the Law And therefore said D. 8. cap. 18. very well If it were ordained by Statute that there should be no remedy upon Equity in Chancery nor elsewhere such a Statute were against reason and conscience and certainly so it were He approves the use of any thing that labours to take away the abuse I am not ignorant that the Kings of this Nation have ever had their Court of Chancery and their Chancellor or Lord Keeper of the Great Seal nor am I wholly unknowing of the power and Authority of that Court In the Chancery saith my Lord Cook in his Jurisdiction of Courts there are two Courts one ordinarie Coram Domino Rege in Cancellaria in which the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line of the Laws and Stat. of the Realm Secundùm legem consuetudinem Angliae and with this Court I purpose not to meddle as being not within the limits bounds of my present discourse But the other Court that is extraordinary according to the rule of Equity secundùm aequum bonum and that is my work to treat of and that you may see the necessity of this Court it is Officina Justitiae out of which all Original Writs all Commissions which pass under the great Seal go forth which great Seal is Clavis Reipublicae and for these ends this Court is always open And in this the Chancellor or Keeper was sole Judge but he had power if he pleased to assist himself with the Judges And now I shall take freedom to let you know what the ancient rule was for this Court of Equity which is very good Three things are to be adjudged in a court of conscience Covin Accident and breach of Confidence All Covins frauds and deceits for which there is no remedy by the ordinary course of Law Accident as when a servant of an Obliger Morgager c. is sent to pay the Monies upon the day and he is robbed c. remedy is to be had in this Court against the forfeiture and so in the like case The third is breach of trust and Confidence of which you have plentifull Authorities in our Books but of this this tast onely shall suffice and now to come to that which I intend which is the present practise there and therein I shall not meddle with the many great Officers and their fees which is a very great burthen to the Common-wealth because that I do believe that they are in a way of redress But the first thing that I shall touch upon is the multitude of Suits that are there pending so that it is impossible without the Commissioners were more than men for them to receive a convenient dispatcht I do acknowledge their great and indefatigable pains in that high and extraordinarie Judicature for which the Common-wealth stands very much obliged to them yet I know as men they cannot exceed their strength and ability This Court hath received a great addition not of Jurisdiction but of practise by taking away of the Court of Wards that great and oppressive Court as likewise by the fall of that unnecessarie Court of Requests So that the business of this Court is so great and doth so much increase dayly that the Common-wealth will in a short time very much suffer through inevitable not to be prevented delay of Justice Besides it is not unknown that many Suits are commenced there upon a suggestion of Equity meerly false on purpose onely to hinder or delay the execution of Justice at the Common-Law this likewise much advances the pâ—â—ctice there and is a very great prejudice to the Common-wealth by reason of such unjust and causless vexation I hope no man will be so unreasonable as to misapprehend me here or to judge that in any thing I have said I should lay the least imputation of fault upon the Commissioners no I do not I cannot I know that all men who have to do in that Court do plentifully partake of their Justice yet I must say as before that it is impossible for them through the infinite multiplicity of business there to give a convenient dispatch to all Again it seems to me to be a great grievance and burthen to the Common-wealth to have a resort in matter of Equity from a Court of Law to Chancery We say in Law frustra fit per plura quod fieri potest per pauciora it is vain and idle for a man to go about when he may find a neerer way home The Law loves not circuity of action why then should men be forced to a Court of Equity when the case is pending before the Judges at Law and why may not the matter of Equity if any be determined by them without such further trouble or wheeling about which is no small charge and expence to the people I know not but that they are in such case the most proper Chancellors and this will prevent a very great mischief and vexation to the people which I have shown before and that is of resorting to the Chancery upon pretence of Equity whereas in truth it is onely to delay Justice a thing then which nothing more frequent and usual Besides it is no strange thing for the Judges to make themselves Chancellors too for I have known this case frequently in practice that the Judges in debt upon a penal Bond have upon a motion forced the plantiffe to accept of the principal with costs and damages and I am sure the penalty in strictness of Law being forfeited this is judging and determining according to Equity and why they may not do it as well in other cases I understand not further as I have said before The Chancellor may call the Judges to his assistance and peradventure he will call those as is most proper before whom the case was pending at Law is not this then a strange circuitie of action why might not the matter of Equity have been as well determined by the Judges and so this great vexation have been prevented But to this it will be said that this would be a total destruction of the Court of Chancery and a gross confounding of Law and Equity to make the Judges judge of both To this I answer that we are wholly to respect the good of the Common-wealth and what tends most that way certainly is most just and reasonable other relations ought to be subservient to that that is equal and good ought onely to be look't upon But further though this will much abridge the practice there yet it will not take it away and I am certain the practice there needs some abatemeÌ„t or at last there will be an extream failer of Justice Not destroy it for there be many cases which are so meerly and absolutely equitable that they have not the least relation to Law nor can any action in such case be brought at Law as in all your cases of discovery and the like So that
