the meerbark outside and inconsiderable part of the Law and indeed non sunt Jura they are not Law The rule that we have in pleading that Parols font plea that is whatsoever the truth of his case is that is his case and that he must stand to as he hath pleaded and the other rule that a mans plea shall be taken most strongly against himself where it is doubtfull these seem to me very hard and unreasonable it is strange to conclude any man where there is a mistake in words from laying open the truth of his case this if any thing is to invegle the Court and make them give an unjust judgement and if they be informed of the mistake and yet judge according to that I doubt whether a rule of Law will another day be a good plea for them Besides if a man shall but truely reason this case he must needs judge it very unjust that a man should suffer through anothers default which is contrarie to the rule of Law for that saith Nemo debet puniri pro alieno delicto Now pray who is it that draws these pleas why the Clerk or Lawyer according to the information he receives from his Clyent can it then be agreeable to reason or conscience that the mispleadings or formal mistakes of these whom I intrust as being wholly ignorant thereof my self should prejudice me again is it not frequent for the most learned men of the Law to erre or at least to differ in judgement from the Judges and yet not to be blamed neither why then should I suffer for other mens faults or defects in judgement By divers Statutes made in the reign of H. 8. E. 6. Q. El. and King James it is provided that after issue tried after verdict after demurrer except where the matter of form is specially demurred to that the Judges do give judgement according to the right of the cause and matter in Law and no matter of form false Latin or variance c. to hinder it These are good laws so far as they have gon and I hope none that considers these will blame me for without doubt the same or the like considerations caused the making of them that justice or right might be advanced above all punctilioes or nice formalities And since those are defective in many things as common experience teacheth and the same reason that caused the making of them may and ought to perswade our great Parliament to a total extirpation of such immaterial nicities I doubt not in good time we shall have an Act made which will fully answer our desires therein which will be much for the good and ease of the people and no less beneficial to Lawyers The next thing that I shall treat of is Conveyances and therin propound this short question Whether the many sorts of tedious and long Conveyances now in use stand with reason and the good of the Common-wealth or not THere are many sorts of Conveyances in our Law and I doubt too many to be for the good of the people as Feoffements Fines Recoveries Bargains and Sales Covenants to stand seised to uses c. most of which are so swelled and inlarged with many unnecessary covenants and vain and idle repetitions and tautologies which together with advise and counsel are an intolerable charge and expence to the people So that he that purchaseth but a small thing as happily not being able to go further he had as good almost be without it and keep his money as under-go the great charge and trouble in the assuring of it I put a Feoffement in the first place as deserving the preheminence and prioritie of place being the most ancient and best conveyance O the innocencie of former ages when a Feoffement onely of some few lines was sufficient and served to convey over the greatest estates Yet I am not in this case to lay all the blame if any upon Lawyers for as the innocencie of those times required not so many covenants and assurances to oblige men to the performance and making good of their faith and engagements one to another So the wickedness and corruption of these latter ages are such that men must be tied and bound shackled and fettered like wild and untamed cattel so that it even puzzels Lawyers to find words enough to meet with the subtle devises and over-reaching policies of most men and all little enough to keep them within the bounds and limits of justice and honestie But to return to that I broke off from Cook upon Litt. fol. 9. saith that a Feoffement is the most ancient and necessary Conveyance Note that Reader both for that it is solemn and publick and therefore best remembered and proved and also for that it cleareth all Disseisins Abatements Intrusions and other wrongfull and defeasible estates where the entrie of the Feoffor is lawfull which neither Fine Recoverie nor Bargain and Sale by Deedindented and inrolled doth And that this kind of Assurance may find the better esteem and approbation I shall first inform you what it is then shew you the venerable Antiquitie of it Feoffement is derived of the ancient word Feâ—dum quia est donatio feodi because it is a giving of the Fee for the ancient writers of the Law called a Feoffement Donatio of the Verb do or dedi which is the aptest word of Feoffement And now you shall have the antiquity of it out of no other Author but Holy Writ for saith my Lord Cook that word Ephron used when he infeoffed Abraham saying I give thee the field of Machpelah over against Mamre and the Cave therein I give thee and all the trees in the field and the Borders round about all which were made sure unto Abraham for a possession in the presence of many witnesses Genesis cap. 23. vers. 11. And when the kins-man of Elimelech gave unto Boas the parcel of Land that was Elimelechs he took off his shooe and gave it unto Boas in the name of seisin of the Land after the manner in Israel in the presence and with the testimony of many witnesses Ruth cap. 4. ver. 7 8. Deut. 25. 9 10. Thus you have the antiquity likewise of a Feoffement now this being the best and most ancient conveyance I know no reason it should not be most in use Cook upon Litt. fol. 6. a. saith that there are eight formal or orderly parts of a deed of Feoffement as the premisses the habendum c. and yet he saith all those parts were contained in very few and significant words Haec fuit candida illius aetatis fides simplicitas quae pauculis lineis omnia fidei firmamenta posuerunt And a Feoffement is good without these formal parts fol. 7. a. for if a man by his deed gives Land to another and his Heirs without more saying this is good if he put his Seal to the deed deliver it and makes livery accordingly I have been the larger upon this conveyance by way of
