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<FRONT>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P><HI>Amicus Reipublicae.</HI></P>
<P>THE
COMMON-WEALTHS
FRIEND.</P>
<P><HI>OR</HI>
An Exact and Speedie Cour&s;e to
<HI>JUSTICE</HI> and <HI>RIGHT,</HI>
and for Preventing and Determin|ing
of Tedious <HI>Law-Suits.</HI></P>
<P>With many other things very con&s;iderable for
the good of the Publick.</P>
<P>All which are fully Controverted and De|bated
in <HI>LAW.</HI></P>
<P><HI>By</HI> JOHN MARCH <HI>of</HI> Grayes-Inne, <HI>Bari&s;ter.</HI></P>
<Q>Intere&s;t Reipublicae ut &s;it finis Litium&punc;</Q>
<P><HI>LONDON,</HI>
Printed by WILL. BENTLEY,
for <HI>Francis Eglesfield,</HI> at the Marygold
in S. <HI>Pauls</HI> Church-yard. 1651.</P>
</DIV1>
<DIV1 TYPE="dedication">
<PB REF="2">
<PB REF="2">
<HEAD>To the Right Honourable
JOHN BRADSHAW
Serjant at Law, Lord Pre&s;i|dent
of the Councel of
STATE.</HEAD>
<OPENER><SALUTE>Right Honourable,</SALUTE></OPENER>
<P>_WHen I had con&s;idered
the meane&s;s and weak|ne&s;s
of this poor indea|vour
of mine, and your
Lord&s;hips depth of
Judgement and understanding; I was
extreamly di&s;heartened and even
a&s;hamed to pre&s;ent it to your Lord&s;hips
view and con&s;ideration; much more to
begge your Lord&s;hips patronage for it.
But when I had likewi&s;e con&s;idered,
what a &s;weet Harmony of Justice,
Honour, and integrity re&s;ides in your
Lord&s;hips brea&s;t, and how much you
preferre the common good and welfare,
before all private intere&s;ts and rela|tions
what&s;oever, and not doubting
<PB REF="3">
but your Lord&s;hip might find &s;omewhat
in it corre&s;ponding with that noble,
and truely generous publick &s;pirit of
yours; I was then again imboldened to
pro&s;titute it before your Lord&s;hips feet,
humbly begging your Patronage and
protection for it; and I the rather pre|&s;umed
upon it, becau&s;e I know it will
meet with Enemies enough in the&s;e
times; &s;uch as love not changes or al|terations,
though for the better, and
&s;uch I &s;hall not need to care for, or fear;
&s;o your Lord&s;hip will deign to accept of
it, and receive it into your favour;
which if your Lord&s;hip &s;hall be plea&s;ed
to do, and to pardon the imperfections
of it, it will be a great honour and in|couragement
to him, who de&s;ires no|thing
more, than to &s;ub&s;cribe him&s;elf
(what indeed he is)</P>
<CLOSER><SIGNED>Your Lord&s;hips, and the
Common-wealths mo&s;t
humble Servant.
JO. MARCH.</SIGNED></CLOSER>
</DIV1>
<DIV1 TYPE="to the reader">
<PB REF="3">
<HEAD>To the Reader.</HEAD>
<P>REader, when I con&s;idered long
with my &s;elf, what happy times it
had plea&s;ed God to let us injoy;
I mean the&s;e happy times of Re|formation;
in which men have liberty to
di&s;cover truths, and to rea&s;on what may
mo&s;t tend to the good of the Common-wealth;
And in which we have &s;o many
Patrons, Protectors, and advancers of Ju|&s;tice,
that, which is the onely &s;upporter of
all Common-wealths and Governments
what&s;oever. And when I had further con|&s;idered,
that &s;omewhat, nay I may &s;ay, as
much as the pre&s;ent extremities will permit,
had been done by our Parliament for cor|rection,
and amendment, or total expunging
of &s;ome ill Laws; and much more indea|voured,
which I doubt not will be ac|compli&s;hed
in due time. I thought it my
duty to ca&s;t my mite into this Trea&s;ury;
and to declare and &s;et forth &s;omethings of
our Law worthy of &s;erious con&s;idera|tion,
and (if I mi&s;take not) of reformation
too.</P>
<P><PB REF="4">
That which I offer is again&s;t &s;ome an|cient
practi&s;es or proceedings, and again&s;t
&s;ome principles of our Law; And here I
know it will be &s;aid to me, that <HI>Contra ne|gantem
Principia non e&s;t di&s;putandum;</HI> they
are of &s;o high a nature they ought not to be
di&s;cu&s;&s;ed; e&s;pecially having been ancient re|ceived
uncontrolled Laws in all ages.</P>
<P>To this fir&s;t I &s;ay, that a common error
cannot make a Law, no more than cu&s;tom
again&s;t rea&s;on; there is no building of a
Law where rea&s;on is not the foundation.
And therefore I hope, that if all, or any
of tho&s;e things which I have offered to con|&s;ideration,
&s;hall be found light in that bal|lance,
that they will find no allowance or
approbation.</P>
<P>But here &s;ome will &s;ay to me, as my Lord
<HI>Cook</HI> &s;aith upon the like occa&s;ion, <HI>Qui ratio|nem
in omnibus quaerit, rationem confundit.</HI></P>
<P>To whom I &s;ay, that this may hold well
in &s;ome things, and in &s;ome Arts and &s;ci|ences;
but, under favour, it ought not to
be &s;o in Law; Law, if it be ju&s;t and rea&s;on|able,
binds men to obedience and &s;ubmi&s;|&s;ion
thereunto, but it is unju&s;t and Tyran|nical,
and obliges not to &s;ubmi&s;&s;ion, if it
be unrea&s;onable; and that Law mu&s;t needs
be &s;u&s;pected to be &s;uch, the rea&s;on where|of
mu&s;t not be inquired into.</P>
<P><PB REF="4">
And <HI>Littleton</HI> fol. 89. &s;aith, that <HI>per ra|tiones
pervenitur ad legitimam rationem,</HI> rea|&s;oning
is the way to find out the legall rea|&s;on:
and &s;o likewi&s;e it is to di&s;cover the un|ju&s;tne&s;s
or oppo&s;ition of any Law to the
common good.</P>
<P>We have one rule in Law, that the pu|blick
good and wel-fare is to be preferred
before the private, and certainly that Law
that cro&s;&s;es that rule, is a very unju&s;t and
unequal Law.</P>
<P>All Laws ought to have this for their
Ba&s;is, and their onely end and aim, the
common good and &s;afety. And that Law
is mo&s;t rational, which looks mo&s;t that way.</P>
<P>And therefore certainly it is no con|founding
of rea&s;on&punc; but rather the advance|ing
of it to its perfection, to lay the Law
to this line, to put it to this Tryal; whether
&s;uch or &s;uch a Law, be mo&s;t for the pu|blick
good and wel-fare, or not? if it be,
to continue it, if not, to abrogate and
null it.</P>
<P>We have another rule, that <HI>Intere&s;t Rei|publicae
ut &s;it finis litium.</HI> And I am certain,
that you will find &s;ome of tho&s;e things,
which I have offered to con&s;ideration,
(that, as it much concerns the Common-wealth,
that &s;trifes and controver&s;ies be
ended, that peace and unity may be pre|&s;erved:)
<PB REF="5">
much tending to that end, and
agreeable with that rule. And certainly
that Law, which mo&s;t avoids and provides
again&s;t contentious Suits, and mo&s;t indea|vours
the &s;upport of peace and quiet in a
Common-wealth, is the be&s;t and mo&s;t rea|&s;onable
Law.</P>
<P>And now to conclude, Reader, I know
that by this &s;mall work I &s;hall contract the
odium and ill will of many of my profe&s;|&s;ion,
who will ca&s;t in my Teeth, that this
is a bewraying of my own ne&s;t; and a &s;ling|ing
dirt into the faces of our great and
learned Sages of the Law; or rather into
my Mothers face, who&s;e milk I have &s;uckt,
and by whom I have been educated, and
brought up to &s;ome &s;mall under&s;tanding
thereof.</P>
<P>To &s;uch I &s;hall &s;ay; that none more ho|nours
the Law than my &s;elf, which I take
in the general, to be as ju&s;t and as perfect as
any humane Law in the World, yet I can|not
Judge it &s;o ab&s;olutely perfect, as to
have no fault or blemi&s;h in it, for that were
to attribute ab&s;olute and infallible perfe|ction
in judgement to the makers; which
we know is not to be found on earth in any
humane race. You know what the Apo&s;tle
&s;aith, the fir&s;t of the <HI>Cor. 13. 9. for we know
in part, &amp;c.</HI></P>
<P><PB REF="5">
And if we know but it part, certainly
our actions mu&s;t needs be full of imperfe|ction.</P>
<P>And I hope none will judge me to love
my Studdy the le&s;s, becau&s;e I de&s;ire to keep
it clean; Gold is the purer for being refined:
And the Tree grows the better for pruning,
and cutting off the exuberant and unnece&s;|&s;ary
branches, which &s;uck the &s;ap from the
body, and are u&s;ele&s;s for any thing, but the
fire them&s;elves.</P>
<P>If we have any hard and unrea&s;onable
branches of Law, it is ju&s;t to take them
away, to lop them off, the body of the
Common-wealth will thrive the better; and
if that flouri&s;h, certainly Lawyers mu&s;t
thrive too, and be in as great reputation
as ever. For no living without Law, and
no better or more ju&s;t Law in the generall
in the World, than the Municipal Law of
<HI>England;</HI> he approves the u&s;e, that labours to
take away the abu&s;e.</P>
<P>Nor am I &s;ingle or alone in this indeavour
of mine; &s;ome have gone before me, and I
doubt not others will follow, in a work of
&s;o great con&s;equence, and tending &s;o much
to the common good.</P>
<P>But not to hold you too long in an Epi&s;tle,
where the work is but &s;hort, if any not|with&s;tanding
what I have &s;aid, &s;hall be of|fended
<PB REF="6">
with me; it &s;hall not much trouble
me&punc; for I am re&s;olved to be a friend to the
common good, while tho&s;e men &s;eek their
own good onely. I &s;hall &s;ay no more but
this;</P>
<P><HI>Amicus Plato, Amicus Socrates, &s;ed magis
amica Respublica; </HI>onely I &s;hall &s;ub&s;cribe my
&s;elf</P>
<CLOSER><SIGNED><HI>The faithfull friend and
Servant of the Common-wealth
of </HI>England.
J. MARCH.</SIGNED></CLOSER>
</DIV1>
<DIV1 TYPE="table of contents">
<PB REF="6">
<HEAD>A TABLE of the &s;everal
QUESTIONS.</HEAD>
<LIST>
<ITEM>1. WHether it be rea&s;onable, that he,
who is &s;eized of Lands in Fee-&s;im|ple,
to him and his Heirs by de&s;cent, or gift,
&s;hould have the ab&s;olute di&s;po&s;ing power of the
whole, and to disinherit his Heirs? <HI>Pag.</HI> 2.</ITEM>
<ITEM>2. Tenant in tail, with remainders over,
&s;uffers a common Recoverie, whether this in
Law, or Con&s;cience, ought to bind the I&s;&s;ue in
tail, and the remainders over? <HI>pag.</HI> 7.</ITEM>
<ITEM>3. Whether it be con&s;onant to Rea&s;on, Con|&s;cience,
or for the good of the Common-wealth,
to Arre&s;t mens Per&s;ons, and to detain them in
Pri&s;on for Debt? <HI>pag.</HI> 35.</ITEM>
<ITEM>4. Whether the High Court of Chancerie,
as the practice is there, be not a very great
Grievance, and Burthen to the Common-wealth?
<HI>pag.</HI> 55.</ITEM>
<ITEM><PB REF="7">
5. Whether Collateral Warrantie &s;tands
with Rea&s;on and Con&s;cience or no. <HI>pag.</HI> 68.</ITEM>
<ITEM>6. Whether it be con&s;onant to Rea&s;on or
Con&s;cience, that any mans Plea &s;hould be ad|judged
nought, and avoided at any time for any
matter of Form, fal&s;e Latine, double Plea, De|parture,
or any other defect what&s;oever, the
ca&s;e and matter it &s;elf &s;ufficiently appearing
upon the Record, for which the Action is
brought? <HI>pag.</HI> 74.</ITEM>
<ITEM>7. Whether the many &s;orts of Tedious and
long Conveyances now in u&s;e, &s;tand with Rea|&s;on,
and the good of the Common-wealth or
not? <HI>pag.</HI> 85.</ITEM>
<ITEM>8. Whether it be a Ju&s;t and Rea&s;onable
Law, that a Child, born before Marriage, and
&s;hortly after Marriage happening, &s;hould be a
Ba&s;tard or not? <HI>pag.</HI> 92.</ITEM>
<ITEM>9. Whether Tryal by Jurie, as it is now in
u&s;e, be agreeable to rea&s;on, and for the good of
the Publick or not? <HI>pag.</HI> 99.</ITEM>
<ITEM>10. Whether it be con&s;onant to the Word
of God, or Rea&s;on, that a man &s;hould lo&s;e his
<PB REF="7">
Life for Theft, and &s;hould incur &s;o great a for|feiture
and penaltie, as lo&s;s of all his E&s;tate, and
corruption of his Bloud. <HI>pag.</HI> 105.</ITEM>
<ITEM>11. Whether it be a Ju&s;t and Rea&s;onable
Law that Infants, under the age of twentie one
Years, &s;hall not be charged with their Debts?
<HI>pag.</HI> 112.</ITEM>
<ITEM>12. Whether Clergie be agreeable to Rea|&s;on
and Ju&s;tice or no? <HI>pag.</HI> 117.</ITEM>
<ITEM>13. Whether the Law, that a Man &s;hall
not &s;uffe Death for Man-&s;laughter, be not a|gain&s;t
the Word of God? <HI>pag.</HI> 122.</ITEM>
<ITEM>14. Whether it be a rea&s;onable Law, that
a man &s;hall not have Coun&s;el upon an Indict|ment
of Trea&s;on or Felonie? <HI>pag.</HI> 126.</ITEM>
<ITEM>15. Whether actions for Slanderous Words,
being meer Contentious &s;uits, ought in Rea&s;on
or Con&s;cience to be &s;o much countenanced as
they are? <HI>pag.</HI> 129.</ITEM>
<ITEM>16. Whether it be a Rea&s;onable Law, that
Actions per&s;onal &s;hould die with the Per&s;on?
<HI>pag.</HI> 134.</ITEM>
<ITEM>17. Whether the Law of Judgement of
<PB REF="8">
Penance, or <HI>Pain fort &amp; dure,</HI> again&s;t a Man
who is indicted of Felonie, and &s;tands Mute, be
agreeable to Rea&s;on and Con&s;cience or not?
<HI>pag.</HI> 137.</ITEM>
<ITEM>18. Whether the Law of Forfeiture of
Goods VVrecked at Sea, be a Rea&s;onable Law or
not? <HI>pag.</HI> 150.</ITEM>
<ITEM>19. Good advi&s;e in ca&s;e of making la&s;t
VVills and Te&s;taments. <HI>pag.</HI> 155.</ITEM>
</LIST>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="text">
<PB N="1" REF="8">
<HEAD><HI>Amicus Rei-publicae.</HI>
The Common-Wealths
FRIEND.</HEAD>
<P>_THe Fir&s;t thing that I have
purpo&s;ed to di&s;ci&s;&s;e or
treat of, is touching him
that is &s;eized of Lands in
Fee-&s;imple, and his di&s;po&s;ing there|of;
and therein I &s;hall onely pro|pound
this &s;hort Que&s;tion, that is;</P>
<DIV2 TYPE="question">
<HEAD>Whether it be rea&s;onable, that he who
is &s;eized of Lands in Fee-&s;imple, to
him and his Heirs, by de&s;cent, or
gift, &s;hould have the ab&s;olute di|&s;po&s;ing
<PB N="2" REF="9">
power of the whole, and to
di&s;inherit his Heirs.</HEAD>
<P>I Do acknowledge the Law to be,
that he may di&s;po&s;e of the whole
at his plea&s;ure, and that a condition
annexed to re&s;train him from it, is
nought. For it is again&s;t the ab|&s;olute
purity of a Fee-&s;imple, that
he &s;hould not have power to alien it.
<HI>Litt. Sect.</HI> 360. for if &s;uch condition
&s;hould be good &s;aith <HI>Litt.</HI> then it ou&s;ts
him of all the power which the Law
gave him, which &s;hould be again&s;t
rea&s;on, and therefore the condition is
void. But if the condition were &s;uch,
that the Feoffee &s;hall not alien to
&s;uch a one, naming his name, or to
any of his Heirs, or of the i&s;&s;ues of
&s;uch a one, <HI>&amp;c.</HI> or the like, which con|ditions
do not take away all the powr
of alienation, &s;uch condition is good.
Another rea&s;on that &s;uch condition
<PB N="3" REF="9">
is nought, is, becau&s;e that he, who
hath departed with all his E&s;tate to
another, and hath no hopes of re|verter,
may not in rea&s;on annex &s;uch
a condition to re&s;train the Feoffee or
alienee from &s;uch alienation.</P>
<P>This I allow to be the Law; yet I
be&s;eech you give but leave to exa|mine
the&s;e things according to right
rea&s;on, and judge according to that
which may make mo&s;t for the good
of the Common-wealth, and then I
conceive it will be thought very
hard, that any man &s;hould have an
ab&s;olute di&s;po&s;ing power of the
whole, and di&s;inherit his Heirs.</P>
<P>I intend this onely of a Fee-&s;imple
de&s;cended from an Ance&s;tor to ano|ther,
or of a gift to a man and his
Heirs; for in ca&s;e where a man,
through his own labour and indu|&s;try,
hath purcha&s;ed &s;uch an inherit|ance,
it &s;eems more rea&s;onable for
<PB N="4" REF="10">
him to have the ab&s;olute di&s;po&s;al of
it as he &s;hall think fit; for I know no
rea&s;on, but that he who bought, may
&s;ell; but where Land de&s;cended to
me, or was given to me and my
Heirs, in &s;uch ca&s;e, for me to rob
my Heir of all that I never laboured
for, and to give it to a &s;tranger, &s;eems
to me unrea&s;onable.</P>
<P>I &s;ay, that he &s;hould have an ab|&s;olute
di&s;po&s;ing power of the whole,
&s;eems unrea&s;onable, but that he
&s;hould have power to di&s;po&s;e 2 parts
&s;eems to &s;tand with rea&s;on, &s;o he
leave the third part to de&s;cend; for
otherwi&s;e he &s;hall be utterly unable
to make a joyncture for his wife, to
advance his children in marriage, or
to pay his debts; all which, a man is
bound in con&s;cience to do: therefore
it were very unrea&s;onable that he
&s;hould be &s;o fettered and bound in
his E&s;tate, that he were not able to
perform them.</P>
<P><PB N="5" REF="10">
I am not ignorant, that when I
give Lands to a man &amp; his Heirs, the
Law &s;aith, that the word [Heirs] is
by way of limitation, not of pur|cha&s;e;
yet when an E&s;tate &s;o de|&s;cends,
or is given as afore&s;aid, the
Heir by the intention of the Ance|&s;tor,
and the donor, ought to have an
E&s;tate in point of intere&s;t, as al&s;o in
con&s;cience, after the death of his Fa|ther.
For if a man &s;hould demand
of &s;uch a one who intends to leave
his Lands to de&s;cend to an Heir, or
of the donor, whether he intended
that his Heir, or the donor &s;hould
&s;ell or give away the E&s;tate &s;o de|&s;cended
or come, through their
goodne&s;s, care, and providence, to a
&s;tranger, I know their an&s;wer would
be, that they intended not a di&s;inhe|ri&s;on
of the Heir, but that the E&s;tate
&s;hould de&s;cend &amp; go to their Heirs&punc;
with the &s;ame freedom it de&s;cended
<PB N="6" REF="11">
or came to them; but I would not
be-mi&s;taken, for I intend onely a
third part to de&s;cend, for the rea&s;on
afore&s;aid.</P>
<P>But now let us examine the rea&s;on
of the Law afore-&s;aid; and where the
inconvenience lies. The rea&s;on is,
that 'tis again&s;t the purity and ab&s;o|lutene&s;s
of a Fee-&s;imple, not to have
&s;uch di&s;po&s;ing power; where lies the
inconvenience, that it is again&s;t a
Maxim of Law; nothing of preju|dice
either to the publick, or to any
private or particular per&s;on.</P>
<P>And then examine the rea&s;on of the
other &s;ide, why &s;uch a Tenant in
Fee-&s;imple &s;hould have power onely
to di&s;po&s;e of two parts, and leave
the third to de&s;cend to his Heir: be|cau&s;e,
it would agree with the inten|tion
of the Ance&s;tor, and likewi&s;e
prevent the beggering of the Heir, a
thing too common with profu&s;e and
<PB N="7" REF="11">
prodigal Ance&s;tors in the&s;e daies.
