of their own Acts. Par. 28. The Blessedness of the Change GOD be thanked that after a long and base War we are now in a Stable Peace nothing unsetled in Church or State but mutinous minds The petty Princes of the Country may ride out and take the Air to Hawk and Hunt and visit each other without the least Danger of Sword or Pistol And the meanest Clown walk abroad to over-look his Pecora Campi or Grasing Creatures without being bid stand Pot and Pipe on his smoaky Hearth and chat blind Stories of the old Wives of Windson Guy and Colbrond And his Broder Swain requite him with the like Stultery of Bevis and St. George And Ethically like the Tatlings of Busie Bodies or Bickerings of Shrews go for a Gossops Tale as inarticulate blank sounds The Sereness of a Record The like judicially with the Hond on the Book as our Bacon-folk phrase it Jamee may depose in the Affirmative and Tomee evidence a Negative and neither Conclude Court or Jury But if a Record once interpose no Averments or Brawlings of the High-Plyers or better sort of Rusticks and the sparks of all other Conditions shall never Contradict it For Example If two Conservators or Iustices of the Peace assemble to view and suppress a Riot if they Record the Offence though in truth there was none but All in Pace Dei in Sobriety and Peace However by 15 R. 2. 8 H. 6. there 's no Traverse or Creeping Hole to get out of this Iudgment the Parties are for ever estop'd and without Remedy I learn by Hildebrands Case that what passes during the Term 't is in the Justices breasts and Alterable But the Term ended Adjudicatum est 't is only in the Rolls of which after the Course of the Medes and Persians there 's no variance no controulment Wilful Blotting a Record Capital Writings may be blurr'd and Deeds defac'd and cancell'd and the Purse only smart for it Ratably as the Damage will amount unto But the Embesiling and Rasing a Record will cost ones life In brief an Inrollment or Record is a Memorial of that Commanding Veneration and Verity that if Pleaded null tell Record it shall be Tried only by it self being Incontroublable otherwise there would be no result of Argument and Controversie endless Now a Statute is the Highest Record against whom there 's no Prescribing nor Alledging a Custom being the Convincing'st Evidence and soundest Proof in Law And to endeavour the subversion of the Fundamental Laws of the Land is High Treason And what more Positive and Fundamental than a Statute Par. 29. Improbable to be bound to Tyranny or Superstition CAN it be thought that a National Act resulted by a Convent of Honour Kneaded into Form by the Critical Care of both Houses on whom all Power is Collated first the Lords Spiritual and Temporal in Presumption of State All VVorthies After recluse Debates digested into a Bill in the Form of Law with Le Seigneurs ont assentes with the Concurrence of the Commons by the Direction of the Writ no Triflers but De gravioribus discretioribus viris the Eagles of the Countrey with Les Communes sont assentes thus strictly Refin'd by Grave Traverses and Forms of State and lastly Compleated with Le Roy le Voet the Royal Assent should savour of Madrid or Argiers Privity of Assent Obligatory Thus no Act to bind unless made per l' Assentments of the three Estates But in Law every one is Privy to an Act of Parliament and Consent judicially doth toll Error that is no Excuse or Evasive Pretension shall be Admitted against our own Agency To Expound this by a Case Lessee for years at Common Law makes a Feoffment in Fee and deputeth the Lessor by Deed to give livery and seisin who pursuantly Executeth it Now though the Lessor or owner of the Land acts only as an Instrument to Compleat the Tortiousness of the Lessee yet done of his own Accord the Law intends it as walking Hand in Glove with the Lessee with a full Assent to pass the whole Inheritance A stronger Instance The Pleading of a Feoffment in Fee on Condition without Deed and Reentry is good if the Adversary will agree the Condition Complotments against Law unsafe and end in Ruine I wonder now with what Confidence Les Misfesants the Affronters of Authority dare too t Sedition in standing out against Sovereignty and Picqueering the Law This sad Frowardness towards the Church is to every good Subject an object of Mournfulness that of all People we should be most unsetled as the Vivary of Faction in strugling against Law to reduce this famous Empire this Angleland to a Green Apron Government Section V. Paragraph 30. Sophistical Cavils or idle Belchings against the Common Law THE Honour of England the Common Law with some Dissenting quaggey Heads is overfull of Meanders and Intricate too Tartish for some nice Craws Though Admir'd in times past by the Romans Saxons Danes and Normans And still Venerable with the VVorld of Learning The usual Reproachings against the Law 1. 'T is tatled by Cavillers the Law being the Clock that we must go by ought to be more Legible and Plain to the Vulgar not couch'd so Darkly in meer Gibberish or Pedlers French understood by few but Lawyers Neither is this Fault alone found by them but Complain'd on likewise as an Abuse by one Learned in the Profession 2. Secondly if the Law be Radiant Reason streaming pure Excellency why visarded or bound up in hard uncoth words Discoverable by none but the Professors which is no better than Tyranny by Authority for in nature Quod omnes tangit ab omnibus Intelligendum est That which Concerns all ought to be Intelligible by All. 3. Besides 't is too Prolix and tedious in Form the Pleadings being drilling Criticisms or talkative niceties indeed with some plain Canting over Draining the Purse before we come to an Issue to be put out of our Pain 4. If through vast charge we hap to Catch a verdict motion will be Allow'd to arrest the Judgment and vacate all Proceedings 5. If we shoot this Gulf and get Judgment marking the Roll for Error will supersede it And then we must begin again so that there 's no End of Law 6. If for Testamentary Matrimonial or Sea-faring matters we Repair according to Custom to Doctors Commons we must Expect Rubbs too the Checks of Prohibitions so that with the Advice of the ablest Sternsman the Law is Shelfs and Sands both chargeable and altogether uncertain These and the like toothless Rablements with the unadvised the Tooters against Excellency are the Moles and Warts of the Common Law Par. 31. The Cavillations Defeated and Satisfied 1. FOR Horn's Complaint that the Law is written in a brackish Tongue and speaks not good English for every giddy-pated Runner to read and understand by the VVise 't is thought the better to prevent suits for small knowledge would set the Vulgar a Gigg and fill the
sager than Law Is both vain and unmannerly 'T IS a Maxime with Lawyers that none ought to plume Himself wiser then the Law with sober Heads Oracle-like being Unquestionable many Acts of Law as common Assurances of the Realm are sagely to be Agreed and not finically Pry'd into by peevish Eyes The like Compliance is to be Render'd in Church Discipline if once setled and Established by Law But Ephesian Disciples as Careless of the Gospel as Regardless of the Law otherwise they would leave Bellowing against Order and stoop to Power they must be Lawless And down with those easie Mounds and moral Regulations which the Masters of Skill joyously treat with thankful Arms Let some jocous Ramblers take Heed how they gibe with Law to hector Majesty 't is not good Joking with Edg'd Tools Deity hath a large stride to take off Scoffers at a Distance And haughty Saints are sooner snapt by the black Tempter than poor Frierly or Bare-footed ones pallisadoed with Humility which like Rampires of Fire will shield them against the sharpest Conflict Spiritual Trivantings Censurable By Martial Law every slide is a Crime in a Souldier contrary to express Command or Common Discipline the like by the Law Canon Behaviour besides the Church Rules is scandalous Enquirable by the Censures of the Ordinary Emansion or Military Loitering is often sentenc'd to the Wooden Horse or to run the Gantlet if our Church Trivanters find the same Consideratum est or sage Rule awarded against them let them Pack the right Horse and laud their own Stubbornness Par. 25. The Forceableness of a Statute IN a civil sense with Legal Heads an Edict fram'd by the King and the Common-Council of the Realm resembles in State an Instrument or Charter at Law And can any at Pleasure vary or Revoke his own Deed A Deed is ever taken forcibly and with Effect a Rule very trite and Common yet of great Depth and Elegancy founded on the very Pithiness of Reason which instructs us to set a Guard on our Tongues and Hands too that nothing escape either but what 's Judicious it likewise quiets mens Possessions and leads the Judge and Jury to Certainty in Avoiding a sudden and Catching Opinion Hence arises the Principle in Law None shall be receiv'd to Stultifie or Disable Himself that is to play fast and loose to nullifie or defeat his own Act. For an Example The actual Delivery of an Instrument without words is good if given as an Escrow to take effect as a Deed on Conditions perform'd this binds not or deliver'd triflingly it invalidates not the Act in both Cases the Deed absolute otherwise Deliveries by the speechless would signifie nothing and many Deeds and Devises frustrated Avoided Therefore if the Obligee bail a Bond to the Obligor to Rebail yet the Obligee may retain it For a more vulgar Instance in Honour of the Common Law If J. S. grant an Annuity to J. N. with a clause of Distress in his Mannor of Dale Provided it shall not bind his Person And in truth the Grantor has no such Mannor however the Grant good and the Proviso void for by the Maxime That none shall derogate from his own Grant the Person of the Grantor is Chargeable I find the Civil Law not so Ample in this Point As by Decision Titus devises to Caius twenty pound out of such a Coffer or Closet in such a place And in truth there 's neither Mony Coffer nor Closet in that place the Bequest is void But at Common Law this Circumstance would not frustrate the Gift if Assets elsewhere could be found The Effectualness of Deeds If a Deed defective in the usual Forms be Janus-like bifronted bearing a double Aspect Having two Intendments the one with Law and Right the other against Both it shall be taken in that reasonable sense it will bear never be void if in any Congruity of Reason it may stand good As in an obligation solven'd to the Obligor this slip is excusable and shall not avoid this Deed Poll the Law shall expound the solvend to the Obligee Regularly in Law if an Act will operate Diversly either by way of Interest or Authority the Law not delighting in Images and Shadows but in Certainty the nurse of Quietness shall ascribe it to the Interest and not to the Power Fiction must vail Bonnet to