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 REFLECTIONS 
 
 O N 
 
 "The LAW, LAWYERS, &c. 
 
 l&SQ&X&XSQ^^ 
 
 [ Price One Shilling: ].
 
 Ex Libris 
 C. K. OGDEN 

 
 REFLECTIONS 
 
 O R 
 
 HINTS 
 
 FOUNDED UPON 
 
 EXPERIENCE and FACTS, 
 
 TOUCHING 
 
 The LAW, LAWYERS, OFFICERS, ATTOR- 
 NEYS, and others concerned in the ADMI- 
 NISTRATION of JUSTICE. 
 
 Humbly fubmitted to the 
 
 Confideration of the LEGISLATURE, 
 
 The Common Law of England has fared like other 
 Venerable Edifices of ANTIQUITY, which ram and unex- 
 perienced Workmen have ventured to new drefs and refine 
 with all the Rage of Modern Improvement. 
 
 BLACKSTONE. 
 
 LONDON, 
 
 Printed for L. DAVIS and C. RHYMERS, 
 
 again (I Grays-Inn, Holborn, 
 
 MDCCLIX,
 
 BtacR 
 
 Annex 
 
 REFLECTIONS, 
 
 TH E Sage Montefquieu (whofe 
 Treatife of the Spirit of Laws 
 can never be enough praifed 
 and admired for the amiable Spirit of 
 Liberty and Benevolence that it breaths) 
 has told us that the Liberty of the Sub- 
 ject confifts in a peace of mind which 
 arifes from a fatisfa&ory Confidence 
 that every Man has, of being fecure 
 from Oppreffion ; and cannot be had 
 in any State, unlefs the Government 
 thereof be fo conftituted by wife and 
 good Laws, and thofe Laws be fo 
 faithfully and impartially executed, 
 as that One Man need not be afraid of 
 another : And has obferved that this 
 B ineftimable
 
 ineftimable Blefling is eftabliflied by 
 the Laws of England^ but declines to 
 examine or enquire whether We really 
 enjoy this Liberty or not ; thereby in- 
 timating as if he had fome doubt about 
 it, or at leaft fome Apprehenfion that 
 we are in Danger of lofing this inefti- 
 mable Jewel. 
 
 The ingenious Author of the Eftl- 
 mate^ &c. has fliewn, from a Variety 
 of Proofs, that the ruling Manners 
 and Principles of the Times have pro- 
 duced fuch a general Debility among 
 us as naturally leads to the Deftru&ion 
 of every thing that is dear and valuable, 
 and feems to leave it to the candid 
 Confideration of every impartial Man, 
 how far any Part of our late Conduct has 
 weakened the Conftitution, or tends 
 to our abfolute Perdition and Lofs of 
 Liberty. This occafioned. the follow- 
 ing Reflections with refpect to fome 
 Particulars, touching the Laws of this 
 
 Country,
 
 f 3 J 
 
 Country, which we fee are the Ad- 
 miration of all around us, however 
 we ourfelves may have lately been re- 
 gardlefs about them. 
 
 If it be true, that Liberty is eftab- 
 liflied by the Laws of England \ our 
 Freedom muft then depend upon the 
 Knowledge, Capacity, Integrity and 
 Courage of the Profeflbrs of the Law, 
 as well as upon the Virtue and Incor- 
 ruption of the Legislature, who from 
 Time to Time alter thofe Laws, or 
 make new ones. 
 
 Juftice in refpecl to our Judges, 
 and fo far as it regards private Property 
 between Subject and Subject, was ne- 
 ver more equally and impartially ad- 
 miniftred than it has been for the 
 laft thirty or forty Years ; thofe who 
 prefide in our Courts are not re- 
 moveable at Pleafure ; have no Voice 
 in the Legiflature, and Juries under 
 B 2 their
 
 [4] 
 
 their prefent Regulation are not eafily 
 corrupted : Beiides, the iiluftrious Ex- 
 ample of that Great Perfonage, who, 
 after having, with the greateft Honour, 
 ferved the King and his People in the 
 higheft Offices at the Barr, and held 
 the Ballance above twenty Years, in 
 the fupreme Seats of Law and Equity 
 with the greateft Ability, Knowledge 
 and Integrity, has not a little contri- 
 buted to fupport the Truth of this 
 AiTertion. 
 
 This is truly faid of the Adminiftra- 
 tion of Juftice, fo far as it regards 
 private Property between Subject and 
 Subject, of late Years; but if a Time 
 fhould come (which is to be feared is 
 near at hand) when the Law fhall be 
 brought into Contempt through the 
 Ignorance and Corruption of its Pro- 
 feflbrs, what then will be the fatal 
 Confequence, may ealily be forefeen. 
 
 The
 
 [s] 
 
 The Laws of England being the 
 Great Bulwarks of our Lives, Liberty, 
 and Property ; the Study and Know- 
 ledge of thofe Laws ought to be en- 
 couraged and rewarded ; for how good 
 and wholefome foever they are in 
 themfelves at prefent, they will be 
 ufelefs to the Subject when once they 
 become unknown, vague, or uncer- 
 tain. Hence it follows that without 
 Men of Learning and Knowledge in 
 the Laws of this Country, the Liberty 
 of the Subject will be precarious, and 
 the Con ftitution infecure. It feems 
 therefore a Matter of very interefting 
 Consideration, that the Laws of this 
 Land, fo admired and envyed by all 
 around us, fhould be well cultivated 
 and known, by encouraging Men of 
 Parts, Learning and Integrity to the 
 Study and Practice of them. 
 
 But
 
 [6] 
 
 But alas! upon looking back a few 
 Years we fliall difcover that every art- 
 ful Scheme has been contrived and fet 
 on foot by fome Perfons formerly in 
 Power, to leflen and difgrace both the 
 Law and its Profeflbrs. 
 
 About the Beginning of the prefent 
 Reign an Attack was made upon 
 Weftntinfter Hal/, by ifluing Com- 
 jniflions under the Great Seal to im- 
 power Col. DeFeil, and many other 
 Commiffioners to enquire into the 
 Duties and Fees of All the Officers in 
 the feveral Courts of Law and Equity ; 
 when after the ftricteft Scrutinies and 
 Examinations by Juries and Witnefles 
 on Oath, it was proved that very few 
 of the Fees of any Officer had been 
 encreafed for many Years paft, although 
 it then appeared in many Inftances that 
 the Duty of feveral Officers had been 
 made greater by feveral late Acls of 
 
 Parliament
 
 [7] 
 
 Parliament, for which additional Du- 
 ty, little or no Fees are taken or al- 
 lowed, although Money, at this Time, 
 is not of much more than one third 
 Part of the Value that it was about 
 a Hundred Years ago. This appearing 
 to be the Truth of the Matter, to 
 the Difappointment of thofe who fet 
 thofe Commiffions of Enquiry on foot, 
 the Bufinefs was dropt, and the Re- 
 turns of the feveral Juries were never 
 publifhed. 
 
 This Scheme to throw Dirt upon 
 the Law and its ProfefTors proving 
 abortive, feveral others were foon af- 
 terwards hatched. Great Clamours 
 were raifed againft the pretended Ro- 
 guery and Multitude of Attorneys, and 
 an Ad of Parliament was made to 
 regulate them. How far that Statute 
 has been of any Benefit to the Public 
 is not now to be queftioned ; but it 
 may, with great Iruth, be aflerted, 
 
 that
 
 [8] 
 
 that it has laid under great Hardiiiips 
 a Rank of Men in the Profeffion of 
 the Law, whofe good Characters and 
 Fidelity are their very Support, And 
 although it muft be admitted there 
 may be fome bad Men amongft them 
 (as there certainly are in every Pro- 
 feffion, Trade, or Calling) yet when- 
 ever fuch bad ones are found, they are 
 foon ftigmatifed, ruined and undone, 
 either by their own Brethren, the 
 Courts of Juftice (to whom they are 
 anfwerable for any Miibehaviour in 
 their Pradice) or by their Clients who 
 defer t them. Make what Laws you 
 pleafe to regulate any Trade or Pro- 
 feffion, there will ftill be fome incor- 
 rigible Knaves left in every one; there 
 will ftill be Knaves amongft the Ba- 
 kers, Millers, Drovers, and Butchers, 
 and Pettifoggers. Amongft the Attor- 
 neys, a knavifti Client who has dirty 
 Work to do, will, if poffible, find 
 out a knavifli Attorney. The natural 
 
 Confequence
 
 [9 J 
 
 Confequence of this is, that thefe 
 Rogues generally ruin one another; 
 but becaufe there are a few bad, to run 
 hard upon a whole Body of Men, with- 
 out whofe AiTiftance the Laws, and 
 Bufinefs of this rich and opulent King- 
 dom, cannot be executed, is unkind 
 Treatment ; to fay that no Attorney 
 fliall have a right to be paid his juft 
 Fees and Difburfements until a Month 
 after he has delivered his Bill, is to 
 take away from him a natural Right 
 that every common Labourer is entitled 
 to, that is, to be paid for his Work as 
 foon as done ; nay, it is injurious, for 
 generally fpeaking, three fourths of 
 the Bill is Money paid out of Pocket 
 for Stamp Duties, Officer's and Coun- 
 felFs Fees. It is not juft, that for the 
 Malpractices of a few, a whole body of 
 Men fliould fuffer; of whom, at the 
 fame Time this Law was made, there 
 was not One out of above Six Thou- 
 fand, who before pradtifed as Attor- 
 C
 
 [ 10] 
 
 but was again admitted to prac- 
 tice, upon Payment of the .Six Pounds 
 Stamp Duty. 
 
