<!DOCTYPE ETS PUBLIC "-//UMDLPS//DTD EEBOPROOF 2.0//EN">
<ETS>
<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2012-08-08</DATE>
<RESPSTMT>
<NAME>Jayanthi Reddy</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Checklist: xAdd TEMPHEAD, change DATE, validate xReview over structure: FRONT,BODY, BACK, DIV or rarely GROUP xAdd DIV TYPEs, make sure that @types makes sense as a navigational aide, and work in the context of the whole text, validate xSurvey book for troublesome formats of all kinds, including lists, illustrations, tables, music, math, end-notes, quasi-tabular arrangments, and marginalia. xProof title page(s) xExamine marginalia. Is it all best tagged as NOTE? xObserve divtop and divbottom material marking beginnings and ends of divisions, check that they are correctly tagged as HEAD, HEADNOTE, CLOSER, OPENER, ARGUMENT, EPIGRAPH, SIGNED, DATELINE, BYLINE, etc. xCheck for GAPs xCheck PB placement and completeness, ensure sequence of N="" xCheck ^, oe, abq, italic I / J, _Initals, space between &amp;c., --, LB, # xCheck for illustrations and correct usage of FIGURE. Add FIGDESCs if necessary. xCheck q; startq endq Q xIf appropriate, check for yoghs. xIf appropriate, check for Latin problems, e.g. oe and ae digraphs xIf appropriate, check for abbreviation and brevigraph problems. xIf appropriate, check for units of measure, symbols (alchemical, astronomical, etc.) and the like. xCorrect illegibles from proofsheet xCheck illegible page, para, line, span, word, dollar signs xFinal validate and check Corrected [ ] illegible groups out of [ ]. Converted [ ] illegible groups to GAP DESC="illegible". DONE</ITEM>
</CHANGE>
</REVDESCR>
</TEMPHEAD>
<EEBO>
<IDG S="marc" R="UM" ID="A29443">
<STC T="W">B4579</STC>
<STC T="C">R36620</STC>
<BIBNO T="oclc">8092268</BIBNO>
<VID>40820</VID>
</IDG>
<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1">
<P>A BRIEFE DISCOURSE, DECLARING And approving the nece&s;&s;ary and inviolable maintenance of THE LAUDABLE CUSTOMES OF <HI>LONDON.</HI></P>
<P>Namely, of that one, whereby a rea&s;onable partition of the goods of husbands among their Wives and Children is provided:</P>
<P>With an an&s;wer to &s;uch objections and pretenced rea&s;ons, as are by per&s;ons unadvi&s;ed or evill per&s;waded, u&s;ed again&s;t the &s;ame.</P>
<P><HI>LONDON,</HI> Printed by JAMES FLESHER, Printer to that Honourable City, 1652.</P>
</DIV1>
<DIV1 TYPE="maxims">
<PB REF="2">
<HEAD>Juris civilis de con&s;uetudine Axiomata &s;ive Maximae.</HEAD>
<LIST>
<ITEM>Con&s;uetudo vim habet rei Judicatae.</ITEM>
<ITEM>Con&s;uetudo e&s;t optima legum interpres.</ITEM>
<ITEM>Conventio &amp; con&s;uetudo vincunt legem.</ITEM>
<ITEM>Con&s;uetudo firmata e&s;t ubi &s;imili aliquando contra|dicto, Iudicio quid e&s;t obtentum &s;eu Iudicatum.</ITEM>
<ITEM>Coepta u&s;ucapio vel prae&s;criptio per defunctum, conti|nuatur per haeredem, cum in omne jus defuncti &s;uccedat haeres.</ITEM>
<ITEM>Profunda requie humano generi pro&s;pexit u&s;ucapio. Barto.</ITEM>
<ITEM>U&s;ucapio e&s;t quies periculi &s;olicitudini&s;que litium. Cicero.</ITEM>
</LIST>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="discourse">
<PB N="45" REF="2">
<HEAD>A Briefe Di&s;cour&s;e, declaring and ap|proving the nece&s;&s;ary and inviolable main|tenance of the laudable Cu&s;tomes of <HI>London.</HI></HEAD>
<P>_WE finde it nece&s;&s;ary in all common-wealths, for &s;ubjects to live under the direction of Lawes, con&s;titutions or cu&s;tomes publick|ly known and received, and not to depend onely upon the commandement and plea|&s;ure of the governour, bee the &s;ame never &s;o ju&s;t or &s;in|cere in life and conver&s;ation. For that the Law once enacted and e&s;tabli&s;hed, extendeth his execution to|wards all men alike without favour or affection: whereas if the word of a Prince were a Law, the &s;ame being a mortall man, mu&s;t needs be po&s;&s;e&s;&s;ed with tho&s;e pa&s;&s;ions, and inclinations of favour or disfavour that other men be: and &s;ometimes decline from the con&s;tant and unre|moveable levell of indifferency, to re&s;pect the man be|&s;ides the matter, if not to regard the per&s;on more then the cau&s;e. Wherefore it was well agreed by the wi&s;e&s;t Philo&s;ophers and greate&s;t Politicks, that a dumb Lawes direction is to be preferred before the &s;ole di&s;po&s;ition of any living Prince, both for the cau&s;e afore touched, and for other rea&s;ons which I will here omit. But to de|&s;cend to the particularities of my intention, and to treat of the validitie and inviolable ob&s;ervation of &s;ome lauda|ble (I might term them &s;acred) cu&s;tomes, being the prin|cipall joynts, and very &s;inews of all good Corporations and Fellow&s;hips, and being al&s;o the maintainers of a &s;a|cred
<PB N="48" REF="3">unity and naturall amity between the husband and his wife, the parents and their children, which (as <HI>Ari|&s;totle</HI> the wi&s;e Philo&s;opher termeth it) is the beginning of a City. For what is a City but a manifold and joynt &s;ociety con&s;i&s;ting of many hou&s;holds, and living under the &s;ame Lawes, Freedomes and Franchi&s;es? &s;o I mu&s;t needs confe&s;s them to be the procurers and cau&s;es of &s;undry good effects to the generall e&s;tate of the City wherein they be ob&s;erved: as of the other &s;ide they may breed &s;undry inconveniences in &s;uch a City where the &s;ame are violated and broken with allowance and impu|nity. I will therefore &s;hortly &s;hew the nature of a cu|&s;tome, and the difference which it holdeth from a pub|lick Law. And next I will declare how nece&s;&s;ary the &s;ame are to manage the government, and to entertain the pro&s;perity and traffique of this City: and namely that one good cu&s;tome which I intend to &s;peak of. La&s;t|ly, I will endevour to an&s;wer tho&s;e preten&s;ed rea&s;ons, and colourable objections made again&s;t the preci&s;e mainte|nance and defence thereof.</P>
<P>Fir&s;t then I &s;uppo&s;e that a cu&s;tome which ju&s;tly de|&s;erveth that name, is of no le&s;s reverent regard and au|thority then a written Law, pa&s;&s;ed and allowed in Parlia|ment: which notwith&s;tanding I do grant that there are certain differences between a Law and a cu&s;tome: for the cu&s;tome taketh his force by degrees of time, and con|&s;ent of a certain people, or the better part thereof, but a Law &s;pringeth up in an in&s;tant, and receiveth life from him that is of &s;overaign authority to command. A cu|&s;tome enlargeth it &s;elfe by plau&s;ible entertainment, and acceptable circum&s;tances of time and occa&s;ion, with ge|nerall liking and allowance, whereas a Law is com|manded
