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 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 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 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 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 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 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 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 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
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
Statute 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 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 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 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. â—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 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 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 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 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 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
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
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 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 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. 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 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 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 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 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 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 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