 About the fame Time that this 
 hard Law was made to blacken the 
 Character of a whole Body of Gentle- 
 men, another Scheme was fet on foot, 
 to render the Law itfelf ridiculous and 
 contemptible: Petitions to Parliament 
 were encouraged, and feveral fent up 
 by Grand Juries from Tork y and other 
 Places, praying that all Law-Proceed- 
 ings, Pleadings, and Records, might 
 from thenceforth be in the Englijh 
 Tongue, and praying feveral other Al- 
 terations in the Law ; whereupon an 
 Act of Parliament was made, that all 
 Proceedings in the Courts of Juftice 
 fhould be in Englijh y and written in a 
 common Secretary Hand: This was 
 done under an Imagination or Pretence, 
 that the Lawyers had invented the 
 Law-Hands, wherein to lock up their 
 
 Myfteries
 
 Myfteries, and conceal their Craft, the 
 better to enable them to cheat their 
 Clients; but this is a Miftake,' for 
 every one who is the leaft converfant 
 with ancient Mann fcript- Books or 
 Regifiers, knows that it was the Peo- 
 ple thenifelves, who, from Time to 
 Time, varied their hand-writing, and 
 thereby gradually loft the Knowledge 
 of the Character, and Form of 
 the Letters which their Forefathers 
 made ufe of, and, in which, all the 
 moft ancient and beautiful Manufcript- 
 Books as well as Deeds, Muniments, 
 Law-Records, and Pleadings were 
 written before Printing was in ufe. 
 
 Among many other bad Conlequen- 
 ces that muft, in a few Years, enfuefrom 
 this Alteration of the Language and 
 Hand-writing of legal Proceedings, 
 fome are already at hand : Pleadings 
 are now become about twice as long, 
 in every Caufe, as they were before, 
 C 2 the
 
 the Records were written in a thoufand 
 different fcribbling Hands ; as unlike 
 each other, as all of them are unlike 
 the beautiful Court- Hands; and will 
 be as difficult to be read or underftood 
 by our Grand-Children, as the faireft 
 Record of the laft Reign, is already be- 
 come, to many learned Counfel, I had 
 almoft faid to fome of his Majefty's 
 own Counfel learned in EngUJh- 
 pleading, at the Barr. 
 
 The wretched Scrauls called our 
 Records, at prefent, are not only in- 
 finitely different, but the horrid Jar- 
 gon of the Contents thereof, called the 
 Pleadings of One Single Term, has 
 as many Dialects as there are fpecial 
 Pleaders, Drawers, or Translators there- 
 of; and a Plea or a Declaration drawn 
 or tranflated into barbarous EngKjb by 
 a TCvrkfhtre or Lancafhire Man (every 
 one eafily conceives) muft appear in a 
 very different Drefs from thofe drawn 
 by a Somerfetfoire or a Cofnifh Man. 
 
 Every
 
 C 13] 
 
 Every Art or Science whatever, has 
 certain Terms of Art, as well as a Lan- 
 guage peculiar to itfelf ; the Terms of 
 Art and Language belonging to the 
 Law, (before it became Englifi Non- 
 fenfe) had acquired moft certain, fixedj 
 and permanent Meanings ; the Regifter 
 of Writs, that famous Monument of 
 Antiquity ! and the very Ground and 
 Foundation of the Law of England^ is 
 written in the Latin Language, and in 
 the Court of Chancery Hand, which, 
 although it be many Hundred Years 
 old, is as legible and intelligible to any 
 Man now living who was bred to the 
 Law before it was turned into Englifh, 
 as it was to the very Perfon who wrote 
 it ; or, as if it had been written yefter- 
 day, but is now become almoft as un- 
 intelligible to the greateft Part of the 
 Gentlemen at the Barr, learned in the 
 Law Jargon of the prefent Time, as 
 an Egyptian Hieroglyphic, or as the 
 
 Gibberifli
 
 [ '4] 
 
 Gibberifti of a parcel of Pleadings of 
 thefe Days are ftill unintelligible to a 
 a Country Squire, or a Foxhunter. 
 
 The long Continuation of the fame 
 Hand-writing, with the certain fixed 
 Meaning of every Word in the Latin 
 (being a dead Language and invaria- 
 ble) rendered legal Proceedings fhorter, 
 clearer, and more intelligible, without 
 the leaft Doubt at all as to the Mean- 
 ing of the Words, whereas Deeds, or 
 Records written in a varying Hand and 
 Language, muft, in the - Nature of 
 Things, render them more prolix and 
 ambiguous, and in a few Generations, 
 will be as hard to be underftood as 
 Chaucer and Gvwer are, almoft to eve- 
 ry one ; and as many Parts of Drayton^ 
 Spenfer^ Beaumont^ Fletcher and Shake-* 
 fpear are now, even to Critics; for we 
 know that.P<^?, the learned Dr.^" n y 
 Sir 7. Hr, and Mr. Theobald^ all 
 difagree about the true Meaning of 
 
 fever al
 
 [ '5] 
 
 feveral Paflages in one of thofe Divine 
 Authors : This, Experience fliews us, 
 is true, notwithftanding it is confefled 
 that all the before-named Poets were 
 the greateft Wits of their Times, and 
 wrote in the pureft, and politeft Lan- 
 guage thereof. Hence it appears that 
 the Wifdom of our Anceftors in con- 
 tinuing the fame Hand- writing, and 
 Language for fo many paft Ages, can- 
 not be enough admired, for we are 
 thereby enabled to read andunderftand 
 any original Charter of our Liberties, 
 be it ever fo ancient, whether it was 
 obtained from the Saxons, Danes, or 
 Normans, fo long as there are any liv- 
 ing among us who were at the Inns of 
 Court in the laft Reign ; but if the 
 Law fhall continue in Englifb a few 
 Years longer, we fhall be wholly depri- 
 ved of this ineftimable Jewel, unlefs 
 the new Society of Antiquarians be 
 providentially defigned to preferve it 
 among^ a few. 
 
 Thofe
 
 Thofe who forwarded the making 
 of this Ad: of Parliament, knew very 
 well that no free People were ever 
 openly inflaved, and deprived of all 
 their Liberties at one Blow, but that 
 this is to be done gradually, by giving 
 them flow Poifon in the Shape of Me- 
 dicine, and ftabbing the Vitals of the 
 Conftitution in the dark ; by intro- 
 ducing Ignorance under Colour of 
 Science, and perfuading the Subject 
 that if he pulls out his own Eyes he will 
 fee better with thofe of others ; infhort, 
 by throwing a Cloud of Reflection 
 and Diflionour upon a Profeilion, 
 which, for Ages paft, has produced 
 more great and good Men for the Ser- 
 vice of the Common Weal, and has 
 contributed more towards the Prefer- 
 vationof the Conftitution of this King- 
 dom, than any other particular Body 
 of Men, or Profeflion in the State, 
 whatever. 
 
 The
 
 f 17 ] 
 
 The Promoters of this Statute knew 
 well enough that it muft foon bring 
 Difgrace upon the Profeffion of the 
 Law, and plainly forefaw that every 
 illiterate fellow, with a Face of Brafs 
 and a plaufible Tongue would ima- 
 gine himfelf well enough furniflied to 
 fet up for a Lawyer as foon as he could 
 read a Writ or Declaration, which, 
 when once they became Englijh^ would 
 be mighty eafy, whereas before, it 
 might be a litde difficult without a 
 School Education and a little Know- 
 ledge in the Latin Tongue .; and furely 
 it can be no Dishonour to the Law df 
 England that its ProfdTors ought tt> 
 have a competent Knowledge of Lffr- 
 tin : They knew well .enough that tine 
 Clamours againil the Law and Law- 
 yers have generally arofe from Offences 
 committed by a few, who are always 
 the moft ignorant and illiterate of the 
 Profeffion, and confequently the find- 
 D ing
 
 ing a Method to let a greater Number 
 of unlearned Men into the ProfefTion, 
 mult increafe the Number of Mal- 
 Practicers and Pettyfoggers, introduce 
 greater Ignorance, and raife the Cla- 
 mor higher againft the Law and its 
 Profeffors in general; and indeed this 
 Statute feems to anfwer the End it 
 was intended to ferve, which has been 
 already hinted at, and if it be not fpee- 
 dily repealed, we may expecl to fee 
 -Bankrupt Tradefmenand broken Shop- 
 keepers, who can read and write a to- 
 lerable Book-keeping Hand, fet up 
 for fpecial Pleaders, and pradifing the 
 Law ; nay, it may be truly faid, that 
 fince the Law was Englijh, and the 
 Statute for better Regulation of Attor- 
 neys was made, fome Perfons who 
 -have been Servants to Lawyers have 
 crept into the Office of an Attorney, 
 to the Great Honour of the Profef- 
 flon! 
 