<PB N="49" REF="3">and publi&s;hed by power and received by duti|full con&s;traint, and that often again&s;t the good will of them that are bound by it, for which cau&s;e <HI>Chry&s;o&s;tome</HI> not improperly compared the Cu&s;tome to a King, and the Law to a Tyrant. Moreover the cu&s;tome doth nei|ther promi&s;e a reward for ob&s;ervation, nor inflict a pu|ni&s;hment for violation thereof: whereas the Law al|wayes importeth either a con&s;ideration of gain, or a terrour of puni&s;hment or damage, if the &s;ame be not a Law of enlargement or permi&s;&s;ion that di&s;anulleth the prohibitions of a former Law. Finally a cu&s;tome is applyed to the commodity of &s;ome one province, cir|cuit or City, and grounded upon a &s;peciall rea&s;on of con|veniencie or commodity,<NOTE PLACE="marg">See 34 <HI>H.</HI> 8. B. cu|&s;tome, 59. A man may not pre&s;cribe or plead a cu&s;tome <HI>per totam Angliam,</HI> for that is common Law and no cu&s;tom otherwi&s;e if the cu|&s;tome had been plea|ded to be in &s;uch a City or County, as <HI>Gavelkind Gl<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">t.</HI> Fee and &s;uch like. <HI>Borough|engli&s;h.</HI></NOTE> for tho&s;e per&s;ons or place where it is ob&s;erved: whereas the Law hath a generall rea&s;on, extended to the whole Nation bound by the &s;ame, without private con&s;ideration of the due impor|tances of any peculiar place or people. Therefore it is well &s;aid, and put in ure by the common Lawyer, <HI>Quod con&s;uetudo ex rationabili cau&s;a profecta privat communem le|gem,</HI> That a cu&s;tome grounded upon rea&s;onable and hone&s;t con&s;ideration abridgeth or altereth the judge|ment of the common Law. So that in cu&s;tomes the e&s;tate or condition of the people are to be re&s;pected, and &s;uch cu&s;tomes as are con&s;onant to rea&s;on, and mo&s;t ap|pliable to the e&s;tate and quality of &s;uch people, are to be allowed. For example; the cu&s;tome of <HI>Boroughengli&s;h,</HI> yet in force in &s;undry places of <HI>England,</HI> whereby the youn|ger &s;onne is to inherite his fathers land, hath taken &s;trength by this rea&s;on, that the father may (if he be not carele&s;s and &s;ecure to do his children good) train up his elder Sons in &s;ome good Trade or Occupation by which
<PB N="48" REF="4">they may be able to get their own living: whereas the younge&s;t, by the impotency and tenderne&s;s of his yeers, may be perchance unapt and unable for &s;uch in&s;truction. And &s;o the Cu&s;tome commendable that provideth for the reliefe of the young and impotent. Al&s;o by an old cu&s;tome of this Land, in &s;undry Boroughs and Towns, Lands were devi&s;able by Will, though the Lawes of <HI>England</HI> pronounced &s;uch devi&s;es to be void;<NOTE PLACE="marg">But &s;ee now the Stature of 32 <HI>H.</HI> 8. c. 2. and 34. <HI>H.</HI> 8. c. 5. of Expla|nation.</NOTE> and the rea&s;on was, for that inhabitants of Boroughs or Cities, who&s;e traffique and Trade re&s;teth much upon mutuall tru&s;t and credite, are oftentimes indebted at the time of their death. Wherefore it was thought meet, that they might devi&s;e their land for the due &s;atisfaction of their creditours, which to do, they were enabled by the cu|&s;tome. In <HI>Kent</HI> and other places of this land, the cu|&s;tome of <HI>Gavelkinde</HI> is maintained, which importeth an equall divi&s;ion of the inheritance to be made among all the brethren: a cu&s;tome partly grounded upon a naturall con&s;ideration, for that all the Sonnes hold the like ob|ligation of nature and de&s;ert with their Parents, in the which they have an equall intere&s;t: and al&s;o &s;uffered to take place in <HI>Kent,</HI> and other places of this Land, in tho&s;e dayes mo&s;t inclinable to rebellion, to the intent to en|feeble their forces, and to bring their great hou&s;es and families to impui&s;&s;ance and decay, thereby to di&s;able and di&s;courage them from &s;uch unlawfull and violent at|tempts.</P>
<P>And to come neerer to the matter, this famous and renowned City of <HI>London</HI> hath many laudable and anci|ent cu&s;tomes: which though they derogate and differ much from the rules of the common Law, yet have they been not onely approved by inviolate experience of &s;un|dry
<PB N="51" REF="4">ages, but al&s;o have been of old ratified and confirmed by &s;undry Acts of Parliament, &amp; Charters of Princes, and namely by the Statute of <HI>Magna Charta,</HI><NOTE PLACE="marg">Magna Charte. ca. 9.</NOTE> by the&s;e words following, <HI>Quod civitas</HI> London <HI>habeat omnes libertates &s;uas antiquas &amp; con&s;uetudines quas habere con&s;uevit,</HI> which is, <HI>That the City of</HI> London <HI>have all their ancient liberties and cu&s;tomes which they have u&s;ed to have.</HI> The words following for other Cities, &amp;c. be, <HI>Quod habeant omnes libertates &amp; liberas con&s;uetudines &s;uas,</HI> which &s;ignifieth, <HI>that they &s;hall &s;till retaine their liberties and free cu&s;tomes,</HI> that is to &s;ay, their freedomes and immunities, as to bee di&s;charged of toll, pontage, and &s;uch like: Whereas the City of <HI>London</HI> hath provi&s;ion made by that e&s;tatute, for all u&s;ages and cu&s;tomes what&s;oever. Verily as the City of <HI>London</HI> beareth oddes, and prerogative over other Ci|ties in <HI>Engl.</HI> being the <HI>Metropolis</HI> or mother City there|of, &s;o are the inhabitants of it no le&s;s nece&s;&s;ary then pro|fitable members of the Commonwealth, in tran&s;port|ing our commodities into other lands, and enriching us with the benefits and fruits of other countries. The Ci|ty of <HI>Rome,</HI> and Citizens of the &s;ame had that preroga|tive as in other things, &s;o al&s;o in their executions for cau&s;es capitall, that they &s;hould not be crucified, being a death of great torment and infamy, but onely beheaded. The benefit of which cu&s;tome Saint <HI>Paul</HI> claimed and ob|tained in the time of <HI>Nero:</HI> pretending that hee was a Citizen of <HI>Rome.</HI> The &s;aid Citizens al&s;o by the dignity and reputation of their City were not for any tran&s;gre&s;|&s;ion or offence to be fettered, whipped, or &s;courged, which priviledge likewi&s;e the &s;aid Saint <HI>Paul</HI> took hold of, who being oppre&s;&s;ed by the calumnious accu&s;ations and outcries of the Jewes, was by commandement of
<PB N="52" REF="5"><HI>Claudius Ly&s;ias</HI> the Captain to be examined by torture of whips,<NOTE PLACE="marg">Acts. 22.</NOTE> what was the cau&s;e of that generall murmure and exclamation of the people again&s;t him: yet Saint <HI>Paul</HI> by alleaging that hee was a free man of <HI>Rome,</HI> not onely delivered him&s;elfe from the injury and rage of the people, but al&s;o made the Captain much afraid of que|&s;tion or puni&s;hment for the indignity offered unto him, &s;o great was the Maje&s;ty of that City, and &s;o reverent the reputation of all &s;uch as were accounted members thereof. <HI>Athenaeus</HI> termed <HI>Rome</HI> in tho&s;e dayes very fitly, <HI>Epitome totius orbis,</HI> an abridgement of the whole world, for the continuall concour&s;e and re&s;ort of all Na|tions thither. We may derive thence an argument for our purpo&s;e, that <HI>London</HI> being worthy that title, <HI>Epi|tome totius Angliae,</HI> in re&s;pect of the nece&s;&s;ary repair and frequent a&s;&s;embly of all e&s;tates therein, whether it be for Ju&s;tice by the Lawes of this Land, which are here admi|ni&s;tred, or by trade of marchandi&s;e, which is here &s;o great that it may bee termed <HI>totius occidentis emporium:</HI> and chiefly becau&s;e of the favourable and often &s;ojorn of our mo&s;t royall and gracious Soveraign, who&s;e Maje&s;ties chamber this is as it alwayes hath been of her mo&s;t noble progenitors: the &s;ame is no le&s;s worthy of &s;undry prehe|minences which by Cu&s;tome and Charter it enjoyeth a|bove other Cities of this Land.</P>
<P>We finde in our Law Books, that the Scholers of <HI>Ox|ford</HI> claimed a priviledge by cu&s;tome,<NOTE PLACE="marg">43 E. 3. fo. 17. Vide <HI>Brook,</HI> Pre&s;er. 8.</NOTE> to have prefer|ment of any hou&s;e or lodging, that was to be let in the City of <HI>Oxford,</HI> and the &s;ame was allowed in the Com|mon place in <HI>We&s;tmin&s;ter,</HI> where Ju&s;tice <HI>Finchden</HI> a man of great reckoning at that time &s;aid, that it is rea&s;on that they which are principall In&s;truments of great good in