did take away the intention of the King To which I answer that they are so termed by that Stat. not in relation onely to the defeating of the Kings intention but because they are so in themselves fained and untrue Besides are they so termed because the intention of the King was thereby defeated why where there is the same reason there ought to be the same Law and in this case is not the apparent intention of the donor in his gift defeated by such recovery contrary to the Stat. which saith that the will of the donor shall be observed But it is further said in that case that confirmat usum qui tollit abusum and that it was a barre in that case before that Act of 34. H. 8. made to the contrarie certainly if it were an abuse in the Kings case it is no other in a common persons and it were very happy if an Act were likewise made against them in our case that we might not have them known for the future For the Stat. of 11. H. 7. when a Woman advanced by the Husband with a competent joyncture in tail suffers a recovery to barre the issues this may well be said to be by covin. Now I beseech you weigh the cases in the ballance of reason and then judge whether they differ or no Is it not as much covenous for any Tenant in tail who takes such Estate to him and his issues to disherit his issues by such recovery contrarie to the said Stat. For the Stat. of 32. H. 8. and 34. El. of a common recovery against Tenant for life it may well be termed covenous and by collusion To this I shall say no more but this that certainly in our case there is as much of injustice covin and collusion by suffering such common recoveries as in any of the former Further it was said by those that argued against these recoveries That that opinion that a common recovery could not be restrained by condition or limitation was new and of late invention and never heard before Sir Anthony Mildmayes case 6. Rep. fol. 40. for it was admitted to be restrained in the case of the Earl of Arundell 17. El. Dyer fol. 342. 343. and in the argument of Scholasticas case 12. E. Com. 403. the said point of restraint of a common recovery was never moved here observe Reader another new invention that these recoveries cannot be restrained by any condition or limitation so that there must be such a power given to support these recoveries though against the Letter of the Stat. and the Will of the donor that no humane invention can prevent As to the Earl of Arundels case it is said that nothing is spoken to it by those who argued the case and so no Authority To this I say that certainly had the Law been conceived to be such that such recovery could not be restrained by condition it would have been then urged which rather concludes on this part As to Scholasticas case all that my Lord Cook sayeth is this he much respects the reporter and attributes due honour and reverence to the Judges but amicus Plato amicus Socrates sed magis amica veritas Though that it was not then thought on by the learned men of that time yet my Lord Cook will have it to be Law and prefers his opinion which he calls truth which truth so called appears to be onely a new invention before the contrarie supposed Law of that time And it is further said in Portingtons case that none ought to be heard to dispute against the legal pillars of common assurances of Lands and inheritances of the Subjects And it is likewise said that at a Parliament holden in the raign of Q. E. in Vernon and Herberts case debated before the Lords of Parliament Hoord Counsel with Vernon invaied against these recoveries who was then reproved by Dyer Ch. Just of the common pleas who said that he was not worthy to be of the profession of the Law who durst speak against common recoveries which were the sinewes of the assurances of inheritances and founded upon great reason and Authority sed non omnis capit hoc verbum By this you may easily judge what most supported this assurance for if Lawyers must be silenced it is no wonder if common recoveries pass for Law I know I shall not pass uncensured as I have said before Hoords case will be mine with advantage but it shall not at all disturb my rest for having truth of my side I care not who is against me and certainly that Councellor that is a Councellor of the Law deserves the sharpest reproof and since non omnis capit hoc verbum as is said before let me not be rebuked without reason and if any one can convince me in that I shall with all humility submit to his judgement Lastly it is said that D. 8. lib. 1. cap. 26. approves common recoveries to bind as well in conscience as in Law For my part I conceive that the better opinion there is against them and so I believe any man will judge that shall read the Chapter I shall faithfully recite the disputes and leave it to judgement and therein first the manner and practise of suffering such recoveries The Demandant shall suppose in his Writ and Declaration that the Tenant in tail hath no Entry but by such a stranger where neither the Demandant nor the said stranger never had possession of the Land whereupon the Tenant in tail shall appear and by assent of the parties shall vouch the common Vouchee whom he knoweth to have nothing to yield in value now Reader judge whether this be not a meer fiction of a recompence in value and the Vouchee shall appear and the Demandant shall declare against him whereupon he shall take day to