custome made in furtherance of mutuall accounts Vide 4 E. o. com 36. doth very much enable the prisoner to procure his liberty and pay his debt Also if the prisoner be poor and of himselfe unable to pay this toleration of their going abroad with the Keeper is a good meane for him to procure the Alms and reliefe of other charitable people thereby the sooner to purchase his liberty Whereby it appeareth what reckoning the Law maketh of them in consideration of their great hazzard by Sea through danger of shipwrack or piracy and adventure in strange Countreys by falshood and negligence of Factours or by wars between Princes the inconveniences and mischiefes whereof are not so offensive or prejudiciall to any as to Merchants whose condition as it may by a fortunate voyage be much enriched and advanced so may it by any of the mischances aforesaid be so empaired and overthrown that it may turn himselfe his wife and family to utter calamity and distresse Therefore as the hope and comfort of the wife having commonly no assurance of joynture in the City nor expectation of dower as other women have and also of the children being for the most part born to no great patrimony other then that which their fathers shall by their vertuous industry acquire doth onely depend upon the fortune of their husbands or fathers travaile it hath laudably and conscionably been observed for a custome and is yet by the wiser and better sort religiously regarded that when any Citizen of London dyeth his wife shall have the third part of his goods and the children another third part equally to be divided among them according to the proportion of his goods and himselfe another third part to dispose by his last Will and Testament at his pleasure A partition so reasonable and grounded upon so good consideration the quality and estate of the Londoners considered that if it were not approved by custome but to be proposed in the wisest and highest Court of Parliament whether it were fit to have the force of a Law I think no man unlesse he were a Timon by nature or a Diogenes by disposition no man I say possessed with common humanity would gainsay or impugn it Doth not the common Law now in force give the husband presently by the intermariage all the goods and chattells of his wife though the same bee of the value of 10000 pounds so that when shee is once his wife the Law disableth her to give or dispose any thing that was hers before And shall not the husband be bound by semblable Obligation of reason to leave his wife the third part of his goods and if the Law be in that respect defective as what Law in the world except the Law of God is without his imperfections shall not the custome supply it in such sort that no barbarous and uncharitable or cautelous and unkinde practises by deed of gift or otherwise shall disappoint or defraud the same especially here in London where the good estate of men for the most part consisteth in movables by reason of their continuall Trades and Exchanges so that their wives cannot assure themselves of their dowry commonly called thirds as they might if their husbands were seised of Lands in Fee-simple Also the comfortable society between husband and wife is of that pretious estimate and honourable reputation before God and man that there may not possibly a more sacred and strait conjunction be imagined among the children of men Charondas the Philosopher calleth them Homosipios which signifieth fed with the selfe same food And Epimenides another Philosopher calleth them Homocapnos which is as much to say as using the selfe same smoke and the selfe same manger and as it were drawing the selfe same breath Finally the Scripture giveth expresse charge to each man to tender his wife with extraordinary good offices by saying Matth. ca. 19. Mark cap. 10. 1 Cor. ca. 7. Ephes ca. 5. Thou shalt leave thy Father and Mother and cleave to thy wife If the force of custome did not enforce the matter these onely considerations were sufficient to prove that there should be nothing private nothing peculiar nothing proper but every thing in common every thing equally interested between the husband and the wife The like though not equall affection is commanded by the Apostle to the Col. 3. by the Fathers towards their children You fathers be tender and loving unto your children and discourage them not But let us see what account our common Law hath made of the like customes founded upon the love and affection between man and wife It was used of ancient time in Gavelkinde Land and hath received the allowance and judgement of a good and lawfull custome 8 H.M. 3 Pres 60. that if the husband be attainted and executed for a Felony by him committed 8 E. 2. It in can Preser 50. yet shall his wife for the solace of her losse and desolation have her dowry of his Land and also the heire shall inherite the same according to that old saying P. 35 H. 6.58 The Father to the Bough the Son to the Plough although the common law by rigorous imputation to make man more fearfull to offend in crimes of such quality extendeth