Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Table of contents

Title page

To the Right Honourable JOHN BRADSHAW Serjant at Law, Lord President of the Councel of STATE.

To the Reader.

A TABLE of the several QUESTIONS.

Amicus Rei-publicae. The Common-Wealths FRIEND.

Whether it be reasonable, that he who is seized of Lands in Fee-simple, to him and his Heirs, by descent, or gift, should have the absolute disposing power of the whole, and to disinherit his Heirs.

Tenant in tail, with remainders over, suffers a common Recovery, whether this in Law, or conscience, ought to bind the issue in tail, and theremainders over?

§

Whether it be consonant to reason, conscience, or for the good of the Common-wealth to Arrest mens Persons, and to detain them in Prison for Debt?

Whether the High Court of Chancery, as the practice is there, be not a very great grievance, and burthen to the Common-wealth?

Whether Collateral Warranty stands with reason and conscience, or no?

Whether it be consonant to reason or conscience, that any mans Plea should be adjudged nought, and avoided at any time for any matter of form, false Latine, double Plea, Departure, or any other defect whatsoever, the case and matter it self sufficiently appearing upon the Record, for which the Action is brought▪

Whether the many sorts of tedious and long Conveyances now in use, stand with reason, and the good of the Common-wealth or not?

Whether it be a just and reasonable Law, that a Child born before marriage; and shortly after marriage happening, should be a Bastard, or not?

Whether tryal by Jury, as it is now in use, be agreeable to reason, and for the good of the publick, or not?

Whether it be consonant to the word of God, or reason, that a man should lose his life for Theft, and should incur so great a forfeiture and penaltie as loss of all his estate, and corruption of his bloud?

Whether it be a just and reasonable Law, that Infants under the age of 21 years, shall not be charged with their debts?

Whether Clergy be agreeable to reason, and Justice, or no?

Whether the Law, that a man shall not suffer death for Manslaughter be not against the word of God?

Whether it be a reasonable Law, that a man shall not have Counsel upon an Indictment of Treason or Felony?

Whether actions for Slanderous words, being meer contentious Suits, ought in reason or conscience to be so much countenanced, as they are?

Whether it be a reasonable Law that actions should die with the person?

Whether the Law or Judgement of penance, or pain fort & dure, against a man, who is indicted of Felony, and stands Mute, be agreeable to reason and conscience, or not?

Whether the Law of forfeiture of goods wrecked at Sea, be a reasonable Law, or not?

Good advise in case of making last Wills and Testaments.

§

§

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Amicus Reipublicae.

THE COMMON-WEALTHS FRIEND.

OR An Exact and Speedie Course to JUSTICE and RIGHT, and for Preventing and Determining of Tedious Law-Suits.

With many other things very considerable for the good of the Publick.

All which are fully Controverted and Debated in LAW.

By JOHN MARCH of Grayes-Inne, Barister.

Interest Reipublicae ut sit finis Litium▪

LONDON, Printed by WILL. BENTLEY, for Francis Eglesfield, at the Marygold in S. Pauls Church-yard. 1651.

To the Right Honourable JOHN BRADSHAW Serjant at Law, Lord President of the Councel of STATE.

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Right Honourable,

WHen I had considered the meaness and weakness of this poor indeavour of mine, and your Lordships depth of Judgement and understanding; I was extreamly disheartened and even ashamed to present it to your Lordships view and consideration; much more to begge your Lordships patronage for it. But when I had likewise considered, what a sweet Harmony of Justice, Honour, and integrity resides in your Lordships breast, and how much you preferre the common good and welfare, before all private interests and relations whatsoever, and not doubting [Page] but your Lordship might find somewhat in it corresponding with that noble, and truely generous publick spirit of yours; I was then again imboldened to prostitute it before your Lordships feet, humbly begging your Patronage and protection for it; and I the rather presumed upon it, because I know it will meet with Enemies enough in these times; such as love not changes or alterations, though for the better, and such I shall not need to care for, or fear; so your Lordship will deign to accept of it, and receive it into your favour; which if your Lordship shall be pleased to do, and to pardon the imperfections of it, it will be a great honour and incouragement to him, who desires nothing more, than to subscribe himself (what indeed he is)

Your Lordships, and the Common-wealths most humble Servant. JO. MARCH.

To the Reader.

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REader, when I considered long with my self, what happy times it had pleased God to let us injoy; I mean these happy times of Reformation; in which men have liberty to discover truths, and to reason what may most tend to the good of the Common-wealth; And in which we have so many Patrons, Protectors, and advancers of Justice, that, which is the onely supporter of all Common-wealths and Governments whatsoever. And when I had further considered, that somewhat, nay I may say, as much as the present extremities will permit, had been done by our Parliament for correction, and amendment, or total expunging of some ill Laws; and much more indeavoured, which I doubt not will be accomplished in due time. I thought it my duty to cast my mite into this Treasury; and to declare and set forth somethings of our Law worthy of serious consideration, and (if I mistake not) of reformation too.

[Page] That which I offer is against some ancient practises or proceedings, and against some principles of our Law; And here I know it will be said to me, that Contra negantem Principia non est disputandum; they are of so high a nature they ought not to be discussed; especially having been ancient received uncontrolled Laws in all ages.

To this first I say, that a common error cannot make a Law, no more than custom against reason; there is no building of a Law where reason is not the foundation. And therefore I hope, that if all, or any of those things which I have offered to consideration, shall be found light in that ballance, that they will find no allowance or approbation.

But here some will say to me, as my Lord Cook saith upon the like occasion, Qui rationem in omnibus quaerit, rationem confundit.

To whom I say, that this may hold well in some things, and in some Arts and sciences; but, under favour, it ought not to be so in Law; Law, if it be just and reasonable, binds men to obedience and submission thereunto, but it is unjust and Tyrannical, and obliges not to submission, if it be unreasonable; and that Law must needs be suspected to be such, the reason whereof must not be inquired into.

[Page] And Littleton fol. 89. saith, that per rationes pervenitur ad legitimam rationem, reasoning is the way to find out the legall reason: and so likewise it is to discover the unjustness or opposition of any Law to the common good.

We have one rule in Law, that the publick good and wel-fare is to be preferred before the private, and certainly that Law that crosses that rule, is a very unjust and unequal Law.

All Laws ought to have this for their Basis, and their onely end and aim, the common good and safety. And that Law is most rational, which looks most that way.

And therefore certainly it is no confounding of reason▪ but rather the advanceing of it to its perfection, to lay the Law to this line, to put it to this Tryal; whether such or such a Law, be most for the publick good and wel-fare, or not? if it be, to continue it, if not, to abrogate and null it.

We have another rule, that Interest Reipublicae ut sit finis litium. And I am certain, that you will find some of those things, which I have offered to consideration, (that, as it much concerns the Common-wealth, that strifes and controversies be ended, that peace and unity may be preserved:) [Page] much tending to that end, and agreeable with that rule. And certainly that Law, which most avoids and provides against contentious Suits, and most indeavours the support of peace and quiet in a Common-wealth, is the best and most reasonable Law.

And now to conclude, Reader, I know that by this small work I shall contract the odium and ill will of many of my profession, who will cast in my Teeth, that this is a bewraying of my own nest; and a slinging dirt into the faces of our great and learned Sages of the Law; or rather into my Mothers face, whose milk I have suckt, and by whom I have been educated, and brought up to some small understanding thereof.

To such I shall say; that none more honours the Law than my self, which I take in the general, to be as just and as perfect as any humane Law in the World, yet I cannot Judge it so absolutely perfect, as to have no fault or blemish in it, for that were to attribute absolute and infallible perfection in judgement to the makers; which we know is not to be found on earth in any humane race. You know what the Apostle saith, the first of the Cor. 13. 9. for we know in part, &c.

[Page] And if we know but it part, certainly our actions must needs be full of imperfection.

And I hope none will judge me to love my Studdy the less, because I desire to keep it clean; Gold is the purer for being refined: And the Tree grows the better for pruning, and cutting off the exuberant and unnecessary branches, which suck the sap from the body, and are useless for any thing, but the fire themselves.

If we have any hard and unreasonable branches of Law, it is just to take them away, to lop them off, the body of the Common-wealth will thrive the better; and if that flourish, certainly Lawyers must thrive too, and be in as great reputation as ever. For no living without Law, and no better or more just Law in the generall in the World, than the Municipal Law of England; he approves the use, that labours to take away the abuse.

Nor am I single or alone in this indeavour of mine; some have gone before me, and I doubt not others will follow, in a work of so great consequence, and tending so much to the common good.

But not to hold you too long in an Epistle, where the work is but short, if any notwithstanding what I have said, shall be offended [Page] with me; it shall not much trouble me▪ for I am resolved to be a friend to the common good, while those men seek their own good onely. I shall say no more but this;

Amicus Plato, Amicus Socrates, sed magis amica Respublica; onely I shall subscribe my self

The faithfull friend and Servant of the Common-wealth of England. J. MARCH.

A TABLE of the several QUESTIONS.

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1. WHether it be reasonable, that he, who is seized of Lands in Fee-simple, to him and his Heirs by descent, or gift, should have the absolute disposing power of the whole, and to disinherit his Heirs? Pag. 2.

2. Tenant in tail, with remainders over, suffers a common Recoverie, whether this in Law, or Conscience, ought to bind the Issue in tail, and the remainders over? pag. 7.

3. Whether it be consonant to Reason, Conscience, or for the good of the Common-wealth, to Arrest mens Persons, and to detain them in Prison for Debt? pag. 35.

4. Whether the High Court of Chancerie, as the practice is there, be not a very great Grievance, and Burthen to the Common-wealth? pag. 55.

[Page] 5. Whether Collateral Warrantie stands with Reason and Conscience or no. pag. 68.

6. Whether it be consonant to Reason or Conscience, that any mans Plea should be adjudged nought, and avoided at any time for any matter of Form, false Latine, double Plea, Departure, or any other defect whatsoever, the case and matter it self sufficiently appearing upon the Record, for which the Action is brought? pag. 74.

7. Whether the many sorts of Tedious and long Conveyances now in use, stand with Reason, and the good of the Common-wealth or not? pag. 85.

8. Whether it be a Just and Reasonable Law, that a Child, born before Marriage, and shortly after Marriage happening, should be a Bastard or not? pag. 92.

9. Whether Tryal by Jurie, as it is now in use, be agreeable to reason, and for the good of the Publick or not? pag. 99.

10. Whether it be consonant to the Word of God, or Reason, that a man should lose his [Page] Life for Theft, and should incur so great a forfeiture and penaltie, as loss of all his Estate, and corruption of his Bloud. pag. 105.

11. Whether it be a Just and Reasonable Law that Infants, under the age of twentie one Years, shall not be charged with their Debts? pag. 112.

12. Whether Clergie be agreeable to Reason and Justice or no? pag. 117.

13. Whether the Law, that a Man shall not suffe Death for Man-slaughter, be not against the Word of God? pag. 122.

14. Whether it be a reasonable Law, that a man shall not have Counsel upon an Indictment of Treason or Felonie? pag. 126.

15. Whether actions for Slanderous Words, being meer Contentious suits, ought in Reason or Conscience to be so much countenanced as they are? pag. 129.

16. Whether it be a Reasonable Law, that Actions personal should die with the Person? pag. 134.

17. Whether the Law of Judgement of [Page] Penance, or Pain fort & dure, against a Man who is indicted of Felonie, and stands Mute, be agreeable to Reason and Conscience or not? pag. 137.

18. Whether the Law of Forfeiture of Goods VVrecked at Sea, be a Reasonable Law or not? pag. 150.

19. Good advise in case of making last VVills and Testaments. pag. 155.

Amicus Rei-publicae. The Common-Wealths FRIEND.

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THe First thing that I have purposed to discisse or treat of, is touching him that is seized of Lands in Fee-simple, and his disposing thereof; and therein I shall onely propound this short Question, that is;

Whether it be reasonable, that he who is seized of Lands in Fee-simple, to him and his Heirs, by descent, or gift, should have the absolute disposing [Page] power of the whole, and to disinherit his Heirs.

I Do acknowledge the Law to be, that he may dispose of the whole at his pleasure, and that a condition annexed to restrain him from it, is nought. For it is against the absolute purity of a Fee-simple, that he should not have power to alien it. Litt. Sect. 360. for if such condition should be good saith Litt. then it ousts him of all the power which the Law gave him, which should be against reason, and therefore the condition is void. But if the condition were such, that the Feoffee shall not alien to such a one, naming his name, or to any of his Heirs, or of the issues of such a one, &c. or the like, which conditions do not take away all the powr of alienation, such condition is good. Another reason that such condition [Page] is nought, is, because that he, who hath departed with all his Estate to another, and hath no hopes of reverter, may not in reason annex such a condition to restrain the Feoffee or alienee from such alienation.

This I allow to be the Law; yet I beseech you give but leave to examine these things according to right reason, and judge according to that which may make most for the good of the Common-wealth, and then I conceive it will be thought very hard, that any man should have an absolute disposing power of the whole, and disinherit his Heirs.

I intend this onely of a Fee-simple descended from an Ancestor to another, or of a gift to a man and his Heirs; for in case where a man, through his own labour and industry, hath purchased such an inheritance, it seems more reasonable for [Page] him to have the absolute disposal of it as he shall think fit; for I know no reason, but that he who bought, may sell; but where Land descended to me, or was given to me and my Heirs, in such case, for me to rob my Heir of all that I never laboured for, and to give it to a stranger, seems to me unreasonable.

I say, that he should have an absolute disposing power of the whole, seems unreasonable, but that he should have power to dispose 2 parts seems to stand with reason, so he leave the third part to descend; for otherwise he shall be utterly unable to make a joyncture for his wife, to advance his children in marriage, or to pay his debts; all which, a man is bound in conscience to do: therefore it were very unreasonable that he should be so fettered and bound in his Estate, that he were not able to perform them.

