out of use and ought to be Repealed The Act for Reforming of Disorders in Ministers a superstitious Law 13 Eliz. 12.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-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
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
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-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
every day (f) Bodin Republ. l. 4. câ—p 2. p. 441. all their Conjectures are uncertain 30. Perjury in an answer in Chancery or Exchequer is not punishable by any penal Law The ordinance for Reformation of the Court of Chancery appoints Legacies to be sued for at Law and excludes them the Chancery but doth not dirâ—ct what account shall be brought 5 Eliz. c. 15. or Act of Parliament onely it 's said that it may be punished upon a Bill for Perjury in the Court where it was committed this is a long way further than a man will be willing to go at his own charge and I never yet knew any man punished there for any such Perjury and it was punishable in some cases in the Star-Chamber however it 's sinfull perjury before God Iohn 8.44 Zach. 5.4 Ier. 5.2 31. There was no Law to recover Legacies but in a Court of Equity before the last Ordinance and there is yet no Law setled for recovery thereof if the Legacy exceed not twenty pounds the charge of the Suit in Equity if it come to a Decree will be as much as the Legacy it may be much more if the Defendant be wilfull or liberal nor is there any Law to acquit executors upon payment of Legacies to Infants although it be done to their great preferment this is a defect Rom. 13.7 Heb. 9.17 32. There wants a Law for punishment of Witch-craft where murder is not committed setting a Witch upon the Pillory and imprisonment for exercising her Devilish malice upon Cattle (g) The defect of this Law was complained of by St. George Crooke upon the triall of a Witâ—h convicted of Witchcraft but not of Murder about the year 1627. at Coventry or men when death follows not is not sufficient such Witches as likewise Magicians ought to be put to death Exod. 22.18 K. Iam. Daemonol lib. 3. cap. 6. pag. 76. An Action upon the Case will not lye for calling one Witch and this reason is given in the book because Witch-craft is but Art and the word doth not imply any Act or exercise of it But Gods word teacheth us not to consult with the Devil or his evil instruments (h) Tacit. Annal. l. 2. cap. 8. p. 43. Pituanius a Magician was cast down headlong from the Tâ—â—peâ—u Rock The Romans banished such as consulted with Wizards and sometimes put the Magicians and Wizards to death according to Gods law Thou shalt not suffer a witch to live 33. There wants a Law directing how mens personal Estates shall be divided by Administrators when a man dieth in Estate (i) Magna-charta c. 18. Fitz. N. â— 122. l. Wingat Law cap. 11. p. 19. numb 13. It was anciently at the discretion of the ordinary who used to dispose of part of mens Estates or what he pleased in pias causas or for the health of the Soul of the deceased as it was said but now the Superstition is removed it 's necessary it should be declared what proportion the Wife and Children or Kindred should have it seems anciently a Wife was to have a third part of her Husbands clear personal Estate and Children unpreferred another third part Cook English Law pag. 47. but this is not observed All men who have any estate ought to make Wills to preserve peace after their deaths and to divide their estates amongest their Children Gouge on Epes 6. Tract 6 pag. 321. The remedie of thâ—s is to have all mens estates inrolled in the Counties where they are As the Jews had their estates with their Pedegrees inrollâ—d Ezra 2 6â— Jer. 32.11 John 14. and 15. and 16. 34. The like want is found where a man seized in Fee-simple of Lands having no personal Estate and many Children dyeth in Estate the Land descends to his Heir and the younger Children can claim nothing this is a hard case And far worse is it where a man hath an Estate in Tail and nothing else to preferre younger Children In the first case he may by Will in vvriting charge his Lands in this he cannot dispose of his Lands by Will charge them with any thing to raise portions for younger Children this would be amended by some profitable Law and Lands for this cause would be made Fee-simple Gen. 25.6 Luke 15.12 Iosh cap. 14. and 15.16 17. 