out of use and ought to be Repealed The Act for Reforming of Disorders in Ministers a superstitious Law 13 Eliz. 12. The Statute of the 5 Eliz. 23. whereupon the Writ De Excommunicato Capiendo is grounded is an impious wicked Law as the Excommunication it self is a horrible Prophanation of the Ordinance of Christ in his Church The Statutes of 35 Eliz. 1 2. appointing grievous punishments for not coming to hear Divine-Service as it is called and for Meeting in Private-houses for to Pray or Worship God This is a wicked Law and was an occasion of great Persecution for many years Those Laws which create Apocryphal Saints as Thomas Becket called Thomas the Martyr 2 H. 5. 4. The Statute of 25 H. 6. Chap. 5. equalling superstitious and Idolatrous dayes with the Lords-day Holy-Rood-day called Corpus Christi Assumption of Mary Good-Friday All-Saints put all together with the Lords-day called there Sunday These are profane Laws The Sâ—atutes of 21 H. 8. 6. and 26 H. 8. 15. appointing the payment of Mortuaries which are pretended to be given to God for the purging of the Souls guilt of the deceased which he contracted by non-payment of Tythes Thi is a superstitious Law and a derogation from the All-sufficient Merits of Christs sufferings The Statute of the 3 Hen. 5. 4. contains in it Prayer for the Dead a thing unlawful and superstitious There are divers Laws made against the Followers of John Wickliff called Lollards who in the Statutes are said to be Hereticks who intended to subvert the Christian Faith The Law of God The Church and the Realm 2 H. 5. 7. and 5 Rich. 2. 5. 2 H. 4. 15. 25 H. 8. 14. These were the most sincere Professors of the Gospel A Law was made 1 Edw. 6. 12. to Repeal the Laws against the Lollards yet long after that the High-Sheriffs were yearly sworn to extirpate these Hereticks as they were called and that clause was continued in the Sheriffs Oath until the late Wars Sir Edward Coke calls them Hereticks we may see what Times have been and how the bent of the Lawes have been to root out the Gospel and to Establish Popery The Statute of the 4 H. 4. 18. That an Attorney playing the Knave shall forswear the Court This is an abuse of an Oath and profaning the Name of God These Laws are all of the same kinde with those before-mentioned in the 5th Chapter where the Statute of Marlbridge and other old Statutes made in affirmance of the Common Law are recited and are Repugnant to those Laws of God contained in the Holy Scripture which are there expressed as further appeareth in this Treatise where most of these Laws are more particularly handled CHAP. VIII That the Common Law hath been altered and changed since Edw. 4. his time when Littleton wrote in an hundred particulars most of them of great Importance BY the Statutes made since Littleton wrote 37 H. 8. c. 9. 13 El c. 8. Coke Rep. l. 5. fo 7. Assurances of Lands and all Statutes and Obligations made upon Usurious Contracts against those Laws are avoidable and the Law therein altered since Littleton wrote 2. By a Statute concerning the inrollment of Deeds 27 H. 8. c. 16. Coke Rep. l. 2. fo 36. l. 4. fo 70. l. 5. fo 1. l. 7. fo 41. l. 8. fo 93. the Purchaser hath many Priviledges which he had not at the Common Law in force before that Statute as the Estate in Lease or a Reversion passeth without Attornment and the Purchaser may distrain for Rent And if it be the Inheritance of the Wife the Husband having Issue by her shall be Tenant by Courtesie and an Estate passeth without Livery 3. There were several Statutes made since Littleton wrote 32 H. 8. c. 2. 34 H. 8. c. 5. 27 H. 8. c. 10. enabling men to devise their Fee-simple-Lands by Will in writing which regularly a man could not do by the Common Law unless by Custom which was but in some Boroughs and some few other places If the Lands were holden in Knights Service the Owner might devise two third parts if in Soccage he might devise all And since of later times the Tenures in Knight-Service and Capite are abolished 4. At the Common Law 13 Ed. 3. det 135 139. an Heir might have had an Action of Debt upon an Obligation made payable to his Ancestors and his Heirs But the Law is now altered and onely Executors and Administrators can recover upon such an Obligation This is plain by the Probate of every Will and is so in daily practice for all the Goods and Chattels are Assets and shall pay Debts to the Creditors their Executors or Administrators Coke Com. Littl. Dower l. 1. c. 5. sect 53. 