every day (f) Bodin Republ. l. 4. câ—p 2. p. 441. all their Conjectures are uncertain 30. Perjury in an answer in Chancery or Exchequer is not punishable by any penal Law The ordinance for Reformation of the Court of Chancery appoints Legacies to be sued for at Law and excludes them the Chancery but doth not dirâ—ct what account shall be brought 5 Eliz. c. 15. or Act of Parliament onely it 's said that it may be punished upon a Bill for Perjury in the Court where it was committed this is a long way further than a man will be willing to go at his own charge and I never yet knew any man punished there for any such Perjury and it was punishable in some cases in the Star-Chamber however it 's sinfull perjury before God Iohn 8.44 Zach. 5.4 Ier. 5.2 31. There was no Law to recover Legacies but in a Court of Equity before the last Ordinance and there is yet no Law setled for recovery thereof if the Legacy exceed not twenty pounds the charge of the Suit in Equity if it come to a Decree will be as much as the Legacy it may be much more if the Defendant be wilfull or liberal nor is there any Law to acquit executors upon payment of Legacies to Infants although it be done to their great preferment this is a defect Rom. 13.7 Heb. 9.17 32. There wants a Law for punishment of Witch-craft where murder is not committed setting a Witch upon the Pillory and imprisonment for exercising her Devilish malice upon Cattle (g) The defect of this Law was complained of by St. George Crooke upon the triall of a Witâ—h convicted of Witchcraft but not of Murder about the year 1627. at Coventry or men when death follows not is not sufficient such Witches as likewise Magicians ought to be put to death Exod. 22.18 K. Iam. Daemonol lib. 3. cap. 6. pag. 76. An Action upon the Case will not lye for calling one Witch and this reason is given in the book because Witch-craft is but Art and the word doth not imply any Act or exercise of it But Gods word teacheth us not to consult with the Devil or his evil instruments (h) Tacit. Annal. l. 2. cap. 8. p. 43. Pituanius a Magician was cast down headlong from the Tâ—â—peâ—u Rock The Romans banished such as consulted with Wizards and sometimes put the Magicians and Wizards to death according to Gods law Thou shalt not suffer a witch to live 33. There wants a Law directing how mens personal Estates shall be divided by Administrators when a man dieth in Estate (i) Magna-charta c. 18. Fitz. N. â— 122. l. Wingat Law cap. 11. p. 19. numb 13. It was anciently at the discretion of the ordinary who used to dispose of part of mens Estates or what he pleased in pias causas or for the health of the Soul of the deceased as it was said but now the Superstition is removed it 's necessary it should be declared what proportion the Wife and Children or Kindred should have it seems anciently a Wife was to have a third part of her Husbands clear personal Estate and Children unpreferred another third part Cook English Law pag. 47. but this is not observed All men who have any estate ought to make Wills to preserve peace after their deaths and to divide their estates amongest their Children Gouge on Epes 6. Tract 6 pag. 321. The remedie of thâ—s is to have all mens estates inrolled in the Counties where they are As the Jews had their estates with their Pedegrees inrollâ—d Ezra 2 6â— Jer. 32.11 John 14. and 15. and 16. 34. The like want is found where a man seized in Fee-simple of Lands having no personal Estate and many Children dyeth in Estate the Land descends to his Heir and the younger Children can claim nothing this is a hard case And far worse is it where a man hath an Estate in Tail and nothing else to preferre younger Children In the first case he may by Will in vvriting charge his Lands in this he cannot dispose of his Lands by Will charge them with any thing to raise portions for younger Children this would be amended by some profitable Law and Lands for this cause would be made Fee-simple Gen. 25.6 Luke 15.12 Iosh cap. 14. and 15.16 17. 35. There wants a Law to secure purchasers from being cheated by old Intails sleeping Morgages Judgements Statutes In somuch as I heard a Learned man say once there is no fence against a Knave some publick Register in every County should be setled and a Law made that whatsoever Estate should not be there entred should be void as against purchasers and such as some in for valuable considerations there are many men cozened and undone in such cases and no remedy if the Incumbrances were for any valuable consideration at the first although of long continuance This ought to be amended see this case recited by Charles Geo. Cook Essay pag. 123. 36. That Copy-houlders of Inheritance should not have liberty to set or let their Lands (k) Bodin de Republica Tit. 1 p. 39. Cook compleat Copie-houlder sect 9. p. 8. sect 12. pag. 14 15. unlesse for a year or three years is a hard Custome and to Fine at the Will of the Lord is worse the pretence of Ease in Chancery or Exchequer is a meer gullery the first ought to be amended and the last assertained by some good Law Cook English Law pag. 48 49. 37. That there should be no means to recover Debts upon (l) It 's made a note of a wicked man to borrow and not to repay Psal 37.21 Therefore there those should be a Law to enforce men to pay just debts and not to suffâ—r men to cheat men by such niceties Gouge on Ephes 6. Tract 5. pag. 271. col a. b. simple contracts against Executors nor to recover from the Executor of him that was Bayliffe or receiver of monies as it falls out in some cases is a great defect the reason of it is because the Testator might in his life-time have waged his Law But in some cases it is impossible that he should in reason by such gager discharge himself as when the money is an Infants and when there are witnesses to prove the contract This ought to be amended being but a Law of common right to enforce a mans Estate to pay Debts which are justly due 2 Kings 4.7 Exod. 22.26 27. Luke 6.35 and 7.42 38. There wants a Law for restraint of excesse and oversumptuousnesse in diet and house-furniture the excesse wherein doth ordinarily undoe and cause to goe to ruine the Estates of very many especially (m) Coel. Rhodig Lect. Antiq. lib. 9. c. 13. p. 330. Citizens and is the worst Thief in the Common-wealth except gaming and suretyship the Romans had Laws for restraint in this kinde and therein (n) In villaticis pastionibus sunt qui pro guloso accipiunt Aegyptio Regi
