by the actual Enjoyment of the one forfeit his Interest to the other Par. 96. Why Demandable IN fine the Reason of Tithes was the Instructing of the People in the Service of God with Continual Intercessions for their chiefest Blessing which must continue to the end of the world and so then on necessity as well as Precept must Tithes be perpetually Paid and freed from Alienation otherwise the Service of God must cease and all precious souls dearly bought by Christ be Expos'd to Damnation Par. 97. Due by the Law of Reason BY the Injunctions of Reason can Civility be so beetle-headed so very a Dolt as to dream that Schollars ex Debito or of Course by bounden tie of Conscience are oblig'd to be up early and late Threshing at Study enjoy no more Ease then Hedgers and Ditchers but still Carking to Purvey and lay up for the Soul wasting themselves and parting with their Stoage of Oyl as shining Lamps to lighten the Laity to Heaven And with the Apostle The Workman not worthy of meat Par. 98. The People Vnedified so no Pay due IF Tithes due and well deserv'd how comes the Church to be thus Rent asunder over-spread with Schism and Heresie were the People better Taught more Godliness and Unity would Shine Popery depress'd and the Orthodox on the Top of the Hill The Estovers of the Church why Payable This is a bungling Cavil and not worth a Reply Tithes were paid to the Levites because set apart to give Attendance at the Altar so the Clergy now Claim Tithes because separated to the Gospel And not on the Account of success One may Plant and the other Water but Heaven alone must give the Encrease The Brachium seculare must instruct for Mucro Ecclesiae is no more Dreaded then a Pot-gun the Clergy may Preach and labour their Hearts out for the Spiritual Peace to stubborn Hearers that will stop their ears or if Instructed will not Practise How can our good Spiriters the Spurners of the Clergy be edified that Routously trivant after untemper'd Morter and refuse the Church The Justness of the Law to the Church Not to belye the Common Law it bears a just tenderness to the Church 't is true a lay-man may be discharg'd of Tithes by Grant or Composition but not by Prescription that is the Law will not suffer to prescribe in non Decimando in Exoneration or Discharge of Tythes only for the modus the same with the Canon Law where a Prescription is not Allowable And the Decimae Consuetae or the manner of Decimation so it amount to a Muneration or Competent Portion doth not enervate or weaken the Decimable Right Payment of a sum in half Crowns or Shillings will not vary or prejudice the Duty in Discharge of Predial or mixt Tenths Par. 99. The Decimal Right formerly Appendant to the Spiritual Conusans ANciently if Tithes were substracted 't was suable in Court Christian But then if the Right of Tithes had come in question by W. 2. 'T was Triable only at Common Law For Pensions they may sue in the Spiritual Court but if they be Prescriptible by the 13 E. 1. it must on Fine-force be claim'd at Common Law After the Norman the first Law in behalf of Tithes was the 18 E. 1. Art sup ch a Declaratory of the Common Law with a Ratifying of the 9 E. 2. under the Royal Assurance 18 E. 3. by sc fac out of the chief Court as old as the Nation the Clergy were sub-paena'd to render their Dues there this was Conceiv'd an Encroachment on the Church so Remedied with a salvo jure Regio or special saving to Regal Rights 2 R. 2. Church-men were Decimated by secular Courts This was likewise Redress'd without demonstratively Proving it to be a Lay-Chattel 15 E. 3. 't was Declar'd that Pursuing of Tithes of Right did properly pertain to the spiritual Court Thus in all Ages by the 14 E. 3. 25 E. 3. 6 R. 2. 7 R. 2. 2 H. 4. and several other Modern Laws the Church was reliev'd and the Maintenance preserv'd For Blessings Renovant Tithes most Due For Winchelsies Canon 't is by some question'd but for growing Profits I meet with no Doubtings at all among Lawyers Tithes in Law are not nakedly a Lay Profit apprender barely a Rent Charge or Canonical Allowance But an Ecclesiastical Inheritage the Fee sure more then Positive without doubt Divine a Provisional Due Recoverable under the Gospel as well as the Law as of Divine Right The Moral Law is Jure Divino under the Gospel Tithes are of the Moral Law Therefore Tithes Jure Divino under the Gospel By the National Law this quota Pars as the 13 E. 1. calls it is usually defin'd a Church Inheritance Collateral to the Estate of the Land and therefore not Extinguishable by Feoffment For Example If a Mannor be alien'd by Fine the solemn'st instrument in Law this shall not Extinguish Tithes the Alienee must to Confession with the Parson for his titheable Interest Par. 100. None Indecimable or Tithe-free NEither are Tithes extinct by unity of Possession as other Charges issuing out of Lands are subject unto Therefore If a Parson purchase the Mannor of Dale of which He 's Incumbent by this Acquest and unity of seisin the Land by Act of Law is become non-Decimable But if the Parson infeoff or Lease out his Parsonage to A. He shall have Tithes against his own Peoffee or Lessee for Tithes were not discharg'd only uncharg'd or suspended At Common Law put the case that A. doth demise his Rectory to B. Rendring Rent in lieu and satisfaction of all Demands as well Spiritual as Temporal 'T is quaeried whether now Titheable Though the word Demand be cutting in Law indeed very Chain-shot in most cases of the mightiest extent and operation yet I conceive it shall not exonerate or acquit the Demisee of Tithes being more then common Reserves of Rent Duties inevitably due as Debentures to the Diety Let the Bargain be more closely worded As a Demise of Land cum Proficuis with all Perquisites and Avails whether now due I conceive the amplest Grant without particularly nam'd will not pass Tithes because Spiritual Duties and Collateral to the Estate of the Land By Law a Tribute Parochial for the support of Religion for which the Parson Imparsonee or Purveyor of the Soul may take of Common Right without any Customary or Civil Provision the Duty lying in Prender as well as Render For can the Judicious imagine that after we are spiritually treated God intended that his Suffragan should with Cap in Hand scrape to Mister or Gadfer for his Wages and be foxtail'd without even Romescot or a penny for his Balm Like the labouring Bee to fill the Hive of the soul with Honey and not to be vouch-saf'd the Wax for his Candle but to be even smother'd for his Pains Par. 101. No Duty no Pay THis clerical Estate or divine Exhibition though of absolute Tenure and sacredness
