have any hard and unreasonable branches of Law it is just to take them away to lop them off the body of the Common-wealth will thrive the better and if that flourish certainly Lawyers must thrive too and be in as great reputation as ever For no living without Law and no better or more just Law in the generall in the World than the Municipal Law of England he approves the use that labours to take away the abuse Nor am I single or alone in this indeavour of mine some have gone before me and I doubt not others will follow in a work of so great consequence and tending so much to the common good But not to hold you too long in an Epistle where the work is but short if any notwithstanding what I have said shall be offended with me it shall not much trouble me for I am resolved to be a friend to the common good while those men seek their own good onely I shall say no more but this Amicus Plato Amicus Socrates sed magis amica Respublica onely I shall subscribe my self The faithfull friend and Servant of the Common-wealth of England J. MARCH A TABLE of the several QUESTIONS 1. WHether it be reasonable that he who is seized of Lands in Fee-simple to him and his Heirs by descent or gift should have the absolute disposing power of the whole and to disinherit his Heirs Pag. 2. 2. Tenant in tail with remainders over suffers a common Recoverie whether this in Law or Conscience ought to bind the Issue in tail and the remainders over pag. 7. 3. Whether it be consonant to Reason Conscience or for the good of the Common-wealth to Arrest mens Persons and to detain them in Prison for Debt pag. 35. 4. Whether the High Court of Chancerie as the practice is there be not a very great Grievance and Burthen to the Common-wealth pag. 55. 5. Whether Collateral Warrantie stands with Reason and Conscience or no pag. 68. 6. Whether it be consonant to Reason or Conscience that any mans Plea should be adjudged nought and avoided at any time for any matter of Form false Latine double Plea Departure or any other defect whatsoever the case and matter it self sufficiently appearing upon the Record for which the Action is brought pag. 74. 7. Whether the many sorts of Tedious and long Conveyances now in use stand with Reason and the good of the Common-wealth or not pag. 85. 8. Whether it be a Just and Reasonable Law that a Child born before Marriage and shortly after Marriage happening should be a Bastard or not pag. 92. 9. Whether Tryal by Jurie as it is now in use be agreeable to reason and for the good of the Publick or not pag. 99. 10. Whether it be consonant to the Word of God or Reason that a man should lose his Life for Theft and should incur so great a forfeiture and penaltie as loss of all his Estate and corruption of his Bloud pag. 105. 11. Whether it be a Just and Reasonable Law that Infants under the age of twentie one Years shall not be charged with their Debts pag. 112. 12. Whether Clergie be agreeable to Reason and Justice or no pag. 117. 13. Whether the Law that a Man shall not suffe Death for Man-slaughter be not against the Word of God pag. 122. 14. Whether it be a reasonable Law that a man shall not have Counsel upon an Indictment of Treason or Felonie pag. 126. 15. Whether actions for Slanderous Words being meer Contentious suits ought in Reason or Conscience to be so much countenanced as they are pag. 129. 16. Whether it be a Reasonable Law that Actions personal should die with the Person pag. 134. 17. Whether the Law of Judgement of Penance or Pain fort dure against a Man who is indicted of Felonie and stands Mute be agreeable to Reason and Conscience or not pag. 137. 18. Whether the Law of Forfeiture of Goods VVrecked at Sea be a Reasonable Law or not pag. 150. 19. Good advise in case of making last VVills and Testaments pag. 155. Amicus Rei-publicae The Common-Wealths FRIEND THe First thing that I have purposed to discisse or treat of is touching him that is seized of Lands in Fee-simple and his disposing thereof and therein I shall onely propound this short Question that is Whether it be reasonable that he who is seized of Lands in Fee-simple to him and his Heirs by descent or gift should have the absolute disposing power of the whole and to disinherit his Heirs I Do acknowledge the Law to be that he may dispose of the whole at his pleasure and that a condition annexed to restrain him from it is nought For it is against the absolute purity of a Fee-simple that he should not have power to alien it Litt. Sect. 360. for if such condition should be good saith Litt. then it ousts him of all the power which the Law gave him which should be against reason and therefore the condition is void But if the condition were such that the Feoffee shall not alien to such a one naming his name or to any of his Heirs or of the issues of such a one c. or the like which conditions do not take away all the powr of alienation such condition is good Another reason that such condition is nought is because that he who hath departed with all his Estate to another and hath no hopes of reverter may not in reason annex such a condition to restrain the Feoffee or alienee from such alienation This I allow to be the Law yet I beseech you give but leave to examine these things according to right reason and judge according to that which may make most for the good of the