Law of the 12 Tables is said to be the end of Law and Equity Tac. 1. Annal. l 3 c. 5. p. 71. Nature holds forth but one Light to men and God gives but one Law to Christians This is the end of Magistracy The Execution of Justice which in their hands whether Supreme or Subordinate is that Vertue which is commonly called Distributive Justice and comprehends in it (c) Equity is the Law of Nature to which all men are bound That is honest which is agreeable to the Equity of Nature Bod. Rep. l. 1. p. â—05 Equity and the same likewise is called Righteousness Now that Justice and Equity are the same thing there is nothing more clear as Aequum Justum are Termini convertibilés so are Justice and Equity (d) Weems M. L. Com. 8. Exerc 8. p. 225 230. Godw. Antiq. Rom. l. 3. sect 4. c. 1. Isa 59.13 14 15 Prov. 17.26 And these are indifferently taken one for the other in the Holy Scriptures Isa 59.14 Justice standeth afar off and Equity cannot enter By these two words is elegantly set forth the Injustice of the Magistrates who had to do in execution of Justice and Judgement as is there expressed The same appears in that place of the Proverbs To punish the just is not good nor to strike Princes for Equity It is an evil and wicked thing to punish men for doing that which is just or to abuse Magistrates for executing Justice Coloss 4.1 Col. 4.1 Masters give unto your Servants that which is just and equal The two words there used are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are indifferently taken one for the other and either of them signifie just or equal Phil. 1.7 Phil. 1.7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montanus translates it Sicut est justum (e) Pasor Lex p. 187. a. 2 Cor. 8.14 Pasor in his Lexicon renders it Prout aequitas postulat 2 Cor. 8.14 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this is Englished That there may be equality The same word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is translated by the (f) Pasor Lex p. 343. a. Learned Aequalitas aequitas justitia and so it 's indifferently used for either Equity or Justce which are the same thing being referred to the act of the Magistrate in distribution of Law or Right (g) Psal 98.9 1 John 3.7 And Almighty God is said to Judge the World with Righteousness and the People with Equity The like appeareth in many other Texts of Scripture And in the same sense these words Justice and Equity are indifferently used by Profane Authors to signifie the same thing and they are onely distinguished thus (h) Franc. Sylvii Com. Orat. Cicero pro Murena Tom. 1. p. 771. Aequitas est ratio Legis Jus vero sententia ipsa so that Equity and Right are not administred as several things (i) The Law without Equity is as the Body without the Soul The least Judges have power to judge and give sentence according to the equity of the cause Bodin Repub. l. 6. c. 6. p 763 764. but the one is in the minde of the Judge the other more perspicuous and both made up the act of Justice And the same Author chargeth it as a fault that Usu saepè venit ut inter se pugnent Juus Aequitas In this sense the Lawyers themselves have used Lex for Jus and Aequitas or the one for the other (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Finch c. 1. f. 1. Consuet Norm tit de Jure fo 125. tit de Justit cod Cust Norm tit Justice pag. 7. B. Arist Eth. l. 5. c. 41. Lex dicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à distribuendo que ceo distribute droit a Chesc ' Because it gives Right to every one The very same words are used in opposition of that Law of the Romans called Lex (l) Eubul Din. Scho. in Orat. Cicer. de Lege Agraria tom 1. p. 710. This Law was for Division of Lands amongst the poor Commons being sound in the possession of private persons Tit. Liv. l. 2. p. 71. c. Agraria where the Commmentator in his Scholia's upon Cicero's Oration against that Law saith Lex suum cuique tribuit and thence reasons and concludes Logically thus Maj. The Law gives to every one Right Min. This Law doth not give to every one Right Concl. Ergo haec Lex Justitia non est Let our Law and Equity be laid to this Rule and see how any man living can defend both A poor man for Example is bounden in a Bond of Twenty pounds conditioned for payment of Ten pounds with Interest which Bond is forfeited because the Money was not paid at the day although it was paid two or three years after and nothing unpaid but Interest The Creditor puts this Bond in Suit it may be either out of meer covetousness or to hook in some other pretended Debt or Duty The Defendant pleads Condition performed or upon the general Issue gives in Evidence the payment of the Principal three years after the day limited in the Condition The Judge in such case must give direction for Law That the Jury must finde for the Plaintiff for that the