Grantor and to the Issue in Tail the Land in Law had been the parties to whom it was conveyed and Cesty que use he for whom the use was had nothing but Equity to recover the Profits But now since Littleton wrote all possession is transferred to the use and the Law changed Plow Com. 349. 6. 27. By a Statute made 2 H. 5. all such Jurors as were to be returned for Tryal of Issues joyned in any the Courts at Westminster or before Justices of Assize 2 H. 5. c. 3. second Parliam 11 H. 7. c. 21. were to have 40 s. by the year in Lands and Tenements c. By the Statute of the 27 Eliz. it is enacted 27 El. c. 6. That such Jurors shall have 4 l. by the year at least and so it is to be expressed in the Venire facias which is an alteration since Littleton wrote 28. All those special pleadings discussed by occasion of Littletons Text 23 H 8. c. 5. 7 Jac. c. 5. 12 Act 23 Octob. 1650. 21 Jac. c. 14. l. 3. sect 485. are taken away by several Acts of Parliament And by the last Act of the 23 Octob. 1650. liberty is given in all cases to plead the general Issue which is a great ease in most cases although in a Replevin the Law is rather worse then it was as is shewed in its proper place 29. By several Statutes since Littleton wrote the times for commencing of real and possessory and personal Actions are limited 32 H. 8. c. 2. 21 Jac. c. 16. First by the Statute of the 32 H. 8. and afterwards by the Statute of 21 Jac. By which Statute it 's said the Kings Right is concluded as well as all other persons and barred after twenty years in all real Actions These are abridgements of the Law since Littletons time 27 H. 8. c. 4. 1 Ed. 6. c. 14. 30. All those Laws mentioned by Littleton concerning Free Chappels and Chantries and the cases thereupon depending are at an end by those Statutes since Littleton wrote 31. By several Statutes made since Littletons time the petty Errors in Pleadings 32 H. 8. c. 30. 18 El. c. 14. Mispleadings and Jeofailes are helped and amended in real mixt and personal Actions insomuch as where at Common Law every mistake of a Letter Word want of Warrant of Attorney or Misreturn of any Writ or any other petty inconsiderable Error or Mistake 21 Jac. c. 13. was sufficient to destroy any Action or to arrest or reverse Judgement Act 1652. Now no Error before Appearance nor any Error but what is matter of Substance and of the Essence of the Action can prejudice the Suit This is an amendment of the Common Law 32. The Law concerning ordinary Jurisdiction and Spiritual Law as they called it which is discussed by Littleton Littleton l. 3. sect 648. Lib. 3. Sect. 648. hath been since altered by the Statute of the 25 H. 8. which restraineth the Ecclesiastical Laws 25 H. 8. c. 19. that they be not repugnant to the Common Law nor the Statutes and Customes of the Realm and since the same Law concerning ordinary Jurisdiction and Ecclesiastical Laws are abolished with the Hierarchy of Bishops c. and their Courts 33. Since Littleton wrote there were two Statutes made to preserve Remainders and Reversions in Lands and Tenement expectant upon Estates for Life 32 H. 8. c. 31. which it seems by the Common Law might be barred by a Common Recovery or thereby the Entry of him in Reversion or Remainder taken away But by those Laws such Recoveries by Tenant for life are void and the Entry saved by the last Statute of the 14 Eliz. 14 El. c. 8. which is contrary to the Law in force when Littleton lived although the first Statute be Repealed by that last mentioned 34. The like Law was concerning Tenant in Dower Coke Com. Lit. l. 3. sect 697. 11 H. 7. c. 20. If she had aliened in Fee with Warranty and dyed that Warranty had bound the Heir But now if Tenant for Life or in Dower alien it is a forfeiture and the heir may enter This is a good amendment of the Common Law 35. If Tenant in Tail be in possession 26 H. 8. c. 13. 33 H. 8. c. 20. or that hath Right of Entry be attainted of High-Treason the Estate Tail is barred and the Land forfeited But this Attainder was no Barre at the Common Law nor when Littleton wrote 36. If Tenant in Tail levy a Fine with Proclamations 4 H. 7. c. 24. Coke Com. Lit. l. 3. sect 708. according to the Statute this a Barre to the Estate Tail but not to him in Reversion or Remainder if he maketh his Claim or pursueth his Action within five years after the Estate Tail spent But the Law was otherwise when Littleton wrote 37. When Littleton wrote if the Kings Donee in Tail the Remainder in the King had suffered a Common Recovery the Estate Tail had been barred but not the Reversion or Remainder in the King and if such Donee had levied a Fine with Proclamations 4 H. 7. c. 24. 34 H. 8. c. 20. Coke Com. Lit. l. 3. sect 708. after the Statute of the 4 H. 7. this had barred the Estate Tail although the Reversion were in the King But since by the Statute of the 34 H. 8. a Common Recovery had against the Tenant in Tail of the Kings Gift or such a Fine levied by him the Reversion continuing in the King is no Barre to the Estate Tail wherein the Law hath been changed since Littleton wrote 38. By several Statutes made since Littleton wrote the wife of a man attainted of Misprision of Treason 1 Ed. 6. c. 13. 5 Ed. 6. c. 11. 5 El. c. 1. 11. 18 El. c. 1. Murther or Felony is Dowable which was not so favoured at the Common Law 39. By the Statute of Westm 1. No Sheriff or Minister of the Kings was to take any thing for execution of his Office 23 H. 6. c. 10. 19 H 7. c. 8. 29 El. c. but what the King allowed to him and is was so by the Common Law But by Statutes afterwards of which two are since Littleton wrote Fees are allowed to be taken by such Officers 32 H. 8. c 32. 40. By the Common Law no Executor or Administrator of Tenants in Fee-simple or Fee-tail had any means to recover Arrerages of Rents and Services due in the life-time of such Tenant Now the Law is altered and such Executors and Administrators are by Statute enabled to sue for and recover the same 27 H. 8. c. 10. Coke Com. Lit. l. 3. c. 5. sect 384. 41. By the Statute of 27 H. 8. If a man seised in Fee-Covenant upon good Consideration to stand seised to himself for life and to the use of his eldest Son in Tail with the Remainder to his second Son in Tail with Remainders over c. and to
have his Body at Westminster at the day of the Return of the Writ without danger of death So if a Prisoner be bailed and a Bond given for Appearance if the Bond be â—uffiâ—ient the Sheriff will return That he hath taken the Body of the Defendant and hath it ready at the day and sometimes when the Defendant is Arrested and at liberty the Sheriff will return That he hath the Defendants body in Prison and that he languisheth when he goes abroad but is not minded to appear to answer the Suit The Common Barre and the story about Black-acre and White-acre and such things as are invented when men give to others colour of Title as an inducement to some other matter All which things are repugnant to Honesty and Simplicity The like may be said of Proceedings in Courts of Equity If a man sue for Lands to which he pretends an Equitable Right as a ground of Equity to make his Bill hold he usually alledgeth That the Plaintiff hath lost his Evidences That they are come to the Defendants hands That the Plaintiff can maintain no Action at Law for them because he knows not the Dates nor Contents of them nor whether they be in Boxes Bags or Chests and divers other such other false surmises when the Plaintiff hath the Evidences in his own Custody In a Biâ—l where a man sues to have an Agreement performed it 's usually alledged That the Witnesses to prove the Agreement are dead beyond the Seas or in remote places unknown or so impotent that they cannot be produced at any Tryal West Symb. 2 part Tit. Fines sec 112. Old Natura Brevium fo 20 and many such-like So likewise in a Commission to take the Cognizance of a Fine it 's alledged That the Cognizors are so impotent that they cannot travel to a Westminster without danger of death when they are in perfect health These and many more lyes and falshoods are made and entred of