that Law,B din lib. 6. Repub. 1196. and put the power in the Praetor, or Lord Chief Justice to punish such offenders arbitrarily.

And it will not once onely, but always be more for the good of the people, that the very ancient, rational and legal usage now held of paying Fines in Chancery, be continued: which cannot in a more easie and just way be charged upon the subjects who receive a benefit by them. And that for a supply of the Kings now languishing and too small a Revenue.

The Courts of the Kings Bench and Marshalsea, and Office of Pleas in the Exchequer, upon their Writs of Quo Minus, which of all the Kings Courts should most advance and least hinder his Majesties just Rights and Revenues, if they will (as they should not) stretch their jurisdiction further then they ought to do, and hold Pleas, or take a cognisance where they should not, may be ordered, as is usually done in Chancery upon Writs retornable in the Court of Common Pleas, to pay Fines upon such Writs, and that upon every of such Writs taken forth, and before they shall be sealed, the Plaintiffs Attorney do endorse the sum of money which he demands Bayl for, or intends to declare for, and pay to the Kings Receiver to be appointed for that purpose, such Fines as shall be due and payable, according to the rates now used in Chancery.

Which will the more conduce to the good of the people, then their not paying of Fines upon some few Original Writs, when as those troublesome and vexatious Writs of Latitat Quo Minus, and Bills of Midlesex, shall be thereby somewhat kept within their legal bounds and limits, and not be made use of upon meer fictions and pretences, to promote the malicious ends and designes of ill disposed people, and the process of those Courts abused, & made the instruments of mens oppressing one another. Not to be suffered by those whose Oaths are not to permit any thing to be done in disherison of the Crown. Nor to be practised by the people, whose oaths of allegiance and supremacy should disswade them from diminishing or taking away any of the Kings regalities or jurisdictions, when as their fore-fathers and the days of old may tell them and their posterities, and after-generations will finde it, that their welfare and happiness is included in the Kings; that the lessening of his legal revenues will but lessen and inconvenience their own; that his good is more to be taken care of then any mans particular, by how much every mans particular is comprehended in the universal; and that the King cannot well protect and defend them and their particular estates, if his own shall be dayly diminished, purloined, or kept from him.

FINIS.