[Page] I am not ignorant, that when I give Lands to a man & his Heirs, the Law saith, that the word [Heirs] is by way of limitation, not of purchase; yet when an Estate so descends, or is given as aforesaid, the Heir by the intention of the Ancestor, and the donor, ought to have an Estate in point of interest, as also in conscience, after the death of his Father. For if a man should demand of such a one who intends to leave his Lands to descend to an Heir, or of the donor, whether he intended that his Heir, or the donor should sell or give away the Estate so descended or come, through their goodness, care, and providence, to a stranger, I know their answer would be, that they intended not a disinherison of the Heir, but that the Estate should descend & go to their Heirs▪ with the same freedom it descended [Page] or came to them; but I would not be-mistaken, for I intend onely a third part to descend, for the reason aforesaid.

But now let us examine the reason of the Law afore-said; and where the inconvenience lies. The reason is, that 'tis against the purity and absoluteness of a Fee-simple, not to have such disposing power; where lies the inconvenience, that it is against a Maxim of Law; nothing of prejudice either to the publick, or to any private or particular person.

And then examine the reason of the other side, why such a Tenant in Fee-simple should have power onely to dispose of two parts, and leave the third to descend to his Heir: because, it would agree with the intention of the Ancestor, and likewise prevent the beggering of the Heir, a thing too common with profuse and [Page] prodigal Ancestors in these daies. So that I conceive it is evident to you, that the inconvenience lies on this side, and whether it is better to continue a Maxim without reason; or to alter it upon good grounds, I leave to the consideration of our Sages; and of this onely thus much; the next thing I have to treat of is, common Recoveries; concerning which I shall propound this short case and question.

Tenant in tail, with remainders over, suffers a common Recovery, whether this in Law, or conscience, ought to bind the issue in tail, and theremainders over?

IT is true, that through custom and long continuance, this is now become the common assurance of the Land; and I am not ignorant [Page] that this point received a full resolution by the other Judges in Marie Portingtons case, in my Lord Cooks tenth Book, that such Recovery was good and binding, not onely to the issue in tail, but those in remainder likewise. Yet I hope a man may now with freedom dispute it, since all conscionable honest men, that ever I met with, oppose it; and I dare say, that policy and private interest first made this conveyance Lawfull, or at least to seem so. And being that in the discourse of this case, it will be necessarie to know what the Law was before the Stat. of 13. E. 1. of intails, and the mischief of that Law, which caused the making of that Stat. for a remedy; it will not be amiss if I cite the Stat. wherein we shall find both the one and the other; the mischief, and the remedy; and then it will be easie to [Page] judge whether the mischief against which the Act of 13. E. 1. was provided, doth not still continue by common Recoveries, notwithstanding the remedy.

But before I cite the Stat. I cannot but put you in mind, that it hath been desired and proposed by some in Print (who either never read the said Stat. or did not well understand it) that the said Stat. might be taken away; the mischief at the common Law revived, and the remedy suppressed. All that I shall say to such, is, that that Law (if we will believe our Judges and Sages of the Law) was made by very Sage and wise men; & therefore we ought to judge it to be made upon very good grounds and reasons, and so not to be repealed without better reason; but I need say no more, for I doubt not you will find upon the [Page] reading of it, that it was made upon solid and profound reason, and so not to be altered upon any Clarks or Attornies motion.

§

13. E. 1. Cap. 1.‘In gifts in tail the donors Will shall be observed.’

FIrst concerning Lands, that many times are given upon condition, that is to wit, where any giveth his Land to any Man and his Wife, and to the Heirs begotten of the bodies of the same Man and his Wife, with such condition expressed, that if the same Man and his wife die without Heirs of their bodies between them begotten, the Land so given should revert to the giver or his Heir. In case also where one giveth Lands in free marriage, which gift hath a condition annexed, [Page] though it be not expressed in the deed of gift, which is this, That if the Husband and Wife die without Heir of their bodies begotten, the Land so given shall revert to the giver or his Heir. In case also where one giveth Land to another, and the Heirs of his body issuing, it seemed very hard, and yet seemeth to the givers and their Heirs, that their Will being expressed in the gift, was not heretofore, nor yet is observed.

In all the cases aforesaid, after issue begotten and born between them (to whom the Lands were given under such condition) heretofore such Feoffees had power to alien the Land so given, and to disherit their issue of the Land, contrary to the minds of the givers, and contrary to the form expressed in the gift. And further, when the issue of such Feoffee is failing, the Land so given, [Page] ought to return to the giver, or his Heir, by force of the gift expressed in the deed, though the issue (if any were) had died: yet by the deed and Feoffement of them (to whom Land was so given upon condition) the donors have heretofore been barred of their reversion, which was directly repugnant to the form of the gift.

Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide remedy in the foresaid cases, hath ordained, That the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed: So that they, to whom the land was given under such condition, shall have no power to alien the land so given, but that it shall remain unto the issue of them to whom it was given [Page] after their death, or shall revert unto the giver, or his Heirs, if issue fail (whereas there is no issue at all) or if any issue be, and fail by death, or Heir of the body of such issue failing, &c.

And if a Fine be levied hereafter upon such Lands, it shall be void in the Law, and no claim needs, &c.

Here I have faithfully cited you the Stat. word for word; and what the common Law was before the making of this Stat. is apparent. Estates now by force of that Stat. called intails were at the common Law Fee-simple conditional. So that a man having such an Estate before this Stat. had power after issue had, to alien, and by that to barre the issue, and likewise him in reversion, and this is said by the Stat. expresly to be contrarie to the minds of the [Page] givers, and contrary to the form expressed in the gift, and this was the great mischief at the common Law.

Then comes this Stat. and provides against the said mischief, that the Will of the donor shall be observed, and that such donees in tail shall have no power to alien to barre their issues, or him in reversion.

Now certainly the best way of Argument is upon the Law it self, and that is pregnant and plain, that the donee after this Stat. had no power to alien to barre his issue, or him in reversion.

Now I beseech you to what end was this Stat. if notwithstanding a donee in tail might by a Recovery barre his issue and him in reversion; certainly had any such thing been known then, as a Recovery, it would have been provided against as well as a fine, or otherwise a man [Page] might well question the wisdom of the makers of the Law, notwithstanding they have received so great an applause by our Sages of the Law.

The Law hates vain and unprofitable things; and had Recoveries been known then, and not provided against, certainly no Law could be more vain and unprofitable.

But now to come to Marie Portingtons case in Cooks tenth Book, where this case is largely debated; there you shall find the Original of these common Recoveries. There by those that argued against them, 'tis said that 't was not invented till 12. E. 4. Taltarum's case, that such Recoveries should bind the Estate tail upon a pretence of a fained recompence.

To which it was said by the Court upon judgement given, that [Page] judgement given against Tenant in tail, with voucher and recompence in value, shall bind the Estate tail, notwithstanding the said Act of 13. E. 1. be the Recovery upon good Title, or not; and that the judgement given in such case for the Tenant in tail to have in value binds the Estate tail, though that no recompence be had.

And this they say was Law in E. 3. time, for which they cite these Books (but here observe by the way, that those Recoveries were not invented before that time, as themselves do agree, and of what validity such new invention can be against a Stat. expresly against any alienation in such case, let any rational man judge.) but for the cases they have cited, 15. E. 3. Tit. brief. 324. by Recovery in value by Tenant in tail, the Estate tail is barred, and he shall have a Formdon [Page] of the Land so recovered in value, with which agrees 42. E. 3. 53. and 44. E. 3. 21, 22. Octavian Lumbards case, Tenant in tail grants a rent charge to one who hath right to the Land in tail for a release, it shall bind the issue, 48. E. 3. 11. b. Jeffrey Benchers case recovery in value by Tenant in tail, shall bind the tail, and a Formdon lies of the Land recovered in value, with which agrees. 1. E. 4. fol. 5. 5. E. 4. 2. 6.

For these Books thus cited, that such recovery shall bind the issue in tail; they are to be understood of a recovery upon good Title, and of a real, not a fained recompence, for they all agree, that a Form-don will lie of the Land recovered in value; So that it cannot be intended of a fained and pretensed recompence. I would fain know of any man, whether ever he heard of any Action [Page] brought upon such recovery in value, as recoveries are now used? are they not become the common course, and common way of conveyance for to barre Estates in tail, and to cut off all remainders, without any possibility or expectance of recompence in value? and do not the Judges say before that it shall bind be it upon good Title, or not, and though that no recompence be had? so that a pretensed recompence by them must carry away a clear Title, and defeat the Stat. and the intention of the donor? So that I do conceive, notwithstanding those Books, that such recoveries should bind the Estate tail upon a pretence of a fained recompence, was not till 12. E. 4. Taltarums case.

And the case of Octavian Lumbard, before cited agrees with this difference, between a real, and a [Page] fained recompence; for I do agree, that a recovery upon good Title, and a real recompence will barre the Estate tail. The case of Lumbard, that a grant of a Rent by Tenant in tail to one that claims a right to the Land intailed, shall barre the issue, is, without question, good Law, for this is to preserve the Estate tail, and this is no fained but a real recompence; not so in our case.

Besides, suppose those Books should be intended (as I conceive they cannot) of a fained recompēce; can any man say that any use or custom is good against a Stat. had such fained recoveries been in use at the time of the making of the Stat. of 13. E. 1. which no man doth, or can say, somewhat more might have been said for them; but being invented after, it cannot be with reason that they should be of force to [Page] frustrate, yea, and nul, upon the matter, the Stat. made before: and certainly (as I have said before) the makers of that Law would have provided against this mischief as well as Fines, had such recoveries been then in being, for otherwise vain and fruitless was that Law, as indeed it is at this day.

Again, by those that argued against common recoveries in Marie Portingtons case; it is said, that such recoveries are by divers Acts of Parliament marked and branded with the blemish of fiction and falsity; as in the Stat. of 34. H. 8. cap. 20. they are stiled fained and untrue recoveries; and so in the Stat. of 11. H. 7. cap. 20. 32. H. 8. cap. 31. and 14. El. cap. 8. they are named covenous, and had by collusion; and therefore it stands with Law and reason to provide for the preservation of reversions [Page] and remainders, against such fained and false and covenous recoveries.

To this objection, and these Stat. this answer is given; and first it is said, that common recoveries is one of the main pillars, which supports the Estates and inheritances in the State; That is, Reader: they must unjustly, (because contrarie to the Stat. and the Form of the gift) take away one mans inheritance, and establish or settle it in another, and this is called one of the main pillars of inheritances.

But to the Statutes; for that of 34. H. 8. it is of gifts in tail by the King to his Servants and Subjects, for to incourage others and their issues, and therefore recoveries suffered by such Tenants in tail, are well taxed by Parliament to be fained and untrue, because they [Page] did take away the intention of the King.

To which I answer, that they are so termed by that Stat. not in relation onely to the defeating of the Kings intention, but because they are so in themselves fained and untrue. Besides are they so termed, because the intention of the King was thereby defeated; why? where there is the same reason, there ought to be the same Law; and in this case, is not the apparent intention of the donor in his gift defeated by such recovery contrary to the Stat. which saith, that the will of the donor shall be observed.

But it is further said in that case, that confirmat usum qui tollit abusum; and that it was a barre in that case before that Act of 34. H. 8. made to the contrarie; certainly if it were an abuse in the Kings case, it is no other [Page] in a common persons, and it were very happy if an Act were likewise made against them in our case; that we might not have them known for the future.

For the Stat. of 11. H. 7. when a Woman advanced by the Husband with a competent joyncture in tail suffers a recovery to barre the issues, this may well be said to be by covin.

Now I beseech you weigh the cases in the ballance of reason, and then judge whether they differ or no. Is it not as much covenous for any Tenant in tail who takes such Estate to him and his issues to disherit his issues by such recovery, contrarie to the said Stat.

For the Stat. of 32. H. 8. and 34. El. of a common recovery against Tenant for life; it may well be termed covenous and by collusion. To [Page] this I shall say no more but this, that certainly in our case there is as much of injustice, covin and collusion by suffering such common recoveries, as in any of the former.

Further it was said by those that argued against these recoveries; That that opinion, that a common recovery could not be restrained by condition or limitation, was new and of late invention, and never heard before Sir Anthony Mildmayes case 6. Rep. fol. 40. for it was admitted to be restrained in the case of the Earl of Arundell 17. El. Dyer, fol. 342. 343. and in the argument of Scholasticas case, 12. E. Com. 403. the said point of restraint of a common recovery was never moved: here observe, Reader, another new invention, that these recoveries cannot be restrained by any condition or limitation; so that there must be such a [Page] power given to support these recoveries, though against the Letter of the Stat. and the Will of the donor, that no humane invention can prevent.

As to the Earl of Arundels case, it is said that nothing is spoken to it by those who argued the case, and so no Authority. To this I say, that certainly had the Law been conceived to be such, that such recovery could not be restrained by condition, it would have been then urged, which rather concludes on this part.

As to Scholasticas case, all that my Lord Cook sayeth, is this, he much respects the reporter, and attributes due honour and reverence to the Judges, but amicus Plato, amicus Socrates, sed magis amica veritas. Though that it was not then thought on by the learned men of [Page] that time, yet my Lord Cook will have it to be Law, and prefers his opinion, which he calls truth, which truth so called appears to be onely a new invention, before the contrarie supposed Law of that time.

And it is further said in Portingtons case, that none ought to be heard to dispute against the legal pillars of common assurances of Lands, and inheritances of the Subjects. And it is likewise said, that at a Parliament holden in the raign of Q. E. in Vernon and Herberts case debated before the Lords of Parliament, Hoord Counsel with Vernon invaied against these recoveries; who was then reproved by Dyer, Ch. Just. of the common pleas, who said, that he was not worthy to be of the profession of the Law, who durst speak against common recoveries, which were the sinewes of the assurances of inheritances, [Page] and founded upon great reason and Authority; sed non omnis capit hoc verbum▪

By this you may easily judge what most supported this assurance: for if Lawyers must be silenced, it is no wonder if common recoveries pass for Law. I know I shall not pass uncensured, as I have said before, Hoords case will be mine, with advantage: but it shall not at all disturb my rest; for having truth of my side, I care not who is against me: and certainly that Councellor that is a Councellor of the Law deserves the sharpest reproof; and since non omnis capit hoc verbum, as is said before, let me not be rebuked without reason; and if any one can convince me in that, I shall with all humility submit to his judgement.

Lastly, it is said that D. 8. lib. 1. cap. 26. approves common recoveries, [Page] to bind as well in conscience, as in Law.

