Civil Law if we may believe Fortescue is more agreeable to the Word of God for he saith cap. 49. that the Civil Laws do judge open Theft to be satisfied by the recompence of four fold and private Theft by the recompence of double so not to suffer death by their Law I do not write this to incourage men in this heinous crime which is too too common in these times no far be it from me so to do for I know if there be not a severe Law against it there will be no injoying any thing that a man hath the Law of propertie will be of little force But that there may be some other way of punishment as by Banishment slavery or the like which may be as effectual to terrifie men keep them from it so that we do not take away the life of man over which there is no jurisdiction given in such case by God we having no precept rule or warrant for it And now to me the forfeiture and penaltie in such case is no less unreasonable is it not too much to lose the life and yet will not that satisfie but thereby also his bloud be corrupted and all his estate forfeited so that his issue is not inheritable to him nor to any other ancestor nor can this corruption of bloud it is so high be restored otherwise than by Act of Parliament And if he were Noble or Gentle before he and all his children and posteritie are by this made base and ignoble in respect of any Nobilitie or Gentrie which they had by their birth For my part I think there cannot be a more rigid and tyrannical Law in the world that the children should thus extreamly suffer for the crime and wickedness of the Father the innocent for the nocent It is true that as the Apostle saith Rom. 5. that by one man sin entered into the World and death by sin but he goes further and so death went over all men in whom all men have sinned We all sinned in Adam therefore no wonder if death fall upon all God hath the supream Soveraign power over all his creatures and so may inflict what punishment he pleaseth upon them for their sins who dares question it or say it is unjust and yet God deals not thus severely with man for in the 18. of Ezek. he reproveth the Israelites for using this Proverb The Fathers have eaten sowr grapes and the childrens teeth are set on edge and saith they shall use it no more for that Soul that sinneth it shall die and after verse the 20. The same Soul that sinneth shall die the Son shall not bear the iniquity of the Father c. Thus you may see the great mercie of God whose greatest severity were but Justice Doth not this extreamly condemn the injustice of that Law which so severely punisheth the Children for the transgression of the Father a wicked Father may have a good Child and shall such a one be ruined through the wickedness of the Father his Estate wholly lost and not onely disinherited through his corruption of bloud as to his Fathers Estate but also made incapable of taking any thing by descent from any other Ancestor a more rigorous Law certainly was never made But I know it will be said that the reason of the severity of this Law is the more to deterre and affrighten men from this sin which is so frequent amongst us ut metus ad â—mnes paena ad paucos c. To this I answer that it is not Lawfull nor warrantable for men to make unjust and tyrannical Laws to keep men from sinning and to put them in execution punish the offending Father but not the innocent Children The custom of Gavel-kind is more reasonable for though the Father be hanged the Son shall inherit for the Custom is the Father to the bough the Son to the plough I shall conclude it with this that I hope one day to see this Custom become the Common-Law of England the next thing I have in consideration is touching the debts of Infants under the age of 21 years and therein I propose this question Whether it be a just and reasonable Law that Infants under the age of 21 years shall not be charged with their debts FIrst we are to know what the age of discretion is for Man or Woman What full age The age of discretion for a woman in judgement of our Law is 12. for a man 14. full age is 21. and under that age they are said to be Infants in Law and under that age they have not power to dispose of their Estates not are they liable to pay their own debts It is true that for necessaries as Cloaths Dyet Schooling the like they are liable but for those neither they cannot give a penal bond a Bill they may and it shall bind them In general an Infant may better his condition he can not make it worse this I confess to be Law yet it seems very hard to me that an Infant should not be liable to pay such debts as he shall ow for any thing had or received after the age of discretion especially when I consider what the Law is in other cases of Infancy By custom he may make a lease at his age of 15. and it shall bind him Cook upon Littleton fol. 45. b. Nay further by custom he may make a Feoffement at 15. years 5. H. 7. 41. 11. H. 4. 33. Now no custom is Lawfull that is not reasonable And yet further an Infant of the age of discretion nay under may suffer death for Murder or Theft nothing more common 3. H. 7. 12. an Infant betwixt 10. and 12. gave a man several wounds till he died and then he drew the body into the Corn for which he was convicted but it is true that judgement in that case was respited for his tender age but many Justices that he was worthy of death Note an Infant of 9. years killed another and it was adjudged that he should be hanged quia malitia supplet aetatem But execution was respited to have pardon see the Assises A Woman Infant within age killed her Mistris and was burnt for it see likewise the Assises Again an Infant shall not avoid a marriage at the age of discretion made and contracted by him Cook upon Litt. fol. 79. Now I argue thus if an Infant may do the greater why is it not reason that he should do the less If he may be chargeable for things of a much higher nature why not for those that are of a lower By custom he may sell his Estate By Law he may suffer death for Felony and may contract Matrimonie things of much greater consequence to himself why then in reason should he not be liable to the payment of his debts my Lord Gook saith that argumentum a majori ad minus an argument from the greater to the less is a good argument in Law Besides he is as much obliged in
