SECOND CONSIDERATIONS Concerning the HIGH COURT of CHANCERY, And the Most Excellent ORDINANCE For the REGULATION and LIMITATION OF THAT COURT.  
BY EDW. LEIGH GENT.  Salus Populi Suprema Lex. 
LONDON, Printed by I. G. for Rich. Marriot, and are to be sold at his Shop in S. Dunstan's churchyard, Fleetstreet, 1658.   

SECOND CONSIDERATIONS Concerning the Regulation of the High Court of CHANCERY.  
BEing, during the sitting of the late Parliament assured of a strong endeavour to have the late Ordinance of his Highness and his council for Regulation and Limitation of the Chancery repealed, or with silence to fall to the ground, to the great prejudice of the commonwealth, I took the boldness (though against my judgement, as to publication of any of mine own observations or conceptions) to cause a small Pamphlet to be imprinted to give notice to the Commonwealth of the prejudice it was like to suffer by the repeal or expiration of that Ordinance, with desire that all good People of this commonwealth would address themselves to the late Parliament to take the Ordinance and Regulation of the Chancery into consideration, and before the ending thereof, to take some course for the Regulation of that Court; That Matters there might not return to the former Incertainties, delays, Absurdities and expenses; which was aimed at by those persons (who ought out of Conscience and Duty to the commonwealth to have been more just and kind thereto) that nevertheless have occasioned that evil and mischief since befallen the commonwealth by obtaining an Act for the Ordinance to continue no longer then until the ending of the late Parliament.  
But that mischief that I then foresaw, being by the sudden dissolution of the late Parliament happened, I have now again ventured to revive my former Observations, professing that as in all my actions hitherto I have had no unjust aims or ends to the disadvantage or detriment of any; so my undertaking at this present is only for the honour of his Highness and his Council, and the good and welfare of the Common wealth, which all conscientious men in my judgement ought to promote.  
I have very many years been a Suitor and a sufferer in that Court, and thereby some experience is beaten into me; that I am able to observe a great deal of difference between the chargeableness, tediousness and other inconveniences formerly there, and the great benefit and ease the People have enjoyed by the Ordinance: and if in relation to it I say bonum est esse hic; I am confident I shall have the concurrent desires and suffrage of every judicious honest person in the whole Nation.  
For indeed, amongst the many things that Time and Corruption had made the object of Reformation in this Nation, nothing had more need of a Regulation and Reforming, than the High Court of Chancery; which was formerly, and especially of later times, so chargeable to Suitors in the prosecution and defence of their Causes; And so corrupt and uncertain in the practice thereof, That instead of a Sanctuary to the Oppressed, it was become a most intolerable burden to the Nation; And (notwithstanding all addresses to the long Parliament) so continued, until the Parliament which began in the year 1653. (which was composed of persons, though perhaps not very learned statesmen, yet doubtless men of very good and honest intention, and very sensible of the burden of the Nation, by whom it was Voted to be taken away:) But that Parliament dissolving it pleased his Highness to continue that Court, it being indeed of very excellent use for the Nation, and without which it cannot subsist as the Common Law now stands; And both it and the Common Law being challenged by the People as their indubitate birthright.  
Yet notwithstanding his Highness was pleased to appoint divers of the long Robe to consider of a way for the Regulation and Reformation of that Court: But they, (for what reason I know not) did not effect that good work, so much longed for, and needed by the People of this Land.  
Whereupon his Highness by advice of his most H●norable Council (notwithstanding the other great and important business for the Government and Safety of the Nation laid on them) did make an Ordinance for the Regulation and Limitation of that Court, a better, or more accurate and excellent this Land and Nation never saw, which after much struggling, almost a year after the making thereof, was put in execution; Whereat (as no good man could take exception, so) none but those concerned in point of a Corrupt interest, could, or did speak against: And it may be well observed, that since the same was put in execution, no complaints have been heard against it from the People, for whose good and ease chiefly the same was made.  