out of use and ought to be Repealed The Act for Reforming of Disorders in Ministers a superstitious Law 13 Eliz. 12. The Statute of the 5 Eliz. 23. whereupon the Writ De Excommunicato Capiendo is grounded is an impious wicked Law as the Excommunication it self is a horrible Prophanation of the Ordinance of Christ in his Church The Statutes of 35 Eliz. 1 2. appointing grievous punishments for not coming to hear Divine-Service as it is called and for Meeting in Private-houses for to Pray or Worship God This is a wicked Law and was an occasion of great Persecution for many years Those Laws which create Apocryphal Saints as Thomas Becket called Thomas the Martyr 2 H. 5. 4. The Statute of 25 H. 6. Chap. 5. equalling superstitious and Idolatrous dayes with the Lords-day Holy-Rood-day called Corpus Christi Assumption of Mary Good-Friday All-Saints put all together with the Lords-day called there Sunday These are profane Laws The Sâ—atutes of 21 H. 8. 6. and 26 H. 8. 15. appointing the payment of Mortuaries which are pretended to be given to God for the purging of the Souls guilt of the deceased which he contracted by non-payment of Tythes Thi is a superstitious Law and a derogation from the All-sufficient Merits of Christs sufferings The Statute of the 3 Hen. 5. 4. contains in it Prayer for the Dead a thing unlawful and superstitious There are divers Laws made against the Followers of John Wickliff called Lollards who in the Statutes are said to be Hereticks who intended to subvert the Christian Faith The Law of God The Church and the Realm 2 H. 5. 7. and 5 Rich. 2. 5. 2 H. 4. 15. 25 H. 8. 14. These were the most sincere Professors of the Gospel A Law was made 1 Edw. 6. 12. to Repeal the Laws against the Lollards yet long after that the High-Sheriffs were yearly sworn to extirpate these Hereticks as they were called and that clause was continued in the Sheriffs Oath until the late Wars Sir Edward Coke calls them Hereticks we may see what Times have been and how the bent of the Lawes have been to root out the Gospel and to Establish Popery The Statute of the 4 H. 4. 18. That an Attorney playing the Knave shall forswear the Court This is an abuse of an Oath and profaning the Name of God These Laws are all of the same kinde with those before-mentioned in the 5th Chapter where the Statute of Marlbridge and other old Statutes made in affirmance of the Common Law are recited and are Repugnant to those Laws of God contained in the Holy Scripture which are there expressed as further appeareth in this Treatise where most of these Laws are more particularly handled CHAP. VIII That the Common Law hath been altered and changed since Edw. 4. his time when Littleton wrote in an hundred particulars most of them of great Importance BY the Statutes made since Littleton wrote 37 H. 8. c. 9. 13 El c. 8. Coke Rep. l. 5. fo 7. Assurances of Lands and all Statutes and Obligations made upon Usurious Contracts against those Laws are avoidable and the Law therein altered since Littleton wrote 2. By a Statute concerning the inrollment of Deeds 27 H. 8. c. 16. Coke Rep. l. 2. fo 36. l. 4. fo 70. l. 5. fo 1. l. 7. fo 41. l. 8. fo 93. the Purchaser hath many Priviledges which he had not at the Common Law in force before that Statute as the Estate in Lease or a Reversion passeth without Attornment and the Purchaser may distrain for Rent And if it be the Inheritance of the Wife the Husband having Issue by her shall be Tenant by Courtesie and an Estate passeth without Livery 3. There were several Statutes made since Littleton wrote 32 H. 8. c. 2. 34 H. 8. c. 5. 27 H. 8. c. 10. enabling men to devise their Fee-simple-Lands by Will in writing which regularly a man could not do by the Common Law unless by Custom which was but in some Boroughs and some few other places If the Lands were holden in Knights Service the Owner might devise two third parts if in Soccage he might devise all And since of later times the Tenures in Knight-Service and Capite are abolished 4. At the Common Law 13 Ed. 3. det 135 139. an Heir might have had an Action of Debt upon an Obligation made payable to his Ancestors and his Heirs But the Law is now altered and onely Executors and Administrators can recover upon such an Obligation This is plain by the Probate of every Will and is so in daily practice for all the Goods and Chattels are Assets and shall pay Debts to the Creditors their Executors or Administrators Coke Com. Littl. Dower l. 1. c. 5. sect 53. 55. 5. At the Common Law a Woman should have lost her Dower by the Felony of her Husband that Dower which was Ex assensu patris ad ostium Ecclesiae and her Dower by Custome But now it 's otherwise by several Statutes and these two former sorts of Dower are now out of use 27 H. 8. c. 9. Coke Rep. l. 5. fo 27. 6. By the Statute of 27 H. 8. Chap. 9. A Joynture before Marriage made to a woman is a Bar to a Writ of Dower to be brought by the woman for the Third part of the Lands whereof her Husband was seised during the Coverture which was otherwise at the Common Law when Littleton wrote Westm 2. c. 1. 7. By the Statute of Westm 2. Chap. 1. If a man seised of Land in general Tail had taken a wife and afterwards been attainted of Felony 1 Ed. 6. c. Coke Com. Littleton l. 1. c. 5. sect 53. before the Statute of the 1 Edw. 6. the Issue should have inherited although the wife should not have been endowed But now she shall be endowed and yet the Issue in such case shall not inherit the Lands which the Father had in Fee-simple 32 H. 8. c. 28. 13 El. c. 10. 18 El. c. 20. Coke Rep. l. 6. fo 37. l. 11. fo 67. 8. By vertue of several Statutes made since Littleton wrote Bishops Deans and Chapters Halls and Colledges Parsons Vicars and Governours of Hospitals are disabled to make long Leases or Conveyances of their Lands belonging to them in right of their Corporations And they may avoid such Leases as they shall make of such Lands contrary to those Statutes which they could not do when Littleton wrote and the Law iâ— altered in those Points by the said Statutes and they are now restrained 13 El. c. 20. 3 Jac. c. 4. 32 H. 8. c. 28. 9. Also by vertue of the same and some other Statutes Ecclesiastical persons may make Leases of their Beneâ—â—ces so they be not non-resident or absent fourscore dayes and Tenant in Fee-simple in Right of his Church Tenant in Tail and a man and his wife seised in Fee or Fee-tail in Right of the wife may make Leases of such Lands for three
onely be imprisoned as Jeremy was but may be hanged Therefore such Laws as these had need to be Expounded or Declared void 2. Thess 3.1 2. Isa 29.21 Jer. 26.6 7 11. 18.19 2 Sam. 12.7 13. 43. That an Heir having Lands Descending in Fee-simple shall not be subject to the Debt of his Ancestor from whom the Lands descend if he sell the Land (u) Custom Norm tit querel de debt fol. 87. Cook Entr. a. fol. 126. b. before the Action brought This is an unjust Law for that there is as much nay more reason to charge such an heir after the Alienation as before for then it is ascertained what the value is as well as in case of an Executor and what benefit it is to him without hazard 2 Kings 4.1 7. Rom. 13.8 44. That Lands taken in extent or seized upon an Utlawry at the suite of a private man for debt the issues and profits thereof should go to the King and so to the Lord Protector is a senseless and unjust Law seeing the Creditor sues for his just debt and is at all the charge (w) New Term. Law verb. Vtlawâ—y Coke l 6. fol. 80. l. 7. f. 3. l. 3. f. 2 3 4 35. 22 Ed. 3. l. Ass Pl. 33. 29 Ed. 3. l. Ass Cowel Inter. verb. Vtlawry Wing at Law cap. 37. pa. 59. N. 19. The like may be said of all Utlawries where men are utlawed in forren Counties and seldome or never hear of the suite the Proclamation grounded upon the satute of 31 Eliz. being never duly proclaimed but returned of course yet the party utlawed by the Common Law forfeits all his goods and Chattels and likewise the profit of his Lands until the Utlawry be reversed this is a harsh Law and used to insnare men and might well be amended Jer. 5.26 Levit. 