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
the whole book p. 3. as the punishment of him that touched a dead body Others concerned the Jews Common-wealth in their own Land as that concerning the year of Jubilee c. (i) And in c. 22. qu. 3. Com. 8. p. 492. The rest are Laws of Common Justice and Equity belonging to the Moral Law as Expositions thereof as the punishment of (k) Exod. 21.12 Murther and (l) Lev. 20.10 Adultery c. with death These and many others which shall be touched in their proper places were given to the Jews as men and did not onely binde the Consciences of the Jews but also of the Gentiles And as the Morall Law is (m) Willet in Exod. c. 21. qu. 1. 2. p. 458. principally grounded upon the (n) Bodin de Rep. l. 1. p. 46. Reason and the Law of God should always take place every where not being shut up within the bounds of Palestine Law of Nature so these Judicial Laws called by Moses Judgements flowed from the same Fountain and necessarily declared the punishments for the breach of the Moral Law which are not therein expressed (o) Mat. 15.4 Mark 7.10 comapred with Exod. 21.17 And this use our Lord Jesus makes of the Judicial Laws Now a Judicial Law may be known to be a Law of Common Equity from other Judicial Laws which did onely binde the Jews in the Land of Canaan (p) Perkins 1 Vol Treatise of Conscience p. 320 321. First if wise men of other Nations as well the Jews judged it to be equal and just by Natural Reason and Conscience Secondly if such Law did serve to confirm any of the Ten Precepts of the Decalogue or to uphold any of the three Estates of Men viz. Family Common-wealth or Church and upon this ground is it that Moses the (q) Coke l. 7. fo 12. Calvins case first Reporter and Writer of Laws in his Exhortation to the Jews requireth them to observe (r) Deut. 4.6 7 8. the Statutes and Judgements which he had taught them from God which Judgements are the Judicial Laws And this he tells them should be their wisdome and understanding in the sight of the Nations saying What Nation hath God so nigh unto them and that hath Statutes and Judgements so righteous And for this cause it is that the Godly Learned (ſ) Bodin Rep. l. 1. p. 104. What apparent reason can there be devised for which we ought to break the Laws of God That it may be done in any case the same Author there concludes most absurd and wise Statesmen have judged That for the Civil Magistrate to alter this Law at his pleasure as shall be thought fit for the time or manner of the Countrey is to make himself to be thought to (t) Willet in Exod. gen Observ qu. 4. p. 3. be wiser then God that onely wife (u) James 4.12 Law-giver who can save and destroy (w) 1 Cor. 1.25 The foolishness of God is wiser then men The Heathen Gentiles had a high esteem of Moses for a wise Law-giver Let one speak for many Longinus of whom Moses is named (x) Longinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pa. Philo Judeus calls Moses A most wise Law-giver Brod. Rep. l. 2. p. 211. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Glorious Law-giver of the Jews And although the Heathen were Idolaters and regarded not the First Table of the Decalogue accompting the Divine Worship of God a (y) Acts 25.19 Broughton in Daniel Conclus Suet. Tranq vita Claud. Caesaris sect 16. Tac. Annal. l. 2. c. 19. pag. 61. Barbarous and Mischievous Superstition yet they received those Judicial Laws which were Laws of Common Equity (z) Jer. 29.22 23. Nebuchadnezzar a heathenish Idolater had learned to punish Adultery with Death And (a) Perkin 1 Vol. Treatise of Conscience p. 320. Suet. Tranq in vita Jul. Caesaris sect 48. in vita August Caesaris sect 34. Anotat b. other wise Law-givers of the Heathen Gentiles as some of the Aegyptians Graecians as Draco Numa and Romans as Julius Caesar Augustus c. made Laws to punish (b) Tit. Liv. l. 39. p. 1032 p. 1034. K. l. 33. p. 804. R. 841. B. Murther and Adultery and Sodomy with death according to those Judicial Laws Exod. 21.12 and Deut. 22.22 Levit. 20.13 It may be observed That all Dominions except Impious Machiavel's have confessed That Humane Prudence hath not power sufficient to foresee good and evil so as to prevent the evil and therefore did all Nations fly to God some by a straight others by a crooked way and hence their (c) Grot. Pol. Maxims Par. 2. c. 8. p. 68 69. Cor. in fine Bodin de Rep. l. 1. p. 58. Tit. Livius l. 3. p. 110. H. Laws were pretended to come from God Upon all which I conclude That all the Laws of England ought to have their Foundation upon the Laws of God and yet this is no Judaizing or departing from the Gospel as some have vainly imagined for that it appears clearly (d) Deut. 6.5 6. Exod. 20.2 Luk. 10 27 28 Matth. 22. 37 38 39. Gal. 3.19 That Moses Law was given upon Gospel grounds and that the New Testament especially the Doctrinal part thereof as well as the Prophet's is a plain (e) Mat. 5.21 27 33 38. James 2.11 Heb. 4 2 6 7. Commentary upon Moses and to this purpose it is not improper to apply that of our Saviour (f) Mat. 6.17 18 I came not to destroy the Law but to fulfil it And as to the matter in hand that of the Apostle Paul (g) 1 Tim. 5.9 10 11. to Timothy puts it out of all doubt the Law namely the Moral and Judicial is made for the lawless and disobedient for the ungodly and for sinners for unholy adnd profane for Murtherers of fathers and Murtherer of mothers for man-slayers for Whoremongers and them that defile themselves with Mankinde for Men-stealers for Lyars for Perjured persons and if there be any other thing that is contrary to sound Doctrine according to the glorious Gospel of the blessed God The (h) The Law and the Gospel agree in substance and end differing in circumstance of time place persons dignity and effects The end of the Judicial Law is to teach Natural Equity Ral. Hist l. 2. c. 4 sect 9 10 11. Law was made for the good to guide them and for the evil to correct and punish them And that these Laws were not punctually put in execution under the Gospel in the Primitive times was not because they were not in force against evil-doers but because the Magistrates were Heathens and received them not as the Laws of God although they observed many of the Judicials as before is said Now the chief end and scope of all Laws ought to be Justice and Righteousness (i) Bodin Rep. l. 6. c. 6. p. 755. Justice is the right distribution or division of
Grantor and to the Issue in Tail the Land in Law had been the parties to whom it was conveyed and Cesty que use he for whom the use was had nothing but Equity to recover the Profits But now since Littleton wrote all possession is transferred to the use and the Law changed Plow Com. 349. 6. 27. By a Statute made 2 H. 5. all such Jurors as were to be returned for Tryal of Issues joyned in any the Courts at Westminster or before Justices of Assize 2 H. 5. c. 3. second Parliam 11 H. 7. c. 21. were to have 40 s. by the year in Lands and Tenements c. By the Statute of the 27 Eliz. it is enacted 27 El. c. 6. That such Jurors shall have 4 l. by the year at least and so it is to be expressed in the Venire facias which is an alteration since Littleton wrote 28. All those special pleadings discussed by occasion of Littletons Text 23 H 8. c. 5. 7 Jac. c. 5. 12 Act 23 Octob. 1650. 21 Jac. c. 14. l. 3. sect 485. are taken away by several Acts of Parliament And by the last Act of the 23 Octob. 1650. liberty is given in all cases to plead the general Issue which is a great ease in most cases although in a Replevin the Law is rather worse then it was as is shewed in its proper place 29. By several Statutes since Littleton wrote the times for commencing of real and possessory and personal Actions are limited 32 H. 8. c. 2. 21 Jac. c. 16. First by the Statute of the 32 H. 8. and afterwards by the Statute of 21 Jac. By which Statute it 's said the Kings Right is concluded as well as all other persons and barred after twenty years in all real Actions These are abridgements of the Law since Littletons time 27 H. 8. c. 4. 1 Ed. 6. c. 14. 