Selected quad for the lemma: land_n
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A59656
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Certaine proposals for regulating the law to make the same more plaine and easie to bee understood, and lesse chargeable and expensive then heretofore.
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Shepheard, John.
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1652
(1652)
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Wing S3102A; ESTC R221120
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4,336
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11
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CERTAINE PROPOSALS FOR Regulating the Law to make the same more plaine and easie to bee understood and lesse Chargeable and expensive then heretofore FIrst I take for an undeniable principle that the Law which so much concernes every man ought not to bee a Mysterie but as much as possible be made most prosâ—icuous and evident to the meanest capacitie nothing being more unjust then for a man to be judged by a law of which hee was unavoydably ignorant For if wee consider the rise and originall of all Lawes because men knew not when they did well when they did evill what was theirs what not theirs they instituted Lawes to the end every man might know his Duty and the penalty of transgressing Moreover it is a maxime in our own Law that ignorance thereof excuseth no man but every man is presumed to bee conusant thereof And it is a true saying Misera est servitus ubi jus est vagum aut incognitum It is a miserable slavery where the Law is incertain or unknowne a wonder it was to all wise men even to the ingenuous of the Professors of the Law themselves that the Law should bee kept so close lockt up in an unknowne tongue when the reason why the Lawes were first written in that brackish French was because that Language was then best understood of those whom those lawes most concern'd viz. the Normans Therefore blessed be God it hath been and still is the Wisdome and Integritie of the PARLIAMENT to make the Lawes so plain and obvious to every understanding that every man might know his duty and his property The Lawes of this Land are eyther Criminall or Civill as for the criminall Lawes they are not so many or mysterious but with a little study a man may attaine to a competent knowledge thereof but for the Civill lawes especially those which concerne Lands they are infinitly Intricate mysticall and expensive Now because when a Disease is knowne it is halfe cured that which I conceive is the cause thereof is multiplicity and diversity of Tenures and Conveyances together with the secret and clandestine making of Conveyances There are not so little as Ten severall wayes whereby men may convey estates of Inheritance upon every of which depends such innumerable quirkes and intricacies all of them having severall operations that men which make it their whole studies all their lives long can hardly if at all come to some reasonable knowledge thereof Now that which I propose for the Remedy of this evill is 1. THat all Estates of Inheritances as well Free-hold as Copy-hold might bee but of one Tenure to wit Fee simple Entailes my L. Cooke being Judge having so fetter'd and intangled mens Estates that infinite are the controversies which do ariâ—e thereupon And to the end no man might be a looser hereby nor any mans Property destroyed certain Commissioners not of the same County might be authorised to Assigne and apportion to every Lord of Mannor some part of the Tenancy in liew of his chief Rents Heriots and proquisites of Courts c. in case the Lord and Tenant did not agree between themselves 2. That there might bee but one kind of Conveyance for all Estates of Inheritance viz. a Feofment in fee executed with Livery and Seisin or atturnment and intolement in the proper County 3. That every Lease longer then for Seven yeares and all Wills that concerne Lands should be by writing to be inrolled likewise as aforesaid If this were done I am perswaded the Law 1. Would be reduced into one considerable volume which now a small Library doth not containe and there being but one Tenure and one kind of Conveyance every man almost without Herculaean labour might attaine to some competent knowledge thereof And I would gladly know why there should bee so many sorts of Conveyances when one will serve the turne unlesse it be to make the Law more mysticall Frustra fit per pâ—ura quod fieri possit per pauc 〈◊〉 ora 2. The excessive expence and chargeable ceremonies of Fines and Recoveries would be saved If in like manner all Conveyances were inrolled then would there be plain dealing above-boord the Common-wealth 1. should bee sure of their Escheats and forfeitures upon any Treason committed or otherwise 2. Purchasers should deale upon sure grounds and not purchase a multitude of suites and troubles in stead of an estate 3. Farmers should be sure of their bargaines when they are sure their Landlords have good estates 4. Creditors should be sure of their Debts whereas now men of very great estates in Lands so convey and intangle them that a Creditor can take no advantage against them 5. Men upon Marriages of their Daughters shall be much more sure of Joinctures and in generall in all Contracts and bargaines there would bee much more certainty which is the mother of quiet and repose whereas now who sees not the innumerable controversies doe arise upon secret and clandestine Conveyances also what abundance of Suites are commenced upon supposition that they have right but cannot come to know the certainty because they can not come to sight of Evidence How many poore Widowes Orphans and others loose their right by reason their Evidences are imbezeled These and many more mischiefes would be remedied by inrolement of Conveyances in the County Now next of all let us consider what may bee the Inconveniencies which may arise hereupon And first it may be objected that for Copy-holds the alteration would bee very great and that all Copie-holds passe by Surrender which doe amount to asmuch as the Inrolement mentioned For answer thereunto it is confessed That Copie-hold Estates by reason thereof are not lyable to fraudulent Conveyances and therefore there doe not so many suites arise concerning Copie-holds as of Free-hold Yet notwithstanding they being not extendible for Debts which is a thing very unreasonable in my judgement that