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
his Estate that he were not able to perform them I am not ignorant that when I give Lands to a man his Heirs the Law saith that the word Heirs is by way of limitation not of purchase yet when an Estate so descends or is given as aforesaid the Heir by the intention of the Ancestor and the donor ought to have an Estate in point of interest as also in conscience after the death of his Father For if a man should demand of such a one who intends to leave his Lands to descend to an Heir or of the donor whether he intended that his Heir or the donor should sell or give away the Estate so descended or come through their goodness care and providence to a stranger I know their answer would be that they intended not a disinherison of the Heir but that the Estate should descend go to their Heirs with the same freedom it descended or came to them but I would not be-mistaken for I intend onely a third part to descend for the reason aforesaid But now let us examine the reason of the Law afore-said and where the inconvenience lies The reason is that 't is against the purity and absoluteness of a Fee-simple not to have such disposing power where lies the inconvenience that it is against a Maxim of Law nothing of prejudice either to the publick or to any private or particular person And then examine the reason of the other side why such a Tenant in Fee-simple should have power onely to dispose of two parts and leave the third to descend to his Heir because it would agree with the intention of the Ancestor and likewise prevent the beggering of the Heir a thing too common with profuse and prodigal Ancestors in these daies So that I conceive it is evident to you that the inconvenience lies on this side and whether it is better to continue a Maxim without reason or to alter it upon good grounds I leave to the consideration of our Sages and of this onely thus much the next thing I have to treat of is common Recoveries concerning which I shall propound this short case and question Tenant in tail with remainders over suffers a common Recovery whether this in Law or conscience ought to bind the issue in tail and theremainders over IT is true that through custom and long continuance this is now become the common assurance of the Land and I am not ignorant that this point received a full resolution by the other Judges in Marie Portingtons case in my Lord Cooks tenth Book that such Recovery was good and binding not onely to the issue in tail but those in remainder likewise Yet I hope a man may now with freedom dispute it since all conscionable honest men that ever I met with oppose it and I dare say that policy and private interest first made this conveyance Lawfull or at least to seem so And being that in the discourse of this case it will be necessarie to know what the Law was before the Stat. of 13. E. 1. of intails and the mischief of that Law which caused the making of that Stat. for a remedy it will not be amiss if I cite the Stat. wherein we shall find both the one and the other the mischief and the remedy and then it will be easie to judge whether the mischief against which the Act of 13. E. 1. was provided doth not still continue by common Recoveries notwithstanding the remedy But before I cite the Stat. I cannot but put you in mind that it hath been desired and proposed by some in Print who either never read the said Stat. or did not well understand it that the said Stat. might be taken away the mischief at the common Law revived and the remedy suppressed All that I shall say to such is that that Law if we will believe our Judges and Sages of the Law was made by very Sage and wise men therefore we ought to judge it to be made upon very good grounds and reasons and so not to be repealed without better reason but I need say no more for I doubt not you will find upon the reading of it that it was made upon solid and profound reason and so not to be altered upon any Clarks or Attornies motion 13. E. 1. Cap. 1. In gifts in tail the donors Will shall be observed FIrst concerning Lands that many times are given upon condition that is to wit where any giveth his Land to any Man and his Wife and to the Heirs begotten of the bodies of the same Man and his Wife with such condition expressed that if the same Man and his wife die without Heirs of their bodies between them begotten the Land so given should revert to the giver or his Heir In case also where one giveth Lands in free marriage which gift hath a condition annexed though it be not expressed in the deed of gift which is this That if the Husband and Wife die without Heir of their bodies begotten the Land so given shall revert to the giver or his Heir In case also where one giveth Land to another and the Heirs of his body issuing it seemed very hard and yet seemeth to the