30. All those Laws mentioned by Littleton concerning Free Chappels and Chantries and the cases thereupon depending are at an end by those Statutes since Littleton wrote 31. By several Statutes made since Littletons time the petty Errors in Pleadings 32 H. 8. c. 30. 18 El. c. 14. Mispleadings and Jeofailes are helped and amended in real mixt and personal Actions insomuch as where at Common Law every mistake of a Letter Word want of Warrant of Attorney or Misreturn of any Writ or any other petty inconsiderable Error or Mistake 21 Jac. c. 13. was sufficient to destroy any Action or to arrest or reverse Judgement Act 1652. Now no Error before Appearance nor any Error but what is matter of Substance and of the Essence of the Action can prejudice the Suit This is an amendment of the Common Law 32. The Law concerning ordinary Jurisdiction and Spiritual Law as they called it which is discussed by Littleton Littleton l. 3. sect 648. Lib. 3. Sect. 648. hath been since altered by the Statute of the 25 H. 8. which restraineth the Ecclesiastical Laws 25 H. 8. c. 19. that they be not repugnant to the Common Law nor the Statutes and Customes of the Realm and since the same Law concerning ordinary Jurisdiction and Ecclesiastical Laws are abolished with the Hierarchy of Bishops c. and their Courts 33. Since Littleton wrote there were two Statutes made to preserve Remainders and Reversions in Lands and Tenement expectant upon Estates for Life 32 H. 8. c. 31. which it seems by the Common Law might be barred by a Common Recovery or thereby the Entry of him in Reversion or Remainder taken away But by those Laws such Recoveries by Tenant for life are void and the Entry saved by the last Statute of the 14 Eliz. 14 El. c. 8. which is contrary to the Law in force when Littleton lived although the first Statute be Repealed by that last mentioned 34. The like Law was concerning Tenant in Dower Coke Com. Lit. l. 3. sect 697. 11 H. 7. c. 20. If she had aliened in Fee with Warranty and dyed that Warranty had bound the Heir But now if Tenant for Life or in Dower alien it is a forfeiture and the heir may enter This is a good amendment of the Common Law 35. If Tenant in Tail be in possession 26 H. 8. c. 13. 33 H. 8. c. 20. or that hath Right of Entry be attainted of High-Treason the Estate Tail is barred and the Land forfeited But this Attainder was no Barre at the Common Law nor when Littleton wrote 36. If Tenant in Tail levy a Fine with Proclamations 4 H. 7. c. 24. Coke Com. Lit. l. 3. sect 708. according to the Statute this a Barre to the Estate Tail but not to him in Reversion or Remainder if he maketh his Claim or pursueth his Action within five years after the Estate Tail spent But the Law was otherwise when Littleton wrote 37. When Littleton wrote if the Kings Donee in Tail the Remainder in the King had suffered a Common Recovery the Estate Tail had been barred but not the Reversion or Remainder in the King and if such Donee had levied a Fine with Proclamations 4 H. 7. c. 24. 34 H. 8. c. 20. Coke Com. Lit. l. 3. sect 708. after the Statute of the 4 H. 7. this had barred the Estate Tail although the Reversion were in the King But since by the Statute of the 34 H. 8. a Common Recovery had against the Tenant in Tail of the Kings Gift or such a Fine levied by him the Reversion continuing in the King is no Barre to the Estate Tail wherein the Law hath been changed since Littleton wrote 38. By several Statutes made since Littleton wrote the wife of a man attainted of Misprision of Treason 1 Ed. 6. c. 13. 5 Ed. 6. c. 11. 5 El. c. 1. 11. 18 El. c. 1. Murther or Felony is Dowable which was not so favoured at the Common Law 39. By the Statute of Westm 1. No Sheriff or Minister of the Kings was to take any thing for execution of his Office 23 H. 6. c. 10. 19 H 7. c. 8. 29 El. c. but what the King allowed to him and is was so by the Common Law But by Statutes afterwards of which two are since Littleton wrote Fees are allowed to be taken by such Officers 32 H. 8. c 32. 40. By the Common Law no Executor or Administrator of Tenants in Fee-simple or Fee-tail had any means to recover Arrerages of Rents and Services due in the life-time of such Tenant Now the Law is altered and such Executors and Administrators are by Statute enabled to sue for and recover the same 27 H. 8. c. 10. Coke Com. Lit. l. 3. c. 5. sect 384. 41. By the Statute of 27 H. 8. If a man seised in Fee-Covenant upon good Consideration to stand seised to himself for life and to the use of his eldest Son in Tail with the Remainder to his second Son in Tail with Remainders over c. and to
have weight laid upon him as much as he can bear and shall have one day three bits of Bread the next day Gutter-water given to him and so every day until he dye with pain The practice is somewhat altered in the execution for the Condemned is Pressed to death presently and every one that will is his Executioner This is a wicked Law and contains three Offences 1. The Punishment is barbarous for that there is no Offence in this world against men but a man's life taken away is a sufficient satisfaction without any such lingring death 2. The party being Guilty is not bounden to accuse himself upon his Tryal much less ought he to be enforced to tell a Lye and say he is Not guilty 3. The great Offence is That he is Condemned without Proof 2 Cor. 13 1. Heb. 10.28 Deut. 17.6 Numb 35.30 Joh. 7.51 To this may be added Setting men upon the Rack (m) In sime of Popery this was frequent and hath been since used for discovery of Treason Examining them by Torture a Devillish Invention not long since practised and warranted by our Law 10. The Laws concerning Parishes Parsons Vicars Curates Deacons Churchwardens Advowsons Presentations to Churches Jure Patronatus Non Admisit Quare Impedit Quare Incumbravit Darrein Presentment Restitutione Temporalium Conge Desleir Admittances Institutions Inductions Ne Admittas Vi Laica Removenda Excom Deliberando cautione Admittenda Dedimus Potestatem ad Elegendum Abbatum Lincences to Preach Suspensions Ecclesiastical Censures in Ecclesiastical Courts These all are unlawful as being the Inventions of men to thrust out the Officers and Order which Christ hath left in his Church (n) Godw. Ant. Rom. l. 3. c. 2. p. 135. c. 3. p. 142 143. Fuller Holy State l. 2. c. 12. p. 87. Ex Conc. Toled 589. can 9. An. Coke Rep. l. 5. Cawdreyes Case c. 3. p. 48 49. c. 4. p. 72 73. c. 7. p. 169. thence to p. 356. The Parishes are the Hearch which keep in all these Superstitions and they were taken up by the Church of Rome from the Heathen Romans as likewise were their Pope or Fontifex Maximus their Orders of Priests Deductions Consecrations and many other Paganish and Idolatrous Superstitions And from Rome were hither sent and continued here all along by the Popes Power until the Reign of King Hen. 8. when he took upon him the Popes Office 25 H. 8. c. 20. Wingate Law c. 38. p. 62. n. 20 21 28. to be the pretended Head of his pretended Church of England Lev. 20 23. Ezek. 11.12 Hos 14.8 2 Cor. 6.16 Deut. 12.3 Cock English Law p. 16 22. 11. (o) Fitz. N. B. 269. b. Coke l. 5. fo 25. 2 H. 4. c. 5 15. 2 H. 5. c. 7. The Law for Tryal and Conviction of Hereticks delivering them to the Secular Power to be burned the Writ Haeretico Comburendo put in execution against the faithful Servants of God called by a Nick-name Lollards about the time of Rich. 2. and Hen. 5. and afterwards whom the Lord Chief Justice Coke concludes to be Hereticks and deriving their Name from Lolium as the Papists did rehearseth that impertinent Verse of Virgil Infoelix Lolium steriles dominantur avenae They were the followers of (p) Rast Entr. Haeres 1. White Way true Church sect 50. p. 393. Fox Acts and Mon. Vol. 1. p. 608 657 659 846. John Wickliff whose Opinions we may finde in Fox his Acts and Monuments and Symson his Church-History These and those afterwards by vertue of the Statute of the Six Articles were put to death onely for matters of Faith and Opinion without any disturbance to the State (q) Dalt offic Vice Juram Vice fo 4. All High-Sheriffs were Sworn even to the time of the beginning of these late Wars to extirpate these Servants of God and the Anabaptists which onely (r) Swinb Treat Willes par 2. sect 14. par 5. sec 2. deny Infant-Bapitism are reckoned amongst Hereticks By this we may judge what our Law-givers were and what was a principal end of the Law viz. The destroying of the true Faith and the rooting out of the sincere Professors of the Gospel which is a principal Mark of Antichrists Power These are Impious Laws and the execution most abominable Rev. 16.6 17.6 18.24 12.13 Gen. 4.10 Luke 11.50 51. Gal. 4.29 These Customs taken from the Romans Tac. Annal. l. 12. c. 11. p. 171. 