25.43 46 53. Isai 58.6 Job 35.9 45. (x) Clerks Proposals second Paper 1650. N. 9. Justice Hutton in a cause heard before him C. B. That a man indebted upon a single bill without a penalty payeth the mony at the day and can prove it by witnesses but hath not the bill delivered up as it falls out many times nor any release from the Creditor under his hand and seal An Action is brought upon this bill by the Creditor or his Executor or Administrator The Defendant cannot be admitted to plead that he paid the mony at the day nor can make any defence at Law unlesse he have a release this is an unjust Law and a wrong to the Debtor and so unlawfull Job 16.17 Jer. 21.12 Ezek. 18.7 Prov. 22.22 46. (y) 26 Ed. 3. l. Ass Pl. 41. 12 Ed. 3. l. Ass Pl. 20. 29 Ed. 3. l. Ass Pl. 68. 40 Ed. 3. l. Ass Pl. 22. Kitchin fol. 162. a. That a Wife having right to be endowed and nothing to be said against it shortly after her Husbands death shall be a trespasser to her own Child or any other who is heir to her Husband and shall have nothing untill shee have recovered it by a writ of Dower which is a tedious way and the proceeding and Execution thereof chargeable This is an uncharitable Law and contrary to that Law of Equity that a Wife should partake in all her Husbands estate according to his degree and ability and Dower is one of those three things which are said to be favoured in Law but this is small favour 1 Sam. 1.5 Exod. 2110. Mal. 2.14 Eph. 5.33 1 Tim. 5.4 47. (z) Custom Norm tit Murder f. 75. a Rast Entr. Imp. 1574. Barn in Appel 8. fol. 43. in mort fol. 46. 47 48 52. a. That in an Appeal of Murder the Wife or heir of him that is slain bringing an Appeal against the Murderer may compound for mony and give a release of the suite and so consequently of the death of the party slain this is an impious Law against the Law of God Gen. 9.6 Exod. 21.12 14. Numb 35.30 31. Rev. 16.6 48. That a Priest or one in holy orders as he is said to be should have (a) Coke Inst 2 part pag. 4. Orig. Reg. fol. 147. Capias si Laicus sur stat de Acton Burnet See the statute 23 H. 8. c. 6. 37 H. 8. c. 9. Cons Norm tit Cler. fol. 146. a. Cowel Instit lib. 3. Tit. 2. Sect. 5. pag. 225. an Exemption and freedom from arrest upon a Capias si Laicus upon a statute-Merchant and that all other men called Laicks should be charged although the Priest were the principall Debtor and never was any Preacher but some Chorister or such like fellow this Law is both unjust and superstitious as being one of the priviledges of the Romish Church Prov. 20.16 and 27.13 and 22.26 27. 49. That a poor man taken in Execution for debt and having nothing to pay by Law cannot be discharged nor (b) Coke Entr. Audita Querela fol. 85 86 87. Coke l. 3. fol. 44. enlarged for an hour without losse of the debt for ever but must starve and dye in prison whereas in some Countries (c) Rous Att. Ant. l. 3. c. 1. pag. 96. Tit. Liv. l. 8. p. 301. D F. This Historian saith that the Law was 1. That none should be kept in fetters but he that was to suffer for some heynous offence 2. That for lent mony the goods of the debtor should be obliged 3. That no man should be imprisoned for debt the goods of the Debtor go to pay his debt and his body not to be Imprisoned but if you will keep a man in prison that hath nothing to pay you must maintain him or else let him go out and by that means men going to the Indies or following their profitable imployments many times become able to pay their debts and leave estates for posterity The Law hath been lately moderated by several dispensations or pardons but there is yet no certain Law in force in the point providing equal Justice and equity both for Creditor and Debtor Matth. 18.26 29 33. Isa 58.3 Luk. 7.42 Coke estay pag. 166. (d) Tacit. Annal l. 11. c 4. pag. 145. Pomponius made a Law to restrain the cruelty of Creditors and forbidding them to lend mony at Interest to young men to be paid after their parents death lest they should be deceived or ruined by such borrowing 50. (e) 5 Eliz. 23. Regist f. 65 66 67 70. Cowel Interp. verb. Excom Capiendo N. Term Law verb. Excom Wingat Law c. 38. p. 62. n. 19 20. The Writ de Excommunicato capiendo being in nature of an Execution against him that is Accursed that is Excommunicated fourty days from which no Money will redeem a man nor any thing else but the sacrificing of his Conscience in doing what the Ordinary will have him do which is called being justified by his Ordinary This is a wicked Law and many have been Imprisoned and others enforced to leave their Country for fear of this Execution this being the worst thing the
Grantor and to the Issue in Tail the Land in Law had been the parties to whom it was conveyed and Cesty que use he for whom the use was had nothing but Equity to recover the Profits But now since Littleton wrote all possession is transferred to the use and the Law changed Plow Com. 349. 6. 27. By a Statute made 2 H. 5. all such Jurors as were to be returned for Tryal of Issues joyned in any the Courts at Westminster or before Justices of Assize 2 H. 5. c. 3. second Parliam 11 H. 7. c. 21. were to have 40 s. by the year in Lands and Tenements c. By the Statute of the 27 Eliz. it is enacted 27 El. c. 6. That such Jurors shall have 4 l. by the year at least and so it is to be expressed in the Venire facias which is an alteration since Littleton wrote 28. All those special pleadings discussed by occasion of Littletons Text 23 H 8. c. 5. 7 Jac. c. 5. 12 Act 23 Octob. 1650. 21 Jac. c. 14. l. 3. sect 485. are taken away by several Acts of Parliament And by the last Act of the 23 Octob. 1650. liberty is given in all cases to plead the general Issue which is a great ease in most cases although in a Replevin the Law is rather worse then it was as is shewed in its proper place 29. By several Statutes since Littleton wrote the times for commencing of real and possessory and personal Actions are limited 32 H. 8. c. 2. 21 Jac. c. 16. First by the Statute of the 32 H. 8. and afterwards by the Statute of 21 Jac. By which Statute it 's said the Kings Right is concluded as well as all other persons and barred after twenty years in all real Actions These are abridgements of the Law since Littletons time 27 H. 8. c. 4. 1 Ed. 6. c. 14. 30. All those Laws mentioned by Littleton concerning Free Chappels and Chantries and the cases thereupon depending are at an end by those Statutes since Littleton wrote 31. By several Statutes made since Littletons time the petty Errors in Pleadings 32 H. 8. c. 30. 