So that I conceive it is evident to
you, that the inconvenience lies on
this &s;ide, and whether it is better to
continue a Maxim without rea&s;on;
or to alter it upon good grounds, I
leave to the con&s;ideration of our
Sages; and of this onely thus much;
the next thing I have to treat of is,
common Recoveries; concerning
which I &s;hall propound this &s;hort
ca&s;e and que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Tenant in tail, with remainders over,
&s;uffers a common Recovery, whether
this in Law, or con&s;cience, ought to
bind the i&s;&s;ue in tail, and there|mainders
over?</HEAD>
<P>IT is true, that through cu&s;tom
and long continuance, this is now
become the common a&s;&s;urance of
the Land; and I am not ignorant
<PB N="8" REF="12">
that this point received a full re&s;olu|tion
by the other Judges in <HI>Marie
Portingtons</HI> ca&s;e, in my Lord <HI>Cooks</HI>
tenth Book, that &s;uch Recovery was
good and binding, not onely to
the i&s;&s;ue in tail, but tho&s;e in remain|der
likewi&s;e. Yet I hope a man may
now with freedom di&s;pute it, &s;ince
all con&s;cionable hone&s;t men, that
ever I met with, oppo&s;e it; and I
dare &s;ay, that policy and private in|tere&s;t
fir&s;t made this conveyance
Lawfull, or at lea&s;t to &s;eem &s;o. And
being that in the di&s;cour&s;e of this
ca&s;e, it will be nece&s;&s;arie to know
what the Law was before the <HI>Stat.</HI>
of 13. <HI>E.</HI> 1. of intails, and the mi|&s;chief
of that Law, which cau&s;ed the
making of that <HI>Stat.</HI> for a remedy;
it will not be ami&s;s if I cite the <HI>Stat.</HI>
wherein we &s;hall find both the one
and the other; the mi&s;chief, and the
remedy; and then it will be ea&s;ie to
<PB N="9" REF="12">
judge whether the mi&s;chief again&s;t
which the <HI>Act</HI> of 13. <HI>E.</HI> 1. was pro|vided,
doth not &s;till continue by
common Recoveries, notwith&s;tand|ing
the remedy.</P>
<P>But before I cite the <HI>Stat.</HI> I can|not
but put you in mind, that it
hath been de&s;ired and propo&s;ed by
&s;ome in Print (who either never read
the &s;aid <HI>Stat.</HI> or did not well un|der&s;tand
it) that the &s;aid <HI>Stat.</HI> might
be taken away; the mi&s;chief at the
common Law revived, and the re|medy
&s;uppre&s;&s;ed. All that I &s;hall
&s;ay to &s;uch, is, that that Law (if we
will believe our Judges and Sages of
the Law) was made by very Sage
and wi&s;e men; &amp; therefore we ought
to judge it to be made upon very
good grounds and rea&s;ons, and &s;o
not to be repealed without better
rea&s;on; but I need &s;ay no more, for
I doubt not you will find upon the
<PB N="10" REF="13">
reading of it, that it was made upon
&s;olid and profound rea&s;on, and &s;o
not to be altered upon any Clarks
or Attornies motion.</P>
</DIV2>
<DIV2 TYPE="part">
<EPIGRAPH>
<BIBL>13. E. 1. Cap. 1.</BIBL>
<Q>In gifts in tail the donors Will &s;hall
be ob&s;erved.</Q>
</EPIGRAPH>
<P>FIr&s;t concerning Lands, that ma|ny
times are given upon condi|tion,
that is to wit, where any giveth
his Land to any Man and his Wife,
and to the Heirs begotten of the bo|dies
of the &s;ame Man and his Wife,
with &s;uch condition expre&s;&s;ed, that
if the &s;ame Man and his wife die
without Heirs of their bodies be|tween
them begotten, the Land &s;o
given &s;hould revert to the giver or
his Heir. In ca&s;e al&s;o where one gi|veth
Lands in free marriage, which
gift hath a condition annexed,
<PB N="11" REF="13">
though it be not expre&s;&s;ed in the
deed of gift, which is this, That if
the Husband and Wife die without
Heir of their bodies begotten, the
Land &s;o given &s;hall revert to the gi|ver
or his Heir. In ca&s;e al&s;o where
one giveth Land to another, and the
Heirs of his body i&s;&s;uing, it &s;eemed
very hard, and yet &s;eemeth to the
givers and their Heirs, that their
Will being expre&s;&s;ed in the gift, was
not heretofore, nor yet is ob&s;erved.</P>
<P>In all the ca&s;es afore&s;aid, after i&s;|&s;ue
begotten and born between them
(to whom the Lands were given un|der
&s;uch condition) heretofore &s;uch
Feoffees had power to alien the
Land &s;o given, and to di&s;herit their
i&s;&s;ue of the Land, <HI>contrary to the
minds of the givers, and contrary to
the form expre&s;&s;ed in the gift.</HI> And
further, when the i&s;&s;ue of &s;uch Feo|ffee
is failing, the Land &s;o given,
<PB N="12" REF="14">
ought to return to the giver, or his
Heir, by force of the gift expre&s;&s;ed
in the deed, though the i&s;&s;ue (if
any were) had died: yet by the deed
and Feoffement of them (to whom
Land was &s;o given upon condition)
the donors have heretofore been
barred of their rever&s;ion, which was
directly repugnant to the form of
the gift.</P>
<P>Wherefore our Lord the King,
perceiving how nece&s;&s;ary and expe|dient
it &s;hould be to provide reme|dy
in the fore&s;aid ca&s;es, hath or|dained,
<HI>That the will of the giver,
according to the form in the deed of
gift manife&s;tly expre&s;&s;ed, &s;hall be
from henceforth ob&s;erved:</HI> So that
they, to whom the land was given
under &s;uch condition, &s;hall have
no power to alien the land &s;o given,
but that it &s;hall remain unto the i&s;|&s;ue
of them to whom it was given
<PB N="13" REF="14">
after their death, or &s;hall revert un|to
the giver, or his Heirs, if i&s;&s;ue
fail (whereas there is no i&s;&s;ue at all)
or if any i&s;&s;ue be, and fail by death,
or Heir of the body of &s;uch i&s;&s;ue
failing, <HI>&amp;c.</HI></P>
<P>And if a Fine be levied hereafter
upon &s;uch Lands, it &s;hall be void
in the Law, and no claim needs,
<HI>&amp;c.</HI></P>
<P>Here I have faithfully cited you
the <HI>Stat.</HI> word for word; and what
the common Law was before the
making of this <HI>Stat.</HI> is apparent.
E&s;tates now by force of that <HI>Stat.</HI>
called intails were at the common
Law Fee-&s;imple conditional. So
that a man having &s;uch an E&s;tate be|fore
this <HI>Stat.</HI> had power after i&s;&s;ue
had, to alien, and by that to barre the
i&s;&s;ue, and likewi&s;e him in rever&s;ion,
and this is &s;aid by the <HI>Stat.</HI> expre&s;|ly
to be contrarie to the minds of the
<PB N="14" REF="15">
givers, and contrary to the form ex|pre&s;&s;ed
in the gift, and this was the
great mi&s;chief at the common Law.</P>
<P>Then comes this <HI>Stat.</HI> and pro|vides
again&s;t the &s;aid mi&s;chief, that
the Will of the donor &s;hall be ob|&s;erved,
and that &s;uch donees in tail
&s;hall have no power to alien to barre
their i&s;&s;ues, or him in rever&s;ion.</P>
<P>Now certainly the be&s;t way of
Argument is upon the Law it &s;elf,
and that is pregnant and plain, that
the donee after this <HI>Stat.</HI> had no
power to alien to barre his i&s;&s;ue, or
him in rever&s;ion.</P>
<P>Now I be&s;eech you to what end
was this <HI>Stat.</HI> if notwith&s;tanding a
donee in tail might by a Recovery
barre his i&s;&s;ue and him in rever&s;ion;
certainly had any &s;uch thing been
known then, as a Recovery, it
would have been provided again&s;t
as well as a fine, or otherwi&s;e a man
<PB N="15" REF="15">
might well que&s;tion the wi&s;dom of
the makers of the Law, notwith|&s;tanding
they have received &s;o great
an applau&s;e by our Sages of the
Law.</P>
<P>The Law hates vain and unprofi|table
things; and had Recoveries
been known then, and not provided
again&s;t, certainly no Law could be
more vain and unprofitable.</P>
<P>But now to come to <HI>Marie Por|tingtons</HI>
ca&s;e in <HI>Cooks</HI> tenth Book,
where this ca&s;e is largely debated;
there you &s;hall find the Original of
the&s;e common Recoveries. There
by tho&s;e that argued again&s;t them,
'tis &s;aid that 't was not invented till
12. <HI>E. 4. Taltarum</HI>'s ca&s;e, that &s;uch
Recoveries &s;hould bind the E&s;tate
tail upon a pretence of a fained re|compence.</P>
<P>To which it was &s;aid by the
Court upon judgement given, that
<PB N="16" REF="16">
judgement given again&s;t Tenant in
tail, with voucher and recompence
in value, &s;hall bind the E&s;tate tail,
notwith&s;tanding the &s;aid <HI>Act</HI> of 13.
<HI>E.</HI> 1. be the Recovery upon good
Title, or not; and that the judgement
given in &s;uch ca&s;e for the Tenant in
tail to have in value binds the E&s;tate
tail, though that no recompence be
had.</P>
<P>And this they &s;ay was Law in <HI>E.</HI> 3.
time, for which they cite the&s;e Books
(but here ob&s;erve by the way, that
tho&s;e Recoveries were not invented
before that time, as them&s;elves do
agree, and of what validity &s;uch new
invention can be again&s;t a <HI>Stat.</HI> ex|pre&s;ly
again&s;t any alienation in &s;uch
ca&s;e, let any rational man judge.)
but for the ca&s;es they have cited, 15.
<HI>E. 3. Tit. brief.</HI> 324. by Recovery in
value by Tenant in tail, the E&s;tate tail
is barred, and he &s;hall have a Form|don
<PB N="17" REF="16">
of the Land &s;o recovered in
value, with which agrees 42. <HI>E.</HI> 3.
53. and 44. <HI>E. 3. 21, 22. Octavian
Lumbards</HI> ca&s;e, Tenant in tail grants
a rent charge to one who hath right
to the Land in tail for a relea&s;e, it
&s;hall bind the i&s;&s;ue, 48. <HI>E.</HI> 3. 11. b.
<HI>Jeffrey Benchers</HI> ca&s;e recovery in va|lue
by Tenant in tail, &s;hall bind the
tail, and a Formdon lies of the
Land recovered in value, with which
agrees. 1. <HI>E.</HI> 4. fol. 5. 5. <HI>E.</HI> 4. 2. 6.</P>
<P>For the&s;e Books thus cited, that
&s;uch recovery &s;hall bind the i&s;&s;ue in
tail; they are to be under&s;tood of a
recovery upon good Title, and of
a real, not a fained recompence, for
they all agree, that a Form-don will
lie of the Land recovered in value;
So that it cannot be intended of a
fained and preten&s;ed recompence. I
would fain know of any man, whe|ther
ever he heard of any Action
<PB N="18" REF="17">
brought upon &s;uch recovery in va|lue,
as recoveries are now u&s;ed? are
they not become the common
cour&s;e, and common way of con|veyance
for to barre E&s;tates in
tail, and to cut off all remainders,
without any po&s;&s;ibility or expectance
of recompence in value? and do not
the Judges &s;ay before that it &s;hall
bind be it upon good Title, or not,
and though that no recompence be
had? &s;o that a preten&s;ed recompence
by them mu&s;t carry away a clear
Title, and defeat the <HI>Stat.</HI> and the
intention of the donor? So that I
do conceive, notwith&s;tanding tho&s;e
Books, that &s;uch recoveries &s;hould
bind the E&s;tate tail upon a pretence
of a fained recompence, was not till
12. <HI>E. 4. Taltarums</HI> ca&s;e.</P>
<P>And the ca&s;e of <HI>Octavian Lum|bard,</HI>
before cited agrees with this
difference, between a real, and a
<PB N="19" REF="17">
fained recompence; for I do agree,
that a recovery upon good Title, and
a real recompence will barre the
E&s;tate tail. The ca&s;e of <HI>Lumbard,</HI>
that a grant of a Rent by Tenant in
tail to one that claims a right to
the Land intailed, &s;hall barre the
i&s;&s;ue, is, without que&s;tion, good Law,
for this is to pre&s;erve the E&s;tate tail,
and this is no fained but a real re|compence;
not &s;o in our ca&s;e.</P>
<P>Be&s;ides, &s;uppo&s;e tho&s;e Books
&s;hould be intended (as I conceive
they cannot) of a fained recompe~ce;
can any man &s;ay that any u&s;e or cu|&s;tom
is good again&s;t a <HI>Stat.</HI> had &s;uch
fained recoveries been in u&s;e at the
time of the making of the <HI>Stat.</HI> of
13. <HI>E.</HI> 1. which no man doth, or
can &s;ay, &s;omewhat more might have
been &s;aid for them; but being in|vented
after, it cannot be with rea|&s;on
that they &s;hould be of force to
<PB N="20" REF="18">
fru&s;trate, yea, and nul, upon the mat|ter,
the <HI>Stat.</HI> made before: and cer|tainly
(as I have &s;aid before) the
makers of that Law would have
provided again&s;t this mi&s;chief as
well as Fines, had &s;uch recoveries
been then in being, for otherwi&s;e
vain and fruitle&s;s was that Law, as
indeed it is at this day.</P>
<P>Again, by tho&s;e that argued again&s;t
common recoveries in <HI>Marie Por|tingtons</HI>
ca&s;e; it is &s;aid, that &s;uch re|coveries
are by divers <HI>Acts</HI> of Par|liament
marked and branded with
the blemi&s;h of fiction and fal&s;ity; as
in the <HI>Stat.</HI> of 34. <HI>H. 8. cap.</HI> 20. they
are &s;tiled fained and untrue recove|ries;
and &s;o in the <HI>Stat.</HI> of 11. <HI>H. 7.
cap. 20. 32. H. 8. cap.</HI> 31. and 14. <HI>El.
cap.</HI> 8. they are named covenous,
and had by collu&s;ion; and therefore
it &s;tands with Law and rea&s;on to
provide for the pre&s;ervation of re|ver&s;ions
<PB N="21" REF="18">
and remainders, again&s;t &s;uch
fained and fal&s;e and covenous reco|veries.</P>
<P>To this objection, and the&s;e <HI>Stat.</HI>
this an&s;wer is given; and fir&s;t it is
&s;aid, that common recoveries is one
of the main pillars, which &s;upports
the E&s;tates and inheritances in the
State; That is, Reader: they mu&s;t
unju&s;tly, (becau&s;e contrarie to the
<HI>Stat.</HI> and the Form of the gift) take
away one mans inheritance, and e&s;ta|bli&s;h
or &s;ettle it in another, and this
is called one of the main pillars of
inheritances.</P>
<P>But to the <HI>Statutes;</HI> for that of
34. <HI>H.</HI> 8. it is of gifts in tail by the
King to his Servants and Subjects,
for to incourage others and their i&s;|&s;ues,
and therefore recoveries &s;uf|fered
by &s;uch Tenants in tail, are
well taxed by Parliament to be
fained and untrue, becau&s;e they
<PB N="22" REF="19">
did take away the intention of the
King.</P>
<P>To which I an&s;wer, that they are
&s;o termed by that <HI>Stat.</HI> not in rela|tion
onely to the defeating of the
Kings intention, but becau&s;e they are
&s;o in them&s;elves fained and untrue.
Be&s;ides are they &s;o termed, becau&s;e
the intention of the King was there|by
defeated; why? where there is the
&s;ame rea&s;on, there ought to be the
&s;ame Law; and in this ca&s;e, is not
the apparent intention of the donor
in his gift defeated by &s;uch recovery
contrary to the <HI>Stat.</HI> which &s;aith,
that the will of the donor &s;hall be
ob&s;erved.</P>
<P>But it is further &s;aid in that ca&s;e,
that <HI>confirmat u&s;um qui tollit abu&s;um;</HI>
and that it was a barre in that ca&s;e
before that <HI>Act</HI> of 34. <HI>H.</HI> 8. made to
the contrarie; certainly if it were an
abu&s;e in the Kings ca&s;e, it is no other
<PB N="23" REF="19">
in a common per&s;ons, and it were
very happy if an <HI>Act</HI> were likewi&s;e
made again&s;t them in our ca&s;e; that
we might not have them known for
the future.</P>
<P>For the <HI>Stat.</HI> of 11. <HI>H.</HI> 7. when
a Woman advanced by the Husband
with a competent joyncture in tail
&s;uffers a recovery to barre the i&s;|&s;ues,
this may well be &s;aid to be by
covin.</P>
<P>Now I be&s;eech you weigh the ca&s;es
in the ballance of rea&s;on, and then
judge whether they differ or no. Is
it not as much covenous for any Te|nant
in tail who takes &s;uch E&s;tate to
him and his i&s;&s;ues to disherit his
i&s;&s;ues by &s;uch recovery, contrarie to
the &s;aid <HI>Stat.</HI></P>
<P>For the <HI>Stat.</HI> of 32. <HI>H.</HI> 8. and 34.
<HI>El.</HI> of a common recovery again&s;t
Tenant for life; it may well be term|ed
covenous and by collu&s;ion. To
<PB N="24" REF="20">
this I &s;hall &s;ay no more but this, that
certainly in our ca&s;e there is as much
of inju&s;tice, covin and collu&s;ion by
&s;uffering &s;uch common recoveries,
as in any of the former.</P>
<P>Further it was &s;aid by tho&s;e that
argued again&s;t the&s;e recoveries; That
that opinion, that a common reco|very
could not be re&s;trained by con|dition
or limitation, was new and of
late invention, and never heard be|fore
Sir <HI>Anthony Mildmayes</HI> ca&s;e 6.
<HI>Rep.</HI> fol. 40. for it was admitted to
be re&s;trained in the ca&s;e of the Earl
of <HI>Arundell</HI> 17. El. <HI>Dyer,</HI> fol. 342.
343. and in the argument of <HI>Scho|lasticas</HI>
ca&s;e, 12. E. <HI>Com.</HI> 403. the
&s;aid point of re&s;traint of a common
recovery was never moved: here ob|&s;erve,
Reader, another new inventi|on,
that the&s;e recoveries cannot be
re&s;trained by any condition or limi|tation;
&s;o that there mu&s;t be &s;uch a
<PB N="25" REF="20">
power given to &s;upport the&s;e reco|veries,
though again&s;t the Letter
of the <HI>Stat.</HI> and the Will of the do|nor,
that no humane invention can
prevent.</P>
<P>As to the Earl of <HI>Arundels</HI> ca&s;e,
it is &s;aid that nothing is &s;poken to it
by tho&s;e who argued the ca&s;e, and
&s;o no Authority. To this I &s;ay, that
certainly had the Law been con|ceived
to be &s;uch, that &s;uch recove|ry
could not be re&s;trained by condi|tion,
it would have been then urged,
which rather concludes on this
part.</P>
<P>As to <HI>Schola&s;ticas</HI> ca&s;e, all that my
Lord <HI>Cook</HI> &s;ayeth, is this, he much
re&s;pects the reporter, and attributes
due honour and reverence to the
Judges, but <HI>amicus Plato, amicus
Socrates, &s;ed magis amica veri|tas.</HI>
Though that it was not then
thought on by the learned men of
<PB N="26" REF="21">
that time, yet my Lord <HI>Cook</HI> will
have it to be Law, and prefers his
opinion, which he calls truth, which
truth &s;o called appears to be onely a
new invention, before the contrarie
&s;uppo&s;ed Law of that time.</P>
<P>And it is further &s;aid in <HI>Porting|tons</HI>
ca&s;e, that none ought to be heard
to di&s;pute again&s;t the legal pillars of
common a&s;&s;urances of Lands, and in|heritances
of the Subjects. And it
is likewi&s;e &s;aid, that at a Parliament
holden in the raign of <HI>Q. E.</HI> in <HI>Vernon</HI>
and <HI>Herberts</HI> ca&s;e debated before the
Lords of Parliament, <HI>Hoord</HI> Coun|&s;el
with <HI>Vernon</HI> invaied again&s;t the&s;e
recoveries; who was then reproved
by <HI>Dyer, Ch. Ju&s;t.</HI> of the common
pleas, who &s;aid, that he was not wor|thy
to be of the profe&s;&s;ion of the
Law, who dur&s;t &s;peak again&s;t com|mon
recoveries, which were the &s;i|newes
of the a&s;&s;urances of inheri|tances,
<PB N="27" REF="21">
and founded upon great rea|&s;on
and Authority; <HI>&s;ed non omnis ca|pit
hoc verbum&punc;</HI></P>
<P>By this you may ea&s;ily judge
what mo&s;t &s;upported this a&s;&s;urance:
for if Lawyers mu&s;t be &s;ilenced, it is
no wonder if common recoveries
pa&s;s for Law. I know I &s;hall not
pa&s;s uncen&s;ured, as I have &s;aid be|fore,
<HI>Hoords</HI> ca&s;e will be mine, with
advantage: but it &s;hall not at all di|&s;turb
my re&s;t; for having truth of
my &s;ide, I care not who is again&s;t
me: and certainly that Councellor
that is a Councellor of the Law de|&s;erves
the &s;harpe&s;t reproof; and &s;ince
<HI>non omnis capit hoc verbum,</HI> as is
&s;aid before, let me not be rebuked
without rea&s;on; and if any one can
convince me in that, I &s;hall with all
humility &s;ubmit to his judgement.</P>
<P>La&s;tly, it is &s;aid that <HI>D. 8. lib. 1.
cap.</HI> 26. approves common recove|ries,
<PB N="28" REF="22">
to bind as well in con&s;cience, as
in Law.</P>
<P>For my part I conceive that the
better opinion there is again&s;t them;
and &s;o I believe any man will judge
that &s;hall read the Chapter, I &s;hall
faithfully recite the di&s;putes and
leave it to judgement, and therein
fir&s;t the manner and practi&s;e of &s;uf|fering
&s;uch recoveries; The Deman|dant
&s;hall &s;uppo&s;e in his Writ and
Declaration, that the Tenant in tail
hath no Entry but by &s;uch a &s;tran|ger,
where neither the Demandant nor the &s;aid &s;tranger never had po&s;|&s;e&s;&s;ion
of the Land, whereupon the
Tenant in tail &s;hall appear, and by
a&s;&s;ent of the parties &s;hall vouch the
common Vouchee, whom he know|eth
to have nothing to yield in value
(now Reader judge whether this be
not a meer fiction of a recompence in
value,) and the Vouchee &s;hall ap|pear,
<PB N="29" REF="22">
and the Demandant &s;hall de|clare
again&s;t him, whereupon he
&s;hall take day to imparle in the &s;ame
Term, and at the day by the a&s;|&s;ent
of the parties he &s;hall make de|fault,
upon which becau&s;e it is a de|fault
in de&s;pite of the Court, the
Demandant &s;hall have judgement to
recover again&s;t the Tenant in tail, &amp;
he over in value again&s;t the Vou|chee:
And this judgement and reco|very
in value is taken for a barre of
the tail for ever by rea&s;on of the re|compence;
for by pre&s;umption the
Vouchee may purcha&s;e Lands. Thus
you have the practi&s;e of a common
recovery, which is nothing el&s;e but
an invention to cut off intails, which
hath been the ruin of many a fa|mily.</P>
<P>But it is rea&s;oned, that although
&s;uch recoveries, in re&s;pect of the
multitude of them, be &s;pared, that
<PB N="30" REF="23">
they &s;tand not with con&s;cience: fo<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">
by the <HI>Stat.</HI> of 13. <HI>E.</HI> 1. when th<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">
Ance&s;tor is dead, intailed Lands o<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">
right belong to the Heir, for that he
is Heir according to the gift. If the<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">
thou be commanded not to covet, <GAP DESC="illegible" RESP="UOM" EXTENT="1 word">
<HI>Fortiori,</HI> that thou do not withhold
thy neighbours hou&s;e, <HI>&amp;c.</HI> And al|though
it may be objected, that tha<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">
which is ordained by the Law, may
be adnulled by the Law, there is not
here like Authority for the one, as
for the other, for the tail is created
by Authority of Parliament the
mo&s;t High Court in the Realm, and
the di&s;anulling thereof is by a cove|nous
recovery upon fal&s;e &s;uppo&s;als,
(here you have trueth clothed in
plain Language.)</P>
<P>Then as to another objection, <HI>viz.