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
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
making of this Stat. is apparent Estates now by force of that Stat. called intails were at the common Law Fee-simple conditional So that a man having such an Estate before this Stat. had power after issue had to alien and by that to barre the issue and likewise him in reversion and this is said by the Stat. expresly to be contrarie to the minds of the givers and contrary to the form expressed in the gift and this was the great mischief at the common Law Then comes this Stat. and provides against the said mischief that the Will of the donor shall be observed and that such donees in tail shall have no power to alien to barre their issues or him in reversion Now certainly the best way of Argument is upon the Law it self and that is pregnant and plain that the donee after this Stat. had no power to alien to barre his issue or him in reversion Now I beseech you to what end was this Stat. if notwithstanding a donee in tail might by a Recovery barre his issue and him in reversion certainly had any such thing been known then as a Recovery it would have been provided against as well as a fine or otherwise a man might well question the wisdom of the makers of the Law notwithstanding they have received so great an applause by our Sages of the Law The Law hates vain and unprofitable things and had Recoveries been known then and not provided against certainly no Law could be more vain and unprofitable But now to come to Marie Portingtons case in Cooks tenth Book where this case is largely debated there you shall find the Original of these common Recoveries There by those that argued against them 't is said that 't was not invented till 12. E. 4. Taltarum's case that such Recoveries should bind the Estate tail upon a pretence of a fained recompence To which it was said by the Court upon judgement given that judgement given against Tenant in tail with voucher and recompence in value shall bind the Estate tail notwithstanding the said Act of 13. E. 1. be the Recovery upon good Title or not and that the judgement given in such case for the Tenant in tail to have in value binds the Estate tail though that no recompence be had And this they say was Law in E. 3. time for which they cite these Books but here observe by the way that those Recoveries were not invented before that time as themselves do agree and of what validity such new invention can be against a Stat. expresly against any alienation in such case let any rational man judge but for the cases they have cited 15. E. 3. Tit. brief 324. by Recovery in value by Tenant in tail the Estate tail is barred and he shall have a Formdon of the Land so recovered in value with which agrees 42. E. 3. 53. and 44. E. 3. 21 22. Octavian Lumbards case Tenant in tail grants a rent charge to one who hath right to the Land in tail for a release it shall bind the issue 48. E. 3. 11. b. Jeffrey Benchers case recovery in value by Tenant in tail shall bind the tail and a Formdon lies of the Land recovered in value with which agrees 1. E. 4. fol. 5. 5. E. 4. 2. 6. For these Books thus cited that such recovery shall bind the issue in tail they are to be understood of a recovery upon good Title and of a real not a fained recompence for they all agree that a Form-don will lie of the Land recovered in value So that it cannot be intended of a fained and pretensed recompence I would fain know of any man whether ever he heard of any Action brought upon such recovery in value as recoveries are now used are they not become the common course and common way of conveyance for to barre Estates in tail and to cut off all remainders without any possibility or expectance of recompence in value and do not the Judges say before that it shall bind be it upon good Title or not and though that no recompence be had so that a pretensed recompence by them must carry away a clear Title and defeat the Stat. and the intention of the donor So that I do conceive notwithstanding those Books that such recoveries should bind the Estate tail upon a pretence of a fained recompence was not till 12. E. 4. Taltarums case And the case of Octavian Lumbard before cited agrees with this difference between a real and a fained recompence for I do agree that a recovery upon good Title and a real recompence will barre the Estate tail The case of Lumbard that a grant of a Rent by Tenant in tail to one that claims a right to the Land intailed shall barre the issue is without question good Law for this is to preserve the Estate tail and this is no fained but a real recompence not so in our case Besides suppose those Books should be intended as I conceive they cannot of a fained recompēce can any man say that any use or custom is good against a Stat. had