Common-wealth and then I conceive it will be thought very hard that any man should have an absolute disposing power of the whole and disinherit his Heirs I intend this onely of a Fee-simple descended from an Ancestor to another or of a gift to a man and his Heirs for in case where a man through his own labour and industry hath purchased such an inheritance it seems more reasonable for him to have the absolute disposal of it as he shall think fit for I know no reason but that he who bought may sell but where Land descended to me or was given to me and my Heirs in such case for me to rob my Heir of all that I never laboured for and to give it to a stranger seems to me unreasonable I say that he should have an absolute disposing power of the whole seems unreasonable but that he should have power to dispose 2 parts seems to stand with reason so he leave the third part to descend for otherwise he shall be utterly unable to make a joyncture for his wife to advance his children in marriage or to pay his debts all which a man is bound in conscience to do therefore it were very unreasonable that he should be so fettered and bound in
making of this Stat. is apparent Estates now by force of that Stat. called intails were at the common Law Fee-simple conditional So that a man having such an Estate before this Stat. had power after issue had to alien and by that to barre the issue and likewise him in reversion and this is said by the Stat. expresly to be contrarie to the minds of the givers and contrary to the form expressed in the gift and this was the great mischief at the common Law Then comes this Stat. and provides against the said mischief that the Will of the donor shall be observed and that such donees in tail shall have no power to alien to barre their issues or him in reversion Now certainly the best way of Argument is upon the Law it self and that is pregnant and plain that the donee after this Stat. had no power to alien to barre his issue or him in reversion Now I beseech you to what end was this Stat. if notwithstanding a donee in tail might by a Recovery barre his issue and him in reversion certainly had any such thing been known then as a Recovery it would have been provided against as well as a fine or otherwise a man might well question the wisdom of the makers of the Law notwithstanding they have received so great an applause by our Sages of the Law The Law hates vain and unprofitable things and had Recoveries been known then and not provided against certainly no Law could be more vain and unprofitable But now to come to Marie Portingtons case in Cooks tenth Book where this case is largely debated there you shall find the Original of these common Recoveries There by those that argued against them 't is said that 't was not invented till 12. E. 4. Taltarum's case that such Recoveries should bind the Estate tail upon a pretence of a fained recompence To which it was said by the Court upon judgement given that judgement given against Tenant in tail with voucher and recompence in value shall bind the Estate tail notwithstanding the said Act of 13. E. 1. be the Recovery upon good Title or not and that the judgement given in such case for the Tenant in tail to have in value binds the Estate tail though that no recompence be had And this they say was Law in E. 3. time for which they cite these Books but here observe by the way that those Recoveries were not invented before that time as themselves do agree and of what validity such new invention can be against a Stat. expresly against any alienation in such case let any rational man judge but for the cases they have cited 15. E. 3. Tit. brief 324. by Recovery in value by Tenant in tail the Estate tail is barred and he shall have a Formdon of the Land so recovered in value with which agrees 42. E. 3. 53. and 44. E. 3. 21 22. Octavian Lumbards case Tenant in tail grants a rent charge to one who hath right to the Land in tail for a release it shall bind the issue 48. E. 3. 11. b. Jeffrey Benchers case recovery in value by Tenant in tail shall bind the tail and a Formdon lies of the Land recovered in value with which agrees 1. E. 4. fol. 5. 5. E. 4. 2. 6. For these Books thus cited that such recovery shall bind the issue in tail they are to be understood of a recovery upon good Title and of a real not a fained recompence for they all agree that a Form-don will lie of the Land recovered in value So that it cannot be intended of a fained and pretensed recompence I would fain know of any man whether ever he heard of any Action brought upon such recovery in value as recoveries are now used are they not become the common course and common way of conveyance for to barre Estates in tail and to cut off all remainders without any possibility or expectance of recompence in value and do not the Judges say before that it shall bind be it upon good Title or not and though that no recompence be had so that a pretensed recompence by them must carry away a clear Title and defeat the Stat. and the intention of the donor So that I do conceive notwithstanding those Books that such recoveries should bind the Estate tail upon a pretence of a fained recompence was not till 12. E. 4. Taltarums case And the case of Octavian Lumbard before cited agrees with this difference between a real and a fained