12. (s) Litt. l. 2. tit Villenage sect 172 Coke Com. Litt. l. 2. sect 177. sect 189. Wingate Law c. 9. p. 17. n. 3. n. 5. Poulton Pax Reg. Regni tit Appeal fo 159. a b. Littleton tit Villenage l. 2. sect 190. The Laws and Customes concerning Villains and Villainage mentioned by Littleton and others observed by Coke in his Comment upon Littleton and plentifully discoursed of in the Old Books are Heathenish and wicked Customes That the Villain is as the Lords Goods and at the Lords absolute Disposal and so are his Wife and Children (t) Those whom we call Villains Niess thâ— Romans called Adscriprivos Glebae they plowed laboured and might be sold as the Romans Slaves That the Lord may enter upon him and take his Lands Tenements Rents and Chiâ—dren And although he that is pretended to be a Villain bring his Wriâ— to prove himself free the Lord may seise him as his Vilâ—ain (u) Appius Claudâ—us sâ—ised Virginia upon this pretence Tit. Liv. l. 3. p. 117. b. Pendente Lite and if the Lord rob the Villain he shall have no Appeaâ— against him And it hat been said That if the Lord ravish his Nief that is his She-Villain she could at Common Law have no Appeal of Rape against him but Littleton saith the contrary (w) If the Loâ—d marry his Nief or she villain and die seised of Land in Fee this wife shall not be endowed because she was his Villain Jo Perk. tit Dower sect 314. These Laws above-mentioned are too bad for Turks much more to be abhorred and rejected of Christians as being against all those Laws of God which condemn unmercifulness and injustice towards inferiours Exod. 1.13 14. Lev. 25.42 43 46 53. Eph. 6.9 Col. 4.1 Prov. 12.10 Luke 6.36 1 Kin. 9.22 There was nothing more regarded in the foundation of Christian Common-wealths then the discharging of Slaves and Villains and such Common-wealths were free from Slaves ever since the year 1250 as a (x) Bod. Rep. l. 1. c. 5. p. 39 40. p. 45. Those Slaves are at large described as above is said Cowel Instit lib. 1. Ti. 3. sect 3 4 5. Learned Lawyer hath observed who taxeth England and Scotland for continuing such Customs and Services upon their Tenants And likewise saith the Law of the Twelve Tables still in force in West-Indies and Africk as too rigorous towards Debtors and Servants (y) Rast Entr. tit Appeal fo 51. b. 27 H. 8. c. 24. Poul
18. (l) Coke Com. Litt. l. 1. c. 6. sect 5. 381. Coke l. 6. fo 37. l. 10. fo 38. Occupancy is onely where there is no proper Owner Gessend de Philos Ep. c. 1756. The Law concerning Occupancy when a man hath a Lease of Lands for one or more other mens lives granted to him without the word Heirs the Grantee dyeth now whosoever after his death first enters and claims the Land shall have it during the Lease without any other Title whereas if it cannot go to the Heir it should come to the Executor This is an unjust Law and serveth for nothing but to cozen simple men of their Right 1 Thess 4.6 Lev. 19.13 Exod. 20.17 Mic. 2.2 Rom. 13.9 Before Dominion was setled the first Possessor had a Property which Pliny calls Proprium habentes and Grotius Jus occupantis but this is at an end because every thing hath an Owner 19. (m) 40 Ed. 3. 34. b. 2 R. 3. 15. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fo 12. That a man being Outlawed and his wife waved in a Personal Action and the wife taken upon the Utlawry she cannot reverse the Utlawry nor get out of Prison by the Law unless her husband will joyn with her in a Writ of Error to reverse the Utlawry when it may be the Utlawry was sued by the consent or practise of the wicked husband I have known the like done This Law tends to overthrow Oeconomy or Houshold-Government Upon such an occasion it 's said the Judges gave this Rule That it was a Trick to be rid of a Shrew But this clearly against the 5th and 6th Precepts of the Decalogue and many other parts of holy Scripture Gen. 2.24 Exod. 21.10 2 Sam. 12.3 Mat. 19.6 Mar. 10.9 20. (n) Westm 1. c. 4. Cok l. 6. f. 107. a. Cust Norm tit â—â—â—eek c. 17 New Term law verb. Wreck Plow Com. fo 243. b. The Law concerning Wrecks of the Sea If a Merchant fraught a Ship hire a Master and all Officers and Mariners and send his Son to Sea in it all these suffer Shipwreck through the hand of God by Tempest or other Disaster and the Ship is lost and no living creature Man Dog or Cat cometh alive to shore but many of the Goods float and are driven to land In this case the Owner shall by the Law have none of these Goods but they belonged to the King or to the Lord of the Mannor who if he had a Grant of such Wrecks shall have the Goods This is an unjust and cruel Law and addeth affliction to the afflicted and causeth the wicked people who live by the Sea-side to wish and wait for such Disasters that they may get the Goods calling the Goods so gotten Gods good Zeph. 1.15 Amos 15.15 Obad. 13. Phil. 2.16 Jam. 1.27 Bodin Repub. l. 1. 179. It is a thing saith a Learned Statesman truly most barbarous and not anciently used by Soveraign Princes shamefully to suffer thâ— Reliques of the Goods and Fortunes of such as have by Shipwreck miserably perished and whom we ought with some part ot our own to relieve being cast upon our Coasts and which ought to be restored to be shamefully spoiled 21. The like unjust Law is this If Goods be taken from the (o) Wingate Law c. 11. p. 19. n. 23. Owner by an Enemy the Property is changed and the Owner shall not have them restored unless he recover them before the Sun go down although he finde them afterwards (p) Godw. Ant. Rom. l. 3. sect 4. c. 16. The Romans had a more just Law in this point viz. That by Theft no man should gain a Property in Goods but the Interest should alwayes remain with the Owner to take them whenever he could finde them So is Gods Law Lev. 19.13 Luke 19.8 Tac. Hist l. 4. c. 17. p. 159 Certain persons were appointed amongst the Romans to see Restitution made of those things which had been by force taken away in time of War And the Law of the Twelve Tables seems to warrant this 22. The Law concerning Gavil-kinde Lands where all the (q) Kitchen fo 102. Camd. Brit. p. 239. Sons shall inherit as Coheirs and such Tenures where all the Children shall inherit together This is against the Law of God who hath appointed the eldest Son to the place of his Father as Prince of the Family and to have a double Portion of his Goods if he do not forfeit it by some notorious Crime as Reuben did Therefore Judah had the Kingdome Joseph the Double Portion and Levi the Priesthood Deut. 21.17 1 Chron. 5.1 2. Gen. 49.3 Gal. 4.1 Heb. 12.16 (r) Bodin Rep. l. 5. c. 2. p. 571 Bodinus in his Republique would have a double portion of Lands and Goods assigned to the elder and the rest an equal share 23. The like may be said of the Tenures in Borough (t) Cust Norm tit Tenure par Burgaye fol. 135. b. Kitch fo 132. English and Copyhold-Estates where the youngest Son shall inherit contrary to the Law of God and Nature which Custome grew as some pretending to know much of such Customes have said That these Lands or many of them being held in Villainage although now purchased by Free-men who are not nor can thereby be made Villains the Lord did usually lie with the Tenants wife the first night after the Marriage and therefore they obtained this Custome lest the Lords Bastard not being a Bastard in our Law should inherit as possibly it might be This I will not positively affirm to be the ground of the Custome though I have seen a very ancient authentick Evidence testifying such a power in the Lord And I dare say it 's easie to make appear That divers Mannors and Lands in England were anciently granted to hold upon such terms and upon other such-like wicked Covenants if not Customes not fit to be inserted in regard of the baseness and filthiness thereof Littleton saith The yongest Son should inherit in regard he is least able to (t) Littleton tit Villenage l. 2. sect 211. help himself which is no reason for if Littleton mean that he is less able in respect of ability of body to fight or defend himself or to work Experience shews That the younger is many times more able and the eldest less fit and more indisposed to labour in respect of his Primogeniture And if it be meant in respect of Estate if the Customary Tenant have two Sons and nothing else but the Land so holden and that go to the youngest Son what ability hath the elder to himself more then the younger would have had being in his condition (u) Poult Pax Reg. Regni tit Appeal fo 157. b. The youngest in this case shall not have an Appeal for the death of his Father This Custome is clearly against the Law of God and Nature Deut. 21.17 1 Kings 2.15 Weemse M.L. Com. 5. Exercit 7. p. 41. 24. (w) Stat. 51
