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1. The interest of the King, which was the great biass and rule of the law; and other interests but iributary to this : Hence it is, all our laws run in the name of the King, and are carried on in an orb above the sphere of the people; hence is that saying of Philip Honor. Cum à Gulielmo conquestore, quod perinde est ac tyrannus, institutæ sint leges Angliæ, admirandum non est qudd solam principis utilitatem respiciant, subditorum verò bonum desertum esse videatur. i . “Since the laws of England were instituted by William the Conqueror, or tyrant, it is no wonder that they respect only the prerogative of the King, and neglect the freedom of the people!
2. The interest of the people, which, like a worm, when trod upon, did turn again, and in smaller iota's and diminutive parcels, wound in itself into the texture of the law, yet so as that the royal interest was above it, and did frequently suppress it at its pleasure. The freedom, which we have by the law, owns its original to this interest of the people, which, as it was formerly little known to the world, so was it misrepresented by princes, and loaden with reproaches, to make it odious ; yea, liberty, the result thereof, was obtained but by parcels, so that we have rather a taste than a draught of freedom.
If then the rise and rule of our law be so much out of tune, no marvel that we have no good musick in the end, but bondage, instead of freedom, and instead of safety, danger. For the law of England is so full of uncertainty, nicety, ambiguity, and delay, that the poor people are insnared, not remedied thereby: l'he formality of our English laws is that 10 an oppressed man, which school-divivity is to a wounded spirit; when the conscience of a sinner is pierced with remorse, it is not the nicety of the casuist, which is able to heal it, but the solid experience of the grounded Christian.
It is so with the law, when the poor and oppressed want right, they · meet with law; which, as it is managed, is their greatest wrong; so that law itself becomes a sin, and an experimented grievance in this nation. Who knows not that the web of the law intangles the small fies, and dismisseth the great; so that a mite of equity is worth a whole bundle of law : Yva, many times the very law is the badge of our oppression, its proper intent being to inslave the people; so that the inhabitants of this nation are lost in the law, such and so many are the references, orders, and appeals, that it were better for us to sit down by the loss, than to seek for relief; for law is a chargeable physician, and he, which hath a great family to maintain, may well take large fees.
For the officers, or menial servants of the law, are so numerous, tha: the price of right is too high for a poor man; yea, many of them, procuring their places by sinister ways, must make themselves savers by the vails of their office; yea, it were well if they rested here, and did not raia the market of their fees, for they, that buy at a great rate, must needs sell dear. But the poor and oppressed pay for all. Hence it is, that such men
the ruins of others, and whilst law and lawyer are advanced, equity and truth are under hatches, and the people subject to a legal tyranny, which of all bondages is one of the greatest.
grow rich upon
Mere force is its own argument, and hath nothing to plead for it, but itself; but, when oppression comes under the notion of law, it is most insnaring; for sober-minded men will part with some right to keep the rest, and are willing to bear to the utmost; but perpetual burdens will break their backs (as the strongest jude tires at last) especially when there is no hope of relief.
CHAP. III. Of the necessity of the Reformation of the laws of England, together with
the ercellency (and yet difficulty) of the work. THE more general a good is, the more divine and God-like. Grant, that prerogative laws are good for princes, and advantageous to their interest, yet the shrubs are more in number than the cedars in the forest of the world; and laws of freedom, in behalf of the people, are more useful, because di ted to a more general good. Communities are rather to be respected, than the private interests of men.
Good patriots study the people, as favourites do the prince; and it is altogether impossible, that the people should be free, without a reformation of the law, the source and root of freedom. An equal and speedy distribution of right ought to be the abstract and epitome of all laws; and if so, Why are there so many delays, turnings, and windings in the laws
of England ? Why is our law a meander of intricacies, where a man must have
contrary winds before he can arrive at his desired port? Why are so many men destroyed for want of a formality and punc
tilio in law? And who would not blush, to behold seemingly grave and learned sages to prefer a letter, syllable, or word, before
the weight and merit of a caused Why do the issue of most law-suits depend upon precedents, rather
than the rule, especially the rule of reason? Why are men's lives forfeited by the law upon light and trivial
grounds? Why do some laws exceed the offence? And, on the contrary, other
offences are of greater demerit than the penalty of the law Why is the law still kept in an unknown tongue, and the nicety of
it rather countenanced than corrected? Why are not courts rejourned into every county, that the people
may have right at their own doors, and such tedious journeyings + may be prevented? Why, under pretence of equity, and a court of conscience, are our
wrongs doubled and trebled upon us, the Court of Chancery being as extortionous I, or more than any other court? Yea, it is a considerable quære, whether the Court of Chancery were not first erected merely to elude the letter of the law, which, though defec. tive, yet had some certainty; and, under a pretence of conscience,
• This has been reformed in this our gracious King's reign.