18 El. c. 14. Mispleadings and Jeofailes are helped and amended in real mixt and personal Actions insomuch as where at Common Law every mistake of a Letter Word want of Warrant of Attorney or Misreturn of any Writ or any other petty inconsiderable Error or Mistake 21 Jac. c. 13. was sufficient to destroy any Action or to arrest or reverse Judgement Act 1652. Now no Error before Appearance nor any Error but what is matter of Substance and of the Essence of the Action can prejudice the Suit This is an amendment of the Common Law 32. The Law concerning ordinary Jurisdiction and Spiritual Law as they called it which is discussed by Littleton Littleton l. 3. sect 648. Lib. 3. Sect. 648. hath been since altered by the Statute of the 25 H. 8. which restraineth the Ecclesiastical Laws 25 H. 8. c. 19. that they be not repugnant to the Common Law nor the Statutes and Customes of the Realm and since the same Law concerning ordinary Jurisdiction and Ecclesiastical Laws are abolished with the Hierarchy of Bishops c. and their Courts 33. Since Littleton wrote there were two Statutes made to preserve Remainders and Reversions in Lands and Tenement expectant upon Estates for Life 32 H. 8. c. 31. which it seems by the Common Law might be barred by a Common Recovery or thereby the Entry of him in Reversion or Remainder taken away But by those Laws such Recoveries by Tenant for life are void and the Entry saved by the last Statute of the 14 Eliz. 14 El. c. 8. which is contrary to the Law in force when Littleton lived although the first Statute be Repealed by that last mentioned 34. The like Law was concerning Tenant in Dower Coke Com. Lit. l. 3. sect 697. 11 H. 7. c. 20. If she had aliened in Fee with Warranty and dyed that Warranty had bound the Heir But now if Tenant for Life or in Dower alien it is a forfeiture and the heir may enter This is a good amendment of the Common Law 35. If Tenant in Tail be in possession 26 H. 8. c. 13. 33 H. 8. c. 20. or that hath Right of Entry be attainted of High-Treason the Estate Tail is barred and the Land forfeited But this Attainder was no Barre at the Common Law nor when Littleton wrote 36. If Tenant in Tail levy a Fine with Proclamations 4 H. 7. c. 24. Coke Com. Lit. l. 3. sect 708. according to the Statute this a Barre to the Estate Tail but not to him in Reversion or Remainder if he maketh his Claim or pursueth his Action within five years after the Estate Tail spent But the Law was otherwise when Littleton wrote 37. When Littleton wrote if the Kings Donee in Tail the Remainder in the King had suffered a Common Recovery the Estate Tail had been barred but not the Reversion or Remainder in the King and if such Donee had levied a Fine with Proclamations 4 H. 7. c. 24. 34 H. 8. c. 20. Coke Com. Lit. l. 3. sect 708. after the Statute of the 4 H. 7. this had barred the Estate Tail although the Reversion were in the King But since by the Statute of the 34 H. 8. a Common Recovery had against the Tenant in Tail of the Kings Gift or such a Fine levied by him the Reversion continuing in the King is no Barre to the Estate Tail wherein the Law hath been changed since Littleton wrote 38. By several Statutes made since Littleton wrote the wife of a man attainted of Misprision of Treason 1 Ed. 6. c. 13. 5 Ed. 6. c. 11. 5 El. c. 1. 11. 18 El. c. 1. Murther or Felony is Dowable which was not so favoured at the Common Law 39. By the Statute of Westm 1. No Sheriff or Minister of the Kings was to take any thing for execution of his Office 23 H. 6. c. 10. 19 H 7. c. 8. 29 El. c. but what the King allowed to him and is was so by the Common Law But by Statutes afterwards of which two are since Littleton wrote Fees are allowed to be taken by such Officers 32 H. 8. c 32. 40. By the Common Law no Executor or Administrator of Tenants in Fee-simple or Fee-tail had any means to recover Arrerages of Rents and Services due in the life-time of such Tenant Now the Law is altered and such Executors and Administrators are by Statute enabled to sue for and recover the same 27 H. 8. c. 10. Coke Com. Lit. l. 3. c. 5. sect 384. 41. By the Statute of 27 H. 8. If a man seised in Fee-Covenant upon good Consideration to stand seised to himself for life and to the use of his eldest Son in Tail with the Remainder to his second Son in Tail with Remainders over c. and to
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
High-Commission refused to take it saying he was not bounden to accuse himself but said he would swear and answer upon his Oath to what they should ask him so far as he was bounden by Law He was answered There was no more desired of him Thereupon the honest Gentleman although a Lawyer was deluded and cozened with this word Law which was equivocal either referring to the Common Law or to their Popish Tyrannical Canon or Ecclesiastical Law and taking his Oath had Questions demanded of him of things which intrenched upon his Estate and Liberty for which he might be fined and imprisoned if not his life To these he answered That he was not bounden by Law to answer to them being against himself according to that Rule of Right Reason above mentioned No man is bound to accuse himself This they declared Perjury and for that they fined him 300 l. What difference is there between these proceedings and the proceedings in Courts of Equity especially when Answers are made to Exceptions or when the party is examined upon Interrogatories against himself The best that can be made of it is That it is a profaning the holy Name of God and the abuse of an Oath as being here not (g) Heb. 6.16 the end but the beginning or rather occasion of strife and if this Oath were taken away men would be sure to have Witnesses present to all their Contracts and Agreements And it may be observed that there is no manner of credit given to the Defendants Answer for the Practisers in Chancery use to say It 's no matter if the Defendant swear the Crow is white if the Plaintiff can prove she is black And upon this ground all wise men proceed in reference to Suits in Courts of Equity not to prefer their Bill unless they can prove it or at least the material points thereof I have observed That in almost thirty years practice I never found one Defendant who wanted conscience to pay a just Debt where it could not be proved by Witnesses that would ever confess it in an Answer upon his Oath but rather use the help of some skilful man to draw his Answer so equivocal or cautelously that it might not prejudice his Cause This hath been and is a heavie temptation and provocation to Perjury and so a breach of the Law of God which causeth the Land to mourn and therefore ought to be abolished Object 7. And where it is alleadged That although in Criminal Causes which are popular men are rot bounden to accuse themselves (h) This is the abuse of an Oath as before is proved Heb. 6.16 and is a sin against the law of Nature no man being bounden to accuse himself yet for discovery of Fraud and Deceit in Cases Personal they are bounden by Law to declare the truth upon their Oaths in their Answers Answ It may be answered first That all Frauds and Deceipts are things criminal in foro Conscientiae and for which in most Cases a man may be indicted at Common Law and in some Cases by vertue of several Statutes as for fraudulent Conveyances and for some deceipts in Bargaining and for cozenage in selling of Wares and in many other Cases And if a man in any case were to be enforced to confess the truth against himself there is most reason it should be done in Criminal Causes most capital as when Treason Adultery Murder or some great Felony is committed and several