recompence for I do agree that a recovery upon good Title and a real recompence will barre the Estate tail The case of Lumbard that a grant of a Rent by Tenant in tail to one that claims a right to the Land intailed shall barre the issue is without question good Law for this is to preserve the Estate tail and this is no fained but a real recompence not so in our case Besides suppose those Books should be intended as I conceive they cannot of a fained recompēce can any man say that any use or custom is good against a Stat. had such fained recoveries been in use at the time of the making of the Stat. of 13. E. 1. which no man doth or can say somewhat more might have been said for them but being invented after it cannot be with reason that they should be of force to frustrate yea and nul upon the matter the Stat. made before and certainly as I have said before the makers of that Law would have provided against this mischief as well as Fines had such recoveries been then in being for otherwise vain and fruitless was that Law as indeed it is at this day Again by those that argued against common recoveries in Marie Portingtons case it is said that such recoveries are by divers Acts of Parliament marked and branded with the blemish of fiction and falsity as in the Stat. of 34. H. 8. cap. 20. they are stiled fained and untrue recoveries and so in the Stat. of 11. H. 7. cap. 20. 32. H. 8. cap. 31. and 14. El. cap. 8. they are named covenous and had by collusion and therefore it stands with Law and reason to provide for the preservation of reversions and remainders against such fained and false and covenous recoveries To this objection and these Stat. this answer is given and first it is said that common recoveries is one of the main pillars which supports the Estates and inheritances in the State That is Reader they must unjustly because contrarie to the Stat. and the Form of the gift take away one mans inheritance and establish or settle it in another and this is called one of the main pillars of inheritances But to the Statutes for that of 34. H. 8. it is of gifts in tail by the King to his Servants and Subjects for to incourage others and their issues and therefore recoveries suffered by such Tenants in tail are well taxed by Parliament to be fained and untrue because they
did take away the intention of the King To which I answer that they are so termed by that Stat. not in relation onely to the defeating of the Kings intention but because they are so in themselves fained and untrue Besides are they so termed because the intention of the King was thereby defeated why where there is the same reason there ought to be the same Law and in this case is not the apparent intention of the donor in his gift defeated by such recovery contrary to the Stat. which saith that the will of the donor shall be observed But it is further said in that case that confirmat usum qui tollit abusum and that it was a barre in that case before that Act of 34. H. 8. made to the contrarie certainly if it were an abuse in the Kings case it is no other in a common persons and it were very happy if an Act were likewise made against them in our case that we might not have them known for the future For the Stat. of 11. H. 7. when a Woman advanced by the Husband with a competent joyncture in tail suffers a recovery to barre the issues this may well be said to be by covin. Now I beseech you weigh the cases in the ballance of reason and then judge whether they differ or no Is it not as much covenous for any Tenant in tail who takes such Estate to him and his issues to disherit his issues by such recovery contrarie to the said Stat. For the Stat. of 32. H. 8. and 34. El. of a common recovery against Tenant for life it may well be termed covenous and by collusion To this I shall say no more but this that certainly in our case there is as much of injustice covin and collusion by suffering such common recoveries as in any of the former Further it was said by those that argued against these recoveries That that opinion that a common recovery could not be restrained by condition or limitation was new and of late invention and never heard before Sir Anthony Mildmayes case 6. Rep. fol. 40. for it was admitted to be restrained in the case of the Earl of Arundell 17. El. Dyer fol. 342. 343. and in the argument of Scholasticas case 12. E. Com. 403. the said point of restraint of a common recovery was never moved here observe Reader another new invention that these recoveries cannot be restrained by any condition or limitation so that there must be such a power given to support these recoveries though against the Letter of the Stat. and the Will of the donor that no humane invention can prevent As to the Earl of Arundels case it is said that nothing is spoken to it by those who argued the case and so no Authority To this I say that certainly had the Law been conceived to be such that such recovery could not be restrained by condition it would have been then urged which rather concludes on this part As to Scholasticas case all that my Lord Cook sayeth is this he much respects the reporter and attributes due honour and reverence to the Judges but amicus Plato amicus Socrates sed magis amica veritas Though that it was not then thought on by the learned men of that time yet my