such fained recoveries been in use at the time of the making of the Stat. of 13. E. 1. which no man doth or can say somewhat more might have been said for them but being invented after it cannot be with reason that they should be of force to frustrate yea and nul upon the matter the Stat. made before and certainly as I have said before the makers of that Law would have provided against this mischief as well as Fines had such recoveries been then in being for otherwise vain and fruitless was that Law as indeed it is at this day Again by those that argued against common recoveries in Marie Portingtons case it is said that such recoveries are by divers Acts of Parliament marked and branded with the blemish of fiction and falsity as in the Stat. of 34. H. 8. cap. 20. they are stiled fained and untrue recoveries and so in the Stat. of 11. H. 7. cap. 20. 32. H. 8. cap. 31. and 14. El. cap. 8. they are named covenous and had by collusion and therefore it stands with Law and reason to provide for the preservation of reversions and remainders against such fained and false and covenous recoveries To this objection and these Stat. this answer is given and first it is said that common recoveries is one of the main pillars which supports the Estates and inheritances in the State That is Reader they must unjustly because contrarie to the Stat. and the Form of the gift take away one mans inheritance and establish or settle it in another and this is called one of the main pillars of inheritances But to the Statutes for that of 34. H. 8. it is of gifts in tail by the King to his Servants and Subjects for to incourage others and their issues and therefore recoveries suffered by such Tenants in tail are well taxed by Parliament to be fained and untrue because they
did take away the intention of the King To which I answer that they are so termed by that Stat. not in relation onely to the defeating of the Kings intention but because they are so in themselves fained and untrue Besides are they so termed because the intention of the King was thereby defeated why where there is the same reason there ought to be the same Law and in this case is not the apparent intention of the donor in his gift defeated by such recovery contrary to the Stat. which saith that the will of the donor shall be observed But it is further said in that case that confirmat usum qui tollit abusum and that it was a barre in that case before that Act of 34. H. 8. made to the contrarie certainly if it were an abuse in the Kings case it is no other in a common persons and it were very happy if an Act were likewise made against them in our case that we might not have them known for the future For the Stat. of 11. H. 7. when a Woman advanced by the Husband with a competent joyncture in tail suffers a recovery to barre the issues this may well be said to be by covin. Now I beseech you weigh the cases in the ballance of reason and then judge whether they differ or no Is it not as much covenous for any Tenant in tail who takes such Estate to him and his issues to disherit his issues by such recovery contrarie to the said Stat. For the Stat. of 32. H. 8. and 34. El. of a common recovery against Tenant for life it may well be termed covenous and by collusion To this I shall say no more but this that certainly in our case there is as much of injustice covin and collusion by suffering such common recoveries as in any of the former Further it was said by those that argued against these recoveries That that opinion that a common recovery could not be restrained by condition or limitation was new and of late invention and never heard before Sir Anthony Mildmayes case 6. Rep. fol. 40. for it was admitted to be restrained in the case of the Earl of Arundell 17. El. Dyer fol. 342. 343. and in the argument of Scholasticas case 12. E. Com. 403. the said point of restraint of a common recovery was never moved here observe Reader another new invention that these recoveries cannot be restrained by any condition or limitation so that there must be such a power given to support these recoveries though against the Letter of the Stat. and the Will of the donor that no humane invention can prevent As to the Earl of Arundels case it is said that nothing is spoken to it by those who argued the case and so no Authority To this I say that certainly had the Law been conceived to be such that such recovery could not be restrained by condition it would have been then urged which rather concludes on this part As to Scholasticas case all that my Lord Cook sayeth is this he much respects the reporter and attributes due honour and reverence to the Judges but amicus Plato amicus Socrates sed magis amica veritas Though that it was not then thought on by the learned men of that time yet my Lord Cook will have it to be Law and prefers his opinion which he calls truth which truth so called appears to be onely a new invention before the contrarie supposed Law of that time And it is further said in Portingtons case that none ought to be heard to dispute against the legal pillars of common assurances of Lands and inheritances of the Subjects And it is likewise said that at a Parliament holden in the raign of Q. E. in Vernon and Herberts case debated before the Lords of Parliament Hoord Counsel with Vernon invaied against these recoveries who was then reproved by Dyer Ch. Just of the common pleas who said that he was not worthy to be of the profession of the Law who durst speak against common recoveries which were the sinewes of the assurances of inheritances and founded upon great reason and Authority sed non omnis capit hoc verbum By this you may