35. There wants a Law to secure purchasers from being cheated by old Intails sleeping Morgages Judgements Statutes In somuch as I heard a Learned man say once there is no fence against a Knave some publick Register in every County should be setled and a Law made that whatsoever Estate should not be there entred should be void as against purchasers and such as some in for valuable considerations there are many men cozened and undone in such cases and no remedy if the Incumbrances were for any valuable consideration at the first although of long continuance This ought to be amended see this case recited by Charles Geo. Cook Essay pag. 123. 36. That Copy-houlders of Inheritance should not have liberty to set or let their Lands (k) Bodin de Republica Tit. 1 p. 39. Cook compleat Copie-houlder sect 9. p. 8. sect 12. pag. 14 15. unlesse for a year or three years is a hard Custome and to Fine at the Will of the Lord is worse the pretence of Ease in Chancery or Exchequer is a meer gullery the first ought to be amended and the last assertained by some good Law Cook English Law pag. 48 49. 37. That there should be no means to recover Debts upon (l) It 's made a note of a wicked man to borrow and not to repay Psal 37.21 Therefore there those should be a Law to enforce men to pay just debts and not to suffâ—r men to cheat men by such niceties Gouge on Ephes 6. Tract 5. pag. 271. col a. b. simple contracts against Executors nor to recover from the Executor of him that was Bayliffe or receiver of monies as it falls out in some cases is a great defect the reason of it is because the Testator might in his life-time have waged his Law But in some cases it is impossible that he should in reason by such gager discharge himself as when the money is an Infants and when there are witnesses to prove the contract This ought to be amended being but a Law of common right to enforce a mans Estate to pay Debts which are justly due 2 Kings 4.7 Exod. 22.26 27. Luke 6.35 and 7.42 38. There wants a Law for restraint of excesse and oversumptuousnesse in diet and house-furniture the excesse wherein doth ordinarily undoe and cause to goe to ruine the Estates of very many especially (m) Coel. Rhodig Lect. Antiq. lib. 9. c. 13. p. 330. Citizens and is the worst Thief in the Common-wealth except gaming and suretyship the Romans had Laws for restraint in this kinde and therein (n) In villaticis pastionibus sunt qui pro guloso accipiunt Aegyptio Regi
Inventions in the Worship of God being condemned as Will-Worship and things that are meerly Idolatrous in State serving for nothing but to uphold the Religion of the false Church of Rome and are not to be used by Christians Lev 20.23 Hos 14.8 2 Cor. 6.16 Deut. 12.3 CHAP. VI. That divers of the old Statutes as well suâ—h â—s are said to be made in Affirmance of the Common Law as oâ—â—â—rs Introductory of New Laws coâ—tain iâ— them gâ—â—at Oppressions and Wrongs to the People aâ—â— oâ—ght to be amended (a) Articuli super Chartas 3 Ed. 1. c. 7 31. 28 Ed. 1. c. 2. 10 Ed. 3. c. 1 4. 14 Ed. 3. c. 19. 25 Ed. 3. c. 1 15 21. 34 Ed. 3. c. 2. THe Statutes concerning Purveyance for the Kings Houshold where the Officers might take in a manner what they would at their pleasure This was afterwards changed into Money 36 Edw. 3.2 At the best it was a heavy Oppression to the People The like may be said of all those Laws concerning Villains whereby they were accounted the Goods of the Lord and might be bought and sold cum tota sâ—quela which is said to comprehend their Wives Children and Posterity And if any Lord pretended a man to be his Villain the Lord might seise him as his Villain although he had his Writ de Libertate probanda depending against the Lord 9 R. 2. 9 R. 2. c. By the Statute of 34 Edw. 3. Chap. 22. He that findes a Hawk and doth not restore the same shall have two years Imprisonment and pay for the Hawk and if he have not wherewith to pay he shall continue longer in Prison (b) 37 Ed. 3. c. 19. And by another Statute He that stealeth a Hawk or detains her being found shall be used as he that steals a Horse And by another Statute He that steals a Hound shall have a years Inprisonment Here a great mans Hawk or Hound is of as great a price as a poor mans Liberty or Life (c) Grotius Pol. Maxims par 2. c. 12. p. 129. A learned Statesman observes That a Common-wealth is often destroyed by such kinde of Laws as are made to the advantage