Lord Cook will have it to be Law and prefers his opinion which he calls truth which truth so called appears to be onely a new invention before the contrarie supposed Law of that time And it is further said in Portingtons case that none ought to be heard to dispute against the legal pillars of common assurances of Lands and inheritances of the Subjects And it is likewise said that at a Parliament holden in the raign of Q. E. in Vernon and Herberts case debated before the Lords of Parliament Hoord Counsel with Vernon invaied against these recoveries who was then reproved by Dyer Ch. Just of the common pleas who said that he was not worthy to be of the profession of the Law who durst speak against common recoveries which were the sinewes of the assurances of inheritances and founded upon great reason and Authority sed non omnis capit hoc verbum By this you may easily judge what most supported this assurance for if Lawyers must be silenced it is no wonder if common recoveries pass for Law I know I shall not pass uncensured as I have said before Hoords case will be mine with advantage but it shall not at all disturb my rest for having truth of my side I care not who is against me and certainly that Councellor that is a Councellor of the Law deserves the sharpest reproof and since non omnis capit hoc verbum as is said before let me not be rebuked without reason and if any one can convince me in that I shall with all humility submit to his judgement Lastly it is said that D. 8. lib. 1. cap. 26. approves common recoveries to bind as well in conscience as in Law For my part I conceive that the better opinion there is against them and so I believe any man will judge that shall read the Chapter I shall faithfully recite the disputes and leave it to judgement and therein first the manner and practise of suffering such recoveries The Demandant shall suppose in his Writ and Declaration that the Tenant in tail hath no Entry but by such a stranger where neither the Demandant nor the said stranger never had possession of the Land whereupon the Tenant in tail shall appear and by assent of the parties shall vouch the common Vouchee whom he knoweth to have nothing to yield in value now Reader judge whether this be not a meer fiction of a recompence in value and the Vouchee shall appear and the Demandant shall declare against him whereupon he shall take day to imparle in the same Term and at the day by the assent of the parties he shall make default upon which because it is a default in despite of the Court the Demandant shall have judgement to recover against the Tenant in tail he over in value against the Vouchee And this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence for by presumption the Vouchee may purchase Lands Thus you have the practise of a common recovery which is nothing else but an invention to cut off intails which hath been the ruin of many a family But it is reasoned that although such recoveries in respect of the multitude of them be spared that they stand not with conscience fo◠by the Stat. of 13. E. 1. when the Ancestor is dead intailed Lands o◠right belong to the Heir for that he is Heir according to the gift If the◠thou be commanded not to covet 〈◊〉 Fortiori that thou do not withhold thy neighbours house c. And although it may be objected that tha◠which is ordained by the Law may be adnulled by the Law there is not here like Authority
for the one as for the other for the tail is created by Authority of Parliament the most High Court in the Realm and the disanulling thereof is by a covenous recovery upon false supposals here you have trueth clothed in plain Language Then as to another objection viz. Communis error facit jus that is to be understood that a custom used against the Law of Man in some Countrey shall be taken for a Law if the inhabitants be suffered so to continue it but these recoveries although they have been long used have alwayes been spoken against Reader observe that who ever thou art and then I am sure I cannot justly be blamed nor need I care to write against that which hath been always spoken against Also this custom could have no Lawfull beginning and an evil custom is to be abolished Also a prescription against a Stat. is void And it is also moved that in as much as there is no executed recompence that the Law hath been taken that the Heir in tail is not barred of his Formdon and although the Vouchee may purchase after the issue hath recontinued his own Land that herein is no inconvenience for that the issue shall be barred of the recompence in value in that he hath recontinued his own land again and so shall not have both I dare not go so far as to allow a Formdon for the issue in such case though enough hath been said to make that good too by reason of the many inconveniences that must of necessity fall thereupon but it were happy as I have said before if such covenous and fained recoveries were taken away by Act of Parliament But it may be objected that you would have Tenant in Fee-simple to have power to dispose two parts for the reasons and intents aforesaid and why may not Tenant in tail have the same power To which I give this short answer that it is agreeable with the nature of a Fee-simple to be alienable not so in case of an Estate tail for that is contrarie to the Form of the gift