Rebel Meeters yelping against Law And the manner of their Worship being not only turbulent and irregular against the express Commands of Law But the matter Irreligious against the Known Current of Salvation with the nicest 't is not Persecution but the Profession and Duty of the Sub-Diety or Sovereign Magistrate according to some opinions to cut out the Tongue if sowing up the Lips will not restrain Profaneness Par. 124. Garden-Gods not Adorable WEre the Adorers of Bel and the Dragon the Sun or Moon Stock or Stone fit to be accounted Idolaters or divine Worshipers if silenc'd and crush'd under foot can the weakest that never Studied farther then the Horn-book adjudge it Persecution being not whip'd as Saints but paid off as Routers in Blinching and snuffing against Law The Diseased why Imprisonable Leprosie Corporeal by the Judicials was murable and to be shut up to keep the Broken from the Whole in Reference to publick safety On this President are the Pestilential with us Padlock'd and Guarded And once mark'd by Law should the visited adventure Abroad without Leave the Watch may resist them as Felons How then can Divines take it ill if for Leprosie spiritual the Law be the same Par. 125. Profane Mutes seldom Disturb'd FOR Persecution 't is an impudent Fable rak'd from the bottomless Pit to mire the Church I know no Inquisitive Law to pick the Conscience if the Poyson be lock'd up all 's quiet But if like mad Brutes they will up and down and spread their Frensie to draw Disciples then the Law Catches them not as misguided Zealots but as outward Disturbers and Violators of the Peace Our great Ancestors were not expell'd Paradise for Chawing the Apple but for the breach of the Precept because prohibited by the Lord of the Garden now non-Conforming is the Forbidden Fruit the eating thereof in defiance to the Church is dangerously Contemptuous against the State and so against God for Laws made by lawful Authority are ordain'd by God and ought not to be slighted or disputed but Reverenc'd and obey'd Par. 126. Laws uncharitable or Idolatrous bind not LAws to inhibit Alms in extreme necessity or to enjoyn Worship to Baalpeor are void quantum ad Deum in the Court Above And not astringent to the Conscience For humane Laws which are no more then formal Astrictions ordain'd for the Political Rule of the People repugnant to Reason or Scripture are not properly Laws but Corruptions As Customs unreasonable are Usurpations and not legitimated by Vsage The Law moral the Transcript of natures Law ALL Regencies though never so rude and Devilish are sounded upon Laws as Bars and Boundaries of Native Liberty the Ground of those Laws is the Law of Nature whose intrinsick Principles we obey because imprinted in our souls by the Original of Nature the Diety now the Law of Nature and the Moral Law differ only Notionally the Moral Law being but the gloss or Explanation of the Law of Nature Hence all Laws are fram'd in imitation of Nature otherwise not pleadable at the Bar of Reason In brief because mans nature is corrupt and divers from the Community of nature these Artificial Restrictions of humane Laws on necessity were devis'd as Locks and Bolts upon the Soul for the Weal of Vnity and Peace Par. 127. Disquisitive Theft WHether blinking Sleights Deluding the People with Wheedles more counterfeit then St. Martins ware Pilfering their Hearts from Legal Forms be not a Theft of a more dangerous concern then the sliness of the Peepers that spirit only the Body they Kidnap the soul And more Theevish then the Larceny of a Sheep or an Ass or a Clout from off the Hedge are Problems that sink deep with the Well-wishers of Monarchy and Lovers of Religion In Law to withdraw the People from their Allegiance is Treason And there 's as much Ligeance due to the Spiritual Law as to the Temporal for in Truth they are Politically Identical one and the same Bond the King equally interested and Supreme in both Par. 128. Polytheism Confounding 'T IS a sure Theorem in State that Diversity of Opinions le ts in Atheism and Shifts off Regality And strictly in speculation of State what are Wincings against Law and Pawings against Prelacy but Seditious Practises against the Crown and meer Confusions which by Law in some sence may be Treasonable on this Presumption of State by the 27 Eliz. the Romish Priests are Hurdled and Quarter'd not for their Priesthood but Plottings against Majesty who holds the Scepter by inherent Birth right or Descent of Inheritance No Crown-Holder at will or on Condition if his Actings out-skim a Fanatick Scull or Romish Oars his Barge in Law is absque Compoto Controulable by none but God And in Law though Process in Ecclesiastical Courts and Temporal too are not in the Kings name However they 're the Kings Courts and the Proceedings are for the Crown To instance these Droitz Royaux or Regal Rights by an Example Every Leet or view of Frank-pledge holden by a Subject is kept in the Lords name yet no Student at Law but knows it to be the Kings Court many Subjects hold Courts of Record and other Courts yet their Proceeds must Conform with the Law Royal and National usage SECT XVIII Par. 129. Severity no unadvised Precept or Club-Law IT will be objected that Christian Laws are not intentionally Newgate Tyranny that is Chains and Fetters but Silken Yoaks Rules written by a soft Hand and easie Finger and shall ever be taken Favourably with some latitude of mildness as to the Darling of the Soul As the Statute of E. 3. that prohibits Relief to a valiant Beggar able to labour on Pain of Imprisonment shall not be taken literally or in Extremity of Justice But according to the Feature of Reason and the Spirit of Charity otherwise the observance may prove a greater Bondage then that of Tripolee or Tunis more then Homicidial even murdrous Posito we meet this lazy Rogue or valiant Beggar on the midst of Salisbury-Plain in the Nones of December or Calends of January Remote from Hovel or Bush in sleeking tert Weather the Air more piercing Cold then in Russia or Greenland enough to engender Chrystal Pitifully jag'd and torn so Back-beaten and Belly too near famish'd more then one leg in the Grave without a noggen shift or even a Patch to cover his Carkass or a scrap to suttle his Panch And afore this Sturdy Villein or Incorrigible Rogue can probably get to a Barn to roost in or a Crust to Knaw He must perish now if one out of Pitifulness fodder this filthy Loyterer or dingy Shab with Offal or dry Crums on Design only to succour his Rogueship from the sharp Stings of Hunger and Cold taking this fusty Lob and poysoning Lout but just before the last Gasp e're He be quite gut-founder'd and Defunct to prevent his Funeral in a Ditch Whether this can be a Breach of Law and so an Offence in Conscience is much
sager than Law Is both vain and unmannerly 'T IS a Maxime with Lawyers that none ought to plume Himself wiser then the Law with sober Heads Oracle-like being Unquestionable many Acts of Law as common Assurances of the Realm are sagely to be Agreed and not finically Pry'd into by peevish Eyes The like Compliance is to be Render'd in Church Discipline if once setled and Established by Law But Ephesian Disciples as Careless of the Gospel as Regardless of the Law otherwise they would leave Bellowing against Order and stoop to Power they must be Lawless And down with those easie Mounds and moral Regulations which the Masters of Skill joyously treat with thankful Arms Let some jocous Ramblers take Heed how they gibe with Law to hector Majesty 't is not good Joking with Edg'd Tools Deity hath a large stride to take off Scoffers at a Distance And haughty Saints are sooner snapt by the black Tempter than poor Frierly or Bare-footed ones pallisadoed with Humility which like Rampires of Fire will shield them against the sharpest Conflict Spiritual Trivantings Censurable By Martial Law every slide is a Crime in a Souldier contrary to express Command or Common Discipline the like by the Law Canon Behaviour besides the Church Rules is scandalous Enquirable by the Censures of the Ordinary Emansion or Military Loitering is often sentenc'd to the Wooden Horse or to run the Gantlet if our Church Trivanters find the same Consideratum est or sage Rule awarded against them let them Pack the right Horse and laud their own Stubbornness Par. 25. The Forceableness of a Statute IN a civil sense with Legal Heads an Edict fram'd by the King and the Common-Council of the Realm resembles in State an Instrument or Charter at Law And