Communis error facit jus,</HI> that is to be
under&s;tood that a cu&s;tom u&s;ed a|gain&s;t
the Law of Man in &s;ome
<PB N="31" REF="23">
Countrey &s;hall be taken for a Law,
if the inhabitants be &s;uffered &s;o to
continue it; but the&s;e recoveries, al|though
they have been long u&s;ed,
have alwayes been &s;poken again&s;t
(Reader, ob&s;erve that, who ever thou
art; and then I am &s;ure I cannot ju&s;t|ly
be blamed: nor need I care to
write again&s;t that, which hath been
always &s;poken again&s;t.) Al&s;o this
cu&s;tom could have no Lawfull be|ginning,
and an evil cu&s;tom is to be
aboli&s;hed: Al&s;o a pre&s;cription again&s;t
a <HI>Stat.</HI> is void: And it is al&s;o moved,
that in as much as there is no exe|cuted
recompence that the Law
hath been taken, that the Heir in
tail is not barred of his Formdon,
and although the Vouchee may pur|cha&s;e
after the i&s;&s;ue hath recontinued
his own Land, that herein is no in|convenience;
for that the i&s;&s;ue &s;hall
be barred of the recompence in va|lue,
<PB N="23" REF="24">
in that he hath recontinued his
own land again, and &s;o &s;hall not
have both.</P>
<P>I dare not go &s;o far as to allow a
Formdon for the i&s;&s;ue in &s;uch ca&s;e
(though enough hath been &s;aid to
make that good too) by rea&s;on of
the many inconveniences that mu&s;t
of nece&s;&s;ity fall thereupon, but it
were happy (as I have &s;aid before)
if &s;uch covenous and fained recove|ries
were taken away by Act of Par|liament.</P>
<P>But it may be objected; that you
would have Tenant in Fee-&s;imple to
have power to di&s;po&s;e two parts,
for the rea&s;ons and intents afore&s;aid;
and why may not Tenant in tail have
the &s;ame power?</P>
<P>To which I give this &s;hort an|&s;wer,
that it is agreeable with the
nature of a Fee-&s;imple to be aliena|ble;
<PB N="33" REF="24">
not &s;o in ca&s;e of an E&s;tate tail,
for that is contrarie to the Form of
the gift, as the <HI>Stat.</HI> is expre&s;ly; and
there is no power given by that <HI>Stat.</HI>
to the Donee in tail to di&s;po&s;e of
the E&s;tate in any ca&s;e what&s;oever;
and therefore he may not for the ad|vancement
of his relations, or &s;ati&s;|faction
of his debts, defeat his i&s;&s;ue,
or in default of i&s;&s;ue, tho&s;e in the
remainder, by alienation, contrarie
to the Form of the gift, and the in|tention
of the donor.</P>
<P>And now I &s;hall conclude this di|&s;pute
with a rule or two in Law, and
fir&s;t the <HI>Stat.</HI> &s;aid that the Will of the
donor mu&s;t be ob&s;erved in his gift,
which &s;tands with the rea&s;on and
rule of the Law, for <HI>Cujus e&s;t dare
ejus e&s;t di&s;ponere;</HI> a man mu&s;t take
the gift with tho&s;e qualifications,
conditions, or limitations, that the
donor is plea&s;ed to annex to it, and
<PB N="34" REF="25">
cannot alter it, if &s;o, what becomes
of common recoveries? or how in
Law or rea&s;on can the donee in tail
di&s;herit his i&s;&s;ues; <HI>Note,</HI> much le&s;s
&s;trangers in remainder: as if land be
given to <HI>A.</HI> in tail, the remainder to
<HI>B.</HI> in tail, <HI>&amp;c.</HI> if <HI>A.</HI> &s;uffers a recove|ry,
this not onely binds his i&s;&s;ue, but
him in remainder likewi&s;e, which is
extream hard and unrea&s;onable, that
the Law contrary to the rules of
Law it &s;elf, &s;hould allow a &s;tranger
to do an <HI>Act</HI> to my prejudice, for the
rule is, that <HI>Res inter alios actae alteri
nocere non debent,</HI> other mens actions
ought not to prejudiee a third per|&s;on,
how then can that &s;tand with
this rule of Law, that Tenant in tail
&s;hould have powr to barre him in re|mainder
by a recovery. Another rule
is, <HI>Quod no&s;trum e&s;t &s;ine facto vel de|fectu
no&s;tro amitti, &s;eu ad alium tran&s;|ferri
non pote&s;t,</HI> we cannot lo&s;e what
<PB N="35" REF="25">
is ours, nor can it be given from us
without our own <HI>Act</HI> or default, how
then can it &s;tand with this rule, that
he in remainder &s;hould be barred by
&s;uch recoverie as afore&s;aid? I &s;hall
&s;ay no more, but wait the Parlia|ments
lea&s;ure&punc; and I doubt not, but
this will in due time be altered.</P>
<P>The next thing I am to treate of,
is concerning the impri&s;onment of
mens per&s;ons for debt, and in that I
&s;hall propo&s;e this &s;hort que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be con&s;onant to rea&s;on, con|&s;cience,
or for the good of the Com|mon-wealth
to Arre&s;t mens Per&s;ons,
and to detain them in Pri&s;on for
Debt?</HEAD>
<P>I Know this is a ca&s;e in which ma|ny
men have vented their judge|ments
in publick, and it hath not
been without a &s;olemn debate too in
<PB N="36" REF="26">
the Parliament; &s;o that there is the
le&s;s for me to do, and therefore I
&s;hall be but &s;hort in it.</P>
<P>What rea&s;ons induced the Parlia|ment
to continue this Law, I know
not, nor is it for me to examine; how|ever,
I be&s;eech you, let it not be ta|ken
ami&s;s that I offer my rea&s;ons in
it, and leave them to better judge|ments.</P>
<P>In the fir&s;t place I &s;hall examine
what the old Law was, and when,
and how this Law of impri&s;onment
of per&s;ons for debt crept in; for it
hath not been always u&s;ed in <HI>Eng|land,</HI>
and I may &s;ay in few other
places of the World; and where it is
in u&s;e, there is care taken that they
do not peri&s;h in pri&s;o~ for want of ne|ce&s;&s;ary
&s;u&s;tenance, but they and their
families to be maintained out of their
own E&s;tates; and if they have none,
the perver&s;e and cruel Creditor is
<PB N="37" REF="26">
to maintain them out of his proper
E&s;tate; and not to &s;uffer them to pe|ri&s;h
for want of food, as they do
commonly in <HI>England.</HI></P>
<P>The body of the Defendant was
not lyable to execution for debt at
Common Law, for which &s;ee 13. <HI>H.</HI>
4. 1. But his Goods, Chattels, and
Corn, <HI>&amp;c.</HI> by <HI>Fieri facias,</HI> or <HI>Le|vari
facias</HI> within the year, and by
the <HI>Stat.</HI> of <HI>W.</HI> 2. by <HI>Scire facias</HI> af|ter
the year, and by <HI>W. 2. cap.</HI> 18. an
<HI>Elegit</HI> was given of the moyety of
the Land; which was the fir&s;t <HI>Act</HI>
which &s;ubjected Land to the execu|tion
of a judgement.</P>
<P>But the Common Law which is
the pre&s;erver of the Common Peace
of the Land, abhorres all force, as
the capital Enemy to it, and there|fore
again&s;t tho&s;e who committed
any force, the Common Law &s;ub|jected
their bodies to impri&s;onment,
<PB N="38" REF="27">
which is the highe&s;t execution, by
which they lo&s;e their Liberty, till
they had made an agreement with
the party, and Fine to the King.</P>
<P>And therefore it is a rule in Law,
that in all actions <HI>Quare vi &amp; armis,</HI>
a <HI>Capias</HI> lies, and where a <HI>Capias</HI> lies
in proce&s;s, there after judgement, a
<HI>Capias ad &s;atisfaciendum</HI> lies; and
there the King &s;hall have a <HI>Capias
pro fine.</HI></P>
<P>Then by the <HI>Stat.</HI> of <HI>Marlebridge</HI>
23. and <HI>W. 2. cap. 11. Capias</HI> was gi|ven
in an account, for at common
Law, the proce&s;s in an account was
di&s;tre&s;s infinite, and after by the <HI>Stat.</HI>
of 25. <HI>E. 3. cap.</HI> 7. the like proces
was given in debt, as in account, for
before this <HI>Stat.</HI> the body of the De|fendant
was not liable to execution,
for the rea&s;on and cau&s;e afore&s;aid, all
which you &s;hall find in my Lord
<HI>Cooks</HI> 3. Book, Sir <HI>William Harberts</HI>
ca&s;e.</P>
<P><PB N="39" REF="27">
Here you &s;ee the Original of the
arre&s;ting of mens bodies, and taking
of them in execution for debt; which
was by force of tho&s;e few but rui|nous
di&s;tructive words in 25. <HI>E.</HI> 3.
like proces in debt as in account;
the&s;e few words have ruined many,
and almo&s;t numberle&s;s per&s;ons and
Families; who, had they not been
cloy&s;terd up in Pri&s;ons, might have
lived to have got E&s;tates, and to
have been able to di&s;charge a good
con&s;cience in &s;atisfaction of their
debts, and providing for their Fa|milies.</P>
<P>For the proces by way of <HI>Capias,</HI>
or attaching of the per&s;on for debt, I
know it will be &s;aid to me, if you
will have that cour&s;e taken away,
what other will you provide conve|nient
for gaining of our debts? To
this I an&s;wer, that that which I con|ceive
mo&s;t convenient in rea&s;on, and
<PB N="40" REF="28">
which hath been already propo&s;ed
to the Parliament, is by way of Sum|mons,
as the Original in the com|mon
Pleas is; and upon that&punc; if no
appearance be, to have liberty to
proceed with all vigour, and to have
a judgement again&s;t the Defendant
for not appearing, as if he had ap|peared,
and judgement had been
thereupon obtained again&s;t him.
Onely this I mu&s;t ob&s;erve, that it
is of nece&s;&s;ity, that the &s;ervice of
the Summons be &s;worn to, (as it is
in ca&s;e of a <HI>Subpoena</HI> in the <HI>Chance|ry,</HI>)
before there be any further pro|ceeding,
otherwi&s;e, any man living
may be abu&s;ed, and extreamly &s;uffer
by the &s;ei&s;ure of his E&s;tate upon exe|cution,
he having had no notice by
way of Summons of the &s;aid action.
And this great advantage to the
Common-wealth there will be by
the way of Summons, that it will
<PB N="41" REF="28">
de&s;troy all priviledged places, for a
Summons may be &s;erved, where
there dur&s;t not be an arre&s;t; So that
then there will be no protection of
men again&s;t their Creditours, but
that &s;uch as have E&s;tates, &s;hall, as in
con&s;cience they are bound, pay their
debts, and not con&s;ume them in a
corner, under the guard of any pri|viledge.</P>
<P>The next thing, after the proces,
and judgement, that is to be con&s;i|dered
of is, what execution is mo&s;t
ju&s;t and rea&s;onable, and mo&s;t agree|able
to con&s;cience, and the good of
the Common-wealth in &s;uch ca&s;e?
In this we mu&s;t con&s;ider what the
&s;cope, aim or end of the Law is in
&s;uch execution; and that is, the &s;ati&s;|faction
of the debt. Then the next
que&s;tion is, which is the mo&s;t ju&s;t
and probable way to attain to this
end? whether the taking of the bo|dy,
<PB N="42" REF="29">
or the E&s;tate? To this I an&s;wer,
that certainly the neare&s;t, be&s;t, and
mo&s;t con&s;cionable and rational way
to attain to that end, yea and mo&s;t
equal too, is by &s;eizing of the E&s;tate.</P>
<P>The mo&s;t equal it is certainly, and
our Law much delights in equalities;
for it is not equal ju&s;tice that the bo|dy
(which is &s;aid in Law to be the
highe&s;t execution, and &s;o without
doubt it is, and much more to be
valued then all Worldly goods)
&s;hould be captivated and impri&s;on|ed,
for any Worldly pelf, or ingage|ment
what&s;oever, body for body, and
E&s;tate for E&s;tate, is the mo&s;t equal
way of ju&s;tice in the World.</P>
<P>And it is the mo&s;t rational, the
readie&s;t and be&s;t way for to get a &s;a|tisfaction
of the debt, and it is that
which mu&s;t pay it at la&s;t, if ever it
be paid; for this is but a &s;lender &s;a|tisfaction
of the debt. And this great
<PB N="43" REF="29">
inconvenience he lies under that
takes the body in execution, that he
cannot, after he hath determined his
Election by this way of execution,
during his life, take hold of his E&s;tate
too. And heretofore it was a great
que&s;tion, whether if the party died
in execution, it were not a &s;atisfa|ction
of the debt; and though there
were much variety of opinion in it,
yet certainly the be&s;t was, that it was
a &s;atisfaction, &s;o that the plaintiffe
could not re&s;ort afterwards to, or
take out execution upon the E&s;tate;
and for my part, I think it was the
mo&s;t ju&s;t Law, that he, whom no|thing
but the body could &s;atisfie,
&s;hould have no other &s;atisfaction,
this occa&s;ioned the making of the
<HI>Stat.</HI> of 21. of King <HI>James;</HI> which
provides remedy again&s;t the E&s;tate,
notwith&s;tanding the per&s;ons dying
in execution.</P>
<P><PB N="44" REF="30">
But I &s;ay, having thus determined
his Election by taking the body in
execution, he is upon this great di&s;|advantage
that the debtors E&s;tate
is free, and that which he would not
take to &s;atisfie his debt, happens for
the mo&s;t part to be wa&s;ted and con|&s;umed
in pri&s;on. 'Tis frequent, that
a wilfull creditor finds as &s;tubborn a
debtor; and &s;ince nothing will &s;ati&s;|fie
him but the body, he mu&s;t take
that for &s;atisfaction; &s;o that it is ap|parently
contrarie to rea&s;on and
common policie.</P>
<P>'Tis likewi&s;e under correction, the
mo&s;t con&s;cionable way too; and the
contrarie, which is the taking of the
per&s;on, the mo&s;t uncon&s;cionable,
e&s;pecially as it hath been practi&s;ed in
<HI>England,</HI> for either the debtor hath
an E&s;tate, or he hath none, if he hath
an E&s;tate, it is all the Ju&s;tice in the
World that that &s;hould be re&s;pon&s;i|ble
<PB N="45" REF="30">
for his debts; if he hath none,
what can be more uncon&s;cionable or
unju&s;t, than to keep his body in pri|&s;on.
<HI>Lex non cogit ad impo&s;sibilia,</HI>
the Law requires not impo&s;&s;ibilities
at any mans hands, why then &s;hould
one man &s;o exact upon another? Be|&s;ides,
this renders a man utterly un|capable
of ever giving &s;atisfactio~, for
by this he is wholly deprived of all
po&s;&s;ible means of di&s;charging his in|gagements.
Whereas had he his li|berty,
he may through Gods ble&s;|&s;ing
upon his hone&s;t indeavour, gain
&s;ufficient, not onely to &s;atisfie his
debts, but to rai&s;e a fortune for his
po&s;teritie.</P>
<P>But this will not dige&s;t well with
&s;uch, who&s;e principle is, that if
they have it not they will make dice
of their bones, (a &s;aying that hath
been ever too common in this place)
that is, they &s;hall &s;tarve and peri&s;h in
<PB N="46" REF="31">
pri&s;on: and whether this be not
meer and pure malice in &s;uch men,
let all the World judge; and if
death &s;hall thereupon follow, as too
too often God knows it doth, I &s;hall
be bold to &s;ay, that &s;uch a creditor
is as ab&s;olute a murderer, as if he
had killed him with his own hand.
For what makes murder, but malice
prepen&s;ed to kill: and what el&s;e can
that man have in his thoughts, who
re&s;olves his debtor &s;hall rot and die
in pri&s;on, though he knows he hath
not wherewithall to &s;atisfie. To &s;uch
unmercifull, pittile&s;s, cruel creditors,
(yea, and therein mo&s;t cruel to them|&s;elves
too, had they grace to con&s;i|der
it) I &s;hall &s;ay no more but this,
that they cannot keep their poor cre|ditors
always in pri&s;on, death will
at the length take pitty of them,
bring a di&s;charge and open the
doors and let them out; and there
<PB N="47" REF="31">
(through their affliction, working
them to true and unfained repen|tance
and amendment of life) I
doubt not, ends their captivity: but
let the&s;e take heed, that they be not
one day ca&s;t into that black, di&s;mal
and infernal Lake, from whence there
is no redemption.</P>
<P>But I know that it will be objected
to me that debtors may conceal, or
&s;ecretly convey over their E&s;tates to
cou&s;en their creditours, which can|not
be di&s;covered; &s;o that if their
per&s;ons may not be impri&s;oned, cre|ditors
&s;hall be wholy without re|medy.</P>
<P>To this fir&s;t I &s;ay, that it is a
rule in Law, that <HI>Nullum iniquum
e&s;t in lege prae&s;umendum,</HI> pre&s;umpti|ons
of fraude or deceite are not per|mitted
in Law, that is &s;o ju&s;t, that it
conceives all men to be ju&s;t likewi&s;e,
till there appear &s;omething to the
<PB N="48" REF="32">
contrarie: and why &s;hould our
thoughts be otherw&s;e? but it is &s;o,
men of corrupt lives, judge all others
like them&s;elves.</P>
<P>I an&s;wer further, that &s;uch as are
re&s;olved to be di&s;hone&s;t, it is not im|pri&s;onment
will make them other|wi&s;e;
and in &s;uch ca&s;e if you take
their per&s;ons, you are further from
gaining of your debt than before, for
you cannot then fa&s;ten upon their
E&s;tates; and let not the innocent &s;uf|fer
with the nocent, the willing and
unable, with tho&s;e that are able and
unwilling.</P>
<P>Be&s;ides, how often is impri&s;on|ment
made a meer cheat, even by
the pri&s;oners them&s;elves to defraud
their creditors, they willingly &s;ub|mitting
them&s;elves to a pri&s;on, to
pre&s;erve their E&s;tates.</P>
<P>But it is further objected, that if
impri&s;onment of mens per&s;ons for
<PB N="49" REF="32">
debt &s;hould be taken away, it would
be a great hinderance to trading,
which is, as it were, the &s;oul of every
Common-wealth, for then men
would not dare to tru&s;t one ano|ther.</P>
<P>To this I an&s;wer, trading driven
upon credit &s;eldom thrives; And I
may &s;afely &s;ay, that many men, who
are now beggers, had been rich
men, had they had le&s;s tru&s;t and
confidence, little profit without, is
more than great with hazard and
danger. I know no rea&s;on that any
man &s;hould be tru&s;ted who hath not
wherewithall to pay; and certainly
men in general, then thrive be&s;t,
when they tru&s;t lea&s;t; and for my
part, I judge that man worthy to
lo&s;e his debt, who tru&s;ts to the &s;ecu|rity
of a mans per&s;on onely.</P>
<P>Again, <HI>Lex re&s;picit finem,</HI> the
Law hath an eye to the end of all
<PB N="50" REF="33">
actions; and as this is not the next
way to get mens debts by the impri|&s;onment
of their creditors per&s;ons,
(as I have &s;aid, and proved before,)
So I be&s;eech you to con&s;ider, who
it is that gains by it? it is certain the
creditor, &s;eldom, if ever, gains his
debt the &s;ooner.</P>
<P>Why, the onely gainers are, She|riffs,
Bayliffs, Serjants, Goalers and
Keepers of pri&s;ons, <HI>&amp;c.</HI> the&s;e are
they that grind the faces of the poor,
that add affliction to affliction, and
live upon the ruins of others; the&s;e
are the <HI>mala nece&s;&s;aria,</HI> the bloud|&s;uckers,
the leeches of the Common|wealth;
evils they are, and great
ones too, I am &s;ure of it; but did I
&s;ay they were nece&s;&s;arie? I mu&s;t re|call
that word, otherwi&s;e, I mu&s;t of
nece&s;&s;ity approve of the Devil and
his cur&s;ed in&s;truments; and Hell
and a pri&s;on have no &s;mall re&s;em|blance,
<PB N="51" REF="33">
onely there is more hopes of
getting out of the one, than the
other. A &s;ilver key, &s;o long as a
man hath it, will unlock the pri&s;on
doors, and &s;et him at liberty; but if
he &s;hall make default in payment of
his rents, or other extortions ex|acted
of him, by the keeper, and
his bloud-hounds, he &s;hall quickly
be hunted after, and fetched in again,
and there remain untill he hath &s;ati&s;|fied
them; that being done, he &s;hall
be re&s;tored to his former liberty; but
if his pur&s;s be not of con&s;iderable
magnitude, it will &s;oon be emptied;
and then, no longer pipe no longer
dance; the creditor &s;hall be &s;ure then
to find him, and now nothing remains
but the body, which the creditor &s;o
unwi&s;ely made choice of, for &s;ati&s;|faction
of his debt. This I know to
be the con&s;tant cour&s;e of many
Keepers of pri&s;ons; and the condi|tions
<PB N="52" REF="34">
of their pri&s;oners; and whether
this be the way for creditors to get
their debts or no, let any &s;en&s;ible
under&s;tanding man judge.</P>
<P>But la&s;tly, it hath been &s;aid by
&s;ome, that it doth indeed &s;tand with
rea&s;on and con&s;cience, that where
a man becomes unable, through the
Act, or hand of God, without any
Debauchery or default of his own,
to &s;atisfie his debts, that in &s;uch ca&s;e
he &s;hould not be detained in pri&s;on;
but if through his own default, in
&s;uch ca&s;e he de&s;erves no mercie.</P>
<P>To this I &s;ay, under favour, that
though he be &s;o impoveri&s;hed
through his own default, it is very
hard, and to me unrea&s;onable, that
he &s;hould &s;o &s;uffer; Fir&s;t, becau&s;e that
this is not Gods Method or way of
dealing with poor &s;infull man, for
if God &s;hould inflict the &s;everity of
his Ju&s;tice upon us, but for one of
<PB N="53" REF="34">
a thou&s;and &s;ins that we commit
again&s;t his Divine Maje&s;ty, no fle&s;h
living could be &s;aved, why &s;hould
we then &s;o exact one upon another,
as not to forgive one fault or tran&s;|gre&s;&s;ion
of our Brother; are we not
required to be mercifull as our hea|venly
Father is mercifull? and do we
not dayly pray that God would for|give
us our Tre&s;pa&s;&s;es, as we for|give
them their Tre&s;pa&s;s again&s;t us?