Yet nevertheless since the beginning of the late Parliament, some unnecessary, burdensome Officers, which either had part of their former unconscionable gain taken from them, or else their Office set aside as unnecessary, have been indefatigable in their endeavours, to get that most excellent Ordinance expelled.  
And a Committee of Parliament being appointed for the view of the Ordinance made by his Highness in the interval of Parliaments, that Ordinance was most especially struck at, through the clamours of those late unnecessary Officers of that Court, who aimed not at the good of their country, but their own unconscionable gain.  
Nevertheless it pleased the Parliament to refer the matter to another Committee to amend that Regulation, settled by the Ordinance (if they saw cause) and to send for Parties, Papers, &c. Which Committee accordingly meeting, the Attorneys by command, and the late Six Clerks attended them; where the Counsel for the Six Clerks was heard in a most tedious and impertinent discourse: And the attorneys receiving then a command from that Committee, to prepare their reasons in writing; And to set forth wherein the Ordinance was good or bad for the People, and a very short time given them to that purpose, they (as I have heard) accordingly prepared their Reasons, and attended to have presented them to the Committee.  
But the Committee not afterwards meeting, the Attorneys Reasons could not be presented to them; and the Ordinance being since by Act of Parliament only to continue during the sitting of the Parliament; The Parliament being dissolved, the late Six Clerks without Right or Authority have reassumed the places by them formerly held, though the Office of a Six Clerk is utterly abolished by the Ordinance of Regulation, and the Act of Parliament for confirmation thereof, although indeed the Ordinance be unhappily expired through the art and industry of those whom the commonwealth hath no reason to thank for their pains.  
And those unnecessary Officers do again contrary to the Order of the Right Honourable the Lord's Commissioners of the Great Seal of England, made after two solemn debates by learned Counsel on both sides, exact the unconscionable exorbitant Fees by them formerly taken, and endeavour to introduce the former corrupt and dilatory way of practice and proceedings in that Court, to the great prejudice of the commonwealth.  
It therefore concerneth all honest-minded People of this Nation, That they make their Humble addresses to his Highness and his most Honourable council; That they take the Ordinance into consideration; And that what shall appear to be good therein may be confirmed; And what shall be found therein to be short for the intended welfare of the Nation, may be supplied; And what appeareth to them to be any way discommodious to the People (if any such thing there be) may be amended; that so, so good a Constitution may not fall to the ground unregarded, which hath with so much deliberation and resolution, been appointed for the good and ease of the people.  
And to the end the people may be the better informed of the advantage they have, and shall receive by that Ordinance, It were to be wished that those Reasons that the Attorneys or Clerks of the Chancery had provided to be presented to the Committee of Parliament, were made public: But as there is just cause to fear that in them the Arrow was not drawn to the head (in their composing, there being a great opposition, as I have been informed, even amongst themselves) So without doubt they are now suppressed through the influence and awe the beforementioned unnecessary Officers have over the abject and private spirits of the present Attorneys.  
The Ordinance in the first place provides a convenient number of Attorneys, who are to solicit and manage the client's cause for 3 s— 4 d. a Term, which Fee was formerly received by the Six Clerks, for doing nothing at all for the benefit of the Client, who was forced either to employ a Solicitor to manage his business, to his great loss, or else to manage it himself: whereby his cause oftentimes miscarried through (either his own or his Solicitors) ignorance.  
For the other matters formerly done by the Six Clerks, it is by the Ordinance provided to be done by three Chief Clerks, who have Fees amounting to 500 l. a year apiece, which is a competent allowance for their labour, they being to file the Pleadings and Records, to have an inspection upon the Attorneys, to make Certificates of matters referred to them by the Court, touching the Regularity of proceedings to set down Causes for hearing, and Tax-costs; all which was better done by them, than ever it was done by the Six Clerks▪ saving that the chief Clerks, who were three of the late Six Clerks, did not in some things pursue the Ordinance according to their duty.  