the punishment though not to the persons of the wife and children yet to their fortune so farre as it may turn to their utter impoverishment and discomfort In the City of York there is a custome that the husband may enfeoffe his wife of such Land as he shall purchase which though it bee against the rule of the common Law which disableth the husband to convey any Land to his wife by feoffement or deed 12 H. 3. Pres 6.1 yet by force of the custome it was adjudged to be lawfull and effectuall Also the custome of many places in England is that the wife shall enjoy the whole Land of her husband in name of her dowry as it appeareth by M. Litt. himselfe Litt. ti Dower and the husband cannot by any cautele or devise defeat her thereof And in some other Countries they have the moity or tone part and generally by the common Law the third part In Northwales the custome is so beneficiall for wives that although they be sure of their thirds of such Land as their husbands shall chance to be seised of at any time during the mariage yet are they to have the moity or tone part not onely of his goods and moveables but also of his Leases be the terms thereof never so long 14 Eliz. Not many yeers ago the custome of Taundean was alleaged and allowed by the Court of the Kings Bench that the husband or wife whether so ever of them did happen to over-live should have the inheritance or Fee-simple Land of the other by survivor a custome verily neither contrary to reason nor repugnent to Religion as no well disposed or good husband can deny when he entreth into consideration of those holy duties and
good observances that are commended and commanded in holy Scripture Read the Epistle to the Ephes ca. 5. If then these customes bear sway in sundry places and are publickly approved by judiciall sentences what Citizen will be so senselesse what Londoner so loose what Merchant or other free man so inconsiderate and unregardfull of his own good estate and so ready to defile his own nest as once to attempt or practise the violation or breach of so good a custome What is he who seeing the Estate of London is preferred before other Cities of the Land by the benefit and means of their most profitable customes that will give a dangerous example to abrogate the same and to call their usages in question A custome if it have been once notoriously discontinued or interrupted loseth the title and appellation of a custome and by instance given of the time when it was disused lacketh a great part of his authority Then unnaturall or at least wise unadvised is that Citizen which to serve his private humour bringeth a generall custome either into question by his fraud See before in the case of Robbery how carefull the City was to avoid this danger and to preserve their custome and and in the case of the attaint before 7 H. 6 c. or by his example into contempt Pernicious also is the president of one custome called in question to the ruine of the rest Namely when as the City by their Counfell in her Majesties Courts of Westminster claiming the benefit of their customes may be encountred and confronted with a counter plea given by themselves that such of their own Aldermen and commons have by their deeds and devises either disaffirmed or disanulled the same A practise as of great condemnation in them that do it so no doubt of great oversight and incircumspection in them that suffer it But somewhat to satisfie the idle cavils pretended to the contrary saith some one is not the generall Law of England sufficient to manage the government of London as well as of all other Subjects but that Londoners must have private customes and usages of their own This objection made by the enviers or enemies of the wealth of London howsoever they make shew to the contrary rather deserveth a hisse then a reply and is sufficiently confuted in the former discourse But it is further urged by some hard husbands My wife is froward and undutifull and hath not deserved it Shee is a fool and cannot rule it She will marry again and enrich some other with the fruit of my travaile Wherefore I think it necessary to abridge her of that liberality which the custome doth extend Also my children be evill enclined disobedient or untractable or some of them be Wherefore I may with reason deprive them of the benefit of this custome First to answer the undutifulness I wish thee whosoever thou art to summon and convent thy selfe to the tribunall seat of thy inward minde as Saint Augustine saith Aug. in lib. confess and to make conscience thy Judge thy cogitations the Witnesses thy actions the accusers thy memory the register or record to give in evidence and let it be discussed in all due circumstances whether thou didst not likewise forget the offices of a good husband and defraud her of her duties as Saint Paul saith or provoke her to impatience which the same Apostle forbiddeth in these words 1 Corinth ca. 7. Col. ca. 3. You husbands be loving to your wives and no way be bitter unto them Peter Epist 1. ca. 1. Which also S. Peter remembreth in advising