For my part I conceive that the better opinion there is against them; and so I believe any man will judge that shall read the Chapter, I shall faithfully recite the disputes and leave it to judgement, and therein first the manner and practise of suffering such recoveries; The Demandant shall suppose in his Writ and Declaration, that the Tenant in tail hath no Entry but by such a stranger, where neither the Demandant nor the said stranger never had possession of the Land, whereupon the Tenant in tail shall appear, and by assent of the parties shall vouch the common Vouchee, whom he knoweth to have nothing to yield in value (now Reader judge whether this be not a meer fiction of a recompence in value,) and the Vouchee shall appear, [Page] and the Demandant shall declare against him, whereupon he shall take day to imparle in the same Term, and at the day by the assent of the parties he shall make default, upon which because it is a default in despite of the Court, the Demandant shall have judgement to recover against the Tenant in tail, & he over in value against the Vouchee: And this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence; for by presumption the Vouchee may purchase Lands. Thus you have the practise of a common recovery, which is nothing else but an invention to cut off intails, which hath been the ruin of many a family.

But it is reasoned, that although such recoveries, in respect of the multitude of them, be spared, that [Page] they stand not with conscience: fo [...] by the Stat. of 13. E. 1. when th [...] Ancestor is dead, intailed Lands o [...] right belong to the Heir, for that he is Heir according to the gift. If the [...] thou be commanded not to covet, [...] Fortiori, that thou do not withhold thy neighbours house, &c. And although it may be objected, that tha [...] which is ordained by the Law, may be adnulled by the Law, there is not here like Authority for the one, as for the other, for the tail is created by Authority of Parliament the most High Court in the Realm, and the disanulling thereof is by a covenous recovery upon false supposals, (here you have trueth clothed in plain Language.)

Then as to another objection, viz. Communis error facit jus, that is to be understood that a custom used against the Law of Man in some [Page] Countrey shall be taken for a Law, if the inhabitants be suffered so to continue it; but these recoveries, although they have been long used, have alwayes been spoken against (Reader, observe that, who ever thou art; and then I am sure I cannot justly be blamed: nor need I care to write against that, which hath been always spoken against.) Also this custom could have no Lawfull beginning, and an evil custom is to be abolished: Also a prescription against a Stat. is void: And it is also moved, that in as much as there is no executed recompence that the Law hath been taken, that the Heir in tail is not barred of his Formdon, and although the Vouchee may purchase after the issue hath recontinued his own Land, that herein is no inconvenience; for that the issue shall be barred of the recompence in value, [Page] in that he hath recontinued his own land again, and so shall not have both.

I dare not go so far as to allow a Formdon for the issue in such case (though enough hath been said to make that good too) by reason of the many inconveniences that must of necessity fall thereupon, but it were happy (as I have said before) if such covenous and fained recoveries were taken away by Act of Parliament.

But it may be objected; that you would have Tenant in Fee-simple to have power to dispose two parts, for the reasons and intents aforesaid; and why may not Tenant in tail have the same power?

To which I give this short answer, that it is agreeable with the nature of a Fee-simple to be alienable; [Page] not so in case of an Estate tail, for that is contrarie to the Form of the gift, as the Stat. is expresly; and there is no power given by that Stat. to the Donee in tail to dispose of the Estate in any case whatsoever; and therefore he may not for the advancement of his relations, or satisfaction of his debts, defeat his issue, or in default of issue, those in the remainder, by alienation, contrarie to the Form of the gift, and the intention of the donor.

And now I shall conclude this dispute with a rule or two in Law, and first the Stat. said that the Will of the donor must be observed in his gift, which stands with the reason and rule of the Law, for Cujus est dare ejus est disponere; a man must take the gift with those qualifications, conditions, or limitations, that the donor is pleased to annex to it, and [Page] cannot alter it, if so, what becomes of common recoveries? or how in Law or reason can the donee in tail disherit his issues; Note, much less strangers in remainder: as if land be given to A. in tail, the remainder to B. in tail, &c. if A. suffers a recovery, this not onely binds his issue, but him in remainder likewise, which is extream hard and unreasonable, that the Law contrary to the rules of Law it self, should allow a stranger to do an Act to my prejudice, for the rule is, that Res inter alios actae alteri nocere non debent, other mens actions ought not to prejudiee a third person, how then can that stand with this rule of Law, that Tenant in tail should have powr to barre him in remainder by a recovery. Another rule is, Quod nostrum est sine facto vel defectu nostro amitti, seu ad alium transferri non potest, we cannot lose what [Page] is ours, nor can it be given from us without our own Act or default, how then can it stand with this rule, that he in remainder should be barred by such recoverie as aforesaid? I shall say no more, but wait the Parliaments leasure▪ and I doubt not, but this will in due time be altered.

The next thing I am to treate of, is concerning the imprisonment of mens persons for debt, and in that I shall propose this short question.

Whether it be consonant to reason, conscience, or for the good of the Common-wealth to Arrest mens Persons, and to detain them in Prison for Debt?

I Know this is a case in which many men have vented their judgements in publick, and it hath not been without a solemn debate too in [Page] the Parliament; so that there is the less for me to do, and therefore I shall be but short in it.

What reasons induced the Parliament to continue this Law, I know not, nor is it for me to examine; however, I beseech you, let it not be taken amiss that I offer my reasons in it, and leave them to better judgements.

In the first place I shall examine what the old Law was, and when, and how this Law of imprisonment of persons for debt crept in; for it hath not been always used in England, and I may say in few other places of the World; and where it is in use, there is care taken that they do not perish in prisō for want of necessary sustenance, but they and their families to be maintained out of their own Estates; and if they have none, the perverse and cruel Creditor is [Page] to maintain them out of his proper Estate; and not to suffer them to perish for want of food, as they do commonly in England.

The body of the Defendant was not lyable to execution for debt at Common Law, for which see 13. H. 4. 1. But his Goods, Chattels, and Corn, &c. by Fieri facias, or Levari facias within the year, and by the Stat. of W. 2. by Scire facias after the year, and by W. 2. cap. 18. an Elegit was given of the moyety of the Land; which was the first Act which subjected Land to the execution of a judgement.

But the Common Law which is the preserver of the Common Peace of the Land, abhorres all force, as the capital Enemy to it, and therefore against those who committed any force, the Common Law subjected their bodies to imprisonment, [Page] which is the highest execution, by which they lose their Liberty, till they had made an agreement with the party, and Fine to the King.

And therefore it is a rule in Law, that in all actions Quare vi & armis, a Capias lies, and where a Capias lies in process, there after judgement, a Capias ad satisfaciendum lies; and there the King shall have a Capias pro fine.

Then by the Stat. of Marlebridge 23. and W. 2. cap. 11. Capias was given in an account, for at common Law, the process in an account was distress infinite, and after by the Stat. of 25. E. 3. cap. 7. the like proces was given in debt, as in account, for before this Stat. the body of the Defendant was not liable to execution, for the reason and cause aforesaid, all which you shall find in my Lord Cooks 3. Book, Sir William Harberts case.

[Page] Here you see the Original of the arresting of mens bodies, and taking of them in execution for debt; which was by force of those few but ruinous distructive words in 25. E. 3. like proces in debt as in account; these few words have ruined many, and almost numberless persons and Families; who, had they not been cloysterd up in Prisons, might have lived to have got Estates, and to have been able to discharge a good conscience in satisfaction of their debts, and providing for their Families.

For the proces by way of Capias, or attaching of the person for debt, I know it will be said to me, if you will have that course taken away, what other will you provide convenient for gaining of our debts? To this I answer, that that which I conceive most convenient in reason, and [Page] which hath been already proposed to the Parliament, is by way of Summons, as the Original in the common Pleas is; and upon that▪ if no appearance be, to have liberty to proceed with all vigour, and to have a judgement against the Defendant for not appearing, as if he had appeared, and judgement had been thereupon obtained against him. Onely this I must observe, that it is of necessity, that the service of the Summons be sworn to, (as it is in case of a Subpoena in the Chancery,) before there be any further proceeding, otherwise, any man living may be abused, and extreamly suffer by the seisure of his Estate upon execution, he having had no notice by way of Summons of the said action. And this great advantage to the Common-wealth there will be by the way of Summons, that it will [Page] destroy all priviledged places, for a Summons may be served, where there durst not be an arrest; So that then there will be no protection of men against their Creditours, but that such as have Estates, shall, as in conscience they are bound, pay their debts, and not consume them in a corner, under the guard of any priviledge.

The next thing, after the proces, and judgement, that is to be considered of is, what execution is most just and reasonable, and most agreeable to conscience, and the good of the Common-wealth in such case? In this we must consider what the scope, aim or end of the Law is in such execution; and that is, the satisfaction of the debt. Then the next question is, which is the most just and probable way to attain to this end? whether the taking of the body, [Page] or the Estate? To this I answer, that certainly the nearest, best, and most conscionable and rational way to attain to that end, yea and most equal too, is by seizing of the Estate.

The most equal it is certainly, and our Law much delights in equalities; for it is not equal justice that the body (which is said in Law to be the highest execution, and so without doubt it is, and much more to be valued then all Worldly goods) should be captivated and imprisoned, for any Worldly pelf, or ingagement whatsoever, body for body, and Estate for Estate, is the most equal way of justice in the World.

And it is the most rational, the readiest and best way for to get a satisfaction of the debt, and it is that which must pay it at last, if ever it be paid; for this is but a slender satisfaction of the debt. And this great [Page] inconvenience he lies under that takes the body in execution, that he cannot, after he hath determined his Election by this way of execution, during his life, take hold of his Estate too. And heretofore it was a great question, whether if the party died in execution, it were not a satisfaction of the debt; and though there were much variety of opinion in it, yet certainly the best was, that it was a satisfaction, so that the plaintiffe could not resort afterwards to, or take out execution upon the Estate; and for my part, I think it was the most just Law, that he, whom nothing but the body could satisfie, should have no other satisfaction, this occasioned the making of the Stat. of 21. of King James; which provides remedy against the Estate, notwithstanding the persons dying in execution.

[Page] But I say, having thus determined his Election by taking the body in execution, he is upon this great disadvantage that the debtors Estate is free, and that which he would not take to satisfie his debt, happens for the most part to be wasted and consumed in prison. 'Tis frequent, that a wilfull creditor finds as stubborn a debtor; and since nothing will satisfie him but the body, he must take that for satisfaction; so that it is apparently contrarie to reason and common policie.

'Tis likewise under correction, the most conscionable way too; and the contrarie, which is the taking of the person, the most unconscionable, especially as it hath been practised in England, for either the debtor hath an Estate, or he hath none, if he hath an Estate, it is all the Justice in the World that that should be responsible [Page] for his debts; if he hath none, what can be more unconscionable or unjust, than to keep his body in prison. Lex non cogit ad impossibilia, the Law requires not impossibilities at any mans hands, why then should one man so exact upon another? Besides, this renders a man utterly uncapable of ever giving satisfactiō, for by this he is wholly deprived of all possible means of discharging his ingagements. Whereas had he his liberty, he may through Gods blessing upon his honest indeavour, gain sufficient, not onely to satisfie his debts, but to raise a fortune for his posteritie.

But this will not digest well with such, whose principle is, that if they have it not they will make dice of their bones, (a saying that hath been ever too common in this place) that is, they shall starve and perish in [Page] prison: and whether this be not meer and pure malice in such men, let all the World judge; and if death shall thereupon follow, as too too often God knows it doth, I shall be bold to say, that such a creditor is as absolute a murderer, as if he had killed him with his own hand. For what makes murder, but malice prepensed to kill: and what else can that man have in his thoughts, who resolves his debtor shall rot and die in prison, though he knows he hath not wherewithall to satisfie. To such unmercifull, pittiless, cruel creditors, (yea, and therein most cruel to themselves too, had they grace to consider it) I shall say no more but this, that they cannot keep their poor creditors always in prison, death will at the length take pitty of them, bring a discharge and open the doors and let them out; and there [Page] (through their affliction, working them to true and unfained repentance and amendment of life) I doubt not, ends their captivity: but let these take heed, that they be not one day cast into that black, dismal and infernal Lake, from whence there is no redemption.

But I know that it will be objected to me that debtors may conceal, or secretly convey over their Estates to cousen their creditours, which cannot be discovered; so that if their persons may not be imprisoned, creditors shall be wholy without remedy.

To this first I say, that it is a rule in Law, that Nullum iniquum est in lege praesumendum, presumptions of fraude or deceite are not permitted in Law, that is so just, that it conceives all men to be just likewise, till there appear something to the [Page] contrarie: and why should our thoughts be otherwse? but it is so, men of corrupt lives, judge all others like themselves.

I answer further, that such as are resolved to be dishonest, it is not imprisonment will make them otherwise; and in such case if you take their persons, you are further from gaining of your debt than before, for you cannot then fasten upon their Estates; and let not the innocent suffer with the nocent, the willing and unable, with those that are able and unwilling.

Besides, how often is imprisonment made a meer cheat, even by the prisoners themselves to defraud their creditors, they willingly submitting themselves to a prison, to preserve their Estates.

But it is further objected, that if imprisonment of mens persons for [Page] debt should be taken away, it would be a great hinderance to trading, which is, as it were, the soul of every Common-wealth, for then men would not dare to trust one another.

To this I answer, trading driven upon credit seldom thrives; And I may safely say, that many men, who are now beggers, had been rich men, had they had less trust and confidence, little profit without, is more than great with hazard and danger. I know no reason that any man should be trusted who hath not wherewithall to pay; and certainly men in general, then thrive best, when they trust least; and for my part, I judge that man worthy to lose his debt, who trusts to the security of a mans person onely.

Again, Lex respicit finem, the Law hath an eye to the end of all [Page] actions; and as this is not the next way to get mens debts by the imprisonment of their creditors persons, (as I have said, and proved before,) So I beseech you to consider, who it is that gains by it? it is certain the creditor, seldom, if ever, gains his debt the sooner.