how then dare we harbour malice in
our heart again&s;t our Brothers; &s;ince
except we truly forgive, we are not
to expect forgivene&s;s? con&s;ider with
thy &s;elf how much thou art indebted
to God, and if he (as in Ju&s;tice he
might) &s;hould require that great
debt at thy hands, nay, but one of a
Million, thou mu&s;t inevitably go to
pri&s;on, I, to that pri&s;on (to which
all earthly &s;ufferings and torments
are as nothing) from which there is
<PB N="54" REF="35">
no redemption to all eternity; and
therefore forgive, as thou do&s;t ex|pect
to be forgiven.</P>
<P>Again, this is not the way to &s;ati&s;|fie
the debt (which is the end of the
Law in &s;uch executions) but to ruin
the party; who, had he is Liberty,
might leave his former vanities and
ill cour&s;es, and live to be able to
make &s;atisfaction of his debts; God
happily waits for thy reformation all
thy life, do thou (as in duty thou
art bound) deal &s;o likewi&s;e with thy
Brother. I &s;hall conclude all with
this one word, let us con&s;ider tho&s;e
that are in bonds, as if we were in
bonds together with them.</P>
<P>The next I have con&s;idered to
treat of, is the Chancery and its
power, and therein I &s;hall propo&s;e
this &s;hort que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<PB N="55" REF="35">
<HEAD>Whether the High Court of Chancery,
as the practice is there, be not a
very great grievance, and burthen
to the Common-wealth?</HEAD>
<P>IT is not my purpo&s;e, or the &s;cope
of my indeavour, to &s;peak or
write again&s;t a Court of Chancery,
I know there is an ab&s;olute nece&s;&s;itie
of it. Equity &s;aid <HI>D. 8. lib. 1. cap.</HI> 16.
is a right wi&s;ene&s;s that con&s;idereth
all the particular circum&s;tances of
the dead, the which al&s;o is temper|ed
with mercie, and &s;uch an Equity
mu&s;t be ob&s;erved in every general
rule of the Laws of man, for <HI>Sum|mum
jus, &s;umma injuria, viz.</HI> If thou
take all that the word of the Law
giveth thee, thou &s;halt &s;ometimes
do again&s;t the Law. And therefore
&s;aid <HI>D. 8. cap.</HI> 18. very well; If it
were ordained by <HI>Statute</HI> that there
<PB N="56" REF="36">
&s;hould be no remedy upon Equity in
Chancery, nor el&s;ewhere, &s;uch a
<HI>Statute</HI> were again&s;t rea&s;on and con|&s;cience,
and certainly &s;o it were. He
approves the u&s;e of any thing, that
labours to take away the abu&s;e.</P>
<P>I am not ignorant, that the Kings
of this Nation have ever had their
Court of Chancery, and their Chan|cellor
or Lord Keeper of the Great
Seal; nor am I wholly unknowing of
the power and Authority of that
Court. In the Chancery, &s;aith my
Lord <HI>Cook</HI> in his Juri&s;diction of
Courts, there are two Courts, one
ordinarie, <HI>Coram Domino Rege in
Cancellaria,</HI> in which the Lord
Chancellor or Lord Keeper of the
Great Seal proceeds according to
the right line of the Laws and <HI>Stat.</HI>
of the Realm, <HI>Secund&ugrave;m legem &amp;
con&s;uetudinem Angliae,</HI> and with this
Court, I purpo&s;e not to meddle, as
<PB N="57" REF="36">
being not within the limits &amp; bounds
of my pre&s;ent di&s;cour&s;e. But the
other Court, that is extraordinary,
according to the rule of Equity, <HI>&s;e|cund&ugrave;m
aequum &amp; bonum;</HI> and that is
my work to treat of, and that you
may &s;ee the nece&s;&s;ity of this Court,
it is <HI>Officina Ju&s;titiae,</HI> out of which
all Original Writs &amp; all Commi&s;&s;i|ons,
which pa&s;s under the great Seal
go forth, which great Seal is <HI>Clavis
Reipublicae,</HI> and for the&s;e ends this
Court is always open. And in this,
the Chancellor or Keeper was &s;ole
Judge, but he had power, if he
plea&s;ed, to a&s;&s;i&s;t him&s;elf with the
Judges.</P>
<P>And now I &s;hall take freedom to
let you know what the ancient rule
was for this Court of Equity, which
is very good. Three things are to
be adjudged in a court of con&s;cience:
<HI>Covin, Accident,</HI> and breach of <HI>Con|fidence.</HI></P>
<P><PB N="58" REF="37">
All <HI>Covins,</HI> frauds, and deceits, for
which there is no remedy by the or|dinary
cour&s;e of Law.</P>
<P><HI>Accident,</HI> as when a &s;ervant of an
Obliger, Morgager, <HI>&amp;c.</HI> is &s;ent to
pay the Monies upon the day, and he
is robbed, <HI>&amp;c.</HI> remedy is to be had
in this Court, again&s;t the forfeiture,
and &s;o in the like ca&s;e.</P>
<P>The third is breach of tru&s;t and
<HI>Confidence,</HI> of which you have plen|tifull
Authorities in our Books: but
of this, this ta&s;t onely &s;hall &s;uffice;
and now to come to that which I in|tend,
which is the pre&s;ent practi&s;e
there, and therein I &s;hall not med|dle
with the many great Officers and
their fees; which is a very great bur|then
to the Common-wealth, be|cau&s;e
that I do believe, that they are
in a way of redre&s;s.</P>
<P>But the fir&s;t thing that I &s;hall
touch upon, is the multitude of Suits
<PB N="59" REF="37">
that are there pending, &s;o that it is
impo&s;&s;ible (without the Commi&s;&s;io|ners
were more than men) for them
to receive a convenient di&s;patcht. I
do acknowledge their great and in|defatigable
pains in that high and
extraordinarie Judicature, for which
the Common-wealth &s;tands very
much obliged to them: yet I know
as men, they cannot exceed their
&s;trength and ability.</P>
<P>This Court hath received a great
addition, not of Juri&s;diction, but
of practi&s;e, by taking away of the
Court of Wards, that great and op|pre&s;&s;ive
Court; as likewi&s;e, by the
fall of that unnece&s;&s;arie Court of
Reque&s;ts. So that the bu&s;ine&s;s of this
Court is &s;o great, and doth &s;o much
increa&s;e dayly, that the Common|wealth
will in a &s;hort time very much
&s;uffer through inevitable, not to be
prevented, delay of Ju&s;tice.</P>
<P><PB N="60" REF="38">
Be&s;ides; it is not unknown, that
many Suits are commenced there
upon a &s;ugge&s;tion of Equity, meerly
fal&s;e, on purpo&s;e onely to hinder or
delay the execution of Ju&s;tice at the
Common-Law; this likewi&s;e much
advances the p<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">ctice there, and is
a very great prejudice to the Com|mon-wealth,
by rea&s;on of &s;uch un|ju&s;t
and cau&s;le&s;s vexation. I hope no
man will be &s;o unrea&s;onable as to
mi&s;apprehend me here, or to judge,
that in any thing I have &s;aid, I &s;hould
lay the lea&s;t imputation of fault up|on
the Commi&s;&s;ioners, no, I do not,
I cannot, I know that all men who
have to do in that Court, do plen|tifully
partake of their Ju&s;tice, yet
I mu&s;t &s;ay, as before, that it is im|po&s;&s;ible
for them, through the infi|nite
multiplicity of bu&s;ine&s;s there,
to give a convenient di&s;patch to
all.</P>
<P><PB N="61" REF="38">
Again, it &s;eems to me, to be a
great grievance and burthen to the
Common-wealth, to have a re&s;ort
in matter of Equity from a Court of
Law, to Chancery. We &s;ay in Law,
<HI>frustra fit per plura, quod fieri pote&s;t
per pauciora,</HI> it is vain and idle for a
man to go about, when he may find
a neerer way home. The Law loves
not circuity of action, why then
&s;hould men be forced to a Court of
Equity, when the ca&s;e is pending be|fore
the Judges at Law? and why
may not the matter of Equity (if
any) be determined by them with|out
&s;uch further trouble or wheeling
about, which is no &s;mall charge and
expence to the people? I know not
but that they are in &s;uch ca&s;e, the
mo&s;t proper Chancellors; and this
will prevent a very great mi&s;chief and
vexation to the people, which I have
&s;hown before, and that is, of re&s;ort|ing
<PB N="62" REF="39">
to the Chancery upon pretence of
Equity, whereas in truth, it is onely
to delay Ju&s;tice: a thing, then which,
nothing more frequent and u&s;ual.</P>
<P>Be&s;ides, it is no &s;trange thing for
the Judges to make them&s;elves
Chancellors too, for I have known
this ca&s;e frequently in practice, that
the Judges, in debt upon a penal
Bond, have, upon a motion, forced
the plantiffe to accept of the princi|pal
with co&s;ts and damages, and I
am &s;ure, the penalty in &s;trictne&s;s of
Law being forfeited, this is judging
and determining according to Equi|ty;
and why they may not do it as
well in other ca&s;es, I under&s;tand not
further, as I have &s;aid before: The
Chancellor may call the Judges to
his a&s;&s;i&s;tance, and peradventure he
will call tho&s;e (as is mo&s;t proper)
before whom the ca&s;e was pending
at Law: is not this then a &s;trange
<PB N="63" REF="39">
circuitie of action? why might not
the matter of Equity have been as
well determined by the Judges, and
&s;o this great vexation have been pre|vented?</P>
<P>But to this it will be &s;aid, that this
would be a total de&s;truction of the
Court of Chancery, and a gro&s;s con|founding
of Law and Equity, to
make the Judges judge of both.</P>
<P>To this I an&s;wer, that we are
wholly to re&s;pect the good of the
Common-wealth, and what tends
mo&s;t that way, certainly is mo&s;t
ju&s;t and rea&s;onable; other relations
ought to be &s;ub&s;ervient to that; that
is equal and good ought onely to be
look't upon. But further, though
this will much abridge the practice
there, yet, it will not take it away;
and I am certain, the practice there
needs &s;ome abateme~t; or at la&s;t there
will be an extream failer of Ju&s;tice.</P>
<P><PB N="64" REF="40">
Not de&s;troy it, for there be ma|ny
ca&s;es, which are &s;o meerly and
ab&s;olutely equitable, that they have
not the lea&s;t relation to Law, nor can
any action in &s;uch ca&s;e be brought at
Law, as in all your ca&s;es of di&s;cove|ry,
and the like.</P>
<P>So that where the Suit is onely
proper there, and is not, nor cannot
be brought in que&s;tion at Law, in
&s;uch ca&s;e it is rea&s;on that Court
&s;hould have a determining power in
the matter of Equity: and &s;uch ca&s;es
onely, I am confident, will find
work enough for the Commi&s;&s;io|ners,
and this will be a very great
ea&s;e and benefit to the people.</P>
<P>For the &s;cruple of confu&s;ion, I
know no rea&s;on, but that Judges of
Law may as well judge of Equity; as
Judges of Equity judge of Law.
Nay more, are they not all Lawyers?
I know it is no &s;trange thing, for
<PB N="65" REF="40">
others to have been Chancellors;
yea, it hath been common for Bi|&s;hops
to exerci&s;e that great place of
Judicature; how proper it was for
them, in relation to their functions,
as al&s;o to the place of Judicature it
&s;elf, I &s;hall not di&s;pute here, as not
proper to that I intend; but certain
I am, none more proper Judges of
Equity, then Judges of Law, nor
can he be a competent Judge of E|quity,
that under&s;tands not the Law:
for Equity is no other but an excep|tion
of the Law of God, or of the
Law of rea&s;on, from the general
rules of the Law of man; which ex|ception
is &s;ecretly under&s;tood in eve|ry
general rule of every po&s;itive
Law; therefore he that under&s;tands
not the one, cannot well Judge of
the other.</P>
<P>Give me leave to urge one thing
more, which I am &s;ure would very
<PB N="66" REF="41">
much abate, and le&s;&s;en vexatious and
trouble&s;ome Suits in Chancery, and
that is, that no plaintiffs &s;hould pre|ferre
a Bill, but that he may &s;wear
it, as well as the Defendant his an|&s;wer,
that &s;uch untruths as are now
(to the &s;hame and &s;candal of our
profe&s;&s;ion) alledged and preferred in
all, or mo&s;t Bills exhibited, may be
prevented, that men may not lye
(pray pardon the cour&s;ne&s;s of the
Term, &s;ince the truth is &s;o) by tole|ration.</P>
<P>To this I know it will be &s;aid, that
&s;ome Bills are meerly for di&s;covery
and the like, and &s;o not to be &s;worn
to; To this I an&s;wer, that there is
no Bill but hath &s;omething po&s;itive|ly
alledged in it, and that me thinks
&s;eems rea&s;on, that every Plaintiffe
&s;hould &s;wear to, the rather, for the
Honour of this High Court, that
men may not dare to forge fal&s;ities,
<PB N="67" REF="41">
and to pre&s;ent them to the Com|mi&s;&s;ioners
for &s;pecious truths.</P>
<P>I have one thing more to &s;ay, and
with which I &s;hall conclude; and that
is, that it &s;eems very hard to me, that
men &s;hould not have co&s;ts of Suit,
in &s;ome rea&s;on an&s;werable to what
they have nece&s;&s;arily expended in
this Court, as well as at Law; &s;o that
often the remedy proves as bad, if
not wor&s;e, then the di&s;ea&s;e, and &s;ure
this cannot be agreeable to Equity,
it is not <HI>aequum,</HI> nor <HI>bonum;</HI> neither
good for the Court, nor equal to the
party. And this to my knowledge
hath deterred many a man from
pro&s;ecution in this Court. I &s;hall
&s;ay no more but this, judge me ac|cording
to Equity, and then I know
I &s;hall not be condemned.</P>
<P>The next thing I have re&s;olved to
treat of is, Collateral Warranties,
&amp; in that I &s;hall propound this &s;hort
que&s;tion:</P>
</DIV2>
<DIV2 TYPE="question">
<PB N="68" REF="42">
<HEAD>Whether Collateral Warranty &s;tands
with rea&s;on and con&s;cience, or no?</HEAD>
<P>ANd fir&s;t I &s;hall let you know
what a collateral Warranty is;
that you may the better under&s;tand
the rea&s;on of this que&s;tion. A col|lateral
Warranty is thus; where a
collateral Ance&s;tor; as an Uncle, re|lea&s;es
to the di&s;continuee or di&s;&s;ei&s;or
of Lands in tail, with Warranty and
and dyes, this barres the Heir in tail,
becau&s;e the Warranty de&s;cended up|on
him, who cannot derive any title
from the Uncle; and though the
Warranty de&s;cends lineally; yet it is
&s;aid to be collateral, becau&s;e the An|ce&s;tor
is collateral to the title.</P>
<P>But to make the ca&s;e more plain,
I &s;hall put one ca&s;e out of <HI>Littleton.
Sect.</HI> 709. If Tenant in tail di&s;con|tinues
the tail, and hath i&s;&s;ue and
dies, and the Uncle of the i&s;&s;ue re|lea&s;es
to the di&s;continuee with War|ranty,
<PB N="69" REF="42">
<HI>&amp;c.</HI> and dies without i&s;&s;ue, this
is a collateral Warranty to the i&s;&s;ue
in tail, becau&s;e that the Warranty de|&s;cended
upon the i&s;&s;ue, who cannot
convey him&s;elf to the tail by means
of his Uncle. And you mu&s;t know,
that this Warranty is a barre with|out
any a&s;&s;ets, or E&s;tate de&s;cended
from him that made the Warranty,
which is the great extremity of
the ca&s;e.</P>
<P>The rea&s;on that my Lord <HI>Cook</HI>
gives, why the Warranty of the Un|cle,
having no right to the Land in|tailed,
&s;hall barre the i&s;&s;ue in tail is,
becau&s;e that it is pre&s;umed that the
Uncle would not unnaturally di&s;he|rit
his Lawfull Heir being of his own
bloud, of that right which the Uncle
never had, but came to the Heir by
another mean, except that he would
leave him greater advancement. <HI>Ne|mo
prae&s;umitur alienam po&s;teritatem
<PB N="70" REF="43">
&s;uae praetuli&s;&s;e.</HI> No man is pre&s;umed
to preferre anothers po&s;terity before
his own. And in this ca&s;e he fur|ther
&s;aith, that the Law will admit
no proof again&s;t that which the Law
pre&s;umes. And &s;o of all other col|lateral
Warranties, for no man is
pre&s;umed to do any thing again&s;t na|ture.
It is well that my Lord <HI>Cook</HI>
will offer &s;ome rea&s;on for it; it is
more than I find in <HI>D. S. lib. 1. cap.</HI> 32.
for he &s;aith, it is a barre in Law and
con&s;cience, becau&s;e that it is a
Maxim.</P>
<P>But now let us examine the rea|&s;on
of my Lord <HI>Cook,</HI> and &s;ee whe|ther
it doth &s;tand with con&s;cience,
rea&s;on, and the good of the Com|mon-wealth;
for my part, I judge
not that to be Law, nor worthy &s;o
to be con&s;idered, that is unrea&s;ona|ble,
uncon&s;cionable, and again&s;t the
common good.</P>
<P><PB N="71" REF="43">
It is an unrea&s;onable and uncon|&s;cionable
Law, that a collateral An|ce&s;tor
who cannot claim any right to
the Land, &s;hould have power to
barre me that am the Heir to it by
his relea&s;e, and this is a ca&s;e much
more extream then that of recove|ries,
in &s;ome &s;ence, becau&s;e the Uncle
is a meer &s;tranger, as to the E&s;tate,
and this is again&s;t the rule of Law,
that Acts done by &s;trangers &s;hould
prejudice a third per&s;on.</P>
<P>Yes, but &s;aith my Lord <HI>Cook</HI> it is
pre&s;umed, that the Uncle would not
disherit his Heir of that, which he
had nothing to do with, nor could
not pretend any right to, except that
he would leave him a greater ad|vancement,
and no proof mu&s;t be
again&s;t this pre&s;umption.</P>
<P>A very &s;trange pre&s;umption, How
many Uncles might a man find in
this age, who for a &s;mall &s;um of mo|ney,
<PB N="72" REF="44">
would not care to disherit twen|ty
Heirs, if po&s;&s;ibly &s;o many could
be, without the lea&s;t &s;cruple of con|&s;cience;
who neither have, nor con|&s;ider
of any other advancement to
leave them.</P>
<P>But there is a &s;trong block in the
way; for again&s;t that pre&s;umption
there mu&s;t be no proof; &s;o that if he
leave no E&s;tate or other advance|ment,
it is all one as if he did, it is
pre&s;umed he will, though happily it
is known, he neither doth, nor can;
and that is &s;ufficient to di&s;herit his
Heir.</P>
<P>Yet the rule of Law is, <HI>Stabitur
prae&s;umptioni donec probetur in contra|rium,</HI>
the pre&s;umption is to be al|lowed,
till the contrarie be preved,
but no longer: and certainly if
ever there were an unrea&s;onable ex|ception
to any rule, this may pa&s;s
for one.</P>
<P><PB N="73" REF="44">
My Lord <HI>Cook</HI> &s;aith, that it hath
been attempted in Parliament, that a
<HI>Statute</HI> might be made, that no man
&s;hould be barred by a collateral
Warranty, but where a&s;&s;ets de&s;cend
from the &s;ame Ance&s;tor, but it ne|ver
took effect, becau&s;e &s;aith he,
that it would weaken common a&s;&s;u|rances,
<HI>Rot. Parliament. 50. E. 3.