a man should have any Estate not lyable to the payment of his Debts but chiefly because they retaine in them as yet more of Villenage and slavery by reason of the arbitrary Fines Herriots Oathes and suites of Court due to the Lord then is well consistent with the Freedome and liberty of English-men And to the end the Law might bee the more easie and plaine to be understood and all occasions of Controversies asmuch as possible might be removed J suppose it best that as aforesaid all Estates of Inheritance of Copie-hold might bee made free and all lesser Estates made onely lyable to certaine Rents as of Free-hold lands 2. It may bee objected That it would be inconvenient to take away Entailes whereby some would loose the benefit of Reversions after those estates ended As to that wee know every Tenant intayl at this day may at his pleasure make it Fee-simple And for any thing else may bee sayd therein my Lord Cooke in his first Institutes fol. 19. b. shall answer for me in these words When all Estates were Fee-simple then
were Purchasers sure of their Purchases Farmers of their Leases Creditors of their Debts the King and Lords had their Escheates Forfeitures Wardships and other profits of their Seigniories and for these and for other like causes by the wisdome of the Common-law all Estates of inheritance were Fee-simple and what Contentions and mischtefes have crept into the quiet of the Law by these fettered Inheritances daily Experience teacheth vs. So that for this change there is a sufficient President the ancient Common-law of this Land and the advice of him who knew the Lawes of this land aswell as most that ever studied the same viz. the Lord Cooke Then also concerning the Inrolments aforesaid 1. It may be objected That a man cannot borrow money upon a Morgage without letting the Countrey know thereof now as for that J conceive it no great matter if hee that is rich bee so esteemed and hee that is poore be so reputed 2. But then the maine objection will bee There be many Conveyances which if examined would be found defective whereby Estates which have long continued in a Family might bee carried away to others which in stead of ending Controversies would beget new For answer to which that admit it were so yet that would be but onely for the present and after the first Suit it would be setled for Posterity Moreover it would but helpe those to possession to whom the Law had given most right But for remedy of such like Inconveniencies was a profitable Statute made in the 21. yeare of King James viz. That after 20. yeares quiet Possession no action should bee commenced unlesse in case of Infancie Coverture or the like which Statute if it were inlarged and put in execution would salve that sore sufficiently The next Proposall for to remedy delayes in Suites and to take away excessive Charge is to take away Arrests in the beginning of suites It would require a volume of it selfe to shew the excessive expence the great delayes of Justice the briberies and extortion by Sheriffes and Bayliffes the batteries barbarous cruelties and many times Murthers and many other inconveniencies which doe flow from this wicked fountaine of Arrests As for Example a Noble-man or Great man owes me 10 or 20. l. perhaps for wages or some other thing for twice it may beeten times my debt J cannot get him arrested and untill hee be arrested J can never so much as proceed in my suite and if after disbursement of a great summe J get him apprehended I shall have some five shillings allowed towards it by the Court. So if a man live in some Priviledged places or rather which usurp such priviledges there they secure themselves and bee their Estates never so great can by no meanes be layd hold on to pay their just debts It would be too tedious to give instances of sculking wandring persons and of some that secure themselves by the company of lewd and desperate fellows that they can not be apprehended without abundance of charge and oftentimes danger of life these Mischiefes are so well knowne that I need not further set them forth I appeale to many mens experience whether if the arrest of divers persons would not cost them more then all the charges of Suite besides nay and their proper Debts to boot and how many yeares men may wait through the corruption of under-Sheriffes and their Bayliffes before they can get a Debtor arrested when if they were once taken the suite would come to Execution in three quarters of a yeare at most without much charge Now for remedy hereof J suppose a sufficient Summons might serve turne well enough and so in default of not Answering the Plaintiffe upon proofe and evidence-given might proceed to Judgement and Execution For my owne part I confesse I see no satisfactory reason but that every man aswell as Tradesmen might bee brought within the Statute of Banckrupts All that ever a Tradesman hath must be sold to pay his Debts and why other mens Estates who are as justly indebted as they should not in true reason I doe not understand The Law seemes to me too mild and remisse against the estates of Debtors and against their persons as much too rigid and severe Another Proposall is that Experience doth shew what very great delayes and intollerable charges arise from being tossed from Court to Court viz. from Chancery to Common-law and so back againe nay J am perswaded that not one cause of tenne especially if of any consequence but first or last comes into the Chancery meerly for delayes by which meanes peaceable minded men will rather give away halfe their right then be troubled to sue for it Now the remedy hereof I suppose might bee to impower the Common-law Courts with equitable Jurisdiction that the same Court might aswell determine the Equity as the Law of every case Another thing very necessary would bee That the Act for reliefe of Debtors might extend to persons which now are or hereafter shall be Imprisoned Lastly it were to bee wished That the Committee for the Regulating of the Law would procure some learned in the Lawes who might be well Fee'd for their paines to argue and set forth before them the Inconveniencies on the one side with the profit and commodity on the other which may arise on these or the like Alterations their worke would be much more easie and they themselves the better able to ponder and judge what is fit to be done it would not bee Time labour or money ill spent to procure good and wholsome Lawes for our selves and Posterity Finis