givers and their Heirs that their Will being expressed in the gift was not heretofore nor yet is observed In all the cases aforesaid after issue begotten and born between them to whom the Lands were given under such condition heretofore such Feoffees had power to alien the Land so given and to disherit their issue of the Land contrary to the minds of the givers and contrary to the form expressed in the gift And further when the issue of such Feoffee is failing the Land so given ought to return to the giver or his Heir by force of the gift expressed in the deed though the issue if any were had died yet by the deed and Feoffement of them to whom Land was so given upon condition the donors have heretofore been barred of their reversion which was directly repugnant to the form of the gift Wherefore our Lord the King perceiving how necessary and expedient it should be to provide remedy in the foresaid cases hath ordained That the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed So that they to whom the land was given under such condition shall have no power to alien the land so given but that it shall remain unto the issue of them to whom it was given after their death or shall revert unto the giver or his Heirs if issue fail whereas there is no issue at all or if any issue be and fail by death or Heir of the body of such issue failing c. And if a Fine be levied hereafter upon such Lands it shall be void in the Law and no claim needs c. Here I have faithfully cited you the Stat. word for word and what the common Law was before the
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
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
to others But the first thing I shall consider is what the judgement which the foresaid Act calleth fort dure is and then what the reason should be that so severe a judgement is given in that case and then we may easily judge whether it be consonant to reason and conscience The judgement is that the Man or Woman shall be remanded to the prison and laid there in some low and dark house where they shall lie naked on the bare earth without any litter rushes or other clothing and without any garment about them but something to cover their privy parts and that they shall lie upon their backs their heads uncovered and their feet and one arm shall be drawn to one quarter of the house with a cord and the other arm to another quarter and in the same manner shall be done with their legs and there shall be laid upon their bodies iron and stone so much as they may bear and more and the next day following they shall have three morsels of Barley bread without any drink and the second day they shall drink thrice of the water that is next to the house of the prison except running water without any bread and this shall be their dyet untill they be dead Well might my Lord Cook stile it as he doth after a strange and stupendious punishment for when I first read it I was even amazed and astonished at it that such a Law should be tollerated amongst Christians much more amongst Protestants strict professors of Christianity putting to death with such aggravations of torture and miserie is rarely to be heard or read of except amongst Heathens Turks and Infidels Here is a dying three manner of wayes though all but one death which will at last nonplus Tyranny and put a period to all such like tortures Onere fame frigore by weight famine and cold and therefore saith my Lord Cook this punishment if it were executed according to the severity of the Law should be of all other the most grievous and fearfull I confess I have not been an eye-witnes nor would I for all the world of any mans suffering in that kind though it be every years experience of some mēs undergoing that death and I do believe according to the severity of the Law too for it lies not in the power of the Judge much less of the executioner any way to lessen or mitigate it after judgement past But now for the reason of this heavy and terrible judgement which is according to the foresaid Act because he refuseth to stand to the Common Law of the Land that is Lawfull and due trial according to Law and therefore his punishment for this contumacy without comparison is more severe lasting grievous than it should have been for the offence of Felony it self and for the Felony it self it cannot be adjudged without answer A very strange thing that a man should suffer ten fold more for his wilfull obstinacy in refusing to put himself upon a legal tryal than he should for his crime or offence which is a hundredfold greater more for the lesser than the greater offence more for contumacy than murder The punishment ought to agree and to hold proportion with the offence and not to exceed it The rule of Law is that a man ought to be punished according to his offence and the Statute of Magna Charta cap. 14. is that a man shall be punished secundum modum delicti according to the manner of his offence but certainly here is not the least equality or proportion between the offence and the punishment Contumacy the offence pressing and starving to death the punishment It is true that God having Genes 9. 