Defendant (m) Justitia legalis stricte sumpta quatenus opponitur aequitati est iniquitas c. Amesii l. 5. de Conscientâ—â c. 2. p. 269. Finis Legis est Justitia Coed Rhod. l. 13. c. 19. p. 697. must have his Remedy in Equity and accordingly a Verdict is given for the Plaintiff And the Defendant preferreth his Bill into the Chancery and therein alledgeth all that is true and somewhat more to make his Bill hold and if the Plaintiff at Law get Judgement entred before the Bill come in which may be had the first week in the next Term after the Tryal there is an end of the Suit the poor man hath had Justice Summum Jus that is the extremity of the Law which is Summa Injuria and his Adversary hath Execution against him for the Twenty pounds Penalty and Eight pounds for Costs which is given in nature of damages This he Defendant must pay or lie in Goal and the Law as it is Justice in conceit cannot relieve him Well the poor man hath it may be got a Reprive upon preferring his Bill the Plaintiff at Law is either in Contempt or prayes a Dedimus Potestatem to answer in the Countrey or it may be in his Answer confesseth part of the Money paid or else that the Bond is ancient Hereupon the Complaint in Chancery obtaineth an Injunction and in short goes to Commission and brings the Cause to Hearing and hath a Decree That the Plaintiff paying the Interest which may be some thirty shillings and Costs which may be five Marks besides the aforesaid Eight pounds the Defendant who was Plaintiff at Law shall acknowledge satisfaction of the Judgement and deliver up the Bond. The Decree is inrolled and the Defendant served with a
Writ of Execution of it and obeys it and this is the best that can be expected And then the parties fall to cast up their Accompts and it 's found That the Plaintiff at Law spent Eight pounds and the Defendant four pounds The Plaintiff in Chancery spent Twenty pounds and the Defendant Twenty Marks Lay all this together and in conclusion the Debtor hath spent 24 l. and paid 11 l. 6 s. 8 d. and the Creditor hath spent 21 l. 6 s. 8 d. and received for his Debt and Costs 11 l. 6 s. 8 d. So the Creditor loseth his Debt and Ten pounds out of his purse and the Debtor hath spent and paid 35 l. 6 s. 8 d. where the first Debt was but Ten pounds and the Remainder was but thirty shillings O famous Law and Equity I could shew many of these Cases And indeed this hath been the common practice with most Judges to send men to Equity and they ought to do so whilest the Law stands as it doth Now apply this to the Rule and Argument above-mentioned The Law could not relieve the Debtor but Equity doth relieve him Which of these two hath done him Right The Law did him none for if it had done him Right then the Chancery ought not to have done the contrary which it hath done for to charge a man and to discharge him are clean contrary And the Chancery hath not relieved him for in effect he hath paid and spent more then treble the principal Debt and Interest So upon the point he is relieved no-where And yet every man will say He is no just man who refuseth to deliver up a Bond when it 's fully paid How doth this Law put all together give every man Right and if it do not then is it an unjust Law I do confidently affirm That no Nation professing the Gospel ought to have or maintain any Law so severe or rigid that it needs any Court of Equity to moderate it If it were needful or convenient in any case to have relief in Equity it must needs be in case of Life and Death which is a business of higher Concernment then a little Money and more favoured in Law But no man ever heard of a Bill preferred into any Court of Equity to save one from the Gallows and therefore it is to be presumed there is no need of any such Court if the Law were Just and Equal But because it may be every man will not be satisfied that in the Case above-mentioned there was a direct Repugnancy in the Judgements of these two Courts because The Chancery did give relief in Tanto though not in Toto I 'll onely put one short Case more to put the matter out of question A man indebted upon a single Bill payes the Money upon the day in the Bill appointed and hath Witness of the payment but the Bill cannot be found This Bill comes after to be put in Suit the Defendant cannot be admitted to plead payment at the day nor hath he any other Plea sufficient in Law to discharge himself nor can be relieved at Law unless he have a Release although he prove the Debt paid but Judgement must needs pass against him either by Default or Confession or upon a Verdict after Issue joyned upon some false Plea which the Defendant thinks most easie and after which he shall have most colour of Equity Well Judgement is passed and the Defendant must expect Execution without relief at Law But for fear of the worst the Defendant hath before