Reality To explain this by a Case If J. N infeoffe J. S. and his Heirs of sale And by another Deed instate Him and the Heirs of his Body of the same Land giving seisin according to the Purport of both Deeds Quid indè operatur Limitations very Prickley that pose the best Students that the Deed may not be impeach'd but hold forcible and good against the Maker And if not Holdable by Intireties the Law will Marshal it to Enure by Moities that is an Entailement in one Half with the Fee Expectant And a Fee Absolute in the other Thus Livery Expounded Effectually against the Grantor The like in a Syntax of State we are Tied up from Whiffling and Grinning against Uniformity And must give Obedience Par. 26. Denying of ones Hand not Available IF any plead nient son fait Hoping thereby to slip the Collar in Avoiding their own Deed unless by Nonage Manasse Duresse and the like being formally Pleaded 't is more then Imprudent frivolous in Law and Equity To Exemplifie this by Troynovants Case If A. owner of a Toft or demolish'd Messuage in Cheapside Converted into Ashes by the late Fire let a Lease Indented for a Century or Milliary of years of this Land to B. ex mero Jocu jocosely out of a Frolick and Disport only without any Terms to Rebuild after the prescribed Form rendring Rent Here 's a good Estate vested in B. This sportful blind Bargain shall work by way of Estoppel And the Lessor A. during the Term Concluded from Pleading the Act was Jocular by way of Merriment not at all serious or in Earnest ever legally intended and so nudum Pactum a naked and void Grant Mal-a-wise or Nescience invincible of the Law will nothing avail so of the Universal Deed the Statute to which every one is a Party 'T is more than Turbulent even Disloyal in Ruffling against the Stream to repeal our own Act to baffle Authority Par. 27. Law binding though not solemnly Divulg'd by open Publication A Charter in Judgement of Law is no more then a fair Copy of the minds of the Contractors to prevent mistake and strife Recorded into Paper or Parchment when Executed that is seal'd and Deliver'd made Authentick baptiz'd a Deed which is a private Law between the Parties So the Publick Charter the Statute in Construction of State is no more then the Resolves of the Supreme declar'd in Print to which every Subject breathing within or without the Kings Dominions though never Proclaim'd is bound to give Obedience for if a Law be Proclaim'd 't is of Favour not of Necessity it being Presumable none are Ignorant
to the wrong Mother Equity Limited Neither are Courts of Equity a sic volo sic Jubeo altogether Boundless and Arbitrary Decrees must be Sana Discretio founded on Discretional Piles after the Form of Law for should Equity meddle with matters properly Issuable at Common Law savouring of Freehold 't is Prohibitible by Hussey Chief Justice should Equity venture to sheak a Judgment And Fleet the Parties for Contempt a Court of Law will discharge them But in some special Cases 't is held Unlimitable Law unerrable Juries when Attaintable If a Court of Law judge amiss Error leys to redress it if a Jury wilfully pervert Justice against their Evidence they are Punishable by an Attaint For an Example If a Feoffment in fee or an Estate for life be vested in John a Nokes and they find Kim Kam quite Cross from the Fact though Ignorant of the Law in that Point they 're in Danger of an Attaint The like in Equity Decrees wrested beyond the Standard of a good Conscience 't is Reversible by Review or Bill in Parliament So that the Law is Absolute the First-born of Excellency and near Infallible Par. 32. Chancery legally Stated THe world is generally out in their Conceptions of that Court for properly 't is not at all made up of Conscience of a mixt nature I Agree it and so Conscience may come into the Chorus and sit by Equity in some Cases to allay and swage the Summum Jus or severity of Law But for the most part their Stalls are several For Example If a non Compos mentis give away his Goods or pass his Lands by Record it shall not only bind Him but All others for ever Because of a Maxim in Law and 't is Ruled that the Keeper of the Kings Conscience shall afford no Relief against a Maxim Yet He shall not suffer on a Criminous Account because the Law pities his Infirmity why not the like in the other Case now can it Accord with Conscience that a Driveler or Fool natural should make a good Grant in Law that knows not the Right Hand from the Left nor hardly an Hog from a Dog or that the Gift of an Infant though given by his own Hand that happily can't tell Twenty nor a nine Pence from a shilling should not be void in Equity several other Instances that I could Cite seem to weigh much against Conscience Law not always Meetable by Conscience I confess my self a great Admirer of the Law and therefore shall be Hush Though as to Lawyers there are invincible Reasons given in Defence of it and should it be otherwise it might shake the whole Course of Law let this tutor us then that Law must not altogether be measur'd by Conscience If Enacted it must be obeyed Par. 33. More clamorous Censures and Lowings against the Chancery Discepted and Taken off THE Chancery is the Commanding Court and out of Dispute of undeniable use and Excellency when kept within its Bounds otherwise the Law would prove in many Cases an absolute Tyrant and not to be Endur'd The Consequences are so vulgar and easily to be Conjectur'd that I need not Englarge on so obvious a Truth 1. Were the Proceedings shorten'd and the Flippancy of Motions to multiply order upon order and Report upon Report with other out-slips Revis'd and Amended the Court would be abundantly Honoured and the oppressed much Rejoyc'd and Repair'd 2. A peremptory Time should be Assign'd to Answer otherwise the Bill to be Decreed as Taken pro Confesso And why should it be otherwise since 't is natural for the weakest Person living to Appear and make his Defence if wrongfully charg'd And to be Reimburs'd of the Complainer if unjustly vex'd And therefore Shifting by Buying of Attachments and Dallying with the Court implies clearly Guilt And so no Injustice though unheard if the Cause be Given against Him 3. The same at Common Law is the Constant Practice upon Issue for if the Defendant will not Appear and Plead Judgment on nient Dedire or by Default on Course is Ruled against Him Which proves as Forcible as if obtain'd on full Evidence Nay in Criminal Concerns if the Party Encoup'd or Arraign'd stand mute and refuse to Plead He 's usually sentenc'd to Peine fort and Dure or Press'd to Death A grievous Punishment which certainly none but the Mescrue or Desperate in Guilt would undergo If by Pleading or Palliating their Crimes by a Civil Defence they might probably find Favour 4. A set Time likewise in their Commissions to prove their Allegations with the like to the Defendant to Discharge and Acquit Himself would strike off much Fraud and Delay And not to be suffer'd to move for Commission upon Commission and Examinings upon Examinings the usual Practice with the wealthy and vexatious to weary out the poor Adversary and thereby obtain their Ends. 5. Some conceive that Attachments Writs of Rebellion Serjeants at Arms and the like are not of absolute necessity especially to the Ends they are now Commonly made use of Neither can they Divine if such Times be Peremptory upon them to Appear per se or per Alium in Person or by Attorney what mischief can Ensue Unless good Cause be shew'd to induce the Court to Enlarge the Time 6. Sequestrations may be necessary in case of Disobediences to Decrees But what need of tedious Proceedings which are mighty Expensive and Dilatory and in effect a kind of negation or Denyal of Justice This with all dutiful Reverence to the Supreme Court conceiving what I humbly offer will in no Respect retard Justice nor blemish Equity SECT VII Paragraph 34. The supposed Deformities and very Freckles of the Common Law Inspected and wash'd off IF the 25 E. 3.17 were Review'd and the Common Law reduc'd to its old Constitution of Summons Attachment and Distress Infinite according to Magna Charta nullus liber Homo Capiatur the Law would be eas'd of many Exclaimings and the Tout le Commune or poor Subject much enlarg'd in his Immunities Par. 35. To the Insolvent a Capias hard Justice IF the Fortune cannot Pay for the Body by suffering to imp it out Appears somewhat Cruel There being no mean or valuation between a mans Person and a sorry Debt 'T is true no Fault can be Assign'd in the Law because it doth but perform its office And the Life of the Law is the Execution thereof Yet surely the Intent of the Law is mistaken and abus'd the Law Designing the Body to Custody only as a Pledge to avoid Fraud that if no Estate can be Retriv'd then the Body to be Dismiss'd for so I find by the Perusal of several Records more expresly in 14 E. 3. Rot. 106. where the Debtor being long Imprison'd and by Inspection being found Decrepit and much stricken in years unable to undergo a longer Durance the Judges awarded an Ire sine Die or an absolute Discharge 41 E. 3. Rot. 27 the Duressee being Adjudg'd unfit to undergo Paenam
will not suffer such impious Assaults to go unpunish'd 3. By Indictment at Common Law at the Kings suit for Debarring his Subject the Common Benefit of the Law of Nature Par. 46. The Duties we owe unto the Dead are chiefly three Sepulture a natural Debt 1. FUneralia decent Interrment a Common office of nature unto which we are mutually bound to each other to perform as Due unto Humanity for that assuredly it must be one Day our own Turn unavoidably to pray the same Therefore Administration by a Stranger for the Sepulture is Allow'd by Law This moral Courtesie was taught from Heaven which induced our Ancestors to Erect their peculiar Sepulchers for themselves and Family Therefore an undecent Funeral or any rude and freekish Directions tending thereunto like unto that of the Stoical Vaunter Sepelit natura Relictos Are Inhumane and Disallowable by Law As by a Decision Maevius made Lucius his Heir by Will sub Pacto or Conditionally to throw his Ashes and Bones into the Sea Two Questions 1. If Lucius did forbear out of Loyalty to humane Decency Performing the Condition whether He could hold the Inheritance as Heir 2. Whether the Condition not Insane and void Resolv'd 1. To the first that the non-performing of the Condition was rather Commendable then Questionable in Committing the Body to civil Burial And hence interring Rites are call'd Justa because Due by the free unwritten Justice of Nature or Law of Civility 2. To the second That the Condition was more then Windy if the Testator in true senses very wicked most Absurd and so void However the Estate Compleatly Holdable in Law and Conscience The Ground Hallowed by Funeral Obsequies Burial is so highly Indulg'd and strictly observ'd by the Canon Law