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A29443
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A Briefe discourse declaring and approving the necessary and inviolable maintenance of the laudable customes of London namely, of that one, whereby a reasonable partition of the goods of husbands among their wives and children is provided : with an answer to such objections and pretenced reasons, as are by persons unadvised or evill perswaded, used against the same.
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1652
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Wing B4579; ESTC R36620
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17,189
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31
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to alleage that she is a fool no more is the imputation of such simplicity honest and sufficient to exclude her from her Portion No it is well said and maintained for a Maxime in the Common Law Better it is to suffer a mischiefe then an inconvenience Lesse harmfull and hatefull it is for a man to swallow twenty of these light offences and to digest sundry of these pretensed scruples then by violating of a custome no lesse common then commendable to leave to posterity an odious memory and obloquie of his name The last objection against wives is no lesse ridiculous then Tyrannicall grounded upon an unjust desire to restrain them from mariage Mariage is an honourable Ordinance of God fit and necessary for all persons disposed thereunto to the avoiding of sinne and maintenance of a comfortable and sociable Christian life To restrain or prohibit the same either in maides or widows as Saint Paul saith is the doctrine of divells Tim. ep 1. ca. 4. 43 E. 3.6 And to indent or condition with any that he or she shall not mary is a condition limited against Law and by the same pronounced unlawfull and unreasonable Make it thine own case admit thou didest match with a wealthy wife whose furniture and riches hath increased thy Estate if God should call for her wouldest thou in a kinde memoriall of the benefits attained by her meanes make thy selfe a votary to live unmaried Do those which mary great Heires being women and after their wives deaths enjoy their whole inheritance by the curtesie of England making their wives heires to expect during their lives take it for any matter of conscience or scruple to mary again Unlesse it be in some place where the force of the custome and the benefit of the living joyned together work a contrary resolution in some husbands which custome annexed to Gavelkinde Lands in Kent and other places is of this quality 16 E. 3. aid 129. 19 E. 3. aid 144. that the husband shall after the decease of his wife be Tenant by the curtesie of her land as long as he remaineth unmaried whether he have issue by her or not but upon his next mariage shall utterly forgo all his interest therein A custome therefore the lesse unreasonable because the restraint of mariage of the one side is countervailed by the beneficiall favour of the other side to have the land by the curtesie without issue and also for that hee is to deprive the next Heire of his wife who perchance hath been maried with him but few moneths or dayes of the profit and commodity of the whole Land during his life But chiefely because it is a custom grounded and grown in continuance to such religious observation and regard that it seemeth an offence of conscience to infringe it But in our case sithence there is neither custome nor conscience to warrant thy will why shouldest thou then seem to quarrell with the lawfull liberty of thy wife if she survive thee she being weak by kinde and education and thereby lesse able to direct her occasions and govern her estate without a companion and coadjutor no on Gods name referre her to her own choice and conscience therein and make it no pretense and colour to abridge her of her right because shee seemeth inclinable unto that which God hath ordained and all men and women do embrace As to the fear and suspicion pretended that another in matching with thy wife should be enriched by thy travaile what should move thee to make that superstitious account of thy goods when thou art gone Were they any longer thine then while thou hadst life and licence to employ them Thou must needs know and acknowledge besides thy daily experience by the very Etymologie and signification of the word the true nature and quality of the thing These worldly goods are called temporall because they serve one but for a time they are termed transitory for that their property is fleeting from one owner unto an other they are named moveable or current because all their grace and credite is in running and removing into divers hands according to that rude and old but yet true Latine rime Omnia mundana per vices sunt aliena Nunc mea nunc hujus post mortem sunt alterius This worldly wealth each day doth change Their owners as we see Now mine now his and after death An others goods they be Then sithence thy wealth hath waited upon thee all thy life long wouldest thou require the same to rest at thy devotion after thy death If that seem impertinent and unprofitable unto thee then relinquish this care and suffer the goods of this world to have their naturall course and condition which is to be still in exchange passage and posting from hand to hand serving all men ut peregrinationis viaticum Hieronymus in Epist That is A Pilgrims charge or defrayment in his journey as Saint Hicrome termeth it And address thy minde to the desire of such goods as are neitheir temporal transitory current nor moveable but perpetuall permanent constant and not onely immutable but inestimable But finally to satisfie the last objection against thy children I wish thee to look back unto that I have said that thou mayest not for a private injury or displeasure seem as much as lyeth in thee to supplant and abrogate a publick custome to the no lesse prejudice then offence of a great number that have interest therein In enriching thy Son thou dost discharge the duty of a naturall father towards him which if hee prodigally or wickedly mispend or abuse he carryeth his own condemnation and proveth a wilfull enemy to himselfe Luke 2.25 The good father mentioned in the Gospell who at the suite of his undutifull and disobedient Son that would needs abandon the service and attendance on his father to run the course of an extravagant Libertine with lewd company gave him a great portion of his wealth is not any way blamed by our Saviour for that indulgence but rather recommended to all posterity as a true Pattern of a kind father Saint Paul commandeth the father to be well affected to his children and no way to discourage them Col. c. 3. What may breed greater discouragement or discontentment in any childe then to see himselfe by the place of his birth and the good fortune of the City intitled to the commodity of a good custome and yet injuriously by his own father whose affection should be alwayes occupied and earnest in procuring the good of his children disappointed of his hope defrauded of his right And as well as some having just cause of displeasure against their Sonne and childe may in this unlawfull and disorderly sort practise their revenge so may some other inconsiderate and wilfull father upon a conceipt taken against a good Sonne and of singular desert for that he concurreth not with him in some humour or disposition most wrongfully distresse and undo him by such