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
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
Rom. 13.7 Obj. 4. Legacies cannot be Sued for at Law and therefore of Necessity there needs a Court of Equity This ought to be amended that every one may have their due Ans This Case grows remediless partly by the dissolution of the Bishops or Ecclesiastical Courts as they are called and may easily be remedied if the Law were a little altered For what reason can be given that an Action of Debt may not as well lie for a Legacy as for any other Duty payable as Executor or Administrator It 's true that at the Common Law generally mens Personal Estates were at the mercy of the Bishops or Priests to dispose the same for the health and salvation of mens Souls as was pretended but now we are freed from that thraldome it were fit that every mans Estate should perform his Will according to the Executors Oath by paying Legacies as well as Debts in the second place as far as the Testators Estate will extend and that an Action of Debt lay for it as aforesaid for that if a man sue in Equity for a Legacy of Twenty pounds or under he shall spend it every peny in Suit if he have not a very easie Adversary Obj. 4. The greatest questions are about performances of (c) Neh. 5.11 12 13. 2 Cor. 8.11 12. All honest Agreements where the party is not deceived are to be performed being in our power Ames l. 5. de Consc Covenants and Agreements and of Trusts Concerning which it 's truly said of the first That for breach of Covenants or Agreements a man may in an Action of Covenant recover Damages for the Covenant broken but there is no meanes at Law to enforce any man to perform his Covenant and therefore there is need of a Court of Equity Ans This is a fault in the Law that a man can have no means to enforce one to perform his Covenant But this might easily be amended either by putting the Covenant in Issue upon a Traverse or by devising an Issue as is usually done by Order of the Chancery and if it be found that the Defendant Covenanted or Agreed under his Hand and Seal as the Plaintiff alledgeth Why might not the Judgement be That the Defendant shall perform his Agreement and pay Damages c. as well as in a Replevin that the Cattel shall be returned c. or in an Action of Debt that a man shall pay Money or render Corn or the like And touching Agreements made nnder mens Hands they amount but to (d) Josh 9.21 compared with 2 Sam. 21.1 5 Just promises are to be performed and the contrary punished by the Magistrate c. Promises upon which at Law the Plaintiff may recover Damages but there is neither Law nor Equity to enforce a man to perform such an Agreement which I conccive ought to be amended in the Law for that sometimes such Agreements are made upon as valuable Considerations and as solemnly as those which are put under mens Hands and Seals Obj. 5. And concerning Trusts especially concerning Lands and Tenements the Common Law can afford no help against such as refuse to perform the Trusts If a man be indebted but not upon Record as Statutes or Judgements c. or in consideration of Marriage conveyeth his Lands to some friends and their Heirs upon Trust and Confidence either exprâ—ssed or implied that the Trustees c. shall permit the Grantor and the Heirs of his body or his Wife or Children to take the Profits (e) It is true of Trusts as of Vses Fear Fraud were the Inventers of them Fear in time of Civil wars to save Inheritances from forfeiture Fraud to defeat lawful Actions due Debts c. Coke l. 1. sChudleys Case fol. 121. a b. The Judicial Law directs a remedy in case of trusts Exod. 22.10 11. The Trustees having a minde to chuse him that haply intended to cozen others refuse to let cesty que use the parties for whom they are trusted to take the profits c. The Grantor hath no remedy at Law but must sue in a Court of Equity Answ This is true as things now stand but this might and ought to be amended by putting cesty que trust into the condition of Cesty que use and let the possession be transferred to the trust and then the Grantor and his Heirs and Assignes may recover the possession and profits without the help of a Court of Equity And it might be wished that all such Trusts might be destroyed serving generally for little else but to deceive Creditors and Purchasers See a Case recited by Charles George Cock Essay p. 123. Object 6. The last and main thing upholding these Courts of Equity is That commonly Frauds and Deceipts can never be discovered nor Private Contracts proved but by the Defendants Oaths which are not elsewhere to be taken in such cases and this enforceth so many Bills of Discovery to be exhibited into those Courts every Term. Answ This Objection doth in it self in foro Conscientiae clearly overthrow the practice of these Courts For the very exacting this Oath is (f) Ames l. 4. de Consc c. 22. f. 222. This question about exacting Oaths against a mans self is handled and the Objections and the Scriptures answered which seem to countenance the samâ— See the Book called A Treatise of Oaths written by the Nonconformists p. 13 15 52 57. against the Law of Nature whose dictates are the same with those of the Law of God written from which are derived undenyable Maximes and Principles whereof this is one Nemo tenetur accusare seipsum This Maxime is agreed by all men and the Lawyers allow it The reason of it is although it need none to confirm it for it is also a Maxime Contra Negantem Principia non est disputandum because every man is nearest to himself and it 's against Nature for him to be a means of his own punishment a man ought to preserve himself although to the hurt of another it were better to kill another then to kill himself or to suffer himself to be killed if of necessity the one must needs be Therefore to exact this Inquisitory Oath against a mans ownself is against the Law of Nature and so against the Law of God This is the very same Oath which was brought into England by Pope Martin the fifth for extirpation of the followers of John Wickliff called Lollards about the Reign of King Hen. 4. and was taken up by the Ecclesiastical Courts as they were called I suppose long before it was used in any English Court and afterwards it was most famously used in the Star-Chamber and in the High-Commission called The Oath Ex Officio the Defendants being besides their answer examined upon Interrogatories as sometimes they are in other Courts And it 's reported which I had from good hands that one Mr. Fuller of Grays Inne having this Oath tendered to him as all Non-conformists had who came into the