men accused Were it not a fair pretence that every man to clear himself and to the end to finde out the Truth should be examined upon his Oath And yet this is not allowed in the Law nor ought to be done for the reason aforesaid unless the Defendant will (i) Exo. 22.11 voluntarily offer his Oath which may be admitted by the Law of God otherwise Joshua (k) Josh 7.19 22. would not have done it in the case of Achan although he exhorted him to confess the truth and give glory to God yet he did not enforce him to swear but searched his tent for the wedge of gold and the Babylonish garment neither did our Lord Jesus Christ urge the woman taken in adultery to accuse her self but asked where her accusers were Joh. 8.10 11. and when he saw that no witnesses accused her he said No more do I and bid her go her ways and sin no more Now in those Cases which are not criminal as about Trusts and Estates in Land in Extent and such-like which may usually be proved by Witnesses where men are forced to answer upon Oath these do many times intrench more upon mens Liberty and Estates in respect of consequence then an hundred trivial Frauds or Thefts and therefore this will not warrant their answering upon Oath All the Arguments which have been brought aâ—ainst the Oath Ex Officio if I mistake not make directly against this Oath And it is no more lawful then that Popish Oath with Compurgators which was used to be administred in the Spiritual or rather Bawdy Courts to purge men of Incontinencie or Fornication And this is all which I shall say in this place of these Courts of Equity CHAP. XI That the Theory of the Common Law and some of the Statutes now in force câ—ntain matters repugnant to the Law of God TRrial by (a) Plow Com. fol 366. B. 261 B. Assize 1 Ed. 3. f. 1. Coke l. 8. f. 46 l. 9. f. 31 Rast Entr. Ap. Mort. f. 50. B Droit f. 223. A. Cust Noâ—m tit Suit oâ— Murdre f. 70 71. Cow Instit Index Exposit lit P. Combate in an Appeal of Death or a Writ of Right when men by themselves or their Champions decide matters in controversie by the death one of another in a Duel This is a wicked Law taken from the Heathen Lombards and Saxons and directly against the Word of God Num. 35.16 17 18. Matth. 19.18 Cock Essay p. 178. Rotaris one of the Kings of the Lombards had taken away this Law protesting that it was inhumane and naught Lewis 9. King of France is commended for this Edict Nous defendons battailles par tout en nostre Domaine en toutes querelles i. e. We forbid Combats in all Quarrels thorowout all our Dominions 2. (b) Myr. Just. c. 3. â— 24 25. Dyer f. 301. n. 41 42. Westm 1. c. 40. Stamf. pl. Coro l. 3. c. 14 The Combatants and Champions Oaths in an Appeal of Death or other Felony or in a Writ of Right is likewise a profaning of the Name of God an abuse of an Oath which is a part of Gods Worship and a Bond of Iniquity Jer. 4.2 Act. 23.21 Heb. 6.16 3. (c) Cowel â—nst l. 4. T. 18. â— 17. p 324. Westm 1. c. 2. Stamf. pl. Coro l. 1. c. 9. Art Clâ—r 9 E. 2 c. 16. The Law concerning Man-slaugâ—ter at the Common Law when a man killeth another wilfully being done suddenly or in hot blood he shall not suffer death if he can
should we depart from them being none of those Ceremonial or temporal Laws which now being abrogated are unlawful to be used Exod. 18.13 21 22. Numb 27.1 2. Deut. 17.6 10 11. Ezra 7.25 26. Acts 25.9 10. 54. That no man can be punished upon Indictment for breach of any penal Law be the matter never so plain except in some few cases lately provided for (u) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 2. fo 69. The bill found by the Grand Jury is but an Accusation until the matter be found by two Juries unlesse the offender will confesse the fact which causeth few or none to be punished for wilful breach of the best Laws in force by reason that the Prosecutor is forced to be at so great a charge to promote the execution of Justice and every petty Errour is sufficient to overthrow the Indictment being but a mistake of a word or syllable it 's fatal being helped by no statute of Jeofails Thus such as are Indicted creep out by one means or other the Prosecutor or Informer being never favour'd in any Court and seldom any Common Jury will finde for the Prosecutor it being a common saying amongst such Jurors that if they finde for the plaintiffe they shall have nothing for their labours By this means most of the penal Laws stand as so many scar-Crows effecting nothing (w) An ineffectual Law is quasi Campana sine Pestillo A bell without a clapper Danaeus Hawk Right of Dominion l. 2. c. 9. p. 65. This course in proceedings is faulty three wayes 1. It 's too Tedious and chargeable to the Prosecutor 2. It puts the Jury into the place of the Judge as before is said 3. It 's an encouragement to Offendors and in all these against the Law of God Acts 24.22 26. Exod. 18.22 Eccl. 8.11 55. Purgation by Ordael or Ordaeals when such as were accused of Crimes were put to their tryal by (x) Glanvil l. 14. c. 1 2. Cow Interp. verb. Ordael Combate by fire by hot water or cold water and so according as they came off they were pronounced guilty or not guilty Concerning the first I have herein formerly spoken That which was performed by fire Verstegan Rest decayed Intell. Pa. 50. 51 52 53. was either by taking red-hot Irons into their bare-hands or walking bare-foot over red-hot plow-shares blindfold That by hot water was by thrusting the parties Armes aâ—cused into boyling water to the Elbows That by cold water was by casting the party accused into a deep pit with a cord under his or her Armes In these cases if the accused partyes go over seven plow-shares being laid a little distance one from the other and either tread besides them being blindfolded or treading upon them with their bare feet or taking the hot Irons in their bare hands have no hurt and so if the parties putting their Armes into the hot water be not scalded or he or shee that is cast into a Pool do sinke and then come up again without hurt they are pronounced innocent and not guilty but if they are burned by the hot Irons or scalded by the hot water or cannot sinke in the cold water as likewise he that is slain or vanquished in the combate in such cases they are pronounced guilty Of these Sorceries for they are no better invented by Pagan Conjurers the old Law-books speak largely that the same were used before and after the Conquest and the (y) At Hampton in Arden Com. War A Woman suspected for a Witch was so tryed by the rude people for which they were indicted 1653. It s said some of these Trials are taken away by a statute of H. 3. but seems to be very obscure and doubtfull rude people use to try Witches by cold water as above is said until this day And although these Ordaeals be not commonly used yet they may be there being no Law as I take it against them but only a decree of Pope Stephen II. which is no binding Law These superstitions were never ordained to try or acquit guilty persons or such as are queâ—â—ioned for their lives they ought to be tryed by the testimony of witnesses Deut. 17.6 Numb 35.30 Heb. 10.28 56. (z) Coke l. 7. Calvins case fol. 2.19 28. That the King heretofore should have had to his own use all such Lands as any stranger borne of parents out of the Kings Allegiance purchased in England is an unjust Law and contrary to that which was used of old times and mentioned in the Holy Scriptures where men were admitted to purchase Land amongst the heathen and to enjoy the same Abraham bought a Field of Ephron the Hittite and enjoyed it and Isaac and Jacob had it after him as appears Gen. 23.17 18. compared with Gen. 49.30 31 32. 