 The
 
 ['9] 
 
 The Office of Attorney is an Office 
 of Great Truft, and before the two 
 late Statutes, was held in fuch Efti- 
 mation that it was no Difgrace to a 
 Gentleman, or to a younger Son of 
 One higher born, to be bred to it ; 
 however now it be theFafhion todefpife 
 it, indeed formerly it required a com- 
 petent Knowledge in the learned 
 Languages, but chiefly of the Letting 
 now it feems otherwife, for in thefe 
 Days, if a Man can but write and read 
 well enough to con over a little of 
 the Di&ionary of Giles Jacob *, and 
 get at his Finger's Ends a few 
 Cafes, or Notes of Cafes in Points of 
 PraEtice^ he is complately furniilied for 
 a Practitioner of the Law ; but, if he 
 be enabled to purchafe VINER, he 
 
 * Jacob the Scourge of Grammar, mark with Awe, 
 Nor lefs revere him, Blunderbuis of Law. 
 
 'OPE. 
 
 D 2 forthwith
 
 [ 20] 
 
 forthwith becomes an univerfal Law- 
 yer. 
 
 As Index Learning turns no Student pale, 
 Who takes the Eel of Science by the Tail. 
 
 During the Usurpation of Cromwell 
 when the Royal Family was baniflied, 
 and the Conftitution deftroyed, the 
 Law Proceedings were in Englijh, when 
 fo many Inconveniences, and fuch Ig- 
 norance appeared that the Z/^/^Tongue 
 was again reftored foon after the King's 
 Return ; and if any one will give him- 
 felf the Trouble (as we have done) to 
 look into the Law Proceedings of that 
 Time, he will find them fcarcely le- 
 gible, and in a Jargon now almoft 
 unintelligible, being a very different 
 Gibberifh from that of the prefent 
 Law- Pleadings. 
 
 Before the Law was in Englijh the 
 Pleadings were very fllort and concife, 
 in Comparifon to what they now are, 
 
 every
 
 [21] 
 
 every Noun in the Englijh Language 
 having the Article joined to it, and 
 every Verb being accompanied with 
 the Sign of it's Mfarf, 7enfe> Number^ 
 and Per/on^ infomuch that the Com- 
 mon Cofts and Charges attending the 
 Tryal of a Caufe are now become 
 nearly double to what they were in 
 the laft Reign, and are every Day in- 
 creafing; fome other Caufes of this 
 growing Evil may be affigned, befides 
 the late Statute, particularly the Alte- 
 ration of the Common Law, whereby 
 every Man was bound to plead fingly^ 
 and to put his Defence upon one fingle 
 Matter only, whereas at this Time it 
 is not uncommon for a Defendant, 
 with the Affiftance of an ingenious 
 Gentleman, called a fpecial Pleader, 
 to plead three, four, five,- or fix Pleas, 
 as oppofite and contradictory in them- 
 felves, as black and white ; and when 
 Iflues are joined upon all thefe Pleas, 
 or Defences made, it becomes necef- 
 
 fary
 
 [ 22 ] 
 
 for the Plaintiff to anfwer them 
 all, and to meet the Defendant at the 
 Affizes, armed at all Points, and to 
 have Witnefles ready to prove all the 
 Iffues joined, becaufe he is wholly un- 
 certain upon which of his Pleas or De- 
 fences the Defendant intends to rely 
 at the Tryal of the Caufe ; this, every 
 one fees, increafes the Prolixity of the 
 Pleadings, and the Expences of a Suit, 
 infomuch that at this Day Eighty or a 
 Hundred Pounds are frequently ex- 
 pended in the Tryal of a Right to a 
 Foot Path crofs over a Field, whereas 
 before the late Alterations in the Law, 
 the Expences of a Tryal in a like Cafe 
 did not amount to half the Sum ; the 
 Expences of the Tryal of a Title to 
 an Eftate of Ten Thoufand Pounds per 
 Annum might have been defrayed 
 for about Fourteen Pounds Ten Shil- 
 lings, and the whole Record of the 
 Pleadings, Verdicl, and final Judg- 
 ment in an Ejectment tor that Purpofe, 
 
 when
 
 when the Law was in Latin, did not 
 exceed Three Hundred Words, but 
 at this Day we often fee the Record 
 in one Caufe, in fome Adions, amount 
 to Ten Times as many Sheets, reck- 
 oning Seventy Two Words to a Sheet. 
 
 Among many other Inftances which 
 might be given of this growing Evil 
 Prolixity, in ffttgfijb Pleadings, it may 
 not be improper to point out One 
 which happened this very Term in 
 Weflminfter Hall ; the Cafe was thus, 
 A Plaintiff having a fmall Demand 
 upon a Defendant for Goods fold and 
 delivered to him, for Money lent, 
 and fome other little patters, brings 
 an Action againft the poor Defendant, 
 who probably is not able to pay the 
 Debt immediately, but to render hirri 
 lefs able to do it, the Plaintiffs At- 
 torney produces in Court a Declara- 
 tion of his Demand (fuppofed to be 
 drawn by a fpecial Pleader} contain- 
 ing
 
 C'4] 
 
 ing no le{s than Sixteen Counts, or 
 Fifty Copy Sheets: whereupon the 
 Counfel at the Barr for the Defen- 
 dant, aftoniihed at this monftrotis 
 Abufe of the Law Proceedings, on 
 Tuefday the i4th of November 1758, 
 moved the Court that the Declaration 
 might be curtailed, and that Ten of 
 the Sixteen Counts might be ftruck out 
 of the Declaration, alledging to the 
 Court that it appeared upon the Face 
 of it, Six Counts were fufficient for 
 the Plaintiff to ground his Demands 
 upon ; and that the other Ten Counts 
 contained Nothing but Tautology and 
 Surplufage: Whereupon the Rule 
 pronounced by the Court on this Oc- 
 cafion (if the Perfon who heard it is 
 not miftaken) was, that the Plantiff 
 or his Attorney fhould (hew Caufe at 
 a future Day why the Subject Matter 
 of this Complaint or Application to 
 the Court fliould not be referred to a, 
 certain Officer of the Court (to whom, 
 
 for
 
 for fome Years Lift paft, Matters of 
 this Kind have certainly been generally 
 fent) for him to look into the Decla- 
 ration and the PlantifFs Cafe, and re- 
 port his Judgment thereof to the 
 Court : In this Situation the Matter 
 now ftands, but what Remedy the 
 poor Defendant will obtain, Futurity 
 can only difcover : Now if it fhall ap- 
 pear to the Court, upon fliewing 
 Caufe that the Fees of the Officer (to 
 whom this Abufe is propofed to be 
 referred) do increafe in Proportion to 
 the Length of, and multiply in the 
 fame Ratio with the Number of 
 Counts in a Declaration, certainly 
 the Court will put this Matter into 
 fome other Courfe of Examination; 
 for, although it muft be acknowledged 
 that the Officer is a Man of as ftrid 
 Honour as any Gentleman in England^ 
 yet the Policy of the Law will never 
 endure that any Perfon whatever fhall 
 be judge in a Cafe wherein he him- 
 E felf
 
 [26] 
 
 felf is, in the leaft, interefted ; and 
 therefore with great deference it is fub- 
 mitted, that this is not the proper 
 legal Officer to whom thefe Kinds of 
 Complaints ought to be referred, but 
 that they ought to be redreffed by the 
 Lords the Judges themfelves, who 
 only are able to do more fpeedy and 
 effectual Juftice than can be done by 
 any Officer of the Court whatever, 
 whofe proper Buflnefs is quite of ano- 
 ther Kind, and merely clerical or mi- 
 nifterial ; befides, this Kind of Practice, 
 like every other Innovation, occafions 
 Delay and Expence to the Parties, 
 which otherwife would not happen. 
 
 The Length of Pleadings have oc- 
 cafioned great Complaint againft fpe- 
 cial Pleading fince the Law became 
 English, and fome Attempts have been 
 made to obtain a Law, that a Defen- 
 dant, in every Cafe whatever, hali be 
 at Liberty to plead the general Iffue 
 
 and
 
 and give the Special Matter in Evi- 
 dence ; and it is now fafhionable, 
 even among Barrifters themfelves, to 
 ridicule this elegant Science, (which 
 confefledly few of them at this Day 
 underftand) this diftinguifhing Part of 
 the Englifh Law, which Littleton (one 
 of the beft Judges and Lawyers that 
 ever adorned the Profeffion, whofe 
 Book will be admired as long as we 
 have any Learning, Law or Liberty 
 left among us) calls One of the moft 
 Honourable and laudable Things in 
 our Law. 
 