Record every Term which are clearly sinful and ought to be reformed Job 13.4 Acts 5.3 4. Coloss 3.9 Revel 21.27 22.15 Luke 19.8 16. The uncertainty of the Law for want of a standing Rule the Law it self being but meer Opinion is a matter of great prejudice and causeth an excessive charge many times to the Suitors The Judges being (l) Bodin Repub. l. 3. c. 5. p. 325. The Magistrate is a living or breathing Law There hath been a Judgement upon a Writ of Error in the Exchequer Chamber given by all the Judges That no Information will lie in any Court at Westminster but in the proper County before the Justices and yet such Informations are constantly brought and prosecuted every Term contrary to that Judgement grounded upon the Statute of 21 Jac. c. 4. called the Speaking Law very frequently differing in their Opinions and sometimes the same Judges when Lawyers have given that under their hands for Law which when they have come to be Judges upon second thoughts they have judged otherwise although such Judges have been known and reputed to be men of Integrity and clear Judgement And this uncertainty is not onely about the highest Apexes of the Law but in things of ordinary concernment As about Waste abundance of Money hath been spent to know what power is given to a Termer by these words To hold c. (m) Coke lib. 4. fol. 62 63. Herlackendens Case compared with Iewes Boles his Case Coke lib. 11. fol. 81 82 83. See the many Cases there cited without Impeachment of Waste whether he be onely discharged of unvoluntary Waste or whether the Termer may take down fixed Wainscot or such-like which he set up or whether he may not cut down Timber-Trees and pluck down houses and further whether he may not take all the Materials to his own use If I mistake not all these things have been judged Negatively and Affirmatively And the last Solemn Judgement was That in such a case a Termer might commit wilful Waste and take all the Materials to his own use which is Repugnant to all former Judgements and yet all the Judges are not now of the same Opinion in some of the Cases above-mentioned It were an easie matter to set down twenty such Cases where the Judges have been divided and in divers Cases where one Court hath agreed the other Judges upon a Writ of Error being the greater number in the Exchequer Chamber have reversed their Judgements The like uncertainty is found in every mans practice in (n) There are many Controversies concerning Actions upon the Case for words and many times words of high concernment are adjudged not to bear Action and for others of less concernment judgement hath been given Corn. Tacitus observes That the Romans Laws were swayed hither and thither by Might Ambition and Corruption and all was for want of a standing Rule Tacit. Annal. lib. 1. cap. 1. pag. 2. ordinary things as whether in an Indebitatus Assumpsit for Wares and Merchandize upon a Non assumpsit pleaded the Plaintiff shall not be put to prove That the Money demanded grew due for such things as are mentioned in the Declaration or whether he may give in Evidence That it grew due for Rent or other things not mentioned Whether upon a Lease by Paroll an Action upon the Case will lie for Arrears of Rent Whether a man to an Action of Trespass oâ— Assault Battery and Wounding may plead to the wounding Son assault Demesne Within Thirty years it was commonly held for Law That if a man strike me with a Stick I might not cut him with a Sword but now of late the common use is to justifie the whole Battery both Beating and Wounding If a man were minded he might fill a Book with such Uncertainties And this is that which caused King James to tell Wilson Histor Great Brit. p. 96. Sir Edward Coke That he had inserted into his Books many extravagant Opinions for good Law which were not Law and therefore commanded him To Review and Correct them and bring them to him to be perused And the same Judge is also charged That he could turn the Edge of the Law any way and strike with that weapon whom he pleased (p) That Law which like the Lesbian Rule is so pliant that it may be turned every way loseth the force of a Law and becomes like a Nose of Wax and so the Judge who is but the Minister of the Law becomes the Master of the Law Bodin lib. 6. cap. 6. pag. 760. answerable to what a Learned Chancellour said once upon the Bench Such a Lord Chancellor was of that Opinion and I am of this Opinion If there were nothing in the Law faulty besides this it were worthy to be perused and amended for the Judges being the Speaking Law the Law is nothing but thâ—ir (q) Cock Essay p. 111. Opinions contrary to that Truth which ought to be in all Laws But the Judicial Law of Moses shall never be found
defective Matthew 5.27 28 38 39. Daniel 7.25 Nehem. 9.13 14. Esth 1.19 Ezek. 20.24 25. Esth 3.8 17. The matter concerning special Verdicts is a business needless Every mans purse who hath a special verdict witnesseth this I have known two hunderd pounds spent to know whâ—n a lease should Commence which seems plain to every Ordinary Capacity but the wits of men made the matter doubtful uncertain Special vedict between Sowtham and Clerk in the upper-Bench now in the Common pleas Let all who have contractâ—d at these places say whether this be not true and if they deny it the Author will either by Instances prove the truth of it or put it out of the next Impression and acknowledge his offence and of unsuffâ—rabâ—e charge which might be prevented if the Judâ—e in his â—ircâ—it where he took the verdict would but report the matter in a few words to his fellows or if all the â—uâ—ges at the Bench would determine what the Law is when they hear the tryal for that their Judgment then would be as effectual as when it is given upon a special verdict for that if either party dislike the Judgment he may bring a Writ of Error as well in one case as in the other where a verdict is given by the Jury There are few of these verdicts if they be upon Titles but they cost an hundred marks one both sides Drawing Ingrossing Copying and Entring somtimes much more and generally serve for nothing but the oppressiâ—n of the people and inriching of some few Officers contrary to the directions of the Holy Scriptures Job 29.16 Amos 5.7 Isa 2.6 18. To these oppressions and evills in the practise of the Law I may well adde the practise of new Law at Drury-house Worcester-house Gurney-house and other places for sale and Contracts of Lands confiscated These Cloyster up themselves and usually a man may wait a week before he can have an anâ—wer and spend four times as much upon Door-keepers as the Fees o the order come to and he that hath the best skill to do his own business is enforced to entertain one of their Offiâ—ers to do it because another cannot be admitted The pâ—ssing of an assurance here costs three times as much as the passing of a Grant under the Great-Seal there you shall have a Clerk get more mony in three years then an honest man can uâ—uaâ—ly save in thirty years practise of the Law This Cloystering up themselves is against the Lauâ—able Customes of the Jews and other Nations recorded in the book of God whose Judges sate in the Gates and the same is the cause of much bribery extortion and oppression If they consulted ab ut State-affâ—irs it were fit they should be private but Matters of Contract and purchases and other things of that nature ought to be open and publique Job 31.21 Prov. 21.23 Esth 2.19 and 3.1 2. and 5.13 Dan. 2.4 Jer. 38.7 and 39.3 19. The constant practise of retaining Counsel or Advocates r This is so common that he is many times made to pay Costs that hath no Counsel as if he did it for delay Holt against Matthew in Chancery in all causes as it 's now used is (Å¿) Exod. 23.2 Deut. 27.19 11. a high provocation of Almighty God and without Gods great mercy a ruine to the Souls of the practisers These men for fees must stretch their Consciences and set Truth upon the Tenters or Imprison it in unrighteousness which is a marke of a Reprobate-minde in as much as there is not one cause of a thousand which is pleaded but one side or other endeavours to suppresse the truth and he that with an Impudent Face and the strength of his Wits being blinded with the gift cannot set a fair Colour upon a bad cause is accounted but a simple fellow and not to deserve his fee this is to call evil good and good evil and the practise like that of Tertullus his rayling against Paul and the fee or reward is no better then Balaam's wages of Iniquity and against all Scripture-practise The only remedy hereof is that the Lawyers or Advocates should be r sworne as Amici Curiae (t) At New England the parties in all causes speak themselves and if need be the Magistrates where the cause requires 〈◊〉 do the parts of Advocates withâ—uâ— fee or reward Lechford News pag. 28. or assistants to the Judges to endeavour to discover the truth without partiality and for this to have their reward from the State Acts 24.5 Exod. 23.2 Lam. 3.35 36. Num. 22.7 17. 