can any at Pleasure vary or Revoke his own Deed A Deed is ever taken forcibly and with Effect a Rule very trite and Common yet of great Depth and Elegancy founded on the very Pithiness of Reason which instructs us to set a Guard on our Tongues and Hands too that nothing escape either but what 's Judicious it likewise quiets mens Possessions and leads the Judge and Jury to Certainty in Avoiding a sudden and Catching Opinion Hence arises the Principle in Law None shall be receiv'd to Stultifie or Disable Himself that is to play fast and loose to nullifie or defeat his own Act. For an Example The actual Delivery of an Instrument without words is good if given as an Escrow to take effect as a Deed on Conditions perform'd this binds not or deliver'd triflingly it invalidates not the Act in both Cases the Deed absolute otherwise Deliveries by the speechless would signifie nothing and many Deeds and Devises frustrated Avoided Therefore if the Obligee bail a Bond to the Obligor to Rebail yet the Obligee may retain it For a more vulgar Instance in Honour of the Common Law If J. S. grant an Annuity to J. N. with a clause of Distress in his Mannor of Dale Provided it shall not bind his Person And in truth the Grantor has no such Mannor however the Grant good and the Proviso void for by the Maxime That none shall derogate from his own Grant the Person of the Grantor is Chargeable I find the Civil Law not so Ample in this Point As by Decision Titus devises to Caius twenty pound out of such a Coffer or Closet in such a place And in truth there 's neither Mony Coffer nor Closet in that place the Bequest is void But at Common Law this Circumstance would not frustrate the Gift if Assets elsewhere could be found The Effectualness of Deeds If a Deed defective in the usual Forms be Janus-like bifronted bearing a double Aspect Having two Intendments the one with Law and Right the other against Both it shall be taken in that reasonable sense it will bear never be void if in any Congruity of Reason it may stand good As in an obligation solven'd to the Obligor this slip is excusable and shall not avoid this Deed Poll the Law shall expound the solvend to the Obligee Regularly in Law if an Act will operate Diversly either by way of Interest or Authority the Law not delighting in Images and Shadows but in Certainty the nurse of Quietness shall ascribe it to the Interest and not to the Power Fiction must vail Bonnet to Reality To explain this by a Case If J. N infeoffe J. S. and his Heirs of sale And by another Deed instate Him and the Heirs of his Body of the same Land giving seisin according to the Purport of both Deeds Quid indè operatur Limitations very Prickley that pose the best Students that the Deed may not be impeach'd but hold forcible and good against the Maker And if not Holdable by Intireties the Law will Marshal it to Enure by Moities that is an Entailement in one Half with the Fee Expectant And a Fee Absolute in the other Thus Livery Expounded Effectually against the Grantor The like in a Syntax of State we are Tied up from Whiffling and Grinning against Uniformity And must give Obedience Par. 26. Denying of ones Hand not Available IF any plead nient son fait Hoping thereby to slip the Collar in Avoiding their own Deed unless by Nonage Manasse Duresse and the like being formally Pleaded 't is more then Imprudent frivolous in Law and Equity To Exemplifie this by Troynovants Case If A. owner of a Toft or demolish'd Messuage in Cheapside Converted into Ashes by the late Fire let a Lease Indented for a Century or Milliary of years of this Land to B. ex mero Jocu jocosely out of a Frolick and Disport only without any Terms to Rebuild after the prescribed Form rendring Rent Here 's a good Estate vested in B. This sportful blind Bargain shall work by way of Estoppel And the Lessor A. during the Term Concluded from Pleading the Act was Jocular by way of Merriment not at all serious or in Earnest ever legally intended and so nudum Pactum a naked and void Grant Mal-a-wise or Nescience invincible of the Law will nothing avail so of the Universal Deed the Statute to which every one is a Party 'T is more than Turbulent even Disloyal in Ruffling against the Stream to repeal our own Act to baffle Authority Par. 27. Law binding though not solemnly Divulg'd by open Publication A Charter in Judgement of Law is no more then a fair Copy of the minds of the Contractors to prevent mistake and strife Recorded into Paper or Parchment when Executed that is seal'd and Deliver'd made Authentick baptiz'd a Deed which is a private Law between the Parties So the Publick Charter the Statute in Construction of State is no more then the Resolves of the Supreme declar'd in Print to which every Subject breathing within or without the Kings Dominions though never Proclaim'd is bound to give Obedience for if a Law be Proclaim'd 't is of Favour not of Necessity it being Presumable none are Ignorant
of their own Acts. Par. 28. The Blessedness of the Change GOD be thanked that after a long and base War we are now in a Stable Peace nothing unsetled in Church or State but mutinous minds The petty Princes of the Country may ride out and take the Air to Hawk and Hunt and visit each other without the least Danger of Sword or Pistol And the meanest Clown walk abroad to over-look his Pecora Campi or Grasing Creatures without being bid stand Pot and Pipe on his smoaky Hearth and chat blind Stories of the old Wives of Windson Guy and Colbrond And his Broder Swain requite him with the like Stultery of Bevis and St. George And Ethically like the Tatlings of Busie Bodies or Bickerings of Shrews go for a Gossops Tale as inarticulate blank sounds The Sereness of a Record The like judicially with the Hond on the Book as our Bacon-folk phrase it Jamee may depose in the Affirmative and Tomee evidence a Negative and neither Conclude Court or Jury But if a Record once interpose no Averments or Brawlings of the High-Plyers or better sort of Rusticks and the sparks of all other Conditions shall never Contradict it For Example If two Conservators or Iustices of the Peace assemble to view and suppress a Riot if they Record the Offence though in truth there was none but All in Pace Dei in Sobriety and Peace However by 15 R. 2. 8 H. 6. there 's no Traverse or Creeping Hole to get out of this Iudgment the Parties are for ever estop'd and without Remedy I learn by Hildebrands Case that what passes during the Term 't is in the Justices breasts and Alterable But the Term ended Adjudicatum est 't is only in the Rolls of which after the Course of the Medes and Persians there 's no variance no controulment Wilful Blotting a Record Capital Writings may be blurr'd and Deeds defac'd and cancell'd and the Purse only smart for it Ratably as the Damage will amount unto But the Embesiling and Rasing a Record will cost ones life In brief an Inrollment or Record is a Memorial of that Commanding Veneration and Verity that if Pleaded null tell Record it shall be Tried only by it self being Incontroublable otherwise there would be no result of Argument and Controversie endless Now a Statute is the Highest Record against whom there 's no Prescribing nor Alledging a Custom being the Convincing'st Evidence and soundest Proof in Law And to endeavour the subversion of the Fundamental Laws of the Land is High Treason And what more Positive and Fundamental than a Statute Par. 29. Improbable to be bound to Tyranny or Superstition CAN it be thought that a National Act resulted by a Convent of Honour Kneaded into Form by the Critical Care of