easily judge what most supported this assurance for if Lawyers must be silenced it is no wonder if common recoveries pass for Law I know I shall not pass uncensured as I have said before Hoords case will be mine with advantage but it shall not at all disturb my rest for having truth of my side I care not who is against me and certainly that Councellor that is a Councellor of the Law deserves the sharpest reproof and since non omnis capit hoc verbum as is said before let me not be rebuked without reason and if any one can convince me in that I shall with all humility submit to his judgement Lastly it is said that D. 8. lib. 1. cap. 26. approves common recoveries to bind as well in conscience as in Law For my part I conceive that the better opinion there is against them and so I believe any man will judge that shall read the Chapter I shall faithfully recite the disputes and leave it to judgement and therein first the manner and practise of suffering such recoveries The Demandant shall suppose in his Writ and Declaration that the Tenant in tail hath no Entry but by such a stranger where neither the Demandant nor the said stranger never had possession of the Land whereupon the Tenant in tail shall appear and by assent of the parties shall vouch the common Vouchee whom he knoweth to have nothing to yield in value now Reader judge whether this be not a meer fiction of a recompence in value and the Vouchee shall appear and the Demandant shall declare against him whereupon he shall take day to imparle in the same Term and at the day by the assent of the parties he shall make default upon which because it is a default in despite of the Court the Demandant shall have judgement to recover against the Tenant in tail he over in value against the Vouchee And this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence for by presumption the Vouchee may purchase Lands Thus you have the practise of a common recovery which is nothing else but an invention to cut off intails which hath been the ruin of many a family But it is reasoned that although such recoveries in respect of the multitude of them be spared that they stand not with conscience fo◠by the Stat. of 13. E. 1. when the Ancestor is dead intailed Lands o◠right belong to the Heir for that he is Heir according to the gift If the◠thou be commanded not to covet 〈◊〉 Fortiori that thou do not withhold thy neighbours house c. And although it may be objected that tha◠which is ordained by the Law may be adnulled by the Law there is not here like Authority
for the one as for the other for the tail is created by Authority of Parliament the most High Court in the Realm and the disanulling thereof is by a covenous recovery upon false supposals here you have trueth clothed in plain Language Then as to another objection viz. Communis error facit jus that is to be understood that a custom used against the Law of Man in some Countrey shall be taken for a Law if the inhabitants be suffered so to continue it but these recoveries although they have been long used have alwayes been spoken against Reader observe that who ever thou art and then I am sure I cannot justly be blamed nor need I care to write against that which hath been always spoken against Also this custom could have no Lawfull beginning and an evil custom is to be abolished Also a prescription against a Stat. is void And it is also moved that in as much as there is no executed recompence that the Law hath been taken that the Heir in tail is not barred of his Formdon and although the Vouchee may purchase after the issue hath recontinued his own Land that herein is no inconvenience for that the issue shall be barred of the recompence in value in that he hath recontinued his own land again and so shall not have both I dare not go so far as to allow a Formdon for the issue in such case though enough hath been said to make that good too by reason of the many inconveniences that must of necessity fall thereupon but it were happy as I have said before if such covenous and fained recoveries were taken away by Act of Parliament But it may be objected that you would have Tenant in Fee-simple to have power to dispose two parts for the reasons and intents aforesaid and why may not Tenant in tail have the same power To which I give this short answer that it is agreeable with the nature of a Fee-simple to be alienable not so in case of an Estate tail for that is contrarie to the Form of the gift as the Stat. is expresly and there is no power given by that Stat. to the Donee in tail to dispose of the Estate in any case whatsoever and therefore he may not for the advancement of his relations or satisfaction of his debts defeat his issue or in default of issue those in the remainder by alienation contrarie to the Form of the gift and the intention of the donor And now I shall conclude this dispute with a rule or two in Law and first the Stat. said that the Will of the donor must be observed in his gift which stands with the reason and rule of the Law for Cujus est dare ejus est disponere a man must take the gift with those qualifications conditions or limitations that the donor is pleased to annex to it and cannot alter it if so what becomes of common recoveries or how in Law or reason can the donee in tail disherit his issues Note much less strangers in remainder as if land be given to A. in tail the remainder to B. in tail c. if A. suffers a recovery this not onely binds his issue but him in remainder likewise which is extream hard and unreasonable that the Law contrary to the rules of Law it self should allow a stranger to do an Act to my prejudice for the rule is that Res inter alios