35 And by reason, that the said proctors be so abandoned unto the said judges, where men had most need of trusty councillors, there they be most destitute of the same, as when the judge is not indifferent. For the partiality of a judge is more to be feared than the manifest malice of an adversary. For the one hurteth privily, and is able to execute his malice: and the other doth apertly all that he goeth about. And a man may provide for the avoiding of the intente. And he is not so able to execute his purpose as the other is. And though partiality of any judge is to be greatly feared, yet most of all in the courts spiritual; where all depends upon the judge's hands, and that one man's commonly. For which partiality the remedy of appeal was first invented. Which remedy, like as it was at the first most wholesomely provided for the avoiding off the iniquity of partial judges; so it is now most wickedly abused for the maintenance of evil-doers in their wrongful causes, and avoiding of due execution of justice, by reason that they be infinite; especially after the canon law. For by civil, there is but appellation permitted; and that not without penalty on him that shall then appeal without cause: and that is more reasonable. For like as it is dangerous to abide one man's judgment, so it is unreasonable that a man should abides the judgments of never so many. And therefore it were very expedient that the same appeals were restrained somewhat. For of them it is chiefly long, that matters be in manner infinite in the said courts. And that may be the better done, by reason that there be two legates within this realm; which were so appointed, because that they e["Of his intent." Cott. MSS.] ["For avoiding of." Cott. MSS.] might determine all matters spiritual within this realm without much recourse to Rome, being so far from this country. To the foresaid inconveniences may come also, through the same statuteh, this abuse following: that is to wit, if there be a mightier or a richer man that do sue a poorer man in the said courts, the richer man may the sooner, by reason that there be so few proctors, retain the most part and the best learned of them. And the other proctors, by reason that they shall be then so wealthy through their great occupying, which they shall have, when they be so few, will rather set more by the same great men's favour than the poor man's fee. And therefore will either refuse to be retained of the poor man's part; or when they be retained, they will be slack in doing their duty, for fear of displeasing the same great men. Where if there were many proctors, their offices would not be excessive gainful, but that they set as much by their fees, as by any man's pleasure lightly. Also, the said statute is a great discourage [ment] to young [men] to leave their study in the law. For by the same the reward of study is taken away and possessed by a few. And the fewer that be promoted for their learning, the fewer will study to attain the same. And to this, it may be occasion, that the said proctors be not so well learned nor so diligent, when they are so few, as they would be if they were many. For when there is choice enough of them, they that are best learned, and most diligent shall be always most resorted [to]. And then shall they study every man to excel others in learning and diligence, when they see such chiefly resorted unto. And so no man will labour then to be a h["Through the said statute." Cott. MSS.] i ["But that they would set." Cott. MSS.] And they proctor, unless he be well learned, seeing that learned men should only have all the most resort. that be unlearned will away, and provide them livings elsewhere, when they see themselves nothing frequented with causes. Furthermore, the said statute is plain contrary to their own law of civil and canon. For by the same it is permitted for every man to be proctor for other; but only a few, which are specially and justly excepted by the same, as a woman, a child, a madman, and such other. And by the said statute it is prohibited, that no man shall procure in the said court for other, but only a few, that are specially admitted thereto, and that within a precise and incompetent number. The said law doth except and repel very few; and that of them that are not meet to procure: and the said statute doth yet admit fewer, and that of them that are sufficiently qualified to procure. So that white and black can be no more contrary together, than the said law and statute be each to otherk. And though any man would rather prefer the said law before the said statute, if he did but only consider how that the law is made so long ago by the concord 36 and discrete opinions of so many great and wise clerks and holy men, and afterward approved by continual usage of divers countries and long succession of time, and experiently known to be wholesomely ordained for the commonweal. And of the other side, how that the said statute is but lately made by the procurement of a few private persons for their singular advantage; approved by no tract of time to be profitable for the common weal; but experiently known to the contrary. Yet beside that, if k ["Be either to other." Cott. MSS.] all that were set apart, the law is grounded upon better reason than the said statute is. For seeing a proctor represents him that he is proctor for, and may make, or mar his client's matter by one word speaking well or ill; and that the office of a proctor was first invented for men that might or would not intend to their own business themselves; it were more consonant with reason, that a man were suffered to take to his proctor such as he lusteth, and may best trust unto of his matter, than be driven to commit the order of his cause, being misfortune of great weight, to such a one as he never knew, nor saw before. For when a man is at his [choice] to choose him what proctor he lust best, if his matter do delay through the default of his proctor, then he can blame nobody but himselfm. For that that he would not take better heed to whom he should have committed his matter unto. And when a man is compelled to take one that he knows not, if his matter do then delay, he may put the blame thereof to that statute that constrained him to take such a proctor. Nevertheless, though the tone of both those ways, that is, the same that is taken by the same law, be much better than the other; yet the mean way betwixt both, (as of all other extremes), were best. That is to say, that neither every man unlearned, nor unexpert, should forthwith be admitted to procure for every man in the said courts, lest of that there should be no good order, but a confuse tumult there: nor yet that there should be so few admitted thereunto, that they were not able nor sufficient for the due exercise of causes there depending. But most reasonable and highly expedient for the common weal it is, that it were enacted by the 1 ["Do decay." Cott. MSS.] m ["No man but himself." Cott. MSS.] CRANMER, VOL. I. cc authority of this present parliament, that there should be as many of such as were sufficiently learned and exercised in the experience and practice of the said courts admitted to procure there, as should be seen convenient to my said lord of Canterbury's grace, or other presidents of the said courts, for the due exercise and expedition of causes there depending; as it was used heretofore" till the obtaining of the said statute, without prefixion of any precise number, which for no cause may be exceeded. For how can a precise number of proctors be prefixed, when the number of causes can never be appointed? For causes doth grow and increase as the nature of seasons and men doth require. And therefore it were expedient that there were mo[re] proctors than should suffice admitted, than fewer. For better it were that some of them should lack causes than causes should want them. And that such ones, so admitted, should not be removable from the same their offices at the said judge's, or any other man's pleasure, as they were heretofore; but only for certain great offences proved to be committed by them after their admission, and judged so to be of indifferent judges, chosen to examine the same by the consent of the proctors, that 37 shall be accused thereof. And because that the proctors aforesaid are all sworn [at the] time of their admission, that they shall never after be against the liberty, jurisdiction, and prerogatives of the said courts, but shall maintain and defend the same to their power; and that there may be in the said courts otherwhiles such causes depending, as should appertain to the king's grace's de |