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 [Page 2] 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 [Page 3] 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.

[Page 4] 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, [Page 5] 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 [Page 6] 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, [Page 7] 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 [Page 8] 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. [Page 9] 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.

[Page 10] 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. [Page 11] 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 [Page 12] 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 [Page 13] 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 [Page 14] 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 [Page 15] 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 [Page 16] 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 [Page 17] 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 [Page 18] 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 [Page 19] 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 [Page 20] 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. [Page 21] 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.

[Page 22] 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 [Page 23] 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 [Page 24] 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 [Page 25] 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 [Page 26] 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 [Page 27] 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: [Page 28] 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 [Page 29] 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.

[Page 30] 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 [Page 31] 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 [Page 32] 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.