Judgement his Bill preferred into the Chancery to which the Defendant Plaintiff at Law answereth and the Cause comes to hearing where it appears the Debt to be paid thereupon the Court decrees the Bill to be delivered up Here is a just Contradiction and diametrical Opposition The Law condemns the Debtor or at least will not relieve him and the Chancery doth discharge him of the debt and so relieves him Upon this consideration some honest Judges of late dayes have used in some Cases to order the Plaintiff upon the Defendants payment of the principal Debt with Interest and Costs or what shall appear to be unpaid to deliver up the Specialty and discontinue the Suit or stay the same This is a short and equal way which is Justice and no more to give every one his Right according to that of the wise Heathen (n) Plutarch in Laco Apoph Stob. ser 7. Ex Agesil Nihil praeter aequum faciendum esse c. Justitiam semper oportet esse Clementiam temperatam Yet this is contrary to the Law and no Record is made of any such Judgement But other Judges have usually said in such Cases The Defendant must seek relief in Equity they must do Justice that is shew Extremity These two Courts can no more consist with Justice then two Weights or Measures of different bigness or length I use this familiar Comparison because it pleaseth the Holy Ghost to make use thereof to this very purpose Prov. 20.10 Prov. 20.10 Diverse weights and diverse measures are both alike abomination to the Lord. These words Diverse weights and diverse measures (o) D. J. Burgis in hunc loc word for word out of the Original are a stone and a stone that is different Weights and Measures of several sizes one bigger another less and this is expounded by that in Deut. 25.13 14. Deut. 25.13 14. Thou shalt not have in thy bagge diverse Weights a great and a small Thou shalt not have in thy house diverse Measures a great and a small These words by a Synecdoche speciei Note The difference between L. Chancellor Egerton and L. Chief Justice Coke about the Power of the Chancery after a Judgement at Law Wilson Hist Great Britain pag. 95. Bodinus the learned Civilian observes That Contention between great Magistrates or Courts about their Power or Jurisdiction is always hurtful to the poor Subjects Bodin Repub. l. 3. c. 6. p. 356. forbid all unjust and unequal dealing and commerce amongst men and all Injustice and Iniquity and the instruments tools and means thereof and implicitely the same Law commands all Justice and Equity and directly forbids two Courts having contrary Powers and Jurisdictions and executing things Repugnant and contrary one to another If the one proceed justly the other must needs be unjust Neither do the Scriptures any-where mention Justice and Equity as two several things to be distributed in one Case as if that might be done by the one which might not be done by the other nor that ever any good Judges gave any such Judgments but rather when they are said to do Justice it 's intended That they did justly and equally It 's true that the (p) Exod. 21.1 Judicial Laws are called Judgements and the execution of the Moral Law is called Justice And so (q) 2 Sam. 8.15 David is said to execute Judgement and Justice that is to judge justly and righteously both in respect
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
Psal 12.3 8. That a man being after some sleight manner assaulted with a small stick which it may be the party assaulted wayting for such an advantage by provocation did procure falls upon him that assaulted him and beats him so sore that he puts him in danger of death the party so beaten brings an Action of assault and battery c. the Defendant either pleadeth Son assault Demesne or pleads the general issue and by power of the last Act gives this special Justification in Evidence Then the only (f) Coke Entr. fol. 644. a. question is who began the affray and if it be proved that the plaintiffe who was so grievously beaten gave the first assault then he loseth his suite and must pay the Defendants Costs In point of Conscience it ought to be considered aswell who had the hurt and losse as who began This is an incouragement of private revenge Lord Bacon Essayes Title Revenge which is term'd by that learned St. Francis Bacon a kind of wild Justice which is to be weeded up Rom. 12.19 Prov. 2O 22 9. The same may be said of that Law as it is now in practice This is likewise the Common Practise If upon a slight occasion first offer'd one man kill another The Jury usually find such a man guilty of Manslaughter in his own defence I confesse the Ancient Law hath been that no man could be said to kill another in his own defence iâ— he could have escaped from the party and inâ—â—ances of â—uch ineâ—itable necessity are shewed where a man is pursued to a River or a Wall or as far as he can go and then must eithâ—r defend himself by offending his adversary or yeiâ—d to be slain In such a case it 's better to kill then be killed and Justifiable by all just Laws whatsoever but the practise is after another fashion as above said and against the Law of God there is a difference to be put between him qui infert Injuriam and him qui propulsat Injuriam Weemse M. L. Com. 6. Exercit 7. pag. 115. 