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
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
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
a number as might be such a Survey might do well in the Courts in these dayes to the end that the trivial frivilous and vexatious Suites being spewed out as (p) Lord Bâ—kon Essayes the surfets of all Courts such as were of good use and concernment might have time to be determined (q) Sueton. Tranq in vita Claudii Nâ—ronis sect 17. It was a Law amongst the Romans that no Clark or Notary who was to draw or write any other mans Will should put down any Legacy for himself Also that impleading and deciding of controversies all those causes which aforetime were debated before the Masters of the Exchequer or Citie Chamber should be removed into the Common-Hall there to be tried and that appeals from the Judges should be made onely to the Senate (r) Bodin Republ. l. 4. c 6. p. 500. 502. The Historian commendeth this practise Sueton. Tranq in vita Augusti Caesaris sect 33. Idem in vita Tiberii sect 31. 33. Augustus Caesar used to sit daily in Judgement to hear Causes in the Tribunal or if he had not health then in his own house (Å¿) Idem in vita Flavii Domitiani sect 8. Flavius Domitianus used also to sit in Judgement upon the Tribunal and many times reversed such Judgements as were given for favour or obtained by flattery he warned the Judges not to give ear to perswasions and Rhetorical assertions and such Judges as were faulty he used to tax publickly and he was so carefull to chastize the Magistrates that the Historian saith they were never more temperate and just in their places than in his dayes (t) Bodin ut supra p. 415. Romulus left the ordinary Administration of Justice to the Judges but reserved the greatest matters to his own Judgement (u) Godw. Aâ—â—i Rom. l. 3. Sâ—ct 4. c. 6. The Romans had a Law that no Senator should use any Trade but those were utterly forbidden the use of trading for fear it should breed favour or corruption And another Law of the Romans was (x) Idem l. 3. Sect. 4. c. 17. Ex Cicerone de Senectuâ—e that no Advocate or Oratour should receive any gift or reward from his Client for pleading his Cause for that they were paid by the Common-wealth which was a very (y) Cook Essai pag. 185. indifferent way for all people Cock Essay pag. 185. (z) Rous Att. Ant. l. 3. c. 1. pag. 110. and pag. 111. 112. The Graecians proceedings in their Courts was like to the Romans and if the Defendant did not appear upon the Summons he was taken by default and if he would have any ease against the Judgement he must bring the Cause on to hearing against himself within six weeks or else the first Judgement to stand That Defendant which had not five of the Judges voyces for him was to be fined and the Plaintiffe that made not good his charge was to pay costs And if the Cause were Criminal before the Suit was allowed to proceed the Prosecutor took his Oath that his accusation should be just Cook English Law p. 103. To conculde good Laws are more securitie to the people than good Magistrates our Laws have sufficient in them to bring in the whole body of Popery except the Popes supremacy and to destroy all the faithfull people of the Land and therefore it 's to be wished that the Laws were (a) Lâ—chfords Newâ— pa. 26. In the great Câ—uâ—t at new England held twice in â—he yâ—ar like our Assizes the Matters of the Charge to be inquired of are reduced by the Governour who gives the Charge under the Heads of the Decalogue made agreeable to the Laws of God and then if the proceeding and execution of them were either like the Jews the Graecians or the Romans and that all ordinary matters might be decited and determined in the proper Counties it would be found I doubt not a great blessing and happinesse to the people And I cannot imagine what can be said against this but that which is called reason of State the very name whereof an honest Pope abhorred This (b) Grotius Pol. Max. par 1. c. 4. p. 31. 32. as one saith was anciently the same with Equitie but as now it s used in the world is nothing else but a device that carries the face of equitie supposing it Lawfull not onely to transgesse the Laws of men (c) Bodin Republ l. 1. pag. 104. accounts this a thing most absurd The three Temples belonged to the Templâ—rs untill Ed. 2. his time and thence to the Hospitallers untill the desolution in the time of H. 8. but even the Laws of God for Politicke ends And since Machiavel plaid Achitophel this for shame is called reason of good government 1. This policie will tell us that thee hange of the Laws the practice thereof will dishonour and demolish the most famous Universitie in all the world for our kinde of learning the Inns of Court and of Chancery 2. It will Eclipse the glory of Westminster and a great part of London whose inhabitants live by lodging and victualling 3. That tediousnesse of Law-suits and the great expences thereof are to be tolerated as a necessary evil or punishment which serves to keep men quiet and deterre them from many unnecessary Suites which otherwise would be commenced but that they fear the remedie may be worse than the disease 4. That the Law is a (d) Tyrants use to imploy their Tributaries in wars abroad or idle and needlesse Trophies that they might want leasure to think of other things Jun. Brut. Vind. Conâ—râ— Tyran p. 10â— Upon this ground stage-playes and Stewes are suffered in some Countreys necessary evill to keep men from contriving and practising Worse mischief in the Common-wealth which they have no leasure to do whil'st they are wrangling and jangling about Law-suits 5. That expence on Law-suits is a good means to keep such men who are of restlesse and unquiet spirits poor in the Common-wealth whereby they are disabled to make head against the Government These and such like props for upholding this frame of building appear upon the first view to be too weak and unsound to prop up the same being herein already answered and are all overthrown by that rule of Scripture (e) Rom. 3 8. We must not do evil no not the least that good may come thereof Now seeing it hath pleased the Lord our God to bring us not onely out of that iron furnance and darknesse of Egypt the hard service and ignorance of Popery but also to give an end to our wildernesse miseries and to settle us in peace after all our wars and distempers and so to put us into a condition as the Israelites to receive good and wholsom Lawes let us learn Gods end in this and know for our instruction what is recorded by the Holy Ghost Psal 105. v. 43.44.45 hee brought forth his people with joy and his chosen with gladnesse c. And
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
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
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
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