Why, the onely gainers are, Sheriffs, Bayliffs, Serjants, Goalers and Keepers of prisons, &c. these are they that grind the faces of the poor, that add affliction to affliction, and live upon the ruins of others; these are the mala necessaria, the bloudsuckers, the leeches of the Commonwealth; evils they are, and great ones too, I am sure of it; but did I say they were necessarie? I must recall that word, otherwise, I must of necessity approve of the Devil and his cursed instruments; and Hell and a prison have no small resemblance, [Page] onely there is more hopes of getting out of the one, than the other. A silver key, so long as a man hath it, will unlock the prison doors, and set him at liberty; but if he shall make default in payment of his rents, or other extortions exacted of him, by the keeper, and his bloud-hounds, he shall quickly be hunted after, and fetched in again, and there remain untill he hath satisfied them; that being done, he shall be restored to his former liberty; but if his purss be not of considerable magnitude, it will soon be emptied; and then, no longer pipe no longer dance; the creditor shall be sure then to find him, and now nothing remains but the body, which the creditor so unwisely made choice of, for satisfaction of his debt. This I know to be the constant course of many Keepers of prisons; and the conditions [Page] of their prisoners; and whether this be the way for creditors to get their debts or no, let any sensible understanding man judge.

But lastly, it hath been said by some, that it doth indeed stand with reason and conscience, that where a man becomes unable, through the Act, or hand of God, without any Debauchery or default of his own, to satisfie his debts, that in such case he should not be detained in prison; but if through his own default, in such case he deserves no mercie.

To this I say, under favour, that though he be so impoverished through his own default, it is very hard, and to me unreasonable, that he should so suffer; First, because that this is not Gods Method or way of dealing with poor sinfull man, for if God should inflict the severity of his Justice upon us, but for one of [Page] a thousand sins that we commit against his Divine Majesty, no flesh living could be saved, why should we then so exact one upon another, as not to forgive one fault or transgression of our Brother; are we not required to be mercifull as our heavenly Father is mercifull? and do we not dayly pray that God would forgive us our Trespasses, as we forgive them their Trespass against us? how then dare we harbour malice in our heart against our Brothers; since except we truly forgive, we are not to expect forgiveness? consider with thy self how much thou art indebted to God, and if he (as in Justice he might) should require that great debt at thy hands, nay, but one of a Million, thou must inevitably go to prison, I, to that prison (to which all earthly sufferings and torments are as nothing) from which there is [Page] no redemption to all eternity; and therefore forgive, as thou dost expect to be forgiven.

Again, this is not the way to satisfie the debt (which is the end of the Law in such executions) but to ruin the party; who, had he is Liberty, might leave his former vanities and ill courses, and live to be able to make satisfaction of his debts; God happily waits for thy reformation all thy life, do thou (as in duty thou art bound) deal so likewise with thy Brother. I shall conclude all with this one word, let us consider those that are in bonds, as if we were in bonds together with them.

The next I have considered to treat of, is the Chancery and its power, and therein I shall propose this short question.

[Page]

Whether the High Court of Chancery, as the practice is there, be not a very great grievance, and burthen to the Common-wealth?

IT is not my purpose, or the scope of my indeavour, to speak or write against a Court of Chancery, I know there is an absolute necessitie of it. Equity said D. 8. lib. 1. cap. 16. is a right wiseness that considereth all the particular circumstances of the dead, the which also is tempered with mercie, and such an Equity must be observed in every general rule of the Laws of man, for Summum jus, summa injuria, viz. If thou take all that the word of the Law giveth thee, thou shalt sometimes do against the Law. And therefore said D. 8. cap. 18. very well; If it were ordained by Statute that there [Page] should be no remedy upon Equity in Chancery, nor elsewhere, such a Statute were against reason and conscience, and certainly so it were. He approves the use of any thing, that labours to take away the abuse.

I am not ignorant, that the Kings of this Nation have ever had their Court of Chancery, and their Chancellor or Lord Keeper of the Great Seal; nor am I wholly unknowing of the power and Authority of that Court. In the Chancery, saith my Lord Cook in his Jurisdiction of Courts, there are two Courts, one ordinarie, Coram Domino Rege in Cancellaria, in which the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line of the Laws and Stat. of the Realm, Secundùm legem & consuetudinem Angliae, and with this Court, I purpose not to meddle, as [Page] being not within the limits & bounds of my present discourse. But the other Court, that is extraordinary, according to the rule of Equity, secundùm aequum & bonum; and that is my work to treat of, and that you may see the necessity of this Court, it is Officina Justitiae, out of which all Original Writs & all Commissions, which pass under the great Seal go forth, which great Seal is Clavis Reipublicae, and for these ends this Court is always open. And in this, the Chancellor or Keeper was sole Judge, but he had power, if he pleased, to assist himself with the Judges.

And now I shall take freedom to let you know what the ancient rule was for this Court of Equity, which is very good. Three things are to be adjudged in a court of conscience: Covin, Accident, and breach of Confidence.

[Page] All Covins, frauds, and deceits, for which there is no remedy by the ordinary course of Law.

Accident, as when a servant of an Obliger, Morgager, &c. is sent to pay the Monies upon the day, and he is robbed, &c. remedy is to be had in this Court, against the forfeiture, and so in the like case.

The third is breach of trust and Confidence, of which you have plentifull Authorities in our Books: but of this, this tast onely shall suffice; and now to come to that which I intend, which is the present practise there, and therein I shall not meddle with the many great Officers and their fees; which is a very great burthen to the Common-wealth, because that I do believe, that they are in a way of redress.

But the first thing that I shall touch upon, is the multitude of Suits [Page] that are there pending, so that it is impossible (without the Commissioners were more than men) for them to receive a convenient dispatcht. I do acknowledge their great and indefatigable pains in that high and extraordinarie Judicature, for which the Common-wealth stands very much obliged to them: yet I know as men, they cannot exceed their strength and ability.

This Court hath received a great addition, not of Jurisdiction, but of practise, by taking away of the Court of Wards, that great and oppressive Court; as likewise, by the fall of that unnecessarie Court of Requests. So that the business of this Court is so great, and doth so much increase dayly, that the Commonwealth will in a short time very much suffer through inevitable, not to be prevented, delay of Justice.

[Page] Besides; it is not unknown, that many Suits are commenced there upon a suggestion of Equity, meerly false, on purpose onely to hinder or delay the execution of Justice at the Common-Law; this likewise much advances the p [...]ctice there, and is a very great prejudice to the Common-wealth, by reason of such unjust and causless vexation. I hope no man will be so unreasonable as to misapprehend me here, or to judge, that in any thing I have said, I should lay the least imputation of fault upon the Commissioners, no, I do not, I cannot, I know that all men who have to do in that Court, do plentifully partake of their Justice, yet I must say, as before, that it is impossible for them, through the infinite multiplicity of business there, to give a convenient dispatch to all.

[Page] Again, it seems to me, to be a great grievance and burthen to the Common-wealth, to have a resort in matter of Equity from a Court of Law, to Chancery. We say in Law, frustra fit per plura, quod fieri potest per pauciora, it is vain and idle for a man to go about, when he may find a neerer way home. The Law loves not circuity of action, why then should men be forced to a Court of Equity, when the case is pending before the Judges at Law? and why may not the matter of Equity (if any) be determined by them without such further trouble or wheeling about, which is no small charge and expence to the people? I know not but that they are in such case, the most proper Chancellors; and this will prevent a very great mischief and vexation to the people, which I have shown before, and that is, of resorting [Page] to the Chancery upon pretence of Equity, whereas in truth, it is onely to delay Justice: a thing, then which, nothing more frequent and usual.

Besides, it is no strange thing for the Judges to make themselves Chancellors too, for I have known this case frequently in practice, that the Judges, in debt upon a penal Bond, have, upon a motion, forced the plantiffe to accept of the principal with costs and damages, and I am sure, the penalty in strictness of Law being forfeited, this is judging and determining according to Equity; and why they may not do it as well in other cases, I understand not further, as I have said before: The Chancellor may call the Judges to his assistance, and peradventure he will call those (as is most proper) before whom the case was pending at Law: is not this then a strange [Page] circuitie of action? why might not the matter of Equity have been as well determined by the Judges, and so this great vexation have been prevented?

But to this it will be said, that this would be a total destruction of the Court of Chancery, and a gross confounding of Law and Equity, to make the Judges judge of both.

To this I answer, that we are wholly to respect the good of the Common-wealth, and what tends most that way, certainly is most just and reasonable; other relations ought to be subservient to that; that is equal and good ought onely to be look't upon. But further, though this will much abridge the practice there, yet, it will not take it away; and I am certain, the practice there needs some abatemēt; or at last there will be an extream failer of Justice.

[Page] Not destroy it, for there be many cases, which are so meerly and absolutely equitable, that they have not the least relation to Law, nor can any action in such case be brought at Law, as in all your cases of discovery, and the like.

So that where the Suit is onely proper there, and is not, nor cannot be brought in question at Law, in such case it is reason that Court should have a determining power in the matter of Equity: and such cases onely, I am confident, will find work enough for the Commissioners, and this will be a very great ease and benefit to the people.

For the scruple of confusion, I know no reason, but that Judges of Law may as well judge of Equity; as Judges of Equity judge of Law. Nay more, are they not all Lawyers? I know it is no strange thing, for [Page] others to have been Chancellors; yea, it hath been common for Bishops to exercise that great place of Judicature; how proper it was for them, in relation to their functions, as also to the place of Judicature it self, I shall not dispute here, as not proper to that I intend; but certain I am, none more proper Judges of Equity, then Judges of Law, nor can he be a competent Judge of Equity, that understands not the Law: for Equity is no other but an exception of the Law of God, or of the Law of reason, from the general rules of the Law of man; which exception is secretly understood in every general rule of every positive Law; therefore he that understands not the one, cannot well Judge of the other.

Give me leave to urge one thing more, which I am sure would very [Page] much abate, and lessen vexatious and troublesome Suits in Chancery, and that is, that no plaintiffs should preferre a Bill, but that he may swear it, as well as the Defendant his answer, that such untruths as are now (to the shame and scandal of our profession) alledged and preferred in all, or most Bills exhibited, may be prevented, that men may not lye (pray pardon the coursness of the Term, since the truth is so) by toleration.

To this I know it will be said, that some Bills are meerly for discovery and the like, and so not to be sworn to; To this I answer, that there is no Bill but hath something positively alledged in it, and that me thinks seems reason, that every Plaintiffe should swear to, the rather, for the Honour of this High Court, that men may not dare to forge falsities, [Page] and to present them to the Commissioners for specious truths.

I have one thing more to say, and with which I shall conclude; and that is, that it seems very hard to me, that men should not have costs of Suit, in some reason answerable to what they have necessarily expended in this Court, as well as at Law; so that often the remedy proves as bad, if not worse, then the disease, and sure this cannot be agreeable to Equity, it is not aequum, nor bonum; neither good for the Court, nor equal to the party. And this to my knowledge hath deterred many a man from prosecution in this Court. I shall say no more but this, judge me according to Equity, and then I know I shall not be condemned.

The next thing I have resolved to treat of is, Collateral Warranties, & in that I shall propound this short question:

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Whether Collateral Warranty stands with reason and conscience, or no?

ANd first I shall let you know what a collateral Warranty is; that you may the better understand the reason of this question. A collateral Warranty is thus; where a collateral Ancestor; as an Uncle, releases to the discontinuee or disseisor of Lands in tail, with Warranty and and dyes, this barres the Heir in tail, because the Warranty descended upon him, who cannot derive any title from the Uncle; and though the Warranty descends lineally; yet it is said to be collateral, because the Ancestor is collateral to the title.

But to make the case more plain, I shall put one case out of Littleton. Sect. 709. If Tenant in tail discontinues the tail, and hath issue and dies, and the Uncle of the issue releases to the discontinuee with Warranty, [Page] &c. and dies without issue, this is a collateral Warranty to the issue in tail, because that the Warranty descended upon the issue, who cannot convey himself to the tail by means of his Uncle. And you must know, that this Warranty is a barre without any assets, or Estate descended from him that made the Warranty, which is the great extremity of the case.

The reason that my Lord Cook gives, why the Warranty of the Uncle, having no right to the Land intailed, shall barre the issue in tail is, because that it is presumed that the Uncle would not unnaturally disherit his Lawfull Heir being of his own bloud, of that right which the Uncle never had, but came to the Heir by another mean, except that he would leave him greater advancement. Nemo praesumitur alienam posteritatem[Page]suae praetulisse. No man is presumed to preferre anothers posterity before his own. And in this case he further saith, that the Law will admit no proof against that which the Law presumes. And so of all other collateral Warranties, for no man is presumed to do any thing against nature. It is well that my Lord Cook will offer some reason for it; it is more than I find in D. S. lib. 1. cap. 32. for he saith, it is a barre in Law and conscience, because that it is a Maxim.

But now let us examine the reason of my Lord Cook, and see whether it doth stand with conscience, reason, and the good of the Common-wealth; for my part, I judge not that to be Law, nor worthy so to be considered, that is unreasonable, unconscionable, and against the common good.

[Page] It is an unreasonable and unconscionable Law, that a collateral Ancestor who cannot claim any right to the Land, should have power to barre me that am the Heir to it by his release, and this is a case much more extream then that of recoveries, in some sence, because the Uncle is a meer stranger, as to the Estate, and this is against the rule of Law, that Acts done by strangers should prejudice a third person.

Yes, but saith my Lord Cook it is presumed, that the Uncle would not disherit his Heir of that, which he had nothing to do with, nor could not pretend any right to, except that he would leave him a greater advancement, and no proof must be against this presumption.

A very strange presumption, How many Uncles might a man find in this age, who for a small sum of money, [Page] would not care to disherit twenty Heirs, if possibly so many could be, without the least scruple of conscience; who neither have, nor consider of any other advancement to leave them.

But there is a strong block in the way; for against that presumption there must be no proof; so that if he leave no Estate or other advancement, it is all one as if he did, it is presumed he will, though happily it is known, he neither doth, nor can; and that is sufficient to disherit his Heir.

Yet the rule of Law is, Stabitur praesumptioni donec probetur in contrarium, the presumption is to be allowed, till the contrarie be preved, but no longer: and certainly if ever there were an unreasonable exception to any rule, this may pass for one.

[Page] My Lord Cook saith, that it hath been attempted in Parliament, that a Statute might be made, that no man should be barred by a collateral Warranty, but where assets descend from the same Ancestor, but it never took effect, because saith he, that it would weaken common assurances, Rot. Parliament. 50. E. 3. Num. 77.