Now this and the abatement of Fees, are the things that were struck at by the late Six Clerks, and other useless Officers, whose pretence is, That their places, and the Old Fees are their freehold, and therefore ought not to be taken from them; That they purchased their places, and that they are of great Antiquity.  
As to their Freehold, I wonder whose Freehold their places had been, if the Little Parliament had passed an Act for taking away the Court, as the former Parliament did for taking away the Star-Chamber, and High-Commission Court; and this Parliament the Court of Wards: in which divers as useful Officers as they, without reparation lost their places, as much their freehold as the Six Clerks, and also purchased at as dear rates. But the Six Clerks may see their own unjust practice justly retaliated on them, that used at their pleasures, without cause, to turn out the Clerks bred up there into the wide world, to starve, if they had nothing else to live upon.  
Besides, they cannot choose but know there is a Law still in force against buying of Offices; which Law (if they bought their places) they have transgressed, and thereby ipso facto forfeited them: but they may please to remember that those places were conferred on Four of the Six by the late long Parliament for a temporary supply in regard of their alleged losses, the same being sequestrated or taken away for delinquency from the former Six Clerks, two whereof are still alive, and have more reason to complain then those who by the profits of the places, and the labours of other men have not only been repaid what ever they lost, but have exceedingly enriched themselves.  
And for their Antiquity, it is very apparent that the number of Clerks or Attorneys of that Court was in old times uncertain, sometimes more, sometimes less, as the business of the Court required: for in Edward the First●s time they were Six; afterwards they were reduced to Three: and in Richard the second time they were increased to Six again, in which number they found the means to continue; and at first did the business of the Court and Client, and officiated as Registers and Examiners, and sometimes made Motions in Court; but for above an hundred years past have ceased to act as Attorneys, and only acted as Prothonotaries in other Courts, being an oppression both to the People and over their Clerks, who have ever since performed the Office of Attorneys, and done the business of the Court, and Clients who retained, employed, and trusted them, and not the Six Clerks. And the business of the Court being now so much increased that Six Clerks cannot possibly do it, it is hoped that is no more injustice to increase the number of Attorneys now, than it was in times past. And certainly the Office of an Attorney being not executable by a Deputy, the Six Clerks can no more claim to be Attorneys, than the Prothonotaries of other Courts.  
And I hope the Six Clerks will be so ingenuous as to confess, that besides the impossibility for them to solicit the Clients Causes, not one or all of them togethe are able to do any thing belonging to an Attorney or Clerk to do, viz. To draw all special Writs, Commissions, Decrees, Dismissions, and to make and write all other Writs, and Copy Records. This being true, why should they be paid for what they neither do, or know how to do; or monopolise the place of an Attorney which they cannot execute?  
Thus I hope it is apparent their removal is no injustice, and that the increase of the number of Attorneys is a benefit to the commonwealth; and there is no doubt but if the Ordinance, as to the Officers, Clerks, and Attorneys of the Court, were put more strictly and duly in execution, it would be of admirable benefit to all Suitors, and those that are sued in that Court; for the tediousness of Suits is by the Ordinance very well provided against, as also divers Writs, as subpoenas to make a better answer, and to rejoin, are taken away; as likewise whereas before, when Witnesses were examined in Court, or by Commission ex parte it was ordinarily two or three terms before publication could pass, now it is provided in the Ordinance to pass in a Week. Not to speak of the Plaintiffs giving security, because I think little use was made of it, and it was a great trouble and charge to the Party: But yet there is an Act of Parliament for it in Henry the sixth's time, and so it was but an old Law newly revived, and that and the filing of Bills before the awarding of the subpoenas according to the Prayer of the Bill, was a means to hinder men from bringing frivolous and vexatious suits; a thing too often practised in that Court.  