both Houses on whom all Power is Collated first the Lords Spiritual and Temporal in Presumption of State All VVorthies After recluse Debates digested into a Bill in the Form of Law with Le Seigneurs ont assentes with the Concurrence of the Commons by the Direction of the Writ no Triflers but De gravioribus discretioribus viris the Eagles of the Countrey with Les Communes sont assentes thus strictly Refin'd by Grave Traverses and Forms of State and lastly Compleated with Le Roy le Voet the Royal Assent should savour of Madrid or Argiers Privity of Assent Obligatory Thus no Act to bind unless made per l' Assentments of the three Estates But in Law every one is Privy to an Act of Parliament and Consent judicially doth toll Error that is no Excuse or Evasive Pretension shall be Admitted against our own Agency To Expound this by a Case Lessee for years at Common Law makes a Feoffment in Fee and deputeth the Lessor by Deed to give livery and seisin who pursuantly Executeth it Now though the Lessor or owner of the Land acts only as an Instrument to Compleat the Tortiousness of the Lessee yet done of his own Accord the Law intends it as walking Hand in Glove with the Lessee with a full Assent to pass the whole Inheritance A stronger Instance The Pleading of a Feoffment in Fee on Condition without Deed and Reentry is good if the Adversary will agree the Condition Complotments against Law unsafe and end in Ruine I wonder now with what Confidence Les Misfesants the Affronters of Authority dare too t Sedition in standing out against Sovereignty and Picqueering the Law This sad Frowardness towards the Church is to every good Subject an object of Mournfulness that of all People we should be most unsetled as the Vivary of Faction in strugling against Law to reduce this famous Empire this Angleland to a Green Apron Government Section V. Paragraph 30. Sophistical Cavils or idle Belchings against the Common Law THE Honour of England the Common Law with some Dissenting quaggey Heads is overfull of Meanders and Intricate too Tartish for some nice Craws Though Admir'd in times past by the Romans Saxons Danes and Normans And still Venerable with the VVorld of Learning The usual Reproachings against the Law 1. 'T is tatled by Cavillers the Law being the Clock that we must go by ought to be more Legible and Plain to the Vulgar not couch'd so Darkly in meer Gibberish or Pedlers French understood by few but Lawyers Neither is this Fault alone found by them but Complain'd on likewise as an Abuse by one Learned in the Profession 2. Secondly if the Law be Radiant Reason streaming pure Excellency why visarded or bound up in hard uncoth words Discoverable by none but the Professors which is no better than Tyranny by Authority for in nature Quod omnes tangit ab omnibus Intelligendum est That which Concerns all ought to be Intelligible by All. 3. Besides 't is too Prolix and tedious in Form the Pleadings being drilling Criticisms or talkative niceties indeed with some plain Canting over Draining the Purse before we come to an Issue to be put out of our Pain 4. If through vast charge we hap to Catch a verdict motion will be Allow'd to arrest the Judgment and vacate all Proceedings 5. If we shoot this Gulf and get Judgment marking the Roll for Error will supersede it And then we must begin again so that there 's no End of Law 6. If for Testamentary Matrimonial or Sea-faring matters we Repair according to Custom to Doctors Commons we must Expect Rubbs too the Checks of Prohibitions so that with the Advice of the ablest Sternsman the Law is Shelfs and Sands both chargeable and altogether uncertain These and the like toothless Rablements with the unadvised the Tooters against Excellency are the Moles and Warts of the Common Law Par. 31. The Cavillations Defeated and Satisfied 1. FOR Horn's Complaint that the Law is written in a brackish Tongue and speaks not good English for every giddy-pated Runner to read and understand by the VVise 't is thought the better to prevent suits for small knowledge would set the Vulgar a Gigg and fill the
will not suffer such impious Assaults to go unpunish'd 3. By Indictment at Common Law at the Kings suit for Debarring his Subject the Common Benefit of the Law of Nature Par. 46. The Duties we owe unto the Dead are chiefly three Sepulture a natural Debt 1. FUneralia decent Interrment a Common office of nature unto which we are mutually bound to each other to perform as Due unto Humanity for that assuredly it must be one Day our own Turn unavoidably to pray the same Therefore Administration by a Stranger for the Sepulture is Allow'd by Law This moral Courtesie was taught from Heaven which induced our Ancestors to Erect their peculiar Sepulchers for themselves and Family Therefore an undecent Funeral or any rude and freekish Directions tending thereunto like unto that of the Stoical Vaunter Sepelit natura Relictos Are Inhumane and Disallowable by Law As by a Decision Maevius made Lucius his Heir by Will sub Pacto or Conditionally to throw his Ashes and Bones into the Sea Two Questions 1. If Lucius did forbear out of Loyalty to humane Decency Performing the Condition whether He could hold the Inheritance as Heir 2. Whether the Condition not Insane and void Resolv'd 1. To the first that the non-performing of the Condition was rather Commendable then Questionable in Committing the Body to civil Burial And hence interring Rites are call'd Justa because Due by the free unwritten Justice of Nature or Law of Civility 2. To the second That the Condition was more then Windy if the Testator in true senses very wicked most Absurd and so void However the Estate Compleatly Holdable in Law and Conscience The Ground Hallowed by Funeral Obsequies Burial is so highly Indulg'd and strictly observ'd by the Canon Law That the very Place where an humane Body or Head is interr'd is instantly Consecrated and adopted Religious And for the future render'd unsaleable even unmorgageable only Demisible What good Christians were some Railers against Decency of late with us scornfully refusing the harmless Celebration of the Liturgy Throwing the Body into the earth as Rudely as Pigs into a Stey without Reverence or Devotion Pompous Interring I agree is undecent because vain and often overchargeable many times obtruding a Fast on the poor Creditor for other Peoples Feastings Censuring Petty and Base 2. Civil Memory in point of generous Breeding we should keep a watch on our mouths and suffer nothing to escape us even of the Living but Reservedly And not make it a Common Practice like Titlers and Story-mongers meerly for Discourse sake to defame the Absents without Cause unless we are particularly Consulted with in Private or Publick to give an Account of any mans Credit and manners Then we ought to be free and deal Candidly otherwise silence is our Duty in Civility and Conscience No speaking of the Dead but Candide and Caste But for the Departed we must never mention them but with Honour a good Fame being the only Interest and Right of Nature which they still Retain below to violate those dues were most ungracious and superlatively Profane beyond the Cursedness of Charles Martel No biting the Absent nor wrestling with Spirits If Bad let their unhappiness die with them if good let them be Remembred with a joyful Applause for so bright a Saint Devises Choicely Regardable in Law and Conscience 3. Performance of the Will for the Good of his Soul as some Books term it or rather for the safety of the Party entrusted to interr Him that He do Righteous things that his own Spirit might