WE finde it necessarie in all common wealthes, for subiects to liue vnder the direction of Lawes, constitutions or customs publickly knowen and receiued, and not to depende only vpon the comman­dement and pleasure of the gouernor, be the same neuer so iust or sincere in life and conuersation. For that the Law once enacted and established, ex­tendeth his execution towards al men alike without fauour or affection: whereas if the word of a Prince were a lawe, the same being a mortall man must néedes bee possessed with those passions, and inclinations of fauour or disfauour y^t other men be: and some­times decline from the constant & vn­remoueable leuell of indifferencie, to [Page 4]respect the man besides the matter, if not to regard the person more than the cause. Wherfore it was wel agréed by the wisest Philosophers and greatest politicks, that a dumme lawes directi­on is to be preferred before the sole dis­position of any liuing Prince, both for the cause afore touched, and for other reasons which I will here omit. But to descend to the particularities of my intention, and to treate of the validi­tie and inuiolable obseruation of some laudable (I might terme them sacred) customes, being the principall ioyntes and verie sinowes of all good corpora­tions and fellowships, and being also the mainteiners of a sacred vnitie and natural amitie betwéene the husband and his wife, the parentes & their chil­dren, which (as Aristotle the wise Philosopher termeth it) is the begin­ning of a citie. For what is a citie but a manifold and ioynt societie consisting of many housholdes, and liuing vnder the same Lawes, fréedomes and fran­chises? so I must néedes confesse them to be the procurers & causes of sundry [Page 5]good effectes to the general estate of the citie wherein they be obserued: as of the other side they may bréede sundrie inconueniences in such a citie where the same are violated and broken with allowance and impunitie. I will ther­fore shortly shewe the nature of a Cu­stome, and the difference which it hol­deth from a publicke Lawe. And next I will declare how necessarie the same are to manage the gouernment and to entertain the prosperitie and traffique of this citie: and namely that one good custome which I entende to speake of. Lastly, I wil endeuour to aunswere those pretensed reasons, and couloura­ble obiections made against the precise maintenance and defence thereof.

First then I suppose that a Custome which iustly deserueth that name, is of no lesse reuerent regarde and authori­tie than a written lawe, passed and al­lowed in Partliament: which notwith­standing I doe graunt that there are certaine differences betwéene a lawe and a custome: for the Custome taketh his force by degrées of time, and consent [Page 6]of a certaine people, or the better part thereof, but a lawe springeth vp in an instant, & receiueth life from him that is of soueraigne authoritie to cōmand. A Custome enlargeth it selfe by plau­sible entertainement, and acceptable circumstances of time & occasion, with generall liking and allowance, where­as a Law is commanded and published by power and receiued by dutifull con­straint, and that often against the good­will of them that are bounde by it, for which cause Chrysostome not impro­perly compared the Custom to a King, and the Lawe to a tyrant. Moreouer the Custome doeth neither promise a rewarde for obseruation, nor inflict a punishment for violation therof: wher­as the Lawe alwaies importeth either a consideration of gaine, or a terror of punishment or damage, if the same be not a Lawe of enlargement or permis­sion that disanulleth the prohibitions of a former Lawe. Finally a Custome is applyed to the commoditie of some one prouince, circuite or citie, and grounded vpon a speciall reason of conueniencie [Page 7]or cōmoditie, for those persons or place where it is obserued: whereas the Lawe hath a generall reason,See 34. H. 8. B. custome, 59. A mā may not prescribe or plead a cu­stome per to­tam angliam, for that is cōmon law & no custome, otherwise if the custome had beene pleaded to be in such a citie or countie as Gauelkind Gloc. Fee and such like. exten­ded to the whole Nation bound by the same, without priuate consideration of the due importances, of any peculiar place or people. Therefore it is well saide and put in vre by the common Lawyer, Quod consuetudo ex rationa­bili causa profecta priuat communem le­gem. That a Custome grounded vppon reasonable and honest consideration a­bridgeth or altereth the iudgement of the cōmon Law. So that in Customes the estate or condition of the people are to be respected, and such Customes as are consonant to reason, and most ap­pliable to the estate and qualitie of such people, are to be allowed. For example the Custome of Boroughenglish,Burchenglish. yet in force in sundrie places of Englande, whereby the younger sonne is to in­herite his fathers lande, hath taken strength by this reason, that the father may (if he be not careles and secure to doe his children good) traine vp his el­der sonnes in some good trade or occu­pation [Page 8]by which they may bee able to get their owne liuing: whereas the youngest, by the impotency and tender­nesse of his yeares, may be perchaunce vnapt and vnable for such instruction. And so the Custome commendable that prouideth for the reliefe of the young and impotent. Also by an olde custome of this lande, in sundrie boroughes and townes, landes were deuisable by wil, though the Lawes of Englande pro­nounced such deuises to be voide, and the reason was,But see now the statute of 32 H 8. ca 2 and 34. H. 8. c. 5. of Explana­tion. for that inhabitants of Boroughes or Cities, whose traffique and trade resteth much vppon mutuall trust & credite, are oftentimes indeb­ted at the time of their death. Where­fore it was thought méete, that they might deuise their lande for the due sa­tisfaction of their creditors, which to do, they were enabled by the Custome. In Kent and other places of this lande the Custome of Gauelkind is maintei­ned, which importeth an equall diuisiō of the enheritance to be made among all the brethren: a Custome partlie grounded vpō a natural consideration, [Page 9]for that al the sonnes holde the like ob­ligation of nature & desert with their parentes, in the which they haue an e­quall interest: and also suffered to take place in Kent and other places of this lande in those daies most inclinable to rebellion, to the intent to enféeble their forces, and to bring their great houses and families to impuissance and decay, thereby to disable and discourage them from such vnlawefull and violent at­temptes.