<PB N="53" REF="5">the Commonwealth, &s;hould have beneficiall cu&s;tomes for the maintenance of their &s;ocieties: the like rea&s;on (&s;aith he) &s;erveth for the Merchants of the &s;taple in <HI>We&s;t|min&s;ter,</HI> and al&s;o for the Ju&s;tices of A&s;&s;i&s;es, or Ju&s;tices in Eyre, to have the like prerogative. Al&s;o it is not un|fit to remember, that the Barons of the Land have di|vers prerogatives above other &s;ubjects, that is, they &s;hall not be &s;worn when they pa&s;s upon their Peers, and if they bring an appeal, the defendant &s;hall not wage battaile again&s;t them, and they are exempted out of all returnes in Juries, and &s;hall not be &s;worn in Leets, and all in re&s;pect of their dignity, and for the nece&s;&s;ary u&s;e of them in government of the Commonwealth. So that per&s;ons of needfull employment in the e&s;tate, have al|wayes been favoured in all their hone&s;t cu&s;tomes or pre|&s;criptions, and e&s;pecially the Citizens of <HI>London,</HI> and the rather for the great pre&s;umption and opinion con|ceived of their experience, who being trained by hard education, in great u&s;e of &s;ervice and affairs: and al&s;o by their travaile and traffique beyond the Seas, by conti|nuall negotiation with other Nations mu&s;t needs (by all rea&s;onable likelihood) procure unto them&s;elves great judgement and &s;ufficiency, to manage a politick Regi|ment in their City, according unto that ver&s;e of the Poet <HI>Homer</HI> in the beginning of his Treati&s;e of wi&s;e <HI>Uly&s;&s;es</HI> his adventures remembring his travaile into &s;undry Nati|ons and Cities.</P>
<Q><L>Dic mihi Mu&s;a virum captae po&s;t temporae Troiae,</L>
<L>Qui mores hominum multorum vidit &amp; urbes.</L></Q>
<P>The &s;en&s;e whereof may be well expre&s;&s;ed in Eng|li&s;h ver&s;e without rime thus:</P>
<Q><L>All travailers do gladly report great prai&s;e of Uly&s;&s;es:</L>
<PB N="54" REF="6">
<L>For that he knew many mens manners, and &s;aw many Cities.</L></Q>
<P>Which opinion of their policy and experience con|ceived and approved by the noble Princes of this Land in all ages doth evidently appear by the manner of their government, whereat &s;trangers do no le&s;s envy then ad|mire &s;eeing &s;o populous a City, containing by true e&s;ti|mation more then 500 thou&s;ands of all &s;orts of Inhabi|tants, managed not by cruell Viceroyes, as is <HI>Naples</HI> or <HI>Millain,</HI> neither by proud <HI>Pode&s;t&agrave;,</HI> as be mo&s;t Cities in <HI>Italy,</HI> or in&s;olent Lieutenants or Pre&s;idents, as are &s;un|dry Cities in <HI>France,</HI> (who&s;e Pre&s;idents are noble men or Captaines, having their per&s;ons environed with a guard of Souldiers, and holding their Cities po&s;&s;e&s;&s;ed with a Garri&s;on, as well in the quiete&s;t calm of peace, as in the hotte&s;t combu&s;tion of war:) but by a man of Trade or a meer Merchant, who notwith&s;tanding, during the time of his Magi&s;tracy, carrieth him&s;elfe with that honourable magnificence in his port, and en&s;ignes of e&s;tate, that the Con&s;uls, Tribunes or Pretors of <HI>Rome,</HI> (namely, when as the &s;ame was reduced to a Monarchy) much le&s;s the <HI>Pode&s;t&agrave;</HI> of any City in <HI>Italy,</HI> never bare the like repre&s;en|tation of dignity, and that not onely in peaceable &s;ea&s;ons but in time of greate&s;t warre: for &s;uch credit the Prin|ces of this Land have &s;till repo&s;ed in their fidelity and wi&s;e direction, that we have few examples in any Chro|nicle of any noble man or other appointed to a&s;&s;i&s;t the Lord Mayor in his government, much le&s;s to be &s;ole Ruler or Lieutenant for the time, were the &s;tate never &s;o trouble&s;ome, and the affaires of never &s;o great con&s;e|quence and importance.</P>
<P>And to adde a little more in proofe of the &s;ingular
<PB N="55" REF="6">good conceipt had of their &s;ervice to the Common|wealth, and that the &s;ame hath in all ages from the Con|que&s;t given them prerogative above other Cities of this Land,<NOTE PLACE="marg">7 <HI>H.</HI> 6.32.</NOTE> we read in the vii. yeer of <HI>Henry</HI> the vi. that in <HI>nativo habendo</HI> brought by the Lord to recover his vil|lain, it was adjudged a good return made by the Sheriffe of <HI>London,</HI> that &s;uch was the Cu&s;tome of <HI>London,</HI> that a villain having remained there the &s;pace of one whole yeer and a day, could not bee fetched or removed out thence. For &s;o great is the prerogative of that place, that it giveth protection to the villain or bondman a|gain&s;t his Lord, while the &s;aid bondman &s;hall be re&s;iant there. Likewi&s;e it was taken for a good cu&s;tome in the City of <HI>London,</HI> that no attaint &s;hould be maintained for a &s;uppo&s;ed fal&s;e verdict given in that City.<NOTE PLACE="marg">7 <HI>H.</HI> 6.32. and the &s;ame ca&s;e was ad|judged in 2 <HI>E.</HI> 3.</NOTE> In the which ca&s;e the Sheriffe of <HI>London</HI> made return upon a writ of attaint &s;ued again&s;t a <HI>Londoner,</HI> that &s;uch was and had been alwayes the cu&s;tome of the City, that no at|taint &s;hould be allowed again&s;t any Commoner or other Citizen of the &s;ame, for which cau&s;e he might not <HI>&s;alvis libertatibus</HI> without impeachment of their liberties, &s;erve or execute the writ. Then was there a writ directed out of the Chancery to the Ju&s;tices of the Kings Bench with expre&s;s commandement to allow to the Mayor, Sheriffes and Citizens all their liberties, immunities and cu&s;tomes, and further out of that writ was a <HI>Venire facias</HI> directed to the Mayor and Sheriffes, whereby was day given them to come and make declaration of their cu|&s;tome, at which day the parties plaintiffe and defendant being pre&s;ent, the Mayor and Sheriffes had full allow|ance of their cu&s;tomes, the Sheriffes were holden excu&s;ed for their return, and the parties writ was abated, and
<PB N="56" REF="7">him&s;elfe puni&s;hed by impri&s;onment for his vexation. I have here at large remembred this ca&s;e, to the end it may appear both what credit and opinion of con&s;cience and truth, the Law a&s;cribed to the Citizens of <HI>London,</HI> and al&s;o how carefull and vigilant the Mayor and She|riffes have alwayes been to pre&s;erve and uphold their cu|&s;tomes, although &s;ithence that onely cu&s;tome was for e&s;peciall cau&s;es abrogated by the Statute of 11.<NOTE PLACE="marg">11 <HI>H.</HI> 7. c. 21.</NOTE> <HI>H.</HI> 7. and an attaint given in <HI>London.</HI> Moreover, we finde it re|corded in <HI>M.</HI> 2. <HI>E.</HI> 3. that whereas a Citizen of <HI>London</HI> brought an appeal of Robbery,<NOTE PLACE="marg"><HI>M.</HI> 2 <HI>E.</HI> 3. cor. pl. 157.</NOTE> and the defendant would have tryed his innocency by battail, as he may in &s;embla|ble ca&s;e again&s;t another man, <HI>Wilby</HI> then Ju&s;tice an&s;wer|ed him, that he was not to have allowance of battaile in an appeal commenced by a Citizen of <HI>London,</HI> for that by cu&s;tome of their City they were exempted from it. The like appeal was &s;ued <HI>P.</HI><NOTE PLACE="marg">P. 20 <HI>E.</HI> 3. cor. pl. 125</NOTE> 20. <HI>E.</HI> 3. wherein the defen|dant made offer of the &s;ame Triall. And although hee that &s;ued the appeal, would have joyned battaile without regard of this franchi&s;e, the Lord Mayor with the re&s;t of the Corporation &s;ued a writ out of the Chancery, recit|ing their cu&s;tome or franchi&s;e, and prayed allowance of it in di&s;turbance of the battaile. 20. <HI>E.</HI> 3. <HI>Coron.</HI> 125.</P>