find Rest in the other Life For God is Just and let Him expect What Measures he gives the same will be meated unto Him Paganism very Precise in Executing Wills The very Paynims though in the Dark yet by the Peeps of nature were ever most Curious in Gratifying the Request of the Decedent As by a Decision A famous Wit on his Death-bed willed with a very passionate Desire that his Works might be burnt Two Questions 1. Whether the Devise not void because Injurious to publick Interest and the Advance of Learning 2. Admitting it good whether private Request should be preferr'd before the Common Good or General Advantage Resolv'd 1. That the Devise may be Conceiv'd valid and soberly Consistent with Law and Conscience It cannot be Denied but in Law every one may do with his own as he pleases if otherwise the Law deserves to be Coated and Bibb'd to talk of Propriety If so why Publish'd against the Vote and Direction of the Devisor 2. Every one is best skill'd to take measure of Himself And what Judges Civilly Construed Modesty as to the oblivious sense perchance the Requester knew it more fit and Requisite to be taken literally Because of Imperfections best known to Himself not so easily Conceiv'd by others Therefore I cannot but Applaud the Judgment of the Emperour that held the Concealing more Civil than the Divulging The Common Law Favourable to Wills Testaments as the final and Consummate Acts of Mortality are very preciously Esteem'd by all Laws They are Alterable and may be nulled by a latter and invalidated by Eschetable Misdeeds yet they shall never be void if by any Consistency of Reason the Intent of the Devisor can possibly be Pick'd out As by a Case A. devises all that he hath to B. to do with it at his will and Pleasure Three Points 1. Whether a good Devise because not so legally Amplified according to the usual Form 2. Whether Lands and Tenements as well as Chattels do pass for want of apter words 3. What Interest passes whether an Inheritance Absolute or modal and Qualified Resolved 1. In other Conveyances Demur might be made what Right pass'd But in Devises the best shall be taken to fulfil the Will of the Testator Therefore the Bequest good 2. By the Intent a fee simple pass'd of all Reversionary as well as present Rights 3. It will be objected by the Learned that there want Essential words to create an Inheritance and haply not Publish'd Animo Testandi and so void 1. The Devisor shall be Presum'd to lie in Extremis and likewise Inops Consilii altogether destitute of Counsel And so Disabled to give in that Exactness of Form which in his Convalescence he might have done 2. It must be granted that the Testator was Cited by an irresistible Summons to his long Home and there to Abide And so cannot appear to Defend or Explain his own Act. Therefore what he Declares shall be taken Valedissime most favourably and forcibly for the Benefit of the Devisee Par. 47. The Inducement to this Freedom I Write not this Dogmatically to teach the Seniors in Wisdom or Overseers of State nor Captiously in finding Fault with the Law only Piteously out of Tenderness that the poor Languisher might be Reliev'd and the Law Explain'd And likewise that the Unchristian Abuses of Disturbing the Dead unless sentenc'd to Infamy by Law may be Redress'd whose Bodies when Alive were the
in Law yet Abusable the Incumbency consisting chiefly in Feasance or active services for should the Curate play the bestial Churle refusing Celebrare Divina to execute his Curacy Nonsolvence of his Dues on Course is Absolvable in Law and Nature Like an Annuity at Common Law granted pro Consilio impendendo and the Grantee refuses to give Counsel the Annuity ceases For that a Benefit ought to be mutual otherwise as a nude Compact it binds no faster then a Girdle without a Buckle This under submission is thought by many grand Lawyers the Statute of nature a Doctrinal instincted and reveal'd by Reason So many leaves has been spent on this Point And the 27 and 32 of H. 8. particularly the 2 E. 6. hath been so good a Protestant to settle the Payment in Peace that to warble more on this note were as useless now as an Attempt to drain or check the Sea SECT XIV Par. 102. To be Incumbent of Livings is neither Gluttonous nor Greedy PLuralities much annoys the Squemish as the Spawners of Idleness the Bane of Virtue Batlers over-fed prove Cromming Punchey's or meer Belly-Gods and Trivants in their Function Insiniteness is not favour'd in Law as excessive Damage Distress infinite An apsey stammer will escape this leash Wisdom surely was not nodding and Dormant in the 21 H. 8. nor in the least slumber or Drowsiness when this Duplicate or Faculty of Grace was ordain'd In Law the worthiness of Acts are measur'd by the object about which they are Conversant or by the Tendency unto the End for which they are fram'd Now the object was Transcendency of Parts the end Chaplets of Honour for indefatigable Merit But supernumerary Cures thwarts the Canons of Lateran Gawdies that repast not the Body but surfeit the mind tallow indeed the Sides but breaks the Back of Reason a Rudeness in Breeding beyond the Lording of the Popes tot quot or wadling Gutlings for some overgrown Paunches their Heads usually lank and homely furnish'd to gourmandise and engross the whole Table leaving no Room for many whose Parts intitle them to be Guests at the Holy Battles Besides non-Residence must needs march in it being miraculous to recubate and supply two Cures without ubiquity The squintings of Envy not Regardable Dis-foresting and Scarcity of Wood will neither Cool nor Chill thickscul malice Staves will be found to strike Virtue We agree the Statute to be stricti Juris taken very closely against non-Residents Faculty-Favours and Gulliguts and therefore if a Bishop be translated to an Arch-bishop holding both Dignities or a Baron created an Earl although both Honours be consolidated in one Person yet shall they not qualifie more then what an Arch-bishop or an Earl singly might have done And the 21 of H. 8. with some Exceptions confirm'd the Lateran Canon However when Popery was here in Pomp the King and others too might have dispens'd with it for stricto Jure at Common Law there was no Cession the first Benefice not void voidable only by the Lateran order As the Law of those Times of a secular Priest if he had taken Wife leaving Issue and died the Issue Inheritable the Coverture being not void voidable only by Divorce Par. 103. Priviledges of Favour ANoblemans Chaplain may be doubly Benefic'd with Cure without suing out any special License or Dispensation But I find it doubted by the 14 Eliz. whether the Law Spiritual will allow of the same If a Nobleman by his Letters Testimonial qualifie six when in Right of Law He should have but three the three first Promoted shall only stand and the rest put by otherwise the Clergy that of all men should not be Raking and Covetous but rather Liberal and Self-denying would be near as bad as Simonists Monopolists and Engrossers And the Intent of this Indulging Law Abus'd and Defrauded But I think were the matter well examin'd by the Quaerent the Plaint would cease without any more ado the Grapes are only sowre because not within the Pull of some pedantical Clutches Indulgences to Dignity May not Plenarty of virtue the Top-Pregnants of the George and Garter for goodly Excellencies claim by geometrical Justice the Priority of Choice with Benjamin's mess nay Plurals and Exceedings with a Trialty if Major Domo or Majesty think fit Besides should this Hill be taken down and laid flat Nobility