as the Stat. is expresly and there is no power given by that Stat. to the Donee in tail to dispose of the Estate in any case whatsoever and therefore he may not for the advancement of his relations or satisfaction of his debts defeat his issue or in default of issue those in the remainder by alienation contrarie to the Form of the gift and the intention of the donor And now I shall conclude this dispute with a rule or two in Law and first the Stat. said that the Will of the donor must be observed in his gift which stands with the reason and rule of the Law for Cujus est dare ejus est disponere a man must take the gift with those qualifications conditions or limitations that the donor is pleased to annex to it and cannot alter it if so what becomes of common recoveries or how in Law or reason can the donee in tail disherit his issues Note much less strangers in remainder as if land be given to A. in tail the remainder to B. in tail c. if A. suffers a recovery this not onely binds his issue but him in remainder likewise which is extream hard and unreasonable that the Law contrary to the rules of Law it self should allow a stranger to do an Act to my prejudice for the rule is that Res inter alios actae alteri nocere non debent other mens actions ought not to prejudiee a third person how then can that stand with this rule of Law that Tenant in tail should have powr to barre him in remainder by a recovery Another rule is Quod nostrum est sine facto vel defectu nostro amitti seu ad alium transferri non potest we cannot lose what is ours nor can it be given from us without our own Act or default how then can it stand with this rule that he in remainder should be barred by such recoverie as aforesaid I shall say no more but wait the Parliaments leasure and I doubt not but this will in due time be altered The next thing I am to treate of is concerning the imprisonment of mens persons for debt and in that I shall propose this short question Whether it be consonant to reason conscience or for the good of the Common-wealth to Arrest mens Persons and to detain them in Prison for Debt I Know this is a case in which many men have vented their judgements in publick and it hath not been without a solemn debate too in the Parliament so that there is the less for me to do and therefore I shall be but short in it What reasons induced the Parliament to continue this Law I know not nor is it for me to examine however I beseech you let it not be taken amiss that I offer my reasons in it and leave them to better judgements In the first place I shall examine what the old Law was and when and how this Law of imprisonment of persons for debt crept in for it hath not been always used in England and I may say in few other places of the World and where it is in use there is care taken that they do not perish in prisō for want of necessary sustenance but they and their families to be maintained out of their own Estates and if they have none the perverse and cruel Creditor is to maintain them out of his proper Estate and not to suffer them to perish for want of food as they do commonly in England The body of the Defendant was not lyable to execution for debt at Common Law for which see 13. H. 4. 1. But his Goods Chattels and Corn c. by Fieri facias or Levari facias within the year and by the Stat. of W. 2. by Scire facias after the year and by W. 2. cap. 18. an Elegit was given of the moyety of the Land which was the first Act which subjected Land to the execution of a judgement But the Common Law which is the preserver of the Common Peace of the Land abhorres all force as the capital Enemy to it and therefore against those who committed any force the Common Law subjected their bodies to imprisonment which is the highest execution by which they lose their Liberty till they had made an agreement with the party and Fine to the King And therefore it is a rule in Law that in all actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there the King shall have a Capias pro fine Then by the Stat. of Marlebridge 23. and W. 2. cap. 11. Capias was given in an account for at common Law the process in an account was distress infinite and after by the Stat. of 25. E. 3. cap. 7. the like proces was given in debt as in account for before this Stat. the body of
his Estate that he were not able to perform them I am not ignorant that when I give Lands to a man his Heirs the Law saith that the word Heirs is by way of limitation not of purchase yet when an Estate so descends or is given as aforesaid the Heir by the intention of the Ancestor and the donor ought to have an Estate in point of interest as also in conscience after the death of his Father For if a man should demand of such a one who intends to leave his Lands to descend to an Heir or of the donor whether he intended that his Heir or the donor should sell or give away the Estate so descended or come through their goodness care and providence to a stranger I know their answer would be that they intended not a disinherison of the Heir but that the Estate should descend go to their Heirs with the same freedom it descended or came to them but I would not be-mistaken for I intend onely a third part to descend for the reason aforesaid But now let us examine the reason of the Law afore-said and where the inconvenience