actae alteri nocere non debent other mens actions ought not to prejudiee a third person how then can that stand with this rule of Law that Tenant in tail should have powr to barre him in remainder by a recovery Another rule is Quod nostrum est sine facto vel defectu nostro amitti seu ad alium transferri non potest we cannot lose what is ours nor can it be given from us without our own Act or default how then can it stand with this rule that he in remainder should be barred by such recoverie as aforesaid I shall say no more but wait the Parliaments leasure and I doubt not but this will in due time be altered The next thing I am to treate of is concerning the imprisonment of mens persons for debt and in that I shall propose this short question 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 I Know this is a case in which many men have vented their judgements in publick and it hath not been without a solemn debate too in the Parliament so that there is the less for me to do and therefore I shall be but short in it What reasons induced the Parliament to continue this Law I know not nor is it for me to examine however I beseech you let it not be taken amiss that I offer my reasons in it and leave them to better judgements In the first place I shall examine what the old Law was and when and how this Law of imprisonment of persons for debt crept in for it hath not been always used in England and I may say in few other places of the World and where it is in use there is care taken that they do not perish in prisō for want of necessary sustenance but they and their families to be maintained out of their own Estates and if they have none the perverse and cruel Creditor is to maintain them out of his proper Estate and not to suffer them to perish for want of food as they do commonly in England The body of the Defendant was not lyable to execution for debt at Common Law for which see 13. H. 4. 1. But his Goods Chattels and Corn c. by Fieri facias or Levari facias within the year and by the Stat. of W. 2. by Scire facias after the year and by W. 2. cap. 18. an Elegit was given of the moyety of the Land which was the first Act which subjected Land to the execution of a judgement But the Common Law which is the preserver of the Common Peace of the Land abhorres all force as the capital Enemy to it and therefore against those who committed any force the Common Law subjected their bodies to imprisonment which is the highest execution by which they lose their Liberty till they had made an agreement with the party and Fine to the King And therefore it is a rule in Law that in all actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there the King shall have a Capias pro fine Then by the Stat. of Marlebridge 23. and W. 2. cap. 11. Capias was given in an account for at common Law the process in an account was distress infinite and after by the Stat. of 25. E. 3. cap. 7. the like proces was given in debt as in account for before this Stat. the body of
the Defendant was not liable to execution for the reason and cause aforesaid all which you shall find in my Lord Cooks 3. Book Sir William Harberts case Here you see the Original of the arresting of mens bodies and taking of them in execution for debt which was by force of those few but ruinous distructive words in 25. E. 3. like proces in debt as in account these few words have ruined many and almost numberless persons and Families who had they not been cloysterd up in Prisons might have lived to have got Estates and to have been able to discharge a good conscience in satisfaction of their debts and providing for their Families For the proces by way of Capias or attaching of the person for debt I know it will be said to me if you will have that course taken away what other will you provide convenient for gaining of our debts To this I answer that that which I conceive most convenient in reason and which hath been already proposed to the Parliament is by way of Summons as the Original in the common Pleas is and upon that if no appearance be to have liberty to proceed with all vigour and to have a judgement against the Defendant for not appearing as if he had appeared and judgement had been thereupon obtained against him Onely this I must observe that it is of necessity that the service of the Summons be sworn to as it is in case of a Subpoena in the Chancery before there be any further proceeding otherwise any man living may be abused and extreamly suffer by the seisure of his Estate upon execution he having had no notice by way of Summons of the said action And this great advantage to the Common-wealth there will be by the way of Summons that it will destroy all priviledged places for a Summons may be served where there durst not be an arrest So that then there will be no protection of men against their Creditours but that such as have Estates shall as in conscience they are bound pay their debts and not consume them in a corner under the guard of any priviledge The next thing after the proces and judgement that is to be considered of is what execution is most just and reasonable and most agreeable to conscience and the good of the Common-wealth in such case In this we must consider what the scope aim or end of the Law is in such execution and that is the satisfaction of the debt Then the next question is which is the most just and probable way to attain to this end whether the taking of the body or the Estate To this I answer that certainly the nearest best and most conscionable and rational way to attain to that end yea and most equal too is by seizing of the Estate The most equal it is certainly and our Law much