To Westminster from all parts of England.
to devolve all causes upon mere will, swayed by corrupt interest. If former ages have taken advantage to mix some wheat with the tares, and to insert some mites of freedom into our laws; why should we neglect, upon greater advantages, to double our files, and to produce the perfect image of freedom; which is therefore
neglected, because not known. How, otherwise, can we answer the call of God, or the cries of the people, who search for freedom as for an hid treasure? Yea, how can we be registered, even in the catalogue of heathens, who made less shew, but had more substance, and were excellent justiciaries, as to the people's rights : so Solon, Lycurgus, &c. Such moral appearances in the minds of men are of sufficient energy for the ordering of commonwealths, and it were to be wished, that those states, which are called Christian, were but as just as heathens in their laws, and such strict promoters of common right.
Pure religion is to visit the fatherless, and the most glorious fast to abstain from strife, and smiting with the fist of wickedness ; in a word, to relieve the oppressed, will be a just guerdon and reward for our pains and travel in the reformation of the law.
And yet this work is very hard, there being so many concerned therein, and most being busier to advance and secure themselves, than to benefit the publick; yea, our physicians being themselves parties, and engaged in those interests, which freedom condemns, will hardly be brought to deny themselves, unless upon much conviction and assistance from above; and yet this we must hope for, that the reformation of the times may begin in the breasts of our reformers, for such men are likely to be the hopeful fire of freedom, who have the image of it ingrafted in their own minds.
Of the corrupt interest of lawyers in the commonwealth of England.
OF interests, some are grounded upon weakness, and some upon corruption. The most lawful interests are sown in weakness, and have their rise and growth there: apostle, prophet, evangelist, were only for the perfecting of the saints; physicians are of the like interest to the body; marriage is but an help and comfort in a dead state, for in the resurrection they neither marry, nor are given in marriage.
Interests grounded upon weakness may be used, as long as our weakness doth continue, and no longer; for the whole need not a physician, &c. such interests are good, profitable, useful; and in their own nature self-denying, i. e. contented to sit down, and give way to that strength and glory to which they serve.
But the interest of lawyers, in this common-wealth, seems to be grounded rather npon corruption, than weakness, as, by surveying its original, may appear. The rise and potency of lawyers, in this king. dom, may be ascribed to a two-fold ground.
1. The unknownness of the law, being in a strange tongue; whereas, when the law was in a known language, as before the Conquest, a man might be his owa advocate, But the hiddenness of the law, together
with the fallacies and doubts thereof, render us in a posture unable to extricate ourselves; but we must have recourse to the shrine of the lawyer, whose oracle is in such request, because it pretends to resolve doubts.
2. The quarterly terms at Westminster; whereas, when justice was administered in every county, this interest could not possibly grow to an height, but every man could mind and attend his own cause, without such journeying to and fro, and such chargeable attendance, as at Westminster-Hall. For, first, in the country, the law was plain, and controversies decided by neighbours of the Hundred, who could be soon informed in the state of the matter, and were very ready to admi. nister justice, as making it their own case : but, as for common lawyers, they carry ouly the idea of right and wrong in their heads, and are so far from being touched with the sense of those wrongs, against which they seem to argue, that they go on merely in a formality of words. I speak not this out of emulation, or envy, against any man's person, but singly in hehalf of the people, against the corruption of the interest itself.