Num.</HI> 77.</P>
<P>This is a rea&s;on urged in defence
of common recoveries likewi&s;e, the
Engli&s;h of it is but this, I may barre
another man of his ju&s;t and Lawfull
right, to fortifie a wrongfull title;
otherwi&s;e it would weaken common
a&s;&s;urances; I know no rea&s;on, but
mens rights &s;hould be as much fa|voured
as common a&s;&s;urances; an
Heir as much as a purcha&s;or. To
conclude, I wi&s;h a &s;econd attempt
were made in this pre&s;ent Parlia|ment,
again&s;t the&s;e collateral War|ranties;
<PB N="74" REF="45">
and then I &s;hould not de&s;pair
of redre&s;s of &s;o unrea&s;onable a Law,
The next thing I am to treat of, is,
Pleadings, and therein I &s;hall pro|pound
this que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be con&s;onant to rea&s;on or
con&s;cience, that any mans Plea
&s;hould be adjudged nought, and
avoided at any time for any matter
of form, fal&s;e Latine, double Plea,
Departure, or any other defect what|&s;oever,
the ca&s;e and matter it &s;elf
&s;ufficiently appearing upon the
Record, for which the Action is
brought&punc;</HEAD>
<P>FIr&s;t, that I may clear the que&s;ti|on
of &s;ome things doubtfull in
it, I have added to it, at any time,
becau&s;e in &s;ome ca&s;es and &s;ometimes
&s;uch defective Pleas are already
helpt by <HI>Stat.</HI> as you will find after.</P>
<P><PB N="75" REF="45">
I &s;hall not need to inform you
what matter of Form is, the word it
&s;elf &s;ufficiently &s;peaks it. Double
Plea is, when a man in pleading al|ledges
&s;everal things; the one not ne|ce&s;&s;arily
depending upon the other,
<HI>&amp;c.</HI> Departure is when a man goes
from his former plea, and pleads
&s;ome new matter, the&s;e will vitiate
pleadings; and put a man to a new
action.</P>
<P>But to the ca&s;e it &s;elf; M. <HI>Little|ton,</HI>
I remember, &s;aith, that pleading
is one of the mo&s;t Honourable and
profitable things in our Law, and
therefore advi&s;es his Son to bend
his indeavour to the gaining of the
knowledge of it. I believe it indeed
to be one of the mo&s;t profitable
things, (I mean to the Lawyer) but
the Common-wealth &s;uffers in it.
For the matter of Honour, I know
not where it lies, except it be in this;
<PB N="76" REF="46">
that &s;uch a one is &s;aid to be a &s;ubtile
Lawyer, a pick-lock of the Law,
one, who can di&s;cover a flaw or de|fect
in any plea pre&s;ently, if it be
to be found: and this is the Honour
I believe, to be able to vex and
trouble and undo people by various
Suits; if this be the Honour (though
I hope no man will therefore count
me wholly ignorant of this know|ledge,
becau&s;e I &s;peak again&s;t it) let
who will take it for me.</P>
<P><HI>Cook</HI> upon <HI>Litt.</HI> fol. 303. 304. ob|&s;erves,
that many a good cau&s;e is
dayly lo&s;t for want of orderly and
good pleading; the more the pittie.
And after he &s;aith, when I diligently
con&s;ider the cour&s;e of our Books of
Years, and Terms from the begin|ning
of the Reign of <HI>E.</HI> 3. I ob&s;erve
that more jangling and que&s;tions
grew upon the manner of pleading,
and exceptions to form, then upon
<PB N="77" REF="46">
the matter it &s;elf, and infinite cau&s;es
lo&s;t or delayed for want of good
pleading, what a gro&s;s &s;hame, and
mo&s;t uncon&s;cionable thing is this,
that form &s;hould be in&s;i&s;ted upon
more than matter; and the Clyent
&s;hould lo&s;e his ca&s;e, or have it de|layed,
for formalities. The Clyent
&s;ues not at Law for to make ca&s;es or
que&s;tions, or to occa&s;ion &s;cruples
about nice formalities, but to have
Ju&s;tice done according to the truth
of his ca&s;e; and this is the end of all
Law, to put an end to controver|&s;ies,
in doing right to the parties,
without delay, or regarding any
thing but the truth of the ca&s;e it
&s;elf. <HI>Intere&s;t Reipublicae ut &s;it finis
litium,</HI> it very much concerns the
Common-wealth, that &s;trifes be end|ed;
and not that one di&s;pute or con|trover&s;ie
&s;hould occa&s;ion another;
much le&s;s that contention &s;hould be
<PB N="78" REF="47">
about words, the matter layed a&s;ide,
and the party depart, not as he came,
but in a wor&s;e condition, his money
fruitle&s;ly expended, and his right, if
not lo&s;t, &s;u&s;pended.</P>
<P>My Lord <HI>Cook</HI> &s;aith again, that it
is worthy of ob&s;ervation, and &s;o in|deed
it is, That in the Reigns of <HI>E. 2.
E.</HI> 1. and upwards, the pleadings
were plain and &s;en&s;ible, but nothing
curious, evermore having chief re|&s;pect
to matter not to forms of
words; I am &s;ure we cannot &s;ay &s;o of
the&s;e latter times; for I am confident,
they were never more nice and cap|tious
than of late.</P>
<P>Then he &s;aid, that in the Reign of
<HI>E.</HI> 3. pleadings grew to perfection,
both without lamene&s;s and curiou&s;ity.
And that in the time of <HI>H.</HI> 6. the
Judges gave a quicker ear to excep|tions
to pleadings, than either their
predece&s;&s;ors did, or the Judges in
<PB N="79" REF="47">
the Reign of <HI>E.</HI> 4. or &s;ince that time
have done, giving no way to nice
exceptions, &s;o long as the &s;ub&s;tance
of the matter were &s;ufficiently
&s;hewed.</P>
<P>I attribute much of Honour and
re&s;pect to my Lord <HI>Cook;</HI> yet I &s;hall
crave that freedom, to deliver what
is truth, and that is, as I have &s;aid
before, that pleadings were never
more curious and &s;ubtile than of
late; and never more nice exceptions
given way to.</P>
<P>I &s;hall not here meddle with the
order of pleading, as fir&s;t to the Ju|ri&s;diction
of the Court, Secondly
to the Per&s;on, <HI>&amp;c.</HI> which mu&s;t be ob|&s;erved
in their due cour&s;e, or you
lo&s;e the benefit of the former. Nor
yet with my Lord <HI>Cooks</HI> rules of
pleading in his in&s;titutes, in which he
is very large: I go not about to
teach or inform you of the forms
<PB N="80" REF="48">
and &s;ubtleties of our pleas; though
they are worth the knowing, yea,
and ob&s;erving too, &s;o that the Clyent
may not be prejudiced for want or
defect of &s;uch forms.</P>
<P>For the double plea, I cannot under|&s;tand
any ju&s;t rea&s;on why it &s;hould
not be allowed; that rea&s;on which
the Law gives, is, that the Court and
Jury may be invegled by &s;uch pleas;
I have inquired exactly into this rea|&s;on,
but cannot find how, or which
way; and I do profe&s;s my &s;elf one of
my Lord <HI>Cooks</HI> non-intelligents too;
for he &s;aid the Law in this point, is
by them that under&s;tand not the rea|&s;on
thereof, mi&s;liked; and I do ac|knowledge
my &s;elf of their minds
who &s;ay. <HI>Nemo prohibetur pluribus
defen&s;ionibus uti;</HI> no man is prohi|bited
to u&s;e &s;everal defences.</P>
<P>And &s;o likewi&s;e for the departure,
I know no rea&s;on that any man
<PB N="81" REF="48">
&s;hould be barred or concluded from
offering any other or new matter,
but that any man, may at any time
make the be&s;t of his own ca&s;e; cer|tainly,
Judges ought to have princi|pal
regard to the truth of every ma~s
ca&s;e, that that may be di&s;covered,
thereby the better to inable them to
give righteous and true judgement;
not to forms or words; the&s;e are but
<HI>apices Legis,</HI> the meerbark, out|&s;ide,
and incon&s;iderable part of the
Law; and indeed <HI>non &s;unt Jura,</HI> they
are not Law.</P>
<P>The rule that we have in pleading,
that <HI>Parols font plea;</HI> that is, what&s;o|ever
the truth of his ca&s;e is, that is
his ca&s;e, and that he mu&s;t &s;tand to, as
he hath pleaded: and the other rule,
that a mans plea &s;hall be taken mo&s;t
&s;trongly again&s;t him&s;elf, where it is
doubtfull, the&s;e &s;eem to me very
hard and unrea&s;onable; it is &s;trange
<PB N="82" REF="49">
to conclude any man, where there is
a mi&s;take in words, from laying open
the truth of his ca&s;e; this, if any
thing, is to invegle the Court, and
make them give an unju&s;t judge|ment,
and if they be informed of the
mi&s;take, and yet judge according to
that, I doubt whether a rule of Law,
will another day be a good plea for
them.</P>
<P>Be&s;ides, if a man &s;hall but truely
rea&s;on this ca&s;e, he mu&s;t needs judge
it very unju&s;t, that a man &s;hould &s;uf|fer
through anothers default, which
is contrarie to the rule of Law, for
that &s;aith, <HI>Nemo debet puniri pro ali|eno
delicto.</HI> Now pray who is it that
draws the&s;e pleas? why the Clerk or
Lawyer, according to the informa|tion
he receives from his Clyent; can
it then be agreeable to rea&s;on or
con&s;cience, that the mi&s;pleadings, or
formal mi&s;takes of the&s;e, whom I
<PB N="83" REF="49">
intru&s;t, as being wholly ignorant
thereof my &s;elf, &s;hould prejudice me;
again, is it not frequent, for the mo&s;t
learned men of the Law, to erre, or at
lea&s;t, to differ in judgement, from
the Judges? and yet not to be bla|med
neither, why then &s;hould I &s;uf|fer
for other mens faults, or defects
in judgement?</P>
<P>By divers Statutes made in the
reign of <HI>H. 8. E.</HI> 6. Q. <HI>El.</HI> and King
<HI>James,</HI> it is provided, that after i&s;|&s;ue
tried, after verdict, after demur|rer
(except where the matter of form
is &s;pecially demurred to) that the
Judges do give judgement according
to the right of the cau&s;e, and matter
in Law, and no matter of form, fal&s;e
Latin, or variance, <HI>&amp;c.</HI> to hin|der
it.</P>
<P>The&s;e are good laws &s;o far as they
have gon, and I hope none that con|&s;iders
the&s;e will blame me; for with|out
<PB N="84" REF="50">
doubt, the &s;ame or the like con|&s;iderations,
cau&s;ed the making of
them; that ju&s;tice or right might be
advanced above all punctilioes or
nice formalities. And &s;ince tho&s;e are
defective in many things, as com|mon
experience teacheth; and the
&s;ame rea&s;on that cau&s;ed the making
of them, may, and ought to per&s;wade
our great Parliament to a total ex|tirpation
of &s;uch immaterial nicities;
I doubt not, in good time, we &s;hall
have an Act made, which will fully
an&s;wer our de&s;ires therein; which will
be much for the good and ea&s;e of the
people, and no le&s;s beneficial to
Lawyers. The next thing that
I &s;hall treat of, is Conveyances,
and therin propound this &s;hort que|&s;tion;</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether the many &s;orts of tedious and
long Conveyances now in u&s;e, &s;tand
<PB N="85" REF="50">
with rea&s;on, and the good of the
Common-wealth or not?</HEAD>
<P>THere are many &s;orts of Con|veyances
in our Law, and I
doubt too many, to be for the good
of the people; as Feoffements, Fines,
Recoveries, Bargains, and Sales,
Covenants to &s;tand &s;ei&s;ed to u&s;es,
<HI>&amp;c.</HI> mo&s;t of which, are &s;o &s;welled
and inlarged with many unnece&s;&s;ary
covenants, and vain and idle repeti|tions
and tautologies, which toge|ther
with advi&s;e and coun&s;el, are an
intolerable charge and expence to
the people. So that he that purcha|&s;eth
but a &s;mall thing (as happily not
being able to go further) he had as
good, almo&s;t, be without it, and keep
his money, as under-go the great
charge and trouble in the a&s;&s;uring
of it.</P>
<P>I put a Feoffement in the fir&s;t
<PB N="86" REF="51">
place, as de&s;erving the preheminence
and prioritie of place, being the mo&s;t
ancient and be&s;t conveyance. O the
innocencie of former ages, when a
Feoffement onely of &s;ome few lines
was &s;ufficient, and &s;erved to convey
over the greate&s;t e&s;tates.</P>
<P>Yet I am not in this ca&s;e, to lay
all the blame, if any, upon Lawyers;
for as the innocencie of tho&s;e times
required not &s;o many covenants and
a&s;&s;urances to oblige men to the per|formance,
and making good of their
faith and engagements one to an|other:
So the wickedne&s;s and cor|ruption
of the&s;e latter ages, are &s;uch,
that men mu&s;t be tied and bound,
&s;hackled, and fettered like wild and
untamed cattel; &s;o that it even puz|zels
Lawyers to find words enough
to meet with the &s;ubtle devi&s;es, and
over-reaching policies of mo&s;t men;
and all little enough to keep them
<PB N="87" REF="51">
within the bounds and limits of ju|&s;tice
and hone&s;tie.</P>
<P>But to return to that I broke off
from; <HI>Cook</HI> upon <HI>Litt. fol..</HI> 9. &s;aith,
that a Feoffement is the mo&s;t anci|ent
and nece&s;&s;ary Conveyance;
(Note that Reader) both for that it
is &s;olemn and publick, and therefore
be&s;t remembered and proved, and
al&s;o for that it cleareth all Di&s;&s;ei&s;ins,
Abatements, Intru&s;ions, and other
wrongfull and defea&s;ible e&s;tates,
where the entrie of the Feoffor is
lawfull, which neither Fine,
Recoverie, nor Bargain and Sale
by Deedindented and inrolled
doth.</P>
<P>And that this kind of A&s;&s;urance
may find the better e&s;teem and ap|probation,
I &s;hall fir&s;t inform you
what it is, &amp; then &s;hew you the vene|rable
Antiquitie of it; Feoffement is
derived of the ancient word <HI>Fe<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">dum,
<PB N="88" REF="52">
quia e&s;t donatio feodi;</HI> becau&s;e it is a
giving of the Fee; for the ancient
writers of the Law, called a Feoffe|ment
<HI>Donatio,</HI> of the Verb <HI>do,</HI> or
<HI>dedi;</HI> which is the apte&s;t word of
Feoffement.</P>
<P>And now you &s;hall have the anti|quity
of it, out of no other Author,
but Holy Writ; for &s;aith my Lord
<HI>Cook,</HI> that word <HI>Ephron</HI> u&s;ed, when
he infeoffed <HI>Abraham,</HI> &s;aying, I give
thee the field of <HI>Machpelah</HI> over a|gain&s;t
<HI>Mamre,</HI> and the <HI>Cave</HI> therein
I give thee, and all the trees in the
field, and the Borders round about;
all which were made &s;ure unto <HI>Abra|ham</HI>
for a po&s;&s;e&s;&s;ion in the pre&s;ence
of many witne&s;&s;es, <HI>Gene&s;is, cap. 23.
ver&s;.</HI> 11. And when the kin&s;-man of
<HI>Elimelech</HI> gave unto <HI>Boas</HI> the parcel
of Land that was <HI>Elimelechs,</HI> he took
off his &s;hooe, and gave it unto <HI>Boas</HI>
in the name of &s;ei&s;in of the Land,
<PB N="89" REF="52">
(after the manner in I&s;rael) in the
pre&s;ence and with the te&s;timony of
many witne&s;&s;es, <HI>Ruth; cap. 4. ver. 7, 8.
Deut.</HI> 25. 9, 10. Thus you have the
antiquity likewi&s;e of a Feoffement;
now this being the be&s;t, and mo&s;t an|cient
conveyance, I know no rea&s;on
it &s;hould not be mo&s;t in u&s;e. <HI>Cook</HI>
upon <HI>Litt.</HI> fol. 6. <HI>a.</HI> &s;aith, that there
are eight formal or orderly parts of a
deed of Feoffement, as the <HI>premi&s;&s;es,</HI>
the <HI>habendum, &amp;c.</HI> and yet he &s;aith,
all tho&s;e parts were contained in ve|ry
few and &s;ignificant words; <HI>Haec
fuit candida illius aetatis fides &amp; &s;im|plicitas,
quae pauculis lineis, omnia
fidei firmamenta po&s;uerunt.</HI> And a
Feoffement is good, without the&s;e
formal parts, <HI>fol. 7. a.</HI> for if a man
by his deed gives Land to another
and his Heirs, without more &s;ay|ing,
this is good, if he put his Seal
to the deed, deliver it, and makes li|very
accordingly.</P>
<P><PB N="90" REF="53">
I have been the larger upon this
conveyance, by way of Feoffement,
becau&s;e I would have men in love
with it; and certain I am, it would
be be&s;t for all men (except Lawyers,
who I hope will be contented to
abate &s;omething of their profit, to
&s;erve the common intere&s;t) be&s;t in
point of &s;ecurity, and in profit. One|ly
add this to it, that a Law be made,
that it &s;hall be a barre (as a Fine
with Proclamations,) if it be inrol|led,
&amp; five years pa&s;s with <HI>non-claim</HI>
after the inrolment, and then it will
be a great ea&s;e and advantage to the
publick.</P>
<P>But if it &s;hall not be thought fit to
alter the Law in point of conveyen|cing,
as it is now &s;etled, why then I
&s;hall humbly begge this one boon of
the Parliament, in behalf of the pu|blick?