2 Kings 6.23 Rom. 12.19 10. The practise of suing a man to the Exigent This is every Terms Practise and observed both by the officers and practisers where there are four Writs viz. the Original Capias Alias and Pluries which should every of them have fifteen dayes at the least between the Teste and Return and were anciently return'd by the Sheriff from whom regularly the Defendant might hear of the suite But now as the practise is in the first week of a Term these four Writs may all be sued forth filed and the Exigent and Proclamation taken out in a day or an hour And in this case if a poor man be sued for a debt of forty shillings or any petty trespass he shall never hear of it until the plaintiffe hath spent 15. shillings 7 pence and if so soon as the Defendant hears of it he pay the debt or agree the trespass it must cost him that 15 shillings and 5 pence and 5 shillings more to withdraw the suite But if the Defendant never hear of the suite as it oftentimes falls out until he be Utlawed the Reversal of the Utlawry costs him above thirty shillings and if he be taken upon the new Orders he must procure a Supersedeas and reverse the Utlawry by a writ of Errour which will cost him above 40 shillings and all this is said to be for the benefit of the Court that is the inriching of the Offiâ—ers A Summons with a penalty in Terrorem like a Subpoena were a more equal just way for that experience shews that where one of forty fails to appear upon a Subpoena there is not one of five who appears upon common Processe This ought to be amended as an oppression of the people Isai 33.15 1 Thes 4.6 11. The Law imposing the forfeiture of a mans goods and Chattles for flying for felony (g) Every Jury which passeth upon a felon hath this in châ—rgâ— alâ—hough they finde him not guilty yet they are to enquire and presâ—nt whether the fâ—lon did flie for it and then what goods and chattels he had c. as it 's now in use is an unjust Law Suppose a simple man being questioned or suspected of felony or if such a thing be pretended and the poor man unwilling to fall into his Enemies hands fearing their power or malice or being fearful of Imprisonment foolishly runs away and absents himself some short time afterwards yeilds himself being better advised and upon his tryal is acquitted but upon the evidence he is found to fly for it in this case he loseth all his goods There is no reason that a poor man in such a case should lose all his goods and Chattles if he be not guilty of the felony his flight was but to save himself and every creature naturally seeks its own preservation if the poor man had resisted the Officer or those who pursued there had been some colour to punish him and so if he had been guilty of the felony he must have suffer'd the Law But the losse of all a mans goods and Chattles if he had five-fold as much as was stollen might be too great a punishment if he should be found guilty much lesse should he lose all for flying when he is not guilty 2 Sam. 15.11 Rom. 15.1 12. This is likewise admitted in all Courts If the Jury will believe the witness a single witness is sufficient Cons Norm Tit. Privil Crucis fol. 139. a. That any person charged with any offence touching his life or member should be convict upon the Testimony of a single witness is an offence against the Law of God and contrary to all Rules of Scripture The civil Law is in this point more agreeable to the Law of God and so likewise was the Law of Normandy which determine the Testimony of one single witness insufficient to charge any man in the cases aforesaid And the like may be said of a single evidence in personal Actions where there are not other circumstantial proofs evidencing the matter in question that no Judgment is to be grounded thereupon Deut. 17.6 2 Cor. 13.1 John 8.17 Matth. 18.16 Heb. 10.28 Numb 35.30 13. The like may be said of the tryal of men charged with felony or other such like Crimes the Prisoner hath not liberty either to have witnesses sworn for his defence to clear him nor admitted to have any Counsel (h) Wingat Law cap. 40. p. 70. N. 64. if he deny the fact although there be a Lawyer as Eloquent as Tertullus against him unlesse he come in upon his traverse that is if after the Bi l found and presented by the Grand-Jury the Prisoner can provide three pounds or more to pay the fees of the traverse he shall be allowed Counsel for his mony but if he be a poor Thief and hath no mony he shall have no Counsel however the Judge will hear his witnesses