delights in equalities for it is not equal justice that the body which is said in Law to be the highest execution and so without doubt it is and much more to be valued then all Worldly goods should be captivated and imprisoned for any Worldly pelf or ingagement whatsoever body for body and Estate for Estate is the most equal way of justice in the World And it is the most rational the readiest and best way for to get a satisfaction of the debt and it is that which must pay it at last if ever it be paid for this is but a slender satisfaction of the debt And this great inconvenience he lies under that takes the body in execution that he cannot after he hath determined his Election by this way of execution during his life take hold of his Estate too And heretofore it was a great question whether if the party died in execution it were not a satisfaction of the debt and though there were much variety of opinion in it yet certainly the best was that it was a satisfaction so that the plaintiffe could not resort afterwards to or take out execution upon the Estate and for my part I think it was the most just Law that he whom nothing but the body could satisfie should have no other satisfaction this occasioned the making of the Stat. of 21. of King James which provides remedy against the Estate notwithstanding the persons dying in execution But I say having thus determined his Election by taking the body in execution he is upon this great disadvantage that the debtors Estate is free and that which he would not take to satisfie his debt happens for the most part to be wasted and consumed in prison 'T is frequent that a wilfull creditor finds as stubborn a debtor and since nothing will satisfie him but the body he must take that for satisfaction so that it is apparently contrarie to reason and common policie 'T is likewise under correction the most conscionable way too and the contrarie which is the taking of the person the most unconscionable especially as it hath been practised in England for either the debtor hath an Estate or he hath none if he hath an Estate it is all the Justice in the World that that should be responsible for his debts if he hath none what can be more unconscionable or unjust than to keep his body in prison Lex non cogit ad impossibilia the Law requires not impossibilities at any mans hands why then should one man so exact upon another Besides this renders a man utterly uncapable of ever giving satisfactiō for by this he is wholly deprived of all possible means of discharging his ingagements Whereas had he his liberty he may through Gods blessing upon his honest indeavour gain sufficient not onely to satisfie his debts but to raise a fortune for his posteritie But this will not digest well with such whose principle is that if they have it not they will make dice of their bones a saying that hath been ever too common in this place that is they shall starve and perish in prison and whether this be not meer and pure malice in such men let all the World judge and if death shall thereupon follow as too too often God knows it doth I shall be bold to say that such a creditor is as absolute a murderer as if he had killed him with his own hand For what makes murder but malice prepensed to kill and what else can that man have in his thoughts who resolves his debtor shall rot and die in prison though he knows he hath not wherewithall to satisfie To such unmercifull pittiless cruel creditors yea and therein most cruel to themselves too had they grace to consider it I shall say no more but this that they cannot keep their poor creditors always in prison death will at the length take pitty of them bring a discharge and open the doors and let them out and there through their affliction working them to true and unfained repentance and amendment of life I doubt not ends their captivity but let these take heed
Feoffement because I would have men in love with it and certain I am it would be best for all men except Lawyers who I hope will be contented to abate something of their profit to serve the common interest best in point of security and in profit Onely add this to it that a Law be made that it shall be a barre as a Fine with Proclamations if it be inrolled five years pass with non-claim after the inrolment and then it will be a great ease and advantage to the publick But if it shall not be thought fit to alter the Law in point of conveyencing as it is now setled why then I shall humbly begge this one boon of the Parliament in behalf of the publick and that is that they would be pleased to make a Law that no Scrivener or other person whatsoever other then Lawyers shall for the future make or draw any conveyance or assurance in Law whatsoever which shall after happen to be sealed and delivered without the advice of Counsel thereupon had either before or after the assurance drawn and made under a good pain or penalty if they shall do the contrarie and this will be a means to prevent many contentious Suits which dayly arise upon scruples and questions out of such conveyances drawn according to their formal ignorance The next thing I shall dispute is the Law of Bastardy wherein I shall set down this short doubt 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 THis is a case in which the Common-Law differs from the Civil and Cannon-Laws the Common-Law saith that such a Child is a Bastard the other Laws that it is Legitimate I shall give you the reasons of both sides and then you may judge which is most reasonable This very case is debated by Fortescue cap. 39. The Civilians say that maritagium subsequens tollit peccatum precedens that is that by means thereof