 So long ago as the Time of Edward 
 III, Pleadings were in their greateft 
 Perfection, the Judges and Profeflbrs 
 of the Law being then learned Men, 
 and the Pleadings being, at that Time, 
 drawn by the Serjeants at the Barr ; 
 and the Exceptions alfo being taken 
 at the fame Time at the Barr ; which 
 (as Lord Hale fays) were rarely taken 
 E 2 for
 
 [ 2 8] 
 
 for the Pleafure or Curiofity of the 
 Pleader, but only when it was appa- 
 rent that the Omiffion of the Matter 
 excepted to, was, for the moft Part, 
 the Merit and Life of the Caufe ; and 
 purpofely omitted or mifpleaded be- 
 caufe his Matter or Caufe would bear 
 no better. By this Means the Quef- 
 tion between the Parties was fhortly 
 reduced either to a Point of Law, and 
 to be debated and determined by the 
 Judges, or to a Point of Fact to be 
 tried by a Jury; but of late Years 
 Pleadings have been drawn out into 
 exceffive Length, and we may ex- 
 pect to fee them as long as the Pro- 
 ceedings in Chancery, unlefs the Law- 
 Hands and Language be reftored, 
 fome Limitation be put to the Num- 
 ber of Pleas that a Defendant may 
 plead, and a certain fet of Gentlemen 
 who are lately crept into the Profef- 
 lion of the Law, and are neither At- 
 torneys, Sollicitors, nor Barrifters, 
 
 but
 
 [29] 
 
 but call themfelves fpecial Pleaders, be 
 brought under fome Regulation : For 
 fo long as they are to be paid a pro- 
 portionable Sum to the Length of the 
 Pleas they draw ; fo long as a Defen- 
 dant may plead as many Pleas as thofe 
 very ingenious Gentlemen can invent 
 for him ; and Pleadings are in Englifh y 
 we can never expect to fee them 
 fliorter. 
 
 To ftrike off fpecial Pleading abfo- 
 lutely in every Cafe, would not re- 
 medy this growing Evil of Prolixity 
 in Law Proceedings, but would oc- 
 cafion many more and greater Incon- 
 veniences to the Subject than the 
 wifeft Man living can forefee; for if 
 the Defendant was at Liberty in every 
 Cafe to plead the General Iffiie, and 
 give any thing whatever in Evidence, 
 it would be impoffible for the Plaintiff 
 to come armed with Witnefles to con- 
 trovert
 
 [ 30 ] 
 
 trovert a Matter of Defence wholly- 
 unknown and undifcovered to him ; 
 and Plaintiffs would not only be under 
 the greateft Difficulties to recover their 
 juft Rights, but a Multitude of Fafe 
 as well as Matters of Law would arife, 
 almoft upon every Trial ; and the Lent 
 Affizes which at York have, fome- 
 times of late, lafted three Weeks to 
 the great Expence of the County, 
 would be lengthened to three Months; 
 and where we now have one fpecial 
 Verdict, we fhould neceflarily have 
 Twenty at leaft, if the fpecial Matter 
 was not to be known and pleaded in 
 many Cafes, and the Controveriy be- 
 tween the Parties reduced to a Point 
 of Fad: before they come to the Affi- 
 zes. Every one knows the great 
 Length and Expence of fettling and 
 arguing fpecial Verdidts, fo that this 
 propofed Remedy would not at all 
 mend the Matter, but, in Truth, 
 
 would
 
 would be a greater Grievance to the 
 Subject. 
 
 The beft Way to find out Cures 
 for Evils of this Kind is, to look 
 back into the Practice of our Ancef- 
 tors ; into Times when every Man 
 in any Office or Station, touching the 
 Administration of Juftice, as well in 
 refpect to the Prerogative of the King 
 as the Rights of his People, was ob- 
 liged perfonally to do his own Duty ; 
 when there was no fine cure^ no 
 Place, Penfion, Office, or Fee, with- 
 out a Duty annexed ; it when the Ser- 
 jeants or Counfel at the Barr of the 
 Courts declared to the Judges the 
 particular Cafe or Demand of the 
 Plaintiff or Demandant his Client, 
 purfuant to the King's Writ iffued 
 from the Chancery ; to which Decla- 
 ration the Serjeant or Counfel at the 
 Barr for the Defendant or Tenant, 
 either prayed Time to imparl, viz. 
 
 to
 
 [32] 
 
 to fpeak with his Adverfary, in order 
 to make an amicable End of the Con- 
 troverfy, or elfe for Time to be more 
 fully inftrnded to make a proper De- 
 fence ; which the Court in their Dif- 
 cretion, and under the Circumftances 
 of every particular Cafe granted, or 
 not ; if Time was not prayed, then 
 the Serjeant or Counfel for the Defen- 
 dant gave his Anfwer, and the other 
 replied, and fo they alternately an- 
 fwered each other, until an Iflue, in 
 Point of Law or Matter of Fact, was 
 fettled and agreed upon at the Barr, in 
 the Prefence, and with the Advice of 
 the Judges in Court ; if it happened 
 to be an Iflue in Law, then it was to 
 be further confidered and argued both 
 by the Barr and the Bench at a future 
 Day; if an Iflue of Fact, it was to be 
 tryed by a Jury of the Country. 
 
 At the fame Time the Pleadings 
 were thus fixed and fettled in Court 
 
 at
 
 [33] 
 
 in the hearing and with the Affiftance 
 of the Judges on the Bench, the chief 
 Clerks or Prothonotaries, with their 
 fecondary Clerks, who have Seats in 
 Court for that Purpofe, took Minutes 
 of the Pleadings, as fixed, fettled, and 
 agreed upon between the Parties, and 
 entered them of Record in the Rolls 
 of the Court. The Pleadings being 
 thus fettled by the moil learned Per- 
 fons of the Profeffion, were at that 
 Time as concife, certain, and perfpi- 
 cuous, as human Wifdom and Policy 
 could make them, and contributed 
 greatly to put a fpeedy End to Suits. 
 
 But if we look into modern Prac- 
 tife in the Courts of Juftice, we fhall 
 find that many of the moft lucra- 
 tive Offices are made Sine Cures, 
 and that many Thoufands per annum 
 are paid to Officers in Wejlminjler 
 Hall) for Duties that they are either 
 unwilling, or unable to perform ; the 
 F Lords
 
 [34] 
 
 Lords the Judges have now no hand, 
 at all, and the Serjeants and Counfel 
 at the Barr, very little, in fettling the 
 Pleadings ; but they are almoft .wholly 
 left to the Manufactory of the upftart 
 Gentlemen before mentioned, former- 
 ly unknown in the Profeffion, No 
 wonder therefore that fo many Blun- 
 ders in the Procefs of a Suit are con- 
 tinually made, to the infinite Expence 
 of the Suitor, who does not only pay 
 for making fuch Blunders, but is de- 
 layed in his Suit, and put to a further 
 Expence in applying to the Court to 
 have them mended ; infomuch that 
 it may be truly faid at this Day, 
 Nine Tenths of the Time of the 
 Courts of Law in Wejlmmfter Hall 
 are taken up in wrangling about cor- 
 reding Irregularities and Blunders, be- 
 fore Juftice can be come at. When 
 the Pleadings are fettled, it then be- 
 comes the Duty of the Prothonotary to 
 enter them on Record in the Rolls of 
 
 the
 
 f 35] 
 
 die Court ; but he (good Man !) never 
 troubles his Head any further than 
 writing down the Name of the Caufe 
 in a Book, and counting the Number 
 of Sheets the Pleadings contain, and 
 taking his Fees according to the Length 
 thereof, leaving it to the Attorney's 
 Clerk to do it, or not do it, juft as it 
 happens. This Expreffion falls not 
 inadvertently ; for the Writer af- 
 firms, upon his own Knowledge, that 
 many Thoufands of Pounds have been 
 paid to feme Officers in Weftminjler 
 Hall, within the laft forty Years, for 
 Entries or engroffing Records in the 
 Roll, which never were nor ever will 
 be entered or ingrofied at all ; having 
 afferted this, it may be thought in- 
 cumbent upon him to give an In- 
 ftance of this Kind of Negled: of 
 Officers in the Courts of Juftice. For 
 that Purpofe therefore he fays, that 
 in or about Eajier Term, 1727, a 
 certain Perfon, who was a Clerk in one 
 F 2 of
 
 C 36 ] 
 
 of the Offices mentioned, and like- 
 wife acted as an Agent to Country 
 and City Attorneys in paffing their 
 Common Recoveries, died ; foon af- 
 ter whofe Death, there were found 
 locked up in his Defk and Cheft of 
 Drawers, many Scores of Writs of En- 
 try and Notes of Recoveries palled at 
 the Barr, for which this Clerk had 
 been paid the Fees for compleating 
 and entring the fame upon Record, 
 but which he had totally negleded to 
 do, for the Writs of Entry were alba 
 ibreuia; that is, the King's Fine for 
 Alienation had not been compounded 
 or paid, nor any one Step taken to- 
 wards compleating the Record. This 
 being fb, it was foon difcovered by 
 two or three eminent Conveyancers of 
 that Time, who had continual occa- 
 fion to fearch for Recoveries; Mr. 
 Ward and Mr. Piggot both knew it- ; 
 
 oo * 
 
 that the latter certainly did, his 
 
 Treatife of Common Recoveries, p 27, 
 
 4 plainly
 
 [ 37] 
 
 plainly proves, where he advifes the 
 Parties concerned in a Title where a 
 Recovery is fuppofed to be pafled, to 
 look carefully into it, and fee whether 
 the Writ of Entry be duly filed, and 
 the Proceedings regularly entered ; for 
 (fays he) u / have known fome Attor- 
 " neys fo remifs as to take all the Fees 
 " for a Recovery, and barely take it at 
 " the Barr^ and do nothing more" 
 Now it would be impoffible this Neg- 
 lect could ever happen, if the proper 
 Officer was obliged to do his Duty, 
 that is to fay, if he or his Clerks 
 were to make an Entry or Record 
 at the Time it is acknowledged and 
 fuffered by the Parties in Court, as 
 was formerly done: Inftead whereof 
 he only writes down the Name of it, 
 and his Fees, returning a Note of it 
 to the Attorney, leaving him to enter 
 it upon Record, or not, juft as it may 
 happen, as we before hinted. 
 