would find some smart in the Tumble for Qualifications Priviledges of Honour inherent to Noblemen must fall to the ground incorporate with the Dust and be seen no more thus their stutting to level this Mount will defraud the Church of its Magnetism or fair Allurements to incourage the climing Graduates And also the Vpper Nobles of their Statutal Right to gratifie their Chaplains and promote elegant Desert SECT XV. Par. 104. A Curious Conscience Condemn'd ON the seriousest Debate within my self with the Aid of the strictest scrutiny in Policy the narrowest search into the sacred Tomes I cannot find but the Counsellor of the Soul Conscience may be as well over Touchey as Tender And therefore by the Commands of both ought to be modell'd after the Rules of State that is Law Positive Law mislik'd and Maunder'd at because mis-understood That the Eldest Son at Common Law should sweep stakes or go away with all And though he die living the Father his Issue by the Fiction of Representation still to be Entitled to All. And if the Parent chance to pop away without a legal Setting out or Disposing of the Fortune Then for the young Gallanter as some call him to flant and tear with a witness turn the Brothers and Sisters a Begging and sett the whole Covey And that in Conscience is Hard to some unreasonable with others Nature being an impartial Carver to All a Meliority then that is the primer Choice or better Part to the eldest were fair and sufficient But for one usually a Lurdane or the least worthy to loll and take up the whole Chariot and guzzle alone And the rest to foot it and starve To many Discernments is an heavier Doom then to the Mines or Gallies a very Garlick Law unknown to the very Blacks contrary to that of old which was but the bigger Stake or fatter Collup and not for one hovering Greedigut or gutling Hebler to Crom and Cubboard the whole Belly-Timber keep Spoon and Broth and All to Himself a very sodden Custom and not becoming Humane nature Par. 105. The Law justified and the Maunderer check'd and Refuted TO couching Gutlers lobbing in the Chimney Corner that would gladly Catch Fish without wetting the Foot with the snout continually in the Porridge Pot this Noble Law borrowed from the Saxon as per ch J. B. in 1 2 of Ph. and M. is thought smoothless and over-smart But with the braver Allay most Politick and Rare for the Preservation of Families the Quickning of Industry but chiefly for the Flourishing of Monarchy The Intirety or whole Dish question'd by the wisest Neither is this the Cloggy
of God ought any be suffer'd to adore their own Phantasms the swiftest slide to Perdition Ragers against Order not Tameable by Mildness And since our Restraints are not keen enough to quiet this Divine Rage whether we ought not to Contrive stricter Shackles to curb and tame unruliness let Ignoramus Judge The stifest Doves if Decimated will Bend rather then Bent. Aliud Plectrum Aliud Sceptrum Commutation or round Mulcts may reform since Deporting or Corporal Pains will not prevail The Pigeon knows no woe Till a Benting she doth go They Peacock themselves in the one but would hardly brustle or brag of the other when they return home and find all clean Swept nothing left to nurse their Cynical Zeal they will then bethink themselves and resolve that moderate Obedience is much better then traping Sedition SECT XVI Par. 120. Mis-conceivings and mis-Teachings Dissected and Resolved 'T IS misconceiv'd and Precepted too by some Tripanning Wits the Trumpets of Vproar and Drums of Rebellion That 1. No Theft ought to be Capital 2. No War can be lawful 3. Going to Law is not Warrantable 4. That the Centurion of the Soul Conscience is purely spiritual And strictly by Divine Right ought not to be Butted or bounded by Law 1. For the first because Pains in Law must be inflicted Egalment or equally to pace the Offence And there can be no Analogy between the thing stoln and mans life And to punish beyond the Damage is cruel and outragious 2. For the second That according to Christ if one cheek be smitten the other must be turn'd And that Revengement belongs not to Mortals 3. For the third That St. Paul in some Rage chides the Corinthians for Going to Law And enjoyns them rather to take Wrong and be Defrauded 4. For the fourth That 't is more then a Purpresture or foul Encroachment on the divine Priviledge the Conscience being a noli me tangere a kind of Deified Essence that must not be touch'd but by the Spirit of Souls the Celestial King And that Civil Laws bind no faster then Shashes and Garters that may be loosen'd and thrown by at Will Punishing Theft with Death Consists with Conscience 1. For the first I conceive the Mosaical Laws are not simply only modally not Absolutely only Directorily Binding to us therefore Christian States have decoll'd or taken off capitally Malefactors mulcted by them only by Retaliation or like Damage That there 's no Parity between Humane Life and the Purloin or thing stoln I agree it taken materially But in the Pilfery we must Consider not the Beguiling alone our neighbour but the Breach of the Peace And therein not only setting at naught but Resisting the whole State And that the Publick Peace is much dearer and valuable then any single Tear-grounds life no Brow form'd of Brass will deny But other Pains they say might be Inflicted not Death and in every petty slide the Peace is equally broken as in weightier matters Laws must be modell'd according to the Temper of the Clime And the Sword of Justice is soly at publick Discretion And therefore among the Arabians where Thieving if some write true is almost as much in use as Eating doubtless stricter Pains justifiable Hence our Hallifax Law may not be Amiss in favour of Property to promote Trade The Diversity of Laws By some Laws Stealing an Oxe or an Horse is not Felony But for a Capon or Pig I find the Stealer must be Pandue or suffer Death At Common Law originally Cutting on the Road no suspend ' per Coll. an Hempen Truss only a moral Failing or Trespass afterwards the loss of the Thumb Now by necessity in State a Tyburn Chook otherwise Property nor Life could not be preserv'd which Divines agree lawful So formerly Counterfeiting the Great Seal but Felony now Treason Rape at Common Law no ten Groats mulct according to Solon's Ordinance but the loss of Eyes and Testicles now by Westminster the first Felony By the Civil and Common Law to Steal a Sheep out of the Fold or an Oxe out of the Herd 't is Theft by Vlpian to rob a Dovecote 't is Larceny But at Common Law Beasts untam'd may be Taken without the Danger of Felony But if Tame and Domestical the Taker is by the Common Law no better then a Felon Maliciously to crop or cut a Vine by the Civil Law 't is Punishable as Theft Thus Pains vary according to occasion and necessity of Affairs by the Prudence of Divines and Lawyers At Common Law generally such is the Candour of Justice the Pain must resemble the Offence for if the Damage be assess'd too Excessively in Arrest of Judgment as outragious a new Trial on Course by motion will be Awarded to qualifie the Excess in Reducing the Damages answerable to the Trespass As Preventives against future Mischiefs sometimes Punishments are not Ouelment or evenly impos'd As the Statute for waste gives valorem vasti in Triplo treble Damage with the Place Wasted The like for Defrauding spiritual Duties treble Amends otherwise farewel Religion the Church Door may be nailed up signifying indeed no more then a Steeple-House when the Pastour is famish'd by substracting his Livelihood War ought not to be made