A

BRIEF DISCOURSE,

SHOWING THE ORDER AND STRUCTURE OF A

LIBEL OR DECLARATION,

Nihil dictum, quod non prius is a maxim, as true as it is general. So that to enlarge or say any thing in this discourse, more than what others (of great learning and practice,) have said before, is a thing I aim not at; neither would I have any so far mistaken in me, as think me guilty of so much vainglory and ostentation. Neither were it possible for me (or any else, as I think) to reduce this discourse to a better method than Wesembeck † has done, whose words I shall insert, with some additions out of other authors, which will render this discourse so compleat, as that the meanest capacity (our insipid proctors, I mean of) may form a libel, without inspecting their precedent books; which they can no more be without, than a cripple without his crutches. I question not but the learned advocates are so well stored with discourses of this nature, that this can be of little use to them.

1. What a libel is.

2. How many and what are the parts of a libel. 3. How many sorts of libels.

4. What things are said to be proper to a libel.

5. What is the efficient cause of a libel.

6. The matter of a libel.

7. The form of a libel; deduced also from a syllogistical

argument.

8. The next, and not the remote matter, ought to be expressed in a libel.

9. The end of a libel.

A libel is said to be a diminutive, a libro, from a book; whence formerly a paper was offered: In general it signifies every writing: figuratively the matter is put for the thing contained in it. But properly in this argument, a libel is taken for the writing which contains the action: * Or a libel is nothing else but a fit conception of words, setting forth a specimen of the future sute. † According to Lanfranc. (c. quoniam. de petition. n. 7.) it is defined the lawyer's argument.

2. It is said to consist of three parts. (Scil.) 1. The major proposition; which shows a just cause of the petition. 2. The narration, or the minor proposition. Whereby is inferred (in the species of the fact propounded) that there is cause just for the petition. 3. The conclusion or the conclusive petition, which conjoins both the propositions, and includes the minor in the major. † A libel therefore is a practical and judicial syllogism, as it were. Though Speculator de Libelli confectione, Sect. quid Libellus, n. 3. recites its parts somewhat otherways; for in the first place, he puts the cause of the libel, which is the major proposition: In the second place, the obligation, which is the minor proposition; and in the third place, the action, which is the conclusion: For the petition itself is said to be the action: the conclusion consists in the petition, and not in the words related. And this is the chief part of the libel, which ought especially to be regarded in civil actions; not so in criminal actions or causes, because in them there needs no conclusion. By this the * plaintiff concludes, justly desiring

* Alciat. in prax. fol. 18. Speculator de libell. conf. sect. 1.

† Ummius disp. 6. th. 8. n. 38.

‡ Alciat. ubi supra Jason. Zasius & alii in prin. Inst. de Actions • Alciat. ut supra.

from the premises and the things propounded, that the defendant may be condemned, both in the principal and in the charges. *

3. In respect of the subject-matter of the libels, there are only two sorts in use; the one of which is conventional or civil, (a conveniendo, from convening) the other criminal, (a crimine seu querimonia.) † In respect of its form, it is either simple (which absolves or declares the action, in a continued speech or oration, as it were) or articulate, in which the merits of the cause are propounded by articles. †

4. The properties of a libel, or those things which are said to be particularly proper to a libel, are these, (Scil.) that it be round, (as the civilians term it) dilucid, concluding, not obscure, uncertain, nor general or alternative.

5. The efficient cause of a libel is the law, which deposeth a libel to be offered: But it commands principally that it be offered to the Judge (seeing his office is implored upon this petition) and then also to the adverse party.

6. As to what respects the matter of a libel: It is to be offered in all causes, about which judgment is stirred up, and a suit is commenced betwixt two: and that as well in civil as criminal causes, &c. but not always in summary causes, (viz.) in executions: for in these, any manner of petition is sufficient, though it be without writing: like as when it is proceeded by way of inquisition, or where the office of the Judge is implored in an extraordinary manner.