6. commanded the Murtherers bloud to be shed by man the Murtherers not the Thiefs and thereby enstated the power of the sword on the Supream Magistrate not onely permits him and makes it Lawfull for him so to punish such malefactors but commands and requires him so to do as his Minister to execute wrath for he ought not to bear the sword in vain but this Commission is not given to him absolutely arbitrarily to use as he list though he may take away the Murtherers life yet he hath no rule nor Warrant to take it away by cruel and exquisite tortures and torments that is praeter mandatum beside the command Mercie is one of Gods attributes and even the very sum and body of the Scripture therefore Tyrannie must needs be against the mind and will of God religion Christianity Taking away mēs lives by cruel tortures is Diabolical and Heathenish it is the Divils part to torture and torment and it is no strange thing for wild beasts to be cruel but that homo homini daemon one man should Act the part of the Divil with another or that Christians should be cruel this is contrary to our education and profession The Magistrate for prevention of sin and wickedness may severely punish and correct yea and in some case take away the life too but not Tyrannically Barbarity and inhumanity Suits not with Magistracie The Prophet David cals Magistrates Gods and certainly they approch then nearest to the deity when they shew mercie Questionless it was a high and great aggravation of the sin of the Jews in torturing of our blessed Saviour by that most cruel death of the Cross But to this it will be said that that was wholly unjust in the Jews not so here because it is an execution of Justice To this I say that it is in no case just to take away mans life by lingring and cruel tortures this turns the execution of Justice into sin and makes the Law it self unlawfull But it may be objected that it is the parties own fault that he stands Mute and will not plead to be tried volenti non fit injuria seeing he will so suffer there is no injury done him and therefore not to be pittied To this I say let him suffer death for this his obstinacie as he should if he had been tried and found guilty and as the Law was if we believe some before the foresaid Statute which is a satisfaction equal to the highest crime or offence whatsoever against man but let this cruel and barbarous Law of Paine fort dure be taken away and expunged out of our Books never to be revived Silence may contract guilt but ought not so to aggravate punishment and certainly a mans folly or obstinacie will not excuse or extenuate the Magistrates cruelty But to conclude I cannot pass by that gracious and mercifull Act of this present Parliament which hath taken away that barbarous and tyrannical Law of quartering of men in case of treason and doubtless this Law if strictly examined will be found as Tyrannical if not more than the other and if it shall appear that there is as much reason to take away this as that I hope it will not continue long after it I shall say no more
but this gratious and mercifull Laws concludes the Governours to be men but Tyrannical Beasts The last thing I shall debate is concerning Wreck of Sea and in that propound this question Whether the Law of forfeiture of goods wrecked at Sea be a reasonable Law or not I Am not here to meddle with Flotsam that is where goods float upon the Sea nor with Jetsam where goods are cast into the Sea to prevent Shipwreck nor yet with Lagan where they are fastened to any thing that they may be discovered for of these I may say in regard it is uncertain upon what Coast they may be cast or whether driven Capiat qui capere potest ketch that ketch can but with wreck of Sea and that is such goods onely which upon a Shipwreck are cast or left upon the Land by the Sea and this onely is Wreck The ground of this Wreck of Sea was as it is said that goods being so wrecked the property was in no man and therefore the Law gave them to the King who was Lord of the narrow Seas who was bound to scowr the Seas of Pyrats and petty Robbers towards the charge of the same this was the foundation of this Law And now it is fit to know what the Common Law was before the Statute of 3. E. 1. D. S. saith that by the Common Law goods wrecked upon the Sea were immediately forfeited to the King but I rather believe Bracton lib. 3. 33. 135. that there shall be no wreck where the owner comes and avows the goods to be his observe there that that is indefinite at any time and that were a reasonable Law And Cook lib. 5. Sr. Henry Constables case it is said that the Statute of 3. E. 1. was but a confirmation of the Common Law then certainly the Law was the same before as it is now by that Statute And by that Statute of 3. E. 1. cap. 4. concerning wrecks of the Sea it is agreed that where a man a dog or a cat escape quick out of the Ship that such Ship nor Barge nor any thing within them shall be adjudged Wreck but to be saved and kept by the Sheriff c. so that if any sue for and prove the goods his within a year and a day they shall be restored otherwise to remain to the King c. So that the Law is that if but a Dog or Cat escape alive out of the Ship then not to be adjudged Wreck otherwise it is Now to me this seems a very hard Law that a man should lose his estate there being no act or default in him which is contrarie to the rule of Law and as I have said before there is another rule in Law that the act of God shall prejudice no man and for my part I cannot judge an Act of Parliament made against this rule to stand with reason This is afflictionem afflictis addere to add affliction to affliction and to throw him quite down that is a falling certainly there cannot be any thing more against reason and Religion than for to add burthen to burthen sorrow to sorrow when the afflicting hand of God is upon a man 't is sad and miserable to meet with such as Jobs friends For a man in an impetuous dreadfull storm and tempest to be tossed