the State of Matrimony coming in place extinguisheth the former sin whereby else the Souls of two persons should have perished And it is to be presumed say they that they were at their first copulation so minded as the marriage after declareth The Canonists also say that Matrimonium subsequens legitimos facit quod sacerdotium Say we the sin by the inter-marriage is somewhat abated not purged or taken away besides this would be a great increase of that sin and an incouragement to it if such Children should be legitimate and the parties would be less penitent because so favoured And Fortescue being much for our Law in this point puts this case saith he If a woman should have two Children of two Fornicators the one marries her whether of these two children should be by this Marriage Legitimate For my part I do conceive under correction of better judgements that the Cannon and Civil Laws are most reasonable in this point though I do not conceive that the sin is purged or taken away by the inter-marriage for that cannot be otherwise than by true repentance for the sin committed for which this seems to me to be a great sign otherwise I doubt whether they would have married or no And I do conceive it ought to be intended that they resolved upon marriage before or otherwise it is not to be presumed that they would have married after men usually hate those women they have carnally known being pricked in conscience for the sin committed and therefore not likely to marry such unless there were some former tye or obligation upon them which mitigates the offence and makes them perform their ingagement and if it were not so who in such case would so marry knowing his issue to be Bastard by the common Law To that that is said that it would be an increase and incouragement to commit that sin if the Law should be so taken that the issue should in such case be legitimate To this I answer that I rather conceive the contrarie that it would very much lessen and abate the committing of that sin for it will make them the rather eschew it and take up resolutions of marriage for as I have said men seldom marrie that woman they have carnally known especially having issue before hand being the more frightened from it by this hard Law of Bastardy For that objection that if such issue should be legitimate the parties would be less penitent because so favoured To that I answer that certainly it would make them much more penitent when they shall live together in the state of Matrimonie and put them more in mind of their former offence which certainly they would less think of were they divided and I think a greater sign of penitence cannot be than the subsequent Matrimonie Besides by legitimating of such issue this great convenience would follow that it would much abate and take off the scandal and reproch of the World and incourage men in such case to Matrimonie whereas otherwise they usually add sin to sin one Bastard begets more so that once having under-gone the reproch and shame they never consider the sin but are more hardned in it For the case put by Fortescue of two Fornicators having got several Children by one Woman and the one after marrying her which shall be legitimate This I conceive may receive a very short answer for if the party that got the Child be known we may easily judge which shall be legitimate My Lord Cook upon Litt. saith fol. 244. that if the issue be born within a Moneth or a day after marriage between parties of full Lawfull age the Child is legitimate by which we may conclude that if it be born so short a time after marriage that it is legitimate for certainly the same reason for both Now I say this that if we may go so near Bastardy and yet be legitimate I know no reason that coming so near legitimation it should be a bastard and this in favour of legitimation But besides the sins are equal and therefore I know no reason but the punishment should be so too a day doth not aggravate the sin why then should a day bastardise the issue Cook upon Littleton fol. 245. Matrimonium subsequens legitimos facit quòad sacerdotium non quoad successionem propter consueâ—udinem regni quod se habet in contrarium And therefore at a Parliament holden 20. H. 3. for that to certifie upon the Kings Writ that the Son born before marriage is a Bastard was contra commanem formam Ecclesiae rogaverunt omnes Episcopi Magnates ut consentirent quod nati ante Matrimonium essent legitimi sicut illi qui nati sunt post Matrimonium quoad successionem haereditariam quia Ecclesia tales habet prolegitima Et omnes Comites Barones una voce responderant quod nolune leges Angliae mutare quae haec usque usitatâ—e sunt approbatae And I do confess that the
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
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
be allowed till the contrarie be preved but no longer and certainly if ever there were an unreasonable exception to any rule this may pass for one My Lord Cook saith that it hath been attempted in Parliament that a Statute might be made that no man should be barred by a collateral Warranty but where assets descend from the same Ancestor but it never took effect because saith he that it would weaken common assurances Rot. Parliament 50. E. 3. Num. 77. This is a reason urged in defence of common recoveries likewise the English of it is but this I may barre another man of his just and Lawfull right to fortifie a wrongfull title otherwise it would weaken common assurances I know no reason but mens rights should be as much favoured as common assurances an Heir as much as a purchasor To conclude I wish a second attempt were made in this present Parliament