husbands to dwell with their wives sincerely and according to knowledge in doing honour unto them as to the weaker Vessell Let it I say be examined in the consistory of thy conscience whether thou either by thy fault wittingly or negligently by thy default or by thy unkindness unduly hast caused her being the weaker vessell to bee the more intolerable If thou find thy selfe condemned by thy conscience let remorse be thy executioner and amendment with kindness towards thy wife be thy penance but if thou finde thy selfe guilty of no want of affection love or good carriage of thy selfe towards her so that her undutifulness proceeded of her selfe yet I pray thee remember the benefits which God hath given thee by her means whether they be gifts of fortune in bettering of thy estate or eschewing of sin by her lawfull and comfortable company or the blessing of children a soveraign good in this world thy children being the monuments of thy life and being upon earth and the repayrers of thy decay And let these favours and graces enjoyed by her company cover and countervaile her other imperfections whatsoever Follow therein the example of the wise Socrates who being demanded how he could endure the continuall scolding and vexation of his wife Xantippe likewise asked of the other why he suffered the cackling and unpleasant noise of Hens and Turkeyes in his house Because said the other they lay Egges and breed Chickens for me and so said Socrates Xantippe beareth me Children which good turn alone covereth and dispenseth with infinite defects Callicratides the Athenian being demanded why hee a man so nobly descended but having matched with a base Thessalian woman yet by his last Will bequeathed unto her all his substance leaving his other friends and kinsfolkes unregarded because said he she is my wife meaning that shee who was by his judgement and choice made worthy to be his wife should bee unworthy of nothing that was his Which may also satisfie that second point of supposed folly in the wife want of discretion to marshal so great a proportion of wealth as the custome will give her Wherefore wouldest thou mary with a fool if thou thoughtest her unworthy of the rights of mariage then seeing thy choice hath estopped thy Testimony of her folly thy duty towards thy wife shall binde thee to favour and conceale her weakeness and to perform that which the custome pronounceth to be convenient It cannot be evill bestowed upon her whose right by custome demandeth it and whose estate and imperfections have need of it whereas if the husband may be permitted by this colour to defeat his wife many inconveniences and disorders might ensue First a generall custome Leges se accommodant ad ea quae frequentius non quae raro accidunt Bartolus which is as also a generall Law never provided for such rare accidents as seldome fall in experience but for things that ordinarily and commonly happen should be broken to the generall scandale and offensive example of all through the inhability of one which were a thing unreasonable Likewise then might husbands if that were admitted for a just allegation easily devise and publish that or some other imperfection to be in their wives and thereby bereave them of their right No more then it is a just counterplea or barre to a womans dower
a president Thus the mischiefes objected on the one side are light and of small moment whereas the inconveniences apparent on the other side be manifold and of dangerous consequence I will not vouchsafe to answer that undiscreet Sarcasmus or bitter scoffe that some use We may play our wealth at dice without offence to the custome wherefore should wee not then dispose the same from our wife and children by our deeds of gift This amounteth to as much as if a maried man would say I may commit felony or treason and be attainted and hanged therefore and then the Law giveth my wife no dower nor my heire no patrimony then why should I not in reason use my discretion with the Land without incumbrance by the one or injury to the other Match these two cases together with judgement and thou shalt perceive they have a sensible concurrency in their address and application to this purpose It is well said by the Poet. il juvat exemplum quod litem lite resolvit The example of one wilfull or wicked act giveth no just countenance or allowance to another Let so much said to thy objections take some place to alter thine humour or at least be a preparative for thine own reason in the fear of God to purge thee of the same But to conclude this short discourse with one consideration of great importance I wish thee to consider that this City of London is and hath been happily preserved in this flourishing prosperity by the wise and politick consent that all and alwayes the particulars have had to increase the generall good estate thereof thinking it their duty as they got and acquired their substance in this City so also to spend and defray it in the same insomuch that whatsoever falleth from the one commeth and groweth unto another and by alteration of private