A BRIEFE DISCOURSE DECLARING And approving the necessary and inviolable maintenance of THE LAUDABLE CUSTOMES OF LONDON Namely of that one whereby a reasonable partition of the goods of husbands among their Wives and Children is provided With an answer to such objections and pretenced reasons as are by persons unadvised or evill perswaded used against the same LONDON Printed by JAMES FLESHER Printer to that Honourable City 1652. Juris civilis de consuetudine Axiomata sive Maximae Consuetudo vim habet rei Judicatae Consuetudo est optima legum interpres Conventio consuetudo vincunt legem Consuetudo firmata est ubi simili aliquando contradicto Iudicio quid est obtentum seu Iudicatum Coepta usucapio vel praescriptio per defunctum continuatur per haeredem cum in omne jus defuncti succedat haeres Profunda requie humano generi prospexit usucapio Barto Usucapio est quies periculi solicitudinisque litium Cicero A Briefe Discourse declaring and approving the necessary and inviolable maintenance of the laudable Customes of London WE finde it necessary in all common-wealths for subjects to live under the direction of Lawes constitutions or customes publickly known and received and not to depend onely upon the commandement and pleasure of the governour bee the same never so just or sincere in life and conversation For that the Law once enacted and established extendeth his execution towards all men alike without favour or affection whereas if the word of a Prince were a Law the same being a mortall man must needs be possessed with those passions and inclinations of favour or disfavour that other men be and sometimes decline from the constant and unremoveable levell of indifferency to respect the man besides the matter if not to regard the person more then the cause Wherefore it was well agreed by the wisest Philosophers and greatest Politicks that a dumb Lawes direction is to be preferred before the sole disposition of any living Prince both for the cause afore touched and for other reasons which I will here omit But to descend to the particularities of my intention and to treat of the validitie and inviolable observation of some laudable I might term them sacred customes being the principall joynts and very sinews of all good Corporations and Fellowships and being also the maintainers of a sacred unity and naturall amity between the husband and his wife the parents and their children which as Aristotle the wise Philosopher termeth it is the beginning of a City For what is a City but a manifold and joynt society consisting of many housholds and living under the same Lawes Freedomes and Franchises so I must needs confess them to be the procurers and causes of sundry good effects to the generall estate of the City wherein they be observed as of the other side they may breed sundry inconveniences in such a City where the same are violated and broken with allowance and impunity I will therefore shortly shew the nature of a custome and the difference which it holdeth from a publick Law And next I will declare how necessary the same are to manage the government and to entertain the prosperity and traffique of this City and namely that one good custome which I intend to speak of Lastly I will endevour to answer those pretensed reasons and colourable objections made against the precise maintenance and defence thereof First then I suppose that a custome which justly deserveth that name is of no less reverent regard and authority then a written Law passed and allowed in Parliament which notwithstanding I do grant that there are certain differences between a Law and a custome for the custome taketh his force by degrees of time and consent of a certain people or the better part thereof but a Law springeth up in an instant and receiveth life from him that is of soveraign authority to command A custome enlargeth it selfe by plausible entertainment and acceptable circumstances of time and occasion with generall liking and allowance whereas a Law is commanded and published by power and received by dutifull constraint and that often against the good will of them that are bound by it for which cause Chrysostome not improperly compared the Custome to a King and the Law to a Tyrant Moreover the custome doth neither promise a reward for observation nor inflict a punishment for violation thereof whereas the Law alwayes importeth either a consideration of gain or a terrour of punishment or damage if the same be not a Law of enlargement or permission that disanulleth the prohibitions of a former Law Finally a custome is applyed to the commodity of some one province circuit or City and grounded upon a speciall reason of conveniencie or commodity See 34 H. 8. B. custome 59. A man may not prescribe or plead a custome per totam Angliam for that is common Law and no custom otherwise if the custome had been pleaded to be in such a City or County as Gavelkind Glâ—t Fee and such like Borough-english for those persons or place where it is observed whereas the Law hath a generall reason extended to the whole Nation bound by the same without private consideration of the due importances of any peculiar place or people Therefore it is well said and put in ure by the common Lawyer Quod consuetudo ex rationabili causa profecta privat communem legem That a custome grounded upon reasonable and honest consideration abridgeth or altereth the judgement of the common Law So that in customes the estate or condition of the people are to be respected and such customes as are consonant to reason and most appliable to the estate and quality of such people are to be allowed For example the custome of Boroughenglish yet in force in sundry places of England whereby the younger sonne is to inherite his fathers land hath taken strength by this reason that the father may if he be not careless and secure to do his children good train up his elder Sons in some good Trade or Occupation by which they may be able to get their own living whereas the youngest by the impotency and tenderness of his yeers may be perchance unapt and unable for such instruction And so the Custome commendable that provideth for the reliefe of the young and impotent Also by an old custome of this Land in sundry Boroughs and Towns Lands were devisable by Will though the Lawes of England pronounced such devises to be void But see now the Stature of 32 H. 8. c. 2. and 34. H. 8. c. 5. of Explanation and the reason was for that inhabitants of Boroughs or Cities whose traffique and Trade resteth much upon mutuall trust and credite are oftentimes indebted at the time of their death Wherefore it was thought meet that they might devise their land for the due satisfaction of their creditours which to do they were enabled by the custome In Kent and other places of this land the custome of Gavelkinde is