This is a reason urged in defence of common recoveries likewise, the English of it is but this, I may barre another man of his just and Lawfull right, to fortifie a wrongfull title; otherwise it would weaken common assurances; I know no reason, but mens rights should be as much favoured as common assurances; an Heir as much as a purchasor. To conclude, I wish a second attempt were made in this present Parliament, against these collateral Warranties; [Page] and then I should not despair of redress of so unreasonable a Law, The next thing I am to treat of, is, Pleadings, and therein I shall propound this question.

Whether it be consonant to reason or conscience, that any mans Plea should be adjudged nought, and avoided at any time for any matter of form, false Latine, double Plea, Departure, or any other defect whatsoever, the case and matter it self sufficiently appearing upon the Record, for which the Action is brought▪

FIrst, that I may clear the question of some things doubtfull in it, I have added to it, at any time, because in some cases and sometimes such defective Pleas are already helpt by Stat. as you will find after.

[Page] I shall not need to inform you what matter of Form is, the word it self sufficiently speaks it. Double Plea is, when a man in pleading alledges several things; the one not necessarily depending upon the other, &c. Departure is when a man goes from his former plea, and pleads some new matter, these will vitiate pleadings; and put a man to a new action.

But to the case it self; M. Littleton, I remember, saith, that pleading is one of the most Honourable and profitable things in our Law, and therefore advises his Son to bend his indeavour to the gaining of the knowledge of it. I believe it indeed to be one of the most profitable things, (I mean to the Lawyer) but the Common-wealth suffers in it. For the matter of Honour, I know not where it lies, except it be in this; [Page] that such a one is said to be a subtile Lawyer, a pick-lock of the Law, one, who can discover a flaw or defect in any plea presently, if it be to be found: and this is the Honour I believe, to be able to vex and trouble and undo people by various Suits; if this be the Honour (though I hope no man will therefore count me wholly ignorant of this knowledge, because I speak against it) let who will take it for me.

Cook upon Litt. fol. 303. 304. observes, that many a good cause is dayly lost for want of orderly and good pleading; the more the pittie. And after he saith, when I diligently consider the course of our Books of Years, and Terms from the beginning of the Reign of E. 3. I observe that more jangling and questions grew upon the manner of pleading, and exceptions to form, then upon [Page] the matter it self, and infinite causes lost or delayed for want of good pleading, what a gross shame, and most unconscionable thing is this, that form should be insisted upon more than matter; and the Clyent should lose his case, or have it delayed, for formalities. The Clyent sues not at Law for to make cases or questions, or to occasion scruples about nice formalities, but to have Justice done according to the truth of his case; and this is the end of all Law, to put an end to controversies, in doing right to the parties, without delay, or regarding any thing but the truth of the case it self. Interest Reipublicae ut sit finis litium, it very much concerns the Common-wealth, that strifes be ended; and not that one dispute or controversie should occasion another; much less that contention should be [Page] about words, the matter layed aside, and the party depart, not as he came, but in a worse condition, his money fruitlesly expended, and his right, if not lost, suspended.

My Lord Cook saith again, that it is worthy of observation, and so indeed it is, That in the Reigns of E. 2. E. 1. and upwards, the pleadings were plain and sensible, but nothing curious, evermore having chief respect to matter not to forms of words; I am sure we cannot say so of these latter times; for I am confident, they were never more nice and captious than of late.

Then he said, that in the Reign of E. 3. pleadings grew to perfection, both without lameness and curiousity. And that in the time of H. 6. the Judges gave a quicker ear to exceptions to pleadings, than either their predecessors did, or the Judges in [Page] the Reign of E. 4. or since that time have done, giving no way to nice exceptions, so long as the substance of the matter were sufficiently shewed.

I attribute much of Honour and respect to my Lord Cook; yet I shall crave that freedom, to deliver what is truth, and that is, as I have said before, that pleadings were never more curious and subtile than of late; and never more nice exceptions given way to.

I shall not here meddle with the order of pleading, as first to the Jurisdiction of the Court, Secondly to the Person, &c. which must be observed in their due course, or you lose the benefit of the former. Nor yet with my Lord Cooks rules of pleading in his institutes, in which he is very large: I go not about to teach or inform you of the forms [Page] and subtleties of our pleas; though they are worth the knowing, yea, and observing too, so that the Clyent may not be prejudiced for want or defect of such forms.

For the double plea, I cannot understand any just reason why it should not be allowed; that reason which the Law gives, is, that the Court and Jury may be invegled by such pleas; I have inquired exactly into this reason, but cannot find how, or which way; and I do profess my self one of my Lord Cooks non-intelligents too; for he said the Law in this point, is by them that understand not the reason thereof, misliked; and I do acknowledge my self of their minds who say. Nemo prohibetur pluribus defensionibus uti; no man is prohibited to use several defences.

And so likewise for the departure, I know no reason that any man [Page] should be barred or concluded from offering any other or new matter, but that any man, may at any time make the best of his own case; certainly, Judges ought to have principal regard to the truth of every mās case, that that may be discovered, thereby the better to inable them to give righteous and true judgement; not to forms or words; these are but apices Legis, the meerbark, outside, and inconsiderable part of the Law; and indeed non sunt Jura, they are not Law.

The rule that we have in pleading, that Parols font plea; that is, whatsoever the truth of his case is, that is his case, and that he must stand to, as he hath pleaded: and the other rule, that a mans plea shall be taken most strongly against himself, where it is doubtfull, these seem to me very hard and unreasonable; it is strange [Page] to conclude any man, where there is a mistake in words, from laying open the truth of his case; this, if any thing, is to invegle the Court, and make them give an unjust judgement, and if they be informed of the mistake, and yet judge according to that, I doubt whether a rule of Law, will another day be a good plea for them.

Besides, if a man shall but truely reason this case, he must needs judge it very unjust, that a man should suffer through anothers default, which is contrarie to the rule of Law, for that saith, Nemo debet puniri pro alieno delicto. Now pray who is it that draws these pleas? why the Clerk or Lawyer, according to the information he receives from his Clyent; can it then be agreeable to reason or conscience, that the mispleadings, or formal mistakes of these, whom I [Page] intrust, as being wholly ignorant thereof my self, should prejudice me; again, is it not frequent, for the most learned men of the Law, to erre, or at least, to differ in judgement, from the Judges? and yet not to be blamed neither, why then should I suffer for other mens faults, or defects in judgement?

By divers Statutes made in the reign of H. 8. E. 6. Q. El. and King James, it is provided, that after issue tried, after verdict, after demurrer (except where the matter of form is specially demurred to) that the Judges do give judgement according to the right of the cause, and matter in Law, and no matter of form, false Latin, or variance, &c. to hinder it.

These are good laws so far as they have gon, and I hope none that considers these will blame me; for without [Page] doubt, the same or the like considerations, caused the making of them; that justice or right might be advanced above all punctilioes or nice formalities. And since those are defective in many things, as common experience teacheth; and the same reason that caused the making of them, may, and ought to perswade our great Parliament to a total extirpation of such immaterial nicities; I doubt not, in good time, we shall have an Act made, which will fully answer our desires therein; which will be much for the good and ease of the people, and no less beneficial to Lawyers. The next thing that I shall treat of, is Conveyances, and therin propound this short question;

Whether the many sorts of tedious and long Conveyances now in use, stand [Page] with reason, and the good of the Common-wealth or not?

THere are many sorts of Conveyances in our Law, and I doubt too many, to be for the good of the people; as Feoffements, Fines, Recoveries, Bargains, and Sales, Covenants to stand seised to uses, &c. most of which, are so swelled and inlarged with many unnecessary covenants, and vain and idle repetitions and tautologies, which together with advise and counsel, are an intolerable charge and expence to the people. So that he that purchaseth but a small thing (as happily not being able to go further) he had as good, almost, be without it, and keep his money, as under-go the great charge and trouble in the assuring of it.

I put a Feoffement in the first [Page] place, as deserving the preheminence and prioritie of place, being the most ancient and best conveyance. O the innocencie of former ages, when a Feoffement onely of some few lines was sufficient, and served to convey over the greatest estates.

Yet I am not in this case, to lay all the blame, if any, upon Lawyers; for as the innocencie of those times required not so many covenants and assurances to oblige men to the performance, and making good of their faith and engagements one to another: So the wickedness and corruption of these latter ages, are such, that men must be tied and bound, shackled, and fettered like wild and untamed cattel; so that it even puzzels Lawyers to find words enough to meet with the subtle devises, and over-reaching policies of most men; and all little enough to keep them [Page] within the bounds and limits of justice and honestie.

But to return to that I broke off from; Cook upon Litt. fol.. 9. saith, that a Feoffement is the most ancient and necessary Conveyance; (Note that Reader) both for that it is solemn and publick, and therefore best remembered and proved, and also for that it cleareth all Disseisins, Abatements, Intrusions, and other wrongfull and defeasible estates, where the entrie of the Feoffor is lawfull, which neither Fine, Recoverie, nor Bargain and Sale by Deedindented and inrolled doth.

And that this kind of Assurance may find the better esteem and approbation, I shall first inform you what it is, & then shew you the venerable Antiquitie of it; Feoffement is derived of the ancient word Fe [...]dum,[Page]quia est donatio feodi; because it is a giving of the Fee; for the ancient writers of the Law, called a Feoffement Donatio, of the Verb do, or dedi; which is the aptest word of Feoffement.

And now you shall have the antiquity of it, out of no other Author, but Holy Writ; for saith my Lord Cook, that word Ephron used, when he infeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the Cave therein I give thee, and all the trees in the field, and the Borders round about; all which were made sure unto Abraham for a possession in the presence of many witnesses, Genesis, cap. 23. vers. 11. And when the kins-man of Elimelech gave unto Boas the parcel of Land that was Elimelechs, he took off his shooe, and gave it unto Boas in the name of seisin of the Land, [Page] (after the manner in Israel) in the presence and with the testimony of many witnesses, Ruth; cap. 4. ver. 7, 8. Deut. 25. 9, 10. Thus you have the antiquity likewise of a Feoffement; now this being the best, and most ancient conveyance, I know no reason it should not be most in use. Cook upon Litt. fol. 6. a. saith, that there are eight formal or orderly parts of a deed of Feoffement, as the premisses, the habendum, &c. and yet he saith, all those parts were contained in very few and significant words; Haec fuit candida illius aetatis fides & simplicitas, quae pauculis lineis, omnia fidei firmamenta posuerunt. And a Feoffement is good, without these formal parts, fol. 7. a. for if a man by his deed gives Land to another and his Heirs, without more saying, this is good, if he put his Seal to the deed, deliver it, and makes livery accordingly.

[Page] I have been the larger upon this conveyance, by way of Feoffement, because I would have men in love with it; and certain I am, it would be best for all men (except Lawyers, who I hope will be contented to abate something of their profit, to serve the common interest) best in point of security, and in profit. Onely add this to it, that a Law be made, that it shall be a barre (as a Fine with Proclamations,) if it be inrolled, & five years pass with non-claim after the inrolment, and then it will be a great ease and advantage to the publick.

But if it shall not be thought fit to alter the Law in point of conveyencing, as it is now setled, why then I shall humbly begge this one boon of the Parliament, in behalf of the publick? and that is, that they would be pleased to make a Law, that no [Page] Scrivener, or other person whatsoever, other then Lawyers, shall for the future make or draw any conveyance or assurance in Law whatsoever, which shall after happen to be sealed and delivered, without the advice of Counsel thereupon had, either before, or after the assurance drawn and made, under a good pain or penalty, if they shall do the contrarie: and this will be a means to prevent, many contentious Suits, which dayly arise upon scruples and questions out of such conveyances drawn according to their formal ignorance.

The next thing I shall dispute, is the Law of Bastardy; wherein I shall set down this short doubt.

Whether it be a just and reasonable Law, that a Child born before marriage; and shortly after marriage [Page] happening, should be a Bastard, or not?

THis is a case, in which the Common-Law differs from the Civil and Cannon-Laws; the Common-Law saith, that such a Child is a Bastard, the other Laws, that it is Legitimate. I shall give you the reasons of both sides, and then you may judge which is most reasonable. This very case is debated by Fortescue, cap. 39. The Civilians say, that maritagium subsequens tollit peccatum precedens; that is, that by means thereof, the State of Matrimony coming in place, extinguisheth the former sin, whereby else the Souls of two persons should have perished; And it is to be presumed, say they, that they were at their first copulation so minded, as the marriage after declareth.

[Page] The Canonists also say, thatMatrimonium subsequens legitimos facit quod sacerdotium.

Say we, the sin by the inter-marriage is somewhat abated; not purged, or taken away; & besides this would be a great increase of that sin, and an incouragement to it, if such Children should be legitimate, and the parties would be less penitent, because so favoured.

And Fortescue being much for our Law in this point, puts this case; saith he, If a woman should have two Children of two Fornicators, & the one marries her, whether of these two children should be by this Marriage Legitimate?

For my part, I do conceive, under correction of better judgements, that the Cannon and Civil Laws are most reasonable in this point; though I do not conceive, that the [Page] sin is purged, or taken away by the inter-marriage, for that cannot be otherwise, than by true repentance for the sin committed: for which, this seems to me to be a great sign, otherwise I doubt whether they would have married or no. And I do conceive it ought to be intended, that they resolved upon marriage before, or otherwise it is not to be presumed that they would have married after: men usually hate those women they have carnally known, being pricked in conscience for the sin committed and therefore not likely to marry such, unless there were some former tye or obligation upon them, which mitigates the offence, and makes them perform their ingagement: and if it were not so, who in such case would so marry, knowing his issue to be Bastard by the common Law.

[Page] To that that is said, that it would be an increase and incouragement to commit that sin, if the Law should be so taken, that the issue should in such case be legitimate.

To this I answer, that I rather conceive the contrarie, that it would very much lessen and abate the committing of that sin; for it will make them the rather eschew it, and take up resolutions of marriage; for, as I have said, men seldom marrie that woman they have carnally known, especially having issue before hand, being the more frightened from it, by this hard Law of Bastardy.

For that objection, that if such issue should be legitimate, the parties would be less penitent, because so favoured.

To that I answer, that certainly it would make them much more penitent, when they shall live together [Page] in the state of Matrimonie; and put them more in mind of their former offence, which certainly they would less think of were they divided; and I think a greater sign of penitence cannot be, than the subsequent Matrimonie.