Pax Reg. Regni tit Pardon f. 218. b. 219. a. 2 Ed. 3. c. 2. 4 Ed. 3. c. 13. 13. By the Common Law the King had Power to Pardon Murther and it hath been commonly used in former Ages whereby the Land hath been defiled with Blood This is an Impious Priviledge or Custome and clearly against the holy Law of God and seemeth likewise to be contrary to the Kings Oath although by a Statute of Edw. 3. Chap. 2. it appears such Pardons were very common and ate available in Law against an Act of Parliament being made with a Non obstante c. Prov. 28.17 Jam. 4.12 Exod. 21.12 Weems M. L. Com. 6. Decal Exercit. 9. p. 131. (z) Sueton Tranq in vita Julii Caesaris sect 89. in fine It 's written That of all the Senate who murthered Julius Caesar there was scarce one that either survived him three years or dyed a natural death The Historian saith They were all Condemned and it doth not appear that any one of them had a Pardon (a) Bodin Rep. l. 1. p. 174. p. 175. No Soveraign Prince or any Man living can pardon the Punishment due to the Offence which is death by the Law of God no more then he can dispense with the Law of God whereunto he is himself subject 14. (b) Custom Norm tit Tenure par Homage fo 27. b. Kitchin Court-Baron Cowel Inst l. 2. tit 3. f. 3. p. 115 S. 15. p. 119. Wingate Law c. 7. p. 13. n. 29. The Oathes of Homage and Fealty to Lords of Mannors are Snares upon mens Consciences and savour of Tyranny and Oppression The Oath of Homage besides that which is mentioned in the old Books the substance whereof was That the Tenant would be the Lords True-man hath many trivial additions to it which are not of concernment enough to be the cause of an Oath and other things not fit to be sworn unto and all are against that Law Thou shalt swear in Righteousness and Judgement Jer. 4.2 Exod. 20.7 Jam. 5.12 15. (c) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. f. 20. b. fo 21. a. The Attributes of God in the Law given and ascribed to the Kings of England are too high if not Blasphemous viz. Majesty Soveraignty Most Sacred Majesty Infinity c. Ubiquity Immortality Perfection Verity Absolute Justice c. (d) Co. Tit. Pa. to his 5 6 7 8 9 10 11 Rep. Plowd Com. fo 234. a. 177. a b. And by Sir Edw. Coke seven times King James is called Le Fountain de tout Piety Justice la vie de la ley The Fountain of all Piety and Justice and the life of the Law O fearful Blasphemy Although it must be conceived that these Attributes are but Analogical Expressions yet it may be observed That such Arrogancy especially when by this temptation it 's taken to himself of whom it 's spoken (e) Such Emperors and Princes who have taken that Honour to themselves which is due to God alone as did Caligula Domitian Commodus Antiochus c. have all and alwayes miserably perished Jun. Brut. vind contr Tyrann p. 14. is a certain signe of Ruine as was seen in Herod when the people cried The voyce of God and not of man then was he smitten c. Acts 12.22 23. He that said Mine honour will I not give to another will endure no such pride (f) Gualdo Priorato Bell. Germ. p. 125. Battel Luâ—zâ—n p. 19 20. Divers of the Roman Emperors would not suffer themselves to be called â—oâ—l Jun. Brut. vind contra Tyrann p. 51. That famous worthy Gustavus King of Sweden foretold his own death upon this very ground and although he protested against the impious Acclamations of the people was slain within two dayes after they were given to him We condemn such Hyperbolical Titles in the Turkish Emperour and the Pope and by such means the Heathen Babylonians (g) Coel. Rhod. Lect. Antiq. l. 8. c. 2. p. 281. Persians and Râ—mans came to Deifie their KINGS and EMPEROURS But (h) Suet. Tran. in vita Augusti Caesaris sect 53 Augustus Caesar abhorred such Flattery and refused so much as to be called Gracious Lord (i) Corn. Tacit. Prooem l. 1. Annal. p. 1. l. 2. c. 19. p. 61. but was called Prince and it may be observed That Almighty God to prevent such arrogancy when he saith I have said Ye are Elohim Gods or as the word signifies Mighty Judges presently addeth that Ye shall dye like men All must remember this Psal 89.6 1 Sam. 2.30 Isa 42.8 48.11 Dan. 4.30 36. Acts 12.22 A very Learned man hath set it down Bodin Repub. l. p. 181. That for a Soveraign Prince to arrogate to himself the Titles of Most Excellent and Sacred Majesty is absurd the one being a point of Lightness and the other of Impiety For saith he what more can we give to the most Mighty and Immortal God if we take from him that which is proper to himself And he censureth the Princes of Germany for that in a Letter to the King of France there were V. S. M. which is Vestra Sacra Majestas which he calls An addition proper unto God 16. That a Disseiser taking a mans Land from him by (k) Littleton l. 3. c. 6. sec 385. Coke Com. Lit. upon the same place fo 238. a b. Coke l. 2. fo 56. Doct. Stud. c. 8. fo 16. force after a Discent he that hath Right and is the true Owner of the Land cannot enter upon the Heir of the Disseiser This is an unjust Law and a ridiculous thing That he that hath Right may not enter This was a Custome used in favour of such whose Ancestors had entred upon other mens Lands in the time of Wars and put out the Owners Then the Conqueror or Prevailing Party allowed this Priviledge to such of his Party who had so entred Here a man by doing Wrong gets a Right and the Magistrate ought to remedy it Isa 58.6 Ezek. 45.9 Psal 7.16 Luke 3.14 Mich. 2.2 Charta Forestae cap. Manwood Forest Laws par 2. n. 1. par 1. p. 139. 21 Ed. 1. c. Cowel Instit verbo Forest 17. The Laws concerning Chases Parks and Warrens are a great Oppression to the Common-wealth as now things stand as it 's partly declared before where the Charter of the Forest is spoken of It 's true King William the Conqueror had a Title which he got by his Sword and by his Bowe and had the more reason to dispose of those Lands as he pleased and of the Lands adjacent as men would hold of him But now time and it may be lawful Purchasees have made men Owners of such Lands and to make them subject to the Forest-Laws is a great Oppression and contrary to all those Laws of God which forbid Oppression It is to be hoped these waste grounds will be put to better use 2 Chron. 16.10 Isa 1.17 Prov. 22.16 Ezek. 18.7
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
The Romans punished words very slightly Tacit. Annal lib. 1. cap. 15. pag. 29. And capital Punishment for words is charged as a fault Tacit. Annal. lib. 2. cap. 12. pag. 50. as he that said merrily He would make his Son Heir of the Crown meaning his House which had that Sign The like rash words used by one Burdet a great Gentleman of Warwickshire were said to be the cause of his Death This Severity is against Gods Word 66. The greatness of the body and bulk of the Law in force in the next place is a great Grievance to the Common-wealth p Grotius Pol. Max. par 1. c. p. 34 35. The Laws ought to be short easie and few This I touched in the first Chapter where is recited wherein Sir Ed Coke saith the Text of the Common Law is contained whereunto I refer the Reader desiring it may be further considered what an uncertain thing it is to know the extent thereof I set it down positively That no man by reading those Statutes and Books which Sir Edward Coke speaks of as containing the Text of the Law can tell what the Law is in an hundred particulars wherein there have been Judgements and Opinions given for Law of which hardly any thing can be found in those old Statutes and Books That this is so there needs no other proof but the Statutes made within the last 120 years and Sir Edward Coke's own Râ—ports Insomuch that it 's certainly believed That a man may know more of the Law by reading the Statutes and Reports of this last Age then by reading all the old Books which comprehend many Volumes 67. (q) The more Laws there be the more suits there are about the Interpretation thereof France was said to have more Laws and Customes then all the Neighbor-Nations and so also more Suits then all Europe besides which grew through the heaps of written Laws Bodin Rep. l 6. c. 6. p. 766. See the Book called Consuerud Normand The whole Law I mean the Statutes Old Books Entries Registers and Year-books cannot be read over under three or four years with any deliberation the Books being so many that they at an ordinary rate come to above twenty pounds price whereas the Text of the Laws of Normandy are contained in about forty leaves of Paper in folio The Laws