And to come néerer to the matter, this famous and renowned citie of London hath many laudable and auncient Cu­stomes: which though they derogate and differ much from the rules of the common Lawe, yet haue they béene not onely approoued by inuiolate expe­rience of sundrie ages, but also haue béene of olde ratified and confirmed by sundry actes of Parliament, and char­ters of Princes, and namely by the statute of Magna Charta, by these wordes following,Magna char­ta. cap. 9. Quod ciuitas London habeat omnes libertates suas antiquas & consuetudines quas habere consueuit, [Page 10]which is, That the citie of Londō haue all their auncient liberties & customes which they haue vsed to haue. The words folowing for other cities, &c. be, Quod habeant omnes libertates & liberas consuetudines suas, which signifieth, that they shall still retaine their liberties & free customes, that is to say, their frée­domes & immunities, as to be dischar­ged of tolle, pontage, and such like: Whereas the Citie of London hath prouision made by that estatute, for all vsages and customes whatsoeuer. Ve­rily as y^e citie of London beareth oddes, and prerogatiue ouer other cities in England, being the Metropolis or mo­ther Citie thereof, so are the inhabi­tantes of it no lesse necessarie than pro­fitable members of the cōmon wealth, in transporting our commodities into other lands, and enriching vs with the benefits and fruits of other countries. The citie of Rome, and Citizens of the same had that prerogatiue as in o­ther thinges so also in their executi­ons for causes capital, that they should not be crucified, being a death of great [Page 11]torment and infamie, but only behea­ded. The benefit of which Custome S. Paule claymed and obteyned in the time of Nero: pretending that he was a citizen of Rome. The saide Citizens also by the dignitie and reputation of their citie were not for any transgressi­on or offence to be fettered, whipped, or scourged, which priuiledge likewise the saide S. Paule toke hould of, who being oppressed by the calumnious accusati­ons and outcries of the Iewes, was by commandement of Claudius Lisias the captaine to be examined by torture of whippes,Actes. 22. what was the cause of that generall murmure and exclamation of the people against him: yet S. Paule by alleadging that he was a frée man of Rome, not onely deliuered himselfe frō the iniurie and rage of the people, but also made the captaine much afraide of question or punishment for the indigni­tie offered vnto him, so great was the maiestie of that Citie, and so reuerent the reputation of all such as were ac­counted members thereof. Athenaeus termed Rome in those daies very fitly, [Page 12] Epitome totius orbis, an abridgement of the whole worlde, for the continuall concourse and resort of all nations thi­ther. We may deriue thence an argu­ment for our purpose, that London bee­ing woorthie that title, Epitome totius Angliae in respect of the necessarie re­paire & frequent assemblie of al estates therein, whether it be for Iustice by the Lawes of this land, which are here administred, or by trade of marchan­dise, which is here so great that it may be termed totius occidentis emporiū: and chieflie because of the fauorable and of­ten soiorne of our most roiall and graci­ous soueraigne, whose maiesties cham­ber this is as it alwaies hath béene of her most noble progenitors: the same is no lesse woorthy of sundry preheminen­ces which by Custome and Charter it enioyeth aboue other Cities of this lande.

We finde in our Lawe bookes that the scholers of Oxford claymed a pri­uiledge by custome to haue preferment of any house or lodging that was to be lette in the citie of Oxforde,40. E. 3. fo. 17. Vide Brooke, Prescr. 8. & the same [Page 13]was allowed in the common place in Westminster, where Iustice Finchden a man of great reckoning at that time saide, that it is reason that they which are principal instruments of great good in the common wealth, should haue be­neficiall customes for the maintenance of their societies: the like reason (saith he) serueth for the merchantes of the staple in Westminster, and also for the Iustices of Assises, or Iustices in eyre, to haue the like prerogatiue. Also it is not vnfitte to remember, that the ba­rons of the lande haue diuers preroga­tiues aboue other subiectes, that is, they shall not bee sworne when they passe vppon their Péeres, and if they bring an appeale, the defendant shall not wage battaile against them, and they are exempted out of all returnes in Iuries, and shall not be sworne in Léetes, and all in respect of their digni­tie and for the necessarie vse of them in gouernement of the common wealth. So that persons of néedefull employ­ment in the estate, haue alwaies béene sauoured in all their honest Customes [Page 14]or prescriptions, and especially the Citizens of London, and the rather for the great presumption and opinion con­ceiued of their experience, who being trayned by harde education, in great vse of seruice and affaires: and also by their trauaile and traffique beyonde the seas, by continuall negotiation with other Nations must néedes (by al reasonable likelihoode) procure vnto themselues great iudgement and suffi­ciency, to manage a politicke regiment in their citie, according vnto that verse of the Poet Homer in the beginning of his treatise of wise Vlisses his aduen­tures remembring his trauaile into sundrie Nations and Cities.