onely be imprisoned as Jeremy was but may be hanged Therefore such Laws as these had need to be Expounded or Declared void 2. Thess 3.1 2. Isa 29.21 Jer. 26.6 7 11. 18.19 2 Sam. 12.7 13. 43. That an Heir having Lands Descending in Fee-simple shall not be subject to the Debt of his Ancestor from whom the Lands descend if he sell the Land (u) Custom Norm tit querel de debt fol. 87. Cook Entr. a. fol. 126. b. before the Action brought This is an unjust Law for that there is as much nay more reason to charge such an heir after the Alienation as before for then it is ascertained what the value is as well as in case of an Executor and what benefit it is to him without hazard 2 Kings 4.1 7. Rom. 13.8 44. That Lands taken in extent or seized upon an Utlawry at the suite of a private man for debt the issues and profits thereof should go to the King and so to the Lord Protector is a senseless and unjust Law seeing the Creditor sues for his just debt and is at all the charge (w) New Term. Law verb. Vtlawâ—y Coke l 6. fol. 80. l. 7. f. 3. l. 3. f. 2 3 4 35. 22 Ed. 3. l. Ass Pl. 33. 29 Ed. 3. l. Ass Cowel Inter. verb. Vtlawry Wing at Law cap. 37. pa. 59. N. 19. The like may be said of all Utlawries where men are utlawed in forren Counties and seldome or never hear of the suite the Proclamation grounded upon the satute of 31 Eliz. being never duly proclaimed but returned of course yet the party utlawed by the Common Law forfeits all his goods and Chattels and likewise the profit of his Lands until the Utlawry be reversed this is a harsh Law and used to insnare men and might well be amended Jer. 5.26 Levit. 25.43 46 53. Isai 58.6 Job 35.9 45. (x) Clerks Proposals second Paper 1650. N. 9. Justice Hutton in a cause heard before him C. B. That a man indebted upon a single bill without a penalty payeth the mony at the day and can prove it by witnesses but hath not the bill delivered up as it falls out many times nor any release from the Creditor under his hand and seal An Action is brought upon this bill by the Creditor or his Executor or Administrator The Defendant cannot be admitted to plead that he paid the mony at the day nor can make any defence at Law unlesse he have a release this is an unjust Law and a wrong to the Debtor and so unlawfull Job 16.17 Jer. 21.12 Ezek. 18.7 Prov. 22.22 46. (y) 26 Ed. 3. l. Ass Pl. 41. 12 Ed. 3. l. Ass Pl. 20. 29 Ed. 3. l. Ass Pl. 68. 40 Ed. 3. l. Ass Pl. 22. Kitchin fol. 162. a. That a Wife having right to be endowed and nothing to be said against it shortly after her Husbands death shall be a trespasser to her own Child or any other who is heir to her Husband and shall have nothing untill shee have recovered it by a writ of Dower which is a tedious way and the proceeding and Execution thereof chargeable This is an uncharitable Law and contrary to that Law of Equity that a Wife should partake in all her Husbands estate according to his degree and ability and Dower is one of those three things which are said to be favoured in Law but this is small favour 1 Sam. 1.5 Exod. 2110. Mal. 2.14 Eph. 5.33 1 Tim. 5.4 47. (z) Custom Norm tit Murder f. 75. a Rast Entr. Imp. 1574. Barn in Appel 8. fol. 43. in mort fol. 46. 47 48 52. a. That in an Appeal of Murder the Wife or heir of him that is slain bringing an Appeal against the Murderer may compound for mony and give a release of the suite and so consequently of the death of the party slain this is an impious Law against the Law of God Gen. 9.6 Exod. 21.12 14. Numb 35.30 31. Rev. 16.6 48. That a Priest or one in holy orders as he is said to be should have (a) Coke Inst 2 part pag. 4. Orig. Reg. fol. 147. Capias si Laicus sur stat de Acton Burnet See the statute 23 H. 8. c. 6. 37 H. 8. c. 9. Cons Norm tit Cler. fol. 146. a. Cowel Instit lib. 3. Tit. 2. Sect. 5. pag. 225. an Exemption and freedom from arrest upon a Capias si Laicus upon a statute-Merchant and that all other men called Laicks should be charged although the Priest were the principall Debtor and never was any Preacher but some Chorister or such like fellow this Law is both unjust and superstitious as being one of the priviledges of the Romish Church Prov. 20.16 and 27.13 and 22.26 27. 