of great ones and the prâ—ssâ—re of the Common People The Statuâ—e of 13 R. 2. Chap. 1. appoints the price of a Pardon for Murther to a common person 200 Marks This was in part Repealed 16 R. 2. Chap. 6. but the Power to Pardon Murther was left in the Kiâ—g These are wicked Laws repugnant to the Law of God as shall appear in their proper places In Actions brought for the Kings Debts in others mens Names unto whom they were bounden although the Suits pass for the Defendants the Plaintiffs should pay no Costs 24 H. 8. Chap. 8. Appeals to Rome in cases Testamentary and concerning Matrimony Divorces Tythes Oblations Churches c. which is seems were allowed at the Common Law were a great Oppression See the Statute 24 H. 8. Chap. 12. The like Statute is made 25 H. 8. Chap. 19. whereby Appeals to Rome are prohibited but there is power given to the Clergie as they are called to mâ—ke Canons which are Laws to binde and insnare mens Consciences which Law being Repealed 1 2 Philip and Mary Chap. 8. was Revived 1 Eliz. 1. By colour whereof a great persecution arose against the Non-conformists which hath continued until these times to the great Oppression of the Godly of the Land And some were put to death and others pined and starved by hard and long Imprisonment by colour of these wicked Laws and Canons The Commissions of Sewers grounded upon the Statute of 23 H. 8. Chap. 6. and 13 Eliz. 9. are over-chargeable and tedious and used as a great Oppression to the People in the County of Lincoln and parts adjacent The Commission grounded upon the Statute of 13 Eliz. Chap. 7. and other subsequent Statutes made against Bankrupts is grown a meer cheat of the People very troublesome and chargeable and concluding nothing but what is questionable again either at Common Law or in Chancery and for the most part whereas the Law intended a division of the Bankrupts Estate to all his Creditors it 's either spent in Suits or upon mercenary Commissioners or concealed to the Bankrupts use The proceedings upon the Commission grounded upon the Statute of the 5 Eliz. 4. concerning Lands Tenements and Moneys given to Pious or Charitable Uses is a circular and expensive way chargeable in Execution expensive in drawing up the Inquisition and Decree and procuring a Writ of Execution of the same in the Petty Bagge and when all this is done upon Exceptions put into the Decree of the Commissioners the Execution thereof is stayed upon a Motion in Chancery and the Parties come then to begin the Suit again putting in Answer to the Exceptâ—ons as the Answer to a Bill And thereupon the Parties go again to Examination of Witnesses and a new Hearing in Chancery and either a Confirmation of the former Decree or a Reversal thereof however if the matter be under Three hundred pounds it 's commonly all spent in Suit either for or against the Charitable Uses This is a great Oppression and cannot be avoided whilest things stand as now they are The Statute in the 25 H. 8. 11. appointing a whole years Imprisonment for taking the Eggs of a Wilde-fowl is a hard and severe Law The Statute of Intailing the Crown of England in the Posterity of King Henry 8. may be a cause of great trouble 25 H. 8. Chap. 22. The Statute of 32 H. 8.2 limiting the Prescription of a Writ of Right Assize Cosenage Ayle c. to no less then threescore years and in a Writ of Entry sur Disseisin to fifty years this Statute doth more harm then good That a man's Hand should he struck off for striking in the Kings Palace and the party to have perpetual Imprisonment a severe Law 31 H. 8. 12. That none may Pardon Felony or Murther but the Kâ—ng and that he may pardon Murther is an Impious Law 27 H. 8. Chap. 24. That it should be Treason for a Popish Priest to be found remaining in England giving no offence nor making any disturbance in the Common-wealth is a hard Law 27 Eliz. 2. The Statute concerning Reformation of Disorders in Ministers a Superstitious Law 13 Eliz. 12. Divers Offices exposed to sale by an Act of the 5 and 6 Ed. 6.16 is a cause of Bribery and Extortion Intailed Lands forfeited for Treason seems to be an unjust Law as now things stand because sometimes such Intails were made for valuable considerations when Estates were all Fee-simple it might haply be more just that there should be such Forfeitures The Law concerning Wreck of the Sea which is that if a Ship be cast away and the Goods float to Land and neither Man Woman Dog nor Cat escape alive the Owner shall lose all the Goods This is a wicked and unjust Law The Statute of the 21 Edw. 1. If