55. 5. At the Common Law a Woman should have lost her Dower by the Felony of her Husband that Dower which was Ex assensu patris ad ostium Ecclesiae and her Dower by Custome But now it 's otherwise by several Statutes and these two former sorts of Dower are now out of use 27 H. 8. c. 9. Coke Rep. l. 5. fo 27. 6. By the Statute of 27 H. 8. Chap. 9. A Joynture before Marriage made to a woman is a Bar to a Writ of Dower to be brought by the woman for the Third part of the Lands whereof her Husband was seised during the Coverture which was otherwise at the Common Law when Littleton wrote Westm 2. c. 1. 7. By the Statute of Westm 2. Chap. 1. If a man seised of Land in general Tail had taken a wife and afterwards been attainted of Felony 1 Ed. 6. c. Coke Com. Littleton l. 1. c. 5. sect 53. before the Statute of the 1 Edw. 6. the Issue should have inherited although the wife should not have been endowed But now she shall be endowed and yet the Issue in such case shall not inherit the Lands which the Father had in Fee-simple 32 H. 8. c. 28. 13 El. c. 10. 18 El. c. 20. Coke Rep. l. 6. fo 37. l. 11. fo 67. 8. By vertue of several Statutes made since Littleton wrote Bishops Deans and Chapters Halls and Colledges Parsons Vicars and Governours of Hospitals are disabled to make long Leases or Conveyances of their Lands belonging to them in right of their Corporations And they may avoid such Leases as they shall make of such Lands contrary to those Statutes which they could not do when Littleton wrote and the Law iâ— altered in those Points by the said Statutes and they are now restrained 13 El. c. 20. 3 Jac. c. 4. 32 H. 8. c. 28. 9. Also by vertue of the same and some other Statutes Ecclesiastical persons may make Leases of their Beneâ—â—ces so they be not non-resident or absent fourscore dayes and Tenant in Fee-simple in Right of his Church Tenant in Tail and a man and his wife seised in Fee or fee-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-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
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
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
Tyranny of Antichrist stir up men whom we may well say were sent of God to preach the Gospel although they were not ordained by any Presbytery unlesse it were by the Presbytery or priest-hood of the Church of Rome which upon their conversion they utterly renounced and I doubt not to say but that those who are apt to teach and able to divide the word of truth aright and are willing for conscience sake and the glorie of God in the conversion of Souls to spend themselves in teaching the word of God to the world may have a sufficient call and Warrant thereunto from God without the laying on of the hands of any Presbytery which ceremony I take to have been annexed to miraculous and extraordinary gifts of the Holy Ghost bestowed on men in the first setting out of the Gospel and not to be used where such extraordinary gifts of tongues Prophesie and miracles are ceased no more than that ceremony of anointing the sick with Oyl being also used in those dayes and accompanying the gift of healing they are now used with us (r) Calvin Institut l. 4. cap. 19. pag. 72â— 724. as they have been and are used in the Church of Rome the one called the Sacrament of Orders and th' other of extream Unction and both these ceremonies of imposition of hands and anointing were used likewise by the Papists in their Sacrament of confirmation and I doubt not but all of them are promoted by the Jesuits and Romish Priests at this day amongst us It cannot be shewed that either Petrus Valdus or his followers called Waldenses and Albigenses of whom there (Å¿) Regenvolsc Hist Eccl. Slavon l. 1. cap 3. p. 12. 30 31 32. Sympson Chuâ—ch Hist lib. 2. cent 12. p. 429 430. pag. 321. Whites way true Church sect 44. numb 1. Ex Ramerio in Biblioth Patr. Tom. 4. Par. 2. 1 Corint 9.7 9.11 12.14 Gall. 6.6 Luke 10.7 were fourty Churches Anno 1254. received these ceremonies where it also appears that the brethren for so the Church Members were called did send out many of the Members to preach the Gospel in other places in Greece and Thracia c. and they were incouraged by the Kings Letters Patents pag. 35. 