out of use and ought to be Repealed The Act for Reforming of Disorders in Ministers a superstitious Law 13 Eliz. 12.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-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
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
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
Rom. 13.7 Obj. 4. Legacies cannot be Sued for at Law and therefore of Necessity there needs a Court of Equity This ought to be amended that every one may have their due Ans This Case grows remediless partly by the dissolution of the Bishops or Ecclesiastical Courts as they are called and may easily be remedied if the Law were a little altered For what reason can be given that an Action of Debt may not as well lie for a Legacy as for any other Duty payable as Executor or Administrator It 's true that at the Common Law generally mens Personal Estates were at the mercy of the Bishops or Priests to dispose the same for the health and salvation of mens Souls as was pretended but now we are freed from that thraldome it were fit that every mans Estate should perform his Will according to the Executors Oath by paying Legacies as well as Debts in the second place as far as the Testators Estate will extend and that an Action of Debt lay for it as aforesaid for that if a man sue in Equity for a Legacy of Twenty pounds or under he shall spend it every peny in Suit if he have not a very easie Adversary Obj. 4. The greatest questions are about performances of (c) Neh. 5.11 12 13. 2 Cor. 8.11 12. All honest Agreements where the party is not deceived are to be performed being in our power Ames l. 5. de Consc Covenants and Agreements and of Trusts Concerning which it 's truly said of the first That for breach of Covenants or Agreements a man may in an Action of Covenant recover Damages for the Covenant broken but there is no meanes at Law to enforce any man to perform his Covenant and therefore there is need of a Court of Equity Ans This is a fault in the Law that a man can have no means to enforce one to perform his Covenant But this might easily be amended either by putting the Covenant in Issue upon a Traverse or by devising an Issue as is usually done by Order of the Chancery and if it be found that the Defendant Covenanted or Agreed under his Hand and Seal as the Plaintiff alledgeth Why might not the Judgement be That the Defendant shall perform his Agreement and pay Damages c. as well as in a Replevin that the Cattel shall be returned c. or in an Action of Debt that a man shall pay Money or render Corn or the like And touching Agreements made nnder mens Hands they amount but to (d) Josh 9.21 compared with 2 Sam. 21.1 5 Just promises are to be performed and the contrary punished by the Magistrate c. Promises upon which at Law the Plaintiff may recover Damages but there is neither Law nor Equity to enforce a man to perform such an Agreement which I conccive ought to be amended in the Law for that sometimes such Agreements are made upon as valuable Considerations and as solemnly as those which are put under mens Hands and Seals Obj. 5. And concerning Trusts especially concerning Lands and Tenements the Common Law can afford no help against such as refuse to perform the Trusts If a man be indebted but not upon Record as Statutes or Judgements c. or in consideration of Marriage conveyeth his Lands to some friends and their Heirs upon Trust and Confidence either exprâ—ssed or implied that the Trustees c. shall permit the Grantor and the Heirs of his body or his Wife or Children to take the Profits (e) It is true of Trusts as of Vses Fear Fraud were the Inventers of them Fear in time of Civil wars to save Inheritances from forfeiture Fraud to defeat lawful Actions due Debts c. Coke l. 1. sChudleys Case fol. 121. a b. The Judicial Law directs a remedy in case of trusts Exod. 22.10 11. The Trustees having a minde to chuse him that haply intended to cozen others refuse to let cesty que use the parties for whom they are trusted to take the profits c. The Grantor hath no remedy at Law but must sue in a Court of Equity Answ This is true as things now stand but this might and ought to be amended by putting cesty que trust into the condition of Cesty que use and let the possession be transferred to the trust and then the Grantor and his Heirs and Assignes may recover the possession and profits without the