Besides, by legitimating of such issue, this great convenience would follow, that it would much abate and take off the scandal and reproch of the World, and incourage men in such case to Matrimonie; whereas otherwise they usually add sin to sin, one Bastard begets more, so that once having under-gone the reproch and shame, they never consider the sin, but are more hardned in it.

For the case put by Fortescue, of two Fornicators having got several Children by one Woman, and the one after marrying her, which shall be legitimate. This I conceive may [Page] receive a very short answer; for if the party that got the Child be known, we may easily judge which shall be legitimate.

My Lord Cook upon Litt. saith, fol. 244. that if the issue be born within a Moneth or a day after marriage, between parties of full Lawfull age, the Child is legitimate; by which we may conclude, that if it be born so short a time after marriage, that it is legitimate, for certainly the same reason for both.

Now I say this, that if we may go so near Bastardy, and yet be legitimate, I know no reason; that coming so near legitimation, it should be a bastard, and this in favour of legitimation.

But besides, the sins are equal, and therefore I know no reason but the punishment should be so too, a day doth not aggravate the sin, why [Page] then should a day bastardise the issue.

Cook uponLittleton, fol.245. Matrimonium subsequens legitimos facit quòad sacerdotium, non quoad successionem, propter consue [...]udinem regni quod se habet in contrarium.

And therefore at a Parliament holden,20. H. 3. for that to certifie upon the Kings Writ, that the Son born before marriage is a Bastard, wascontra commanem formam Ecclesiae, rogaverunt omnes Episcopi; Magnates, ut consentirent, quod nati ante Matrimonium essent legitimi, sicut illi, qui nati sunt post Matrimonium, quoad successionem haereditariam, quia Ecclesia tales habet prolegitima: Et omnes Comites & Barones una voce responderant, quod nolune leges Angliae mutare, quae haec usque usitat [...]e sunt & approbatae.

And I do confess that the Statute [Page] of Merton 20. H. 3. cap. 9. confirmeth this opinion. Had there been a reason given in this Statute▪ or by the Lords, to make good the use and approbation; it had been somewhat to convince a man of the Justice of this Law, but since there is none, I hope that a nolunt mutare, shall not make the Law one whit the more reasonable: it is not what we will not do, but what ought to be done that ought to poize in judgement. Nevertheless, I submit all to graver judgements. The next thing that I question, is;

Whether tryal by Jury, as it is now in use, be agreeable to reason, and for the good of the publick, or not?

WHen I had seriously considered with my self, how great a burden lies upon such mens shoulders, who are of a Jury; and [Page] of what great importance this way of Tryal is to all men of this Common-wealth; the lives and fortunes of all men being subject, and lyable to their verdict and judgement.

And when I had further thought with my self, that although this be the most exact and equal way of Tryal in the World, for men to be judged by their Peers; and that not by one or two onely, but by 12 men of the Neighbour-hood.

And therefore saith my Lord Cook upon Litt. 1. a Jurer ought to be dwelling most near to the place where the question is moved; and such are presumed to be best conusant of the matter of fact.

2. He ought to be most sufficient both for understanding that his ignorance may not mislead him;) & competency of Estate (that he may not be corrupted through poverty, or necessity.)

[Page] 3. He ought to be least suspitious, that is, to be indifferent, as he stands unsworn, and then he is accounted in Law, Liber & legalis homo; otherwise he may be challenged, or excepted against, and not suffered to be sworn.

The most usual way of trial (saith he) is by twelve such men (it were well if they were) for ad quaestionem facti non respondent Judices. And matters in Law the Judges ought to decide, for ad quaestionem juris non respondent Juratores: and certainly this is the most equal and just way of Trial.

For the Institution and right use of this trial by twelve men, and wherefore other Countreys have them not, and how this trial excels others; see Fortescue at large, cap. 25 and 29.

Again, the Law hath taken such [Page] care for equalitie and right in such trials; that the Law hath inflicted a most heavie doom and judgement in case they give a false verdict, by way of Attaint against the Jurie: for which you may see Cook upon Litt. fol. [...]94. and Fortescue, cap. 26.

Yet for all this, when I again consider what weak and ignorant Juries are for the most part returned, I cannot sufficiently wonder and lament, that mens lives and fortunes should depend upon such mens verdicts. That such men (as many of them are) who have not had so much good literature, as to be able to read, should be Judges and disposers (as upon the matter they are) of other mens lives and estates.

But here it may be objected by some, that the trials are before the learned Judges of the Law, who may direct them, and satisfie them in their [Page] doubts; and therefore there is no such fear of injustice, as is supposed.

This I conceive is sufficiently answered before, in that the Law is, that the Jury are the onely Judges of matters of fact, and in that, they may judge according to their own conscience; and are not bound in such case, to ask advise of the Judges, or if they do, they are not tied to follow it: nor, in truth, ought the Judges in such case to direct them, (though in matter of Law, of which they indeed are the proper Judges, they may and ought to do it) their work is onely truly and faithfully to repeat the evidence on both sides, and so to leave it to the Jurie.

My Lord Cook saith, that in ancient time they were twelve Knights: and Fortescue saith, that the Juries are very oft made, specially in great [Page] matters of Knights, Esquires, &c. cap. 29. fol. 67.

Though this be of as high consequence and concernment to the publick, as may be, yet I shall not desire, that there should be twelve Knights, or twelve Esquires to every Jurie; for so in defect of them, there would be often a failer of justice; and besides, some cases are so small and inconsiderable in themselves, that a mean and ordinary Jurie, may be sufficient for that purpose.

But this I shall humbly desire, that in all cases which touch a mans life, or his estate, to any considerable value, there may be twelve able understanding Gentlemen returned of the Jurie, such as are known in their Countrey to be men of competent worth for so great an imployment. This would very much [Page] advance right, and determin disputes and controversies; which now frequently are again revived, by reason of the verdicts of weak and unable Juries. And it were happie for the publick, if an Act were made to that purpose. The next thing I shall discuss, is the loss of life in case of Theft, and the forfeiture thereupon. In which the question is,

Whether it be consonant to the word of God, or reason, that a man should lose his life for Theft, and should incur so great a forfeiture and penaltie as loss of all his estate, and corruption of his bloud?

IT is true, there is a commandment against it, Thou shalt not steal: but there is no penaltie inflicted upon those that do. But by the Judicial Law, Exod. 22. vers. 1. If a man [Page] steal an Ox or a Sheep, and kill it, or sell it, he shall restore five Oxen for the Ox, and four Sheep for the Sheep: and vers. 4. If the theft be found with him alive (whether it be Ox or Ass, or Sheep) he shall restore the double. So that by that Law, there ought to be a restitution, but no life was then in danger. But to this it will be said, that that Law was given to the Jews onely to observe, and doth not extend to us. To this I say, that had it been an equal and just Law to suffer death in such case, without doubt it had been imposed upon them to observe; for in the Chapter before, Murder is made Death; life for life, that is equal punishment: but life for any wordly or temporal substance whatsoever, holds not the least equalitie of proportion; for one mans life is of greater value and esteem, than all the [Page] treasure upon the earth.

Man is the image of God, and therefore certainly we ought to deal tenderly with his image. And if God who hath the sole absolute power and dominion over all his creatures, thought not fit to give the Magistrate, who is his Vicegerent here upon earth, such power over the lives of men, but hath reserved it to himself (except in case of murder) how dare then any power or authoritie what soever usurp it?

The Civil Law (if we may believe Fortescue) is more agreeable to the Word of God, for he saith, cap. 49. that the Civil Laws do judge open Theft to be satisfied by the recompence of four fold, and private Theft by the recompence of double: so not to suffer death by their Law.

I do not write this to incourage men in this heinous crime (which is [Page] too too common in these times) no, far be it from me so to do; for I know if there be not a severe Law against it, there will be no injoying any thing that a man hath; the Law of propertie will be of little force; But that there may be some other way of punishment, as by Banishment, slavery, or the like, which may be as effectual to terrifie men, & keep them from it; so that we do not take away the life of man, over which there is no jurisdiction given in such case by God; we having no precept, rule, or warrant for it.

And now to me, the forfeiture and penaltie in such case, is no less unreasonable, is it not too much to lose the life? and yet will not that satisfie; but thereby also his bloud be corrupted; and all his estate forfeited; so that his issue is not inheritable to him; nor to any other ancestor; [Page] nor can this corruption of bloud (it is so high) be restored otherwise, than by Act of Parliament. And if he were Noble or Gentle before, he and all his children and posteritie, are by this made base and ignoble, in respect of any Nobilitie or Gentrie which they had by their birth.

For my part, I think there cannot be a more rigid and tyrannical Law in the world, that the children should thus extreamly suffer for the crime and wickedness of the Father; the innocent for the nocent.

It is true, that as the Apostle saith Rom. 5. that by one man sin entered into the World, and death by sin; but he goes further, and so death went over all men, in whom all men have sinned. We all sinned in Adam, therefore no wonder if death fall upon all.

[Page] God hath the supream Soveraign power over all his creatures, and so may inflict what punishment he pleaseth upon them for their sins, & who dares question it, or say it is unjust? and yet God deals not thus severely with man; for in the 18. of Ezek. he reproveth the Israelites for using this Proverb.

The Fathers have eaten sowr grapes, and the childrens teeth are set on edge;and saith, they shall use it no more: forthat Soul that sinneth, it shall die;and afterverse the20. The same Soul that sinneth, shall die; the Son shall not bear the iniquity of the Father, &c. Thus you may see the great mercie of God, whose greatest severity were but Justice.

Doth not this extreamly condemn the injustice of that Law▪ which so severely punisheth the Children for the transgression of the Father, a [Page] wicked Father may have a good Child, and shall such a one be ruined through the wickedness of the Father: his Estate wholly lost, and not onely disinherited through his corruption of bloud, as to his Fathers Estate, but also made incapable of taking any thing by descent from any other Ancestor? a more rigorous Law certainly was never made.

But I know it will be said, that the reason of the severity of this Law, is the more to deterre and affrighten men from this sin, which is so frequent amongst us; ut metus ad [...]mnes, paena ad paucos, &c.

To this I answer, that it is not Lawfull nor warrantable, for men to make unjust and tyrannical Laws to keep men from sinning; and to put them in execution: punish the offending Father, but not the innocent Children.

[Page] The custom of Gavel-kind is more reasonable, for though the Father be hanged, the Son shall inherit; for the Custom is, the Father to the bough, the Son to the plough. I shall conclude it with this, that I hope one day to see this Custom become the Common-Law of England: the next thing I have in consideration, is, touching the debts of Infants under the age of 21 years; and therein I propose this question.

Whether it be a just and reasonable Law, that Infants under the age of 21 years, shall not be charged with their debts?

FIrst, we are to know what the age of discretion is for Man or Woman? What full age? The age of discretion for a woman in judgement of our Law is 12. for a man 14. full age [Page] is 21. and under that age they are said to be Infants in Law, and under that age they have not power to dispose of their Estates, not are they liable to pay their own debts; It is true, that for necessaries, as Cloaths, Dyet, Schooling, & the like, they are liable, but for those neither they cannot give a penal bond, a Bill they may, and it shall bind them. In general, an Infant may better his condition, he can not make it worse; this I confess to be Law, yet it seems very hard to me, that an Infant should not be liable to pay such debts, as he shall ow for any thing had, or received after the age of discretion; especially, when I consider what the Law is in other cases of Infancy.

By custom, he may make a lease at his age of 15. and it shall bind him. Cook upon Littleton fol. 45. b. Nay further, by custom he may make a [Page] Feoffement at 15. years, 5. H. 7. 41. 11. H. 4. 33. Now no custom is Lawfull, that is not reasonable.

And yet further, an Infant of the age of discretion, nay under, may suffer death for Murder, or Theft, nothing more common. 3. H. 7. 12. an Infant betwixt 10. and 12. gave a man several wounds till he died, and then he drew the body into the Corn; forwhich he was convicted? but it is true, that judgement in that case was respited for his tender age, but many Justices that he was worthy of death.

Note, an Infant of 9. years killed another, and it was adjudged, that he should be hanged, quia malitia supplet aetatem. But execution was respited to have pardon; see the Assises.

A Woman Infant within age killed her Mistris, and was burnt for it, see likewise the Assises.

[Page] Again, an Infant shall not avoid a marriage at the age of discretion, made, and contracted by him. Cook upon Litt. fol. 79.

Now I argue thus; if an Infant may do the greater, why is it not reason that he should do the less? If he may be chargeable for things of a much higher nature, why not for those that are of a lower? By custom he may sell his Estate; By Law, he may suffer death for Felony: and may contract Matrimonie; things of much greater consequence to himself: why then in reason should he not be liable to the payment of his debts? my Lord Gook saith, that argumentum a majori ad minus, an argument from the greater to the less, is a good argument in Law.

Besides, he is as much obliged in reason and conscience, to pay his debts, as a man of full age, why then [Page] the Law should not tie him to it, I know no reason: I mean for debts contracted after the age of discretion: and if the Law then judges him to be discreet, why should it not make him just & honest. Men of themselves naturally are too prone to injustice and unrighteous dealing one with another, therefore very unfit that they should receive the least incouragement to it.

How frequent a thing is it for men in such case, to take the advantage of infancy; and most unjustly to cousen their creditors of their just debts, which in conscience they are bound to satisfie.

But here it will be objected, that it is the creditours fault to trust such a one who is under age, and therefore if he suffer, he may thank himself.

To this I answer, that though the [Page] ignorance of Law will not excuse a man, the ignorance of fact will, and how a man should know such a one to be an Infant, since many, nay most men may, and do deceive their Judges by their looks; I cannot think or imagine. And he that shall inquire his customers age, may sit still in his shop and blow his fingers, for any thing else that he shall have to do. I shall say no more but this, that certainly, that Law is most just, that gives the least Liberty or advantage of fraud or deceit to men. The next thing I shall speak of, and in that I shall be very short, is, Clergy, and in that I shall propound this short question.

Whether Clergy be agreeable to reason, and Justice, or no?