<P>If a free man or free woman of <HI>London</HI> be committed to <HI>Ludgate,</HI> they are to be excu&s;ed from the ignominy of Irons, if they can finde &s;ureties to be true pri&s;oners, and if the &s;um be not above an hundred pounds. Upon the like rea&s;on is that cu&s;tome e&s;tabli&s;hed for the liberall and milde impri&s;onment of the Citizens in <HI>Ludgate,</HI> where|by they have indulgence and favour to go abroad into a|ny place by <HI>Ba&s;ton</HI> as we term it, under the gard and &s;u|perintendency of their Keeper, with whom they mu&s;t
<PB N="57" REF="7">return again to the Pri&s;on at night: a cu&s;tome verily, though quarrelled with by &s;ome, and &s;uppo&s;ed to be the hinderance and delay of Ju&s;tice, and oftentimes a mean to defraud men of their true debts and executions, yet the ground thereof being well examined, it wanteth not a &s;ound maintenance in the cour&s;e of rea&s;on (as I think.) For the pre&s;cription or cu&s;tome is but a mitigation of the extremity of their impri&s;onment, &s;erving rather for the expedition of their di&s;charge, and &s;peedy &s;atisfaction of their creditours, then for any other purpo&s;e: &s;o that this &s;cope and licence in proper con&s;truction and &s;en&s;e of Law, cannot be termed an enlargement or liberty. For to remain in the materiall Pri&s;on in the night, and to go forth out of the &s;ame in the day, under the re&s;traint and controll of a continuall Keeper, is alwayes an impri&s;on|ment, though exerci&s;ed with greater mildne&s;s and leni|ty. And divers cau&s;es there are to warrant the &s;ame in <HI>London</HI> rather then in other places: the one is for that the City of <HI>London</HI> &s;tandeth chiefely upon the traffique and intercour&s;e of Merchants, and the u&s;e of buying and &s;el|ling of their &s;undry commodities, which is not alwayes performed by them&s;elves, but by their factours and &s;er|vants, and oftentimes one factour or agent &s;erveth the turn of many Merchants, whereby hee is pre&s;&s;ed to &s;un|dry and &s;everall accounts. Wherefore to the end the pri&s;oners may enform them&s;elves upon their mutuall reckonings, both what they owe, and what is due unto them, and al&s;o that upon conference and account with their agents returning from other countreys, they may be made acquainted with the increa&s;e of their adven|tures or commodities, it is nece&s;&s;ary they &s;hould have places of meeting, which will not be &s;o convenient in a
<PB N="58" REF="8">clo&s;e pri&s;on, the &s;ame being no place of a&s;&s;embly or free acce&s;&s;e (e&s;pecially it being no common duty in the Gaoler to permit any per&s;on to come among his pri&s;o|ners for any &s;uch occa&s;ion) and if the Gaoler were bound to endure and &s;uffer &s;uch common and voluntary repair unto his pri&s;oners: yet will it be no fit place for Mer|chants to treat and negotiate their cau&s;es, which cannot be well determined without their Books of accounts, and witne&s;&s;es of their contracts, and oft mu&s;t the &s;ame bee decided before the Ma&s;ters of their Trades or Compa|nies. So that this cu&s;tome made in furtherance of mutu|all accounts,<NOTE PLACE="marg">Vide 4 <HI>E. o.</HI> com. 36.</NOTE> doth very much enable the pri&s;oner to procure his liberty and pay his debt. Al&s;o if the pri&s;o|ner be poor and of him&s;elfe unable to pay, this tolerati|on of their going abroad with the Keeper, is a good meane for him to procure the Alms, and reliefe of other charitable people, thereby the &s;ooner to purcha&s;e his li|berty. Whereby it appeareth what reckoning the Law maketh of them, in con&s;ideration of their great hazzard by Sea (through danger of &s;hipwrack or piracy) and ad|venture in &s;trange Countreys (by fal&s;hood and negli|gence of Factours) or by wars between Princes, the in|conveniences and mi&s;chiefes whereof, are not &s;o offen|&s;ive or prejudiciall to any, as to Merchants, who&s;e con|dition as it may by a fortunate voyage be much enriched and advanced: &s;o may it by any of the mi&s;chances afore&s;aid, be &s;o empaired and overthrown, that it may turn him&s;elfe, his wife, and family to utter calamity and di&s;tre&s;&s;e. Therefore as the hope and comfort of the wife (having commonly no a&s;&s;urance of joynture in the City, nor expectation of dower as other women have) and al&s;o of the children (being for the mo&s;t part born to no great
<PB N="59" REF="8">patrimony, other then that which their fathers &s;hall by their vertuous indu&s;try acquire) doth onely depend up|on the fortune of their husbands or fathers travaile, it hath laudably and con&s;cionably been ob&s;erved for a cu|&s;tome, and is yet by the wi&s;er and better &s;ort religiou&s;ly regarded that when any Citizen of <HI>London</HI> dyeth, his wife &s;hall have the third part of his goods, and the chil|dren another third part, equally to be divided among them, according to the proportion of his goods, and him&s;elfe another third part to di&s;po&s;e by his la&s;t Will and Te&s;tament at his plea&s;ure. A partition &s;o rea&s;ona|ble and grounded upon &s;o good con&s;ideration, (the qua|lity and e&s;tate of the <HI>Londoners</HI> con&s;idered,) that if it were not approved by cu&s;tome, but to be propo&s;ed in the wi&s;e&s;t and highe&s;t Court of Parliament, whether it were fit to have the force of a Law, I think no man (unle&s;&s;e he were a <HI>Timon</HI> by nature, or a <HI>Diogenes</HI> by di&s;po&s;ition) no man I &s;ay po&s;&s;e&s;&s;ed with common humanity would gain|&s;ay or impugn it. Doth not the common Law now in force give the husband pre&s;ently by the intermariage, all the goods and chattells of his wife, though the &s;ame bee of the value of 10000 pounds, &s;o that when &s;hee is once his wife, the Law di&s;ableth her to give or di&s;po&s;e any thing that was hers before? And &s;hall not the husband be bound by &s;emblable Obligation of rea&s;on to leave his wife the third part of his goods, and if the Law be in that re&s;pect defective (as what Law in the world, except the Law of God, is without his imperfections?) &s;hall not the cu&s;tome &s;upply it in &s;uch &s;ort, that no barbarous and uncharitable or cautelous, and unkinde practi&s;es by deed of gift, or otherwi&s;e, &s;hall di&s;appoint or defraud the &s;ame: e&s;pecially here in <HI>London,</HI> where the good e&s;tate of men,
<PB N="62" REF="9">for the mo&s;t part con&s;i&s;teth in movables, by rea&s;on of their continuall Trades and Exchanges, &s;o that their wives cannot a&s;&s;ure them&s;elves of their dowry common|ly called thirds, as they might if their husbands were &s;ei&s;|ed of Lands in Fee-&s;imple. Al&s;o the comfortable &s;ocie|ty between husband and wife, is of that pretious e&s;timate and honourable reputation before God and man, that there may not po&s;&s;ibly a more &s;acred and &s;trait conjun|ction be imagined among the children of men. <HI>Charon|das</HI> the Philo&s;opher calleth them <HI>Homo&s;ipios,</HI> which &s;igni|fieth, fed with the &s;elfe &s;ame food. And <HI>Epimenides</HI> a|nother Philo&s;opher calleth them <HI>Homocapnos,</HI> which is as much to &s;ay, as u&s;ing the &s;elfe &s;ame &s;moke, and the &s;elfe &s;ame manger, and as it were drawing the &s;elfe &s;ame breath. Finally, the Scripture giveth expre&s;&s;e charge to each man to tender his wife with extraordinary good of|fices by &s;aying,<NOTE PLACE="marg"><HI>Matth. ca.</HI> 19. <HI>Mark.</HI> cap. 10. 1 <HI>Cor.</HI> ca. 7. <HI>Ephe&s;.</HI> ca. 5.</NOTE> <HI>Thou &s;halt leave thy Father and Mother, and cleave to thy wife.</HI> If the force of cu&s;tome did not enforce the matter, the&s;e onely con&s;iderations were &s;uf|ficient to prove, that there &s;hould be nothing private, nothing peculiar, nothing proper, but every thing in common, every thing equally intere&s;ted between the husband and the wife. The like though not equall affe|ction is commanded by the Apo&s;tle to the <HI>Col.</HI> 3. by the Fathers towards their children. <HI>You fathers be tender and loving unto your children, and di&s;courage them not.</HI></P>