 After
 
 [38] 
 
 After this Neglect, by the Death 
 of the Clerk, was difcovered to the 
 Officer, we muft do him the Juftice 
 to fay that he did every thing in his 
 power to compleat all the Recoveries 
 upon the Writs of Entry which could 
 be found, at the Expence of feveral 
 Thoufand Pounds ; and by the Affift- 
 ance of fome Friends in Parliament 
 (one of whom is now living) he got 
 a Claufe in an Adi: of Parliament to 
 make Deeds to lead the Ufes of Re- 
 coveries good Evidence of fuch Reco- 
 Aeries, after Twenty Year's Pofieffion, 
 although the fame be not entered upon 
 Record; and if any one reads the 
 Claufe for that Purpofe, in the Stat. 
 14 Geo. II. to A amend the Law con- 
 cerning Common Recoveries, &c. he 
 will plainly fee that the Perfon who 
 drew it, very well knew of this Mat- 
 ter. 
 
 Befides
 
 [39] 
 
 Bdldes this, we know of marty fo* 
 lemn Determinations in Law, whereof 
 there remain no Footfteps at all : Which 
 could not be fo, if this Officer did his 
 Duty ; for it is the Bufinefs of this 
 Officer, in the Cafe of every Iffue, 
 joined both in Law and in Faci, to fee 
 and take Care that the fame be entered 
 in the Roll, before the firft be argued 
 at the Barr, and before he fign the 
 Record of nifi prim for fending the 
 latter down to be tryed by a Jury. 
 But what is the Practice ? In the Cafe 
 of a Demurrer or Iflue in Law, the 
 Attorney carries him a Roll with a 
 Line or two written upon it (called an 
 Incipitur) together with a Copy of the 
 Pleadings in Paper, to enable the Offi- 
 cer to count the Number of Sheets 
 they contain ; for this he takes his 
 Fees and puts a Mark to the Roll as a 
 Receipt for his Fees ; then he enters 
 the Name of the Caufe in a Book for 
 
 that
 
 [40] 
 
 that Purpofe, returns back the Plead- 
 ings in Paper, and the Roll, with a 
 Line or two written upon it, to the 
 Attorney, who may or may not enter 
 the reft on the Roll: Or if his Clerk 
 does enter it, poffibly it may never be 
 feen in the Treafury at Wejlmlnfler^ or 
 become a Record there. This being 
 done, Copies of this fuppofed Record 
 are given in Paper to the Judges, and 
 the Points of Law therein are debated 
 in Court, and folemnly determined by 
 them, when in Truth there is no fuch 
 Record either actually in Court, or in 
 the Treafury ; when the Court gives 
 Judgment, it then becomes the Duty 
 of this Officer to fee that it be fairly 
 entered in the Roll, and carried into 
 the Treafury ; but inftead of doing 
 that which is his own Duty, and for 
 which he is really paid, he does the 
 Duty of another Perfon*, that is to 
 
 * In Eafter Term, 1 1 Jac. I, a Rule was made, 
 which among other Things recites, that of antient 
 
 fay,
 
 fay, he figns the Judgment and taxe"s 
 the Cofts ; for which figning of Judg- 
 ment and taxing Cofts, he receives 
 One Shilling, and accounts for it to a 
 fuperior, vvhofe proper Duty it anti- 
 ently was, and therefore ftill is, to fign 
 Judgment and tax Cofts, for there 
 can be no Fee of Right, without a 
 Duty : And whether any Judgment 
 fhall ever be entered, he knows no- 
 thing at all of it. 
 
 This Bufinefs of taxing Cofts by the 
 Prothonotaries, if it is not already } 
 may (probably) foon become grievous 
 to the Subjecl, for it is the Iritereft of 
 each of thefe Officers to oblige Attor- 
 neys, upon whom the Profits of their 
 feveral Offices abfolutely, at prefent 
 
 Time no Cofts of Suit could be given upon Judg- 
 ments before the fame were taxed and allowed by 
 fome of the Judges, which Ufage continued a long 
 Time, until it pleafed the Court to depute and 
 appoint the Prothonotaries for that Purpofe. 
 Therefore it is ordered, &c. fee the Rule. 
 
 G depend,
 
 [42] 
 
 depend, by allowing as large Coils as 
 they poffibly can, in order to draw 
 Attorneys to practice, or enter Plead- 
 ings in their feveral Offices; it muft 
 indeed be acknowledged that the pre- 
 fent Gentlemen who fill thefe Offices, 
 are above fuch dirty Work, but there 
 was a Time in the Memory of him 
 now writing, when a great deal of 
 this vile Trade was pra&ifed, and to 
 prevent the like for the future, let the 
 three puifne Judges, Perfons indepen- 
 dent and above all Temptation, tax 
 the Cofts and fign the Judgment as 
 they antiently did as Affiftant to the 
 Chief Juftice, or let the three Protho- 
 notaries fliare the whole Profits of all 
 their Offices equally. 
 
 The Practice, with regard to fend- 
 ing down Records of niji pr/us, to be 
 tried at the Affizes, is much the fame, 
 for not one Iffue in Twenty is entered 
 upon Record and carried into the 
 Treafury at Weftminfter before it be 
 
 tried ;
 
 [43 ] 
 
 tried ; and after the Iffiie is tried, not 
 One Judgment in Twenty is ever en- 
 tered on Record, though all thefe 
 Things are paid for, to the proper 
 Officer whofe Duty it is to do them. 
 
 This being the Truth, we muft 
 not be furprifed that there have been 
 many great and folemn Determinati- 
 ons in one of the King's Courts of 
 Record, within the laft Fifty Years, 
 whereof there are no Footfteps to be 
 found, no Original Writ to ground 
 the Proceedings upon, no Declaration, 
 Plea, Ifliie or Judgment to be found, 
 though the Names of the Caufes and 
 Pleadings may be found in the Books 
 of the Offices, where the Fees were 
 paid, and in fome of the Reports. 
 No foreign Lawyer would believe this ; 
 for the learned Montefquleu (that Ad- 
 mirer of our Laws and Conftitution) 
 Jays, " that Decifions in Courts of 
 " Juftice muft bepreferved and learnt 
 G 2 " that
 
 cc 
 
 [44] 
 
 that we may judge in the fame 
 Manner to-day as yefterday, and 
 < that the Lives and Property of the 
 " Citizens may be as certain and fixed 
 <c as the very Conftitution of the 
 " State." And indeed our Anceftors 
 were fo fenfible of this Matter, that 
 in order to prefer ve the Determinati- 
 ons and Judgments of Law to Pofte- 
 rity, two learned Perfons were ap- 
 pointed by the Crown in every Court 
 to write down and report the fame 
 faithfully. But alas ! how ftrangely 
 Things are altered ! for at this Day 
 every Bookfeller is at Liberty, provided 
 he compounds with the Law- Printers, 
 to publifh. whatever he purchafes for 
 Law ; whence it comes to pafs that in 
 our later Reporters we find fo many 
 ftrange Contrarieties and Abfurdities. 
 
 The Author of thefe Hints has fome 
 Reafon to think that fome of the Lords 
 the Sages of the Law, begin to fee 
 
 fome
 
 C 45] 
 
 fome of thefe Inconveniences, and 
 would be glad to reform them, but 
 as fuch Reformation might tend to 
 the Prejudice or Difinterefl of Friends, 
 it cannot be reafonably expedted to 
 take place fuddenly, and therefore 
 calls upon the Legislature, (who have 
 lately fhewn the higheft Regard to 
 the Lords the Judges and Sages of the 
 Law, by defervedly giving them an 
 Addition to their refpedive Salaries,) 
 to reform fome of the Grievances and 
 Negledts hinted at. 
 