High-Commission refused to take it saying he was not bounden to accuse himself but said he would swear and answer upon his Oath to what they should ask him so far as he was bounden by Law He was answered There was no more desired of him Thereupon the honest Gentleman although a Lawyer was deluded and cozened with this word Law which was equivocal either referring to the Common Law or to their Popish Tyrannical Canon or Ecclesiastical Law and taking his Oath had Questions demanded of him of things which intrenched upon his Estate and Liberty for which he might be fined and imprisoned if not his life To these he answered That he was not bounden by Law to answer to them being against himself according to that Rule of Right Reason above mentioned No man is bound to accuse himself This they declared Perjury and for that they fined him 300 l. What difference is there between these proceedings and the proceedings in Courts of Equity especially when Answers are made to Exceptions or when the party is examined upon Interrogatories against himself The best that can be made of it is That it is a profaning the holy Name of God and the abuse of an Oath as being here not (g) Heb. 6.16 the end but the beginning or rather occasion of strife and if this Oath were taken away men would be sure to have Witnesses present to all their Contracts and Agreements And it may be observed that there is no manner of credit given to the Defendants Answer for the Practisers in Chancery use to say It 's no matter if the Defendant swear the Crow is white if the Plaintiff can prove she is black And upon this ground all wise men proceed in reference to Suits in Courts of Equity not to prefer their Bill unless they can prove it or at least the material points thereof I have observed That in almost thirty years practice I never found one Defendant who wanted conscience to pay a just Debt where it could not be proved by Witnesses that would ever confess it in an Answer upon his Oath but rather use the help of some skilful man to draw his Answer so equivocal or cautelously that it might not prejudice his Cause This hath been and is a heavie temptation and provocation to Perjury and so a breach of the Law of God which causeth the Land to mourn and therefore ought to be abolished Object 7. And where it is alleadged That although in Criminal Causes which are popular men are rot bounden to accuse themselves (h) This is the abuse of an Oath as before is proved Heb. 6.16 and is a sin against the law of Nature no man being bounden to accuse himself yet for discovery of Fraud and Deceit in Cases Personal they are bounden by Law to declare the truth upon their Oaths in their Answers Answ It may be answered first That all Frauds and Deceipts are things criminal in foro Conscientiae and for which in most Cases a man may be indicted at Common Law and in some Cases by vertue of several Statutes as for fraudulent Conveyances and for some deceipts in Bargaining and for cozenage in selling of Wares and in many other Cases And if a man in any case were to be enforced to confess the truth against himself there is most reason it should be done in Criminal Causes most capital as when Treason Adultery Murder or some great Felony is committed and several men accused Were it not a fair pretence that every man to clear himself and to the end to finde out the Truth should be examined upon his Oath And yet this is not allowed in the Law nor ought to be done for the reason aforesaid unless the Defendant will (i) Exo. 22.11 voluntarily offer his Oath which may be admitted by the Law of God otherwise Joshua (k) Josh 7.19 22. would not have done it in the case of Achan although he exhorted him to confess the truth and give glory to God yet he did not enforce him to swear but searched his tent for the wedge of gold and the Babylonish garment neither did our Lord Jesus Christ urge the woman taken in adultery to accuse her self but asked where her accusers were Joh. 8.10 11. and when he saw that no witnesses accused her he said No more do I and bid her go her ways and sin no more Now in those Cases which are not criminal as about Trusts and Estates in Land in Extent and such-like which may usually be proved by Witnesses where men are forced