but on just Cause 2. For the Ground of War Divinity and Politicks sever much in opinion the one limiting it Strictly for Wrongs first sustained the other takes it more largely conceiving a deliberate Fear of an Approaching Danger good Cause of unsheathing the Sword Which certainly by the Practice of State may warrantably set the Souldier on work It being Commendable in all Fray's to get the best end of the Staff in being before Hand And not by Supine Trifling to suffer Advantage to give us the slip War Lawful For the lawfulness of it for Defensive or Reparative Causes few Divines doubt for Avengement and Enlarging Dominion with little sleights meer Fumes of Honour there Coeli Injuria Coelo Cura an Appeal to Heaven is the only Cure I should Advise Every publick Abuse being Recorded above as done to the Vice-gerents of the Omnipotent And such are most Proper for the great Judicatory not Impleadable below But that the Calling of a Souldier is totally unlawful a common Conceit with the Cross-grain'd I cannot Agree For then the Centurion's Faith would not have been Applauded nor that famous Convert secur'd Himself against the Perfidiousness of the Jews by the aid of Sword-men War not fair and King-like without warning by Proclaiming In Peace if at Civil Warfare notice by Summons and Citations be peremptorily Requir'd that Dodgers take no Advantage with Covinous Tricks by Packing the Cards the like in Military by noble Spirits 't is thought Cowardly and mean to sneak upon the Injuror without Denouncing open Defiance for this I find the Authority an Ipse Dixit enjoyn'd by God himself David indeed for the Abuse to his Embassadours did wage War against the Ammonites But not without giving them notice of his Intention to
Property the one Subterraneous or Downwards of all Waters and Mines within its Bowels the other Supra-terreous or upwards of Aire and all other Benefits to the topmost Sphere For if an Hawk reclaim'd come into Sale and light on a Tree the owner cannot take his own Chattel without leave but will be a Trespasser which shews there 's Property in speculation of Law in the very Air And surely Waters are more Mainorable that is Manageable then Aire To enlarge this matter By a Decision Maevius hinder'd Caius from Fishing in a publick Water Two Questions 1. Whether the Obstructing were Injurious 2. Whether Damageable or suable at Law Pomponius liken'd the Abuse to the Denying one the use of the Common Bath or Publick Theater unto both by him All are promiscuously Entitled by Law He conceives the Sea in no Propriety but that all are joyntly Entitled thereunto As Tenants in Common And that Fishing is no more Prohibitible then shooting at Wild-Fowl in anothers Ground which by Vlpian is Receiv'd for Law by Common use and Practice although grounded on no Positive Law 'T is agreed one may have a special Right to a Part or Creek of the Sea and in case of Disturbance an Injunction to quiet the Possession is Purchaseable on Course which proves that Sovereignty may extend over Water as well as Land though it be seldom or never Decided by Law but by that unhappy Trial of the longer Sword The Sovereignty provable by usage at Common Law As by a Case E. a sole Trader born on the Coasts of Flanders Is married to F. a Citizen of London born in the Port of Deep Two Points 1. Whether E. were born within the Ligeance of England 2. Whether the Birth of F. shall not be Construed of a Ship Anchoring in that Port. Resolv'd I find both Points held in the Affirmative And that the Sea is within the Kings Ligeance and Parcel of the Crown of England The Immensity of Water makes no Signiory in Common The vast wideness or immense Mightiness of Sea-Room Elbow Room enough to satisfie All with Lawyers is a very babish Plea And makes nothing against Dominion For in Law there 's as much Propriety in the largest Fields as in Crofts or Pitles Pety Closes or small Paddocks Therefore the great Civilian though a Compleat Marksman in all Learning in this Point hath fail'd of his Aim and hits not the Bird in the Eye Par. 122. The Right of Chattels Discuss'd and Defended AS Lands are Adjudg'd in Law to be Bounded though Fenceless the like doth the Law conceive of Goods though Subdiale or out of Doors not under Lock and Key Yet in Construction of Law they 're Conceiv'd in Manual Custody by the secundary Conclusion of the Law of Reason to Conserve Property Hence in Law Regularly an Entry into the Freehold of another even but to Hawk or Hunt or barely to walk out to take a mouthful of Air without Leave of the owner or of the Law is not Congeable or safe And such Entry with the smallest Hurt of Fishing Waters or Cutting Grass is a Disseisin vi Armis The Prerogative or special Priviledge the Law ascribes to the House Beyond Controversie in Law every mans House is his Castle as well against violence as for his Repose For Instance If J. S. happens to be slain by J. N. se Defendendo or Permisfortune without any mischievous Intent Yet 't is Felony Goods and Chattels will be forfeited for the high Regard the Law hath to mans life But in Defence of his House if Theeves or any other Assailants are Knock'd on the Head 't is Iustifiable without any Forfeiture The neighbourhood may assemble to Guard an House without a Riot And in all Civil Causes at the sute of a Subject not Forcible even by the Sheriff But on Recovery in Ejectment by virtue of the Writ For after Judgment in Right and operation of Law the House is not the Tenants or Defendants but the Recoverors or his Assigns In brief as the House is the Cittadel or Fortress of the Owner so the Estovers or fuel appendant to the House the Lands plenarily His with the Conterminous or neigbouring Air and all Avails usque ad Coelum to the uppermost Elevation Conscience Commandable by Law 4. For the fourth I cannot conceive the Keeper or Guard of the Soul Conscience so nice and Immaterial But that Sovereign Power may limit it without Infringing the Royalty of Heaven By what hath been Premised comes up full to our Case for the Opiniatives in Religion a Depression is violently Requir'd by necessity in Prudence otherwise not only Religion but the whole Peace of the Nation will soon be in Jeopardy For by the self-same Fore-head they scoff and pick Quarrels at the Church they may upbraid and fall out in Earnest with the Civil Authority And in Hurling and Heaving at the one the other is desperately Abus'd and Despis'd A queasie Conscience mightily Tolerated By Martial Law Mutiny which is but Sedition in the Law Civil is Death if then the Mutineers that is the Seditious come off with Paring of the nails when the offence requires the Hand or Cropping the Ears when the Crime deserves the Head nay with pecuniary Pains or Exilement 't is most easie a vast Toleration Roysters Drownable and the Shipper not questionable By the Maritine Law in case of Jetsam maris for the safeguard of the vessel the Goods of the choicest value may be thrown into the Sea Nay the Mariners and Passengers if not conformable to the marine Rules may be thrown over-Board And no Appeal of Homicide by the Prochein Amey or next a Kin shall impeach this Judgement The like in a Calm of Regency if roisterous Obstinates will on design raise a Storm if they suffer in their Estates nay their Persons lie by the Lees they may praise their own Freekishness Militants most strict in Discipline By the Civil Law if the Souldier did but ward off some Blows 't was cashierable But if the least show of violence or resistance were offered 't was expiable with no less then Death Disorderly Crasiness Condemnable Thus by Reason in State may Blades of Rhadamanth the Tores Moss-Troopers Kidnappers with Burglars and High-way Lads be rewarded with the Gallows to prevent a publick Mischief And likewise Hocquetours and Suborners with Scoffers and Flatterers Rumpers and Roarers against Monarchy be scourg'd with Keener Tools then Bull-rushes or snipping the Lugs to maintain Property and Peace SECT XVII Par. 123. Church Disquieters Prosecuted not Persecuted LEt 's suppose our selves in the Schools and put the Wrangle into Mood and Figure To be dragg'd to Prison for Divine Worship is barberous and Persecution But our Church Wranglers as they give out are Duress'd for no other Crime Ergo Handled over Rudely and Persecuted Were the minor per se nota and evidently true 't were Hardness indeed and Persecution but the Law takes them as Rioters not as divine Communicants but as