to and fro at Sea by the raging and swelling billows thereof every moment expecting nothing but destruction and at the last to be Ship-wrecked and swallowed up in the merciless deep and after all to have this further aggravation of miserie that if nothing escape alive the goods to be forfeited or if any thing escape alive if not a man to be confined to a year and a day to prove the propertie when that it is almost an impossible thing for friends to be informed of the sad misfortune the men being all cast away this seems to me a very hard and strange Law But to this it may be said that the goods may be bona peritura and if libertie should not be given to dispose of them after such time no claim being made they may perish and so nobodie be advantaged thereby To this I say 't is true it may be so Therefore I conceive it just as in case of Estrays so in this case that a Law should be made by which it should be provided that notice should be given of such a Shipwreck and such goods taken up by way of Proclamation in all the Port-Towns and other chief Cities of Merchandise and then if claim be not made within the same time the forfeiture may be more reasonable And we ought to be invited to this the rather considering it was the hand of God which brought this affliction and therefore let us not add forfeiture of estate to loss of life if possibly it may be prevented The next and last thing I shall discourse of is Wills and of that onely by way of advise Good advise in case of making last Wills and Testaments THe onely advise that I shall give to men in this case is that they would make their last Wills and Testaments in their health with the advise of Lawyers not of Parsons or Scriveners who know nothing but meer matter of form and like Carriers horses keep their rode judging their forms to serve all cases by which they raise infinite disputes and controversies and often undo many men Nor is it a prejudice for any man to make his Will since that in Law he may revoke it when he pleaseth for voluntas est ambulatoria usque ad mortem I confess in the case of Wills the favour of the Law to be very great for that they are conceived generally to be made in extremis for 't is a Maxim of the Common Law Quod ultima voluntas testatoris est perimplenda secundum veram intentionem suam Reipublicae interest suprema hominum testamenta rata haberi that is that the last will of the Testator is to be fulfilled according to his true intention and it concerns the Common-wealth that mens last Wills and Testaments be ratified and confirmed The Law is to be thanked for this care not themselves and let not this incourage men in the neglect of that which often causes so much debate and dissention even to an irreconcilableness amongst a mans Children and kindred without doubt it is a dutie required at every mans hands whom God hath blessed with a fortune that he avoid that as much as possibly may be And here I shall give you my Lord Cooks directions concerning making of Wills which indeed is very excellent in his third book fol. 36. Buttler and Bakers case where he saith touching Wills of which you have many good matters in the said case my advice is to all that have Lands that you would by the advice of learned Counsel by act executed make assurances of your Land according to your true intent in full health and memorie to which assurances you may add such conditions or provisoes of revocation as you please for I find great doubts and controversies from day to day to arise upon devises made by last Wills sometimes in respect of the tenures of the Land which now thanks be to God is taken away sometimes by pretences of revocations which may be made easily by word also in respect of obscure insensible words and repugnant sentences the Will being made in haste and sometimes pretending that the Testator in respect of extreamitie of pain was not of sane memorie and divers others scruples and questions are moved upon Wills But if it pleaseth you to devise Lands by Will 1. Make it by good advise in your full memorie and inform your Counsel truely of the estates and tenures of your lands and by the grace of God the resolutions of the Justices in this case will be good direction to Counsel learned to make your Will according to Law and by this to prevent questions and controversies 2. 'T is good if your Will concern inheritance to make it indented and to leave one part with a Friend lest after death your Will be suppressed 3. At the time of publication of the Will take credible witnesses who may subscribe their names to it 4. If it may be let all the Will be written with one and the same hand and one and the same parchment and paper for doubt of alteration addition or diminution 5. Let the hand and seal of the devisor be put to it 6. If it be in several parts let his hand and seal be put and the names of the witnesses subscribed to every part 7. If there be any interlining or rasure in the Will let there be made a Memorandum of it 8. If you make any revocation of your Will or of any part of it do it by writing by good advise for upon revocations by Wills insue controversies some of the Witnesses affirming of it in one manner and others in another manner Reader you may observe that the scope of my labour herein is to avoid as much as may be all unnecessarie strifes debates whatsoever which made me add likewise these directions concerning making of Wills which if well observed and followed will prevent many contentious suits and debates in Law and much tend to the peace and good of this Common-wealth FINIS