<P>But let us &s;ee what account our common Law hath made of the like cu&s;tomes, founded upon the love and af|fection between man and wife. It was u&s;ed of ancient time in Gavelkinde Land, and hath received the allow|ance and judgement of a good and lawfull cu&s;tome,<NOTE PLACE="marg">8 <HI>H.M.</HI> 3 Pre&s;. 60.</NOTE> that if the husband be attainted and executed for a Felony by
<PB N="63" REF="9">him committed,<NOTE PLACE="marg">8 <HI>E.</HI> 2. It in can. Pre&s;er. 50.</NOTE> yet &s;hall his wife for the &s;olace of her lo&s;&s;e and de&s;olation have her dowry of his Land, and al&s;o the heire &s;hall inherite the &s;ame according to that old &s;aying:<NOTE PLACE="marg">P. 35 <HI>H.</HI> 6.58.</NOTE> <HI>The Father to the Bough, &amp; the Son to the Plough:</HI> al|though the common law by rigorous imputation to make man more fearfull to offend in crimes of &s;uch quality, extendeth the puni&s;hment though not to the per&s;ons of the wife and children, yet to their fortune &s;o farre as it may turn to their utter impoveri&s;hment and di&s;comfort.</P>
<P>In the City of <HI>York</HI> there is a cu&s;tome, that the husband may enfeoffe his wife of &s;uch Land as he &s;hall purcha&s;e, which though it bee again&s;t the rule of the common Law (which di&s;ableth the husband to convey any Land to his wife) by feoffement or deed,<NOTE PLACE="marg">12 <HI>H.</HI> 3. Pre&s;. 6.1.</NOTE> yet by force of the cu&s;tome it was adjudged to be lawfull and effectuall. Al|&s;o the cu&s;tome of many places in <HI>England</HI> is, that the wife &s;hall enjoy the whole Land of her husband in name of her dowry, as it appeareth by <HI>M. Litt.</HI> him&s;elfe,<NOTE PLACE="marg">Litt. ti, <HI>Dower.</HI></NOTE> and the husband cannot by any cautele or devi&s;e defeat her there|of. And in &s;ome other Countries they have the moity or tone part, and generally by the common Law the third part. In <HI>Northwales</HI> the cu&s;tome is &s;o beneficiall for wives, (that although they be &s;ure of their thirds of &s;uch Land as their husbands &s;hall chance to be &s;ei&s;ed of at any time during the mariage) yet are they to have the moity or tone part, not onely of his goods and movea|bles, but al&s;o of his Lea&s;es, be the terms thereof never &s;o long.<NOTE PLACE="marg">14 <HI>Eliz.</HI></NOTE> Not many yeers ago the cu&s;tome of Taundean was alleaged and allowed by the Court of the Kings Bench, that the husband or wife whether &s;o ever of them did happen to over-live &s;hould have the inheritance or Fee-&s;imple Land of the other by &s;urvivor, a cu&s;tome ve|rily
<PB N="62" REF="10">neither contrary to rea&s;on nor repugnent to Religi|on, as no well di&s;po&s;ed or good husband can deny, when he entreth into con&s;ideration of tho&s;e holy duties and good ob&s;ervances that are commended and commanded in holy Scripture.<NOTE PLACE="marg">Read the Epi&s;tle to the <HI>Ephe&s;.</HI> ca. 5.</NOTE> If then the&s;e cu&s;tomes bear &s;way in &s;undry places, and are publickly approved by judiciall &s;entences, what Citizen will be &s;o &s;en&s;ele&s;&s;e, what <HI>Lon|doner</HI> &s;o loo&s;e; what Merchant or other free man &s;o in|con&s;iderate; and unregardfull of his own good e&s;tate, and &s;o ready to defile his own ne&s;t, as once to attempt or practi&s;e the violation or breach of &s;o good a cu&s;tome? What is he who &s;eeing the E&s;tate of <HI>London</HI> is preferred before other Cities of the Land, by the benefit and means of their mo&s;t profitable cu&s;tomes, that will give a dangerous example to abrogate the &s;ame, and to call their u&s;ages in que&s;tion? A cu&s;tome, if it have been once notoriou&s;ly di&s;continued, or interrupted, lo&s;eth the title and appellation of a cu&s;tome, and by in&s;tance given of the time when it was di&s;u&s;ed lacketh a great part of his au|thority. Then unnaturall or at lea&s;t wi&s;e unadvi&s;ed is that Citizen which to &s;erve his private humour bringeth a generall cu&s;tome either into que&s;tion by his fraud,<NOTE PLACE="marg">See before in the ca&s;e of Robbe|ry, how carefull the City was to a|void this danger and to pre&s;erve their cu|&s;tome, and and in the ca&s;e of the attaint be|fore 7 <HI>H.</HI> 6, &amp;c.</NOTE> or by his example into contempt. Pernicious al&s;o is the pre&s;ident of one cu&s;tome called in que&s;tion to the ruine of the re&s;t: Namely; when as the City by their Coun|fell in her Maje&s;ties Courts of <HI>We&s;tmin&s;ter,</HI> claiming the benefit of their cu&s;tomes, may be encountred and con|fronted, with a counter plea given by them&s;elves, that &s;uch of their own Aldermen and commons have by their deeds and devi&s;es either di&s;affirmed or di&s;anulled the &s;ame. A practi&s;e as of great condemnation in them that do it, &s;o no doubt of great over&s;ight and incircum&s;pecti|on in them that &s;uffer it.</P>
<PB N="63" REF="10">
<P>But &s;omewhat to &s;atisfie the idle cavils pretended to the contrary, &s;aith &s;ome one, is not the generall Law of <HI>England</HI> &s;ufficient to manage the government of <HI>Lon|don</HI> as well as of all other Subjects, but that <HI>Londoners</HI> mu&s;t have private cu&s;tomes and u&s;ages of their own? This objection made by the enviers or enemies of the wealth of <HI>London</HI> (how&s;oever they make &s;hew to the con|trary) rather de&s;erveth a hi&s;&s;e then a reply, and is &s;uffi|ciently confuted in the former di&s;cour&s;e.</P>
<P>But it is further urged by &s;ome hard husbands, My wife is froward and undutifull, and hath not de&s;erved it. Shee is a fool and cannot rule it. She will marry again, and enrich &s;ome other with the fruit of my travaile. Wherefore I think it nece&s;&s;ary to abridge her of that liberality which the cu&s;tome doth extend. Al&s;o my chil|dren be evill enclined, di&s;obedient or untractable, or &s;ome of them be. Wherefore I may with rea&s;on deprive them of the benefit of this cu&s;tome. Fir&s;t to an&s;wer the undutifulne&s;s, I wi&s;h thee who&s;oever thou art to &s;um|mon and convent thy &s;elfe to the tribunall &s;eat of thy inward minde, as Saint <HI>Augu&s;tine</HI> &s;aith,<NOTE PLACE="marg"><HI>Aug.</HI> in lib. confe&s;&s;.</NOTE> and to make con|&s;cience thy Judge, thy cogitations the Witne&s;&s;es, thy actions the accu&s;ers, thy memory the regi&s;ter or record to give in evidence: and let it be di&s;cu&s;&s;ed in all due cir|cum&s;tances, whether thou did&s;t not likewi&s;e forget the offices of a good husband and defraud her of her duties, (as Saint <HI>Paul</HI> &s;aith) or provoke her to impatience which the &s;ame Apo&s;tle forbiddeth in the&s;e words,<NOTE PLACE="marg">1 <HI>Corinth.</HI> ca. 7. <HI>Col.</HI> ca. 3.</NOTE> <HI>You husbands be loving to your wives, and no way be bitter unto them.</HI><NOTE PLACE="marg"><HI>Peter</HI> E|pi&s;t. 1. ca. 1.</NOTE> Which al&s;o S. <HI>Peter</HI> remembreth in advi&s;ing husbands to dwell with their wives &s;incerely and according to know|ledge in doing honour unto them as to the weaker Ve&s;|&s;ell.