36. Now for the maintenance of the Ministers of the Gospel according to their several functions or rather difference of imployments generally they are to have t liberal maintenance according to that of the Apostle God hath ordained that he that preacheth the Gospel should live of the Gospel The first sort that is those that preach to the world are to be maintained by the world and because the wicked world having weak eyes think nothing a greater torment than the light the Civil Magistrate is to see to the maintenance of these Ministers and may lawfully raise it upon the world although against their wills as the Magistrate doth provide for such mad men and Idiots as cannot guide their own Estates and dispose thereof for their necessary use and benefit (a) Tim. 5.17 18. Math. 10.9 10. And for th' other sort of Ministers they ought to be provided for by the Churches according to their abilities and none of these to be maintained by Tythes for the reasons herein before alledged Now although I affirm that the work to appoint Pastors and Teachers lieth chiefly in the power of the temporal Magistrates yet I conceive it necessary that godly learned men be consulted with who may satisfie the Magistrate touching the learning and ability of such who are to preach the Gospel as is used in some reformed Churches where Tythes are abolished But that which will be said against this kinde of maintenance of Ministers not by Tythes is that which is usually objected viz. That no way can be found out so certain equal and indifferent for maintenance of the Ministry as by Tythes which are setled by so many Laws For answer hereunto I will not at large handlâ— that controversie which requires a volume larger than what this Treatise can permit having writ something elsewhere touching the same I shall onely propound a clear remedy for cure of the many junglings and wranglings which are daily between the Ministers and people about payment of Tythes which both hinder the study of the one and discourage the labour of the other and continually disquiet them both hindring the preaching of the word of God and obstructing the good effect thereof The remedy I humbly propound is this Provision for Ministers of the Gospel without Payment of Tythes Let there be a survey of all spiritual promotions as they are called such as that in Edw. 2. his time and then let all gleab Lands Tythes Oblations Obventions and other profits claimed and by Law belonging to the Parsonages Donatives Vicars be sold to the owners of the Land and estates out of which they arise or to others if they refuse to buy the same at sixteen years and two thirds of one years purchase and that will raise just so much money being disposed of at six in the hundred as is now due or payable to the Persons and Vicars For example that Parsonage which is found to be threescore pound by the year Communibus annis shall at this rate be sold for 1000. l. which yields threescore pounds by the year and if this rate be a little too dear for the tythes the Gleab-lands will make amends which for the most part are the best Lands in every Town and without doubt the Owners of the Lands charged with Tythes were better to give twenty years purchase for the Tythes than to pay them constantly being an exceeding curb and oppression both to the Tenant and Owner of the Land and this is the remedie I propound And if the same were done then might the money raised thereby be allowed to such as are able faithfull and willing to preach the Gospell and then such as are ignorant insufficient scandalous and prophane may be kept out of this service for that although the (x) Luke 4.34 Devil and wicked men may preach Christ in some sort (y) Math. 10.4 5 7. as some say Judas did yet it doth not appear not is to be believed there being no word of faith to warrant it that ever any man not walking in the wayes of God or not being converted ever (z) Jerem. 23 21 22. Luke 22.32 Daniel 12.3 Mal. 2.6 7 8. turned any one from his unrightousnesse that being one of the most glorious workes of God which he doth not use to act by wicked men which appears clearly by many Testimonies of holy Scripture * Dr. Brian in Mal. 3. Dr. Grew in Ephes 2.1 2. Acts 9.4 5 6.15 16. It is a point commonly insisted upon that God doth no great work by any man but he first humbleth him And this is all I shall say touching this matter being so long a digression onely as appertaining to the matter in hand I set it down as a defect in our Law