That the very Place where an humane Body or Head is interr'd is instantly Consecrated and adopted Religious And for the future render'd unsaleable even unmorgageable only Demisible What good Christians were some Railers against Decency of late with us scornfully refusing the harmless Celebration of the Liturgy Throwing the Body into the earth as Rudely as Pigs into a Stey without Reverence or Devotion Pompous Interring I agree is undecent because vain and often overchargeable many times obtruding a Fast on the poor Creditor for other Peoples Feastings Censuring Petty and Base 2. Civil Memory in point of generous Breeding we should keep a watch on our mouths and suffer nothing to escape us even of the Living but Reservedly And not make it a Common Practice like Titlers and Story-mongers meerly for Discourse sake to defame the Absents without Cause unless we are particularly Consulted with in Private or Publick to give an Account of any mans Credit and manners Then we ought to be free and deal Candidly otherwise silence is our Duty in Civility and Conscience No speaking of the Dead but Candide and Caste But for the Departed we must never mention them but with Honour a good Fame being the only Interest and Right of Nature which they still Retain below to violate those dues were most ungracious and superlatively Profane beyond the Cursedness of Charles Martel No biting the Absent nor wrestling with Spirits If Bad let their unhappiness die with them if good let them be Remembred with a joyful Applause for so bright a Saint Devises Choicely Regardable in Law and Conscience 3. Performance of the Will for the Good of his Soul as some Books term it or rather for the safety of the Party entrusted to interr Him that He do Righteous things that his own Spirit might find Rest in the other Life For God is Just and let Him expect What Measures he gives the same will be meated unto Him Paganism very Precise in Executing Wills The very Paynims though in the Dark yet by the Peeps of nature were ever most Curious in Gratifying the Request of the Decedent As by a Decision A famous Wit on his Death-bed willed with a very passionate Desire that his Works might be burnt Two Questions 1. Whether the Devise not void because Injurious to publick Interest and the Advance of Learning 2. Admitting it good whether private Request should be preferr'd before the Common Good or General Advantage Resolv'd 1. That the Devise may be Conceiv'd valid and soberly Consistent with Law and Conscience It cannot be Denied but in Law every one may do with his own as he pleases if otherwise the Law deserves to be Coated and Bibb'd to talk of Propriety If so why Publish'd against the Vote and Direction of the Devisor 2. Every one is best skill'd to take measure of Himself And what Judges Civilly Construed Modesty as to the oblivious sense perchance the Requester knew it more fit and Requisite to be taken literally Because of Imperfections best known to Himself not so easily Conceiv'd by others Therefore I cannot but Applaud the Judgment of the Emperour that held the Concealing more Civil than the Divulging The Common Law Favourable to Wills Testaments as the final and Consummate Acts of Mortality are very preciously Esteem'd by all Laws They are Alterable and may be nulled by a latter and invalidated by Eschetable Misdeeds yet they shall never be void if by any Consistency of Reason the Intent of the Devisor can possibly be Pick'd out As by a Case A. devises all that he hath to B. to do with it at his will and Pleasure Three Points 1. Whether a good Devise because not so legally Amplified according to the usual Form 2. Whether Lands and Tenements as well as Chattels do pass for want of apter words 3. What Interest passes whether an Inheritance Absolute or modal and Qualified Resolved 1. In other Conveyances Demur might be made what Right pass'd But in Devises the best shall be taken to fulfil the Will of the Testator Therefore the Bequest good 2. By the Intent a fee simple pass'd of all Reversionary as well as present Rights 3. It will be objected by the Learned that there want Essential words to create an Inheritance and haply not Publish'd Animo Testandi and so void 1. The Devisor shall be Presum'd to lie in Extremis and likewise Inops Consilii altogether destitute of Counsel And so Disabled to give in that Exactness of Form which in his Convalescence he might have done 2. It must be granted that the Testator was Cited by an irresistible Summons to his long Home and there to Abide And so cannot appear to Defend or Explain his own Act. Therefore what he Declares shall be taken Valedissime most favourably and forcibly for the Benefit of the Devisee Par. 47. The Inducement to this Freedom I Write not this Dogmatically to teach the Seniors in Wisdom or Overseers of State nor Captiously in finding Fault with the Law only Piteously out of Tenderness that the poor Languisher might be Reliev'd and the Law Explain'd And likewise that the Unchristian Abuses of Disturbing the Dead unless sentenc'd to Infamy by Law may be Redress'd whose Bodies when Alive were the
Dotings against Prerogatives Some baffling over-wise Mooters Canker'd with Schism to Crop the Crown and beat the Scepter into a Spade talk much of mixt Empire which in strictness of Law is oppositum in objecto meer Quibbling and Repugnant making two Supremes being equally opposite as simple and Compound Fellowing the Prince and Subject as Co-Rulers or Partners in Power which by the Laws of State are Contradictions most Absurd being altogether inconsistent in one Body Creating a Penetration of Supremacy or distinct Regalities as divers as those of Naples and Denmark Indeed this equalness of Sceptring or Coordinateness of Power doth not only Clip the Wing but even debase the Sovereign And make Him more subordinate and less free then the Subject To make a gay shew of Potency but in effect no more Considerable or indeed Regarded then the King of the Frogs which made a noise and some Bluster but when it appear'd a meer Apparition or Non-entity of Sovereignty the Subjects became more than Familiar and somewhat Saucy even leaped upon their King and instead of obsequious Reverence afforded him nought but Sleights and Revilings That Laws are fram'd by Concurrency in some Nations 't is more out of Discretion then of strict Right and Necessity Because the Subject is best Conusant of himself and ablest to sit his own Condition And so a general Convention royal Bounty and more of Ease to the Prince then of Constraint and obligation in Law neither is this incongruous with sense or Liberty for the Prince to be Good to Himself must on Force be Gracious to the Subject The prosperity of the Subject being the best Revenue and Glory of the Sovereign The Primitive Law-givers Originally Princes stampt Laws themselves and alter'd them at Will for the best Avail of State there 's no saying to a Prince quare Ita facis what do'st thou being the Auditor alone of Heaven and so needless of the Allocations or poor Pidlings of Earth Sovereignty Defin'd This Jus Regium or Right of the Scepter call'd Prerogative is a large Field and according to the word a Priviledge of the mightiest Amplitude its Bounds and Extents best prov'd by Records and Constant Practice However we may safely Conclude without the Fear of an Errata the Government an harmonious Regency omnia in omnibus with the advice of the general Council absolute no Homager or Feudatory to any earthly Power though not a Crum Arbitrary because sweeten'd with the Cadencies of Justice to wit the Goodliness of Aristocracy and the Frankness of Democracy Being in all things directed by Clarified Reason Law but not a mite Coordinate Conditional or Deposable According to the beguilings of some seditious Gagglers but purely single and Independent without a State-Helper or Part-owner England the Commote of Honour the Pearl of the Terrene Globe Let 's not cry up this Country nor brag of the other but magnifie and admire our own mercies and ascribe the praise unto Deity for none under the Sun by the 45 E. 3. c. 4. de Talleg non Concedend are endow'd with that Freedom and safety like unto us Prerogative and Parliament keeping an equal Pace going Hand in Hand according to Fundamentals they cannot Erre Prerogative no Cormorant in Swallowing anothers Right As by a Case By the 1. H. 7. all Liberties Preheminences and Regal Franchises were given to Him in Tail generally without any Limitation or special saving Whereupon a great Question arose Whether inferiour Franchises and private Liberties were not likewise transmitted to the King Adjudg'd Per tout le Coife d' Angleterre by all the Judges that every private Right was impliedly sav'd by Provisoe of Law though not particularly excepted for that Prerogative can be no wrong Doer For Example The Estate and Persons of Ideots and Lunaticks are by Law Entrusted with the Supreme should the Sovereign Trustee Commit the Body or Estate of either of them to J. S. to do with them as Absolutely and Inordinately as he Pleases the Grant were void because Breach of Trust and the Committee punishable for any Exorbitant usage In other places if any though Poor are but suspected to be Rich or but well to Pass they shall be presented with a Basket of Fruit with Empty Bags which if not return'd Fill'd the Presentee must certainly Expect the Bow-string or an harder Cruelty Thus elsewhere Ruling is Lording manuforti by Force will is Law and Tyranny Freedom the Prince when most Bountiful but a Pharoah and the Leigh though most Deserving but Egyptian yet Dalliance of Liberty Peace and Honour will not still the Thankless but Sampson-like all must be shoulder'd down though they perish in the Fall SECT XI Par. 82. Kingdoms resembled to Families where the Troublesome are thrown out IN a private Family the Type of Empire is not Rule necessary can it stand unless bound up by the Ligaments of order And if the Domesticks will turn Ribaws Ruffins and Damme Boys sleight the orders of the Master Dismission in this Epicycle of Sovereignty is the lightest Censure that can be Expected By parity of Reason in the publick Family if the Erraticks in Contempt of Mastership will not lowre and bow to the spiritual Form not Dictated by the State-Master the King not Enacted by the Church But affeer'd and pronounc'd too by their own Consent Expulsion and Restraint are the softest Blows that can be inflicted Outward Worship ordainable by the Church In Law Rituals are Positivi Juris matters of humane Make the Modification or Rite left wholly to Church Discretion and Rites of distinct or divers Forms do no way stain or impair the Doctrinals Law-maxims the Quintessence of Reason and unquestionable By our learned Masters of the Common Law 't is not requir'd to assign an Answer why the Maximes were first ordain'd and admitted as the Pillars of the Law and the Resolves of Reason that may not be impeach'd nor impugn'd by brainless Searchers that will pick Holes in a seamless Coat But ever own'd with silence and veneration as the uncontroulable Results of Science Teste seipso Magisterially as Authorities of themselves though not provable by Argument or ocular Conviction being Compounded beyond logical Touch or mathematical Demonstration Infallible by the Allowance of the Exquisit'st Advisings In brief of the same Powerfulness and strength in Law as Statutes therefore Triable alone whether Maximes or no by the Judges and not per Pais by the Judgment of twelve men For Example A. hath issue two Sons by several venters B. and D. B. purchases green Acre and dies without Issue D. shall never succeed as Heir being barr'd by a Maxim or Principle in Law An harder case with the Clamorous near a Kin to Barbarity Father and Son and the Son acquires Lands in fee and dies Brotherless Sisterless and Issuless too the Father that in Law is pluis prochein de sank of the immediat'st Degree of Blood the Cause of his Being and so the occasion of the Purchase shall not lick his