imparle in the same Term and at the day by the assent of the parties he shall make default upon which because it is a default in despite of the Court the Demandant shall have judgement to recover against the Tenant in tail he over in value against the Vouchee And this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence for by presumption the Vouchee may purchase Lands Thus you have the practise of a common recovery which is nothing else but an invention to cut off intails which hath been the ruin of many a family But it is reasoned that although such recoveries in respect of the multitude of them be spared that they stand not with conscience fo◠by the Stat. of 13. E. 1. when the Ancestor is dead intailed Lands o◠right belong to the Heir for that he is Heir according to the gift If the◠thou be commanded not to covet 〈◊〉 Fortiori that thou do not withhold thy neighbours house c. And although it may be objected that tha◠which is ordained by the Law may be adnulled by the Law there is not here like Authority
Statute of Merton 20. H. 3. cap. 9. confirmeth this opinion Had there been a reason given in this Statute or by the Lords to make good the use and approbation it had been somewhat to convince a man of the Justice of this Law but since there is none I hope that a nolunt mutare shall not make the Law one whit the more reasonable it is not what we will not do but what ought to be done that ought to poize in judgement Nevertheless I submit all to graver judgements The next thing that I question is Whether tryal by Jury as it is now in use be agreeable to reason and for the good of the publick or not WHen I had seriously considered with my self how great a burden lies upon such mens shoulders who are of a Jury and of what great importance this way of Tryal is to all men of this Common-wealth the lives and fortunes of all men being subject and lyable to their verdict and judgement And when I had further thought with my self that although this be the most exact and equal way of Tryal in the World for men to be judged by their Peers and that not by one or two onely but by 12 men of the Neighbour-hood And therefore saith my Lord Cook upon Litt. 1. a Jurer ought to be dwelling most near to the place where the question is moved and such are presumed to be best conusant of the matter of fact 2. He ought to be most sufficient both for understanding that his ignorance may not mislead him competency of Estate that he may not be corrupted through poverty or necessity 3. He ought to be least suspitious that is to be indifferent as he stands unsworn and then he is accounted in Law Liber legalis homo otherwise he may be challenged or excepted against and not suffered to be sworn The most usual way of trial saith he is by twelve such men it were well if they were for ad quaestionem facti non respondent Judices And matters in Law the Judges ought to decide for ad quaestionem juris non respondent Juratores and certainly this is the most equal and just way of Trial. For the Institution and right use of this trial by twelve men and wherefore other Countreys have them not and how this trial excels others see Fortescue at large cap. 25 and 29. Again the Law hath taken such care for equalitie and right in such trials that the Law hath inflicted a most heavie doom and judgement in case they give a false verdict by way of Attaint against the Jurie for which you may see Cook upon Litt. fol. â—94 and Fortescue cap. 26. Yet for all this when I again consider what weak and ignorant Juries are for the most part returned I cannot sufficiently wonder and lament that mens lives and fortunes should depend upon such mens verdicts That such men as many of them are who have not had so much good literature as to be able to read should be Judges and disposers as upon the matter they are of other mens lives and estates But here it may be objected by some that the trials are before the learned Judges of the Law who may direct them and satisfie them in their doubts and therefore there is no such fear of injustice as is supposed This I conceive is sufficiently answered before in that the Law is that the Jury are the onely Judges of matters of fact and in that they may judge according to their own conscience and are not bound in such case to ask advise of the Judges or if they do they are not tied to follow it nor in truth ought the Judges in such case to direct them though in matter of Law of which they indeed are the proper Judges they may and ought to do it their work is onely truly and faithfully to repeat the evidence on both sides and so to leave it to the Jurie My Lord Cook saith that in ancient time they were twelve Knights and Fortescue saith that the Juries are very oft made specially in great matters of Knights Esquires c. cap. 29. fol. 67. Though this be of as high consequence and concernment to the publick as may be yet I shall not desire that there should be twelve Knights or twelve Esquires to every Jurie for so in defect of them there would be often a failer of justice and besides some cases are so small and inconsiderable in themselves that a mean and ordinary Jurie may be sufficient for that purpose But this I shall humbly desire that in all cases which touch a mans life or his estate to any considerable value there may be twelve able understanding Gentlemen returned of the Jurie such as are known in their Countrey to be men of competent worth for so great an imployment This would very much advance right and determin disputes and controversies which now frequently are again revived by reason of the verdicts of weak and unable Juries And it were happie for the publick if an Act were made to that purpose The next thing I shall discuss is the loss of life in case of Theft and the forfeiture thereupon In which the question is Whether it be consonant to the word of God or reason that a man should lose his life for Theft and should