2 Pet. 2.15 Judges 19.30 and 20.7 8. Rom. 1.18 We read in the Church-Historie that (u) Euseb l. 6. c. 21. Bassianus the Emperour Son of Severus having stain Geta his Brother would have had Papinianus a Lawyer to have pleaded his defence of that Fact before the people of Rome But the Lawyer Refused therein to be an Advocate for the Emperour saying Sin might more easily be commâ—tted then defended (w) Symson Church Histor life of Bassianus pag. 31. And for this worthy fact he suffered death but God suffered not this murder to go unpunished for this Bassianus was shortly after murdered by Macrinus his Successor in the Empire Let this Lawyer be an Example to all Lawyers lest he rise up in Judgment against them at the last day and Condemn them for being more blind and unjust then the heathen (x) Wall on 1 Corin. 2.2 Intit None but Christ The Romans allowed no mony or gift to pleaders Piso the Roman Praetor condemned this kinde of pleading calling it cruelly in Advocates Tacit Annal. lib. 2. cap. 8. pag. 43. l. 11. c. 1. p. 142. Plato esteemed these hyred Orators but as Calumniators and Sycophants hinc innocens ut nocens damnatur contra making the Guiltless Guilty and the Guilty Guiltless Cato refused to allow such pleading quia orationis facundiâ facilè possent aequa iniqua persuadere Because by Eloquence of words they could easily perswade to right or wrong Demosthenes boasted that he could change the Sentences of the Judges at his pleasure And Cicero was called Rex oratione sua omnia regens Playing Râ—x with his Oratory thereby ruled all things at his pleasure This is both an offence against God and a wrong to the people especially to the poorer sort 20. That Ridiculous or rather Profane form of Prayer used by the Clerk upon the arraignment of a Prisoner upon his Trial when the Prisoner being demanded whether he be Guilty or not Guilty answereth Not Guilty Then the Clerk to make up the Issue Replyes Cul. Prist That is Thou art Guilty and I am ready to prove it Then is the Issue joyned (y) Such forms in all cases are accounted as the Common Law and sometimes the proceedings are nought without such formalities the Common Law being chiefly old customes and nothing else besides the Judges opinions Now comes out that Common Prayer or Conjuration which
so far as to stir up any more wise and learned to take this matter in hand and shew us a more excellent way I have my reward And I do profess with him that wrote the History of the h 2 Mac. 15.39 Jews in the vacancy of the Prophets during the Government of Judas Macchabeus and his Fellows that if I have done well and as the matter requireth it is that I desired but if I have spoken slenderly and barely it is that I could Farewell The Contents of this Treatise Chap. 1. OF the supposed Excellency Certainty and Antiquity of the Laws of England and what is to be thought thereof in general Pag. 1. Chap. 2. That the Law of God contained in the holy Scriptures ought to be the Foundation of all Laws used or practised amongst Christians p. 4. Chap. 3. That the Law of England as it 's now in use and practise is a departing from the Law of God and a taking of a Law from Heathens and Idolaters p. 9 Chap. 4. That Magna Charta and Charta Forestae do not appear to be any Acts of Parliament although they be so called that therein was chiefly intended the advancement of the Romish Power in a Tyrannical Government p. 13 Chap. 5. That the Statutes of Marlbridge Westm 1. and the rest of the old Statutes said to be declaratory of the Common Law savour of the Power of Antichrist and contain in them manifold Impieties and Superstitions p. 17 Chap. 6. That divers of the old Statutes as well such as are said to be in affirmance of the Common Law as others Introductory of new Laws contain in them great Oppressions of the People p. 20 Chap. 7. That several Acts of Parliament made since Magna Charta having the force of New Laws contain in them many Idolatrous and Superstitious Rites and Customes against the Law of God p. 25 Chap. 8. That the Common Law hath been altered and changed since Edw. 4. his time when Littleton wrote in an hundred particulars most of them of great Importance p. 29 Chap. 9. That there ought not to be a Court of Law or Justice and another of Equity such as are now in England maintained or used in any Nation prosessing the Gospel p. 39 Chap. 10. That all such cases as chiefly require a remedy in a Court of Equity might easily be determined by the Judges of Law if the Law were amended as it ought to be And therein that which is usually said for the upholding of Courts of Equity is answered p. 46 Chap. 11. That the Theory of the Common Law and some of the Statutes now in force contain in them very many Impieties and other things repugnant to the Law of God p. 53 Chap. 12. That the practick part of the Law as it 's now in use is in many particulars sinful and repugnant to the Law of God and an oppression of the people p. 87 Chap. 13. That the general execution of the Law as it 's now seated and practised at Westminster is a common Oppression to the whole Nation p. 105 Chap. 14. That the Body of the Law is wanting and defective there being neither Common Law nor Statute Law for remedy in many cases nor any punishment considerable for sundry great Offences p. 114 Chap. 15. A digressive Discourse about the Preaching of the Gospel the Ordination and Appointment of Pastors and Teachers and of their Office and Maintenance p. 137 Chap. 16. A Corollary or Conclusion wherein the Laws of England are compared with the Laws of the Jews Graecians Romans and other Nations p. 144 A Postscript containing certain Positions founded upon the holy Scriptures serving for principal grounds of Laws amongst Christians Examen Legum Angliae OR The Laws of England Examined by Scripture Antiquity and Reason CHAP. I. Of the supposed Excellency and Antiquity of the Common Laws of England and what is to be thought thereof in general IT may well be accounted a matter of Admiration to the Vulgar and more Unlearned of the People of this Nation and the wiser sort may well stagger in their Judgements to consider what high Encomiums or rather Hyperbolical Elogies are given to the Laws of the Land generally by all the Practicers and Professors thereof And yet what abundance of Pains and Labour hath been taken in order to the Amendment and Reformation of the same without any considerable benefit or satisfaction to the People (a) Coke Preface to the 8th Report It is Hyperbolically yet confidently affirmed by one of the Chief Champions of the Law whose Reports go for Law generally without control That there is no Humane Law within the Circuit of the whole World (b) Note this Gradual Hyperbole by Infinite Degrees so apt and profitable for the honourable peaceable and prosperous Government of this Nation as the Common Law is which he endeavors to prove to be most just and ancient and saith That the same is contained in the old Statutes Magna Charta Charta Forestae Merton Marlebridge Westminster De Bigamis Glocester Westminster 2 Articuli super Chartas Articuli Cleri Statut ' Ebor ' and Praerogativa Regis 25 Edw. 3. and in the