lips of this Windfal but the Vncle. Nay if the Uncle dies without Entry the Father shall not have the Land at all in this Case too He 's rebutted by another Maxim Let 's invert the Case Father Vncle and Son a Lease is made to the Son Remainder proximo de sanguine Here the Father shall take by way of Purchase Let the Critical'st Wits that can pore into a Mill-stone tell me the Diversity in Conscience in the first case what natural or moral Defect there 's in D. but that He might be step-Heir and slip into the devolved Estate or in the second Case why Collateral Alliance should be preferr'd before the nearest proximity of Blood in the last why the Father shall take as Heir and not in the second case more then that He 's disabled by an Axiom that 's founded on Reason and indisputable for What 's not Consonant with Reason is Repugnant to Law Thus 't is sufficient that the Postulata's or Principles of the Law the Maxims are receiv'd as Law and do no way batter Reason nor assault the Rule Divine the like may be apply'd to outward Governance in the Church the Discipline as well as the Doctrine being fashion'd after the soberest Dress of Morality and equipp'd by the Word of God ought to live in Peace from sowre and bubble Disputes unless with wayward natures we must take a Pride in chopping Counting it the Supremest of Servitudes to be Constant to setled Sobriety SECT XII Par. 83. Ceremonies Expostulated and Asserted IN Law Traditio loqui facit Cartam Delivery is the very Essence or life of a Deed without this Ceremony in Judgment of Law no Instrument only un Escrovet or scrowl so in a Feoffement unless executed by livery of Seisin a nude Circumstance or bare Formality though as ancient as Abraham the Conveyance invalid for if the Feoffee enter He 's but Tenant at Will and oustable at Pleasure the bare Deed without the Co-operation of Livery will not Create a firm Estate of Inheritance to Him and his Heirs only a Possession ad placitum Determinable at Will On this ground in Law a Charter of Feoffment or Demise for life by a Copyholder without Livery is no Forfeiture because no Alienation Stipulations perfected by Formal Acts. So Tenants by the Verge can neither take nor surrender their Estates without the Ceremony of the Rod which is seisin in Law In some Mannors a Straw is us'd in some a Glove according to the Maxim Custom must ever be observ'd the like in some places the sale of an Horse or any other Contract is Compleated Per traditionem stipulae by the Delivery of a Rush And in the passing of these Estates if the word Surrender be wanting being Vocabulum Artis a Term of Law or Word of Art though the Grant be stuff'd thick enow with all other Conveying Force 't is ineffectual and void The Customary binding in Law The same I take the Law to be if a Copy-holder were minded to part with his Right offering in Court to pass it by words of Grant Bargain Sale or Gift no Estate will pass for as He 's ty'd to one peculiar Form of Assurance singular to his Tenure alone so He 's restrain'd to special Words proper to that Conveyance Regularly a Fee or Freehold all Corporeal Hereditaments but in some few Cases will not pass without this solemnity a Ceremony the Law hath enjoyn'd for the better Caution and security of the Purchasor in case the Feoffee or Donee should fail of their Evidence this solemnity shall supply the Proof of the Gift So in a Grant le chose grantus the thing granted but in the Royal Case will not pass unless the Terretenant attorn To break this Cloud by a Case Lord and Tenant if the Lord grant the Services of his Tenant to A. and after by Deed bearing a latter Date grant the same to B. and the Tenant attorn the Lawyers tell me the Grant to A. is out of doors should the Tenant afterwards attorn 't will not a rush mend the Title of A. Was the Israelitish Seisin by the Shooe unseemly because Customary and requir'd by Law or did Boaz conceive his Purchase not strong enough unless Elimelech's Attorney did execute the same was there any Impertinency or undecency in either Is the Royal Charity on Maundy Thursday imitating the lowliness of our Saviour an ostentous Humility not becoming the Majesty of so great a Prince if not why stagger then some taunting Make-bates at harmless Ceremonies which banquet the Soul and grace Devotion Par. 84. Why more Agriev'd at Ceremony then Common Civility LET them render a Reason why white Habits are more frightful and noysom then Black or Cassocks more unseemly then dragling Cloaks why Lawn-sleeves more Absurd then Collars of Essences or Corner Caps with fur'd Robes or gold Chains with scarlet Gowns both worn by Magistrates of Honour Is the notifying Induction by taking the Keys of the Church and ringing of the Bells Boy-like though a Ceremony enjoyn'd by Law Is the Pall Surplice or Hood more superstitious and silly then the Lawyers Tippet or Coif both surely by way of Decency as Robes of Distinction and Ornaments of Gravity Was the Countess of Godina's Riding as plain as ever she was born Wild or Wanton Is the walking bare-Headed to Governours in Quadrangles Idolatrous or a Ceremony any way Petulant and unbecoming youth by some Statutes to empty Courts and bare Walls which I have often seen unsightly for Freshmen and juniour standing In brief is the Cursew Bell instituted originally by notion of State and still continued in Discretion as of civil use as childish as Rattles or Cymbols Why then this filthy smoke this shameless Pother about Atomes or meer nothings or more truly necessary Duties Pray God this Fierceness prove not the Prologue of their Revolving to the Scarlet Hat against whom our blessed Infatuates pretend the forked Arrow of their molten zeal Par. 85. Homage justifyable in State and Breeding WHat will our Church Squablers say of Manhood a Service consisting of many Ceremonial and Strange Postures is the Performance meerly Foppish and Pastime for Owls which if learned Lawyers may be believ'd and Every one must be credited in his Art is of admirable significancy and necessity in Law which our careful Ancestors ordain'd under shadows the better to illustrate and retain substances What is the Tenure by Cornage an hanging sleeve Hooting though ordain'd for the Defence of the Realm what will some Ramblers think of Feaultie when the Tenant in the obsequiousest manner shall swear Fidelity to his Lord with Sicome moy aide Dieu ses Saints so help me God and his Saints is this Dotage which a Text Advocate advises Fee-Lords not to neglect it being a sufficient Seisin of all Services Par. 86. Reasons apparent to the Blindest TO argue per notiora by easie similies Trunck Breeches or Trowses and open or close kneed Hose so a Ruff or a Cravat
by the actual Enjoyment of the one forfeit his Interest to the other Par. 96. Why Demandable IN fine the Reason of Tithes was the Instructing of the People in the Service of God with Continual Intercessions for their chiefest Blessing which must continue to the end of the world and so then on necessity as well as Precept must Tithes be perpetually Paid and freed from Alienation otherwise the Service of God must cease and all precious souls dearly bought by Christ be Expos'd to Damnation Par. 97. Due by the Law of Reason BY the Injunctions of Reason can Civility be so beetle-headed so very a Dolt as to dream that Schollars ex Debito or of Course by bounden tie of Conscience are oblig'd to be up early and late Threshing at Study enjoy no more Ease then Hedgers and Ditchers but still Carking to Purvey and lay up for the Soul wasting themselves and parting with their Stoage of Oyl as shining Lamps to lighten the Laity to Heaven And with the Apostle The Workman not worthy of meat Par. 98. The People Vnedified so no Pay due IF Tithes due and well deserv'd how comes the Church to be thus Rent asunder over-spread with Schism and Heresie were the People better Taught more Godliness and Unity would Shine Popery depress'd and the Orthodox on the Top of the Hill The Estovers of the Church why Payable This is a bungling Cavil and not worth a Reply Tithes were paid to the Levites because set apart to give Attendance at the Altar so the Clergy now Claim Tithes because separated to the Gospel And not on the Account of success One may Plant and the other Water but Heaven alone must give the Encrease The Brachium seculare must instruct for Mucro Ecclesiae is no more Dreaded then a Pot-gun the Clergy may Preach and labour their Hearts out for the Spiritual Peace to stubborn Hearers that will stop their ears or if Instructed will not Practise How can our good Spiriters the Spurners of the Clergy be edified that Routously trivant after untemper'd Morter and refuse the Church The Justness of the Law to the Church Not to belye the Common Law it bears a just tenderness to the Church 't is true a lay-man may be discharg'd of Tithes by Grant or Composition but not by Prescription that is the Law will not suffer to prescribe in non Decimando in Exoneration or Discharge of Tythes only for the modus the same with the Canon Law where a Prescription is not Allowable And the Decimae Consuetae or the manner of Decimation so it amount to a Muneration or Competent Portion doth not enervate or weaken the Decimable Right Payment of a sum in half Crowns or Shillings will not vary or prejudice the Duty in Discharge of Predial or mixt Tenths Par. 99. The Decimal Right formerly Appendant to the Spiritual Conusans ANciently if Tithes were substracted 't was suable in Court Christian But then if the Right of Tithes had come in question by W. 2. 