After the Conquest, when courts and terms were established at Westminster (for how could the darling of prerogative thrive, unless always under the King's eye:) Men were not at leisure to take so much pains for their own, but sometimes they themselves, sometimes their friends, in their behalf, came up in Term-time to London, to plead their causes, and to procure justice. As yet, the interest of lawyers was a puny thing, for one friend would undertake to plead his cause for another; and he which was more versed in the tricks of the law, than his neighbour, would undertake a journey to London, at the request of those who had business to do, perhaps his charges borne on the way, and some small reward for his pains; there were then no stately mansions for lawyers, but such agents (whether parents, friends, or neighbours to the parties) lodged like other travellers, in inns, as country attornies still do. Hence it came to pass, that, when the interest of lawyers came to be advanced in Edward the Third's time, their mansions or colleges were still called Inns, but, with an addition of honour, Inns of Couri.
The proceed of lawyers interest is as followeth: when such agents, as we bave spoken of, who were employed by their neighbours at London, and by this means coming to be versed in the niceties of the law, found it sweeter than the plough, and controversies beginning to increase, they took up their quarters here, till such time as they were formed into an orderly body, and distinct interest, as now they are.
There is ground enough to conclude, even from the letter of the statute law, that men's parents, friends, or neighbours did plead for them, without the help of any other lawyer*.
After the lawyers were formed into a society, and had hired the Temple of the Knights Templers, for the place of their abude, their interest was not presently advanced, but by the contentions of the people, after
Anno 28. Edward. Primi 1800, cap. u. But it may not be understood hereby, that any persons shall be prohibited to have counsel of pleaders, or of learned men in the law, for his for, or of his parents sad best friends.
a long series of time; so that the interest of lawyers in the height which now it is) comes from the same root, as pride and idleness, i. e. from fulness of bread, or prosperity, the mother of strife. Not but that just and equal administrators of laws are very necessary in a commonwealth ; but when once that, which was at first but a title, comes to be framed into an interest, then it sets up itself, and grows great upon the ruins of others, and through the corruption of the people..
I take this to be a main difference between lawful and corrupt interests. Just interests are the servants of all, and are of an humble spirit, as being content to have their light put out by the brightness of that glory which they are supplemental to. But corrupt interests fear a change, and use all wiles to establish themselves, that so their fall may be great, and their ruin as chargeable to the world as it can; for such interests care for none but themselves.
The readiest way to inform such men is, to do it within us, for most men have the common barretor within them, i. e. principles of contention and wrong; and thus the law becomes the engine of strite, the instrument of lust, the mother of debates, and lawyers are as make-bales, between a man and his neighbour.
When Sir Walter Raleigh was upon his tryal, the lawyers, that were of council for the King, were very violent against him; whereupon Sir Walter, turning to the jury, used these words: ‘Gentlemen, I pray you consider, that these men, meaning the lawyers, do usually defend very bad causes every day in the courts, against men of their own profession, as able as themselves, what then will they not do against me,' &c.? Which speech of his may be too truly affirmed of many lawyers, who are any thing or nothing for gain, and, measuring causes by ibeir own interest, care not how long right be deferred, and suits prolonged. There was a suit in Gloucestershire, between two families, which lasted since the reign of Edward the Fourth, till of late composed, which certainly must be ascribed either to the ambiguity of the law, or the subtlety of the lawyers, neither of which are any great honour to the English nation.
How much better were it to spend the acuteness of the mind in the real and substantial ways of good, and benefit to ourselves and others? And not to unbowel ourselves into a mere web, a frothy and contentious way of law, which the oppressed man stands in no more need of, than the tender-hearted Christian of Thomas Aquinas to resolve him in his doubts.
If there be such a thing as right in the world, let us have it sine fuco. Why is it delayed, or denied, or varnished over with guilty words! Why comes it not forth in its own dress? Why doth it not put off law, and put on reason, the mother of all just laws? Why is it not ashamed of its long and mercenary train? Why can we not ask it, and receive it ourselves, but must have it handed to us by others? In a word, why may not a man plead his own case? Or his friends and acquaintance, as formerly, plead for him?
Memorable is that passage in King James's speech in the Star-Cham
* Camden Brit. in Gloucest.