of Athens were no more then might be read over in one day and every year upon the (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rous Att. Ant. l 3. c. 1. p. 101. Eleventh day of their Moneth called Hecatombaeon which is July their Laws were read over in the publick Assembly which being done Proclamation was made and then it was demanded If those were Laws enough for the Senate and the Common-wealth and no new Law was easily received by the Senate or the People (s) Amongst the Romans ten men were appointed to Collect the best out of their own and the Laws of other Countries and out of them they composed the 12 Tables The Historian condemns the multitude of Laws and chargeth it as a corruption that Laws upon Laws were multiplied and saith That persons were chosen to salve the intricate Quirks of the Laws Tac. Annal. l. 3. c. 5. p. 71 72. The Romans Laws were likewise but few (t) Tit. Liv. l. 3. p. 108. g. 109. a. 112. h. Raleigh Hist l. 2. c. 4. sect 15. the chief was the Law of the Twelve Tables which they had from Greece and their proceedings in promulgation of Laws were much like theirs of Athens And to mention no more the (u) Willet Hex in Exo. whole Body of the Jews Laws both Moral and Judicial which onely concerned Distributive Justice are comprehended in three Chapters and eight Verses of the Book of Exodus except a very few dispersed in the three last Books of Moses which were added upon special occasions (w) Cock Essay p. 111 134 136 These Laws the Jews knew most exactly but we know not our Laws as one hath lately written by reason they are not set down in a Body nor determined plainly but left doubtfull and inshrined in the breasts of the Judges and few but they may take upon them to expound them This I account a great Oppression Exod. 20. 21. 22. 23. to the 9 verse The Laws of Geneva are contained in about five sheets of Paper See the Book printed in English 68. The (x) Magna Charta c. 1. Coke Instit par 2. in Westm 2 c. 33. p. 431 432. See the Grants to the Templers Cestercians and Hospitallers Concil Vienna dissolved the Templers Anno 1311 and their Lands given to the Hospitallers 17 Ed. 2. Coke ut supra The Clergie as they are called still claim to be free from payment of Constables Levies and some of the Judges and Justices allow it At W. Sess Mich. 1655. great distinction between the Clergie and the Layty as they are called in Conformity to the Popes Laws and Constitutions is a thing superstition oppressiâ—e to the Nation and tends to the advancement of the Roman Power meerly Antichristian Hence the Archbishops and Bishops being set above the Dukes Earls Baron c. with their Attendants inferiour Priests and Deacons and other Ecclesiasâ—ical Orders made as it were another Common-wealth free from Secular Services The Priviledges granted to the four great Orders of Monks in England are largely discoursed of and their particular Charters and Immunities rehearsed in the new book called Monasticon Anglicanum which is to be sent to Rome by J. A. and cannot but be there highly esteemed It is a famous Monument of Idolatry Taxes and Payments and served chiefly to maintain a Faction against the Common-wealth of the Layty by upholding the State of Antichrist against the Temporal Power Now under the Gospel all men are in one condition and the Lords Lot Clergie are his People in every calling without respect of persons Isa 61.6 1 Pet. 2.9 Rev. 5.10 William Laud late Cardinal of Canterbury had a design on foot to make a perfect distinction between these two Common-wealths and to the better strengthning of his Party he had an improbable Project to erect again the Old Monasteries at least such as there could be any colourable pretence to seize into the Kings hands And several persons whom I could name were employed to finde out and report the Foundations and Priviledges of these Monasteries But blessed be God who hath prevented these Superstitions The Law had need to be changed in this point of Distinction CHAP. XII That the Practick part of the Law as it 's now in use is in many particulars sinful and repugnant to the Law of God and an oppression to the people 1. COmmon Recoveries for assurance of Lands being truely called (a) Doct. Stud. c. 32. dial 1. fol. 56. a. Cowel Inter. verb. Recovery Cowel Instit Index Expositor Litera R. Fined recoveries are nothing else but a pack of lyes And a colloquie at the Bar and
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
is repeated twenty or fourty times at one Goal-delivery if there be so many Prisoners arraigned God send thee a good deliverance (z) Perk. on the 2. Com. vol. 1. pag. 38. col 1. This formality or rather superstitious profaneness in Prayer wherein the Holy name of God is used so lightly and accustomarily being pattred over as the Papists patter over their Pater Nosters Ave Maries and such like upon their beads without either fear or wit In Imitation of whom we have this and all other forms of Prayer devised by man This is against the Holy Laws of God which forbid 1. Profane using the name of God 2. Superstition in so applying this form of Prayer 3. Vain Tantalogies as if the very repetition of it were effectual for some good purpose being used without reverence or devotion Matth. 6.7 Rom. 12.11 12. James 5.16 Jer. 12.2 Isa 29.13 14. 21. That Law accounted amongst the Laws of Merchants that Accounts made up between Merchants or other Tradesmen Barker against Nayler and Townsend in Chancery Anno 1654. and signed under their hands and allowed Errours Excepted as the form is should not again be examined although there be palpable or Errours wilful mistakes seems to be a hard Law It 's true that suits upon Trivial supposed mistakes are not to be incouraged but where Errours are of great concernment to mens estates and clearly proceeding from injustice such Accounts ought in Equity to be examined Although now in such case the wrong'd party hath no remedy either in Law or Equitâ— It were fit some honest able men were appointed to Determine Accounts in such cases to avoyd wrong and oppression amongst Merchants and Tradesmen Isa 58.6 Isa 1.17 Job 29.15 16. Lam. 3.35 36. That Golden Rule of our Saviour over-ruleth all things of this nature Whatsoever ye would that men should do unto you the same do ye to them Matth. 7.12 CHAP. XIII That the general Execution of the Law as it 's now seated and practised at Westminster is a Common oppression to the whole Nation First it is to be premised which cannot be denied that by the Ancient Law of the Land no Action could be brought at Westminster out of the proper County I do not mean in respect of the Ven. or place for triall but in respect of the beginning continuance and end of the suite all being done at home except the matter in question were of the value of forty shillings or more By the Statute of Gloucester (a) 6 Ed. 1. cap 8. anno 12â—8 Cook Inst 2. part p. 311. aâ—d 312. Ex. Briton c. 28. fol 61. which is taken for granted to be in affirmance of the Common-Law It is ordained that no man shall have a Writ of trespas for goods taken unlesse he swear that the goods taken away were worth forty shillings and all such causes where the (b) Powels Cou r Leet fol. 12. 