The sense whereof may be wel ex­pressed in English verse without time thus:

Which opinion of their pollicie and experience conceiued and approued by the noble Princes of this lande, in all ages doeth euidently appeare by the manner of their gouernment, whereat strangers do no lesse enuie than admire séeing so populous a citie, conteyning by true estimation more then 500 thousandes of all sortes of inhabitants managed not by cruell viceroyes, as is Naples or Millaine, neither by proude Podestà, as be most cities in Italie, or insolent Lieuetenantes or presidentes, as are sundry Cities in France, (whose presidents are noble men or captaines, hauing their persons enuironed with a guarde of souldiers, and holding their cities possessed with a garrison aswell in the quietest calme of peace as in the hoatest combustion of warre) but by a man of trade or a méere marchant, who notwithstanding, during the time of his magistracie, carieth himselfe with that honorable magnificence in his port, and ensignes of estate, that the Consuls, Tribuns or pretors of Rome, [Page 16](namely, when as the same was redu­ced to a monarchie) much lesse the Podestà of any citie in Italie neuer bare the like representation of dignitie, and that not onely in peaceable seasons but in time of greatest warre: for such cre­dite the Princes of this lande haue stil reposed in their fidelitie and wise dire­ction, that we haue fewe examples in any chronicle of any noble man or o­ther appointed to assist the L. Maior in his gouernment, much lesse to bee sole ruler or lieutenant for the time, were the state neuer so troublesome, and the affaires of neuer so great con­sequence and importance.

And to adde a litle more in proofe of the singular good conceipt had of their seruice to the common wealth, and that the same hath in al ages from the con­quest giuen them prerogatiue aboue o­ther cities of this lande, wee reade in the vij yeare of Henrie the vi,7. H. 6.32. that in a natiuo habendo brought by the Lorde to recouer his villen, it was adiudged a good returne made by the Shiriffe of London, that such was the Custome of [Page 17]London, that a villen hauing remained there the space of one whole yeare and a day, could not be fetched or remoued out thence. For so great is the preroga­tiue of that place, that it giueth prote­ction to the villen or bondman against his lord while the saide bondman shall be resiant there. Likewise it was ta­ken for a good custome in the citie of London, that no attaint should be maintained for a supposed false verdit giuen in that citie.7. H. 6.32. & the same case was ad­iudged in 2. E. 3. In the which case the Shiriffe of London made returne vpon a writ of attaint sued against a Londoner, that such was and had béen alwayes the custome of the citie, that no attaint should be allowed against any commoner or other citizen of the same, for which cause he might not saluis libertatibus without impeachmēt of their liberties, serue or execute the writ. Then was there a writ directed out of the Chauncerie to the Iustices of the Kings bench with expresse com­maundement to allowe to the Maior, Shirifes and Citizens all their liber­ties, immunities & customes, and fur­ther [Page 18]out of that writ was a Venire fa­cias directed to the Maior & Shiriffes, whereby was day giuen them to come and make declaration of their custom, at which day the parties plaintife and defendant being present, the Maior & Shiriffes had full allowance of their customs, the Shiriffes were holden ex­cused for their returne, and the par­ties writ was abated, and himselfe punished by imprisonment for his vex­ation. I haue here at large remem­bred this case, to the ende it may ap­peare both what credit and opinion of conscience and trueth, the lawe ascri­bed to the citizens of London, and also how carefull and vigilant the Maior & Shiriffes haue alwayes béene to pre­serue & vphold their customs, although sithence that onely custome was for especiall causes abrogated by the sta­tute of 11. H. 7. and an attaint giuen in London.11. H. 7. ca. 21. Moreouer, we finde it re­corded in M. 2. E. 3. that whereas a ci­tizen of London brought an appeale of robberie,M. 2. E 3. cor. pl. 157. and the defendant would haue tryed his innocencie by battaile, [Page 19]as he may in semblable case against another man, Wilby then Iustice an­swered him, that he was not to haue allowance of battaile in an appeale commenced by a citizen of London, for that by custom of their citie they were exempted from it. The like appeale was sued P. 20. E. 3. wherein the defendant made offer of the same tri­all.P. 20. E. 3. cor. pl. 125. And although hee that sued the appeale woulde haue ioyned battaile without regarde of this fraunchise, the Lorde Maior with the rest of the corporation sued a writ out of the Chauncerie reciting their custome or franchise, and prayed allowance of it in disturbance of the battaile 20. E. 3. Coron. 125.