57. (a) Swinburn Tract Wills par 2. sect 14 15. Part. 5. sect 3. That Anabaptists such as deny the Baptism of Infants are accounted in our Law Apostata's and are not capable to make any will to be Executors or to receive Legacies this was not only held to be Law in times of popery but hath been since so determined the same is a wicked and unjust Law for if it should be granted that these men hold an Errour about Infants Baptism which may be questioned yet it cannot be thought to be an Errour in the foundation or a rejecting Christ and the Gospel nor so bad as to hold that all Infants although the Children of Pagans unbelievers and excommunicate persons ought to be or may be Baptized because this is contrary to these mens own principle grounded upon that Acts 2.39 Acts 2. The promise is made to you and to your children and to all that are afar off even as many (b) By this Scripture only the Children of believers or such as are called have right to the promise as the Lord our God shall call But howsoever this opinion cannot take away the civil right or property of any man to the things of this life to which the most wicked man living may have (c) The King hath Power and Soveraignty The property and possession of every mans things yet reserved to himself Bodin Republ. lib. 1. pag. 110. 111. a civil right This therefore is an unjust Law Gen. 14.23 Numb 22.30 32. Acts 5.4 58. The like Law is concerning (d) Coke l. 5. fol. 25. Hereticks who are such in our Law as deny any Article of the Creed if it be but the locall descention of Christ into Hell or such whose opinions have been condemned by a General Council as the Papists will tell us the Protestant reform'd Religion hath been by the Council of Trent 2 H. 5. cap. 7. and other Popish Conventicles and that the Doctrines of our Religion have been condemned by several Acts of Parliament Swinburn Treat Wills pa. 2. Sect. 14. pa. 5. Sect. 2 Doct. Stud. f. 115. b. c. 29. under the name of Lollardries the Professors
whereof Sr Edw. Cook accounts Hereticks these are likewise uncapable to make any will to be Executours or receive any legacy The best of the people of God in England are of this Religion holding the same faith with the followers of John Wickliff who were a busively called (e) White way to the true Church Sect. 50. pag. 393. Lollards By this we may see what lets but that the faithfull servants of God might be wasted and destroyed as in former times not our Laws but our Magistrates for whom we are to blesse God in the mean while this is a wicked and cruel Law both against Religion and Common right 1 Sam. 25.2 8 11. Rom. 13.7 Gen. 14.23 Numb 22.30 32. Rom. 13.7 59. Tenure in (f) Plow com Sharringtons Case f. 305. b. 7 8 Eliz. Littleton Fran. Almoig fol. 30 32. Wingat Law cap. 7. pa. 13. N. 18. free Almes when Lands are granted to men for to say prayers Masses and other Divine Services as Littleton calls them for the Souls of the Donors and for the Souls of their Fathers Children or Ancestors these grants usually were made to Monasteries and Hospitalls and also to Deanes and Chapters and to the parsons of Churches But this Tenure is Impious and Superstitious and yet the same is both favourably spoken of (g) Coke com Littleton l. 2. cap. 6. Sect. 134 135. A learned Civilian saith of such Tenants who hold in free Almes that pro donatoris suorum tam vivorum quam mortuorum Animis apud Deum orationibus Divinis Officiis Intercedant The King might and the Lord Protector may make such a grant at this time Westm 3. Cowel Inst l. 2. T. 2. S. 24. p. 125. Impr. 1630. and commended by the Lawyers in our Law-books since Queen Maryes time that Popery was abolished in some measure It ought to be taken away as Idolatrous and Superstitious the rather for that the mindes of men are too prone and ready to be led aside to such Superstitious Vanities and Will-worship repugnant to the Law of God Sir Edward Coke in countenance of such Superstitious Grants hath this passage Nuâ— quam res humanae prospere succedunt ubi Divinae negliguntur But this poysoned Divinity ought to be condemned and some Law provided against such Superstitions Isaiah 1.12 Rom. 14.23 10.8 Matth. 15.3 6. Coloss 2.8 60. That where Lands come to the Lord of the Fee by Attainder of a Traytor or Felon the King hath (h) Coke Comment Littleton Relief l. 3. sect 514. fol. 294. Wingate Law c. 19. p. 30. n. 13. Cowel Instit l. 4. Tit. 18. sect 10. pag. 319. Idem Index Expos Litera a u. l. 4. Tit. 18. sect 45. p. 341. Annum diem vastum The Law in this case is That the King shall utterly waste the Inheritance by plucking down Houses cutting down Trees Ploughing up Meadows c. and at Common Law such was the Judgement in an Attaint upon a false Verdict This is ridiculous Law and a prejudice to the Common-wealth contrary to that frugality which our Saviour enjoyned touching the very Fragments which remained after he had fed four thousand and five thousand persons with meat which cost nothing and yet he would have nothing lost or spoiled Joh. 6.10 11 12. Mar. 8.8 9. Mat. 15.37 38. 61. That there should be no (i) Littleton l. 3. c. 12. sect 691. Coke Com. Littleton Remitter fol. 362. b. Wingate Law c. 22. p. 33. n. 11. Cowel Instit Jur. Angl. Index Expos litera R. Recordum Averment against a Record is a hard Law and may at some times prove unjust considering what men of mean Credit less Conscience many times have the keeping of them It is necessary general Credit should be given to Records but yet where just causes of Suspition and Corruption may appear it 's necessary the validity of such Records be put to Tryal The contrary is a means to countenance Perjury and Forgery and therefore this Rule of Law would be Expounded and Amended for Preservation of Truth and Justice Isaiah 8.1 2. 2 Cor 13.1 Ezra 4.15 16. compared with Ezra 6.1 2 3. Exod. 23.7 62. That the Widow of the Kings Tenant of Lands to which the King is intitled by Office held of him in Chief before she could have her Dower assigned by a Writ de Dote assignanda should take her Oath in Chancery Not to (k) Wingate Law c. 38. p. 60. n. 4. n. 6. Marry without the Kings License This is an Unreasonable Law and was one of those Badges of Slavery attending Knight Service-Tenure which was brought in by William the Conqueror and is contrary to that Law of God which gives liberty to all persons to marry onely in the Lord at their own will and pleasure 1 Cor. 7.2 9 28 29. Gen. 2.24 1 Tim. 4.1 3. 