'T was Triable only at Common Law For Pensions they may sue in the Spiritual Court but if they be Prescriptible by the 13 E. 1. it must on Fine-force be claim'd at Common Law After the Norman the first Law in behalf of Tithes was the 18 E. 1. Art sup ch a Declaratory of the Common Law with a Ratifying of the 9 E. 2. under the Royal Assurance 18 E. 3. by sc fac out of the chief Court as old as the Nation the Clergy were sub-paena'd to render their Dues there this was Conceiv'd an Encroachment on the Church so Remedied with a salvo jure Regio or special saving to Regal Rights 2 R. 2. Church-men were Decimated by secular Courts This was likewise Redress'd without demonstratively Proving it to be a Lay-Chattel 15 E. 3. 't was Declar'd that Pursuing of Tithes of Right did properly pertain to the spiritual Court Thus in all Ages by the 14 E. 3. 25 E. 3. 6 R. 2. 7 R. 2. 2 H. 4. and several other Modern Laws the Church was reliev'd and the Maintenance preserv'd For Blessings Renovant Tithes most Due For Winchelsies Canon 't is by some question'd but for growing Profits I meet with no Doubtings at all among Lawyers Tithes in Law are not nakedly a Lay Profit apprender barely a Rent Charge or Canonical Allowance But an Ecclesiastical Inheritage the Fee sure more then Positive without doubt Divine a Provisional Due Recoverable under the Gospel as well as the Law as of Divine Right The Moral Law is Jure Divino under the Gospel Tithes are of the Moral Law Therefore Tithes Jure Divino under the Gospel By the National Law this quota Pars as the 13 E. 1. calls it is usually defin'd a Church Inheritance Collateral to the Estate of the Land and therefore not Extinguishable by Feoffment For Example If a Mannor be alien'd by Fine the solemn'st instrument in Law this shall not Extinguish Tithes the Alienee must to Confession with the Parson for his titheable Interest Par. 100. None Indecimable or Tithe-free NEither are Tithes extinct by unity of Possession as other Charges issuing out of Lands are subject unto Therefore If a Parson purchase the Mannor of Dale of which He 's Incumbent by this Acquest and unity of seisin the Land by Act of Law is become non-Decimable But if the Parson infeoff or Lease out his Parsonage to A. He shall have Tithes against his own Peoffee or Lessee for Tithes were not discharg'd only uncharg'd or suspended At Common Law put the case that A. doth demise his Rectory to B. Rendring Rent in lieu and satisfaction of all Demands as well Spiritual as Temporal 'T is quaeried whether now Titheable Though the word Demand be cutting in Law indeed very Chain-shot in most cases of the mightiest extent and operation yet I conceive it shall not exonerate or acquit the Demisee of Tithes being more then common Reserves of Rent Duties inevitably due as Debentures to the Diety Let the Bargain be more closely worded As a Demise of Land cum Proficuis with all Perquisites and Avails whether now due I conceive the amplest Grant without particularly nam'd will not pass Tithes because Spiritual Duties and Collateral to the Estate of the Land By Law a Tribute Parochial for the support of Religion for which the Parson Imparsonee or Purveyor of the Soul may take of Common Right without any Customary or Civil Provision the Duty lying in Prender as well as Render For can the Judicious imagine that after we are spiritually treated God intended that his Suffragan should with Cap in Hand scrape to Mister or Gadfer for his Wages and be foxtail'd without even Romescot or a penny for his Balm Like the labouring Bee to fill the Hive of the soul with Honey and not to be vouch-saf'd the Wax for his Candle but to be even smother'd for his Pains Par. 101. No Duty no Pay THis clerical Estate or divine Exhibition though of absolute Tenure and sacredness
Maunderings of some Mopsey Heads but the Doubting of Causidical ones Judgments of the first Rate as not strictly maintainable by the Law of Reason though Reasonable a very nice Reasoning which doth not attach the Reasonableness of the Custom For should the Fortune be Hutspotted or slic'd into Driblets the whole Class of Honour would soon moulder away and in a short time come to an Alms In fine the Monarchy Rebate much of Ornament in Peace and strength in War go very low and shrink into Splinters Thus with severer Judgments 't is no unconscionable or foul Dealing to Horse the Eldest and to leave the younger to seek out for a Steed Par. 106. The Casual Promotion or Right of Descent IN nature this Gourmond Flanting of Eldership or Repeek of Primogeniture is but the Chance or lot of being the First-born Hence Inheritance is the fortuitous Dole and Favour of Fortune and Godee Fortune a plain Lotteress where usually the solar or most Excellent are fobb'd off with Blanks But the Saturnine or Gaffer Souls grac'd with the Prize in Justice happily no hard measure since Ideots would trouble the Door if not buoy'd up by the Imagery of Happiness And since others are enrich'd with Arras the Goods of the Mind they may well be Content they enjoy more then what feathery Revellers can ever hope to attain However the Moderator or Vmpire of the Law Equity which should relax and qualifie the severity of Justice will give no Redress But Capuchin-like leave the Children to seek their Bread exposing them to pittiless Charity for the Chancellor is bound according to the Maxim To order the Kings Conscience according to Law Par. 107. Estates partible by some Sanctions BY the Civil Law generally the Inheritance is Divideable among Males At Common Law if the Estate be Personal 't is likewise shareable But Primogeniture is a gracious Minion of the Common Law For Example If an Advowson descend to Coparceners And they can't agree to Present the eldest shall have the first turn And the Assignee By Right of Seniority or Priority of Birth Par. 108. Customary Law consists with Reason BY Godmanchester or Borough English for the youngest Son to come Peeping after the Inheritance is more then lustily promis'd perchance orderly setled justling out the eldest and snap all into his Claw is a Pertness with most over-bold and unmannerly I confess this Law by many is adjudg'd very odd and crabbed against the very Course in nature For by the steps in Nature the first in Being as eldest in Knowledge in Justice ought not to be youngest or last in Love But first in Preferment According to Philosophy there being no Motives in nature for a moral Tenderness for what 's unknown In Discretion to leave a Swan for a Gosling is a strange Levity Having eaten no Salt with the one the recent Companion may prove old in viciousness though young in years And so no good Angel for our Embrace Though the right Hand was indulg'd by Jacob to Ephraim before Manasses which Joseph would have conferr'd on the eldest But it seems the younger was the Tidling Dads nown Child or Mams White Boy or according to Law the least thought on the most unable to shift for himself but as much a Gentleman And so merited the more Pity and better Portion Mootable Doubts 1. But whether Lands of this Tenure in case the youngest shall die without Issue shall still descend to the younger And not to the eldest after the Course at Common Law are fine Moots for Utter-Students 2. Whether one seis'd of these Lands leaving Sons the Wife Inseint whether the Son in Esse shall Inherit by virtue of the custom or the Posthumus or After-born shall oust him as in Shelley's Case is a quaere for the under-Mooters For by the 11 of Car. 1. I find the Court Divided in both Points Par. 109. The Inheritable Levellers or Brotherly Sharers a warrantable Custom IN Gavelkind that the Brothers only Doient ouellement Inheriter should shoal together to share alike and run away with the whole Blessing And put by the poor Sisters to pick sticks to make their Pot boil And happily go without the Price of Esau's Birthright for their Pains to Blunderbusses is very Hog-like and almost Incredible Owelty of Partition Reasonable This Parcenary or Co-Heirship of Lands hath been along Time in usage because built on the clearest Reason for that every Son by the Verdict of Heraldry is a Gentleman alike and in Possibility of Law Co-heir or equally born to the Blessing who happily through honest Strivings may not only make Himself but even enlarge the Family if turn'd abroad with Powder and Shot to bird for a living that is somewhat fledg'd with Res relicta a Competency which probably may render the Flight Prosperous But if thrown off with a Spar-Hawk and four Nobles Rent when he can catch it or kept at Home all his Prime as a Drudge and when the Parents turn is serv'd shak'd off without Hands or Legs naked into the world his House can expect no Advantage or Credit by this scanty cruel Purparty and unnatural Nurture but Calamity and Shame for that Brick cannot be had without Straw nor even mud Walls dawb'd up by Drudging without Materials The Egalty of Sharing no new practice Neither is this Shashton or shifting without President for the whole world became a Divident among three happily imitated by the first British King and so continued But this Co-Heritage or Partnership of Estate was very provisionally to make good Families by the 31 H. 8. made indivisible after the Course of the Common Law this Inheritance pro Indiviso or dribleting usage proving very devouring As the Child of Idleness and the Decay of brave Descents Law Ruleable by Custom A stranger Custom I have from our ancient Writers that if a Freeman took a Villein to a Freehold and libero Thoro or Free-bed And they had Issue two Daughters one should be Free the other Villein The servil'st Condition of Servitude The Substantialis which Bracton speaks of that what is the Servants either by Descent or Acquest shall be the Masters is a Law fuller of strangeness Par. 110. Custom Patron'd by Law THat the Heir at 15 by Feoffment may alien but not by Devise nor by Lease and Release which in Law of Charter Lands amounteth to a Feoffment By some custom when He can measure an Ell of Cloth or tell twelve pence with crawling scruplers savours of the Cross and Pile or Span-Counter for a meer youngster just out of the Shell may perform so easie a Task And yet to be inabled to do the solid'st and gravest of Acts is strange up to the Hilts for so we must adjudge the Parting with the Temporal Blessing for without it the soul can hardly solace in a quiet Sphere to mind Heaven Par. 111. A Concession void if not Pursuant to the Custom IN Copy-hold Lands if the Custom be not strictly pursued the Grant may