Original Writs in the Register and the Indictments of Judgments thereupon as the very Text it self And that all the subsequent Year-books and Records for four hundred years are but Commentaries and Expositions thereof And in another place the same Author speaking of Littleton's Book saith That (c) Coke Preface to his Com. upon Littleton Littleton is not onely the name of a Lawyer but of the Law it self Which Book he affirms to be the most absolute and perfect Work that ever was written in any Humane Science And afterwards reckons up (d) Coke Com. upon Littleton Lib. 1. pag. 11. Fifteen sorts of Laws which he saith are in force in England Concerning many of which it doth not appear that Littleton wrote any thing I will not say That these Testimonies are repugnant But this may well be said That if the Assâ—rtions be true considering also the huge multitude of Statutes now in force then is the Law such an Individuum vagum as no man living knows what it is in respect of the variance and alteration thereof from what it was in former times both before and since Edw. the 4th his Reign when Littleton wrote And hence it is that the Judges themselves who are said to be the speaking Law in many cases (e) See Brooks Abridgment Dyers Reports and other the Year-Bookes which in many cases conclude with Quaeres uncertainties are divided and Truth it self is oft-times set upon the Tenters for want of a standing Rule and because the Law lies meerly in Opinion without other Foundation which appears sufficiently every Term by the Arguments of the Judges and may be gathered by view of the many Quaere's affixed to the Reports of former and latter times And these Differences are not about Niceties or Trivial things
Rom. 13.7 Obj. 4. Legacies cannot be Sued for at Law and therefore of Necessity there needs a Court of Equity This ought to be amended that every one may have their due Ans This Case grows remediless partly by the dissolution of the Bishops or Ecclesiastical Courts as they are called and may easily be remedied if the Law were a little altered For what reason can be given that an Action of Debt may not as well lie for a Legacy as for any other Duty payable as Executor or Administrator It 's true that at the Common Law generally mens Personal Estates were at the mercy of the Bishops or Priests to dispose the same for the health and salvation of mens Souls as was pretended but now we are freed from that thraldome it were fit that every mans Estate should perform his Will according to the Executors Oath by paying Legacies as well as Debts in the second place as far as the Testators Estate will extend and that an Action of Debt lay for it as aforesaid for that if a man sue in Equity for a Legacy of Twenty pounds or under he shall spend it every peny in Suit if he have not a very easie Adversary Obj. 4. The greatest questions are about performances of (c) Neh. 5.11 12 13. 2 Cor. 8.11 12. All honest Agreements where the party is not deceived are to be performed being in our power Ames l. 5. de Consc Covenants and Agreements and of Trusts Concerning which it 's truly said of the first That for breach of Covenants or Agreements a man may in an Action of Covenant recover Damages for the Covenant broken but there is no meanes at Law to enforce any man to perform his Covenant and therefore there is need of a Court of Equity Ans This is a fault in the Law that a man can have no means to enforce one to perform his Covenant But this might easily be amended either by putting the Covenant in Issue upon a Traverse or by devising an Issue as is usually done by Order of the Chancery and if it be found that the Defendant Covenanted or Agreed under his Hand and Seal as the Plaintiff alledgeth Why might not the Judgement be That the Defendant shall perform his Agreement and pay Damages c. as well as in a Replevin that the Cattel shall be returned c. or in an Action of Debt that a man shall pay Money or render Corn or the like And touching Agreements made nnder mens Hands they amount but to (d) Josh 9.21 compared with 2 Sam. 21.1 5 Just promises are to be performed and the contrary punished by the Magistrate c. Promises upon which at Law the Plaintiff may recover Damages but there is neither Law nor Equity to enforce a man to perform such an Agreement which I conccive ought to be amended in the Law for that sometimes such Agreements are made upon as valuable Considerations and as solemnly as those which are put under mens Hands and Seals Obj. 5. And concerning Trusts especially concerning Lands and Tenements the Common Law can afford no help against such as refuse to perform the Trusts If a man be indebted but not upon Record as Statutes or Judgements c. or in consideration of Marriage conveyeth his Lands to some friends and their Heirs upon Trust and Confidence either exprâ—ssed or implied that the Trustees c. shall permit the Grantor and the Heirs of his body or his Wife or Children to take the Profits (e) It is true of Trusts as of Vses Fear Fraud were the Inventers of them Fear in time of Civil wars to save Inheritances from forfeiture Fraud to defeat lawful Actions due Debts c. Coke l. 1. sChudleys Case fol. 121. a b. The Judicial Law directs a remedy in case of trusts Exod. 22.10 11. The Trustees having a minde to chuse him that haply intended to cozen others refuse to let cesty que use the parties for whom they are trusted to take the profits c. The Grantor hath no remedy at Law but must sue in a Court of Equity Answ This is true as things now stand but this might and ought to be amended by putting cesty que trust into the condition of Cesty que use and let the possession be transferred to the trust and then the Grantor and his Heirs and Assignes may recover the possession and profits without the help of a Court of Equity And it might be wished that all such Trusts might be destroyed serving generally for little else but to deceive Creditors and Purchasers See a Case recited by Charles George Cock Essay p. 123. Object 6. The last and main thing upholding these Courts of Equity is That commonly Frauds and Deceipts can never be discovered nor Private Contracts proved but by the Defendants Oaths which are not elsewhere to be taken in such cases and this enforceth so many Bills of Discovery to be exhibited into those Courts every Term. Answ This Objection doth in it self in foro Conscientiae clearly overthrow the practice of these Courts For the very exacting this Oath is (f) Ames l. 4. de Consc c. 22. f. 222. This question about exacting Oaths against a mans self is handled and the Objections and the Scriptures answered which seem to countenance the samâ— See the Book called A Treatise of Oaths written by the Nonconformists p. 13 15 52 57. against the Law of Nature whose dictates are the same with those of the Law of God written from which are derived undenyable Maximes and Principles whereof this is one Nemo tenetur accusare seipsum This Maxime is agreed by all men and the Lawyers allow it The reason of it is although it need none to confirm it for it is also a Maxime Contra Negantem Principia non est disputandum because every man is nearest to himself and it 's against Nature for him to be a means of his own punishment a man ought to preserve himself although to the hurt of another it were better to kill another then to kill himself or to suffer himself to be killed if of necessity the one must needs be Therefore to exact this Inquisitory Oath against a mans ownself is against the Law of Nature and so against the Law of God This is the very same Oath which was brought into England by Pope Martin the fifth for extirpation of the followers of John Wickliff called Lollards about the Reign of King Hen. 4. and was taken up by the Ecclesiastical Courts as they were called I suppose long before it was used in any English Court and afterwards it was most famously used in the Star-Chamber and in the High-Commission called The Oath Ex Officio the Defendants being besides their answer examined upon Interrogatories as sometimes they are in other Courts And it 's reported which I had from good hands that one Mr. Fuller of Grays Inne having this Oath tendered to him as all Non-conformists had who came into the