CLergy is, when a man is convicted of Man-slaughter, or any [Page] other crime or offence, for which he may have his Book, and thereupon prayes his Clergy, that is, that he may have his Book, which being granted, the Ordinary, being a Clergy man, and heretofore in stead of the Bishop who is the Ordinary, opens the Book, and turns him to a place to read, and reading, the Court demands whether he reads as a Clerk, if the ordinarie saith that he doth, he saves his life by it, and is onely burnt in the hand.

We must know, that the Original of this use of Clergy, was at that time when the World was in its Minority; I mean this little World, and there were but few Clerks, or learned men; and then in favour, and for incouragement of learning, as also for supply of places which were destitute of men of such abilities, this Law or Priviledge of Clergy was invented [Page] and approved of for saving of such mens lives in some cases, for the reasons aforesaid; and this was the reason that Women could not have their Book, because they could not be Clerks.

Now I would fain know of any one, whether the cause, or reason of the making of this Law holds to this day or not? if it doth not, what reason can there be to continue it? for the rule of Law is, Cessante causâ, cessat effectus, the cause ceasing, the effect likewise ceaseth. And that it doth not, nothing more evident, for certainly (God be thanked for it) England never more abounded with learned men, than it doth now: and therefore no want of such Clerks as they are.

That this Law stands not with reason, I shall offer these things to consideration; first, the slightness [Page] and inconsiderableness (especially as the case stands now) of the thing it self, that reading of a line or two should save a mans life; by which the crime is no way answered or satisfied for. Secondly, it may prove very unjust, for if several men be convicted of one and the same offence, one may happily read, the other not, so that the one shall thereby save his life, and the other suffer; which cannot stand with Justice. But where they are both equally guiltie, and so have deserved death; yet to pardon one may be just, for that the one may have been a more notorious offender than the other, and so not deserving the least favour, but for one to have power to save himself, and not the other, that I judge very hard and unreasonable. Lastly, (if there were reason in the thing it self) the difficultie of the [Page] Tongue, and in many places, the Character being an old Letter too, and so hard to be read, makes it very unreasonable. So that I may safely say, were it not through the favour of the Court, not one of twentie could save their lives by reading.

Since therefore there is no ground for the continuance of this Law (as there is not for any that wants reason for the support of it) I think it were better in such cases, where Clergy is allowable, that they should be onely burnt in the hand, as women are, and so set at Liberty; which nevertheless I submit to graver judgements. The next I shall write of is the distinction in Law, betwixt Murder and Man-slaughter; and therein put this short question.

Whether the Law, that a man shall not suffer death for Manslaughter [Page] be not against the word of God?

THe distinction in Law betwixt Murder and Man-slaughter, is thus; Murder is, when one is slain with a mans will, and with malice prepensed or fore-thought: as where two falling out one day, appoint the field the next day, and then meet according, and one of them is slain, this is Murder in the other; being done premeditatedly & upon cool bloud; and for this a man shall not have his Clergy, but shall suffer death.

Homicide, or Man-slaughter, as it is legally taken, is when one is slain with a mans will, but not with malice prepensed; as where two being together fall out, and both draw upon each other, and one kils the other, this being done upon hot bloud, is but Man-slaughter, for which he [Page] shall have his Clergy, and save his life.

Now, how this distinction stands with the word of God, that we are to consider, by the Judicial Law; Exod. 21. 12. He that smiteth a man, and he die, shall die the death. And Numb. 35. vers. 16. And if one smite another with an instrument of iron (or with a stone, or other instrument, as is said in the verses following) that he die, he is a Murtherer, and the Murtherer shall die the death, saith the Marginal Notes, wittingly and willingly; and certainly in the case of Man-slaughter, the man is wittingly and willingly killed. I could cite many other places to the same purpose, but these are sufficient.

Now in these places it is said, that he that kils another shall die the death; here is no such qualification, or distinction, as Murder and Manslaughter.

[Page] It is true that where a man kills another unawares, per infortunium, as we say in Law, which we call Chancemeddly; in such case, because it was not done with his will, it pleased God in mercy, to provide sanctuaries, or Cities of refuge, for such offenders, to flee unto to save their lives; and the onely punishment was, that they were to continue there unto the death of the High-Priest.

So in our law where one is slain casually and by misadventure, without the will of him that doth the Act, he shall not die for it, but instead of the Cities of refuge aforesaid, (that he may not go altogether unpunished, who was the cause of anothers death,) he forfeits all his goods and Chattels for it.

It is plain and evident therefore by the word of God, that he that wilfully killeth another, shall suffer [Page] death for it, whether it were in hot, or cool bloud, it differs not: How then can that Law be just (be it upon what politick principles soever) that saves the life of such an offender? other satisfaction can be none, and if God requires that, how dare we do the contrarie? He that killeth a man in heat of bloud, deserves to be hanged when it is cool.

And it is a sad and dolefull thing to consider, how many thousands of lives this Law hath taken away; by incouraging others to commit the same offence, considering their lives were not in danger. I shall conclude it, with that in the Numb. cap. 35. vers. 33. bloud defileth the land: and the land cannot be cleansed of the bloud that is shed therein, but by the bloud of him that shed it. The next thing that comes in consideration, is concerning Counsel in Treason or [Page] Felony; and in that I shall propound this short question.

Whether it be a reasonable Law, that a man shall not have Counsel upon an Indictment of Treason or Felony?

THat the Law is such, it is admitted, and without dispute; and the reason that is given for it, is, that the Indictment being heretofore at the Suit of the King, the King intended nothing but Justice with favour; and therefore he would be contented that the Justices should help forth the parties as far as reason and Justice may suffer; and that in all things that pertain to the form of pleading, the Judges shall so instruct the parties, that they incurre no damage thereby.

This reason at the first aspect, [Page] seems very plausible; but better dived into, I doubt it will not appear so. Do not we know, that though the Judges were sworn to do right between the King and his people; that yet they were the more immediate Counsel of the King? and though a poor man might happily find Justice, as having nothing but a life to lose, I doubt, it did not always fare so with the rich? And therefore, heretofore, when any Gentleman had committed any crime for which his life was in danger, it was usual to inquire in the first place, what Estate he had, and if it was answered, a good Estate, it was thereupon replied, that is enough to hang him. Then he had no sooner committed the offence, but his Estate was begged of the King by some great Courtier, and what relation there was then between the Judges and the Court, we [Page] very well know, but to say no more but this, suppose it shall so fall out, that the Judge be a weak ignorant man himself, before whom the Tryal is, (as we have not been wanting of the like experience in our age) who then shall advise the Prisoner? is not this then a case of great extremity and injustice?

To conclude, in the most petty, ordinary, and inconsiderable action that is, the Law allowes a man counsel; why then should it be denied him in a case of the highest concernment to him that can be, his life? If he shall have Counsel in lesser things, why not in greater, where there is most need of it? we say, that life is one of the Laws Favourites, but it is not so dealt withall in this case; but now the Court is gone, I hope this Law will in time be altered. The next thing to be considered [Page] is, actions for Slanderous words, in which I make this question;

Whether actions for Slanderous words, being meer contentious Suits, ought in reason or conscience to be so much countenanced, as they are?

NEver did these actions more abound, to the great and intollerable vexation of the people than they do now. And it were to be wished (and certainly never in a better time than now) that the greatest part of them were suppressed, that words onely of brangle, heat, and choler, might not be so much as mentioned in those High & Honourable Courts of Justice. For I profess for my part, I judge of them as a great dishonour to the Law, and the Professors thereof; especially when I consider, that they are used onely to promote the [Page] malice, and vent the spleen of private jarres, and discontents amongst men.

Yet I do not condemn all actions for words neither, for it is just and equal, that where a mans life, livelyhood, or reputation (which is dearer and nearer to him than the former) is much prejudiced and indangered by such scandals, that in such case the Offender should be inforced by action to make compensation. But that a man should flee to the Law out of malice, and make the Courts of Justice maintainers of every small and vain brabble, this seems to me utterly unlawfull and intollerable amongst Christians.

I cannot but take notice of that which Wray, Chief Justice said in Cooks 4. Book, That though slanders and false imputations are to be repressed, because that oftentimes à [Page]verbis ad verbera perventum est, men fall from words to blows. Yet he saith, that the Judges have resolved, that actions for scandals should not be maintained, by any strained construction or argument, nor any favour extended for supportation of them; And he adds the reason of it, because they do abound more in these dayes, than in times past, and the intemperance and malice of men increases; Et malitiis hominum est obviandum; and further adds, that in our old books, actions for scandals are very rare, & such as are brought, are for words of eminent slander, and of great [...]portance.

This must needs be acknowledged to be a most exact and true observation; for, if I miscount not I find but nine reported cases for words from E. 3. time, (in which they began) to Q. Elis. and then they extreamly [Page] multiplied, and so have done ever since, to the great shame and dishonour of the Law.

And certainly these are very much against religion and peaceable conversation amongst men.

And how much doth S. Paul in all of his Epistles decry, and labour to depress as much as possibly may be, all vain brabbles, strifes, debates, and contentions, which tend to the disturbance of the Common-peace? and I am confident nothing more tending that way, than such idle, frivolous actions as these are; and to those that go to Law for scandalous words (except in extra [...]inarie cases) a man may justly use the words of the Apostle, that it is so, that there is not a wise man among them.

And it were to be wished, that men would be more carefull of the management of this little, yet unruly [Page] member, in which is seated either heaven or hell; this is that which often proves the greatest good, or the greatest evil to most men: which causes dissentions amongst men in Families, Kingdoms, and Commonwealths; wherefore I could wish, that every man would take up the saying of the Prophet David, and carefully observe it; I will take heed to my wayes, that I offend not with my tongue; I will keep my mouth as with a bridle.

But now I beseech you, give me leave, and I shall in a word inform you how these frivolous contentious actions may be very much abated, if not wholly taken away: Let no words be actionable, which do appear to have been spoken in choller and passion; or if actionable, yet let the Plaintiff recover no more in damage, than he can upon Oath make appear, [Page] that he was really and actually damnified by the speaking of them, and if this were provided by Act of Parliament, these actions would be as strange, and as rarely brought for time to come, as they were in former ages; for nothing incourages the bringing of them more, than the intollerable, unjust, and excessive damages usually recovered by them. I shall conclude with this; Though the tongues of men be set on fire, I know no reason wherefore the Law should be used as bellows to blow the coals. The next thing that I am to consider, is concerning actions that die with the person; and therein the question is in short but this.

Whether it be a reasonable Law that actions should die with the person?

THe rule is Actio moritur cum persona; now what those actions [Page] are that shall die with the person is the thing to be inquired into, and first negatively, Quicquid oritur ex contractu vel conventione non moritur cum persona, whatsoever arises by way of Covenant or contract doth not die with the person. Affirmatively all actions that are said in Law to be meerly personal, as Trespas, debts upon simple contract, Battery, Words, Debts upon an escape against a Keeper of a prison, &c. and such in Law die with the person, and no action can be brought against the Executors.

This seems to me to be a very hard Law, and a failer of Justice, that I should suffer against Law, and that the death of him that doth the wrong, there being no Act or default in me, should take away my remedy.

It is true that the Law in case of a Bond, Covenant, or the like, binds [Page] the Executor, though he be not named; and what is the reason? because the Executor represents the person of the Testator; why then, upon the same reason, should not a personal tort of the Testators, as well bind the Executor?

Besides, it is a rule in Law, that the Act of God, (as it is here in case of death) shall prejudice no man; why then in such case should it take away my action?

Again, there is another rule in Law, that Lex non debet deficere conquerentibus in Justitia exhibenda; the Law ought not to be defective in exhibiting Justice to complainants. But in this case, the Law is defective in justice, if the inevitable fate of death shall take away my action.

There is likewise another rule in Law, that Lex nulli facit injuriam, the Law injures no man; but I say in [Page] this case, it injures me, if it deprives me of my action by the death of the person. In Fine, where ever there is a damage, there ought, in reason, to be a satisfaction for it, which ought not to be taken away or otherwise discharged, but by my Act that am damnified, which I submit to judgement. The next thing that I shall debate, is concerning Paine fort & dure, and in that propound this question.

Whether the Law or Judgement of penance, or pain fort & dure, against a man, who is indicted of Felony, and stands Mute, be agreeable to reason and conscience, or not?

THis Law or Judgement of penance, or pain fort & dure; is that which we commonly call [Page] pressing to death; which is used in such case, where a man is indicted of Felony, upon matter evident and proveable (for in case of an Appeal, this Judgement cannot be given nor doth it hold in case of Treason, or petit Larceny) and thereupon stands Mute; in such case, saith the Statut [...] of Westminst. 1. cap. 12. solent mises en la prison fort & dure▪ &c. that is they shall have strong and hard imprisonment.

By the way I shall here observe, that the words of this Law do not extent to pain, but onely to fort & dure, to hard and strong imprisonment, and therefore since that Law, I cannot understand the ground or reason of that cruel and heavy judgement which is given in such cases; hard and strong imprisonment may be inflicted upon such an offender (according to that Law) without [Page] pressing, and starving to death by famine and cold; nor can I conceive those words to extend to death▪ but admitring the Law were such.

I shall, (that all may understand the reason of the Law,) before I go any further, let you know, what it is to stand Mute▪ and in what case a man may be said to stand Mute; and what the Judgement thereupon is.

My Lord Cook in his 2 part of his Institutes, fol. 177. upon the foresaid Statute, saith, that a man may stand Mute two manner of wayes; First, when he stands Mute without speaking of any thing, and then it shall be inquired, whether he stood Mute of malice, or by the Act of God, if it be found by the Act of God, then to proceed, and the Judges to make inquiry and to allow him all pleas, as if he had not stood Mute.

And the words (of malice) are remarkable, [Page] for it may be, the prisoner in truth cannot speak, and yet being not Mute by the Act of God, he shall be forthwith put to his penance; as if the Delinquent cut out his own Tongue, and thereby become Mute.

Another kind of Mute is, when the prisoner can speak, & perhaps pleads Not guilty, or pleads a plea in Law, and will not conclude to the enquest, according to the foresaid Act, or speaks much, but doth not directly answer, &c. to be short, when in the end he will not put himself upon the enquest, that is, De bono & malo, to be tried by God & the Countrey; then the foresaid Act is sufficient warrant, if the cause be evident, or probable, to put him to his penance; but if he demurre in Law, and it be adjudged against him, he shall have judgement to be hanged; so if he challenge above the number of 36. he shall be [Page] hanged, and not have Pain fort & dure.