to answer upon Oath these do many times intrench more upon mens Liberty and Estates in respect of consequence then an hundred trivial Frauds or Thefts and therefore this will not warrant their answering upon Oath All the Arguments which have been brought aâ—ainst the Oath Ex Officio if I mistake not make directly against this Oath And it is no more lawful then that Popish Oath with Compurgators which was used to be administred in the Spiritual or rather Bawdy Courts to purge men of Incontinencie or Fornication And this is all which I shall say in this place of these Courts of Equity CHAP. XI That the Theory of the Common Law and some of the Statutes now in force câ—ntain matters repugnant to the Law of God TRrial by (a) Plow Com. fol 366. B. 261 B. Assize 1 Ed. 3. f. 1. Coke l. 8. f. 46 l. 9. f. 31 Rast Entr. Ap. Mort. f. 50. B Droit f. 223. A. Cust Noâ—m tit Suit oâ— Murdre f. 70 71. Cow Instit Index Exposit lit P. Combate in an Appeal of Death or a Writ of Right when men by themselves or their Champions decide matters in controversie by the death one of another in a Duel This is a wicked Law taken from the Heathen Lombards and Saxons and directly against the Word of God Num. 35.16 17 18. Matth. 19.18 Cock Essay p. 178. Rotaris one of the Kings of the Lombards had taken away this Law protesting that it was inhumane and naught Lewis 9. King of France is commended for this Edict Nous defendons battailles par tout en nostre Domaine en toutes querelles i. e. We forbid Combats in all Quarrels thorowout all our Dominions 2. (b) Myr. Just. c. 3. â— 24 25. Dyer f. 301. n. 41 42. Westm 1. c. 40. Stamf. pl. Coro l. 3. c. 14 The Combatants and Champions Oaths in an Appeal of Death or other Felony or in a Writ of Right is likewise a profaning of the Name of God an abuse of an Oath which is a part of Gods Worship and a Bond of Iniquity Jer. 4.2 Act. 23.21 Heb. 6.16 3. (c) Cowel â—nst l. 4. T. 18. â— 17. p 324. Westm 1. c. 2. Stamf. pl. Coro l. 1. c. 9. Art Clâ—r 9 E. 2 c. 16. The Law concerning Man-slaugâ—ter at the Common Law when a man killeth another wilfully being done suddenly or in hot blood he shall not suffer death if he can
a learnâ—d man who reports this saith that no merchandize is more base than the Sale of Offices Bodm Republ. l. 5. c. 4. p. 592. and l. 6. c. 2. p. 661. In the mean while here is great extortion and oppression done to the people by the greatnesse of these Offices which is the cause that men are put into them more for their wealth than for their wit learning or honesty and the businesse is done accordingly to the wrong and prejudice of the whole Nation 11. The proving of Will and granting Administrations being now onely done at London is likewise an oppression and so is it an oppression that all causes Testamentary and such as concern Administrations and Legacies of how little concernment soever are heard there and nothing determined in the Countrey This is worse than the course taken in the Bishops time when all mens Wills who had not bona notabilia viz. five pounds in goods out of the Diocesse might be proved in the Countrey for lesse than half the Fees which are now paid and all matters of instance touching such mens Estates were heard and determined there although the proceedings where there was any opposition were exceeding tedious and the Appeals intolerable the course now held ought neverthelesse to be amended 12. The matter of passing accounts in the Exchequer is an exceeding burden and the cause of much bribery and extortion in the Countrey The Romans had great Care to bridle the coveteousnesse of Offiâ—ers and â—â—â—â—â—ers of the publique Revenue Tacit. Annal. l. 13. cap. 12. p. 196. the account of a Sheriffe of any ordinary County will cost one hundred Marks to passe the same and of some Counties one two or three hundred pounds there being so many Offices to passe through and some of the Officers taking excessive Fees forty shillings for an Attornies Fee and the Secondary as much this causeth the under Sheriffe to take two shillings a name and in some Counties more for his Warrant where there is but four pence due and all the pretence is the great charge of passing their accounts There is no use of any more Offices in the Echequer but the Receiver to take the money the Auditor to make up the accounts and to see that the Receiver neither cozen the Lord Protector nor the Countrey and the Controller to see that no deceit be done by the Auditor this I conceive to have been the ancient course when (m) Stowe Annal. life oâ— King Edwd 1. p. 209. anno 1304. the Exchequer was at York in the time of Edw. 1. and after it was removed to London and was in effect the same which was appointed by the (n) Ordinance 21 Septemb. 