be Avoided As by a Case Concesso the Ancient Rent hath ever been in Gold and on a Renewing the Reserve is in Silver this variance in Quality only is enough to dash the Grant I find by an old year-book that at Common Law If one fell a Tree and at the same Instant carry it away the Law will charge but Trespass But if the Tree be suffer'd to lie some Time and then be ta'ne away the Prisant or Taking will be Death In brief Customary Lands not forfeitable for Felony as descendible Estates at Common Law but the Father to the Bough and the Son to the Plough with the severe tastes of the Cherry-Pitt and is marvellous Par. 112. The Female Inheriting masculine Reason Because Indulg'd by Law AT Common Law For the Females to have All by some Custom the Eldest by some by Right of Propinquity or Proximity of Blood the Youngest Alone And not the next Heir Male by Right of Honour or Course of Nobility to prevent Absaloms Bewailing and continue the Name and Memory of the Ancestour are the Stumbles of the Wise and Strange in Conscience Which put the great Judge to a non-plus in that famous Case of Salphaads Daughters and for a Decision enforc'd an appeal to Heaven Par. 113. Thirds the usual Joynture of the Common Law 1. AT Common Law the Wife Indowable only of the third Foot of the Tenements of which her Husband dy'd seis'd during the Espousals to hold in severalty during Life Which is but reasonable though she brought nothing a virtuous Woman being more valuable then Rubies otherwise in case of a rude or Careless Husband she and her Children may beg Par. 114. Dowable of the Moity by Custom 2. BY some Customs the Wife to have Half of the Lands which is not unreasonable it being Intendable not for her self alone to Gallant it to cast off the Children to moan for an Alms but to breed them in the Fear of God and when grown up and capable to settle them in civil Callings Par. 115. The Free Bench Indulg'd by Custom 3. BY the Bounty of some Customs to have l'entiertie or the whole without Paying one Groat of Debt with many is thought very unfitting and too large a Portion to be left at Liberty to marry again or turn Gallantress to undo Her self and beggar the Children which is directly against the Civil Law and the Canons of modest Reason One would think Dowment de la pluis Beale of the fairest or best Part should satisfie the Law and not suffer the Relict to swallow the whole This Favour of Law is call'd Frank Bank because the Free Gift or Provision of the Law without the Care and Contract of the Parent or Covenant of the Husband But this Boon of Law is without doubt violently intended to pay Debts for the mutual Benefit of the Children Neither can I Imagine any Reason but Equity may enforce it And not for the Wife to soop All and set it Flying idlely and lavishly in Mistressing or Masquing Imprisonable before the Debt be due 4. By the 5 E. 4. if a Debtor become incerti laris of uncertain Abode He 's Arrestable before the Day of Payment this seems against natural Reason for one through the variousness of Fortune may unavoidably be put to his shifts to abscond and live Privately on Purpose to satisfie the world the wearer best knows where the Shooe pinches every one is the best Justice of Himself and what will better his own Condition and therefore Hard to fore-Judge any mans Integrity till a Failer doth appear Contracts Obligable by Custom 5. By Custom if one Citizen be indebted to another in a single Contract it shall inure as good and Forcible as if by Bond and the Administrator liable which I find adjudg'd in point 37 Eliz. Nay this Custom shall bind Strangers To be Jury and Judge in their own Cause is Allowable by Custom 6. For the Metropolis or Head-City to certifie their Customs by the Recorder or their own mouths for 't is no better in effect without subjecting it to the Tryal of a foreign Jury whether Reasonable or no and so Judges in their own Cause is usual 'T is Conceiv'd not so full Justice to be Party and Judge in their own Concerns though Confirm'd by Statute doth not mend the matter for Acts of Parliament in Diameter or Thwarting natural Equity and Common Right and in several other Cases are void Ceremonies that gives more solemnity to Law Approvable 7. By the Course of some Mannors Sales not valid and of absolute strength in Law unless Presented at the next Court By 41 Eliz. it gives more notice of the Alienation and therefore the Custom beneficial and good Now should the Steward refuse the Presentment 't is scrupled what Remedy the Buyer may have against the Refuser or Seller the same of a Bargain and sale if the Clerk deny an Inrollment of the Deed to Compleat the Assurance what Relief the Bargainee shall have In both Cases I find the Law doubtful with a Caveat Emptor which is but cold Comfort and no satisfaction the Party griev'd will be forc'd to fly to Equity and take his Chance in Conscience which some think may pity his Case and give Relief The Remedy against the Vnjust and the Vncivil 8. The 41 Eliz. is silent of the sufficiency of the Law in both Points and leaves it as Casus omissus not thought on and unprovided for by Law But by the Favour of the learned Reporter I conceive the Law very Remedial in both Cases 1. To the Copy land the Acts of Law Requirable by the Custom on the Vendor's side are not sufficient till Perfected by the Presentment and the Acceptance of the Steward who officiates but as a servant and Removeable at will Therefore 't will be at the Peril of the seller if he Play the Jack there 's no sence why the Purchaser should be at any loss The like to the Clerk of the Inrollments 't is a forfeiture of his Office for Denying Justice to any in both Cases they are liable for what Damages the Abused have sustained through their Default If a Sheriff deny a Return or make a false one 't is vindicable by Action Nay a greater Minister of Justice then such petty Abjects as Green Bags or Black Boxes if He delay the Presentee in his Institution He 's Compellable by Law otherwise he might take Advantage of his own wrong an Absurdity the Law will not suffer A Bishop bound to shew the Cause of his Refusal For a shifting Plea He 's Amerceable 9. Neither is a Bishop by 32 Eliz. Allow'd to trifle with Justice for on a qua Imp. brought for Refusing a Clerk his Plea must be certain and full his bare Alledging that the Clerk is Schismaticus Inveteratus will not satisfie without shewing in Particular How and in what that the Court might with the Assistance of Divines determine the matter before them And therefore for a Dilatory Plea
the Bishop is generally Amerc'd Permissive waste unpunishable 10. If one Demise a Farm with a fair House and fruitful Herbage thereunto Belonging at will And the Tenant prove an ill Husband over slothful and Base suffering Both to go to Ruine The House to fall down for want of timely Repairs or Burnt through Carelessness And the Land to be Juncose or become Rush'd over even over-run with Weeds and chok'd up 'T will soon be Demanded How the owner shall right Himself of so wretched a Fellow At Common Law by the 42 43 Eliz. B. R. I find it Adjudg'd in Point no Relief And the Statute of Gloster leaves it Incurable Neither do I find it Curable at all for by the Pliers in Equity I 'me Assur'd the Chancellour is not sworn to make Fools Wise If men dread any After game a Gods name let them Away to the learned Lawyers and for a good wholesome Fee they will secure them against such unlucky Rentors Voluntary Vastation Punishable 11. For spontaneous waste as pulling down of Houses Ploughing Meadows Destroying Woods which alters Evidences and so tends to a Dis-inheriting I conceive it Punishable by Action of Trespass It amounting to the Determining of his Interest without Entry of the Lessor Par. 116. Conscience must be Submiss and Silent to the Digest of Policy Law NOW there 's no Mooting for Conscience in these Points it must Conform and agree it for Law And if Law then Justifiable at the grand Sise for if not Connatural or of the like Dimension with the Law eternal 't is monstrous and not to be practis'd To clear this by a Case If J. S. infeoffe J. N. of all his Lands in London and Middlesex And give Livery only in London the Lands in Middlesex will hardly pass Had they lain all in one Shire though Remote it had been a good seisin of All. In natural Conscience doubtless they are Convey'd by the same Intent Compriz'd in the same Deed and the Consideration the same yet the great Oracle of Polity the Law will not allow of the one though it tolerate the other Conscience guidable by Law A Bond defeasanc'd to murder J. S. is void but a Feoffment Condition'd that the Feoffee take a Purse on Black-Heath the Estate is indefeatable though the Condition be impudent and bindless So A Grant that the Grantee shall not Alien nor be Pernor of the Profits the Estate Compleatly good though the Provisoe be trifling and illegal an obligation in both Cases Concords with Law For a more Familiar Diversity If an Infant or Mad-man steal or kill unless wittingly and maliciously they shall not be impeach'd But in Trespass for a Corporal Hurt they may be impleaded and punish'd too So In Felony if the Principal die or be pardon'd before Conviction the Accessary is quit But in Trespass 't is simply otherwise For If J. S. abett his servant to strike J. N. or burn his House if the Abettee die yet the Action of Trespass or Conspiracy stands good against the Abettor In these Points according to the sages of Political Reason Law from Diversity of Law arises the Diversity in Conscience which ought to be lead by the Amber Chain of Reason that is Law And not by the Hempen Cord of Fanatick Opinion Thus may we see with half an Eye indeed if blinder then a Beetle how Insolent and Groundless Pretence of Conscience is represented by the Perspective of Refin'd Reason that clean and blanch'd Reason doth not regard every Scullion frantick Humour nor will it be rul'd by the Distaffe so it respects the safety of the Church the Common Peace 't is sufficient to be engrav'd in every Breast and obey'd by All but Rebels and Pagans Par. 117. A good Conscience Regulable by Law TO come more close to the Saints to prevent rude Sallies on Divinity let 's agree the Conscience the Reflex of the soul or Nuntio of the Diety garbling the good Objects from the Bad the white Angels from the Tawny Ad vulgus or in a secular sence 't is still but Winnowed or Exalted Reason Law which must be Hammer'd and Regulated by Magistracy and since Oracles are ceas'd the voice of God silent what other Asyle can there be 't is true the Power Divine in the Throne of Diety the Soul is still vocal though not Articulately to the Ear yet Intrinsically by the Impulsives of Nature to the Conscience his speaking by Supremacy must be Recorded and as to Externals the Dictates of Fann'd Reason Law ought to be obey'd A Citation before an Incompetent Judge dangerous To instance this by a Case If J. S. be Excommeng'd in the Court spiritual for matter of Temporal Cognizance which properly belongs to the Crown and Dignity Royal He must be Assoil'd without making satisfaction if the Plea be continued a Premunire may endanger the Party litigant and Iudge too So If a roguish Royster lay violent paws on a Clerk Handling Him somewhat roughly with Blows the Battery is soly Determinable in the Court Temporal the Rudeness to the Person Pour ingetter les violent mains sur luy in the Court Christian At Common Law Dato