reade This is likewise against the Law of God Numb 35.33 Lev. 24.21 Gen. 9.5 6. Rev. 13.10 (d) Bod. Rep. l. 4. c. 7. p. 542. To prevent Man-slaughter some wise States have prohibited the wearing of Weapons in time of Peace for that armed men are more insolent and ready to kill then other men disarmed 4. (e) Doct. St. c. 8. fol. 17. B. Fitz. Coro 404 415. Poult pax Reg. Regni Larceny f. 129. A. 18 Eliz. c. 4. The Romanes judged it a notable example of publike clemencie to spare life where other punishments are sufficient Tac. Annal. l. 14. c. 13. p. 215. That a mans life should be in danger for any Theft or trivial Felony above the value of Twelvepence is a Law against the Law of God who hath ordained Restitution and other Compensations as the Case shall be where things stollen are living or dead It 's a Rule without Exception given by the Learned That no humane Law can juâ—tly take away the life of a man for any offence without a general or particular warrant from God's Word because mans life is onely at God's disposing Willet Hex in Exod. 22.1 Qu. 3. Exod. 22.1 3 4. 2 Sam. 12.6 19. Luke 8. It may be observed That where the Laws are most severe against Stealing as amongst the Arabs there are most Thieves through the just judgement of Almighty God 5. (f) Poult pax Reg. Râ—gni Judgement Treason f. 244 6 El. Dyer 230 Cowel inter verb Treason Cowel Instit Jur. Angl. l. 4. Tit. 18. S. 8. p. 317. Anciently amongst the Romanes these facts were Treason 1. Betraying the Army 2. Stirring up the people to Rebellion 3. Bad managing the affairs of the Commonwealth 4. Impairing the Government and Majectie of the People of Rome Tacit. Annal. l. 1. c. 15. p. 29. The Judgement in Treason is a barbarous and inhumane Judgement viz. That the Offender shall be drawn upon an Hurdle to the place of Execution there to be hanged by the neck then cut down alive his Intrails and Privie Members cut from his body and burned in his sight then his head struck off and his body divided into four quarters c. This is an act of Cruelty and too much insulting over a poor fellow-creature in misery No such kinde of death was amongst the Jews Greeks or Romanes the nearest were those Torments devised by the Heathens for the Macchabees and those used in the first Ten Persecutions after Christs time which were devised rather by devils incarnate then men All such Cruelty is condemned Amos 1.3 4 5 11 12 13 14. Chap. 2.1 Jer. 6.23 Heb. 12.35 36 37. Jam. 2.13 6. (g) Magna Chart. cap. 1. Coke l 4. f. 46. a 9 Ed. 2. c. 16. 8 El. c. 4. 84 El. c. 5 Wingate Law c. 46. p. 85. n. 11 12. Cowel Inst l. 4. Ti. 18. sect 17. p. 325. The use of Clergie as it was at the Common Law is a great offence when he that could reade was not subject to be tryed for Murther and other great Offences but being claimed by the Ordinary for a Clerk should be taken from Judgement This is said to be the Priviledge of Holy Church viz. of Rome which is the exalting of the Romish Antichristian Power above the Law and Word of God who hath appointed Magistracy for the punishment of evil-doers without respect of persons in Judgement Rom. 13.4 All the Statutes made in affirmance or alteration of the Common Law in this Point of Clergie are unlawful as to save life in case of Manslaughter if the Offender can reade or to take away life for Theft above Twelve pence and in other cases where men ought not to suffer death Ezek. 13.19 Jam. 4.12 7. (h) Custom Norm tit Forfeitures f. 24. b. Exp. For. Laws a Manuse f. 40. Coke Entr. p. 1. tit Abjuration Stamf. Pl. Cor. l. 2. c. 39. f. 119 120. 35 El. c. 1. The Oath of Abjuration of such as took Sanctuary and then abjure the Realm the same used of late times to acquit Sorcerers and Conjurers and to punish such as offend against Forest-Laws This is a horrible prophanation of the holy Name of God and the abuse of an Oath which is a part of Gods solemn Worship Exod. 20.7 Heb. 6.16 Jer. 4.2 The Heathen Romans appointed Sanctuaries whither every lewd fellow escaping if he could but lay hold on Caesars Image he was free both from Debts and Punishments This was accounted a Grievance and condemned by the Heathen Historian Tacit. Annal. l. 3. c. p. 75. c. 13. p. 83. l. 4. c. 3. p. 94. c. 10. p. 104. 8. (i) Art Câ—â—â— 9 Edw. 2. 16. Chapters about these Superstitions See the books of Canons and of Consecrat of Priests Deacons Shepherds office of Church Ministers c. 8. n 2 3 4 5 6. Office Church-wardens c. 9. n. 1 2 3. Donus or Domus Bishop of Rome about the year 661. first divided the Romish Clergie into Ranges and Orders of Bishops Priests c. The whole Body of the Law called The Law of Holy Church and the Canon Law concerning Ecclesiastical Jurisdiction in Bishops Archbishops Archdeacons Deans Chancellors Commissaries Officials Suffragans Canons Spiritual Courts or Court-Christian Dispensations for Non-Residence Restraint of Marriage at certain times as Ember and Rogation-week Oath Ex Officio Compurgators Sanctuaries Penance Commutation of Penance Excommunications Absolutions Consecrations Prayers for the Dead Masses Dirges Pompous and Idolatrous Ceremonies and in conclusion the whole Body of Popery upheld and set forth in the old Statutes and Law-books which are said to be in affirmance of the Common Law and in other Statutes many of which are not Repealed All these are unlawful having no foundation in Gods Word and were the Inventions of men tending to corrupt the Worship of God Psal 19.7 8. Exod. 40.16 Isa 1.12 Mat. 15.6 Mar. 7.7 9 13. (k) Tac. Annal. l. 3. c. 7. p. 75. l. 3. c 15. p 86. Tit. Liv. l. 25. p. 5â—5 D. E. l. 43. p. 1163. f. l. 1. p. 32. G. l. 39. p. 1032. p. 357. a. l. 23. p. 495. a. Tacit. Histor l. 4. cap. 20. pag. 165. Many of these Superstitions wâ—re taken from the Heathen Romans onely called by other Names and used by the Papists as is proved in the particular places where these things are discussed 9. (l) Pault Pax Reg. Regni stand Mute fo 222. Westm 1. c. 12 Fitz. Cor. 233 283 359. Stams Pl. Cor. l. 2. f. 149 150. This Judgment is set down at large Cowel Instit l. 4. Tit. 18. sect 35. p. 334. The Judgement of Paine for t dure when a man charged with Felony or other Capital Crime either stands mute or refuseth to plead to an Issue to be tryed by a Jury it is That the party Indicted or Arraigned upon an Inquisition for his refusal to plead shall be laid upon his back with a Stone under it and
whereof Sr Edw. Cook accounts Hereticks these are likewise uncapable to make any will to be Executours or receive any legacy The best of the people of God in England are of this Religion holding the same faith with the followers of John Wickliff who were a busively called (e) White way to the true Church Sect. 50. pag. 393. Lollards By this we may see what lets but that the faithfull servants of God might be wasted and destroyed as in former times not our Laws but our Magistrates for whom we are to blesse God in the mean while this is a wicked and cruel Law both against Religion and Common right 1 Sam. 25.2 8 11. Rom. 13.7 Gen. 14.23 Numb 22.30 32. Rom. 13.7 59. Tenure in (f) Plow com Sharringtons Case f. 305. b. 7 8 Eliz. Littleton Fran. Almoig fol. 30 32. Wingat Law cap. 7. pa. 13. N. 18. free Almes when Lands are granted to men for to say prayers Masses and other Divine Services as Littleton calls them for the Souls of the Donors and for the Souls of their Fathers Children or Ancestors these grants usually were made to Monasteries and Hospitalls and also to Deanes and Chapters and to the parsons of Churches But this Tenure is Impious and Superstitious and yet the same is both favourably spoken of (g) Coke com Littleton l. 2. cap. 6. Sect. 134 135. A learned Civilian saith of such Tenants who hold in free Almes that pro donatoris suorum tam vivorum quam mortuorum Animis apud Deum orationibus Divinis Officiis Intercedant The King might and the Lord Protector may make such a grant at this time Westm 3. Cowel Inst l. 2. T. 2. S. 24. p. 125. Impr. 1630. and commended by the Lawyers in our Law-books since Queen Maryes time that Popery was abolished in some measure It ought to be taken away as Idolatrous and Superstitious the rather for that the mindes of men are too prone and ready to be led aside to such Superstitious Vanities and Will-worship repugnant to the Law of God Sir Edward Coke in countenance of such Superstitious Grants hath this passage Nuâ— quam res humanae prospere succedunt ubi Divinae negliguntur But this poysoned Divinity ought to be condemned and some Law provided against such Superstitions Isaiah 1.12 Rom. 14.23 10.8 Matth. 