1643. Anno 1556. Out of the Province of Langueduke Bodin Republ. l. 6. cap. 2. p. 685. The same learned Author reports it an excellent remedie of inequalitie that all the Territories of a Common-wealth were surveyed as he saith the Roman Territories were that every mans Land and Possession might be known and certain that the Taxes and Imposts might be equall Bodin l. 6. c. 1. p. 641. Ex Cassiodoro England was so surveyed in the Time of the Norman Conquerour This appears thy Doomsday Book which contains the very originall survay Cowel Interp. verb. Doomsday Ordinance of Parliament Anno 1643. for receiving of the Revenue of the late King Queen and Prince and might be so appointed again if that the State did see cause and the same would ease the Common-wealth of much bribery extortion besides this the publick treasure must needs decrease passing through so many hands It was proved in France that a third part of all Receipts went to Officers it were well if ours were compared with it The cure of all these miseries is that which the Ancients sought much after (o) Hawk Right Dominion l. 2. cap 1. pag. 21. and Doct. and stud lib. 1. c. 2. an Equality I do not mean the equal division of all the Subjects Lands or Goods for that in a manner would destroy (p) Bodin Republ. lib. 5. c. 2. pag. 569. property ownership of the things of this life which would both cut off the endeavours of men to increase their Estates by labour industry and trade in Lawfull callings which the Law of God enjoyneth And also prompt men to idlenesse and bring confusion in the end But I mean the ballasting the trade and businesse of the Nation that it may be divided into all the parts of the Lands for the good of the whole which might easily be effected if the Law were setled in the several Counties And the Rivers in the Mediterranean parts made Navigable which might be done as I suppose with the expence of one moneths Tax of 100000. l. upon the whole Nation This would be the Nurse of Peace of love betwixt Subjects The contrary The Wise Learned have accounted that amongst all the causes of some Seditions changes of Common-wealths there is none greater than the excessive vvealth of few Subjects and the extream poverty of the greatest part who readily use to imbrace any occasion to spoil the rich (q) Tit. Liv. l. 32. p. 832. L. M. p. 833. A. But it was an unjust and foolish Law published by Nabis the Macedonian Tyrant when Philip King of Macedon had trusted him with the Citie of Argos that after he had plundered and abused the Citizens he commanded all Debt Books and Bonds to be Cancelled And the Lands to be divided amongst the people by the poll Two fire-brands saith the Historian enough to set all the Nobles and Commons on fire And so to destroy one another CHAP. XIV That the body of the Law is wanting and defective there being neither Common-Law nor Statute-â—aw for remedy in many cases nor any punishment considerable for sundry great offences The Jewes governed by Felix by punishments being exasperated fell into Rebellion and wars Tacit. Annal. l. 11 c. 11. p. 17 a. THe first thing which shall here be insisted upon as being an universal sinfull defect and the cause of much persecution of the one side and impiety and prophanenesse of the other side is That it is not declared by the State nor any known Law how far the Civil Magistrate is Custos utriusque tabulae my meaning is that it 's not set down or determined that it may be known to the people (a) Weemse Expâ— M. L. Ex. â— 1. p. 8. how far the Civil power hath to do in matters appertaining to Religion and what those iniquities are which as (b) Jâ—b 31.11.28 Job saith are to be punished by the Judges and then wherein the consciences of men are free and not to be trampled upon by the Temporal power (c) Gâ—otius Pol. Max. par 1. cap. 2. pag. 12. and Carol. in fine Strifes about Religion are there most pernitious and destructive where provision it not made for dissentors (d) Princes must carefully distinguish their jurisdiction from that
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