and that is, that they would
be plea&s;ed to make a Law, that no
<PB N="91" REF="53">
Scrivener, or other per&s;on what&s;o|ever,
other then Lawyers, &s;hall for
the future make or draw any con|veyance
or a&s;&s;urance in Law what|&s;oever,
which &s;hall after happen to
be &s;ealed and delivered, without the
advice of Coun&s;el thereupon had,
either before, or after the a&s;&s;urance
drawn and made, under a good pain
or penalty, if they &s;hall do the con|trarie:
and this will be a means to
prevent, many contentious Suits,
which dayly ari&s;e upon &s;cruples and
que&s;tions out of &s;uch conveyances
drawn according to their formal
ignorance.</P>
<P>The next thing I &s;hall di&s;pute, is
the Law of Ba&s;tardy; wherein I
&s;hall &s;et down this &s;hort doubt.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be a ju&s;t and rea&s;onable
Law, that a Child born before
marriage; and &s;hortly after mar|riage
<PB N="62" REF="54">
happening, &s;hould be a Ba|&s;tard,
or not?</HEAD>
<P>THis is a ca&s;e, in which the
Common-Law differs from
the Civil and Cannon-Laws; the
Common-Law &s;aith, that &s;uch a
Child is a Ba&s;tard, the other Laws,
that it is Legitimate. I &s;hall give
you the rea&s;ons of both &s;ides, and
then you may judge which is mo&s;t
rea&s;onable. This very ca&s;e is de|bated
by <HI>Forte&s;cue, cap.</HI> 39. The Ci|vilians
&s;ay, that <HI>maritagium &s;ub&s;e|quens
tollit peccatum precedens;</HI> that
is, that by means thereof, the State
of Matrimony coming in place, ex|tingui&s;heth
the former &s;in, whereby
el&s;e the Souls of two per&s;ons &s;hould
have peri&s;hed; And it is to be pre|&s;umed,
&s;ay they, that they were at
their fir&s;t copulation &s;o minded, as
the marriage after declareth.</P>
<P><PB N="93" REF="54">
The Canoni&s;ts al&s;o &s;ay, that<HI> Ma|trimonium
&s;ub&s;equens legitimos facit
quod &s;acerdotium.</HI></P>
<P>Say we, the &s;in by the inter-marri|age
is &s;omewhat abated; not purged,
or taken away; &amp; be&s;ides this would
be a great increa&s;e of that &s;in, and
an incouragement to it, if &s;uch Chil|dren
&s;hould be legitimate, and the
parties would be le&s;s penitent, be|cau&s;e
&s;o favoured.</P>
<P>And <HI>Forte&s;cue</HI> being much for our
Law in this point, puts this ca&s;e; &s;aith
he, If a woman &s;hould have two
Children of two Fornicators, &amp; the
one marries her, whether of the&s;e
two children &s;hould be by this Mar|riage
Legitimate?</P>
<P>For my part, I do conceive, un|der
correction of better judgements,
that the Cannon and Civil Laws
are mo&s;t rea&s;onable in this point;
though I do not conceive, that the
<PB N="94" REF="55">
&s;in is purged, or taken away by the
inter-marriage, for that cannot be o|therwi&s;e,
than by true repentance for
the &s;in committed: for which, this
&s;eems to me to be a great &s;ign,
otherwi&s;e I doubt whether they
would have married or no. And I
do conceive it ought to be intended,
that they re&s;olved upon marriage
before, or otherwi&s;e it is not to be
pre&s;umed that they would have
married after: men u&s;ually hate
tho&s;e women they have carnally
known, being pricked in con&s;cience
for the &s;in committed and therefore
not likely to marry &s;uch, unle&s;s there
were &s;ome former tye or obligation
upon them, which mitigates the of|fence,
and makes them perform their
ingagement: and if it were not &s;o,
who in &s;uch ca&s;e would &s;o marry,
knowing his i&s;&s;ue to be Ba&s;tard by
the common Law.</P>
<P><PB N="95" REF="55">
To that that is &s;aid, that it would
be an increa&s;e and incouragement to
commit that &s;in, if the Law &s;hould
be &s;o taken, that the i&s;&s;ue &s;hould in
&s;uch ca&s;e be legitimate.</P>
<P>To this I an&s;wer, that I rather
conceive the contrarie, that it would
very much le&s;&s;en and abate the com|mitting
of that &s;in; for it will make
them the rather e&s;chew it, and take
up re&s;olutions of marriage; for, as
I have &s;aid, men &s;eldom marrie that
woman they have carnally known,
e&s;pecially having i&s;&s;ue before hand,
being the more frightened from it,
by this hard Law of Ba&s;tardy.</P>
<P>For that objection, that if &s;uch i&s;&s;ue
&s;hould be legitimate, the parties
would be le&s;s penitent, becau&s;e &s;o
favoured.</P>
<P>To that I an&s;wer, that certainly it
would make them much more peni|tent,
when they &s;hall live together
<PB N="96" REF="56">
in the &s;tate of Matrimonie; and put
them more in mind of their former
offence, which certainly they would
le&s;s think of were they divided; and I
think a greater &s;ign of penitence can|not
be, than the &s;ub&s;equent Matri|monie.</P>
<P>Be&s;ides, by legitimating of &s;uch
i&s;&s;ue, this great convenience would
follow, that it would much abate
and take off the &s;candal and reproch
of the World, and incourage men
in &s;uch ca&s;e to Matrimonie; whereas
otherwi&s;e they u&s;ually add &s;in to &s;in,
one Ba&s;tard begets more, &s;o that
once having under-gone the reproch
and &s;hame, they never con&s;ider the
&s;in, but are more hardned in it.</P>
<P>For the ca&s;e put by <HI>Forte&s;cue,</HI> of
two Fornicators having got &s;everal
Children by one Woman, and the
one after marrying her, which &s;hall
be legitimate. This I conceive may
<PB N="97" REF="56">
receive a very &s;hort an&s;wer; for if
the party that got the Child be
known, we may ea&s;ily judge which
&s;hall be legitimate.</P>
<P>My Lord <HI>Cook</HI> upon <HI>Litt.</HI> &s;aith,
<HI>fol.</HI> 244. that if the i&s;&s;ue be born
within a Moneth or a day after mar|riage,
between parties of full Law|full
age, the Child is legitimate; by
which we may conclude, that if it be
born &s;o &s;hort a time after marri|age,
that it is legitimate, for cer|tainly
the &s;ame rea&s;on for both.</P>
<P>Now I &s;ay this, that if we may
go &s;o near Ba&s;tardy, and yet be legi|timate,
I know no rea&s;on; that co|ming
&s;o near legitimation, it &s;hould
be a ba&s;tard, and this in favour of le|gitimation.</P>
<P>But be&s;ides, the &s;ins are equal, and
therefore I know no rea&s;on but the
puni&s;hment &s;hould be &s;o too, a day
doth not aggravate the &s;in, why
<PB N="98" REF="57">
then &s;hould a day ba&s;tardi&s;e the
i&s;&s;ue.</P>
<P><HI>Cook </HI>upon<HI> Littleton, </HI>fol.<HI> 245. Ma|trimonium
&s;ub&s;equens legitimos facit
qu&ograve;ad &s;acerdotium, non quoad &s;ucce&s;sio|nem,
propter con&s;ue<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">udinem regni quod
&s;e habet in contrarium.</HI></P>
<P>And therefore at a Parliament
holden,<HI> 20. H. 3. </HI>for that to certifie
upon the Kings Writ, that the Son
born before marriage is a Ba&s;tard,
was<HI> contra commanem formam Ec|cle&s;iae,
rogaverunt omnes Epi&s;copi;
Magnates, ut con&s;entirent, quod nati
ante Matrimonium e&s;&s;ent legitimi,
&s;icut illi, qui nati &s;unt po&s;t Matrimoni|um,
quoad &s;ucce&s;sionem haereditariam,
quia Eccle&s;ia tales habet prolegitima:
Et omnes Comites &amp; Barones una voce
re&s;ponderant, quod nolune leges An|gliae
mutare, quae haec u&s;que u&s;itat<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">e &s;unt
&amp; approbatae.</HI></P>
<P>And I do confe&s;s that the <HI>Statute</HI>
<PB N="99" REF="57">
of <HI>Merton 20. H. 3. cap.</HI> 9. confirmeth
this opinion. Had there been a rea|&s;on
given in this <HI>Statute&punc;</HI> or by the
Lords, to make good the u&s;e and ap|probation;
it had been &s;omewhat to
convince a man of the Ju&s;tice of this
Law, but &s;ince there is none, I hope
that a <HI>nolunt mutare,</HI> &s;hall not make
the Law one whit the more rea&s;ona|ble:
it is not what we will not do, but
what ought to be done that ought to
poize in judgement. Neverthele&s;s,
I &s;ubmit all to graver judgements.
The next thing that I que&s;tion, is;</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether tryal by Jury, as it is now
in u&s;e, be agreeable to rea&s;on, and
for the good of the publick, or not?</HEAD>
<P>WHen I had &s;eriou&s;ly con&s;i|dered
with my &s;elf, how
great a burden lies upon &s;uch mens
&s;houlders, who are of a Jury; and
<PB N="100" REF="58">
of what great importance this way
of Tryal is to all men of this Com|mon-wealth;
the lives and fortunes
of all men being &s;ubject, and lyable
to their verdict and judgement.</P>
<P>And when I had further thought
with my &s;elf, that although this be
the mo&s;t exact and equal way of
Tryal in the World, for men to be
judged by their Peers; and that not
by one or two onely, but by 12 men
of the Neighbour-hood.</P>
<P>And therefore &s;aith my Lord <HI>Cook</HI>
upon <HI>Litt.</HI> 1. a Jurer ought to be
dwelling mo&s;t near to the place
where the que&s;tion is moved; and
&s;uch are pre&s;umed to be be&s;t conu&s;ant
of the matter of fact.</P>
<P N="2">2. He ought to be mo&s;t &s;ufficient
both for under&s;tanding that his igno|rance
may not mi&s;lead him;) &amp; com|petency
of E&s;tate (that he may not
be corrupted through poverty, or ne|ce&s;&s;ity.)</P>
<P N="3"><PB N="101" REF="58">
3. He ought to be lea&s;t &s;u&s;piti|ous,
that is, to be indifferent, as he
&s;tands un&s;worn, and then he is ac|counted
in Law, <HI>Liber &amp; legalis ho|mo;</HI>
otherwi&s;e he may be challenged,
or excepted again&s;t, and not &s;uffered
to be &s;worn.</P>
<P>The mo&s;t u&s;ual way of trial (&s;aith
he) is by twelve &s;uch men (it were
well if they were) for <HI>ad quaestionem
facti non re&s;pondent Judices.</HI> And
matters in Law the Judges ought to
decide, for <HI>ad quae&s;tionem juris non
re&s;pondent Juratores:</HI> and certainly
this is the mo&s;t equal and ju&s;t way
of Trial.</P>
<P>For the In&s;titution and right u&s;e
of this trial by twelve men, and
wherefore other Countreys have
them not, and how this trial excels
others; &s;ee <HI>Forte&s;cue</HI> at large, <HI>cap.</HI> 25
and 29.</P>
<P>Again, the Law hath taken &s;uch
<PB N="102" REF="59">
care for equalitie and right in &s;uch
trials; that the Law hath inflicted a
mo&s;t heavie doom and judgement in
ca&s;e they give a fal&s;e verdict, by
way of Attaint again&s;t the Jurie: for
which you may &s;ee <HI>Cook</HI> upon <HI>Litt.
fol.</HI> <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">94. and <HI>Forte&s;cue, cap.</HI> 26.</P>
<P>Yet for all this, when I again con|&s;ider
what weak and ignorant Juries
are for the mo&s;t part returned, I
cannot &s;ufficiently wonder and la|ment,
that mens lives and fortunes
&s;hould depend upon &s;uch mens ver|dicts.
That &s;uch men (as many of
them are) who have not had &s;o much
good literature, as to be able to
read, &s;hould be Judges and di&s;po&s;ers
(as upon the matter they are) of o|ther
mens lives and e&s;tates.</P>
<P>But here it may be objected by
&s;ome, that the trials are before the
learned Judges of the Law, who may
direct them, and &s;atisfie them in their
<PB N="103" REF="59">
doubts; and therefore there is no
&s;uch fear of inju&s;tice, as is &s;up|po&s;ed.</P>
<P>This I conceive is &s;ufficiently an|&s;wered
before, in that the Law is,
that the Jury are the onely Judges
of matters of fact, and in that, they
may judge according to their own
con&s;cience; and are not bound in
&s;uch ca&s;e, to ask advi&s;e of the Jud|ges,
or if they do, they are not tied
to follow it: nor, in truth, ought the
Judges in &s;uch ca&s;e to direct them,
(though in matter of Law, of which
they indeed are the proper Judges,
they may and ought to do it) their
work is onely truly and faithfully to
repeat the evidence on both &s;ides,
and &s;o to leave it to the Jurie.</P>
<P>My Lord <HI>Cook</HI> &s;aith, that in anci|ent
time they were twelve Knights:
and <HI>Forte&s;cue</HI> &s;aith, that the Juries
are very oft made, &s;pecially in great
<PB N="104" REF="60">
matters of Knights, E&s;quires, <HI>&amp;c.
cap. 29. fol.</HI> 67.</P>
<P>Though this be of as high con&s;e|quence
and concernment to the
publick, as may be, yet I &s;hall not
de&s;ire, that there &s;hould be twelve
Knights, or twelve E&s;quires to eve|ry
Jurie; for &s;o in defect of them,
there would be often a failer of ju|&s;tice;
and be&s;ides, &s;ome ca&s;es are &s;o
&s;mall and incon&s;iderable in them|&s;elves,
that a mean and ordinary Ju|rie,
may be &s;ufficient for that pur|po&s;e.</P>
<P>But this I &s;hall humbly de&s;ire,
that in all ca&s;es which touch a mans
life, or his e&s;tate, to any con&s;idera|ble
value, there may be twelve able
under&s;tanding Gentlemen returned
of the Jurie, &s;uch as are known in
their Countrey to be men of com|petent
worth for &s;o great an im|ployment.
This would very much
<PB N="105" REF="60">
advance right, and determin di&s;putes
and controver&s;ies; which now fre|quently
are again revived, by rea&s;on
of the verdicts of weak and unable
Juries. And it were happie for the
publick, if an Act were made to that
purpo&s;e. The next thing I &s;hall
di&s;cu&s;s, is the lo&s;s of life in ca&s;e of
Theft, and the forfeiture thereupon.
In which the que&s;tion is,</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be con&s;onant to the word
of God, or rea&s;on, that a man
&s;hould lo&s;e his life for Theft, and
&s;hould incur &s;o great a forfeiture
and penaltie as lo&s;s of all his estate,
and corruption of his bloud?</HEAD>
<P>IT is true, there is a commandment
again&s;t it, <HI>Thou &s;halt not &s;teal:</HI> but
there is no penaltie inflicted upon
tho&s;e that do. But by the Judicial
Law, <HI>Exod. 22. ver&s;.</HI> 1. If a man
<PB N="106" REF="61">
&s;teal an Ox or a Sheep, and kill it,
or &s;ell it, he &s;hall re&s;tore five Oxen
for the Ox, and four Sheep for the
Sheep: and <HI>ver&s;.</HI> 4. If the theft be
found with him alive (whether it be
Ox or A&s;s, or Sheep) he &s;hall re&s;tore
the double. So that by that Law,
there ought to be a re&s;titution, but
no life was then in danger. But to
this it will be &s;aid, that that Law was
given to the Jews onely to ob&s;erve,
and doth not extend to us. To this
I &s;ay, that had it been an equal and
ju&s;t Law to &s;uffer death in &s;uch ca&s;e,
without doubt it had been impo&s;ed
upon them to ob&s;erve; for in the
Chapter before, Murder is made
Death; life for life, that is equal pu|ni&s;hment:
but life for any wordly
or temporal &s;ub&s;tance what&s;oever,
holds not the lea&s;t equalitie of pro|portion;
for one mans life is of great|er
value and e&s;teem, than all the
<PB N="107" REF="61">
trea&s;ure upon the earth.</P>
<P>Man is the image of God, and
therefore certainly we ought to deal
tenderly with his image. And if
God who hath the &s;ole ab&s;olute
power and dominion over all his
creatures, thought not fit to give the
Magi&s;trate, who is his Vicegerent
here upon earth, &s;uch power over
the lives of men, but hath re&s;erved
it to him&s;elf (except in ca&s;e of mur|der)
how dare then any power or au|thoritie
what &s;oever u&s;urp it?</P>
<P>The Civil Law (if we may believe
<HI>Forte&s;cue</HI>) is more agreeable to the
Word of God, for he &s;aith, <HI>cap.</HI> 49.
that the Civil Laws do judge <HI>open
Theft</HI> to be &s;atisfied by the recom|pence
of four fold, and <HI>private Theft</HI>
by the recompence of double: &s;o not
to &s;uffer death by their Law.</P>
<P>I do not write this to incourage
men in this heinous crime (which is
<PB N="108" REF="62">
too too common in the&s;e times) no,
far be it from me &s;o to do; for I
know if there be not a &s;evere Law
again&s;t it, there will be no injoying
any thing that a man hath; the Law
of propertie will be of little force;
But that there may be &s;ome other
way of puni&s;hment, as by Bani&s;h|ment,
&s;lavery, or the like, which may
be as effectual to terrifie men, &amp; keep
them from it; &s;o that we do not take
away the life of man, over which
there is no juri&s;diction given in &s;uch
ca&s;e by God; we having no precept,
rule, or warrant for it.</P>
<P>And now to me, the forfeiture
and penaltie in &s;uch ca&s;e, is no le&s;s
unrea&s;onable, is it not too much to
lo&s;e the life? and yet will not that
&s;atisfie; but thereby al&s;o his bloud
be corrupted; and all his e&s;tate for|feited;
&s;o that his i&s;&s;ue is not inheri|table
to him; nor to any other ance|&s;tor;
<PB N="109" REF="62">
nor can this corruption of bloud
(it is &s;o high) be re&s;tored otherwi&s;e,
than by Act of Parliament. And if
he were Noble or Gentle before, he
and all his children and po&s;teritie,
are by this made ba&s;e and ignoble,
in re&s;pect of any Nobilitie or
Gentrie which they had by their
birth.</P>
<P>For my part, I think there cannot
be a more rigid and tyrannical Law
in the world, that the children
&s;hould thus extreamly &s;uffer for the
crime and wickedne&s;s of the Fa|ther;
the innocent for the nocent.</P>
<P>It is true, that as the Apo&s;tle &s;aith
<HI>Rom.</HI> 5. that by one man &s;in entered
into the World, and death by &s;in;
but he goes further, and &s;o death
went over all men, in whom all men
have &s;inned. We all &s;inned in <HI>Adam,</HI>
therefore no wonder if death fall up|on
all.</P>
<P><PB N="100" REF="63">
God hath the &s;upream Soveraign
power over all his creatures, and &s;o
may inflict what puni&s;hment he plea|&s;eth
upon them for their &s;ins, &amp; who
dares que&s;tion it, or &s;ay it is unju&s;t?
and yet God deals not thus &s;everely
with man; for in the 18. of <HI>Ezek.</HI> he
reproveth the <HI>I&s;raelites</HI> for u&s;ing this
Proverb.</P>
<P><HI>The Fathers have eaten &s;owr grapes,
and the childrens teeth are &s;et on edge;</HI>and &s;aith, they &s;hall u&s;e it no more:
for<HI> that Soul that &s;inneth, it &s;hall die;</HI>and after<HI> ver&s;e </HI>the<HI> 20. The &s;ame Soul
that &s;inneth, &s;hall die; the Son &s;hall not
bear the iniquity of the Father, </HI>&amp;c.
Thus you may &s;ee the great mercie
of God, who&s;e greate&s;t &s;everity were
but Ju&s;tice.</P>
<P>Doth not this extreamly condemn
the inju&s;tice of that Law&punc; which &s;o
&s;everely puni&s;heth the Children for
the tran&s;gre&s;&s;ion of the Father, a
<PB N="111" REF="63">
wicked Father may have a good
Child, and &s;hall &s;uch a one be ruined
through the wickedne&s;s of the Fa|ther:
his E&s;tate wholly lo&s;t, and not
onely disinherited through his cor|ruption
of bloud, as to his Fathers
E&s;tate, but al&s;o made incapable of
taking any thing by de&s;cent from any
other Ance&s;tor? a more rigorous
Law certainly was never made.</P>
<P>But I know it will be &s;aid, that the
rea&s;on of the &s;everity of this Law, is
the more to deterre and affrighten
men from this &s;in, which is &s;o fre|quent
among&s;t us; <HI>ut metus ad <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">m|nes,
paena ad paucos,</HI> &amp;c.</P>
<P>To this I an&s;wer, that it is not
Lawfull nor warrantable, for men
to make unju&s;t and tyrannical Laws
to keep men from &s;inning; and to
put them in execution: puni&s;h the
offending Father, but not the inno|cent
Children.</P>
<P><PB N="112" REF="64">
The cu&s;tom of Gavel-kind is more
rea&s;onable, for though the Father be
hanged, the Son &s;hall inherit; for the
Cu&s;tom is, the Father to the bough,
the Son to the plough. I &s;hall con|clude
it with this, that I hope one
day to &s;ee this Cu&s;tom become the
Common-Law of <HI>England:</HI> the next
thing I have in con&s;ideration, is,
touching the debts of Infants under
the age of 21 years; and therein I
propo&s;e this que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be a ju&s;t and rea&s;onable
Law, that Infants under the age of
21 years, &s;hall not be charged with
their debts?</HEAD>
<P>FIr&s;t, we are to know what the age
of di&s;cretion is for Man or Wo|man?
What full age? The age of di&s;|cretion
for a woman in judgement of
our Law is 12. for a man 14. full age
<PB N="113" REF="64">
is 21. and under that age they are
&s;aid to be Infants in Law, and un|der
that age they have not power to
di&s;po&s;e of their E&s;tates, not are they
liable to pay their own debts; It is
true, that for nece&s;&s;aries, as Cloaths,
Dyet, Schooling, &amp; the like, they are
liable, but for tho&s;e neither they can|not
give a penal bond, a Bill they
may, and it &s;hall bind them. In ge|neral,
an Infant may better his condi|tion,
he can not make it wor&s;e; this I
confe&s;s to be Law, yet it &s;eems very
hard to me, that an Infant &s;hould not
be liable to pay &s;uch debts, as he &s;hall
ow for any thing had, or received af|ter
the age of di&s;cretion; e&s;pecially,
when I con&s;ider what the Law is in
other ca&s;es of Infancy.</P>
<P>By cu&s;tom, he may make a lea&s;e at
his age of 15. and it &s;hall bind him.
<HI>Cook</HI> upon <HI>Littleton</HI> fol. 45. <HI>b.</HI> Nay
further, by cu&s;tom he may make a
<PB N="114" REF="65">
Feoffement at 15. years, 5. <HI>H.</HI> 7. 41.
11. <HI>H.</HI> 4. 33. Now no cu&s;tom is Law|full,
that is not rea&s;onable.</P>
<P>And yet further, an Infant of the
age of di&s;cretion, nay under, may &s;uf|fer
death for Murder, or Theft, no|thing
more common. 3. <HI>H.</HI> 7. 12. an
Infant betwixt 10. and 12. gave a
man &s;everal wounds till he died, and
then he drew the body into the
Corn; forwhich he was convicted?
but it is true, that judgement in that
ca&s;e was re&s;pited for his tender age,
but many Ju&s;tices that he was wor|thy
of death.</P>
<P>Note, an Infant of 9. years killed
another, and it was adjudged, that he
&s;hould be hanged, <HI>quia malitia &s;up|plet
aetatem.</HI> But execution was re|&s;pited
to have pardon; &s;ee the <HI>A&s;si&s;es.</HI></P>
<P>A Woman Infant within age kil|led
her Mi&s;tris, and was burnt for it,
&s;ee likewi&s;e the <HI>A&s;si&s;es.</HI></P>
<P><PB N="115" REF="65">
Again, an Infant &s;hall not avoid a
marriage at the age of di&s;cretion,
made, and contracted by him. <HI>Cook</HI>
upon <HI>Litt.</HI> fol. 79.</P>
<P>Now I argue thus; if an Infant may
do the greater, why is it not rea&s;on
that he &s;hould do the le&s;s? If he may
be chargeable for things of a much
higher nature, why not for tho&s;e that
are of a lower? By cu&s;tom he may
&s;ell his E&s;tate; By Law, he may &s;uf|fer
death for Felony: and may con|tract
Matrimonie; things of much
greater con&s;equence to him&s;elf: why
then in rea&s;on &s;hould he not be liable
to the payment of his debts? my
Lord <HI>Gook</HI> &s;aith, that <HI>argumentum a
majori ad minus,</HI> an argument from
the greater to the le&s;s, is a good ar|gument
in Law.</P>
<P>Be&s;ides, he is as much obliged in
rea&s;on and con&s;cience, to pay his
debts, as a man of full age, why then
<PB N="116" REF="66">
the Law &s;hould not tie him to it,
I know no rea&s;on: I mean for
debts contracted after the age of di|&s;cretion:
and if the Law then judges
him to be di&s;creet, why &s;hould it
not make him ju&s;t &amp; hone&s;t. Men of
them&s;elves naturally are too prone
to inju&s;tice and unrighteous dealing
one with another, therefore very un|fit
that they &s;hould receive the lea&s;t
incouragement to it.</P>
<P>How frequent a thing is it for
men in &s;uch ca&s;e, to take the advan|tage
of infancy; and mo&s;t unju&s;tly to
cou&s;en their creditors of their ju&s;t
debts, which in con&s;cience they are
bound to &s;atisfie.</P>
<P>But here it will be objected, that
it is the creditours fault to tru&s;t &s;uch
a one who is under age, and there|fore
if he &s;uffer, he may thank him|&s;elf.</P>
<P>To this I an&s;wer, that though the
<PB N="117" REF="66">
ignorance of Law will not excu&s;e a
man, the ignorance of fact will, and
how a man &s;hould know &s;uch a one
to be an Infant, &s;ince many, nay
mo&s;t men may, and do deceive their
Judges by their looks; I cannot think
or imagine. And he that &s;hall in|quire
his cu&s;tomers age, may &s;it &s;till
in his &s;hop and blow his fingers, for
any thing el&s;e that he &s;hall have to
do. I &s;hall &s;ay no more but this,
that certainly, that Law is mo&s;t ju&s;t,
that gives the lea&s;t Liberty or ad|vantage
of fraud or deceit to men.