15.3 6. Coloss 2.8 60. That where Lands come to the Lord of the Fee by Attainder of a Traytor or Felon the King hath (h) Coke Comment Littleton Relief l. 3. sect 514. fol. 294. Wingate Law c. 19. p. 30. n. 13. Cowel Instit l. 4. Tit. 18. sect 10. pag. 319. Idem Index Expos Litera a u. l. 4. Tit. 18. sect 45. p. 341. Annum diem vastum The Law in this case is That the King shall utterly waste the Inheritance by plucking down Houses cutting down Trees Ploughing up Meadows c. and at Common Law such was the Judgement in an Attaint upon a false Verdict This is ridiculous Law and a prejudice to the Common-wealth contrary to that frugality which our Saviour enjoyned touching the very Fragments which remained after he had fed four thousand and five thousand persons with meat which cost nothing and yet he would have nothing lost or spoiled Joh. 6.10 11 12. Mar. 8.8 9. Mat. 15.37 38. 61. That there should be no (i) Littleton l. 3. c. 12. sect 691. Coke Com. Littleton Remitter fol. 362. b. Wingate Law c. 22. p. 33. n. 11. Cowel Instit Jur. Angl. Index Expos litera R. Recordum Averment against a Record is a hard Law and may at some times prove unjust considering what men of mean Credit less Conscience many times have the keeping of them It is necessary general Credit should be given to Records but yet where just causes of Suspition and Corruption may appear it 's necessary the validity of such Records be put to Tryal The contrary is a means to countenance Perjury and Forgery and therefore this Rule of Law would be Expounded and Amended for Preservation of Truth and Justice Isaiah 8.1 2. 2 Cor 13.1 Ezra 4.15 16. compared with Ezra 6.1 2 3. Exod. 23.7 62. That the Widow of the Kings Tenant of Lands to which the King is intitled by Office held of him in Chief before she could have her Dower assigned by a Writ de Dote assignanda should take her Oath in Chancery Not to (k) Wingate Law c. 38. p. 60. n. 4. n. 6. Marry without the Kings License This is an Unreasonable Law and was one of those Badges of Slavery attending Knight Service-Tenure which was brought in by William the Conqueror and is contrary to that Law of God which gives liberty to all persons to marry onely in the Lord at their own will and pleasure 1 Cor. 7.2 9 28 29. Gen. 2.24 1 Tim. 4.1 3. 63. The Heathen Romans ordained Sanctuaries and were a grievance to the State Tac. Annal. l. 3. c. 7. p. 75. The King might notwithstanding the Statute taking away Sanctuaries appoint any place to be (l) Wingate Law c. 48. p. 68. n. 48. c. 40. p. 70. n. 69. n. 70. a Sanctuary or Safeguard for any Offenders flying thither although they had committed Murther and such Offenders once getting to such a Sanctuary shall not be enforced to answer any Indictment or Accusation for the fact but may confess the fault to the Coroner and abjure the Realm This is an impious Priviledge and the Oath unlawful as hath been before said and ought to be altered for that all men ought to be punished for great Offences 1 Kings 20.42 Prov. 28.17 Numb 35.16 19 31. Rom. 13.4 (m) Symson Church-Hist Cen. 7. p. 364. These Sanctuaries were ordained by Pope Boniface the Fifth (n) Res Sacrae sunt quae rite per Pontifices Deo consecratae sunt veluti aedes sacrae dona quae administerium Dei dedicatae sunt ut Calices Cruces thuribula Item loca sacra sunt Ecclesiae Capello coemiteria c. Cowel Inst l. 2. Tit. 1. sect 8. p. 81. Impr. Anno 1630. and are still available if the Lord Protector please and in our Law things made Holy or Sacred are not to be violated 64. That an Utlawry should be (o) Wingate Law c. 46. p. 86. n. 21. Judgement in it self for Felony is a hard and unjust Law because a man may be Indicted and Utlawed and never hear of it It is a worse Law then the Heathen Romans had which was That no man was to be Condemned nor Judged until the Accuser and Accused came face to face and it is contrary to those Laws of God which require all persons accused to be judged upon the Testimony of Witnesses 2 Cor. 13.1 Acts 25.16 Numb 35.30 Deut. 17.6 7. Joh. 7.51 65. The like may be said of that Law where a man may be judged to be branded dismembred and his life in danger for a few unadvised or rash words
the entry accordingly of persons acting and things done but nothing really except the parties coming to the Bar to do they know not what This is meerly a device or fiction to deceive and scrue morny from the people the very fees come to almost four pounds besides the fine upon the Alienation which is according to the value of the Land taxed by the Commissioners if above 40 shillings by the year it may be from 6 shill 8 pence to 20 pounds lesse or more All which might be saved if all mens estates were made fee-simple and the Statute de Donis Conditionalibus replealed or that the making of a Feoffment which is done by livery or the Inrolment of a Deed might discontinue the intail and Bar the Remainders In the mean while this Common recovery in regard of the expence is an oppression and the formality or rather subject matter of it being nothing but lyes whether Jocosa officiosa or perniciosa is against the Law of God Col. 3.9 Levit. 19.11 Rev. 21.8 Rev. 22.15 2. That Errours in Judgments and proceedings in the Upper-bench the Action being brought by Original should not be heard and determined but before the (b) Wingat Law cap. 47. pag. 89. N. 10. King or Lord Protector and Lords in Parliament seems to be a hard Law and at best is a Tedious and expensive way and so an oppression to the people and against the Law of God Ezek. 18.8 1 Thes 4.6 Isai 33.15 Prov. 22.16 3. (c) Westm 2. c. 1. Stat. de Donis Condit 27 H. 8. c. 10. Statute of Vses Châ—dlyes Case Coke l. 1. fol. 121. Intails upon the heirs males of a mans body with remainders over to brothers and after to strangers of the name to the disinherising of ones own Daughter having no Son is sinful and against the Judgment of Almighty God immediately given in the case of Zelopheads Daughter declared with an emphatical addition That this shall be a Law of Judgment c. That if a man have no Son his inheritance shall go to his Daughter There is a Custome in Ireland that all Lands which have not come to the Kings hands by surrender escheate Attainder or forfeiture The eldest Son of the house shall enjoy the same during his Life and then the second and third if there be so many Brothers before the heir in Lineal descent This is called the Custome of Tanestrie and the same grew by reason of their Civill warrs not only the greatest against the greatest but even every Baron and Gentleman one against another Therefore they left their Successors of Age to defend their territories Davis Report case Tanest Ra. Histor lib. 2. cap. 4. S. 15. And the same is a Law of Common equity not one of those Judicials which only did binde the Jews in their own Land but dictated to every man by the Law of nature which teacheth that a mans own child being part of himself is more dear and near to him then a stranger and hitherto is that to be referred He that provides not for his own and those of his own House first his own Wife then his own Children and then his Servants as the rest of the househould such a one hath denyed the faith and is worse then an Infidel Then are many of the Nobility and Gentry worse then Infidels whose inheritances upon such an Atheistical or Heathenish opinion as the builders of Babel had to get them a name least they should be scattered are turned from their Daughters to strangers and little or nothing left for them upon consideration of which a wise and Religious Judge once said I would surely make such mine heir whom God makes mine heir the contrary practise is against the Law of God and nature Numb 27.7 8. 