63. The Heathen Romans ordained Sanctuaries and were a grievance to the State Tac. Annal. l. 3. c. 7. p. 75. The King might notwithstanding the Statute taking away Sanctuaries appoint any place to be (l) Wingate Law c. 48. p. 68. n. 48. c. 40. p. 70. n. 69. n. 70. a Sanctuary or Safeguard for any Offenders flying thither although they had committed Murther and such Offenders once getting to such a Sanctuary shall not be enforced to answer any Indictment or Accusation for the fact but may confess the fault to the Coroner and abjure the Realm This is an impious Priviledge and the Oath unlawful as hath been before said and ought to be altered for that all men ought to be punished for great Offences 1 Kings 20.42 Prov. 28.17 Numb 35.16 19 31. Rom. 13.4 (m) Symson Church-Hist Cen. 7. p. 364. These Sanctuaries were ordained by Pope Boniface the Fifth (n) Res Sacrae sunt quae rite per Pontifices Deo consecratae sunt veluti aedes sacrae dona quae administerium Dei dedicatae sunt ut Calices Cruces thuribula Item loca sacra sunt Ecclesiae Capello coemiteria c. Cowel Inst l. 2. Tit. 1. sect 8. p. 81. Impr. Anno 1630. and are still available if the Lord Protector please and in our Law things made Holy or Sacred are not to be violated 64. That an Utlawry should be (o) Wingate Law c. 46. p. 86. n. 21. Judgement in it self for Felony is a hard and unjust Law because a man may be Indicted and Utlawed and never hear of it It is a worse Law then the Heathen Romans had which was That no man was to be Condemned nor Judged until the Accuser and Accused came face to face and it is contrary to those Laws of God which require all persons accused to be judged upon the Testimony of Witnesses 2 Cor. 13.1 Acts 25.16 Numb 35.30 Deut. 17.6 7. Joh. 7.51 65. The like may be said of that Law where a man may be judged to be branded dismembred and his life in danger for a few unadvised or rash words
the entry accordingly of persons acting and things done but nothing really except the parties coming to the Bar to do they know not what This is meerly a device or fiction to deceive and scrue morny from the people the very fees come to almost four pounds besides the fine upon the Alienation which is according to the value of the Land taxed by the Commissioners if above 40 shillings by the year it may be from 6 shill 8 pence to 20 pounds lesse or more All which might be saved if all mens estates were made fee-simple and the Statute de Donis Conditionalibus replealed or that the making of a Feoffment which is done by livery or the Inrolment of a Deed might discontinue the intail and Bar the Remainders In the mean while this Common recovery in regard of the expence is an oppression and the formality or rather subject matter of it being nothing but lyes whether Jocosa officiosa or perniciosa is against the Law of God Col. 3.9 Levit. 19.11 Rev. 21.8 Rev. 22.15 2. That Errours in Judgments and proceedings in the Upper-bench the Action being brought by Original should not be heard and determined but before the (b) Wingat Law cap. 47. pag. 89. N. 10. King or Lord Protector and Lords in Parliament seems to be a hard Law and at best is a Tedious and expensive way and so an oppression to the people and against the Law of God Ezek. 18.8 1 Thes 4.6 Isai 33.15 Prov. 22.16 3. (c) Westm 2. c. 1. Stat. de Donis Condit 27 H. 8. c. 10. Statute of Vses Châ—dlyes Case Coke l. 1. fol. 121. Intails upon the heirs males of a mans body with remainders over to brothers and after to strangers of the name to the disinherising of ones own Daughter having no Son is sinful and against the Judgment of Almighty God immediately given in the case of Zelopheads Daughter declared with an emphatical addition That this shall be a Law of Judgment c. That if a man have no Son his inheritance shall go to his Daughter There is a Custome in Ireland that all Lands which have not come to the Kings hands by surrender escheate Attainder or forfeiture The eldest Son of the house shall enjoy the same during his Life and then the second and third if there be so many Brothers before the heir in Lineal descent This is called the Custome of Tanestrie and the same grew by reason of their Civill warrs not only the greatest against the greatest but even every Baron and Gentleman one against another Therefore they left their Successors of Age to defend their territories Davis Report case Tanest Ra. Histor lib. 2. cap. 4. S. 15. And the same is a Law of Common equity not one of those Judicials which only did binde the Jews in their own Land but dictated to every man by the Law of nature which teacheth that a mans own child being part of himself is more dear and near to him then a stranger and hitherto is that to be referred He that provides not for his own and those of his own House first his own Wife then his own Children and then his Servants as the rest of the househould such a one hath denyed the faith and is worse then an Infidel Then are many of the Nobility and Gentry worse then Infidels whose inheritances upon such an Atheistical or Heathenish opinion as the builders of Babel had to get them a name least they should be scattered are turned from their Daughters to strangers and little or nothing left for them upon consideration of which a wise and Religious Judge once said I would surely make such mine heir whom God makes mine heir the contrary practise is against the Law of God and nature Numb 27.7 8. 1 Tim. 5.8 4. In a Replevin no man living knoweth what is the general issue to be pleaded by vertue of the last Statute and in some cases there can be no (d) This is agreed by the Protonotaries of the Common-Pleas and the practise is accordingly Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 1. fol. 14. Judgment to have the Cattle returned and when such Judgment hath been given and the Cattle taken upon a reâ—urn habend he that took them and obtained the Judâ—ment can neither use them as his own nor sell them nor can the former owner have them again but either the Taker muâ—â— keep them at his own charge until the owner will redeem them or they must dye in the Pynfold and then the Avowant who first distreyned may distrayn again and go to suite afresh and so be put to a circuit of Action which the Law in other cases doth disallow This is a foolish and ridiculous Law and against Common right and so against the Law of God every one ought to have recompence in his suite where the Law passeth for him Lam. 3.36 59. Amos 5.24 1 Kings 10.9 Isai 59.14 5. The practise in real and mixt actions occasioning (e) Stat. 51. H. 3. concern dayâ—s in Real Act. and Stat. 51. H. 3. concerning dayes in Dower many Delayes by Essoynes Adjournments Veiw Counterpleading Colour and Dilatory pleas is a great oppression by reason of the delay and unreasonable expence besides the nicety and thereby uncertainty in the proceedings where by mistake of a word syllable or dash with a pen or coming to adjourn an hour too late the Cause may be lost this is an oppression and a meer Trap to catch men and an occasion of much injustice for who will yield to any man his right where he hath hope to foile his adversary by any such trick or weary him at Law Job 22.10 Luke 18.4 Isai 59.14 6. Trials by Nisi prius in personal Actions begun in the Courts at Westm where the plaintiffe to have amends for a trespass or battery for which five shilling would satisfie him This is Common in evâ—ry mans Practise and needs no Proof must spend before he can have Judgment neer eight pounds and the Defendent about half as much although to his ruine and he must pay the plaintiffs charges and damages which is all in nature of Damages or lye in Gaol this is a grievous Law and not to be suffered but rather such Courts of Record are to be Cherished where a cause may be tryed for 30 or 40 shillings this were more for ease of the people and more agreeable to the Law of God 1 Sam. 12.4 Isai 58.6 Isai 5.7 and 33.15 Zeph. 3.1 7. The like and much more may be said concerning tryalls at the Bar Common Experience shews this to be liue which cannot be tryed if the Jurors come but two dayes Journy under an hundred marks and commonly there is much more spent This is a horrible oppression and such courses make poor men affraid to sue for their right and great men to Trample upon the poor the same is a crying offence against God Psal 73.8 Ezek. 18.8 1 Thes 4.6 Prov. 22.16 Isai 33.15