49. That a poor man taken in Execution for debt and having nothing to pay by Law cannot be discharged nor (b) Coke Entr. Audita Querela fol. 85 86 87. Coke l. 3. fol. 44. enlarged for an hour without losse of the debt for ever but must starve and dye in prison whereas in some Countries (c) Rous Att. Ant. l. 3. c. 1. pag. 96. Tit. Liv. l. 8. p. 301. D F. This Historian saith that the Law was 1. That none should be kept in fetters but he that was to suffer for some heynous offence 2. That for lent mony the goods of the debtor should be obliged 3. That no man should be imprisoned for debt the goods of the Debtor go to pay his debt and his body not to be Imprisoned but if you will keep a man in prison that hath nothing to pay you must maintain him or else let him go out and by that means men going to the Indies or following their profitable imployments many times become able to pay their debts and leave estates for posterity The Law hath been lately moderated by several dispensations or pardons but there is yet no certain Law in force in the point providing equal Justice and equity both for Creditor and Debtor Matth. 18.26 29 33. Isa 58.3 Luk. 7.42 Coke estay pag. 166. (d) Tacit. Annal l. 11. c 4. pag. 145. Pomponius made a Law to restrain the cruelty of Creditors and forbidding them to lend mony at Interest to young men to be paid after their parents death lest they should be deceived or ruined by such borrowing 50. (e) 5 Eliz. 23. Regist f. 65 66 67 70. Cowel Interp. verb. Excom Capiendo N. Term Law verb. Excom Wingat Law c. 38. p. 62. n. 19 20. The Writ de Excommunicato capiendo being in nature of an Execution against him that is Accursed that is Excommunicated fourty days from which no Money will redeem a man nor any thing else but the sacrificing of his Conscience in doing what the Ordinary will have him do which is called being justified by his Ordinary This is a wicked Law and many have been Imprisoned and others enforced to leave their Country for fear of this Execution this being the worst thing the
without oath But all the witnesses who are to give evidence for the Common-wealth are sworne and if it fall out as somtimes it doth that a witness sworne speaks any thing material to clear the Prisoner especially if he do any whit contradict the Testimony of any other brought against the Prisoner then the Court useth to be in an (i) This I observed to be very usually practised by the Judges as a piece of high injustice but since the late Warrs the Judges are more just and indiffâ—rent and moderate in this point heat and great inquiry is made how such a witness came to be sworne and if it appear he was brought in by any Sollicitor or friend of the Prisoners then such a man is checked or threatned most commonly and the Prisoner must endure all this Injusâ—ice for it is no better nor can any man defend it in foro Conscientiae for every man ought to have as much favour means allowed him to clear himself as his Accuser hath to charge him and somewhat more according to the rules of Scripture The conâ—rary was used against our Lord Christ Mark 14.59 63. Luke 22.71 John 3.11 Job 29.16 14. The payment of fines upon Writs of (i) Sr Edward Coke saith that the reason of these fines was because the King lost the benefit of the Amerciaments which he should have had upon the judgment or nonsuite Coke Inst 2 part in Stat. mod Levand fines 18 Ed. 1. pag. 511. So that fines were then the Conclusion of suits but now they are used to prevent suits and to settle estates about which then was no controversie And for other original Writs they are the beginnings of suits and therefore ought to be had without fine there being no Amerciaments lost thereby The fine upon the Writ of Covenant prolicâ—ntia concordandi is said by Sir Edward Coke to be the Kings silver which is a grosse mistake for that is paid besides the fine and post-fine upon the same Writ Coke Inst 2 part pag. 511. Covenant as well as other fines upon Original Writs are an oppression and a late exaction and seem to be contrary to Magna Charta Doct. Stud. Chap. 8. fol. 18. 6. Fines ought to be paid for Offâ—nces as a Mulct or Punishment but it is in no sort any Offence to leavy or sue forth a Fine for Assurance of Lands purchased nor to seek for remedy against wrongs by Suit in Law These Fines were all taken away by a Law as I take it to be but Fines upon Writs of Entry and Writs of Covenant are since set up again upon a meer pretence That the Fines themselves may be erroneous for want of payment of the Money called The Kings Silver to which the Fine upon the Alienation hath no affinity or relation that Silver being anciently but Ten-pence but this is at least Six shillings eight pence if the Lands be above Forty shillings by the year and it may be twenty shillings or twenty pounds being regularly the Tenth part of the yearly value as the Lands Conveyed are rated by the Commissioners and the post-Fine is half as much more The like may be said of Damna Clericorum which is the Tenth part of the Damages clear recovered in any Action and was anciently paid to the Priests who were Clerks in all Courts but since was allowed to the Protonotors and their Clerks This being a kinde of Tything had a Superstitious beginning but is lately discharged as all other Fines are but those upon Writs of Entry and Covenant which yet remain as an oppression If it be said