The next thing I &s;hall &s;peak of, and
in that I &s;hall be very &s;hort, is, <HI>Cler|gy,</HI>
and in that I &s;hall propound this
&s;hort que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether Clergy be agreeable to rea&s;on,
and Ju&s;tice, or no?</HEAD>
<P>CLergy is, when a man is convi|cted
of Man-&s;laughter, or any
<PB N="118" REF="67">
other crime or offence, for which he
may have his Book, and thereupon
prayes his Clergy, that is, that he
may have his Book, which being
granted, the Ordinary, being a Cler|gy
man, and heretofore in &s;tead of
the Bi&s;hop who is the Ordinary,
opens the Book, and turns him to
a place to read, and reading, the
Court demands whether he reads as
a Clerk, if the ordinarie &s;aith that
he doth, he &s;aves his life by it, and
is onely burnt in the hand.</P>
<P>We mu&s;t know, that the Original
of this u&s;e of Clergy, was at that
time when the World was in its Mi|nority;
I mean this little World, and
there were but few Clerks, or learned
men; and then in favour, and for in|couragement
of learning, as al&s;o for
&s;upply of places which were de&s;ti|tute
of men of &s;uch abilities, this
Law or Priviledge of Clergy was in|vented
<PB N="119" REF="67">
and approved of for &s;aving
of &s;uch mens lives in &s;ome ca&s;es, for
the rea&s;ons afore&s;aid; and this was
the rea&s;on that Women could not
have their Book, becau&s;e they could
not be Clerks.</P>
<P>Now I would fain know of any
one, whether the cau&s;e, or rea&s;on of
the making of this Law holds to this
day or not? if it doth not, what
rea&s;on can there be to continue it?
for the rule of Law is, <HI>Ce&s;&s;ante caus&acirc;,
ce&s;&s;at effectus,</HI> the cau&s;e cea&s;ing, the
effect likewi&s;e cea&s;eth. And that it
doth not, nothing more evident, for
certainly (God be thanked for it)
<HI>England</HI> never more abounded with
learned men, than it doth now: and
therefore no want of &s;uch Clerks as
they are.</P>
<P>That this Law &s;tands not with
rea&s;on, I &s;hall offer the&s;e things to
con&s;ideration; fir&s;t, the &s;lightne&s;s
<PB N="120" REF="68">
and incon&s;iderablene&s;s (e&s;pecially as
the ca&s;e &s;tands now) of the thing it
&s;elf, that reading of a line or two
&s;hould &s;ave a mans life; by which
the crime is no way an&s;wered or &s;a|tisfied
for. Secondly, it may prove
very unju&s;t, for if &s;everal men be
convicted of one and the &s;ame of|fence,
one may happily read, the
other not, &s;o that the one &s;hall there|by
&s;ave his life, and the other &s;uffer;
which cannot &s;tand with Ju&s;tice.
But where they are both equally
guiltie, and &s;o have de&s;erved death;
yet to pardon one may be ju&s;t, for
that the one may have been a more
notorious offender than the other,
and &s;o not de&s;erving the lea&s;t fa|vour,
but for one to have power to
&s;ave him&s;elf, and not the other, that
I judge very hard and unrea&s;onable.
La&s;tly, (if there were rea&s;on in the
thing it &s;elf) the difficultie of the
<PB N="121" REF="68">
Tongue, and in many places, the
Character being an old Letter too,
and &s;o hard to be read, makes it very
unrea&s;onable. So that I may &s;afely
&s;ay, were it not through the favour
of the Court, not one of twentie
could &s;ave their lives by reading.</P>
<P>Since therefore there is no ground
for the continuance of this Law (as
there is not for any that wants rea|&s;on
for the &s;upport of it) I think it
were better in &s;uch ca&s;es, where Cler|gy
is allowable, that they &s;hould be
onely burnt in the hand, as women
are, and &s;o &s;et at Liberty; which ne|verthele&s;s
I &s;ubmit to graver judge|ments.
The next I &s;hall write of is
the di&s;tinction in Law, betwixt Mur|der
and Man-&s;laughter; and therein
put this &s;hort que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether the Law, that a man
&s;hall not &s;uffer death for Man|&s;laughter
<PB N="122" REF="69">
be not again&s;t the word
of God?</HEAD>
<P>THe di&s;tinction in Law betwixt
Murder and Man-&s;laughter, is
thus; Murder is, when one is &s;lain
with a mans will, and with malice
prepen&s;ed or fore-thought: as where
two falling out one day, appoint the
field the next day, and then meet ac|cording,
and one of them is &s;lain, this
is Murder in the other; being done
premeditatedly &amp; upon cool bloud;
and for this a man &s;hall not have his
Clergy, but &s;hall &s;uffer death.</P>
<P>Homicide, or Man-&s;laughter, as it
is legally taken, is when one is &s;lain
with a mans will, but not with ma|lice
prepen&s;ed; as where two being
together fall out, and both draw up|on
each other, and one kils the other,
this being done upon hot bloud, is
but Man-&s;laughter, for which he
<PB N="123" REF="69">
&s;hall have his Clergy, and &s;ave his
life.</P>
<P>Now, how this di&s;tinction &s;tands
with the word of God, that we are
to con&s;ider, by the Judicial Law;
<HI>Exod.</HI> 21. 12. He that &s;miteth a man,
and he die, &s;hall die the death. And
<HI>Numb. 35. ver&s;.</HI> 16. And if one &s;mite
another with an in&s;trument of iron
(or with a &s;tone, or other in&s;trument,
as is &s;aid in the ver&s;es following) that
he die, he is a Murtherer, and the
Murtherer &s;hall die the death, &s;aith
the Marginal Notes, wittingly and
willingly; and certainly in the ca&s;e
of Man-&s;laughter, the man is wit|tingly
and willingly killed. I could
cite many other places to the &s;ame
purpo&s;e, but the&s;e are &s;ufficient.</P>
<P>Now in the&s;e places it is &s;aid, that
he that kils another &s;hall die the
death; here is no &s;uch qualification,
or di&s;tinction, as Murder and Man|&s;laughter.</P>
<P><PB N="124" REF="70">
It is true that where a man kills an|other
unawares, <HI>per infortunium,</HI> as
we &s;ay in Law, which we call Chance|meddly;
in &s;uch ca&s;e, becau&s;e it was
not done with his will, it plea&s;ed
God in mercy, to provide &s;anctua|ries,
or Cities of refuge, for &s;uch of|fenders,
to flee unto to &s;ave their
lives; and the onely puni&s;hment was,
that they were to continue there un|to
the death of the High-Prie&s;t.</P>
<P>So in our law where one is &s;lain ca|&s;ually
and by mi&s;adventure, without
the will of him that doth the Act,
he &s;hall not die for it, but in&s;tead of
the Cities of refuge afore&s;aid, (that
he may not go altogether unpuni&s;h|ed,
who was the cau&s;e of anothers
death,) he forfeits all his goods and
Chattels for it.</P>
<P>It is plain and evident therefore
by the word of God, that he that
wilfully killeth another, &s;hall &s;uffer
<PB N="125" REF="70">
death for it, whether it were in hot,
or cool bloud, it differs not: How
then can that Law be ju&s;t (be it upon
what politick principles &s;oever) that
&s;aves the life of &s;uch an offender?
other &s;atisfaction can be none, and if
God requires that, how dare we do
the contrarie? He that killeth a man
in heat of bloud, de&s;erves to be
hanged when it is cool.</P>
<P>And it is a &s;ad and dolefull thing
to con&s;ider, how many thou&s;ands of
lives this Law hath taken away; by
incouraging others to commit the
&s;ame offence, con&s;idering their lives
were not in danger. I &s;hall conclude
it, with that in the <HI>Numb. cap. 35.
ver&s;.</HI> 33. bloud defileth the land: and
the land cannot be clean&s;ed of the
bloud that is &s;hed therein, but by the
bloud of him that &s;hed it. The next
thing that comes in con&s;ideration, is
concerning Coun&s;el in Trea&s;on or
<PB N="126" REF="71">
Felony; and in that I &s;hall propound
this &s;hort que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be a rea&s;onable Law, that
a man &s;hall not have Coun&s;el upon
an Indictment of Trea&s;on or Fe|lony?</HEAD>
<P>THat the Law is &s;uch, it is ad|mitted,
and without di&s;pute;
and the rea&s;on that is given for it, is,
that the Indictment being heretofore
at the Suit of the King, the King in|tended
nothing but Ju&s;tice with fa|vour;
and therefore he would be con|tented
that the Ju&s;tices &s;hould help
forth the parties as far as rea&s;on and
Ju&s;tice may &s;uffer; and that in all
things that pertain to the form of
pleading, the Judges &s;hall &s;o in&s;truct
the parties, that they incurre no
damage thereby.</P>
<P>This rea&s;on at the fir&s;t a&s;pect,
<PB N="127" REF="71">
&s;eems very plau&s;ible; but better
dived into, I doubt it will not appear
&s;o. Do not we know, that though
the Judges were &s;worn to do right
between the King and his people;
that yet they were the more imme|diate
Coun&s;el of the King? and
though a poor man might happily
find Ju&s;tice, as having nothing but a
life to lo&s;e, I doubt, it did not always
fare &s;o with the rich? And therefore,
heretofore, when any Gentleman had
committed any crime for which his
life was in danger, it was u&s;ual to in|quire
in the fir&s;t place, what E&s;tate
he had, and if it was an&s;wered, a good
E&s;tate, it was thereupon replied, that
is enough to hang him. Then he had
no &s;ooner committed the offence,
but his E&s;tate was begged of the
King by &s;ome great Courtier, and
what relation there was then be|tween
the Judges and the Court, we
<PB N="128" REF="72">
very well know, but to &s;ay no more
but this, &s;uppo&s;e it &s;hall &s;o fall out,
that the Judge be a weak ignorant
man him&s;elf, before whom the Tryal
is, (as we have not been wanting of
the like experience in our age) who
then &s;hall advi&s;e the Pri&s;oner? is
not this then a ca&s;e of great extre|mity
and inju&s;tice?</P>
<P>To conclude, in the mo&s;t petty,
ordinary, and incon&s;iderable action
that is, the Law allowes a man coun|&s;el;
why then &s;hould it be denied
him in a ca&s;e of the highe&s;t concern|ment
to him that can be, his life?
If he &s;hall have Coun&s;el in le&s;&s;er
things, why not in greater, where
there is mo&s;t need of it? we &s;ay, that
life is one of the Laws Favourites,
but it is not &s;o dealt withall in this
ca&s;e; but now the Court is gone, I
hope this Law will in time be alter|ed.
The next thing to be con&s;idered
<PB N="129" REF="72">
is, actions for Slanderous words, in
which I make this que&s;tion;</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether actions for Slanderous words,
being meer contentious Suits, ought
in rea&s;on or con&s;cience to be &s;o much
countenanced, as they are?</HEAD>
<P>NEver did the&s;e actions more
abound, to the great and intol|lerable
vexation of the people than
they do now. And it were to be wi&s;h|ed
(and certainly never in a better
time than now) that the greate&s;t part
of them were &s;uppre&s;&s;ed, that words
onely of brangle, heat, and choler,
might not be &s;o much as mentioned
in tho&s;e High &amp; Honourable Courts
of Ju&s;tice. For I profe&s;s for my part,
I judge of them as a great di&s;honour
to the Law, and the Profe&s;&s;ors there|of;
e&s;pecially when I con&s;ider, that
they are u&s;ed onely to promote the
<PB N="130" REF="73">
malice, and vent the &s;pleen of pri|vate
jarres, and di&s;contents among&s;t
men.</P>
<P>Yet I do not condemn all actions
for words neither, for it is ju&s;t and
equal, that where a mans life, lively|hood,
or reputation (which is dearer
and nearer to him than the former)
is much prejudiced and indangered
by &s;uch &s;candals, that in &s;uch ca&s;e
the Offender &s;hould be inforced by
action to make compen&s;ation. But
that a man &s;hould flee to the Law
out of malice, and make the Courts
of Ju&s;tice maintainers of every &s;mall
and vain brabble, this &s;eems to me
utterly unlawfull and intollerable
among&s;t Chri&s;tians.</P>
<P>I cannot but take notice of that
which <HI>Wray,</HI> Chief Ju&s;tice &s;aid in
<HI>Cooks</HI> 4. Book, That though &s;lan|ders
and fal&s;e imputations are to be
repre&s;&s;ed, becau&s;e that oftentimes <HI>&agrave;



<PB N="131" REF="73">
verbis ad verbera perventum e&s;t,</HI> men
fall from words to blows. Yet he
&s;aith, that the Judges have re&s;olved,
that actions for &s;candals &s;hould not
be maintained, by any &s;trained con|&s;truction
or argument, nor any fa|vour
extended for &s;upportation of
them; And he adds the rea&s;on of it,
becau&s;e they do abound more in
the&s;e dayes, than in times pa&s;t, and
the intemperance and malice of men
increa&s;es; <HI>Et malitiis hominum e&s;t
obviandum;</HI> and further adds, that in
our old books, actions for &s;candals
are very rare, &amp; &s;uch as are brought,
are for words of eminent &s;lander, and
of great <GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">portance.</P>
<P>This mu&s;t needs be acknowledged
to be a mo&s;t exact and true ob&s;er|vation;
for, if I mi&s;count not I find
but nine reported ca&s;es for words
from <HI>E.</HI> 3. time, (in which they be|gan)
to Q. <HI>Eli&s;.</HI> and then they ex|treamly
<PB N="132" REF="74">
multiplied, and &s;o have done
ever &s;ince, to the great &s;hame and
di&s;honour of the Law.</P>
<P>And certainly the&s;e are very much
again&s;t religion and peaceable con|ver&s;ation
among&s;t men.</P>
<P>And how much doth S. <HI>Paul</HI> in all
of his Epi&s;tles decry, and labour to
depre&s;s as much as po&s;&s;ibly may be,
all vain brabbles, &s;trifes, debates, and
contentions, which tend to the di|&s;turbance
of the Common-peace?
and I am confident nothing more
tending that way, than &s;uch idle, fri|volous
actions as the&s;e are; and to
tho&s;e that go to Law for &s;candalous
words (except in extra<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters">inarie ca|&s;es)
a man may ju&s;tly u&s;e the words
of the Apo&s;tle, that it is &s;o, that
there is not a wi&s;e man among them.</P>
<P>And it were to be wi&s;hed, that men
would be more carefull of the ma|nagement
of this little, yet unruly
<PB N="133" REF="74">
member, in which is &s;eated either
heaven or hell; this is that which of|ten
proves the greate&s;t good, or the
greate&s;t evil to mo&s;t men: which cau|&s;es
di&s;&s;entions among&s;t men in Fa|milies,
Kingdoms, and Common|wealths;
wherefore I could wi&s;h, that
every man would take up the &s;aying
of the Prophet <HI>David,</HI> and careful|ly
ob&s;erve it; I will take heed to my
wayes, that I offend not with my
tongue; I will keep my mouth as
with a bridle.</P>
<P>But now I be&s;eech you, give me
leave, and I &s;hall in a word inform
you how the&s;e frivolous contentious
actions may be very much abated, if
not wholly taken away: Let no words
be actionable, which do appear to
have been &s;poken in choller and pa&s;|&s;ion;
or if actionable, yet let the
Plaintiff recover no more in damage,
than he can upon Oath make appear,
<PB N="134" REF="75">
that he was really and actually dam|nified
by the &s;peaking of them, and
if this were provided by Act of Par|liament,
the&s;e actions would be as
&s;trange, and as rarely brought for
time to come, as they were in former
ages; for nothing incourages the
bringing of them more, than the in|tollerable,
unju&s;t, and exce&s;&s;ive da|mages
u&s;ually recovered by them.
I &s;hall conclude with this; Though
the tongues of men be &s;et on fire, I
know no rea&s;on wherefore the Law
&s;hould be u&s;ed as bellows to blow
the coals. The next thing that I am
to con&s;ider, is concerning actions that
die with the per&s;on; and therein the
que&s;tion is in &s;hort but this.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether it be a rea&s;onable Law that
actions &s;hould die with the per&s;on?</HEAD>
<P>THe rule is <HI>Actio moritur cum
per&s;ona;</HI> now what tho&s;e a|ctions
<PB N="135" REF="75">
are that &s;hall die with the per|&s;on
is the thing to be inquired into,
and fir&s;t negatively, <HI>Quicquid oritur
ex contractu vel conventione non mo|ritur
cum per&s;ona,</HI> what&s;oever ari&s;es
by way of Covenant or contract
doth not die with the per&s;on. Affir|matively
all actions that are &s;aid in
Law to be meerly per&s;onal, as Tre&s;|pas,
debts upon &s;imple contract, Bat|tery,
Words, Debts upon an e&s;cape
again&s;t a Keeper of a pri&s;on, <HI>&amp;c.</HI> and
&s;uch in Law die with the per&s;on, and
no action can be brought again&s;t the
Executors.</P>
<P>This &s;eems to me to be a very hard
Law, and a failer of Ju&s;tice, that I
&s;hould &s;uffer again&s;t Law, and that
the death of him that doth the
wrong, there being no Act or default
in me, &s;hould take away my remedy.</P>
<P>It is true that the Law in ca&s;e of a
Bond, Covenant, or the like, binds
<PB N="136" REF="76">
the Executor, though he be not
named; and what is the rea&s;on? be|cau&s;e
the Executor repre&s;ents the
per&s;on of the Te&s;tator; why then,
upon the &s;ame rea&s;on, &s;hould not a
per&s;onal tort of the Te&s;tators, as
well bind the Executor?</P>
<P>Be&s;ides, it is a rule in Law, that
the Act of God, (as it is here in ca&s;e
of death) &s;hall prejudice no man;
why then in &s;uch ca&s;e &s;hould it take
away my action?</P>
<P>Again, there is another rule in Law,
that <HI>Lex non debet deficere conqueren|tibus
in Ju&s;titia exhibenda;</HI> the Law
ought not to be defective in exhi|biting
Ju&s;tice to complainants. But
in this ca&s;e, the Law is defective in
ju&s;tice, if the inevitable fate of death
&s;hall take away my action.</P>
<P>There is likewi&s;e another rule in
Law, that <HI>Lex nulli facit injuriam,</HI>
the Law injures no man; but I &s;ay in
<PB N="137" REF="76">
this ca&s;e, it injures me, if it deprives
me of my action by the death of the
per&s;on. In Fine, where ever there is
a damage, there ought, in rea&s;on, to
be a &s;atisfaction for it, which ought
not to be taken away or otherwi&s;e
di&s;charged, but by my Act that am
damnified, which I &s;ubmit to judge|ment.