 In fliort, to prevent the Law- 
 Proceedings from running into end- 
 lefs Prolixity, like thofe in Chan- 
 cery, and to prevent broken Tradef- 
 men, Goal-birds, and Footmen, and 
 Servants to Lawyers, from commenc- 
 ing Lawyers and Attorneys, it is 
 humbly propofed that the Law-Pro- 
 ceedings be turned into Latin. Se- 
 ondly, That the Defendant fhall be 
 
 at
 
 [46] 
 
 at Liberty to plead or avow two Mat- 
 ters or Defences,, and no more, to 
 one Declaration. Thirdly, That fpe- 
 cial Pleaders, as Perfons unknown to 
 the Courts, be either wholly prohi- 
 bited, or put under fuch Regulation 
 as the Legislature, in their Wifdom, 
 {hall think fit. And laftly, That 
 every Perfon any way concerned in an 
 Office, touching the Adminiftration 
 of Juftice, be obliged ftriclly to do the 
 Duty of his Office by himfelf, perfo- 
 nally, or by his Deputy, if he may 
 have one by Law ; and that whoever 
 receives a Fee in Right of any Office, 
 or Place, touching the Adminiftration 
 of Juftice, fhall do the particular Du- 
 ty for which he receives that Fee, on 
 pain of Forfeiture of his Office ; and 
 fuch other Punifhment as may be 
 thought reafonable to the Legiflature, 
 
 The King's Palace, or Court, was 
 antiently the great and principal Seat 
 
 of
 
 [47 ] 
 
 of Juftice in this Kingdom, but in 
 procefs of Time the Judicature of the 
 King's Court came to be divided, by 
 Reafon (as is fuppofed) of the grow- 
 ing Wealth and Commerce of the Na- 
 tion, which increafed the Bufinefs 
 thereof; this Divifion of the King's 
 great Court, probably, began in the 
 Time of King Richard I y or King 
 yohn^ and was compleated in the 
 Reign of Henry III, by Virtue of the 
 great Charters of the two laft men- 
 tioned Kings. In King *Johri s Char- 
 ter, dated in the lyth Year of his 
 Reign, it is faid, Communia placita non 
 fequantur cur lam no/iram, fed teneantur 
 in aiiquocertoloco\ here, by the Word, 
 Curiam nojlram^ may be fairly under- 
 ftood the King's Bench, becaufe original 
 Writs returnable there, are Cor am Do- 
 mino rege ubicunque fuerit in Anglia^ 
 i. e. before our Lord the King, where- 
 foever he fhall be in England ; if this 
 be true, its plain that ty MagnaCharta 
 
 the
 
 C+8 3 
 
 the King's Bench was not to have 
 Cognifance of Common Pleas or Civil 
 Suits ; and, in Truth, for fome Ages 
 after Magna Charta, the King's Bench 
 took noConnufance of civil Suits, un- 
 lefs in correcting the Errors of the 
 Common Pleas, and of other the King's 
 fuborninate and inferior Courts ; and 
 except in Suits, where an Officer of the 
 Court was a party, and where the De- 
 fendant was aElually in Cuftody of the 
 Court, or of the Marfhal of the Court, 
 for fome criminal Matter. 
 
 Nor did the Exchequer (a Limb 
 of the great Curia) take Connufance of 
 any civil Suit, where the King's Re- 
 venue, or Debtor, was not concerned ; 
 and, for fome Ages, thefe three great 
 Courts fleered clear of each other, and 
 confined themfelves within their re- 
 fpedtive proper Spheres ; the King's 
 Bench took Connufance of all cri- 
 minal Matters or Pleas of the Crown, 
 
 and
 
 t 49 ] 
 
 and. corrected the Errors of other 
 Courts ; the Court of the Bench or the 
 Bank (as it is antiently ftyled) held 
 Plea in all civil Actions real and per- 
 fonal, between Subject and Subject, 
 and the Exchequer dealt in all Mat- 
 ters touching the King's Revenue; 
 but in later Times the two Courts of 
 King's Bench and Exchequer incroach- 
 ed upon the Court of the Bank or 
 Common Pleas, and have feverally 
 eftablifhed Jurifdictions in civil Suits 
 upon Fiction; for one of them tells 
 you upon Record, that every De- 
 fendant fued by Bill is a Prifoner in 
 Cuftody of the Marflial, and you have 
 him fafe; and the other fays, if you 
 will bring Grift, you may grind at the 
 King's old Mill as freely as himfelf, or 
 his own Debtors and Suitors ; and 
 though thefe are two ftrange Stories, 
 yet no Man is permitted to contradict 
 them. To be ferious, they both have 
 really quite outftripped the Common 
 H Bank ;
 
 [ So ] 
 
 Bank ; for the Exchequer has extended- 
 its Arms all over the Welfh Mountains ; 
 and the King's Bench has got hold of 
 the Counties Palatine^ and been fre- 
 quently nibbling at Wales: And, if 
 they are not flopped, it is conjeclured, 
 they will fometime or other travel into 
 Scotland : for if his Majefty ftiould 
 chufe to keep his Court, and rende in. 
 the Or cades ^ the King's Bench and Ex- 
 chequer being ambulatory) muft cer- 
 tainly follow him thither ; if this fliould 
 happen, and the King's Bench and 
 Exchequer continue to be permitted 
 to hold Plea in civil Suits, a Cornijh 
 Man, in a Controverfy about a Bunch 
 of Turnips, may be drawn into the 
 Highlands of Scotland, before a Court 
 of Scots Lairds ; if this fhould ever be 
 the Cafe, the Lord have Mercy upon 
 poor Englijlmen ! 
 
 This fcrambling for Jurifdiction has 
 created infinite Mifchief and Incon- 
 venience
 
 [ 5i J 
 
 'venience to the Subject; for inftead 
 of having one Rule of Law and 
 Practice, you have three, or perhaps 
 three thoufand, which contribute not 
 a little to that glorious Uncertainty fo 
 much extolled by Lawyers ; for no- 
 thing is more common than for one 
 Court to judge quite contrary to an- 
 other ; whereas if each Court was con- 
 fined within its proper Limits, there 
 would be but one Rule of Law and 
 Practice; which, moft certainly, would 
 be more univerfally known and un- 
 derftood by every Man, and prevent 
 infinite Mifchiefs attending the Law 
 and Practice thereof, as it now ftands. 
 
 Let any one look into what are 
 called the general Rules or Orders of 
 the feveral Courts, efpecially into thofe 
 from Time to Time made by the 
 King's Bench and Common Pleas, a 
 little before and fince the Time of the 
 Heftoration of Charles II, 'till the Be- 
 ll 2 ginning
 
 [5*] 
 
 ginning of this Reign, and he will 
 clearly fee that thefe two Courts, dur- 
 ing that Time, have been co-ntinually 
 fcrambling for Bufinefs, and ufing 
 every triccum in lege to draw Attorneys 
 to pradtice in their refpedive Courts ; 
 I fay, until the firft Year of the prefent 
 King, for quis credat that any fuch. 
 ftrange doings have been fence ! 
 
 About the Year 1674, when North 
 was made Lord Chief Juftice of the 
 Common Pleas, he found there a long 
 Catalogue of Officers picking their 
 Fingers, without other Bulinefs to em- 
 ploy them ; for the King's Bench, a 
 little before that Time, had fo out- 
 witted the Judges and Officers of the 
 'Common Pleas, that the former (efpe- 
 cially in London and Middlefex) ran 
 away with the greateft Share of the 
 Bufinefs in civil Suits : And this was 
 done by gaining an eafy Way of hold- 
 ing to fpecial Bail upon Bills of Mid- 
 dle/ex
 
 [53 J 
 
 dlefex and Latitats. This indeed was 
 only giving the Common Pleas a Row- 
 land for their Oliver ; for that Court 
 thought to have excluded the King's 
 
 o o 
 
 Bench, by getting the Stat. 13 Car. 
 2. c. 2. SefT, 2. made, which enacts, 
 that no Perfon (hall be arrefted by 
 Procefs, iffuing out of the Kings 
 Bench or Common P/eas y in which Pro- 
 cefs the true Caufe of Adion is not 
 exprefled, and for which the Defen- 
 dant is bailable, by the 23 Hen. VI. 
 Cap. 10. and fhall be forced to enter 
 into Bond with Sureties for Appear- 
 ance in any Sum not exceeding 40 /. 
 This was done always, and of courfe 
 in Original Writs returnable in the 
 Common Pleas, but not in the Kings 
 Bench, in whofe Procefs of Latitat 
 and Bill of Middkfex, was only ex- 
 prefled thefe Words, In a Plea of 
 Trefpafs, let the true Caufe of Ac- 
 tion be ever fo different: Herein the 
 Common Pleas thought they had 
 
 nicked
 
 [ 54] 
 
 nicked them ; but the Kings Bench 
 ^vere foon even with this Device ; and 
 therefore they added a Claufe which 
 is called an Ae etiam Billce, i. e. 
 And alfo to awjwer to a certain Bill 
 to be exhibited by the Plaintiff avainjl 
 
 */ Jy o J 
 
 the Defendant^ according to the Cuftom 
 of the Court of Our Lord the King^ 
 before the King himfelf in a Plea of 
 Irefpafs upon the Cafe> upon Promife to 
 the Damage of the Plaintiff of ioo/. 
 or of Debt upon Demand ofiool. as 
 the Caufe of Action happened to be ; 
 and then they faid the Caufe of Action 
 was well fet forth in their Writs, as 
 the Statute directed. This was a 
 great Advantage gained over the Com- 
 mon Pleas \ for their Originals paid 
 Fines to the King in Proportion to 
 the Sum fued for, and were other- 
 wife more expenfive, becaufe they 
 contained the whole Declaration in 
 Subftance, and could not be made 
 out fo expeditioufly as a fliort Bill of 
 
 Muldlefex
 
 [55] 
 
 Middlefex or Latitat might be, which* 
 did not contain a Twentieth Part 
 fo many Words. The then Chief 
 Juftice of the Common Pleas, Sir Or- 
 iando Eridgman^ and his Officers of 
 the Common Pleas^ gave this Way of 
 Proceeding very ill Language, calling 
 it an arbitrary Alteration of the Form 
 of Legal Procefs, and utterly contrary 
 to Law ; but the Lofers might fpeakj 
 they got nothing elfe ; and triccum 
 in lege carried it for the Kings Bench ; 
 which Court, as was faid before, ran 
 away with all the Bufinefs. 
 