lies The reason is that 't is against the purity and absoluteness of a Fee-simple not to have such disposing power where lies the inconvenience that it is against a Maxim of Law nothing of prejudice either to the publick or to any private or particular person And then examine the reason of the other side why such a Tenant in Fee-simple should have power onely to dispose of two parts and leave the third to descend to his Heir because it would agree with the intention of the Ancestor and likewise prevent the beggering of the Heir a thing too common with profuse and prodigal Ancestors in these daies So that I conceive it is evident to you that the inconvenience lies on this side and whether it is better to continue a Maxim without reason or to alter it upon good grounds I leave to the consideration of our Sages and of this onely thus much the next thing I have to treat of is common Recoveries concerning which I shall propound this short case and question Tenant in tail with remainders over suffers a common Recovery whether this in Law or conscience ought to bind the issue in tail and theremainders over IT is true that through custom and long continuance this is now become the common assurance of the Land and I am not ignorant that this point received a full resolution by the other Judges in Marie Portingtons case in my Lord Cooks tenth Book that such Recovery was good and binding not onely to the issue in tail but those in remainder likewise Yet I hope a man may now with freedom dispute it since all conscionable honest men that ever I met with oppose it and I dare say that policy and private interest first made this conveyance Lawfull or at least to seem so And being that in the discourse of this case it will be necessarie to know what the Law was before the Stat. of 13. E. 1. of intails and the mischief of that Law which caused the making of that Stat. for a remedy it will not be amiss if I cite the Stat. wherein we shall find both the one and the other the mischief and the remedy and then it will be easie to judge whether the mischief against which the Act of 13. E. 1. was provided doth not still continue by common Recoveries notwithstanding the remedy But before I cite the Stat. I cannot but put you in mind that it hath been desired and proposed by some in Print who either never read the said Stat. or did not well understand it that the said Stat. might be taken away the mischief at the common Law revived and the remedy suppressed All that I shall say to such is that that Law if we will believe our Judges and Sages of the Law was made by very Sage and wise men therefore we ought to judge it to be made upon very good grounds and reasons and so not to be repealed without better reason but I need say no more for I doubt not you will find upon the reading of it that it was made upon solid and profound reason and so not to be altered upon any Clarks or Attornies motion 13. E. 1. Cap. 1. In gifts in tail the donors Will shall be observed FIrst concerning Lands that many times are given upon condition that is to wit where any giveth his Land to any Man and his Wife and to the Heirs begotten of the bodies of the same Man and his Wife with such condition expressed that if the same Man and his wife die without Heirs of their bodies between them begotten the Land so given should revert to the giver or his Heir In case also where one giveth Lands in free marriage which gift hath a condition annexed though it be not expressed in the deed of gift which is this That if the Husband and Wife die without Heir of their bodies begotten the Land so given shall revert to the giver or his Heir In case also where one giveth Land to another and the Heirs of his body issuing it seemed very hard and yet seemeth to the givers and their Heirs that their Will being expressed in the gift was not heretofore nor yet is observed In all the cases aforesaid after issue begotten and born between them to whom the Lands were given under such condition heretofore such Feoffees had power to alien the Land so given and to disherit their issue of the Land contrary to the minds of the givers and contrary to the form expressed in the gift And further when the issue of such Feoffee is failing the Land so given ought to return to the giver or his Heir by force of the gift expressed in the deed though the issue if any were had died yet by the deed and Feoffement of them to whom Land was so given upon condition the donors have heretofore been barred of their reversion which was directly repugnant to the form of the gift Wherefore our Lord the King perceiving how necessary and expedient it should be to provide remedy in the foresaid cases hath ordained That the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed So that they to whom the land was given under such condition shall have no power to alien the land so given but that it shall remain unto the issue of them to whom it was given after their death or shall revert unto the giver or his Heirs if issue fail whereas there is no issue at all or if any issue be and fail by death or Heir of the body of such issue failing c. And if a Fine be levied hereafter upon such Lands it shall be void in the Law and no claim needs c. Here I have faithfully cited you the Stat. word for word and what the common Law was before the