1 Tim. 5.8 4. In a Replevin no man living knoweth what is the general issue to be pleaded by vertue of the last Statute and in some cases there can be no (d) This is agreed by the Protonotaries of the Common-Pleas and the practise is accordingly Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 1. fol. 14. Judgment to have the Cattle returned and when such Judgment hath been given and the Cattle taken upon a reâ—urn habend he that took them and obtained the Judâ—ment can neither use them as his own nor sell them nor can the former owner have them again but either the Taker muâ—â— keep them at his own charge until the owner will redeem them or they must dye in the Pynfold and then the Avowant who first distreyned may distrayn again and go to suite afresh and so be put to a circuit of Action which the Law in other cases doth disallow This is a foolish and ridiculous Law and against Common right and so against the Law of God every one ought to have recompence in his suite where the Law passeth for him Lam. 3.36 59. Amos 5.24 1 Kings 10.9 Isai 59.14 5. The practise in real and mixt actions occasioning (e) Stat. 51. H. 3. concern dayâ—s in Real Act. and Stat. 51. H. 3. concerning dayes in Dower many Delayes by Essoynes Adjournments Veiw Counterpleading Colour and Dilatory pleas is a great oppression by reason of the delay and unreasonable expence besides the nicety and thereby uncertainty in the proceedings where by mistake of a word syllable or dash with a pen or coming to adjourn an hour too late the Cause may be lost this is an oppression and a meer Trap to catch men and an occasion of much injustice for who will yield to any man his right where he hath hope to foile his adversary by any such trick or weary him at Law Job 22.10 Luke 18.4 Isai 59.14 6. Trials by Nisi prius in personal Actions begun in the Courts at Westm where the plaintiffe to have amends for a trespass or battery for which five shilling would satisfie him This is Common in evâ—ry mans Practise and needs no Proof must spend before he can have Judgment neer eight pounds and the Defendent about half as much although to his ruine and he must pay the plaintiffs charges and damages which is all in nature of Damages or lye in Gaol this is a grievous Law and not to be suffered but rather such Courts of Record are to be Cherished where a cause may be tryed for 30 or 40 shillings this were more for ease of the people and more agreeable to the Law of God 1 Sam. 12.4 Isai 58.6 Isai 5.7 and 33.15 Zeph. 3.1 7. The like and much more may be said concerning tryalls at the Bar Common Experience shews this to be liue which cannot be tryed if the Jurors come but two dayes Journy under an hundred marks and commonly there is much more spent This is a horrible oppression and such courses make poor men affraid to sue for their right and great men to Trample upon the poor the same is a crying offence against God Psal 73.8 Ezek. 18.8 1 Thes 4.6 Prov. 22.16 Isai 33.15
Law of the 12 Tables is said to be the end of Law and Equity Tac. 1. Annal. l 3 c. 5. p. 71. Nature holds forth but one Light to men and God gives but one Law to Christians This is the end of Magistracy The Execution of Justice which in their hands whether Supreme or Subordinate is that Vertue which is commonly called Distributive Justice and comprehends in it (c) Equity is the Law of Nature to which all men are bound That is honest which is agreeable to the Equity of Nature Bod. Rep. l. 1. p. â—05 Equity and the same likewise is called Righteousness Now that Justice and Equity are the same thing there is nothing more clear as Aequum Justum are Termini convertibilés so are Justice and Equity (d) Weems M. L. Com. 8. Exerc 8. p. 225 230. Godw. Antiq. Rom. l. 3. sect 4. c. 1. Isa 59.13 14 15 Prov. 17.26 And these are indifferently taken one for the other in the Holy Scriptures Isa 59.14 Justice standeth afar off and Equity cannot enter By these two words is elegantly set forth the Injustice of the Magistrates who had to do in execution of Justice and Judgement as is there expressed The same appears in that place of the Proverbs To punish the just is not good nor to strike Princes for Equity It is an evil and wicked thing to punish men for doing that which is just or to abuse Magistrates for executing Justice Coloss 4.1 Col. 4.1 Masters give unto your Servants that which is just and equal The two words there used are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are indifferently taken one for the other and either of them signifie just or equal Phil. 1.7 Phil. 1.7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montanus translates it Sicut est justum (e) Pasor Lex p. 187. a. 2 Cor. 8.14 Pasor in his Lexicon renders it Prout aequitas postulat 2 Cor. 8.14 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this is Englished That there may be equality The same word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is translated by the (f) Pasor Lex p. 343. a. Learned Aequalitas aequitas justitia and so it 's indifferently used for either Equity or Justce which are the same thing being referred to the act of the Magistrate in distribution of Law or Right (g) Psal 98.9 1 John 3.7 And Almighty God is said to Judge the World with Righteousness and the People with Equity The like appeareth in many other Texts of Scripture And in the same sense these words Justice and Equity are indifferently used by Profane Authors to signifie the same thing and they are onely distinguished thus (h) Franc. Sylvii Com. Orat. Cicero pro Murena Tom. 1. p. 771. Aequitas est ratio Legis Jus vero sententia ipsa so that Equity and Right are not administred as several things (i) The Law without Equity is as the Body without the Soul The least Judges have power to judge and give sentence according to the equity of the cause Bodin Repub. l. 6. c. 6. p 763 764. but the one is in the minde of the Judge the other more perspicuous and both made up the act of Justice And the same Author chargeth it as a fault that Usu saepè venit ut inter se pugnent Juus Aequitas In this sense the Lawyers themselves have used Lex for Jus and Aequitas or the one for the other (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Finch c. 1. f. 1. Consuet Norm tit de Jure fo 125. tit de Justit cod Cust Norm tit Justice pag. 7. B. Arist Eth. l. 5. c. 41. Lex dicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à distribuendo que ceo distribute droit a Chesc ' Because it gives Right to every one The very same words are used in opposition of that Law of the Romans called Lex (l) Eubul Din. Scho. in Orat. Cicer. de Lege Agraria tom 1. p. 710. This Law was for Division of Lands amongst the poor Commons being sound in the possession of private persons Tit. Liv. l. 2. p. 71. c. Agraria where the Commmentator in his Scholia's upon Cicero's Oration against that Law saith Lex suum cuique tribuit and thence reasons and concludes Logically thus Maj. The Law gives to every one Right Min. This Law doth not give to every one Right Concl. Ergo haec Lex Justitia non est Let our Law and Equity be laid to this Rule and see how any man living can defend both A poor man for Example is bounden in a Bond of Twenty pounds conditioned for payment of Ten pounds with Interest which Bond is forfeited because the Money was not paid at the day although it was paid two or three years after and nothing unpaid but Interest The Creditor puts this Bond in Suit it may be either out of meer covetousness or to hook in some other pretended Debt or Duty The Defendant pleads Condition performed or upon the general Issue gives in Evidence the payment of the Principal three years after the day limited in the Condition The Judge in such case must give direction for Law That the Jury must finde for the Plaintiff for that the Defendant (m) Justitia legalis