That this is necessary as part of the Lord Protectors Revenue It is to be considered That the want of that is to be supplied by payment of (k) Tit. Liv. l. 39. p. 1051. f. 1052. G. Those taxes are most necessary which are imposed upon curiosities and dainties as rich Perfumes cloâ—h of gold and silver Silks Cypâ—ess Laces rich Colours Peaâ—ls Diamonds and other Precious Stones all kinde of works of Gold silver and enamell'd Coaches and Chariots c. Bodin Repub. l. 6. c. 2. p. 670 671. Hawk Dom. l. 2. p 111. Taxes Toll (l) Rom. 13.6 Taxes are as proper for upholding of Soveraignty as the Law it self Bod. Rep l. 1. c. 10. p. 177. Jun. Brut. vind cont Tyra p. 85 86. Tribute or Custome allovved by our Saviour and the Apostle to be paid to the Roman Heathen Emperors Mat. 22.21 Rom. 13.6 7. Luke 20.25 that is an indifferent payment by just proportion of Taxing But this now used by way of such Fines is a meer Oppression or Punishment of particular men for no Offence Ezek. 45.8 Amos 4.1 5.12 Jam. 2.6 Isa 52.45 15. All manner of Pleadings and Proceedings both in Law and Equity are stuffed with falshood and lyes This is evident in every mans practise and needs no proof and of necessity must be so whilest the Law continues as it now is In the Upper Bench all the Pleadings are said to be before the Lord Protector himself and so were said to be before the King himself although he never came into the Court. The Defendant is alwayes said to be in the Custody of the Marshal of the Marshalsey although he never came there but John Doo and Richard Roo were in conceit his Manucaptors In an Action at Law of Trespass for Assault and Battery brought for a box on the Ear the Plaintiff declares That the Defendant with Force and Arms viz. with Swords Staves and Knives did make an assault upon him and did him beat wound and evilly intreat so that it was despaired of his life In an Action of Trespass for driving Sheep over a plowed Land the Plaintiff declares That the Defendant with Force and Arms his Close c. did break and his Grass to the value of Forty shillings there late growing with his feet in walking did tread down and consume And his other Grass there late growing to the value of Forty shillings with his Cattel that is to say Horses Oxen Cowes Hogs and Sheep then and there lately feeding did eat up tread down and consume In all cases where the Plaintiffs by Law were to put in Pledges and where the Defendant put in Common Bayle or where the Defendant is to be summoned John Doo and Richard Roo John Den and Richard Fen and the like devised Names are said to be the men The Returns of most Writs are false That the Defendant is not found when he was never looked for nor the Writ in the County whither it is directed but purposely so returned that the Plaintiff may have an Alias and so a Pluries to the Exigent Upon a Habeas Corpus to remove a Prisoner being in the Goale Kiâ—th Return Brev. fo 259. if the Plaintiff will not pay the Sheriff for removing the Prisoner what he demands the Sheriff returns That the Writ came too late or that the Defendant languisheth in Prison so that he cannot
have his Body at Westminster at the day of the Return of the Writ without danger of death So if a Prisoner be bailed and a Bond given for Appearance if the Bond be â—uffiâ—ient the Sheriff will return That he hath taken the Body of the Defendant and hath it ready at the day and sometimes when the Defendant is Arrested and at liberty the Sheriff will return That he hath the Defendants body in Prison and that he languisheth when he goes abroad but is not minded to appear to answer the Suit The Common Barre and the story about Black-acre and White-acre and such things as are invented when men give to others colour of Title as an inducement to some other matter All which things are repugnant to Honesty and Simplicity The like may be said of Proceedings in Courts of Equity If a man sue for Lands to which he pretends an Equitable Right as a ground of Equity to make his Bill hold he usually alledgeth That the Plaintiff hath lost his Evidences That they are come to the Defendants hands That the Plaintiff can maintain no Action at Law for them because he knows not the Dates nor Contents of them nor whether they be in Boxes Bags or Chests and divers other such other false surmises when the Plaintiff hath the Evidences in his own Custody In a Biâ—l where a man sues to have an Agreement performed it 's usually alledged That the Witnesses to prove the Agreement are dead beyond the Seas or in remote places unknown or so impotent that they cannot be produced at any Tryal West Symb. 2 part Tit. Fines sec 112. Old Natura Brevium fo 20 and many such-like So likewise in a Commission to take the Cognizance of a Fine it 's alledged That the Cognizors are so impotent that they cannot travel to a Westminster