If a frée man or frée woman of London be cōmitted to Ludgate, they are to be excused frō the ignominie of Irons, if they can finde suerties to be true prisoners, & if the summe be not a­boue an hundred pounds. Vpon the like reason is that custome established for the liberall and milde imprisonment of the citizens in Ludgate, whereby they [Page 20]haue indulgence & fauour to go abroad into any place by baston as we terme it, vnder the garde and superintenden­cie of their kéeper, with whome they must returne againe to the Prison at night, a custome verily, though qua­relled with by some, and supposed to be the hinderance and delay of Iustice, & oftentimes a meane to defraud men of their true debtes and executions, yet the ground thereof being well exami­ned, it wanteth not a sound mainte­nance in the course of reason (as I thinke.) For the prescription or custom is but a mitigation of the extremitie of their imprisonment, seruing rather for the expedition of their discharge & spéedie satisfaction of their creditours, than for any other purpose: so that this scope and licence in proper construction and sense of lawe, cannot be termed an enlargement or libertie. For to re­maine in the materiall prison in the night, and to go foorth out of the same in the day, vnder the restraint & con­troll of a continuall kéeper, is alwaies an imprisonment, though exercised [Page 21]with greater mildnesse & lenitie. And diuerse causes there are to warrant the same in London rather than in o­ther places: the one is for that the citie of London standeth chiefely vpon the traffique and intercourse of merchants and the vse of buying & selling of their sundrie commodities, which is not al­wayes perfourmed by themselues but by their factours and seruants, and of­tentimes one factor or agent serueth the turne of manie merchants, where­by he is pressed to sundrie and seuerall accountes. Wherefore to the ende the prisoners may enforme themselues v­pon their mutuall reckonings, both what they owe and what is due vnto them, and also that vpon conference & account with their agents returning from other countreyes they may be made acquainted with the increase of their aduentures or commodities, it is necessarie they should haue places of méeting which will not be so conueni­ent in a close prison, the same being no place of assemblie or frée accesse (especi­ally it being no common dutie in the [Page 22]Gaoler to permit any person to come among his prisoners for any such oc­casion) and if the Gaoler were bound to endure or suffer such common & vo­luntarie repaire vnto his prisoners, yet wil it be no fit place for marchants to treat & negotiate their causes which cannot be well determined without their bookes of accounts, and witnesses of their contracts, and oft must the same be decyded before the masters of their trades or companies. So y^t this custome made in furtherance of mutu­all accounts doth verie much enable the prisoner to procure his libertie and pay his det. Also if the prisoner be poore and of himself vnable to pay,Vide 4. E 6. plo▪ com. 36. this toleration of their going abroad with the kéeper is a good meane for him to procure the almes and reléefe of other charitable people, thereby the sooner to purchase his libertie. Whereby it appeareth what reckoning the lawe maketh of them, in consideration of their great hazard by sea (through dan­ger of shipwracke or piracie) and ad­uenture in strange countreys (by fals­hood [Page 23]and negligence of factours) or by warres betwéene Princes, the incon­ueniences and mischiefes whereof, are not so offensiue or preiudiciall to anie, as to merchants, whose condition as it may by a fortunate voiage be much enriched, and aduaunced: so may it by any of the mischaunces aforesaid, be so empaired & ouerthrowen, that it may turne himselfe, his wife, and familie to vtter calamitie and distresse. There­fore as the hope & comfort of the wife (hauing commonly no assurance of ioynture in the citie, nor expectation of dower as other women haue) and also of the children (being for the most part borne to no great patrimonie, other than that which their fathers shall by their vertuous industrie acquire) doth onely depend vpon the fortune of their husbands or fathers trauaile, it hath laudably and conscionably béene obser­ued for a custome, and is yet by the wi­ser and better sort religiously regarded that when any citizen of London dy­eth, his wife shall haue the third parte of his goods, and the children another [Page 24]third part, equally to be diuided a­mong them, according to the proporti­on of his goods, and himselfe another third part to dispose by his last will & testament at his pleasure. A partition so reasonable and grounded vppon so good consideration, (the qualitie and estate of the Londoners considered,) that if it were not approued by cu­stome, but to be proposed in the wisest and highest court of Parliament, whe­ther it were fit to haue the force of a law, I thinke no man (vnlesse he were a Timon by nature, or a Diogenes by disposition) no man I say possessed with common humanitie would gainesay or impugne it. Doth not the common law now in force giue the husband pre­sently by the intermariage al the goods and chattels of his wife, though the same be of the value of 10000. pounds, so that when shée is once his wife, the law disableth her to giue or dispose a­ny thing that was hers before? And shall not the husband be bound by sem­blable obligation of reason to leaue his wife the third part of his goods, and if [Page 25]the lawe be in that respect defectiue (as what law in the world, except the law of God, is without his imperfections?) shall not the custome supply it in such sort that no barbarous and vncharita­ble or cautelous, and vnkind practises by déede of gift, or otherwise, shall disa­point or defraud the same? especially here in London, where the good estate of men, for the most part consisteth in mouables, by reason of their continu­all trades and exchanges, so that their wiues cannot assure thēselues of their dowrie cōmonly called thirds, as they might if their husbands were seased of lands in fée simple. Also the comforta­ble socitie betwéene husband & wife, is of that pretious estimate and hono­rable reputation before God and man, that there may not possibly a more sa­cred and straite coniunction be ima­gined among the children of men. Charondas the Philosopher calleth them Homosipios, which signifieth, fedde with the selfe same foode. And Epimenides another Philosopher cal­leth them Homocapuos, which is as [Page 26]much to say, as vsing the selfe same smoke, and the selfe same manger, & as it were drawing the selfe same breath. Finally, the scripture giueth expresse charge to eche man to tender his wife with extraordinarie good offices by saying, Thou shalt leaue thy father & mother, Matth. cap. 19 Mark. cap. 10. 1. Cor. cap. 7. Ephes. cap. 5. and cleaue to thy wife. If the force of custome did not enforce the matter, these onely considerations were sufficient to proue, that there should be nothing priuate, nothing pe­culiar, nothing proper, but euery thing in common, euery thing equally inte­rested betwéene the husbande and the wife. The like though not equall affe­ction is commaunded by the Apostle to the Colloss. 3. by the fathers towards their children. You fathers be tender and louing vnto your children, and dis­courage them not.