lives which they could not do when Littleton wrote 37 H. 8. c. 10. 10. Before the Statute of the 27 H. 8. If Cesty que use had dyed his Heir within age the Lord shâ—uld have had the Wardship of the Heir 4 H. 7. c. 41. If the Feoffee had dyed his Heir within age the Lord should have had the Wardship of his Heir also so there should have been two Wardships for the same Lands But this is altered by the same Statute 11. The Court of Wards 33 H. 8. c. 22. 32 H. 8. c. 46. erected by vertue of the Statutes made since Littleton wrote altered very many things in the Law as may be seen by the Statutes And particularly he that was possâ—ssed of a term for 100 years or more was judged to dye seised Repugnant to the Common Law 12. 32 H. 8. c. 24. 27 H. 8. c. 27. 1 Ed. 6. c. 14. 31 H. 8. c. 13. 37 H. 8. c. 4. The whole Rabble of those Ecclesiastical persons as they are called Regular and many of those called Secular are dissolved by several Acts of Parliament and so the many Laws concerning them are thereupon out of use And all the Priviledges granted to the Cestercians Hospitallers or Priors of S. John's of Jerusalem and other Superstitious Houses to be freed from Taxes Toll and other Secular Serviâ—es except non-payment of Tythes are altered and changed and now those Lands are usually charged to all payments as others are 13. The Statute appointing 21 H. 8. c. 4. That such a man's Executors as prove his Will and take upon them Administration thereof may sell a man's Land devised to Executors for payment of Debts or Legacies although others named Executors do refuse to intermeddle or to joyn in the Sale and the Sale is good That Statuâ—e was made since Littleton wrote which is contrary to the Common Law 14. The Statute of the 21 H. 8. Chap. 19. 21 H. 8. c. 19. Coke Com. Lit. l. 3. sâ—ct 444 447. gives the Lord power to avow upon the Land for Rent or Services or Damage faisans without naming his Tenant because there are sometimes secret Conveyances made to strangers to cousen the Lord of his Serviâ—es and this an Alteration of the Common Law 15. All the Laws and Customes concerning Villains Cok. Com. Litt. Tâ—t Villenage l. 2. c. 11. sect 172 175 176 177 189 c. mentioned by Littleton That the Lord might kill them sell them or use them are in a manner abrogated or worn out of use by reason that most of the Villains and such as held in Villainage are Copy-holderâ— and by some act either in Deed or in Law are Manumitted which alters the Law in many particulars since Littleton wrote 16. The Tryal of men for Treasons and Felony 22 H 8. c. 1. 1 2 Phil. Mar. c. 10. 33 H. 8. c. 20. 23. and other Tryals between and Party and Party in Personal Actions have been in several particulars altered by Acts of Parliament 27 El. c. 6 7. 4 5 Ph. M. c. 7. and the Forms changed and new Pleadings and Proceedings introduced since Littleton wrote 17. There are several Acts of Parliament made since Littleton wrote 31 H. 8. c. 1. 32 H. 8. c. 32. Litt. l. 3. sect 290. by vertue whereof partition may be made by Joynt-tenants and Tenants in Common which is otherwise at the Common Law and is an alteration thereof 18. There was an Act made in the 31 H. 8. That the Mannors 31 H. 8. c. 3. Lands and Tenements of Thomaâ— Lord Cromwel and many others to the number of 34 persons lying in Kent being Gavel-kind-lands should descend as other Lands at Common Law This an alteration since Littletons time 19. There are by Statutes since Littleton wrote divers Conditions annexed to Offices 5 6 Ed. 6. 16 which may forfeit the same and were not so at the Common Law 20. Before the Statute of the 32 H. 8. Chap. 34. no Grantee or Assignee of a Reversion 32 H. 8. c. 34. by the Common Law could take advantage of a re-entry by force of any Condition but by that Statute the Grantees or Assignees of any Reversion c. of any Lands c. shall have advantage by entry for Rent or doing of waste as the Lessors or Grantors themselves might have had 21. There were at the Common Law two sorts of Divorces 1. A Mensa Thoro 2. A Vinculo Matrimonii and many ridiculous causes of Divorce of which Adultery is not reckoned to be one against the Law of God 32 H. 8. c. 38. 2 Ed. 6. 23. 1 El. c. 1. as pre-contract without Consummation Consanguinity or Affinity in Cousin Germans and so to the fourth Degree The marrying or carnal knowledge of any person of Kin to the second Marriage-kindred within those Degrees Divers of which are remedied by Acts since Littleton wrote and the rest are antiquated and for shame disused and now all men may marry any person not prohibited by Gods Law and regularly nothing is a cause of Divorce but Adultery and yet Causa frigidâ—tatis sive Impotentia hath been allowed by the Bawdy Bishops 32 H. 8. c. 33. Coke Com Lit. l. 3. c. 6. sect 385. 22. At the Common Law if a Disseissor Abator or Intruder had dyed seised soon after the wrong done the Disseissee and his Heirs had been barred of Entry without any time limited by Law But by a Statute made since Littleton wrote such Disseisees nor their heirs are not barred except the Disseisor hath been in quiet possession five years without Entry or continual Claim 23. So likewise if the Disseisor had been longer possession Littleton l. 3. c. 6. sect 385. by the Common Law the Disseisee could not have entred upon him nor could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a year and a day in quiet possession But now the Law is altered and onely a dying seised is a Bar in some cases 24. By the Common Law after a Fine levied Littleton l. 3. c. sect 441. 4 H. 7. c. 24. 32 H. 8 c. 36. he that had right had but a years time to enter after which he was barred But by the Statutes made since Littleton wrote he that hath right hath five years allowed to him to enter after the Fine perfected 25. By several Statutes since Littleton wrote 2 3 E. 6. c. 24 34 35 H. 8. c. 14. 3. H. 7. c. 1. 1 Ed 6. c. 7. 33 H 8. c. 9. Coke Com. Lit. l. 3. sect 442. 27. H. 8. c. 10. Coke Com. Lit. l. 3. sect 463 464. divers powers and authorities are given to Justices of Assize which they had not at the Common Law nor by any Statute before those Statutes were made 26. By the Common Law if a mans Land had been granted or setled to another to the use of the