7. The form of a libel, (although it ought especially to be drawn, according to the style and custom of every court, yet where there is no special custom extant,) ought to be drawn in writing; and in such manner, as that it may contain these five things, comprehended in these following verses.

Quis, quid, coram quo, quo jure petatur et a quo,

Recte compositus quique Libellus habet. *

• Speculator ubi supr. Sect. species. glos. in d. c. 1. Lanfr. c. quoniam. ad verb. petition. de prob. n. 1. Alciat. in prax. fol. 103. Ummius disp. 6. th. & Rosbach. pros. tit. 33.

Oldendor. p. de forma Lib.

Ferrar in forma Lib. contr. opp. lib. &c.

Hostiensis de Libell. obla. Alciat. ubi sup. fol. 18.

Each plaintiff and defendant's name,
And eke the Judge who tryes the same;
The thing demanded, and the right whereby
You urge to have it granted instantly:
He doth a libel right and well compose,

Who forms the same, omitting none of those.

But the particular form of a libel * consists in the conclu sion, which (what it ought to be) Jason in sect, huic autem n. 13. Institut. de Action. copiously disputes; so also Myns. in Inst. de Action. At this day, such respect is had to the conclusion, that it be sufficient to gather from its form, of what nature the action is, though no name be expressed: which seems to have been otherways formerly, at least by the law of the Codices. To make this form the more dilucid and clear, we will dispose it into an argument or a syllogism, † in Darii, which shall in short comprehend the whole matter, and all the parts of a libel.

Every one who defames an honest man ought to be eccle-
siastically punished.

A. G. hath defamed a certain honest man, J. G.
Therefore the said A. G. ought to be ecclesiastically pun-

ished.

8. Civil actions are either singular, general or universal, as was shown in the Practice. Those actions which are singular, are also either real, personal, or mixt, as has been shown. Now in a real action, the next cause, and not the remote, ought to be expressed, † as for example, I demand ten pounds of Titius which I lent him, and I desire he may be condemned to pay me that sum: here now the contract, or the lending money, is the next cause in a real action, and it is the remote cause in a personal action; for the obligation or bond arising from the contract, is the next or nearest cause in a personal action, and the remote cause in a real action: wherefore in a real action, if you say in your libel, I ask ten pound of Titius, which he owes me upon bond; here your libel is so general, as it is in danger of being voided, if the defendant excepts against it: but if in this action, you say on this manner, I ask ten pound of Titius which I lent him, the libel is dilucid, by your making mention of the next cause: and so observe the quite contrary in personal action. † But in a general or universal judgment or action, there is no need of mentioning any cause.

9. The end of the libel is, that it may propound the plaintiff's desire, and instruct the Judge and the adversary, as to the nature of the future suit, and to be the foundation of judgment: for both the articles of the proofs are to be accommodated to the form of the libel, and the sentence is to be pronounced according to the same. Wherefore to the intent that the judgment be begun in due order, and be founded upon a certain thing, it is necessary that a libel be given by the plaintiff, though not admonished thereto: the omission whereof doth vitiate the proceedings. Whence a libel is deservedly ranked amongst the substantial acts of the proceedings: for no libel existing, the proceedings are rendered null, &c.

10. Agreeable to what has been said, I will here obviate the form of a libel, as it is offered before the Judge of the Ecclesiastical Courts. And in the first place, it must be drawn in the name and style of the Judge, as Alciatus has also observed in his form, set down in his practice, at fol. 18. (viz.)

In the name of God amen. Before you the worshipful H. W. doctor of laws, principal official of the beautiful consistory court of York, &c. The party of J. G. against A. G. &c. alledgeth and complaineth, and propoundeth, &c.

Imprimis, He doth propound and article, that the said J. G. - was and is a man very honest, just and upright, of good fame,

† Lanf. ubi supra n. 3, 4, 5, 6.