without danger of death when they are in perfect health These and many more lyes and falshoods are made and entred of Record every Term which are clearly sinful and ought to be reformed Job 13.4 Acts 5.3 4. Coloss 3.9 Revel 21.27 22.15 Luke 19.8 16. The uncertainty of the Law for want of a standing Rule the Law it self being but meer Opinion is a matter of great prejudice and causeth an excessive charge many times to the Suitors The Judges being (l) Bodin Repub. l. 3. c. 5. p. 325. The Magistrate is a living or breathing Law There hath been a Judgement upon a Writ of Error in the Exchequer Chamber given by all the Judges That no Information will lie in any Court at Westminster but in the proper County before the Justices and yet such Informations are constantly brought and prosecuted every Term contrary to that Judgement grounded upon the Statute of 21 Jac. c. 4. called the Speaking Law very frequently differing in their Opinions and sometimes the same Judges when Lawyers have given that under their hands for Law which when they have come to be Judges upon second thoughts they have judged otherwise although such Judges have been known and reputed to be men of Integrity and clear Judgement And this uncertainty is not onely about the highest Apexes of the Law but in things of ordinary concernment As about Waste abundance of Money hath been spent to know what power is given to a Termer by these words To hold c. (m) Coke lib. 4. fol. 62 63. Herlackendens Case compared with Iewes Boles his Case Coke lib. 11. fol. 81 82 83. See the many Cases there cited without Impeachment of Waste whether he be onely discharged of unvoluntary Waste or whether the Termer may take down fixed Wainscot or such-like which he set up or whether he may not cut down Timber-Trees and pluck down houses and further whether he may not take all the Materials to his own use If I mistake not all these things have been judged Negatively and Affirmatively And the last Solemn Judgement was That in such a case a Termer might commit wilful Waste and take all the Materials to his own use which is Repugnant to all former Judgements and yet all the Judges are not now of the same Opinion in some of the Cases above-mentioned It were an easie matter to set down twenty such Cases where the Judges have been divided and in divers Cases where one Court hath agreed the other Judges upon a Writ of Error being the greater number in the Exchequer Chamber have reversed their Judgements The like uncertainty is found in every mans practice in (n) There are many Controversies concerning Actions upon the Case for words and many times words of high concernment are adjudged not to bear Action and for others of less concernment judgement hath been given Corn. Tacitus observes That the Romans Laws were swayed hither and thither by Might Ambition and Corruption and all was for want of a standing Rule Tacit. Annal. lib. 1. cap. 1. pag. 2. ordinary things as whether in an Indebitatus Assumpsit for Wares and Merchandize upon a Non assumpsit pleaded the Plaintiff shall not be put to prove That the Money demanded grew due for such things as are mentioned in the Declaration or whether he may give in Evidence That it grew due for Rent or other things not mentioned Whether upon a Lease by Paroll an Action upon the Case will lie for Arrears of Rent Whether a man to an Action of Trespass oâ— Assault Battery and Wounding may plead to the wounding Son assault Demesne Within Thirty years it was commonly held for Law That if a man strike me with a Stick I might not cut him with a Sword but now of late the common use is to justifie the whole Battery both Beating and Wounding If a man were minded he might fill a Book with such Uncertainties And this is that which caused King James to tell Wilson Histor Great Brit. p. 96. Sir Edward Coke That he had inserted into his Books many extravagant Opinions for good Law which were not Law and therefore commanded him To Review and Correct them and bring them to him to be perused And the same Judge is also charged That he could turn the Edge of the Law any way and strike with that weapon whom he pleased (p) That Law which like the Lesbian Rule is so pliant that it may be turned every way loseth the force of a Law and becomes like a Nose of Wax and so the Judge who is but the Minister of the Law becomes the Master of the Law Bodin lib. 6. cap. 6. pag. 760. answerable to what a Learned Chancellour said once upon the Bench Such a Lord Chancellor was of that Opinion and I am of this Opinion If there were nothing in the Law faulty besides this it were worthy to be perused and amended for the Judges being the Speaking Law the Law is nothing but thâ—ir (q) Cock Essay p. 111. Opinions contrary to that Truth which ought to be in all Laws But the Judicial Law of Moses shall never be found