I shall not inquire what the Common Law was before the making the said Statute, whether the prisoner then stading Mute should be hanged, as some held, and as at this day it is, in case of high Treason, and, as they say, in case of appeal; or whether then in favour of life he should neither have Pain fort & dure, nor have judgement to be hanged, but to be remanded to prison, untill he would answer, according to others.

But the first thing I shall consider, is, what the judgement, which the foresaid Act calleth fort & dure, is, and then what the reason should be, that so severe a judgement is given in that case; and then we may easily judge, whether it be consonant to reason and conscience?

The judgement is, that the Man [Page] or Woman shall be remanded to the prison, and laid there in some low and dark house, where they shall lie naked on the bare earth without any litter, rushes, or other clothing, and without any garment about them, but something to cover their privy parts, and that they shall lie upon their backs, their heads uncovered and their feet, and one arm shall be drawn to one quarter of the house with a cord, and the other arm to another quarter, and in the same manner shall be done with their legs, and there shall be laid upon their bodies iron and stone, so much as they may bear, and more, and the next day following, they shall have three morsels of Barley bread, without any drink, and the second day they shall drink thrice of the water that is next to the house of the prison (except running water) without any bread, [Page] and this, shall be their dyet untill they be dead.

Well might my Lord Cook stile it (as he doth after) a strange and stupendious punishment, for when I first read it, I was even amazed and astonished at it, that such a Law should be tollerated amongst Christians, much more amongst Protestants, strict professors of Christianity, putting to death with such aggravations of torture and miserie, is rarely to be heard or read of, except amongst Heathens, Turks, and Infidels.

Here is a dying three manner of wayes, (though all but one death, which will at last nonplus Tyranny, and put a period to all such like tortures) Onere, fame, & frigore, by weight, famine, and cold; and therefore, saith my Lord Cook, this punishment (if it were executed according to the severity of the Law) should be [Page] of all other the most grievous and fearfull.

I confess I have not been an eyewitnes, nor would I for all the world, of any mans suffering in that kind, though it be every years experience of some mēs undergoing that death, and I do believe according to the severity of the Law too, for it lies not in the power of the Judge, much less of the executioner, any way to lessen or mitigate it, after judgement past.

But now for the reason of this heavy and terrible judgement, which is; according to the foresaid Act, because he refuseth to stand to the Common Law of the Land, that is, Lawfull and due trial according to Law, and therefore his punishment for this contumacy, without comparison is more severe, lasting, & grievous, than it should have been for the offence of Felony it self, and for the [Page] Felony it self, it cannot be adjudged without answer.

A very strange thing, that a man should suffer ten fold more for his wilfull obstinacy in refusing to put himself upon a legal tryal, than he should for his crime or offence, which is a hundredfold greater; more for the lesser, than the greater offence, more for contumacy, than murder. The punishment ought to agree, and to hold proportion with the offence, and not to exceed it. The rule of Law is, that a man ought to be punished according to his offence; and the Statute of Magna Charta, cap. 14. is, that a man shall be punished secundum modum delicti, according to the manner of his offence, but certainly here is not the least equality or proportion between the offence and the punishment. Contumacy the offence, pressing and starving to death, the punishment.

[Page] It is true, that God having Genes. 9. 6. commanded the Murtherers bloud to be shed by man (the Murtherers not the Thiefs) and thereby enstated the power of the sword on the Supream Magistrate, not onely permits him, and makes it Lawfull for him so to punish such malefactors, but commands and requires him so to do, as his Minister to execute wrath; for he ought not to bear the sword in vain; but this Commission is not given to him absolutely, & arbitrarily, to use as he list, though he may take away the Murtherers life, yet he hath no rule nor Warrant to take it away by cruel and exquisite tortures and torments; that is praeter mandatum, beside the command.

Mercie is one of Gods attributes; and even the very sum and body of the Scripture: therefore Tyrannie must needs be against the mind and will of God, religion & Christianity. [Page] Taking away mēs lives by cruel tortures is Diabolical and Heathenish; it is the Divils part to torture and torment, and it is no strange thing for wild beasts to be cruel, but that homo homini daemon, one man should Act the part of the Divil with another; or that Christians should be cruel; this is contrary to our education and profession.

The Magistrate, for prevention of sin and wickedness, may severely punish and correct, yea, and in some case take away the life too; but not Tyrannically. Barbarity and inhumanity Suits not with Magistracie. The Prophet David cals Magistrates Gods; and certainly they approch then nearest to the deity, when they shew mercie. Questionless it was a high and great aggravation of the sin of the Jews in torturing of our blessed Saviour by that most cruel death of the Cross. But to this it will be [Page] said, that that was wholly unjust in the Jews, not so here; because it is an execution of Justice. To this I say, that it is in no case just, to take away mans life by lingring and cruel tortures; this turns the execution of Justice into sin, and makes the Law it self unlawfull.

But it may be objected, that it is the parties own fault that he stands Mute, and will not plead to be tried; & volenti non fit injuria; seeing he will so suffer, there is no injury done him; and therefore not to be pittied.

To this I say, let him suffer death for this his obstinacie, as he should if he had been tried, and found guilty; and as the Law was, if we believe some, before the foresaid Statute, which is a satisfaction equal to the highest crime or offence whatsoever against man; but let this cruel and barbarous Law of Paine fort & dure be taken away, and expunged out of [Page] our Books, never to be revived. Silence may contract guilt, but ought not so to aggravate punishment; and certainly a mans folly or obstinacie, will not excuse or extenuate the Magistrates cruelty.

But to conclude, I cannot pass by that gracious and mercifull Act of this present Parliament, which hath taken away that barbarous and tyrannical Law of quartering of men in case of treason; and doubtless, this Law, if strictly examined, will be found as Tyrannical, if not more than the other, and if it shall appear that there is as much reason to take away this, as that, I hope it will not continue long after it. I shall say no more but this; gratious and mercifull Laws concludes the Governours to be men; but Tyrannical, Beasts. The last thing I shall debate is concerning Wreck of Sea; and in that propound this question.

[Page]

Whether the Law of forfeiture of goods wrecked at Sea, be a reasonable Law, or not?

I Am not here to meddle with Flotsam, that is, where goods float upon the Sea; nor with Jetsam, where goods are cast into the Sea to prevent Shipwreck, nor yet with Lagan, where they are fastened to any thing that they may be discovered; for of these I may say (in regard it is uncertain upon what Coast they may be cast, or whether driven) Capiat qui capere potest; ketch that ketch can, but with wreck of Sea, and that is such goods onely, which upon a Shipwreck, are cast or left upon the Land by the Sea, and this onely is Wreck.

The ground of this Wreck of Sea, was, as it is said, that goods being so wrecked, the property was in no man, and therefore the Law gave them to the King, who was Lord of [Page] the narrow Seas, who was bound to scowr the Seas of Pyrats and petty Robbers, towards the charge of the same, this was the foundation of this Law.

And now it is fit to know, what the Common Law was before the Statute of 3. E. 1. D. S. saith, that by the Common Law goods wrecked upon the Sea were immediately forfeited to the King, but I rather believe Bracton lib. 3. 33. 135. that there shall be no wreck where the owner comes and avows the goods to be his; observe there that that is indefinite at any time, and that were a reasonable Law. And Cook lib. 5. Sr. Henry Constables case, it is said, that the Statute of 3. E. 1. was but a confirmation of the Common Law, then certainly the Law was the same before, as it is now by that Statute.

And by that Statute of 3. E. 1. cap. 4. concerning wrecks of the Sea, [Page] it is agreed, that where a man, a dog, or a cat, escape quick out of the Ship, that such Ship nor Barge, nor any thing within them, shall be adjudged Wreck, but to be saved and kept by the Sheriff, &c. so that if any sue for, and prove the goods his, within a year and a day, they shall be restored, otherwise to remain to the King, &c.

So that the Law is, that if but a Dog or Cat escape alive out of the Ship, then not to be adjudged Wreck, otherwise it is. Now to me this seems a very hard Law, that a man should lose his estate there being no act, or default in him, which is contrarie to the rule of Law: and as I have said before, there is another rule in Law, that the act of God shall prejudice no man; and for my part, I cannot judge an Act of Parliament made against this rule, to stand with reason. This is afflictionem[Page]afflictis addere, to add affliction to affliction, and to throw him quite down that is a falling: certainly there cannot be any thing more against reason and Religion, than for to add burthen to burthen, sorrow to sorrow: when the afflicting hand of God is upon a man, 'tis sad and miserable to meet with such as Jobs friends. For a man in an impetuous dreadfull storm and tempest, to be tossed to and fro at Sea, by the raging and swelling billows thereof, every moment expecting nothing but destruction; and at the last, to be Ship-wrecked and swallowed up in the merciless deep, and after all, to have this further aggravation of miserie, that if nothing escape alive, the goods to be forfeited, or if any thing escape alive, if not a man, to be confined to a year and a day to prove the propertie, when that it is almost an impossible thing for friends to be [Page] informed of the sad misfortune, the men being all cast away; this seems to me a very hard and strange Law.

But to this it may be said, that the goods may be bona peritura, and if libertie should not be given to dispose of them, after such time no claim being made, they may perish, and so nobodie be advantaged thereby.

To this I say, 'tis true, it may be so; Therefore I conceive it just, as in case of Estrays, so in this case, that a Law should be made, by which it should be provided, that notice should be given of such a Shipwreck and such goods taken up, by way of Proclamation, in all the Port-Towns and other chief Cities of Merchandise▪ and then if claim be not made within the same time, the forfeiture may be more reasonable. And we ought to be invited to this the rather, considering it was the hand of [Page] God which brought this affliction, and therefore let us not add forfeiture of estate to loss of life, if possibly it may be prevented. The next and last thing I shall discourse of, is Wills, and of that onely by way of advise.

Good advise in case of making last Wills and Testaments.

THe onely advise that I shall give to men in this case, is, that they would make their last Wills and Testaments in their health, with the advise of Lawyers, not of Parsons or Scriveners, who know nothing but meer matter of form, and like Carriers horses keep their rode; judging their forms to serve all cases; by which they raise infinite disputes and controversies, and often undo many men.

Nor is it a prejudice for any man [Page] to make his Will; since that in Law he may revoke it when he pleaseth; for voluntas est ambulatoria usque ad mortem.

I confess in the case of Wills, the favour of the Law to be very great, for that they are conceived generally to be made in extremis; for 'tis a Maxim of the Common Law, Quod ultima voluntas testatoris est perimplenda secundum veram intentionem suam, & Reipublicae interest suprema hominum testamenta rata haberi. that is, that the last will of the Testator is to be fulfilled, according to his true intention: and it concerns the Common-wealth, that mens last Wills and Testaments be ratified and confirmed. The Law is to be thanked for this care, not themselves, and let not this incourage men in the neglect of that which often causes so much debate and dissention (even to an irreconcilableness) amongst a [Page] mans Children and kindred; & without doubt it is a dutie required at every mans hands, whom God hath blessed with a fortune, that he avoid that as much as possibly may be.

And here I shall give you my Lord Cooks directions concerning making of Wills, (which indeed is very excellent) in his third book fol. 36. Buttler and Bakers case; where he saith, touching Wills, of which you have many good matters in the said case, my advice is to all that have Lands, that you would, by the advice of learned Counsel, by act executed, make assurances of your Land, according to your true intent, in full health and memorie, to which assurances, you may add such conditions or provisoes of revocation as you please; for I find great doubts and controversies from day to day to arise, upon devises made by last Wills, sometimes in respect of the tenures [Page] of the Land (which now thanks be to God is taken away) sometimes by pretences of revocations, which may be made easily by word, also in respect of obscure & insensible words, and repugnant sentences, the Will being made in haste, and sometimes pretending that the Testator, in respect of extreamitie of pain, was not of sane memorie, and divers others scruples and questions are moved upon Wills; But if it pleaseth you to devise Lands by Will;

1. Make it by good advise in your full memorie, and inform your Counsel truely of the estates and tenures of your lands, and by the grace of God, the resolutions of the Justices in this case will be good direction to Counsel learned, to make your Will according to Law, and by this to prevent questions and controversies.

2. 'Tis good if your Will concern [Page] inheritance, to make it indented, and to leave one part with a Friend, lest after death your Will be suppressed.

3. At the time of publication of the Will; take credible witnesses, who may subscribe their names to it.

4. If it may be, let all the Will be written with one and the same hand, and one and the same parchment and paper, for doubt of alteration, addition, or diminution.

5. Let the hand and seal of the devisor be put to it.

6. If it be in several parts, let his hand and seal be put, and the names of the witnesses subscribed to every part.

7. If there be any interlining, or rasure in the Will, let there be made a Memorandum of it.

8. If you make any revocation of your Will, or of any part of it, do it by writing, by good advise; for upon [Page] revocations by Wills, insue controversies, some of the Witnesses affirming of it in one manner, and others in another manner. Reader, you may observe, that the scope of my labour herein, is to avoid as much as may be, all unnecessarie strifes & debates whatsoever, which made me add likewise these directions concerning making of Wills; which if well observed and followed, will prevent many contentious suits, and debates in Law, and much tend to the peace and good of this Common-wealth.

FINIS.

[Page]

Information about this book

Title statement

Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

March, John, 1612-1657.

Edition statement

1651

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2008-09 (EEBO-TCP Phase 1).

ID [DLPS]

A89519

ID [STC]

Wing M574

ID [STC]

Thomason E1360_1

ID [STC]

ESTC R202857

ID [EEBO-CITATION]

99863013

ID [PROQUEST]

99863013

ID [VID]

115195

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Early English books online.

Notes

(EEBO-TCP ; phase 1, no. A89519)

Transcribed from: (Early English Books Online ; image set 115195)

Images scanned from microfilm: (Thomason Tracts ; 179:E1360[1])

Source

— Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister., March, John, 1612-1657..

Extent

[16], 160 p.

Printed by Will. Bentley, for Francis Eglesfield, at the Marygold in S. Pauls Church-yard,. London :: 1651.. (The first leaf is blank except for fleuron.) (Running title reads: The Common-wealths friend.) (Annotation on Thomason copy: "may. 19".) (Reproduction of the original in the British Library.)

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