But let vs sée what account our common law hath made of the like customes, sounded vppon the loue and affection betwéene man and wife. It was vsed of auncient time in Gauel­kind land, & hath receiued the allow­ance [Page 27]and iudgement of a good and law­full custome, that if the husband be at­tainted and executed for a felonie by him committed,M. 8. H.3 presc. 60. yet shall his wife for the solace of her losse and desolation haue her dowrie of his land,8. E. 2. Itin. can. prescript. 50. and also the heire shall inherite the same accor­ding to that olde saying: The father to the bough, & the sonne to the plough, although the common lawe by rigo­rous imputation to make men more fearefull to offende in crymes of such quality,P. 35. H. 6.58. extendeth y^e punishmēt though not to the persons of the wife & chil­dren, yet to their fortune so farre as it may turne to their vtter impouerish­ment and discomfort.

In the citie of Yorke there is a cu­stome, that the husband may enfeoffe his wife of such laude as he shall pur­chase, which though it be against the rule of the common lawe (which disa­bleth the husband to conuey any lande to his wife) by feoffement or déede,12. H. 3. pre [...] ▪ 6.1. yet by force of the custome it was adiud­ged to be lawfull and effectuall. Also the custome of manie places in Eng­land [Page 28]is, that the wife shall enioy the whole land of her husband in name of her dowrie, as it appeareth by M. Litt. himselfe,Litt. ti. Dower and the husband cannot by any cautele or deuise defeate her ther­of. And in some other countreys they haue the moitie or tene part, and gene­rally by the common lawe the thirde part. In Northwales the custome is so beneficiall for wiues, (that although they be sure of their thirds of such land as their husbands shall chaunce to be seased of at any time during the mari­age) yet are they to haue the moitie or tone parte, not onely of his goods & moueables, but also of his leases, be the termes thereof neuer so long. Not ma­nie yeres agoe the custome of Taun­bean was alleaged and allowed by the court of the Kings bench,14. Eliz. that the hus­band or wife whether so euer of them did happen to ouerliue should haue the inheritance or fée simple land of the o­ther by suruiuor, a custome verily nei­ther contrary to reason nor repugnant to religion, as no well disposed or good husband can denie, when he entreth [Page 29]into consideration of these holie duties and good obseruances that are cōmen­ded and commaunded in holie scrip­ture.Read the Epi­stle to the E­phesians, ca. 5. If then these customes beare sway in sundrie places, and are pub­liquely approued by iudicial sentences, what citizen wilbe so senselesse, what Londoner so loose, what merchant or other fréeman so inconsiderate, and vn­regardfull of his owne good estate, and so readie to defile his own nest, as once to attempt or practise the violation or breach of so good a custome? What is he who séeing the estate of London is pre­ferred before other cities of the lande by the benefite and meanes of their most profitable customes, that will giue a daungerous example to abro­gate the same and to call their vsages in question? A custome, if it haue béene once notoriously discontinued, or interrupted, loseth the title and appel­lation of a custome, and by instance gi­uen of the time when it was disused lacketh a great part of his authoritie. Then vnnatural or at least wise vnad­uised is that citizen which to serue his [Page 30]priuate humor bringeth a generall cu­stom either into question by his fraud, or by his example into contempt. Per­nicious also is the president of one cu­stome called in question to the ruine of the rest: Namely, when as the citie by their counsell in her maiesties courtes of Westminster, claiming the benefite of their customes,See before in the case of robberie how carefull the citie was to auoide this danger and to preserue their custome, and also in y^e case of the attaint before 7. H. 6. &c. may be en­countred & confronted, & with a coun­terplea giuen by themselues, that such of their owne Aldermen & commons haue by their déedes and deuises either disaffirmed or disanulled the same. A practise as of great condemnation in them that do it, so no doubt of great ouersight & incircumspection in them that suffer it.

But somewhat to satisfie the idle cauils pretended to the contrarie saith some one, is not the generall lawe of England sufficient to manage the go­uernement of London as wel as of all other subiectes, but that Londoners must haue priuate customes and vsa­ges of their owne? This obiection made by the enuiers or enimies of the [Page 31]wealth of London (howsoeuer they make shewe to the contrarie) rather deserueth a hisse than a replye, and is sufficiently confuted in the former dis­course.