help of a Court of Equity And it might be wished that all such Trusts might be destroyed serving generally for little else but to deceive Creditors and Purchasers See a Case recited by Charles George Cock Essay p. 123. Object 6. The last and main thing upholding these Courts of Equity is That commonly Frauds and Deceipts can never be discovered nor Private Contracts proved but by the Defendants Oaths which are not elsewhere to be taken in such cases and this enforceth so many Bills of Discovery to be exhibited into those Courts every Term. Answ This Objection doth in it self in foro Conscientiae clearly overthrow the practice of these Courts For the very exacting this Oath is (f) Ames l. 4. de Consc c. 22. f. 222. This question about exacting Oaths against a mans self is handled and the Objections and the Scriptures answered which seem to countenance the samâ— See the Book called A Treatise of Oaths written by the Nonconformists p. 13 15 52 57. against the Law of Nature whose dictates are the same with those of the Law of God written from which are derived undenyable Maximes and Principles whereof this is one Nemo tenetur accusare seipsum This Maxime is agreed by all men and the Lawyers allow it The reason of it is although it need none to confirm it for it is also a Maxime Contra Negantem Principia non est disputandum because every man is nearest to himself and it 's against Nature for him to be a means of his own punishment a man ought to preserve himself although to the hurt of another it were better to kill another then to kill himself or to suffer himself to be killed if of necessity the one must needs be Therefore to exact this Inquisitory Oath against a mans ownself is against the Law of Nature and so against the Law of God This is the very same Oath which was brought into England by Pope Martin the fifth for extirpation of the followers of John Wickliff called Lollards about the Reign of King Hen. 4. and was taken up by the Ecclesiastical Courts as they were called I suppose long before it was used in any English Court and afterwards it was most famously used in the Star-Chamber and in the High-Commission called The Oath Ex Officio the Defendants being besides their answer examined upon Interrogatories as sometimes they are in other Courts And it 's reported which I had from good hands that one Mr. Fuller of Grays Inne having this Oath tendered to him as all Non-conformists had who came into the
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
onely be imprisoned as Jeremy was but may be hanged Therefore such Laws as these had need to be Expounded or Declared void 2. Thess 3.1 2. Isa 29.21 Jer. 26.6 7 11. 18.19 2 Sam. 12.7 13. 43. That an Heir having Lands Descending in Fee-simple shall not be subject to the Debt of his Ancestor from whom the Lands descend if he sell the Land (u) Custom Norm tit querel de debt fol. 87. Cook Entr. a. fol. 126. b. before the Action brought This is an unjust Law for that there is as much nay more reason to charge such an heir after the Alienation as before for then it is ascertained what the value is as well as in case of an Executor and what benefit it is to him without hazard 2 Kings 4.1 7. Rom. 13.8 44. That Lands taken in extent or seized upon an Utlawry at the suite of a private man for debt the issues and profits thereof should go to the King and so to the Lord Protector is a senseless and unjust Law seeing the Creditor sues for his just debt and is at all the charge (w) New Term. Law verb. Vtlawâ—y Coke l 6. fol. 80. l. 7. f. 3. l. 3. f. 2 3 4 35. 22 Ed. 3. l. Ass Pl. 33. 29 Ed. 3. l. Ass Cowel Inter. verb. Vtlawry Wing at Law cap. 37. pa. 59. N. 19. The like may be said of all Utlawries where men are utlawed in forren Counties and seldome or never hear of the suite the Proclamation grounded upon the satute of 31 Eliz. being never duly proclaimed but returned of course yet the party utlawed by the Common Law forfeits all his goods and Chattels and likewise the profit of his Lands until the Utlawry be reversed this is a harsh Law and used to insnare men and might well be amended Jer. 5.26 Levit. 