<PB N="66" REF="11">Let it I &s;ay be examined in the con&s;i&s;tory of thy con&s;cience whether thou either by thy fault wittingly, or negligently by thy default, or by thy unkindne&s;s undu|ly, ha&s;t cau&s;ed her being the weaker ve&s;&s;ell to bee the more intolerable. If thou find thy &s;elfe condemned by thy con&s;cience, let remor&s;e be thy executioner, and a|mendment with kindne&s;s towards thy wife be thy pe|nance: but if thou finde thy &s;elfe guilty of no want of af|fection, love or good carriage of thy &s;elfe towards her, &s;o that her undutifulne&s;s proceeded of her &s;elfe: yet I pray thee remember the benefits which God hath given thee by her means, whether they be gifts of fortune in bet|tering of thy e&s;tate, or e&s;chewing of &s;in, by her lawfull and comfortable company, or the ble&s;&s;ing of children, a &s;overaign good in this world, thy children being the monuments of thy life and being upon earth, and the re|payrers of thy decay. And let the&s;e favours and graces enjoyed by her company cover and countervaile her o|ther imperfections what&s;oever. Follow therein the ex|ample of the wi&s;e <HI>Socrates,</HI> who being demanded how he could endure the continuall &s;colding and vexation of his wife <HI>Xantippe,</HI> likewi&s;e asked of the other why he &s;uffer|ed the cackling and unplea&s;ant noi&s;e of Hens and Tur|keyes in his hou&s;e, Becau&s;e &s;aid the other they lay Egges and breed Chickens for me: and &s;o &s;aid <HI>Socrates Xantippe</HI> beareth me Children, which good turn alone covereth and di&s;pen&s;eth with infinite defects. <HI>Callicratides</HI> the Athenian being demanded why hee a man &s;o nobly de|&s;cended, but having matched with a ba&s;e <HI>The&s;&s;alian</HI> wo|man, yet by his la&s;t Will bequeathed unto her all his &s;ub|&s;tance, leaving his other friends and kinsfolkes unregar|ded: becau&s;e (&s;aid he) &s;he is my wife, meaning that &s;hee
<PB N="67" REF="11">who was by his judgement and choice made worthy to be his wife, &s;hould bee unworthy of nothing that was his. Which may al&s;o &s;atisfie that &s;econd point of &s;uppo&s;ed folly in the wife, &amp; want of di&s;cretion to mar&s;hal &s;o great a proportion of wealth, as the cu&s;tome will give her. Wherefore woulde&s;t thou mary with a fool, if thou thoughte&s;t her unworthy of the rights of mariage? then &s;eeing thy choice hath e&s;topped thy Te&s;timony of her folly, thy duty towards thy wife &s;hall binde thee to fa|vour and conceale her weakene&s;s, and to perform that which the cu&s;tome pronounceth to be convenient. It can|not be evill be&s;towed upon her, who&s;e right by cu&s;tome demandeth it, and who&s;e e&s;tate and imperfections have need of it, whereas if the husband may be permitted by this colour to defeat his wife, many inconveniences and di&s;orders might en&s;ue.</P>
<P>Fir&s;t a generall cu&s;tome,<NOTE PLACE="marg">Leges &s;e accommo|dant ad ea quae fre|quentius non quae raro acci|dunt. <HI>Bartolus.</HI></NOTE> which is as al&s;o a generall Law, never provided for &s;uch rare accidents as &s;eldome fall in experience, but for things that ordinarily and com|monly happen, &s;hould be broken, to the generall &s;can|dale and offen&s;ive example of all through the inhability of one, which were a thing unrea&s;onable. Likewi&s;e then might husbands, (if that were admitted for a ju&s;t allega|tion) ea&s;ily devi&s;e and publi&s;h that or &s;ome other imper|fection to be in their wives, and thereby bereave them of their right. No more then it is a ju&s;t counterplea or barre to a womans dower to alleage that &s;he is a fool, no more is the imputation of &s;uch &s;implicity hone&s;t and &s;ufficient to exclude her from her Portion. No it is well &s;aid and maintained for a <HI>Maxime</HI> in the Common Law, <HI>Better it is to &s;uffer a mi&s;chiefe then an inconvenience.</HI> Le&s;&s;e harmfull and hatefull it is for a man to &s;wallow
<PB N="66" REF="12">twenty of the&s;e light offences, and to dige&s;t &s;undry of the&s;e preten&s;ed &s;cruples, then by violating of a cu&s;tome no le&s;&s;e common then commendable to leave to po&s;teri|ty an odious memory and obloquie of his name.</P>
<P>The la&s;t objection again&s;t wives is no le&s;&s;e ridiculous then Tyrannicall, grounded upon an unju&s;t de&s;ire to re|&s;train them from mariage. Mariage is an honourable Ordinance of God, fit and nece&s;&s;ary for all per&s;ons di&s;|po&s;ed thereunto, to the avoiding of &s;inne, and mainte|nance of a comfortable and &s;ociable Chri&s;tian life. To re&s;train or prohibit the &s;ame either in maides or widows, (as Saint <HI>Paul</HI> &s;aith) is the doctrine of divells.<NOTE PLACE="marg"><HI>Tim.</HI> ep. 1. ca. 4. 43 <HI>E.</HI> 3.6.</NOTE> And to indent or condition with any that he or &s;he &s;hall not ma|ry, is a condition limited again&s;t Law, and by the &s;ame pronounced unlawfull and unrea&s;onable. Make it thine own ca&s;e, admit thou dide&s;t match with a wealthy wife, who&s;e furniture and riches hath increa&s;ed thy E&s;tate, if God &s;hould call for her, woulde&s;t thou in a kinde memo|riall of the benefits attained by her meanes, make thy &s;elfe a votary to live unmaried? Do tho&s;e which mary great Heires being women, and after their wives deaths enjoy their whole inheritance by the curte&s;ie of <HI>England,</HI> making their wives heires to expect during their lives, take it for any matter of con&s;cience or &s;cruple to mary again? Unle&s;&s;e it be in &s;ome place where the force of the cu&s;tome and the benefit of the living joyned together work a contrary re&s;olution in &s;ome husbands: which cu|&s;tome annexed to <HI>Gavelkinde</HI> Lands in <HI>Kent</HI> and other places is of this quality,<NOTE PLACE="marg">16 <HI>E.</HI> 3. aid 129. 19 <HI>E.</HI> 3. aid 144.</NOTE> that the husband &s;hall after the decea&s;e of his wife be Tenant by the curte&s;ie of her land as long as he remaineth unmaried, whether he have i&s;&s;ue by her or not: but upon his next mariage &s;hall utterly