fortunes as chances and changes of times doe require from one Citizen to another the generall estate hath flourished and never wanted particular men of wealth and ability to sustain the offices and functions of the City Upon which consideration by most laudable and antient Custome the Lord Maior and Senate of London have been and are intitled to the tuition and custody of young Orphans and their goods and likewise are made acquainted by ordinary good means of inventaries taken and produced what substance and wealth each man dyeth possessed of to the intent that although that man which by his good travaile and Trade hath grown to be rich among them be departed hence yet his goods may remain as among his wife and children in use and property so to the generall strength of this City in account and reckoning For wee often see that one rich mans wealth passeth to the increase of the good estate of another Citizen either by mariage of the widow or of the Orphan so that the City though deprived of a member or inhabitant yet is not destitute of such as may discharge his employment and place Whereas if this pernicious practise and uncharitable liberty might take root by deeds of gifts and cautelous conveyance to strangers not onely the wife and children may be distressed but also the state of the City much weakened and in danger of a great disreputation and decay from that that it hath bin and yet is For if it be adjudged lawfull in one of what degree soever he be it is neither impossible nor unlikely that the same will be used by many and consequently may be practised by all which if it befall what will become of the happy condition of this City it is not hard to conjecture I mean not to extend my speech to the prejudice of any true debts that a man oweth without fraud or collusion seeing the custome very providently careth for the discharge thereof but my purpose is to disswade men from evill example from insolent violation of good customes and from odious and unseemly practises of deceit and evill meaning towards their wives and children Which perswasion I would wish all professors of the Law seriously and carefully to use and enforce to their clients being Citizens of London as in good conscience and discretion they ought to do Blame not my bold enterprise gentle Reader nor reprove my simple censure herein presented unto thee An Apostrophe to the Reader and the motive of this Treatise which might I know both for the matter manner of it have been by any other and perchance by my selfe more largely and effectually delivered if the opportunity of my leasure might have answered the quality of the argument which I had in hand But fearing lest I should with too long a discourse in so plain a proposition breed more lothsomness then liking I would not for want of leasure I might not and if I had had time at will I minded not seeing for any urgent occasion the error being yet fresh the practise rare and not grown to an enormity I needed not but in a word or two to make thee acquainted with the cause that moved me to addresse these few reasons to thy gentle view So it happened that I being in company and conference with some persons though otherwise wise wel-affected yet in this matter strangely conceited it chanced that the lawfulnesse and conveniency of this custome came in question and debate among us and was by some of them being men for sufficiency of great opinion and for countenance and credite of good apparance and regard in the City so pressed with objections that the most part of those which were present seemed to encline to that perswasion Wherefore lest the authority of the men might the sooner seduce the simple multitude unto their error and for that I thought it a charitable policy to prevent the perill in the prime before it grew to a festering sore or incurable evill according to the Poet Ovids advise Principiis obsta sero medicina paratur Cum mala per longas invaluere moras VVithstand at first the springing evill VVith medicines fit therefore Too late it is to take the cure Of old and festred sore I thought good to apply this simple Receipt of reason to the minds of all such as shall chance to be distempered be these disswasions hoping that they will yeeld me that friendly requitall of good construction which my offerred good will may seem to deserve and although I keep my selfe unnamed and unknown it may please them to have this opinion of me no more favourable then reasonable that he which is well devoted to the defence of good customes is rather to be justified in his good meaning then condemned or held suspected of any sinister conceipt The Table GOvernours Charge President Fol. 4 Treasurer ibid. Surveyors Fol. 6 Almoners Fol. 7 Scrutiners Fol. 9 Admonition to the Auditors Fol. 10 Orders for keeping the Evidences Fol. 11 The Renter Clerk and his Charge ib. The Hospitalers Office Fol. 17 The Stewards Office Fol. 19 The Matrons Office Fol. 20 The Sisters Office Fol. 22 The Chirurgians Fol. 23 The Porter Fol. 24 The Bedells Fol. 26 The Visitor of Newgate Fol. 27 FINIS