But it is further vrged by some hard husbands, my wife is frowarde & vndutifull, and hath not deserued it. Shée is a foole and cannot rule it. Shée will marrie againe, and enrich some o­ther with the fruite of my trauaile. Wherefore I thinke it necessarie to abridge her of that liberalitie which the custome doth extende. Also my chil­dren be euill enclined, disobedient or vntractable, or some of them be. Wher­fore I may with reason depriue them of the benefit of this custome. First to answere the vndutifulnes, I wish thée whosoeuer thou art to summon and conuent thy selfe to the tribunall seate of thy inwarde minde,Aug. in lib. confess. as S. Augustine saieth, & to make conscience thy iudge, thy cogitations the witnesses, thy acti­ons the accusers, thy memory the regi­ster or record to giue in euidence: and let it be discussed in all due circumstan­ces, [Page 32]whether thou didst not likewise forget the offices of a good husband and defraud her of her duties,1. Corinth. ca. 7, (as S. Paule sayeth) or prouoke her to impacience which the same Apostle forbiddeth in these wordes, You husbandes be lo­uing to your wiues, Coloss. ca. 3. and no way be bit­ter vnto them. Peter. Epist. 1. ca. 1. Which also S. Peter re­membreth in aduising husbandes to dwell with their wiues sincerely and according to knowledge in doing honor vnto them as to the weaker vessell. Let it I say bee examined in the consistorie of thy conscience whether thou either by thy fault wittingly, or negligently by thy default, or by thy vnkindnesse vnduly, hast caused her being the weaker vessell to be the more intollerable. If thou finde thy selfe con­demned by thy conscience, let remorse be thy executioner, and amendment with kindnesse towardes thy wife be thy penance: but if thou finde thy selfe guiltie of no want of affection, loue or good cariage of thy selfe towardes her, so that her vndutifulnesse procéeded of her selfe: yet I pray thée remember [Page 33]the benefits which God hath giuen thée by her meanes, whether they be giftes of fortune in bettering of thy estate, or eschewing of sinne, by her lawfull and comfortable companie, or the blessing of children a soueraigne good in this worlde, thy children being the monu­ments of thy life and being vpon earth, & the repayrers of thy decaie. And let these fauours and graces enioied by her company couer and counteruaile her o­ther imperfections whatsoeuer. Folow therein the example of the wise Socra­tes, who being demanded how he could endure the continuall scoulding & vex­ation of his wife Zantippe, likewise asked of the other why he suffered the rackling and vnpleasant noyse of hens and Turkeies in his house, because said the other they lay egges and bréed chic­kens for me, and so said Socrates, Zan­tippe beareth me children, which good turne alone couereth and dispenseth with infinite defectes. Calicratides the Athenian being demaunded why he a man so nobly descended, but hauing matched with a base Thessalian wo­man, [Page 34]yet by his last will bequethed vn­to her all his substance, leauing his o­ther friendes and kinsfolkes vnregar­ded: because (saide he) she is my wife, meaning that shee who was by his iudgement and choice made woorthie to be his wife, should be vnwoorthie of no­thing that was his. Which may also satisfie that seconde point of supposed folly in the wife, and want of discreti­on to marshall so great a proportion of wealth, as the custome will giue her. Wherefore wouldest thou marie with a foole, if thou thoughtest her vnwoor­thie of the rights of mariage? then sée­ing thy choice hath estopped thy testi­monie of her folly, thy dutie towardes thy wife shall binde thée to fauour and conceale her weakenesse, and to per­forme that which the custome pronoun­ceth to be conuenient. It can not be e­uill bestowed vpon her, whose right by custome demaundeth it, and whose e­state and imperfections haue néede of it, whereas if the husband may be per­mitted by this colour to defeate his wife, many inconueniences and disor­ders [Page 35]might ensue.

Leges se ac­cōmodant ad ea quae fre­quentius non quae raro ac­cidunt. Bartolus.First a generall Custome, which is as also a generall Lawe neuer proui­ded for such rare accidentes as seldome fall in experience, but for thinges that ordinarilie and cōmonly happen, should be broken, to the generall scandale and offensiue example of all through the in­habilitie of one, which were a thing vnreasonable. Likwise then might hus­bandes, (if that were admitted for a iust allegation) easilie deuise and pub­lishe that or some other imperfection to be in their wiues, and thereby be­reaue them of their right. No more then it is a iust counterplea or barre to a womans dower to alleadge that shée is a foole, no more is the imputation of such simplicitie honest and sufficient to exclude her from her portion. No it is wel said and maintained for a maxime in the common Lawe, Better it is to suffer a mischiefe than an inconueni­ence. Lesse harmeful and hatefull it is for a man to swallowe twentie of these light offences, and to disgest sundrie of these pretensed scruples, than by viola­ting [Page 36]of a custome no lesse common than commendable to leaue to posteritie an odious memorie and obloquie of his name.