 In this melancholy State Lord Chief 
 Juftice North found his Court of Com- 
 mon Pleas ) when firft he fat there j 
 and he having the fole Privilege of 
 appointing or felling the greateft Part 
 of the Offices in that Court, wa& 
 much interefted to find out a Way to 
 put the Common Pleas^ at leaft, upon 
 a level with the Kings Bench in this 
 
 Matter ^
 
 [ 56 ] 
 
 Matter ; and ufed to fay it was hard 
 that his Court, which was inftituted 
 for Civil Suits, fhould be deprived 
 thereof by a Court that was erected 
 for Pleas of the Crown ; and that it 
 was a Shame to be outwitted ; that 
 he did not fee but they had as much 
 Power over the legal Procefs as the 
 Kings Bench had ; and fo at laft deter- 
 mined to put in execution the fame 
 Device that they had ufed, which (he 
 faid) being good Law at one End of 
 the Hall, would not be againft Law 
 at the other; and it was by doing the 
 lame thing in their Writs called Clau- 
 fum fregit^ or Common Capias ad 
 refpondendum ; after Appearance to 
 which, a Plaintiff might declare in an 
 A&ion of Debt, or upon the Cafe, 
 and file an Original Writ at any time 
 before a Writ of Error brought, to 
 warrant the Judgment, and fupport 
 the Jurifdidion of the Court. This 
 was by infer ting the like Claufe of 
 
 Ac
 
 [57] 
 
 Ac etiairi) &c. and then the Common 
 Pleas^ without original Writ, Fine to 
 the King, or Delay, might hold to fpe- 
 cial Bail, upon the Claufum fregit^ as 
 the other Court did, upon their La- 
 tit at s and Bills of Middlefex ; here was 
 fine whipping and fpurring ! here was 
 Jockey hip for you! 
 
 The great Difficulties to be got 
 over, which attended this Alteration 
 in the Law, were, firft, to reconcile 
 the King's Intereft; and next, the 
 Lord Chancellor's. The King had Fines 
 upon Original Writs, as was faid be- 
 fore; and the Lord Chancellor dif- 
 poied of the Places of the Curfitors, 
 who made them out ; but Lord North 
 furmounted thefe Difficulties by pro- 
 mifing that Care fhould be taken (and 
 Orders were indeed made for that End) 
 that Original Writs fhould be filed 
 where they were necefiary; and that 
 the Ac etiams fhould not take place, 
 I but
 
 but in fuch Cafes only where a Lati- 
 
 tat or Bill of Middlefex would ferve, 
 
 he perfuaded the Officers of the Great 
 
 Seal, of the Crown, and the Curiitors 
 
 that they would be great Gainers by 
 
 this Matter, if the Bufinefs could be 
 
 drawn into the Common Pleas, where 
 
 an Original muft be fued out in al- 
 
 moft every Cafe j whereas in the King s 
 
 Bench-Procefs by -B/7/or Latitat, there 
 
 never is any Original at all. Thefe 
 
 fine Promifes were fwallowed, and fo 
 
 this Manner and Form of Pra&ice in 
 
 this Particular has continued ever 
 
 fince. 
 
 Formerly the Defendant, in all Ca- 
 fes whatever, had an Imparlance until 
 the Term next after the Return of the 
 firft Procefs. But of later Years, if the 
 Proceedings in the King's Bench were 
 by original Writ, or the Common 
 Pleas by a fpecial Writ ferved upon the 
 Defendant, which contained the Sub- 
 
 ftance
 
 [59] 
 
 fiance of the whole Declaration ; or 
 for or againft Attorneys, or other 
 privileged Perfons ; or againft Prifo- 
 ners in Cuftody of the Marshall of 
 the Kings Bench , or Warden of the 
 Fleet) the Courts have ruled that the 
 Defendant was bound to plead, with- 
 out any Imparlance, the fame Term 
 wherein the Declaration was delivered, 
 if it was delivered four Days before 
 the End of the Term wherein the 
 firft fpecial Procefs was returnable. 
 And in thefe Cafes Defendants had 
 eight Days Time to plead, from the 
 Time that the Rule was given for that 
 Purpofe. But if the Plaintif proceeded 
 by mem. Procefs, as Bill of Middlefex, 
 or Latitat in B. R. or Capias ad Re- 
 fpondendum in the C. B. the Defendant 
 frill had an Imparlance, that is to fay, 
 Time to plead, until the next Term 
 after fuch Procefs was returnable ; un- 
 til about the Beginning of the pre- 
 fent Reign, the Courts of Law, before 
 I 2 any
 
 [6o] 
 
 any of the prefent Lords the Judges 
 fat therein, without any Precedent or 
 Statute made for that Purpofe, made 
 feveral Rules and Orders, whereby 
 Imparlances are now almoft wholly 
 taken away from the Defendant, in 
 every Cafe whatfoever ; fo that at this 
 Day the Rule is, that upon all Procefs 
 (which takes in mefn Procefs as well as 
 Special) returnable the firft or fecond 
 Return of any Term, if the Plaintiff 
 declares in London or Middle/ex, and 
 the Defendant lives within 20 Miles 
 of London, the Defendant {hall plead 
 within Four Days after fuch Declara- 
 tion delivered without any Impar- 
 lance, and fuch Declaration may be 
 delivered de bene effe (that is to fay 
 whether the Defendant has appeared, 
 or put in Bail, or not; or whether he 
 be in Court, or not.) And in cafe the 
 Plaintiff lives in any other County, or 
 the Defendant lives above Twenty 
 Miles from London^ the Defendant 
 
 {hall
 
 {hall plead within Eight Days after the 
 Declaration delivered, without any 
 Imparlance, and in Default of plead- 
 ing, as aforefaid, the Plaintiff may 
 fign his Judgment. 
 
 By Law every Man was intitled to 
 One Imparlance, and, at this Day, 
 when any Statute gives an A6tion, it 
 always is enaded that the Party fhall 
 have no more than one Imparlance; 
 which plainly {hews that a Defendant 
 might have had more than one, if 
 the Court fhould have thought it rea- 
 fonable. 
 
 This Alteration of the Law, by the 
 Authority of the Judges who prefided 
 in the Courts of Juftice the firft and 
 fecond Years of his prefent Majefty's 
 Reign, without any Authority from 
 Precedents, or Act of Parliament, 
 may, perhaps, feem at firft View, 
 to be done for very wife and good 
 
 Pur-
 
 [62] 
 
 Purpofes, to enable Suitors to come 
 at fpeedy Juftice and prevent expen- 
 five Delays ; but when this Matter, 
 and the Confequences attending it, 
 come to be fairly confidered by any 
 Gentleman or difinterefted Lawyer of 
 common Senfe, it will be found to be 
 quite otherwife, and that it favours a 
 little of the Jockey fliip between the 
 two Courts in Lord North's Time. 
 
 Suppofe a Defendant near Berwick 
 upon T/weed) or at the Land's End to 
 have been ferved with a Latitat the 
 fifth of November laft, returnable the 
 very next Day the fixth, and the fum 
 in demand to be forty Shillings, Part 
 thereof due to the Plaintiff upon a pro- 
 mifforyNote, Part for Goods fold, Part 
 for Money lent, Part Money paid for 
 the Defendant's Ufe, Part for Work 
 done, and the Remainder upon an Ac- 
 count ftated, amounting in the whole 
 to about forty or fifty Shillings ; and 
 which the Defendant would have paid 
 
 Plaintiff
 
 C 63] 
 
 to the Plaintiff without any Suit at all, 
 if he had been called upon before he 
 was ferved with this Procefs (for two 
 Suits out of three have their Foundation 
 inMalice and Revenge) and the Attor- 
 ney for the Plaintif, as it is his Duty 
 by the Rules of the Court, the very 
 next Day the fixth of November deli- 
 vers to the Defendant a Declaration 
 of an Hundred Copy-Sheets de bene 
 efle, which is before explained, with 
 Notice to plead in eight Days or 
 that Judgment will be figned; the 
 Defendant in this Cafe, although he 
 be ever fo willing to pay this fmall 
 Debt, will in Twenty four Hours 
 Time be put to the immediate Ex- 
 pence of ten Pounds for Cofts before 
 he has Time to look about him, or 
 even to fpeak to an Attorney to aflift 
 him in his hard Cafe. Can this be any 
 Part of the Laws of England we fo 
 much extol andboafl of? Certainly, 
 no. 
 