doubted Laws how Expoundable 'T is said special Pleading and the Prudence of the Court on the Intent and Equity of the Law may do much It must be granted that such Exposition must ever be had of Laws as not to permit them to be Elusory in Exposing them to Mockery and Contempt And that Conditions are taken straitly in Law without Equity especially made to redress a publick Mischief And that 't is malum Prohibitum a Positive Law then a concessis the Breach malum in se and so not justifiable in Conscience in that Magistracy is resisted which according to the Apostle is Damnable Thus Regularly whatever is Prohibited by Law is forbidden by Conscience otherwise Laws are meer Cobwebs to be swept down at Pleasure as Ridiculous with some as the Dance of a Goose Par. 130. All Destin'd to Industry IF Bread must be earn'd by the Sweat of the Brow which is the Precept Divine in its proper Colours without a Paint the very Intent of this Law that is that those that refuse to work are graceless Lobs worse then Rogues even very Brutes and shall not eat on this ground may Equity and Charity too by Solons Scale with other Reasons of State be well thrust out of Doors the Law strictly observ'd no Duressor and the foolhanded Almner that gives but Leavings to the vaging Mendicant legally Duressed and thrown into the Hole with good Allegiance to Conscience For in Law Negative Statutes bind ad semper and shall ever be taken literally and exclusively with the Strictest But not with that closeness like a dry verbalist in pumping after Froth meer words for the best Paraphrase in Law is Consequence of Reason and not the Bark or outward Rind the letter Reason the best Interpreter of Law For Instance If the Sheriff return a Rescous against A. and B. by Baptismal names without Heeding the descriptive Statute an outlawry will thereupon lie without any further Additament A more home Case to lopping Scruplers dagger Reason and not to be bottom'd by a Festraw If A. strike B. the first of June the striker for a small stub of Gilt through the Intercedings of Friendly Natures to skreen his Fault and secure the Event is pardon'd the second of June all Misdemeanours then made safe out of Gun-shot The third of June the Bell Towls for B. then A. startles but the Ringing out puts him into a panick Quake lest he pay sauce for his Pot-valour But in Law He 's more afraid then Hurt for by the second of June by the 13 Eliz. the Felony was pardon'd in brief Niceties and verbal Extremities are no Favourites of Law Par. 131. The legal Distinction of Rogues BUT to return to our good Skim-Devil or as the 39 of Eliz. calls Him dangerous Rogue these ranging Beagles or lousie Vagrants are distinguished in Law into Rogues of the first and second Degree A Rogue of the first Floor when an iron piping Hot hath inch'd his Luggs to be banish'd or Committed to the Gallies By a latter Law to be branded in the left Shoulder with a Roman R. as the Notary of his Ranging His Shaging on in languishing Insolence is stil'd in Law Incorrigible or a Rogue of the Second Story to undergo a lusty swing at Tyburn to be secur'd against the Pity of Physick or Charity Par. 132. Relief to Laziness the worst of Profuseness NOW Relieving this wandering Villain or Roguing Infidel cannot be Casting Bread on the Water but more Profuse then Epostracism or mony Duck'd or Drak'd for in nature Consequently in Law a lazy-bone Shagrag or Gally-Slave Counterfeit of an able sane Bulk that will neither Row Plough nor Cart hath defac'd the Divine Image attainted his Soul And his wilful Attainder forfeited his liberam legem all Immunities and Easements in Law and Nature Render'd Himself even unworthy the Sun or Elements And after a Turn at Tyburn fit Carrion for the Crows Neither is this Sentence over Tart unbecoming a Christian Tribunal for the Image of God Consists not outwardly in Humane shape But inwardly in the Functions of the Soul to wit Industry Piety and Reason if these operations cease Cessat Causatum the Priviledge of the Divine Essence is lost And the Luggage of Bones and Flesh or semblance of Humanity which this Rambler or foul Lubber shags about with more regardless then the out-sides of dumb Animals the one affording sustenance the other the Cause of Famine For without labour our Pilgrimage here cannot be perform'd with the Benefit of the Heavens and the Installment of posthume Glory Relief then of this Canary Impudence or gabering Land-leaper doubtless is the worst of Prodigalities Victualling his Camp but fostering a Roguery Errant and so Cramming his Gob Causa Causati guilty of the Vagabondage Most Laws for Punishing Rogues and Sturdy Beggars were Repeal'd by 1 E. 6. and the 39 of Eliz. by the 7 Jac. and so the Law stands at present which is sharp enough if duly executed SECT XIX Par. 133. Vnpractical Actings ill Presidents and Dangerous to Resolve BUT to leave this loutish Patchcoat in his Swinish Ramble to mump upon Acorns by the 2 H. 6. I find a great Peer Condemn'd without Arraignment or Answer The like in 32 H. 8. one Attainted though living and forth-coming of H. Treason without being so much as call'd to Judgment The Legality whereof was scrupled and Demanded of the Judges whether the Act were void or no. With some Pause they adjudg'd it Perilous and of bad Example to Inferiour Courts But all Agreed if Condemn'd by that all-Commanding Court 't was Indisputable And it could not afterwards come into Doubt whether he were call'd to Answer or no. Though by M. Ch. and the 5 E. 3.28 E. 3. no Condemnation ought to pass without a quid fecisti or all due Proceedings at Law The like case was very Hard as some conceive against the late Favourite for Accumulation of Misdemeanours to take away his Life Degrading and Disgracing had been Severity Enough for an Accumulative Crime And truly by the Proceedings I do not observe any flat Treason clearly Prov'd But where Extremity of Passion infir'd by malice is the Prosecutor and sole Proof there little of Justice can be expected Par. 134. Vnlawful Acts Executed become Lawful THus in Law quod fiori non debet that which ought not of Right to be done Factum valet yet done 't is Good and of Force in Law The Civil Law Principle harps the same Tune As by a Decision A slave running away from his Master fled to Rome and there his Condition unknown arrivâ—d to the Dignity of Pretour Two Questions 1. Whether he were truly and lawfully Pretour a Bond-man being uncapable of that Office 2. Whether all Acts and Decrees made by Him were of Force and Binding Resolv'd in both Quod Tenent facto 1. Though the Chancellor was Promoted by Error the Office not void 2. Therefore the Decrees very Forcible and Just Par. 235. The validity of Prohibitible