that a Lease by Deed is made to J. N. Remainder to the Right H rs of J. S. with Livery too according to the Form of the Charter Here 's a good Estate to vulgar Reason in Conscience but in Law the Remainder if J. S. be then living flutters without a Wing and is void The like Lessee for 40 years takes another Lease for 20 years Conscience intends to inlarge his Interest to 60 to make it up a round number of years equivalent to a solid Estate However his Condition is worsted and in Law here 's but an Estate for 20 years Thus Conscience must comply with Law if not the Law will be more then Angry fling and bite too Par. 118. No Faultiness in the Law WHY should sublimated Reason the Law be storm'd or flouted at being no way Factious having no side no by-ends no leaning or Respect to any I confess 't is past ordinary Cunning to encounter this Monster to reduce Schism to the lines of Mediocrity to submit to legal Prudence and Authority Spuriousness of Zeal to spurn at Law The world is come to a fine pass huge Hopes of Saint-like Times when the Spindle and the Prong every blober-lip'd Wise-acre not a Flight quoad Intellectuals above a Plant-Animal must question Acts of State And not only demur in Obeying but manfully jocund Himself in Resisting 't is neither grave nor safe to romp and wherle through Thick and Thin lege inconsultâ without Advising with legal Discretion to plunge themselves in needless Troubles The Law marches slow but discharges swifter then Pegasus Par. 119. Single Conscience must Conform to the Vniversal I 'Me ignorant of the Reason why a Private Conscience should not comply with the Publick that is the Law Provided it be no way Pernicious overtly polluted with superstition not Incongruous with the Word
vindicate his Honour Herein I find the Concurrence of the Law of England in Pascatia's de la Fountaines Case a Spaniard whom the Judges conceiv'd no Enemy to be deny'd the Benefit of Justice till open War were proclaim'd between both Kingdoms though several Acts of Hostility were Committed Arms justifiable if Repairs be Refus'd By this we may Collect that a Prince may justifie Arms if satisfaction by amicable Demands be deny'd But to snatch and pilfer a Booty by Law Military without Proclaiming War and Throwing of the Dart is doubtless very un-Prince-like and unjustifiable strictly by the Law of Honour no victory only oppression by Surprise and Rapine no valianter then to Draw on a naked man or to Creep on a slumberer to prevent his Wake In both Cases by the Gallant Hen Heartedness and unwarrantable Law neither Costly nor Vncivil 3. For the third Going to Law not simply unlawful for then not only the Coat but the Cloak too would soon be gone And the Body left over naked without Leaves Vnlawful only sub modo by Circumstance of malice oppression or the like That with the Apostle is utterly a Fault and no Darling of Law The Law like the Deputy of Heaven the King hath no gloting Eyes petty offences are not only Traversable but not Actionable Regularly the Law will never fester where it can cure Being the Physician General of the State to prevent strife and not to beget it therefore words of Heat and Choller though utter'd by a small member yet often sharper then a two-Edged Sword the Law will not heed without Temporal Damage Would to God the Factious knew their own Happiness Frolicking in Goshen that even over-flows with Wealth and overmuch Freedom then they would leave Flouting Magistracy and Back-biting their best Friend the Law for the Law more tender-hearted then the Empress that hatched an Egg in her Bosom like a good Master to whom we have All sworn Allegiance principally aims at a triple Avowment to make the Subject Compleatly Happy The threefold Protection 1. To Guard the Person 2. To defend the Estate 3. To preserve that which is more Precious and of a Nobler Preise then both to wit the Good name 1. If the Person be menac'd and but in Dread of an Assault the Bear may be muzled at Common Law as a Trespasser As well as Justiced by Surety de bono Gestu for the good Abearing For Example If A. slay B. though necessariò as the Civil Law terms it in safeguard or Defence of his own Life the Town shall be Amerc'd with the loss of his Goods Though Justifiable even by the Law of Nature and Commendable too to kill rather then be kill'd yet the Law will Punish in Testification of Tenderness that heretofore was Death At Common Law Killing by Misadventure though not Destinatò with a man-slaying Intent 't was Murder nay by 21 E. 3.16 a Man-slayer though se defendend ' was Hangable and estate forfeitable in both cases as of Murder Neither is there any great Injustice or strangeness in this without a slaughterous Intent or malice prepense for the same was at the Judicial Law before Sanctuaries and Cities of Refuge were Erected But these Mischiefs at Common Law were Remedied by the 25 H. 3. the St. of Marlebridge This strictness without malice preconceived was the Law of mercy in Prevention of Blood ut Dolor ad nullos Terror ad Cunctos perveniat to fright All and punish none 2. For the Fortune one's more safe by a Quare clausum fregit then if surrounded by Xerxes Host 3. For the Good name Repairs will be bad against Defamatory Bullets snagled by malice by Action on the Case which will still keep the worthy more Shot-free then Caeneus Par. 221. Property Demonstrated THat ambulatory Trespass may be brought 't is on necessity of municipal Reason to avoid a publick Inconvenience For in supputation of boulted and seirs'd Reason all Lands are mounded though they be Campagne or lie unhedg'd which among Lawyers is Reason not far fetch'd much strain'd or Imaginary if we Consult the Dominion of the Sea which by Reason of its floting Currency cannot be walled or Paled in nor limited per metas Bundas by meets and Bounds after the good Husbandry and Usage of our Mother Element yet in Contemplation of Law 't is deem'd shut and Enclos'd though the Fence be not pointed out by an Isthmus Rock or any other known Buttal like an Agrarian Mound By the Marine Law any kind of Putative Boundary by oblique Lines Turnings and Angles doth Express Shutting and Enclosure And in nicety of Law annote as great a Right on the Sea as any Arcifinious mark or visible bound on Terra firma in a legal Meaning those Extracluse Buttings notifying a bounding Frontire or bordering Royalty The Lordship of the Sea Debated and Avouched On this Notion in Law 't is not hard to Conceive a Naval Sovereignty though Expos'd with open Arms Catholick and Common to All. Yet may the Pischary as in private Rivers with other navigable Priviledges be claim'd and enjoy'd without Encroachment or Infringing the Vniversal Rule or Law of Nations The famous Civilian that labours to have it in Common argues more like a Philosopher then a Lawyer when he draws his Flourishes from the Freedom of the Air with others of the same strain which are meerly Rhetorical and not Topical For what 's in Occupation Custom or Command there 's Property in Law or within the Reach or Protection of our Timber Walls the Law will create a Property But that some Waters are positively so none can gain-say Therefore Community without leave is a Disseisin an Encroachment or Breach of Civil Peace and good Cause of War if Reparations cannot be had otherwise Tokens of a Maritine Interest The Constant Homage of Loring the Sails doth imply Dominion otherwise Strangers of as high Insteps as our selves and stand much on the Tiptoe of Honour would hardly be so Civil signifying in Law as Flags and Marks of Sovereignty Christ-Dole Demandable and Due In a Pond Mote or several Piscary Tythe payable as a Predial and ought to be set forth as the 2 of E. 6. directs of Fish taken in the Sea as Decimae minutae like Herbs some Doubt hath been made because ferae naturae and the Sea within no Parish which are but Tiffany Reasons and not at all Convincing for Aquatiles in fresh Rivers are just as Haggard or unreclaim'd And Lands though Extra-Parochial are held clearly Tytheable to the mixt Person 't is granted a sum of mony shall be paid in lieu of Tythes which infers sufficiently the Law thereby adjudges an owner-ship If Exotick and purely Personal why then more Tytheable then Spices and Lemmons But by a late Prohibition I find very Tythe demandable for Fishing in the Sea on their Landing And that the Spiritual Court might warrant such a Libel The Bi-partite Property of the Earth At Common Law the Earth hath a two-fold Entire
Property the one Subterraneous or Downwards of all Waters and Mines within its Bowels the other Supra-terreous or upwards of Aire and all other Benefits to the topmost Sphere For if an Hawk reclaim'd come into Sale and light on a Tree the owner cannot take his own Chattel without leave but will be a Trespasser which shews there 's Property in speculation of Law in the very Air And surely Waters are more Mainorable that is Manageable then Aire To enlarge this matter By a Decision Maevius hinder'd Caius from Fishing in a publick Water Two Questions 1. Whether the Obstructing were Injurious 2. Whether Damageable or suable at Law Pomponius liken'd the Abuse to the Denying one the use of the Common Bath or Publick Theater unto both by him All are promiscuously Entitled by Law He conceives the Sea in no Propriety but that all are joyntly Entitled thereunto As Tenants in Common And that Fishing is no more Prohibitible then shooting at Wild-Fowl in anothers Ground which by Vlpian is Receiv'd for Law by Common use and Practice although grounded on no Positive Law 'T is agreed one may have a special Right to a Part or Creek of the Sea and in case of Disturbance an Injunction to quiet the Possession is Purchaseable on Course which proves that Sovereignty may extend over Water as well as Land though it be seldom or never Decided by Law but by that unhappy Trial of the longer Sword The Sovereignty provable by usage at Common Law As by a Case E. a sole Trader born on the Coasts of Flanders Is married to F. a Citizen of London born in the Port of Deep Two Points 1. Whether E. were born within the Ligeance of England 2. Whether the Birth of F. shall not be Construed of a Ship Anchoring in that Port. Resolv'd I find both Points held in the Affirmative And that the Sea is within the Kings Ligeance and Parcel of the Crown of England The Immensity of Water makes no Signiory in Common The vast wideness or immense Mightiness of Sea-Room Elbow Room enough to satisfie All with Lawyers is a very babish Plea And makes nothing against Dominion For in Law there 's as much Propriety in the largest Fields as in Crofts or Pitles Pety Closes or small Paddocks Therefore the great Civilian though a Compleat Marksman in all Learning in this Point hath fail'd of his Aim and hits not the Bird in the Eye Par. 122. The Right of Chattels Discuss'd and Defended AS Lands are Adjudg'd in Law to be Bounded