 But
 
 [64] 
 
 But inftead of a Demand for Money, 
 fuppofe the A&ion be for a Trefpafs, 
 wherein a Right to land is in Queftion, 
 or any other Cafe where the Defen- 
 dant may have a good Defence to 
 make, the Time allowed for making 
 that Defence is fo fhort, that before 
 it is poffible for the Defendant's At- 
 torney to draw up his Client's Cafe 
 and lay it before Council, he muft 
 in all Probability have Judgment 
 fnapped againfthim by default, unlefs 
 he rides Poft to London^ and applies to 
 a Judge at his Chambers for Time to 
 plead and make Defence, whereupon 
 a Summon is obtained from the Judge's 
 Clerk, who has blank Summons ligned 
 always ready, for the Plaintiff to at- 
 tend the Judge at his Chambers to 
 fhew Caufe why the Defendant friould 
 not have fo many Day's Time to plead, 
 which perhaps after two or three Sum- 
 mons and Attendances by the Parties 
 
 before
 
 [65 ] 
 
 before the Judge or his Clerk, an Or- 
 der for him to plead is obtained, at 
 an Expence that was unknown to the 
 Subject before Imparlances were takeri 
 away. 
 
 By thus whipping and fpiirring ori 
 the Defendant, it often happens that 
 neither his Attorney or Counfel have 
 Time to fettle his Plea fo accurately 
 as it ought to be, whereby an infinite 
 Number of Blunders are daily com- 
 mitted, which occafion as many Ap- 
 plications to Judges at their Cham- 
 bers, or to the Court, for Leave to 
 amend thofe Blunders. This plainly 
 creates more Delays and Expences, 
 which could not fo frequently happen 
 if Imparlances were not taken away. 
 
 Many other bad Confequences at- 
 tending Innovations and new Rules of 
 Practice might be {hewn, if it were 
 tiecefiary; but from what has been al- 
 K ready
 
 [66] 
 
 ready hinted, it muft be fubmitted to 
 every Man of common Senfe, whether, 
 when the taking away Imparlances 
 was under Contemplation, the Profits 
 to the Officers of the Courts of Law 
 in Weftminfter Hall^ and the Judges 
 Clerks, were not more considered and 
 thought of, than any Benefit that 
 would thereby accrue to his Majefty's 
 Subjects. 
 
 The Kings Bench anciently had 
 no Jurifdi&ion in Civil Suits, unlefs 
 where the Defendant was actually in 
 Cuftody of the Marflial, except in 
 Suits by and againft Officers of the 
 Court, and in correcting Errors as be- 
 low is faid. The Common Pleas never 
 had any original Jurifdiction in any 
 Action real or perfonal, without an 
 original Writ under the great Seal, ex- 
 cept in Suits by, and againft Officers 
 of the Court ; and Filafers were for- 
 merly punifhed whenever they prefu- 
 
 med
 
 [67 ] 
 
 med to make out any mefn Procefs of 
 Capias, Alias or Pluries, without an ori- 
 ginal Writ firft purchafed from the 
 Crown, under the great Seal , to warrant 
 and ground fuch Procefs upon, be- 
 caufe (as appears by the Rule in the 
 Common Pleas of Michaelmas Term 
 14 jfac. I.) the King was thereby de- 
 ceived of his Fines and Seals. The 
 Judges in thofe Days, who were 
 fworn to ferve the King as well as to 
 do equal Juftice to his People, took 
 Care of his Prerogative Rights ; but 
 how well thofe Judges, who firft took 
 away Imparlances, and made mefn 
 Procefs alrnoft equal to fpecial Original 
 Writs, have ferved the Crown in this 
 Matter, muft be humbly fubmitted to 
 thofe who have it in their Power to 
 reform the Evils hinted ; for at this 
 Day, there is not one fpecial original 
 Writ fued out, in fifty Suits, to fup- 
 port or warrant the Jurifdidion 
 of the Courts of Law ; that this is 
 K 3 true
 
 [68] 
 
 true, the Curfitors of the Chancery 
 know very well. One fingle Inftance 
 more fliall be given of the Incon- 
 venience of attending every Alteration 
 in the Law, or Practice, by the Or- 
 ders of the Judges, becaufe it hap- 
 pened this very Term, fince thelaft 
 Paragraph above was written. In 
 Michaelmas Term, in the firft Year of 
 his prefent Majefty, an Order of Court 
 was made (among other Things for the 
 great Advantage of the Officers that 
 in Cafe, where a Defendant is ferved 
 with a Copy of Procefs, the Plaintiff's 
 Attorney muft leave the Declaration in 
 the Office*, and give Notice of it to the 
 Defendant, by delivering an Englifri 
 Notice in writing to him, or leaving 
 the fame at the laft, or moft ufual Place 
 of Abode of fuch Defendant, fig- 
 nifying the Nature of the AElion^ at 
 
 * By this the Officer fecures his Fees for entering 
 jt on Record, though one in forty is not entered. 
 
 whofe
 
 [ 6 9 ] 
 
 whofe Suit it is profecuted, and in 
 whofe Office fuch Declaration is left. 
 Upon the 23d of November 1758, in 
 a Torkfhire Caufe between Graves 
 and Wife^ a Judgment of the Court 
 was fet afide, becaufe in the Notice of 
 the Declaration which was given to 
 the Defendant, it was faid, that a De- 
 claration was left in the Office in an 
 Action at the Plaintiff's Suit againft 
 the Defendant, for Work and Labour 
 done for him by the Plaintiff; the Ob- 
 jection made by the Defendant's 
 Counfel was, that the Notice did not 
 lignify to the Defendant the Nature 
 of the Action, and that the Notice 
 ought to have faid, in an AElion ofTref- 
 fa/s upon the Cafe. But with great 
 Deference to thofe who gave the Rule 
 for fetting afide the Judgment, the 
 Words, In an AElion for Work and 
 Labour done for the Defendant by the 
 Plaintiff, are more intelligible to every 
 body, except a Limb of the Law, than 
 
 the
 
 [70] 
 
 the unintelligible Jargon of the Words 
 Trefbafs upon the Cafe. However the 
 
 / JL J JL J 
 
 honourable Judges thought otherwife. 
 The Confequence of fetting afide the 
 Plain tiff's Proceedings upon this quib- 
 bling Objection to the Notice, is, that 
 the poor Plaintiff has been put to the 
 fruidefs Expence of ten or twelve 
 Pounds ; for it appeared, upon the 
 Motion to the Court, that a Writ of 
 Inquiry of Damages was to be execu- 
 ted at York, as the very next Day, viz. 
 the 24th of November 1758, fo that 
 he was at the End of his Suit ; and 
 that the Declaration was of Michaelmas 
 Term 1757, fo that the Notice, being 
 adjudged ill, is as nothing at all, and 
 the Parties (by this Practice) are now 
 both out of Court, and the Plaintiff, 
 if ever he intends to venture to fue 
 for his Right again, muft begin at the 
 Beginning of his Suit and run the Ha- 
 zard of lofing as much more by fome 
 other Quibble of the like Kind, as he 
 
 has
 
 has already done. This Particular Cafe 
 is here fet down, becaufe it is fo freili 
 in Memory ; but if any one will give 
 himfelf the Trouble to look into two 
 or three modern Books of Practice, he 
 will meet with many Hundreds of fi- 
 milar Cafes or more properly Quibbles, 
 which could happen but very feldom 
 (if at all) were there any Certainty or 
 Stability in the Rules of Practice ; but 
 with great Deference, fo long as Acts 
 of Parliament, making Alterations in 
 the Law, are continually pafiing, and 
 the Courts themfelves make Rule 
 upon Rule, and Order upon Order to 
 change and vary the Law and Practice 
 thereof, we muft not wonder, that, 
 after ferving a Clerkfhip or ten Times 
 as long, an Attorney for ever remains 
 ignorant of his Bufinefs. 
 
 The monflrous Increafe of the Ex- 
 pence of Law Suits, arifing from the 
 extravagant Fees of Counfei, Officers, 
 
 Stamp
 
 Stamp Duties, &c. &c. as well as 
 from many other Caufes which have 
 been already hinted at, and many 
 others that might be mentioned, have 
 very nearly deftroyed the Law, and de- 
 prived the Subject, of his moft valuable 
 Birthright ; for it is the fame Thing 
 to the Subject, whether Right be de- 
 nied him, or fo high a Price be fet 
 upon it, that he is unable to purchafe 
 it. Thefe Evils are daily before our 
 Eyes, yet is there no Man to be found 
 who will lend the Afliflance of his lit- 
 tle Finger to remove them. The 
 above few Hints, which are moft cer- 
 tainly true, and not in the leaft exag- 
 gerated, are therefore moft earneftly 
 recommended to the Confideration of 
 thofe, who have Power to correct the 
 Mifchiefs and Inconveniencies, fo loud- 
 ly, at this Time, complained of. 
 
 -F I N I S.
 
 A 000 031 384 1