The last obiection against wiues is no lesse ridiculous than Tyrannicall, grounded vpon an vniust desire to re­straine them from mariage. Mariage is an honorable ordinance of God, fit and necessarie for all persons disposed thereunto, to the auoyding of sinne, and maintenance of a comfortable and sociable christian life. To restraine or prohibit the same either in maides or widowes, (as S. Paule sayth) is the do­ctrine of diuels.Tim. ep. 1. ca. 4 And to indent or condi­tion with any that he or she shall not marie,43. E. 3.6. is a condition limited against lawe, and by the same pronounced vn­lawfull and vnreasonable. Make it thine owne case, admitte thou diddest match with a welthie wife, whose fur­niture and riches hath increased thy e­state, if God should call for her, woul­dest thou in a kinde memoriall of the benefittes attained by her meanes, make thy selfe a votarie to liue vnma­ried? [Page 37]Doe those which marie great heires being women, and after their wiues deathes enioy their whole inhe­ritance by the curtesie of England, ma­king their wiues heires to expect du­ring their liues, take it for any matter of conscience or scruple to marie again? Vnlesse it be in some place where the force of the custome and the benefit of the liuing ioyned together worke a contrarie resolution in some husbands: which Custome annexed to Gauelkind landes in Kent and other places is of this qualitie,16. E. 3. aid 129 19. E. 3. aid 144 that the husband shal af­ter the desease of his wife be tenant by the curtesie of her lande as long as he remaineth vnmaried, whether he haue issue by her or not: but vpon his next mariage shall vtterly forgoe all his in­terest therein. A custome therefore the lesse vnresonable because the restraint of mariage of the one side is counter­uailed by the beneficiall fauour of the other side to haue the land by the cur­tesie without issue, and also for that he is to depriue the next heire of his wife, who perchance hath béen maried with [Page 38]him but fewe moneths or daies, of the profite and commoditie of the whole land during his life. But chiefly be­cause it is a custome grounded & gre­wen in continuance to such religious obseruation & regard, that it séemeth an offence of conscience to infringe it. But in our case sithens there is nei­ther custom nor conscience to warrant thy wil, why shouldest thou then séeme to quarell with the lawfull libertie of thy wife, if shee suruiue thée, shée be­ing weake by kind and education, and thereby lesse able to direct her occasi­ons, and gouerne her estate without a companion and coadiutor? no on Gods name referre her to her owne choyce & conscience therein, and make it no pre­tence and colour to abridge her of her right, because shée séemeth inclynable vnto that, which God hath ordained, & all men and women do embrace. As to the feare and suspition pretended, that another in matching with thy wife should be enriched by thy trauaile, what should moue thée to make that superstitious account of thy goods whē [Page 39]thou art gone? Were they any lon­ger thine, than while thou hadst life & licence to employ them? Thou must néedes knowe & acknowledge besides thy daily experience, by the verie Ety­mologie and signification of the word, the true nature & qualitie of the thing. These worldly goods are called tem­porall, because they serue one but for a time, they are termed transitorie, for that their property is fléeting from one owner vnto an other, they are named moueable or currant, because all their grace and credite is in running & re­mouing into diuers handes, according to that rude and olde (but yet true) la­tine ryme,

Then sithence thy wealth hath way­ted vpon thée all thy life long, wouldest thou require the same to rest at thy de­uotion [Page 40]after thy death? If that séeme impertinent and vnprofitable vnto thée then relinquish this care and suffer the goods of this world to haue their natu­rall course and condition, which is to be still in exchange, passage, & posting from hande to hande, seruing all men, vt peregrinationis viaticum, That is, A pilgrimes charge or defrayment in his iourney, Hieronymus in Epist. as S. Hierome termeth it. And addresse thy minde to the desire of such goods as are neither temporall, transi­torie, currant nor moueable, but perpe­tuall, permanent, constant and not on­ly immutable but inestimable.

But finally to satisfie the last obiecti­on against thy children, I wish thée to looke backe vnto that I haue saide, that thou mayest not for a priuate iniurie or displeasure, séeme as much as lyeth in thée to supplant and abrogate a pub­licke custome, to the no lesse preiudize than offence of a great number that haue interest therein. In enriching thy sonne, thou dost discharge the duty of a naturall father towardes him, which if he prodigally or wickedly mis­pend [Page 41]or abuse, he carieth his owne con­demnation and prooueth a wilfull ene­mie to himselfe. The good father men­tioned of in the gospel,Luke. cap. 15. who at the suite of his vndutifull & disobedient sonne, (that wold néedes abandon the seruice and attendance on his father to runne the course of an extrauagant libertine with lewd companie) gaue him a great portion of his wealth, is not any way blamed by our Sauiour for that indul­gence, but rather recommended to all posteritie as a true paterne of a kinde father. S. Paule commaundeth the fa­ther to be well affected to his children,Colloss. cap. 3 and no way to discourage them. What may bréede greater discouragement or discontentment in any childe than to sée himself by the place of his birth and the good fortune of the citie intitled to the commoditie of a good custome, and yet iniuriously by his owne father, (whose affectiō should be alwaies occu­pied and earnest in procuring the good of his children) disappointed of his hope and defrauded of his right. And as well as some hauing iust cause of dis­pleasure [Page 42]againe their sonne and childe, may in this vnlawefull and disorderly sort practise their reuenge, so may some other inconsiderate and wilfull father vpon a conceipt taken against a good sonne and of singular desert, for that he concurreth not with him in some hu­mor or disposition, most wrongfully di­stresse and vndoe him by such a presi­dent. Thus the mischiefes obiected on the one side are light and of small mo­ment, whereas the inconueniences ap­parant on the other side be manifolde and of dangerous consequence.