though Fenceless the like doth the Law conceive of Goods though Subdiale or out of Doors not under Lock and Key Yet in Construction of Law they 're Conceiv'd in Manual Custody by the secundary Conclusion of the Law of Reason to Conserve Property Hence in Law Regularly an Entry into the Freehold of another even but to Hawk or Hunt or barely to walk out to take a mouthful of Air without Leave of the owner or of the Law is not Congeable or safe And such Entry with the smallest Hurt of Fishing Waters or Cutting Grass is a Disseisin vi Armis The Prerogative or special Priviledge the Law ascribes to the House Beyond Controversie in Law every mans House is his Castle as well against violence as for his Repose For Instance If J. S. happens to be slain by J. N. se Defendendo or Permisfortune without any mischievous Intent Yet 't is Felony Goods and Chattels will be forfeited for the high Regard the Law hath to mans life But in Defence of his House if Theeves or any other Assailants are Knock'd on the Head 't is Iustifiable without any Forfeiture The neighbourhood may assemble to Guard an House without a Riot And in all Civil Causes at the sute of a Subject not Forcible even by the Sheriff But on Recovery in Ejectment by virtue of the Writ For after Judgment in Right and operation of Law the House is not the Tenants or Defendants but the Recoverors or his Assigns In brief as the House is the Cittadel or Fortress of the Owner so the Estovers or fuel appendant to the House the Lands plenarily His with the Conterminous or neigbouring Air and all Avails usque ad Coelum to the uppermost Elevation Conscience Commandable by Law 4. For the fourth I cannot conceive the Keeper or Guard of the Soul Conscience so nice and Immaterial But that Sovereign Power may limit it without Infringing the Royalty of Heaven By what hath been Premised comes up full to our Case for the Opiniatives in Religion a Depression is violently Requir'd by necessity in Prudence otherwise not only Religion but the whole Peace of the Nation will soon be in Jeopardy For by the self-same Fore-head they scoff and pick Quarrels at the Church they may upbraid and fall out in Earnest with the Civil Authority And in Hurling and Heaving at the one the other is desperately Abus'd and Despis'd A queasie Conscience mightily Tolerated By Martial Law Mutiny which is but Sedition in the Law Civil is Death if then the Mutineers that is the Seditious come off with Paring of the nails when the offence requires the Hand or Cropping the Ears when the Crime deserves the Head nay with pecuniary Pains or Exilement 't is most easie a vast Toleration Roysters Drownable and the Shipper not questionable By the Maritine Law in case of Jetsam maris for the safeguard of the vessel the Goods of the choicest value may be thrown into the Sea Nay the Mariners and Passengers if not conformable to the marine Rules may be thrown over-Board And no Appeal of Homicide by the Prochein Amey or next a Kin shall impeach this Judgement The like in a Calm of Regency if roisterous Obstinates will on design raise a Storm if they suffer in their Estates nay their Persons lie by the Lees they may praise their own Freekishness Militants most strict in Discipline By the Civil Law if the Souldier did but ward off some Blows 't was cashierable But if the least show of violence or resistance were offered 't was expiable with no less then Death Disorderly Crasiness Condemnable Thus by Reason in State may Blades of Rhadamanth the Tores Moss-Troopers Kidnappers with Burglars and High-way Lads be rewarded with the Gallows to prevent a publick Mischief And likewise Hocquetours and Suborners with Scoffers and Flatterers Rumpers and Roarers against Monarchy be scourg'd with Keener Tools then Bull-rushes or snipping the Lugs to maintain Property and Peace SECT XVII Par. 123. Church Disquieters Prosecuted not Persecuted LEt 's suppose our selves in the Schools and put the Wrangle into Mood and Figure To be dragg'd to Prison for Divine Worship is barberous and Persecution But our Church Wranglers as they give out are Duress'd for no other Crime Ergo Handled over Rudely and Persecuted Were the minor per se nota and evidently true 't were Hardness indeed and Persecution but the Law takes them as Rioters not as divine Communicants but as
Acts. TO unlock the Maxim by an Instance at Common Law to Conscience very Bull-beef as tough as Whitleather to Common Reason and meer oppression As by a Case If J. S. be Disseis'd of Black Acre the Disseisor aliens the Alienee knowing of the Disseisin ex Animo to bind the Right obtains a Release with Warranty of an Ancestor Collateral Conscious too of the Tort the Warrantor dies the Warranty descends on the Disseisee Now whether the Title of the Alienee be good to the Tenderling in Conscience is a a Quaere beyond Dispute in Law 't is indefeasible and clear Because this Case is somewhat Opacous very Duskish and Dark to most but Lawyers For an easier Instance If a Woman Covert for Dread of her Husband levy a fine if declar'd 't will not be Accepted if past after the Husbands Death unlacing her mind wide open that 't was Compulsory and by fraud shall never reverse her own Act that is annibilate the Feoffment upon Record The like useful for the Vexatious entangled in Law The Sheriff at a private man's sute on Request to open the Door and Denial thereof cannot break open the House to execute any Iudicial Process but He 's a Trespasser yet if Execution be done 't is good Confiscation without any Crime Committed For Wreck at Sea the violent Event of Tempest and Water the Goods to be forfeited 't is to afflict the Afflicted powring Bitumen into the Wounds to inflame the Sore so if J. S. be slain with the Sword of J. N. the Weapon as a Deodand is lost yet no Crime can be assign'd in J. N. Par. 136. The Guiltless Mulctable for the Guilty IN Law one shall be beaten for another's Stroke for if a Stranger Commit waste in the Tenement of Tenant for life the Holder for life shall suffer in a Devastavit or Action of waste according to the Maxim Tenants by Act of Law shall do no Waste nor suffer none to be done So shall the Master be wrung and must be Responsible for the uneven Steps of the Servant The Lord answerable for the Hireling For Example If a Servant through negligence burn his Masters house and the Neihbours too the Master is oblig'd to make reparations The like by the Civil and Common Law of an Inholder if a Traveller be robb'd by his Servants or Guests though against his will and privity yet he must answer the Damage At Common Law by the 22 of H. 6. the difference is very rational that if a Guest take another to bed with him out of courtesie without the Intreaty of the Hoast and be by Him or through his Treachery robb'd the Hoast is free but if on the request of the Hoast he lodge with him the Law is otherwise To illustrate this more evidently by a Case Lord and Tenant by certain Rent the Tenant Teases for a year then the Lord grants ouster his Signiory And the Tenant ceases for another year Here the Tenant is Culpable sufficient yet Justice cannot hit Him being Law-free And neither shall have a Cessavit Conscience measurable by Law A closer Case to All but Students very Rare and Incredible L. mortally wounds P. on the Deep or Main Sea with which wound P. Lands at Dover there languishes and dies Here 's apparent Felony if not Murder and by Law Death yet L. in spight of Justice will not care a Button for the Homicide for some think no Law can attach Him no great Justice with the shivering Conscience that Murder should go unpunish'd Par. 137. Sinderisis the Divine Faculty of the Soul Inhibiting Vice and Injuncting Virtue THus the Monitor of the mind or Lanthorn of the Soul Conscience after the definition of a great Lawyer is but the Law of Reason for that it resembles and ministreth the notions of Reason implanâ—ed in every reasonable Creature let 's give it a more beamy stile and call it the Envoyée from Above or Lidger of the Soul Private Conscience must stoop to the National Conscience which is Law And natural Reason to the Regulated Reason the Statute of the Realm As briefly by a Case If Titius bid his Bravo examine the Pockets of Sempronius on his Iourney to Bristol Fair And He acts this Braving Burglarly in Cheapside Conscience may Conceive the Encitor Principal but the Law not even Accessary A stranger Case J. at Stiles Conspires with the Husband to poyson the Spouse to effect the Design furnishes Him with Poyson the Husband tempers it with Syrup and gives it to the Wife to Eat who nescious of the Poyson gives it to an Infant who Eats thereof and dies Here 's plain Murder yet in Law J. at Stiles not even Accessary This Case is to many very rare and wonderful For If one lie in wait to beat J. at Nokes and J. at Downs coming in the way be assaulted and slain though a Mistake and never intended 't is Murder For the Law couples the Event with the Intent and Interprets the mind accordingly The same If A. out of an old Grudge to B. shoot at Him and C. his bosom Friend instead of A. meet with the Shot and be kill'd 't is adjudg'd Murder A closer Case If A. and B. casually meet and from Words out of malice prepense fall foul on each other And a Stranger to part the Affray to prevent mischief interposes And is slain in the Scuffle or Hurt whereof He dies And 't is not certainly known who struck Him 't is murder in both the Affrayors In the first Case Murder Animo or mentally was originally design'd that is a Person to be destroy'd the same individual Person scaping the Trap another being Caught and Kill'd one would think should not vary the Law as in the other Cases SECT XX. Par. 138. Mistakes Examin'd and the Truth Clear'd SOme short-sighted Hungerers after Change Conceive and Assert for an habitual Abuse of Prelacy the Temporalties are seisable and Estreatable into the Royal Coffers Mighty news indeed the Effect and Consequence of Law Familiar to every Ideot Nay when the State pants under any Exigency it may be Spirited and supply'd by the Rapine of the Church the Order thrown down and the Lands sold A most Corruptive Witchery of the ugliest Pollution Brew'd from the very Kennels of Impurity But whether the Temporals for Personal Crimes or State Indigence may be pleno jure or in Purity of Justice Transferr'd unto a secular use and thereby the Function quite cashier'd They offer not the least colour out of Scripture Authority or Reason in Proof of this Desperateness Par. 139. The Mistaker lost in his own Maze IN Law if the Church be Endow'd with a Chalice or Bell the Donor cannot at will or if Abus'd without Sacriledge Defeat or Recall the Gift The like if one set up an Organ or Erect a Pew these Devout Presents are instantaneously Dedicated to the Church The Benefactor cannot repent of his good Deed by Taking down the one or Removing the other at his Pleasure The