And the taking of Answers in the Country by Masters extraordinary is of great use to the People, the same being formerly done by a Commission wherein the Tenor of the Bill was included, for which the Client paid sixpence a sheet, though the same were of no use at all, there being a Copy of the Bill taken, by which the Defendants answer was always drawn, before the Commission was opened: but if the Commission were amended, and the Clause of including the Tenor of the Bill, omitted, I believe it would be a greater ease to the People, who were often enforced to travel many miles to a Master extraordinary, to swear to their answers; & would also save some charges and expenses▪  
Likewise the making of all Writs open cannot but be a great satisfaction to the People, they being thereby enabled to see whether the Writ have any mistake in it or not, whereas while they were close, the Client was often put to a deal of fruitless charge, especially in the Commissions, to examine Witnesses, as I myself have found by experience; and likewise it is left by the Ordinance at the client's liberty to execute a Commission in any place, which without doubt is, and may be of good consequence for the amicable ending of suits, especially if the Commissioners be men of judgement and integrity.  
And there are some abuses which may be committed in the Examiners Office, which is impossible to be discovered when it is done: for a man may be examined in his own cause, and may procure his own witnesses to be cross examined on the other side, and so prevent any exceptions to their persons or testimony, of both which there hath been of late complaints; which enormity is impossible to be committed at the execution of Commissions.  
Also the frequent renewing of Commissions, tending only to delay, is well provided against by the Ordinance, and the Defendants having a Duplicate, is of advantage to him, especially in cases where his witness are ancient and sickly.  
Likewise the granting of Injunctions merely upon the course of the Court, viz. upon the Defendants taking a Commission to answer sitting in contempt, or making an insufficient answer, was heretofore a great grievance to the Nation, but very well provided against by the Ordinance, to be granted only upon sound and satisfactory grounds.  
And also whereas heretofore a Defendant could hardly put in any answer but the Plaintiff would put in exceptions so it, which were referred to a Master, who usually favoured the Plaintiff, and so the Client was put to a double charge; Now by the Ordinance it is provided that only the Master of the Rolls shall hear them: and the most honourable and judicious Gentleman the present Master of the Rolls hath so impartially heard those matters, that it is believed the putters in of frivolous exceptions have little encouragement thereto for the future, which is also a great ease to the People.  
Likewise the making of Orders upon whispering Petitions is provided against, and Orders to be made only upon Motion in Court; and therein also the Right honourable the Lord's Commissioners of the Great Seal are much to be honoured for their Order of Notice upon Motions.  
And the Provisions in the Ordinance concerning Mortgages, are very just and impartial, and the Mortgager hath thereby a convenient time for redemption of his Land, and the other a sure way for recovery of his just debt, which formerly he received by minute parcels, whereas his Mortgage money was lent in gross, and the Mortgager often enforced to an account after twenty years' possession, to his great and intolerable damage.  
Also the provision for References to be determined by three of the Six Masters of the Chancery in Ordinary together, is most excellent: the benefit to the people by it is very apparent, and I myself cannot but recount it as beneficial in my particular Cases, with gratitude for the justice by them done. And I shall not much insist on this particular, because the grievances formerly were crying, and universally known and felt, and the parties that did the wrong are deceased, and therefore I wish their doings may be buried with them; and I have so much Charity as to hope they did according to their judgements: and it shall be my prayer that the Ordinance may be punctually observed, and neither Masters nor their Register, for any respects whatsoever, recede from their directions in and by the Ordinance; and than it must be a new generation that will complain against them (I have good reason to hope this will not) if they have done, and shall persevere to do according to the Ordinance.  