stricte sumpta quatenus opponitur aequitati est iniquitas c. Amesii l. 5. de Conscientâ—â c. 2. p. 269. Finis Legis est Justitia Coed Rhod. l. 13. c. 19. p. 697. must have his Remedy in Equity and accordingly a Verdict is given for the Plaintiff And the Defendant preferreth his Bill into the Chancery and therein alledgeth all that is true and somewhat more to make his Bill hold and if the Plaintiff at Law get Judgement entred before the Bill come in which may be had the first week in the next Term after the Tryal there is an end of the Suit the poor man hath had Justice Summum Jus that is the extremity of the Law which is Summa Injuria and his Adversary hath Execution against him for the Twenty pounds Penalty and Eight pounds for Costs which is given in nature of damages This he Defendant must pay or lie in Goal and the Law as it is Justice in conceit cannot relieve him Well the poor man hath it may be got a Reprive upon preferring his Bill the Plaintiff at Law is either in Contempt or prayes a Dedimus Potestatem to answer in the Countrey or it may be in his Answer confesseth part of the Money paid or else that the Bond is ancient Hereupon the Complaint in Chancery obtaineth an Injunction and in short goes to Commission and brings the Cause to Hearing and hath a Decree That the Plaintiff paying the Interest which may be some thirty shillings and Costs which may be five Marks besides the aforesaid Eight pounds the Defendant who was Plaintiff at Law shall acknowledge satisfaction of the Judgement and deliver up the Bond. The Decree is inrolled and the Defendant served with a
Writ of Execution of it and obeys it and this is the best that can be expected And then the parties fall to cast up their Accompts and it 's found That the Plaintiff at Law spent Eight pounds and the Defendant four pounds The Plaintiff in Chancery spent Twenty pounds and the Defendant Twenty Marks Lay all this together and in conclusion the Debtor hath spent 24 l. and paid 11 l. 6 s. 8 d. and the Creditor hath spent 21 l. 6 s. 8 d. and received for his Debt and Costs 11 l. 6 s. 8 d. So the Creditor loseth his Debt and Ten pounds out of his purse and the Debtor hath spent and paid 35 l. 6 s. 8 d. where the first Debt was but Ten pounds and the Remainder was but thirty shillings O famous Law and Equity I could shew many of these Cases And indeed this hath been the common practice with most Judges to send men to Equity and they ought to do so whilest the Law stands as it doth Now apply this to the Rule and Argument above-mentioned The Law could not relieve the Debtor but Equity doth relieve him Which of these two hath done him Right The Law did him none for if it had done him Right then the Chancery ought not to have done the contrary which it hath done for to charge a man and to discharge him are clean contrary And the Chancery hath not relieved him for in effect he hath paid and spent more then treble the principal Debt and Interest So upon the point he is relieved no-where And yet every man will say He is no just man who refuseth to deliver up a Bond when it 's fully paid How doth this Law put all together give every man Right and if it do not then is it an unjust Law I do confidently affirm That no Nation professing the Gospel ought to have or maintain any Law so severe or rigid that it needs any Court of Equity to moderate it If it were needful or convenient in any case to have relief in Equity it must needs be in case of Life and Death which is a business of higher Concernment then a little Money and more favoured in Law But no man ever heard of a Bill preferred into any Court of Equity to save one from the Gallows and therefore it is to be presumed there is no need of any such Court if the Law were Just and Equal But because it may be every man will not be satisfied that in the Case above-mentioned there was a direct Repugnancy in the Judgements of these two Courts because The Chancery did give relief in Tanto though not in Toto I 'll onely put one short Case more to put the matter out of question A man indebted upon a single Bill payes the Money upon the day in the Bill appointed and hath Witness of the payment but the Bill cannot be found This Bill comes after to be put in Suit the Defendant cannot be admitted to plead payment at the day nor hath he any other Plea sufficient in Law to discharge himself nor can be relieved at Law unless he have a Release although he prove the Debt paid but Judgement must needs pass against him either by Default or Confession or upon a Verdict after Issue joyned upon some false Plea which the Defendant thinks most easie and after which he shall have most colour of Equity Well Judgement is passed and the Defendant must expect Execution without relief at Law But for fear of the worst the Defendant hath before Judgement his Bill preferred into the Chancery to which the Defendant Plaintiff at Law answereth and the Cause comes to hearing where it appears the Debt to be paid thereupon the Court decrees the Bill to be delivered up Here is a just Contradiction and diametrical Opposition The Law condemns the Debtor or at least will not relieve him and the Chancery doth discharge him of the debt and so relieves him Upon this consideration some honest Judges of late dayes have used in some Cases to order the Plaintiff upon the Defendants payment of the principal Debt with Interest and Costs or what shall appear to be unpaid to deliver up the Specialty and discontinue the Suit or stay the same This is a short and equal way which is Justice and no more to give every one his Right according to that of the wise Heathen (n) Plutarch in Laco Apoph Stob. ser 7. Ex Agesil Nihil praeter aequum faciendum esse c. Justitiam semper oportet esse Clementiam temperatam Yet this is contrary to the Law and no Record is made of any such Judgement But other Judges have usually said in such Cases The Defendant must seek relief in Equity they must do Justice that is shew Extremity These two Courts can no more consist with Justice then two Weights or Measures of different bigness or length I use this familiar Comparison because it pleaseth the Holy Ghost to make use thereof to this very purpose Prov. 20.10 Prov. 20.10 Diverse weights and diverse measures are both alike abomination to the Lord. These words Diverse weights and diverse measures (o) D. J. Burgis in hunc loc word for word out of the Original are a stone and a stone that is different Weights and Measures of several sizes one bigger another less and this is expounded by that in Deut. 25.13 14. Deut. 25.13 14. Thou shalt not have in thy bagge diverse Weights a great and a small Thou shalt not have in thy house diverse Measures a great and a small These words by a Synecdoche speciei Note The difference between L. Chancellor Egerton and L. Chief Justice Coke about the Power of the Chancery after a Judgement at Law Wilson Hist Great Britain pag. 95. Bodinus the learned Civilian observes That Contention between great Magistrates or Courts about their Power or Jurisdiction is always hurtful to the poor Subjects Bodin Repub. l. 3. c. 6. p. 356. forbid all unjust and unequal dealing and commerce amongst men and all Injustice and Iniquity and the instruments tools and means thereof and implicitely the same Law commands all Justice and Equity and directly forbids two Courts having contrary Powers and Jurisdictions and executing things Repugnant and contrary one to another If the one proceed justly the other must needs be unjust Neither do the Scriptures any-where mention Justice and Equity as two several things to be distributed in one Case as if that might be done by the one which might not be done by the other nor that ever any good Judges gave any such Judgments but rather when they are said to do Justice it 's intended That they did justly and equally It 's true that the (p) Exod. 21.1 Judicial Laws are called Judgements and the execution of the Moral Law is called Justice And so (q) 2 Sam. 8.15 David is said to execute Judgement and Justice that is to judge justly and righteously both in respect