I will not vouchsafe to answere that vndiscrete Sarcasmus or bitter scoffe that some vse, We may play our wealth at dice without offence to the custome, wherefore shoulde wee not then dispose the same from our wife and children by our déedes of gift? This amounteth to as much as if a maried man would say, I may commit fellonie or treason, and be attainted and han­ged therefore, and then the law giueth my wife no dower, nor my heire no pa­trimony, then why should I not in [Page 43]reason vse my discretion with the land without incumbrance by the one, or in­iury to the other? Match these two ca­ses togither with iudgement, and thou shalt perceaue they haue a sensible concurrencie in their addresse and ap­plication to this purpose. It is wel said by the Poet,

The example of one wilfull or wic­ked act giueth no iust countenance or allowance to an other. Let so much saide to thy obiections take some place to alter thine humor, or at least be a preparatiue for thine owne reason in the feare of God to purge thée of the same.

But to conclude this short discourse with one consideration of great impor­tance, I wish thée to consider, that this citie of London is and hath béene hap­pily preserued in this flourishing pro­speritie by the wise and politicke con­sent that all and alwaies the particu­lers haue had to increase the generall good estate thereof, thinking it their [Page 44]dutie as they gotte and acquired their substance in this citie, so also to spend & defraie it in the same: insomuch that whatsoeuer falleth from the one com­meth & groweth vnto an other, and by alteratiō of priuate fortunes (as chaun­ces & changes of times do require from one citizen to another) the generall e­state hath flourished and neuer wan­ted particular men of wealth & habili­tie to sustaine the offices & functions of the citie. Vpon which consideration by most laudable & auncient custome, the L. Maior and Senate of London haue béene and are intitled to the tuition & custody of young Orphanes and their goods, & likewise are made acquainted by ordinarie good meanes of inuento­ries taken & produced, what substance and wealth ech man dieth possessed of, to the intent that although that man which by his good trauaile & trade hath growen to be rich among them, be de­parted hence, yet his goods may re­maine as among his wife & children in vse and propertie, so to the generall strength of this city in account & recko­ning. [Page 45]For we often sée y^t one rich mans wealth passeth to the increase of the good estate of an other citizen, either by mariage of the widowe, or of the Or­phane: so that the citie though depriued of a member or inhabitant, yet is not destitute of such as may discharge his employment and place. Whereas if this pernitious practise & vncharitable liber­tie might take roote by déedes of giftes & cautelous conueyance to strangers, not only the wife & children may be di­strested, but also the state of the citie much weakened, & in danger of a great disreputation and decay, frō that that it hath béene and yet is. For if it be ad­iudged lawefull in one, of what degrée soeuer he be, it is neither impossible nor vnlikely that the same will be vsed by many, and consequently may be practi­sed by all: which if it befall, what will become of the happie condition of this Citie, it is not hard to coniecture. I meane not to extende my speach to the preiudice of any true debtes that a man oweth without fraud or collusion, sée­ing the custom very prouidently careth [Page 46]for the discharge thereof, but my pur­pose is to diswade men frō euill exam­ple, from insolent violation of good cu­stomes, and from odious and vnséeme­ly practises of deceipt & euill meaning towardes their wiues and children: Which perswasiō I would wish al pro­fessors of the Lawe seriouslie and care­fully to vse and enforce to their clients, being citizens of London, as in good conscience and discretion they ought to doe.

An Apostro­phe to the reader, and the motiue of this treatise.Blame not my bold enterprise (gen­tle Reader) nor reproue my simple cen­sure herein presented vnto thée, which might I knowe both for the matter and manner of it haue béene by any o­ther, and perchaunce by my selfe more largely and effectually deliuered: if the opportunitie of my leasure might haue aunswered the qualitie of the argu­ment which I had in hande. But fea­ring least I should with too long a dis­course in so plaine a proposition bréede more lothsomenesse than liking, I would not, for want of leasure I might [Page 47]not, & if I had had time at will I min­ded not, séeing for any vrgent occasion (the error being yet fresh, the practise rare and not growen to an enormitie, I néeded not) but in a worde or two to make thée acquainted with the cause that moued me to addresse these fewe reasons to thy gentle view. So it hap­pened, that I being in company & confe­rence with some persons (though other­wise wise and well affected, yet in this matter strangely conceipted) it chaun­ced that the lawefulnesse and conueni­encie of this custome came in question and debate among vs, & was by some of them (being men for sufficiencie, of great opinion, and for countenance and credite of good apparance and regarde in the citie) so pressed with obiections, that the most part of those which were present séemed to encline to that per­suasion. Wherefore least the authoritie of the men might the sooner seduce the simple multitude vnto their error, & for that I thought it a charitable pollicie to preuent the peril in the prime, before it grewe to a festering sore or incura­ble [Page 48]euill, according to the Poet Ouids aduise,

I thought good to apply this simple resceipt of reason to the mindes of all such as shall chaunce to be distempered by these disuasions: hoping that they wil yéelde me that friendly requitall of good construction, which my offered goodwill may séeme to deserue: and al­though I kéepe my selfe vnnamed, and vnknowen: it may please them to haue this opinion of me, no more fauourable than reasonable, that he which is well deuoted to the defence of good customs, is rather to be iustified in his good mea­ning, than condemned or held suspec­ted of anie sinister conceipt.