<PB N="69" REF="12">forgo all his intere&s;t therein. A cu&s;tome therefore the le&s;&s;e unrea&s;onable becau&s;e the re&s;traint of mariage of the one &s;ide is countervailed by the beneficiall favour of the other &s;ide to have the land by the curte&s;ie without i&s;&s;ue, and al&s;o for that hee is to deprive the next Heire of his wife, who perchance hath been maried with him but few moneths or dayes, of the profit and commodity of the whole Land during his life. But chiefely becau&s;e it is a cu&s;tom grounded and grown in continuance to &s;uch reli|gious ob&s;ervation and regard, that it &s;eemeth an offence of con&s;cience to infringe it. But in our ca&s;e &s;ithence there is neither cu&s;tome nor con&s;cience to warrant thy will, why &s;houlde&s;t thou then &s;eem to quarrell with the law|full liberty of thy wife, if &s;he &s;urvive thee, &s;he being weak by kinde and education, and thereby le&s;&s;e able to direct her occa&s;ions, and govern her e&s;tate without a compani|on and coadjutor? no, on Gods name referre her to her own choice and con&s;cience therein, and make it no pre|ten&s;e and colour to abridge her of her right, becau&s;e &s;hee &s;eemeth inclinable unto that, which God hath ordained, and all men and women do embrace. As to the fear and &s;u&s;picion pretended, that another in matching with thy wife &s;hould be enriched by thy travaile, what &s;hould move thee to make that &s;uper&s;titious account of thy goods when thou art gone? Were they any longer thine, then while thou had&s;t life and licence to employ them? Thou mu&s;t needs know and acknowledge be&s;ides thy daily experience, by the very Etymologie and &s;ignifica|tion of the word, the true nature and quality of the thing. The&s;e worldly goods are called temporall, be|cau&s;e they &s;erve one but for a time; they are termed tran&s;itory, for that their property is fleeting from one
<PB N="70" REF="13">owner unto an other; they are named moveable or cur|rent, becau&s;e all their grace and credite is in running and removing into divers hands, according to that rude and old (but yet true) Latine rime.</P>
<Q><L>Omnia mundana per vices &s;unt aliena,</L>
<L>Nunc mea, nunc hujus, po&s;t mortem &s;unt alterius.</L>
<L>This worldly wealth each day doth change</L>
<L>Their owners as we &s;ee,</L>
<L>Now mine, now his, and after death</L>
<L>An others goods they be.</L></Q>
<P>Then &s;ithence thy wealth hath waited upon thee all thy life long, woulde&s;t thou require the &s;ame to re&s;t at thy devotion after thy death? If that &s;eem impertinent and unprofitable unto thee, then relinqui&s;h this care and &s;uf|fer the goods of this world to have their naturall cour&s;e and condition, which is to be &s;till in exchange, pa&s;&s;age, and po&s;ting from hand to hand, &s;erving all men, <HI>ut pere|grinationis viaticum,</HI><NOTE PLACE="marg"><HI>Hierony|mus</HI> in E|pi&s;t.</NOTE> That is, <HI>A Pilgrims charge or defray|ment in his journey,</HI> as Saint <HI>Hicrome</HI> termeth it. And addre&s;s thy minde to the de&s;ire of &s;uch goods as are nei|their temporal, tran&s;itory, current nor moveable, but per|petuall, permanent, con&s;tant, and not onely immutable but ine&s;timable.</P>
<P>But finally to &s;atisfie the la&s;t objection again&s;t thy children, I wi&s;h thee to look back unto that I have &s;aid, that thou maye&s;t not for a private injury or di&s;plea&s;ure, &s;eem as much as lyeth in thee to &s;upplant and abrogate a publick cu&s;tome, to the no le&s;&s;e prejudice then offence of a great number that have intere&s;t therein. In enrich|ing thy Son, thou do&s;t di&s;charge the duty of a naturall fa|ther towards him, which if hee prodigally or wickedly mi&s;pend or abu&s;e, he carryeth his own condemnation and
<PB N="71" REF="13">proveth a wilfull enemy to him&s;elfe.<NOTE PLACE="marg"><HI>Luke</HI> 2.25.</NOTE> The good father mentioned in the Go&s;pell, who at the &s;uite of his un|dutifull and di&s;obedient Son, (that would needs abandon the &s;ervice and attendance on his father to run the cour&s;e of an extravagant Libertine with lewd company) gave him a great portion of his wealth, is not any way blamed by our Saviour for that indulgence, but rather recom|mended to all po&s;terity as a true Pattern of a kind father. Saint <HI>Paul</HI> commandeth the father to be well affected to his children, and no way to di&s;courage them.<NOTE PLACE="marg"><HI>Col.</HI> c. 3.</NOTE> What may breed greater di&s;couragement or di&s;contentment in any childe, then to &s;ee him&s;elfe by the place of his birth, and the good fortune of the City intitled to the commodity of a good cu&s;tome, and yet injuriou&s;ly by his own father, (who&s;e affection &s;hould be alwayes occu|pied and earne&s;t in procuring the good of his children) di&s;appointed of his hope &amp; defrauded of his right. And as well as &s;ome having ju&s;t cau&s;e of di&s;plea&s;ure again&s;t their Sonne and childe, may in this unlawfull and di&s;orderly &s;ort practi&s;e their revenge, &s;o may &s;ome other incon&s;i|derate and wilfull father upon a conceipt taken again&s;t a good Sonne and of &s;ingular de&s;ert, for that he concur|reth not with him in &s;ome humour or di&s;po&s;ition, mo&s;t wrongfully di&s;tre&s;&s;e and undo him by &s;uch a pre&s;ident. Thus the mi&s;chiefes objected on the one &s;ide are light and of &s;mall moment, whereas the inconveniences ap|parent on the other &s;ide be manifold and of dangerous con&s;equence.</P>
<P>I will not vouch&s;afe to an&s;wer that undi&s;creet <HI>Sarca&s;|mus</HI> or bitter &s;coffe that &s;ome u&s;e, <HI>We may play our wealth at dice without offence to the cu&s;tome, wherefore &s;hould wee not then di&s;po&s;e the &s;ame from our wife and children</HI> by our
<PB N="72" REF="14">deeds of gift? This amounteth to as much as if a maried man would &s;ay, I may commit felony or trea&s;on, and be attainted and hanged therefore, and then the Law giveth my wife no dower, nor my heire no patrimony, then why &s;hould I not in rea&s;on u&s;e my di&s;cretion with the Land without incumbrance by the one, or injury to the other? Match the&s;e two ca&s;es together with judge|ment, and thou &s;halt perceive they have a &s;en&s;ible con|currency in their addre&s;s and application to this purpo&s;e. It is well &s;aid by the Poet.</P>
<Q>il juvat exemplum quod litem lite re&s;olvit.</Q>
<P>The example of one wilfull or wicked act giveth no ju&s;t countenance or allowance to another. Let &s;o much &s;aid to thy objections take &s;ome place to alter thine hu|mour, or at lea&s;t be a preparative for thine own rea&s;on in the fear of God to purge thee of the &s;ame.</P>