13. matter in demand was under forty shillings were anciently determined in the County Court Hundred Court or Court Baron of the Mannour where the cause of Action grew then were not the Courts at Westminster stuffed with such a world of frivilous and triviall suites as they have been in this last Century especially the last fifty years for then I mean an hundred years since began those Courts to fill and ever since have swelled and the Courts of Record as well as those Court Barons above-named in the Counties and Cities have decayed and in many places grown out of use It 's written that in King Hen. 8. his Reign who died but 110. years since there were some dayes in the Terme when there was not one cause heard or so much as any motion in some one Court at Westminster And that about the tenth year of Queen Elizabeth there was but one Sarjeant namely Sarjeant Bendloes at the Common-Pleas Bar which is a strong presumption that the businesse was little or else there would surely have been more Sarjeants created before the residue had died 2. And if it be considered what proportion forty shillings in money in King Edw. 1. his time when the Statute of Gloucester was made bears with many in these dayes no one will wonder that there were few causes in Westminster Hall when all under that value were dispatched in the Country I take it to be clear that forty shillings then was as much in value in respect of the use and benefit of as forty pounds have been since and that forty shillings would then have bought as much Lands goods or Commodities of the growth of this Nation take one Commodity with another as forty pounds would have bought fourteen years ago which doth appeare thus (c) Cooke Compl. Copieholder Sect. 25. p. 36. twenty pounds by the year was in the dayes first above mentioned held (d) Cooke Com Littleton L. 2. Sect. 95. fol 69. Camdens Britan. p. 136. Westm 1. Compared with Fitz. N. B. fol. 6â— Lowes Case l. 9. fol. 123. sufficient to maintain a Knight and that is a Knights fee they that accompt it by the quantity say that it contains eight hundred Acâ—es all conclude it to be between six hundred and four-score and eight hundred Acres whose accompt is the least so it hath been lately reputed within thirty miles of the middle of England where commonly Lands are valued at ten shillings the Acre by the year being neither Forrest Heath Waste nor course arrable ground and as much above that rate as under According to this accompt twenty pounds by the year at twenty years purchase comes to 400. l. and eight hundred Acres at ten shillings the Acre comes to 400. l. per annum which at twenty years purchase comes to 8000. l. which is for every twenty shillings twenty pounds then add to this that money it self is raised (e) Cooke Inst 2. part p. 311. from twenty pence to five shillings the ownce and above and the native Commodities of the Countrey are raised as much as Land It's Reported by Stowe (f) Stowe Annal. in the life of H. 2. pag. 154. in his Chronologie out of the black book in the Exchequer that Anno 1175. a measure of Wheat to make bread for one hundred men was valued at one shilling the carcase of a fat Oxe at one shilling a fat Sheep at four pence Provender for twenty Horses at four pence and I finde in an old Manuscript of good credit that Anno 1372. a quarter of Wheat was at two shillings and a fat Oxe at six shillings eight pence and if credit may be given to such as have died in this age such a beast as twenty years since was worth five pounds might have been within an hundred years (g) It s proved by many instances that within one hundred and seventy years past Lands have been raised in France and the Countreys adjacent twenty times dearer than they were and Fruits and Victuals raised near the same proportion Bodm Republ. l. 6. cap. 2.
the Punick war But before that was payed the Macedonian war grew on whereupon the people began to account their debts desperate saying that their moneys which they lent upon courtesie and benevolence was like to fall to the common Chest of the Citie seeing that one war followed upon the neck of another To satisfie these debts which was but the third part of the whole and the last payment Tit. Liv. l. 31. p. 781. A. B. All the Common Lands within 50 miles of Rome round about were conveyed to the Citizens in Fee-farm reserving three farthings by the year upon an Acre to testifie that they were the Cities Lands and to be redeemed when the State should have money This Land was called Trientius and Tributus because it was granted in lieu of the third part of the Loan money And as another means to enable the Romans to discharge great debts they * Idem Tit. Liv. lib. 7. p. 267. D. Tacit. Annal. lib. 6. cap. 4. p. 126 127. used in time of necessity to bring interest of money to one in the hundred and sometimes to half one in the hundred I suppose this were enough for money lent upon the publick faith if it were well considered seeing almost every Creditor hath received more benefit than the interest of money having his share in the blessing of Peace with the freedom of the Gospel and his Estate secured and quiet It is to be wished that after our late wars before the publick debts be payed we do not hastily run into other wars without just inforcement lest we bring our selves into the Romans conditions being far lesse able to raise money or to give satisfaction than they were CHAP. XV. A digressive discourse about the preaching of the Gospel the ordination and appointment of Pastors and Teachers and of their Office and maintenance IT shall in this discourse as my private opinion be premised wherein I crave pardon if I differ from other men that the (a) The distinction of Clergie and Laitie grounded upon Magna Charta and other popish Laws is still stisly maintained and upon that ground the Ministers claim to be discharged of Constables Leavies and other secular services as they are callâ—d And the Lawyers are very earnest to uphold this superstition Although all Gods people being alike his Lotor Clergie are called a Kingdom of Priests 1 Pet. 2.9 Isa 61.6 Revel 5.10 Deut. 32.9 ech 2.12 great distinction of the Tribe of Levi from the rest of the people with all their Sacrifices Circumcisions Services at the Altar their portion of the Tythes and Fruits their restraint from having any Lot of Land amongst their brethren in the Land of Canaan except that which was allotted and set out to them their purifications significant Garments with all other their Levitical and Ceremonial service are all finished by the death of Christ who fastened all those to his Crosse and took away this distinction and the burden of these Ordinances And that they were dead and not binding after Christs death That they had an honourable burial and were perfectly abolished at the demolishing and plucking down of the Temple the place of the residence thereof fourty two years after Christs death And that as at the first these things were necessary being the Commandments of God attending his service worship so after Christ they were dead and at the most things indifferent and rather suffered for the weaknesse of the Gentiles and in compliance with the Jews to the furtherance of the Gospel than for any necessary use thereof nay and in case of scandall and where they were much stood upon as matters appertaining to religion they became unlawfull and to be esteemed as beggarly rudiments Circumcision it self being a rejecting of Christ But after the distruction of the Temple when that Levitical and Ceremonial vvorship with all the appurtenances were destroyed dead and buried the use thereof became utterly abominable And therefore it is an unlawfull accursed thing to raise them out of their Craves again and to use the same in derogation and opposition of Christ and the sufficiency of his sufferings and upon this ground I conceive it unlawfull for the Ministers of the Gospel to Judaize in point of claiming by Divine right or receiving of Tythes as much in respect of the lawfulnesse or unlawfulnesse of the thing as if they should again fall to circumcising and to sacrificing as the Papists pretend to do in their idol of the Masse And it may be judged that the Ministers are blinded with the profits of the Tythes more than they were with their significant Garments and ceremonies because they receive more worldly advantage by them than by the rest which being unprofitable they have more willingly parted withall And especially their Parishes which the Church of Rome received from the Heathen the City of Rome it self being before the Suburbs were built or the Citie sacked by the Goaths and Vandals divided into two and thirty Parishes and so came into the hands of the Pope who succeeded the Pontifex Maximus of the Heathen with payment of Tythes like those of the Jews as before is herein set forth and thence came all this trash into England with the Hierarchy of Bishops and Arch-Bishops in the room of the Flamins and Arch-Flamins of the Heathen and to the shame of Christianity and scorn of the Gospel are not yet all cast out as unclean things O England wilt thou not be made clean when will it once be This being premised I presume to enquire what Ministry there ought to be in the times of the Gospel Before Churches were gathered anâ— setled Kings and â—mperours had the ordering of the affaires of the Church aswell as the Common-wealth and had the nomination of Bishops untill the Pope usurped that power Hawk right of Dom. l. 3. c. 5. pag. 136 138. 