It is also provided by the Ordinance, that the Registers places shall not be executed by Deputies, which I hope no man will speak against; for what reason is there that another person should have a tribute out of the labour of men who spend a great part of their age in attaining to ability in their Profession, and then take a great deal of pains to do the client's business? Why should the poor Client pay Fees to another by whom he receives no benefit? and the allowance yielded to the Labourer there, by the unnecessary ignorant Officer, so mean, that if the Client had not yielded a supply, there was not a sufficient recompense for the care and labour taken by those that were Deputies formerly, but now stand on their own legs: And sure I am that if the Ordinance as concerning the Registers be duly and conscionably observed, none will find fault but those persons, who without art or conscience would thrust themselves into places they are not able to execute.  
The Ordinance also provides well that the chief Examiners do examine all the Witnesses themselves, and not by Deputies, and if they are not able so to do, either through their own incapacity, or the multiplicity of business, if the present Examiners be removed, or others of ability and honesty be added to them, I hope it will not be a grievance worthy of any complaint.  
The great cry against the Ordinance under colour whereof the cashiered Officers have thrust in this head of their Serpentine complaints, is, that the Court must not relieve against new Bonds, and that Legacies shall be sued for at Law: I conceive that at the making of the Ordinance a provision was intended in those cases for a relief to be had at the Common-Law. But if upon second thoughts the Chancery shall be thought the fittest Court to give relief therein, I wish the Suitors speec'y and just relief there.  
Likewise the Fees are lessened to half what they were before, or less, which I hope will be confessed to be an ease to the people.  
And I much wonder that the Six Clerks and other Officers of the Court should presume to claim a freehold in the old unconscionable Fees, for they took them formerly but by prescription, which is by the Ordinance and Act for confirmation of it, not only interrupted, but a new establishment made, and since that Law is now expired, there is no absolute power in any to demand any Fees; but those who do the client's business, may properly demand satisfaction for their labour as much as they shall honestly deserve, to be allowed by the Lord's Commissioners for the Great Seal, who are the sole Judges of the Court; & the useless Officers who do nothing for the Client have no right to any thing at all.  
I shall not grudge at the Fees given to Counsel, and only pray that those Gentlemen may have pity and compassion on the poor Suitors to the Court, and that they press not an evil cause too far.  
I could have wished that some abler Pen might have showed the usefulness of this Ordinance to the People, being myself, I confess, insufficient to do it: But by this imperfect Discovery, the perfection of that excellent Constitution may in part appear. And the drift of this endeavour being for the information of the People, and for their good and advantage, I hope the imperfections thereof will be pardoned; and that the adversaries of the people's welfare will not prevail against this Ordinance, which was by the Supreme Magistrate of this commonwealth, and his council, with so great wisdom and exactness provided for their good.  
And if I am censured for that herein I do seem to adhere unto the right and interest of the Attorneys, I shall give this reason, that I am sensible of the care and pains by them taken in the business wherewith they are entrusted, and in my judgement the Labourer is worthy of his wages: and as at first what was given was but for the satisfaction of the party that did the business; so I think still, he that doth my business, aught to have what in conscience he merits for it, and not that the Six Clerks, who never in the least assist me in managing my cause, should have the greatest part of the Fees I pay.  
But I shall leave the Attorneys to assert their own interest, who being sworn into a Calling and employment, I conceive cannot be legally devested thereof during their lives, unless they demean themselves amiss, which I hope they will be careful to prevent.  
And I much desire a strict Government in that Court, and a Super-intendency over the Attorneys; for surely although the Six Clerks practice was heretofore so, and will be so again, (if they are admitted into their former places) yet the Attorneys ought not to do as they list. And it being the office of the Master of the Rolls to be superintendent over the Clerks of the Court, he having now many other affairs, if he appoint one chief Clerk, or Secondary, to do those things appointed by the Ordinance to be done by the three chief Clerks, I think it just that such superintendent Officer have a recompense suitable to the honour of the place he is employed in: But as to have many governors is no blessing to a commonwealth, so I think one experienced over-seeing Clerk will suffice to do what is appointed by the Ordinance to be done by the chief Clerks, and a greater number will only breed confusion, and be an unnecessary burden and charge upon the Suitors.  
FINIS.