The next thing that I &s;hall
debate, is concerning <HI>Paine fort &amp;
dure,</HI> and in that propound this que|&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<HEAD>Whether the Law or Judgement of
penance, or <HI>pain fort &amp; dure,</HI>
again&s;t a man, who is indicted of
Felony, and &s;tands Mute, be agree|able
to rea&s;on and con&s;cience, or
not?</HEAD>
<P>THis Law or Judgement of pe|nance,
or <HI>pain fort &amp; dure;</HI>
is that which we commonly call
<PB N="138" REF="77">
pre&s;&s;ing to death; which is u&s;ed in
&s;uch ca&s;e, where a man is indicted
of Felony, upon matter evident and
proveable (for in ca&s;e of an Appeal,
this Judgement cannot be given nor
doth it hold in ca&s;e of Trea&s;on, or
petit Larceny) and thereupon &s;tands
Mute; in &s;uch ca&s;e, &s;aith the <HI>Statut<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"></HI>
of <HI>We&s;tmin&s;t. 1. cap. 12. &s;olent mi&s;es
en la pri&s;on fort &amp; dure&punc; &amp;c.</HI> that is
they &s;hall have &s;trong and hard im|pri&s;onment.</P>
<P>By the way I &s;hall here ob&s;erve,
that the words of this Law do not
extent to pain, but onely to <HI>fort &amp;
dure,</HI> to hard and &s;trong impri&s;on|ment,
and therefore &s;ince that Law,
I cannot under&s;tand the ground or
rea&s;on of that cruel and heavy judge|ment
which is given in &s;uch ca&s;es;
hard and &s;trong impri&s;onment may
be inflicted upon &s;uch an offender
(according to that Law) without
<PB N="139" REF="77">
pre&s;&s;ing, and &s;tarving to death by
famine and cold; nor can I conceive
tho&s;e words to extend to death&punc; but
admitring the Law were &s;uch.</P>
<P>I &s;hall, (that all may under&s;tand
the rea&s;on of the Law,) before I go
any further, let you know, what it is
to &s;tand Mute&punc; and in what ca&s;e a
man may be &s;aid to &s;tand Mute; and
what the Judgement thereupon is.</P>
<P>My Lord <HI>Cook</HI> in his 2 part of his
In&s;titutes, <HI>fol.</HI> 177. upon the fore|&s;aid
<HI>Statute,</HI> &s;aith, that a man may
&s;tand Mute two manner of wayes;
Fir&s;t, when he &s;tands Mute without
&s;peaking of any thing, and then it
&s;hall be inquired, whether he &s;tood
Mute of malice, or by the Act of
God, if it be found by the Act of
God, then to proceed, and the Judges
to make inquiry and to allow him all
pleas, as if he had not &s;tood Mute.</P>
<P>And the words (of malice) are re|markable,
<PB N="140" REF="78">
for it may be, the pri&s;oner
in truth cannot &s;peak, and yet being
not Mute by the Act of God, he &s;hall
be forthwith put to his penance; as
if the Delinquent cut out his own
Tongue, and thereby become Mute.</P>
<P>Another kind of Mute is, when the
pri&s;oner can &s;peak, &amp; perhaps pleads
<HI>Not guilty,</HI> or pleads a plea in Law,
and will not conclude to the enque&s;t,
according to the fore&s;aid Act, or
&s;peaks much, but doth not directly
an&s;wer, <HI>&amp;c.</HI> to be &s;hort, when in the
end he will not put him&s;elf upon the
enque&s;t, that is, <HI>De bono &amp; malo,</HI> to be
tried by God &amp; the Countrey; then
the fore&s;aid Act is &s;ufficient warrant,
if the cau&s;e be evident, or probable,
to put him to his penance; but if he
demurre in Law, and it be adjudged
again&s;t him, he &s;hall have judgement
to be hanged; &s;o if he challenge
above the number of 36. he &s;hall be
<PB N="141" REF="78">
hanged, and not have <HI>Pain fort &amp;
dure.</HI></P>
<P>I &s;hall not inquire what the Com|mon
Law was before the making the
&s;aid <HI>Statute,</HI> whether the pri&s;oner
then &s;tading Mute &s;hould be hanged,
as &s;ome held, and as at this day it is,
in ca&s;e of high Trea&s;on, and, as they
&s;ay, in ca&s;e of appeal; or whether
then in favour of life he &s;hould nei|ther
have <HI>Pain fort &amp; dure,</HI> nor have
judgement to be hanged, but to be
remanded to pri&s;on, untill he would
an&s;wer, according to others.</P>
<P>But the fir&s;t thing I &s;hall con&s;ider,
is, what the judgement, which the
fore&s;aid Act calleth <HI>fort &amp; dure,</HI> is,
and then what the rea&s;on &s;hould be,
that &s;o &s;evere a judgement is given
in that ca&s;e; and then we may ea&s;ily
judge, whether it be con&s;onant to rea|&s;on
and con&s;cience?</P>
<P>The judgement is, that the Man
<PB N="142" REF="79">
or Woman &s;hall be remanded to the
pri&s;on, and laid there in &s;ome low
and dark hou&s;e, where they &s;hall lie
naked on the bare earth without any
litter, ru&s;hes, or other clothing, and
without any garment about them,
but &s;omething to cover their pri|vy
parts, and that they &s;hall lie
upon their backs, their heads unco|vered
and their feet, and one arm
&s;hall be drawn to one quarter of the
hou&s;e with a cord, and the other arm
to another quarter, and in the &s;ame
manner &s;hall be done with their legs,
and there &s;hall be laid upon their bo|dies
iron and &s;tone, &s;o much as they
may bear, and more, and the next
day following, they &s;hall have three
mor&s;els of Barley bread, without any
drink, and the &s;econd day they &s;hall
drink thrice of the water that is next
to the hou&s;e of the pri&s;on (except
running water) without any bread,
<PB N="143" REF="79">
and this, &s;hall be their dyet untill they
be dead.</P>
<P>Well might my Lord <HI>Cook</HI> &s;tile it
(as he doth after) a &s;trange and &s;tu|pendious
puni&s;hment, for when I fir&s;t
read it, I was even amazed and a&s;to|ni&s;hed
at it, that &s;uch a Law &s;hould
be tollerated among&s;t Chri&s;tians,
much more among&s;t Prote&s;tants,
&s;trict profe&s;&s;ors of Chri&s;tianity, put|ting
to death with &s;uch aggravations
of torture and mi&s;erie, is rarely to be
heard or read of, except among&s;t
Heathens, Turks, and Infidels.</P>
<P>Here is a dying three manner of
wayes, (though all but one death,
which will at la&s;t nonplus Tyranny,
and put a period to all &s;uch like tor|tures)
<HI>Onere, fame, &amp; frigore,</HI> by
weight, famine, and cold; and there|fore,
&s;aith my Lord <HI>Cook,</HI> this puni&s;h|ment
(if it were executed according
to the &s;everity of the Law) &s;hould be
<PB N="144" REF="80">
of all other the mo&s;t grievous and
fearfull.</P>
<P>I confe&s;s I have not been an eye|witnes,
nor would I for all the world,
of any mans &s;uffering in that kind,
though it be every years experience
of &s;ome me~s undergoing that death,
and I do believe according to the &s;e|verity
of the Law too, for it lies not
in the power of the Judge, much le&s;s
of the executioner, any way to le&s;&s;en
or mitigate it, after judgement pa&s;t.</P>
<P>But now for the rea&s;on of this
heavy and terrible judgement, which
is; according to the fore&s;aid Act,
becau&s;e he refu&s;eth to &s;tand to the
Common Law of the Land, that is,
Lawfull and due trial according to
Law, and therefore his puni&s;hment
for this contumacy, without compa|ri&s;on
is more &s;evere, la&s;ting, &amp; grie|vous,
than it &s;hould have been for the
offence of Felony it &s;elf, and for the
<PB N="145" REF="80">
Felony it &s;elf, it cannot be adjudged
without an&s;wer.</P>
<P>A very &s;trange thing, that a man
&s;hould &s;uffer ten fold more for his
wilfull ob&s;tinacy in refu&s;ing to put
him&s;elf upon a legal tryal, than he
&s;hould for his crime or offence, which
is a hundredfold greater; more for
the le&s;&s;er, than the greater offence,
more for contumacy, than murder.
The puni&s;hment ought to agree, and
to hold proportion with the offence,
and not to exceed it. The rule of
Law is, that a man ought to be pu|ni&s;hed
according to his offence;
and the <HI>Statute</HI> of <HI>Magna Charta,
cap.</HI> 14. is, that a man &s;hall be pu|ni&s;hed
<HI>&s;ecundum modum delicti,</HI> ac|cording
to the manner of his of|fence,
but certainly here is not the
lea&s;t equality or proportion be|tween
the offence and the puni&s;h|ment.
Contumacy the offence, pre&s;|&s;ing
and &s;tarving to death, the pu|ni&s;hment.</P>
<P><PB N="146" REF="81">
It is true, that God having <HI>Gene&s;.</HI>
9. 6. commanded the Murtherers
bloud to be &s;hed by man (the Mur|therers
not the Thiefs) and thereby
en&s;tated the power of the &s;word on
the Supream Magi&s;trate, not onely
permits him, and makes it Lawfull
for him &s;o to puni&s;h &s;uch malefa|ctors,
but commands and requires
him &s;o to do, as his Mini&s;ter to exe|cute
wrath; for he ought not to bear
the &s;word in vain; but this Commi&s;|&s;ion
is not given to him ab&s;olutely,
&amp; arbitrarily, to u&s;e as he li&s;t, though
he may take away the Murtherers
life, yet he hath no rule nor Warrant
to take it away by cruel and exqui&s;ite
tortures and torments; that is <HI>praeter
mandatum,</HI> be&s;ide the command.</P>
<P>Mercie is one of Gods attributes;
and even the very &s;um and body of
the Scripture: therefore Tyrannie
mu&s;t needs be again&s;t the mind and
will of God, religion &amp; Chri&s;tianity.
<PB N="147" REF="81">
Taking away me~s lives by cruel tor|tures
is Diabolical and Heatheni&s;h;
it is the Divils part to torture and
torment, and it is no &s;trange thing
for wild bea&s;ts to be cruel, but that
<HI>homo homini daemon,</HI> one man &s;hould
Act the part of the Divil with an|other;
or that Chri&s;tians &s;hould be
cruel; this is contrary to our educa|tion
and profe&s;&s;ion.</P>
<P>The Magi&s;trate, for prevention of
&s;in and wickedne&s;s, may &s;everely pu|ni&s;h
and correct, yea, and in &s;ome
ca&s;e take away the life too; but not
Tyrannically. Barbarity and inhu|manity
Suits not with Magi&s;tracie.
The Prophet <HI>David</HI> cals Magi&s;trates
Gods; and certainly they approch
then neare&s;t to the deity, when they
&s;hew mercie. Que&s;tionle&s;s it was a
high and great aggravation of the &s;in
of the Jews in torturing of our ble&s;|&s;ed
Saviour by that mo&s;t cruel death
of the Cro&s;s. But to this it will be
<PB N="148" REF="82">
&s;aid, that that was wholly unju&s;t in
the Jews, not &s;o here; becau&s;e it is
an execution of Ju&s;tice. To this I
&s;ay, that it is in no ca&s;e ju&s;t, to take
away mans life by lingring and cruel
tortures; this turns the execution of
Ju&s;tice into &s;in, and makes the Law
it &s;elf unlawfull.</P>
<P>But it may be objected, that it is
the parties own fault that he &s;tands
Mute, and will not plead to be tried;
<HI>&amp; volenti non fit injuria;</HI> &s;eeing he
will &s;o &s;uffer, there is no injury done
him; and therefore not to be pittied.</P>
<P>To this I &s;ay, let him &s;uffer death
for this his ob&s;tinacie, as he &s;hould if
he had been tried, and found guilty;
and as the Law was, if we believe
&s;ome, before the fore&s;aid <HI>Statute,</HI>
which is a &s;atisfaction equal to the
highe&s;t crime or offence what&s;oever
again&s;t man; but let this cruel and
barbarous Law of <HI>Paine fort &amp; dure</HI>
be taken away, and expunged out of
<PB N="149" REF="82">
our Books, never to be revived. Si|lence
may contract guilt, but ought
not &s;o to aggravate puni&s;hment; and
certainly a mans folly or ob&s;tinacie,
will not excu&s;e or extenuate the Ma|gi&s;trates
cruelty.</P>
<P>But to conclude, I cannot pa&s;s by
that gracious and mercifull Act of
this pre&s;ent Parliament, which hath
taken away that barbarous and ty|rannical
Law of quartering of men
in ca&s;e of trea&s;on; and doubtle&s;s, this
Law, if &s;trictly examined, will be
found as Tyrannical, if not more
than the other, and if it &s;hall appear
that there is as much rea&s;on to take
away this, as that, I hope it will not
continue long after it. I &s;hall &s;ay no
more but this; gratious and merci|full
Laws concludes the Governours
to be men; but Tyrannical, Bea&s;ts.
The la&s;t thing I &s;hall debate is con|cerning
Wreck of Sea; and in that
propound this que&s;tion.</P>
</DIV2>
<DIV2 TYPE="question">
<PB N="150" REF="83">
<HEAD>Whether the Law of forfeiture of
goods wrecked at Sea, be a rea&s;on|able
Law, or not?</HEAD>
<P>I Am not here to meddle with
<HI>Flot&s;am,</HI> that is, where goods float
upon the Sea; nor with <HI>Jet&s;am,</HI>
where goods are ca&s;t into the Sea to
prevent Shipwreck, nor yet with
<HI>Lagan,</HI> where they are fa&s;tened to
any thing that they may be di&s;cover|ed;
for of the&s;e I may &s;ay (in regard
it is uncertain upon what Coa&s;t they
may be ca&s;t, or whether driven) <HI>Capi|at
qui capere pote&s;t;</HI> ketch that ketch
can, but with wreck of Sea, and that
is &s;uch goods onely, which upon a
Shipwreck, are ca&s;t or left upon the
Land by the Sea, and this onely is
Wreck.</P>
<P>The ground of this Wreck of Sea,
was, as it is &s;aid, that goods being
&s;o wrecked, the property was in no
man, and therefore the Law gave
them to the King, who was Lord of
<PB N="151" REF="83">
the narrow Seas, who was bound to
&s;cowr the Seas of Pyrats and petty
Robbers, towards the charge of the
&s;ame, this was the foundation of this
Law.</P>
<P>And now it is fit to know, what
the Common Law was before the
<HI>Statute</HI> of 3. <HI>E. 1. D. S.</HI> &s;aith, that by
the Common Law goods wrecked
upon the Sea were immediately for|feited
to the King, but I rather be|lieve
<HI>Bracton lib.</HI> 3. 33. 135. that there
&s;hall be no wreck where the owner
comes and avows the goods to be
his; ob&s;erve there that that is indefi|nite
at any time, and that were a rea|&s;onable
Law. And <HI>Cook lib.</HI> 5. S^r.
<HI>Henry Constables</HI> ca&s;e, it is &s;aid, that
the <HI>Statute</HI> of 3. <HI>E.</HI> 1. was but a con|firmation
of the Common Law, then
certainly the Law was the &s;ame be|fore,
as it is now by that <HI>Statute.</HI></P>
<P>And by that <HI>Statute</HI> of 3. <HI>E. 1.
cap.</HI> 4. concerning wrecks of the Sea,
<PB N="152" REF="84">
it is agreed, that where a man, a dog,
or a cat, e&s;cape quick out of the
Ship, that &s;uch Ship nor Barge, nor
any thing within them, &s;hall be ad|judged
Wreck, but to be &s;aved and
kept by the Sheriff, <HI>&amp;c.</HI> &s;o that if
any &s;ue for, and prove the goods
his, within a year and a day, they
&s;hall be re&s;tored, otherwi&s;e to re|main
to the King, <HI>&amp;c.</HI></P>
<P>So that the Law is, that if but a
Dog or Cat e&s;cape alive out of the
Ship, then not to be adjudged
Wreck, otherwi&s;e it is. Now to me
this &s;eems a very hard Law, that a
man &s;hould lo&s;e his e&s;tate there be|ing
no act, or default in him, which
is contrarie to the rule of Law: and
as I have &s;aid before, there is an|other
rule in Law, that the act of
God &s;hall prejudice no man; and for
my part, I cannot judge an Act of
Parliament made again&s;t this rule, to
&s;tand with rea&s;on. This is <HI>afflictio|nem
<PB N="153" REF="84">
afflictis addere,</HI> to add affliction
to affliction, and to throw him quite
down that is a falling: certainly there
cannot be any thing more again&s;t
rea&s;on and Religion, than for to add
burthen to burthen, &s;orrow to &s;or|row:
when the afflicting hand of
God is upon a man, 'tis &s;ad and mi|&s;erable
to meet with &s;uch as <HI>Jobs</HI>
friends. For a man in an impetuous
dreadfull &s;torm and tempe&s;t, to be
to&s;&s;ed to and fro at Sea, by the ra|ging
and &s;welling billows thereof,
every moment expecting nothing
but de&s;truction; and at the la&s;t, to be
Ship-wrecked and &s;wallowed up in
the mercile&s;s deep, and after all, to
have this further aggravation of mi|&s;erie,
that if nothing e&s;cape alive, the
goods to be forfeited, or if any thing
e&s;cape alive, if not a man, to be con|fined
to a year and a day to prove
the propertie, when that it is almo&s;t
an impo&s;&s;ible thing for friends to be
<PB N="154" REF="85">
informed of the &s;ad misfortune, the
men being all ca&s;t away; this &s;eems
to me a very hard and &s;trange Law.</P>
<P>But to this it may be &s;aid, that the
goods may be <HI>bona peritura,</HI> and if
libertie &s;hould not be given to di|&s;po&s;e
of them, after &s;uch time no
claim being made, they may peri&s;h,
and &s;o nobodie be advantaged there|by.</P>
<P>To this I &s;ay, 'tis true, it may be
&s;o; Therefore I conceive it ju&s;t, as in
ca&s;e of E&s;trays, &s;o in this ca&s;e, that a
Law &s;hould be made, by which it
&s;hould be provided, that notice
&s;hould be given of &s;uch a Shipwreck
and &s;uch goods taken up, by way of
Proclamation, in all the Port-Towns
and other chief Cities of Merchan|di&s;e&punc;
and then if claim be not made
within the &s;ame time, the forfeiture
may be more rea&s;onable. And we
ought to be invited to this the ra|ther,
con&s;idering it was the hand of
<PB N="155" REF="85">
God which brought this affliction,
and therefore let us not add forfei|ture
of e&s;tate to lo&s;s of life, if po&s;&s;i|bly
it may be prevented. The next
and la&s;t thing I &s;hall di&s;cour&s;e of, is
Wills, and of that onely by way of
advi&s;e.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Good advi&s;e in ca&s;e of making la&s;t
Wills and Testaments.</HEAD>
<P>THe onely advi&s;e that I &s;hall
give to men in this ca&s;e, is, that
they would make their la&s;t Wills
and Te&s;taments in their health, with
the advi&s;e of Lawyers, not of Par|&s;ons
or Scriveners, who know no|thing
but meer matter of form, and
like Carriers hor&s;es keep their rode;
judging their forms to &s;erve all ca|&s;es;
by which they rai&s;e infinite di|&s;putes
and controver&s;ies, and often
undo many men.</P>
<P>Nor is it a prejudice for any man
<PB N="156" REF="86">
to make his Will; &s;ince that in Law
he may revoke it when he plea&s;eth;
for <HI>voluntas e&s;t ambulatoria u&s;que ad
mortem.</HI></P>
<P>I confe&s;s in the ca&s;e of Wills, the
favour of the Law to be very great,
for that they are conceived generally
to be made <HI>in extremis;</HI> for 'tis a
Maxim of the Common Law, <HI>Quod
ultima voluntas te&s;tatoris est perim|plenda
&s;ecundum veram intentionem
&s;uam, &amp; Reipublicae intere&s;t &s;uprema
hominum te&s;tamenta rata haberi.</HI> that
is, that the la&s;t will of the Te&s;tator
is to be fulfilled, according to his
true intention: and it concerns the
Common-wealth, that mens la&s;t
Wills and Te&s;taments be ratified
and confirmed. The Law is to be
thanked for this care, not them&s;elves,
and let not this incourage men in the
neglect of that which often cau&s;es &s;o
much debate and di&s;&s;ention (even to
an irreconcilablene&s;s) among&s;t a
<PB N="157" REF="86">
mans Children and kindred; &amp; with|out
doubt it is a dutie required at
every mans hands, whom God hath
ble&s;&s;ed with a fortune, that he avoid
that as much as po&s;&s;ibly may be.</P>
<P>And here I &s;hall give you my
Lord <HI>Cooks</HI> directions concerning
making of <HI>Wills,</HI> (which indeed is ve|ry
excellent) in his third book <HI>fol. 36.
Buttler</HI> and <HI>Bakers</HI> ca&s;e; where he
&s;aith, touching Wills, of which you
have many good matters in the &s;aid
ca&s;e, my advice is to all that have
Lands, that you would, by the ad|vice
of learned Coun&s;el, by act exe|cuted,
make a&s;&s;urances of your Land,
according to your true intent, in full
health and memorie, to which a&s;&s;u|rances,
you may add &s;uch conditions
or provi&s;oes of revocation as you
plea&s;e; for I find great doubts and
controver&s;ies from day to day to a|ri&s;e,
upon devi&s;es made by la&s;t Wills,
&s;ometimes in re&s;pect of the tenures
<PB N="158" REF="87">
of the Land (which now thanks be
to God is taken away) &s;ometimes by
pretences of revocations, which may
be made ea&s;ily by word, al&s;o in re|&s;pect
of ob&s;cure &amp; in&s;en&s;ible words,
and repugnant &s;entences, the Will
being made in ha&s;te, and &s;ometimes
pretending that the Te&s;tator, in re|&s;pect
of extreamitie of pain, was not
of &s;ane memorie, and divers others
&s;cruples and que&s;tions are moved
upon Wills; But if it plea&s;eth you to
devi&s;e Lands by Will;</P>
<P N="1">1. Make it by good advi&s;e in your
full memorie, and inform your
Coun&s;el truely of the e&s;tates and
tenures of your lands, and by the
grace of God, the re&s;olutions of the
Ju&s;tices in this ca&s;e will be good di|rection
to Coun&s;el learned, to make
your Will according to Law, and by
this to prevent que&s;tions and con|trover&s;ies.</P>
<P N="2">2. 'Tis good if your Will con|cern
<PB N="159" REF="87">
inheritance, to make it indented,
and to leave one part with a Friend,
le&s;t after death your Will be &s;up|pre&s;&s;ed.</P>
<P N="3">3. At the time of publication of
the Will; take credible witne&s;&s;es,
who may &s;ub&s;cribe their names to it.</P>
<P N="4">4. If it may be, let all the Will be
written with one and the &s;ame hand,
and one and the &s;ame parchment
and paper, for doubt of alteration,
addition, or diminution.</P>
<P N="5">5. Let the hand and &s;eal of the
devi&s;or be put to it.</P>
<P N="6">6. If it be in &s;everal parts, let his
hand and &s;eal be put, and the names
of the witne&s;&s;es &s;ub&s;cribed to every
part.</P>
<P N="7">7. If there be any interlining, or
ra&s;ure in the Will, let there be made
a <HI>Memorandum</HI> of it.</P>
<P N="8">8. If you make any revocation
of your Will, or of any part of it, do
it by writing, by good advi&s;e; for up|on
<PB N="160" REF="88">
revocations by Wills, in&s;ue con|trover&s;ies,
&s;ome of the Witne&s;&s;es af|firming
of it in one manner, and
others in another manner. Reader,
you may ob&s;erve, that the &s;cope of
my labour herein, is to avoid as
much as may be, all unnece&s;&s;arie
&s;trifes &amp; debates what&s;oever, which
made me add likewi&s;e the&s;e directi|ons
concerning making of Wills;
which if well ob&s;erved and followed,
will prevent many contentious &s;uits,
and debates in Law, and much tend
to the peace and good of this Com|mon-wealth.</P>
<TRAILER>FINIS.</TRAILER>
<PB REF="88" MS="y">
</DIV2>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