against these collateral Warranties and then I should not despair of redress of so unreasonable a Law The next thing I am to treat of is Pleadings and therein I shall propound this question Whether it be consonant to reason or conscience that any mans Plea should be adjudged nought and avoided at any time for any matter of form false Latine double Plea Departure or any other defect whatsoever the case and matter it self sufficiently appearing upon the Record for which the Action is brought FIrst that I may clear the question of some things doubtfull in it I have added to it at any time because in some cases and sometimes such defective Pleas are already helpt by Stat. as you will find after I shall not need to inform you what matter of Form is the word it self sufficiently speaks it Double Plea is when a man in pleading alledges several things the one not necessarily depending upon the other c. Departure is when a man goes from his former plea and pleads some new matter these will vitiate pleadings and put a man to a new action But to the case it self M. Littleton I remember saith that pleading is one of the most Honourable and profitable things in our Law and therefore advises his Son to bend his indeavour to the gaining of the knowledge of it I believe it indeed to be one of the most profitable things I mean to the Lawyer but the Common-wealth suffers in it For the matter of Honour I know not where it lies except it be in this that such a one is said to be a subtile Lawyer a pick-lock of the Law one who can discover a flaw or defect in any plea presently if it be to be found and this is the Honour I believe to be able to vex and trouble and undo people by various Suits if this be the Honour though I hope no man will therefore count me wholly ignorant of this knowledge because I speak against it let who will take it for me Cook upon Litt. fol. 303. 304. observes that many a good cause is dayly lost for want of orderly and good pleading the more the pittie And after he saith when I diligently consider the course of our Books of Years and Terms from the beginning of the Reign of E. 3. I observe that more jangling and questions grew upon the manner of pleading and exceptions to form then upon the matter it self and infinite causes lost or delayed for want of good pleading what a gross shame and most unconscionable thing is this that form should be insisted upon more than matter and the Clyent should lose his case or have it delayed for formalities The Clyent sues not at Law for to make cases or questions or to occasion scruples about nice formalities but to have Justice done according to the truth of his case and this is the end of all Law to put an end to controversies in doing right to the parties without delay or regarding any thing but the truth of the case it self Interest Reipublicae ut sit finis litium it very much concerns the Common-wealth that strifes be ended and not that one dispute or controversie should occasion another much less that contention should be about words the matter layed aside and the party depart not as he came but in a worse condition his money fruitlesly expended and his right if not lost suspended My Lord Cook saith again that it is worthy of observation and so indeed it is That in the Reigns of E. 2. E. 1. and upwards the pleadings were plain and sensible but nothing curious evermore having chief respect to matter not to forms of words I am sure we cannot say so of these latter times for I am confident they were never more nice and captious than of late Then he said that in the Reign of E. 3. pleadings grew to perfection both without lameness and curiousity And that in the time of H. 6. the Judges gave a quicker ear to exceptions to pleadings than either their predecessors did or the Judges in the Reign of E. 4. or since that time have done giving no way to nice exceptions so long as the substance of the matter were sufficiently shewed I attribute much of Honour and respect to my Lord Cook yet I shall crave that freedom to deliver what is truth and that is as I have said before that pleadings were never more curious and subtile than of late and never more nice exceptions given way to I shall not here meddle with the order of pleading as first to the Jurisdiction of the Court Secondly to the Person c. which must be observed in their due course or you lose the benefit of the former Nor yet with my Lord Cooks rules of pleading in his institutes in which he is very large I go not about to teach or inform you of the forms and subtleties of our pleas though they are worth the knowing yea and observing too so that the Clyent may not be prejudiced for want or defect of such forms For the double plea I cannot understand any just reason why it should not be allowed that reason which the Law gives is that the Court and Jury may be invegled by such pleas I have inquired exactly into this reason but cannot find how or which way and I do profess my self one of my Lord Cooks non-intelligents too for he said the Law in this point is by them that understand not the reason thereof misliked and I do acknowledge my self of their minds who say Nemo prohibetur pluribus defensionibus uti no man is prohibited to use several defences And so likewise for the departure I know no reason that any man should be barred or concluded from offering any other or new matter but that any man may at any time make the best of his own case certainly Judges ought to have principal regard to the truth of every mās case that that may be discovered thereby the better to inable them to give righteous and true judgement not to forms or words these are but apices Legis