140. what is the nature of their function and who hath the appointment thereof and how the Ministers shall be maintained and so the publick vvorship of God upheld And herein I suppose we ought neither to imitate the Jews in what they did by vertue or authority of the Levitical or Ceremonial Law nor the idolatrous Heathen who borrowed many of the Jews Rights and Customes nor yet the idolatrous and Superstitious Papists who retained both the Ceremonies of the Jews and Pagans But that in and concerning the things before mentioned we look for a pattern or vvarrant from the holy word of God sufficient to instruct us in this point and which may be a standing rule not to be changed or altered as the Levitical and Ceremonial Laws were And herein I affirm that a (a) About Ann. 320. Constantine the Great the first Christian Emperour sent forth preachers of the Gospel Sympson Hist of the Church lib. 1. pag. 6â— ex Sozom. l. 2. cap. 6. great part of the work lies upon the hands of the (b) â—he Pontisex maximus or chiefe Preist amongst the
Tyranny of Antichrist stir up men whom we may well say were sent of God to preach the Gospel although they were not ordained by any Presbytery unlesse it were by the Presbytery or priest-hood of the Church of Rome which upon their conversion they utterly renounced and I doubt not to say but that those who are apt to teach and able to divide the word of truth aright and are willing for conscience sake and the glorie of God in the conversion of Souls to spend themselves in teaching the word of God to the world may have a sufficient call and Warrant thereunto from God without the laying on of the hands of any Presbytery which ceremony I take to have been annexed to miraculous and extraordinary gifts of the Holy Ghost bestowed on men in the first setting out of the Gospel and not to be used where such extraordinary gifts of tongues Prophesie and miracles are ceased no more than that ceremony of anointing the sick with Oyl being also used in those dayes and accompanying the gift of healing they are now used with us (r) Calvin Institut l. 4. cap. 19. pag. 72â— 724. as they have been and are used in the Church of Rome the one called the Sacrament of Orders and th' other of extream Unction and both these ceremonies of imposition of hands and anointing were used likewise by the Papists in their Sacrament of confirmation and I doubt not but all of them are promoted by the Jesuits and Romish Priests at this day amongst us It cannot be shewed that either Petrus Valdus or his followers called Waldenses and Albigenses of whom there (Å¿) Regenvolsc Hist Eccl. Slavon l. 1. cap 3. p. 12. 30 31 32. Sympson Chuâ—ch Hist lib. 2. cent 12. p. 429 430. pag. 321. Whites way true Church sect 44. numb 1. Ex Ramerio in Biblioth Patr. Tom. 4. Par. 2. 1 Corint 9.7 9.11 12.14 Gall. 6.6 Luke 10.7 were fourty Churches Anno 1254. received these ceremonies where it also appears that the brethren for so the Church Members were called did send out many of the Members to preach the Gospel in other places in Greece and Thracia c. and they were incouraged by the Kings Letters Patents pag. 35. 36. Now for the maintenance of the Ministers of the Gospel according to their several functions or rather difference of imployments generally they are to have t liberal maintenance according to that of the Apostle God hath ordained that he that preacheth the Gospel should live of the Gospel The first sort that is those that preach to the world are to be maintained by the world and because the wicked world having weak eyes think nothing a greater torment than the light the Civil Magistrate is to see to the maintenance of these Ministers and may lawfully raise it upon the world although against their wills as the Magistrate doth provide for such mad men and Idiots as cannot guide their own Estates and dispose thereof for their necessary use and benefit (a) Tim. 5.17 18. Math. 10.9 10. And for th' other sort of Ministers they ought to be provided for by the Churches according to their abilities and none of these to be maintained by Tythes for the reasons herein before alledged Now although I affirm that the work to appoint Pastors and Teachers lieth chiefly in the power of the temporal Magistrates yet I conceive it necessary that godly learned men be consulted with who may satisfie the Magistrate touching the learning and ability of such who are to preach the Gospel as is used in some reformed Churches where Tythes are abolished But that which will be said against this kinde of maintenance of Ministers not by Tythes is that which is usually objected viz. That no way can be found out so certain equal and indifferent for maintenance of the Ministry as by Tythes which are setled by so many Laws For answer hereunto I will not at large handlâ— that controversie which requires a volume larger than what this Treatise can permit having writ something elsewhere touching the same I shall onely propound a clear remedy for cure of the many junglings and wranglings which are daily between the Ministers and people about payment of Tythes which both hinder the study of the one and discourage the labour of the other and continually disquiet them both hindring the preaching of the word of God and obstructing the good effect thereof The remedy I humbly propound is this Provision for Ministers of the Gospel without Payment of Tythes Let there be a survey of all spiritual promotions as they are called such as that in Edw. 2. his time and then let all gleab Lands Tythes Oblations Obventions and other profits claimed and by Law belonging to the Parsonages Donatives Vicars be sold to the owners of the Land and estates out of which they arise or to others if they refuse to buy the same at sixteen years and two thirds of one years purchase and that will raise just so much money being disposed of at six in the hundred as is now due or payable to the Persons and Vicars For example that Parsonage which is found to be threescore pound by the year Communibus annis shall at this rate be sold for 1000. l. which yields threescore pounds by the year and if this rate be a little too dear for the tythes the Gleab-lands will make amends which for the most part are the best Lands in every Town and without doubt the Owners of the Lands charged with Tythes were better to give twenty years purchase for the Tythes than to pay them constantly being an exceeding curb and oppression both to the Tenant and Owner of the Land and this is the remedie I propound And if the same were done then might the money raised thereby be allowed to such as are able faithfull and willing to preach the Gospell and then such as are ignorant insufficient scandalous and prophane may be kept out of this service for that although the (x) Luke 4.34 Devil and wicked men may preach Christ in some sort (y) Math. 10.4 5 7. as some say Judas did yet it doth not appear not is to be believed there being no word of faith to warrant it that ever any man not walking in the wayes of God or not being converted ever (z) Jerem. 23 21 22. Luke 22.32 Daniel 12.3 Mal. 2.6 7 8. turned any one from his unrightousnesse that being one of the most glorious workes of God which he doth not use to act by wicked men which appears clearly by many Testimonies of holy Scripture * Dr. Brian in Mal. 3. Dr. Grew in Ephes 2.1 2. Acts 9.4 5 6.15 16. It is a point commonly insisted upon that God doth no great work by any man but he first humbleth him And this is all I shall say touching this matter being so long a digression onely as appertaining to the matter in hand I set it down as a defect in our Law