<P>But to conclude this &s;hort di&s;cour&s;e with one con&s;i|deration of great importance, I wi&s;h thee to con&s;ider, that this City of <HI>London</HI> is and hath been happily pre|&s;erved in this flouri&s;hing pro&s;perity by the wi&s;e and po|litick con&s;ent that all and alwayes the particulars have had to increa&s;e the generall good e&s;tate thereof, thinking it their duty as they got and acquired their &s;ub&s;tance in this City, &s;o al&s;o to &s;pend and defray it in the &s;ame: in|&s;omuch that what&s;oever falleth from the one commeth and groweth unto another, and by alteration of private fortunes (as chances and changes of times doe require from one Citizen to another) the generall e&s;tate hath flouri&s;hed, and never wanted particular men of wealth and ability to &s;u&s;tain the offices and functions of the City. Upon which con&s;ideration by mo&s;t laudable and antient Cu&s;tome, the Lord Maior and Senate of <HI>Lon|don</HI>
<PB N="73" REF="14">have been and are intitled to the tuition and cu&s;tody of young <HI>Orphans</HI> and their goods, and likewi&s;e are made acquainted by ordinary good means of inventaries taken and produced, what &s;ub&s;tance and wealth each man dyeth po&s;&s;e&s;&s;ed of, to the intent that although that man which by his good travaile and Trade hath grown to be rich among them, be departed hence, yet his goods may remain as among his wife and children in u&s;e and property, &s;o to the generall &s;trength of this City in ac|count and reckoning. For wee often &s;ee that one rich mans wealth pa&s;&s;eth to the increa&s;e of the good e&s;tate of another Citizen, either by mariage of the widow, or of the Orphan: &s;o that the City though deprived of a member or inhabitant, yet is not de&s;titute of &s;uch as may di&s;charge his employment and place. Whereas if this pernicious practi&s;e and uncharitable liberty might take root by deeds of gifts and cautelous conveyance to &s;trangers, not onely the wife and children may be di|&s;tre&s;&s;ed, but al&s;o the &s;tate of the City much weakened, and in danger of a great di&s;reputation and decay, from that that it hath bin and yet is. For if it be adjudged law|full in one, of what degree &s;oever he be, it is neither im|po&s;&s;ible nor unlikely, that the &s;ame will be u&s;ed by ma|ny, and con&s;equently may be practi&s;ed by all: which if it befall, what will become of the happy condition of this City, it is not hard to conjecture. I mean not to extend my &s;peech to the prejudice of any true debts that a man oweth without fraud or collu&s;ion, &s;eeing the cu|&s;tome very providently careth for the di&s;charge thereof, but my purpo&s;e is to di&s;&s;wade men from evill example, from in&s;olent violation of good cu&s;tomes, and from o|dious and un&s;eemly practi&s;es of deceit and evill meaning
<PB N="74" REF="15">towards their wives and children: Which per&s;wa&s;ion I would wi&s;h all profe&s;&s;ors of the Law &s;eriou&s;ly and care|fully to u&s;e and enforce to their clients, being Citizens of <HI>London,</HI> as in good con&s;cience and di&s;cretion they ought to do.</P>
<P>Blame not my bold enterpri&s;e (gentle Reader) nor reprove my &s;imple cen&s;ure herein pre&s;ented unto thee,<NOTE PLACE="marg">An Apo|&s;trophe to the Reader, and the motive of this Trea|ti&s;e.</NOTE> which might I know both for the matter &amp; manner of it have been by any other, and perchance by my &s;elfe more largely and effectually delivered: if the opportunity of my lea&s;ure might have an&s;wered the quality of the argu|ment which I had in hand. But fearing le&s;t I &s;hould with too long a di&s;cour&s;e in &s;o plain a propo&s;ition breed more loth&s;omne&s;s then liking, I would not, for want of lea&s;ure I might not, and if I had had time at will I mind|ed not (&s;eeing for any urgent occa&s;ion, the error being yet fre&s;h, the practi&s;e rare and not grown to an enormi|ty, I needed not) but in a word or two to make thee ac|quainted with the cau&s;e that moved me to addre&s;&s;e the&s;e few rea&s;ons to thy gentle view, So it happened, that I being in company and conference with &s;ome per&s;ons (though otherwi&s;e wi&s;e &amp; wel-affected, yet in this matter &s;trangely conceited) it chanced that the lawfulne&s;&s;e and conveniency of this cu&s;tome came in que&s;tion and de|bate among us, and was by &s;ome of them (being men for &s;ufficiency, of great opinion, and for countenance and credite of good apparance and regard in the City) &s;o pre&s;&s;ed with objections, that the mo&s;t part of tho&s;e which were pre&s;ent &s;eemed to encline to that per&s;wa&s;ion. Wherefore le&s;t the authority of the men might the &s;oo|ner &s;educe the &s;imple multitude unto their error, and for
<PB N="75" REF="15">that I thought it a charitable policy to prevent the perill in the prime, before it grew to a fe&s;tering &s;ore or incura|ble evill, according to the Poet <HI>Ovids</HI> advi&s;e,
<Q><L>Principiis ob&s;ta: &s;ero medicina paratur,</L>
<L>Cum mala per longas invaluere moras.</L>
<L>VVith&s;tand at fir&s;t the &s;pringing evill</L>
<L>VVith medicines fit therefore,</L>
<L>Too late it is to take the cure</L>
<L>Of old and fe&s;tred &s;ore.</L></Q></P>
<P>I thought good to apply this &s;imple Receipt of rea&s;on to the minds of all &s;uch as &s;hall chance to be di&s;tempered be the&s;e di&s;&s;wa&s;ions: hoping that they will yeeld me that friendly requitall of good con&s;truction, which my offer|red good will may &s;eem to de&s;erve: and although I keep my &s;elfe unnamed, and unknown, it may plea&s;e them to have this opinion of me, no more favourable then rea&s;on|able, that he which is well devoted to the defence of good cu&s;tomes, is rather to be ju&s;tified in his good mean|ing, then condemned or held &s;u&s;pected of any &s;ini&s;ter conceipt.</P>
</DIV1>
</BODY>
<BACK>
<DIV1 TYPE="table of contents of missing part">
<PB REF="16" MS="y">
<HEAD>The Table.</HEAD>
<LIST>
<ITEM>GOvernours Charge.</ITEM>
<ITEM>Pre&s;ident. <HI>Fol. 4</HI></ITEM>
<ITEM>Trea&s;urer. <HI>ibid.</HI></ITEM>
<ITEM>Surveyors. <HI>Fol. 6</HI></ITEM>
<ITEM>Almoners. <HI>Fol. 7</HI></ITEM>
<ITEM>Scrutiners. <HI>Fol. 9</HI></ITEM>
<ITEM>Admonition to the Auditors. <HI>Fol. 10</HI></ITEM>
<ITEM>Orders for keeping the Evidences. <HI>Fol. 11</HI></ITEM>
<ITEM>The Renter Clerk and his Charge. <HI>ib.</HI></ITEM>
<ITEM>The Ho&s;pitalers Office. <HI>Fol. 17</HI></ITEM>
<ITEM>The Stewards Office. <HI>Fol. 19</HI></ITEM>
<ITEM>The Matrons Office. <HI>Fol. 20</HI></ITEM>
<ITEM>The Si&s;ters Office. <HI>Fol. 22</HI></ITEM>
<ITEM>The Chirurgians. <HI>Fol. 23</HI></ITEM>
<ITEM>The Porter. <HI>Fol. 24</HI></ITEM>
<ITEM>The Bedells. <HI>Fol. 26</HI></ITEM>
<ITEM>The Vi&s;itor of <HI>Newgate. Fol. 27</HI></ITEM>
</LIST>
<TRAILER>FINIS.</TRAILER>
<PB REF="16">
</DIV1>
</BACK>
</TEXT>
</EEBO>
</ETS>
