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 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 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 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 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 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 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 Feâ—dum 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 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 I have been the larger upon this conveyance by way of
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 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 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 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 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 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 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 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 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 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
reason and conscience to pay his debts as a man of full age why then 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 â—â—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 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 extraâ—â—â—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 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 Common-wealths 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 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 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 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 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 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 Statutâ— 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 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 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 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