25.43 46 53. Isai 58.6 Job 35.9 45. (x) Clerks Proposals second Paper 1650. N. 9. Justice Hutton in a cause heard before him C. B. That a man indebted upon a single bill without a penalty payeth the mony at the day and can prove it by witnesses but hath not the bill delivered up as it falls out many times nor any release from the Creditor under his hand and seal An Action is brought upon this bill by the Creditor or his Executor or Administrator The Defendant cannot be admitted to plead that he paid the mony at the day nor can make any defence at Law unlesse he have a release this is an unjust Law and a wrong to the Debtor and so unlawfull Job 16.17 Jer. 21.12 Ezek. 18.7 Prov. 22.22 46. (y) 26 Ed. 3. l. Ass Pl. 41. 12 Ed. 3. l. Ass Pl. 20. 29 Ed. 3. l. Ass Pl. 68. 40 Ed. 3. l. Ass Pl. 22. Kitchin fol. 162. a. That a Wife having right to be endowed and nothing to be said against it shortly after her Husbands death shall be a trespasser to her own Child or any other who is heir to her Husband and shall have nothing untill shee have recovered it by a writ of Dower which is a tedious way and the proceeding and Execution thereof chargeable This is an uncharitable Law and contrary to that Law of Equity that a Wife should partake in all her Husbands estate according to his degree and ability and Dower is one of those three things which are said to be favoured in Law but this is small favour 1 Sam. 1.5 Exod. 2110. Mal. 2.14 Eph. 5.33 1 Tim. 5.4 47. (z) Custom Norm tit Murder f. 75. a Rast Entr. Imp. 1574. Barn in Appel 8. fol. 43. in mort fol. 46. 47 48 52. a. That in an Appeal of Murder the Wife or heir of him that is slain bringing an Appeal against the Murderer may compound for mony and give a release of the suite and so consequently of the death of the party slain this is an impious Law against the Law of God Gen. 9.6 Exod. 21.12 14. Numb 35.30 31. Rev. 16.6 48. That a Priest or one in holy orders as he is said to be should have (a) Coke Inst 2 part pag. 4. Orig. Reg. fol. 147. Capias si Laicus sur stat de Acton Burnet See the statute 23 H. 8. c. 6. 37 H. 8. c. 9. Cons Norm tit Cler. fol. 146. a. Cowel Instit lib. 3. Tit. 2. Sect. 5. pag. 225. an Exemption and freedom from arrest upon a Capias si Laicus upon a statute-Merchant and that all other men called Laicks should be charged although the Priest were the principall Debtor and never was any Preacher but some Chorister or such like fellow this Law is both unjust and superstitious as being one of the priviledges of the Romish Church Prov. 20.16 and 27.13 and 22.26 27. 49. That a poor man taken in Execution for debt and having nothing to pay by Law cannot be discharged nor (b) Coke Entr. Audita Querela fol. 85 86 87. Coke l. 3. fol. 44. enlarged for an hour without losse of the debt for ever but must starve and dye in prison whereas in some Countries (c) Rous Att. Ant. l. 3. c. 1. pag. 96. Tit. Liv. l. 8. p. 301. D F. This Historian saith that the Law was 1. That none should be kept in fetters but he that was to suffer for some heynous offence 2. That for lent mony the goods of the debtor should be obliged 3. That no man should be imprisoned for debt the goods of the Debtor go to pay his debt and his body not to be Imprisoned but if you will keep a man in prison that hath nothing to pay you must maintain him or else let him go out and by that means men going to the Indies or following their profitable imployments many times become able to pay their debts and leave estates for posterity The Law hath been lately moderated by several dispensations or pardons but there is yet no certain Law in force in the point providing equal Justice and equity both for Creditor and Debtor Matth. 18.26 29 33. Isa 58.3 Luk. 7.42 Coke estay pag. 166. (d) Tacit. Annal l. 11. c 4. pag. 145. Pomponius made a Law to restrain the cruelty of Creditors and forbidding them to lend mony at Interest to young men to be paid after their parents death lest they should be deceived or ruined by such borrowing 50. (e) 5 Eliz. 23. Regist f. 65 66 67 70. Cowel Interp. verb. Excom Capiendo N. Term Law verb. Excom Wingat Law c. 38. p. 62. n. 19 20. The Writ de Excommunicato capiendo being in nature of an Execution against him that is Accursed that is Excommunicated fourty days from which no Money will redeem a man nor any thing else but the sacrificing of his Conscience in doing what the Ordinary will have him do which is called being justified by his Ordinary This is a wicked Law and many have been Imprisoned and others enforced to leave their Country for fear of this Execution this being the worst thing the
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