incur so great a forfeiture and penaltie as loss of all his estate and corruption of his bloud IT is true there is a commandment against it Thou shalt not steal but there is no penaltie inflicted upon those that do But by the Judicial Law Exod. 22. vers. 1. If a man steal an Ox or a Sheep and kill it or sell it he shall restore five Oxen for the Ox and four Sheep for the Sheep and vers. 4. If the theft be found with him alive whether it be Ox or Ass or Sheep he shall restore the double So that by that Law there ought to be a restitution but no life was then in danger But to this it will be said that that Law was given to the Jews onely to observe and doth not extend to us To this I say that had it been an equal and just Law to suffer death in such case without doubt it had been imposed upon them to observe for in the Chapter before Murder is made Death life for life that is equal punishment but life for any wordly or temporal substance whatsoever holds not the least equalitie of proportion for one mans life is of greater value and esteem than all the treasure upon the earth Man is the image of God and therefore certainly we ought to deal tenderly with his image And if God who hath the sole absolute power and dominion over all his creatures thought not fit to give the Magistrate who is his Vicegerent here upon earth such power over the lives of men but hath reserved it to himself except in case of murder how dare then any power or authoritie what soever usurp it The
Civil Law if we may believe Fortescue is more agreeable to the Word of God for he saith cap. 49. that the Civil Laws do judge open Theft to be satisfied by the recompence of four fold and private Theft by the recompence of double so not to suffer death by their Law I do not write this to incourage men in this heinous crime which is too too common in these times no far be it from me so to do for I know if there be not a severe Law against it there will be no injoying any thing that a man hath the Law of propertie will be of little force But that there may be some other way of punishment as by Banishment slavery or the like which may be as effectual to terrifie men keep them from it so that we do not take away the life of man over which there is no jurisdiction given in such case by God we having no precept rule or warrant for it And now to me the forfeiture and penaltie in such case is no less unreasonable is it not too much to lose the life and yet will not that satisfie but thereby also his bloud be corrupted and all his estate forfeited so that his issue is not inheritable to him nor to any other ancestor nor can this corruption of bloud it is so high be restored otherwise than by Act of Parliament And if he were Noble or Gentle before he and all his children and posteritie are by this made base and ignoble in respect of any Nobilitie or Gentrie which they had by their birth For my part I think there cannot be a more rigid and tyrannical Law in the world that the children should thus extreamly suffer for the crime and wickedness of the Father the innocent for the nocent It is true that as the Apostle saith Rom. 5. that by one man sin entered into the World and death by sin but he goes further and so death went over all men in whom all men have sinned We all sinned in Adam therefore no wonder if death fall upon all God hath the supream Soveraign power over all his creatures and so may inflict what punishment he pleaseth upon them for their sins who dares question it or say it is unjust and yet God deals not thus severely with man for in the 18. of Ezek. he reproveth the Israelites for using this Proverb The Fathers have eaten sowr grapes and the childrens teeth are set on edge and saith they shall use it no more for that Soul that sinneth it shall die and after verse the 20. The same Soul that sinneth shall die the Son shall not bear the iniquity of the Father c. Thus you may see the great mercie of God whose greatest severity were but Justice Doth not this extreamly condemn the injustice of that Law which so severely punisheth the Children for the transgression of the Father a wicked Father may have a good Child and shall such a one be ruined through the wickedness of the Father his Estate wholly lost and not onely disinherited through his corruption of bloud as to his Fathers Estate but also made incapable of taking any thing by descent from any other Ancestor a more rigorous Law certainly was never made But I know it will be said that the reason of the severity of this Law is the more to deterre and affrighten men from this sin which is so frequent amongst us ut metus ad â—mnes paena ad paucos c. To this I answer that it is not Lawfull nor warrantable for men to make unjust and tyrannical Laws to keep men from sinning and to put them in execution punish the offending Father but not the innocent Children The custom of Gavel-kind is more reasonable for though the Father be hanged the Son shall inherit for the Custom is the Father to the bough the Son to the plough I shall conclude it with this that I hope one day to see this Custom become the Common-Law of England the next thing I have in consideration is touching the debts of Infants under the age of 21 years and therein I propose this question Whether it be a just and reasonable Law that Infants under the age of 21 years shall not be charged with their debts FIrst we are to know what the age of discretion is for Man or Woman What full age The age of discretion for a woman in judgement of our Law is 12. for a man 14. full age is 21. and under that age they are said to be Infants in Law and under that age they have not power to dispose of their Estates not are they liable to pay their own debts It is true that for necessaries as Cloaths Dyet Schooling the like they are liable but for those neither they cannot give a penal bond a Bill they may and it shall bind them In general an Infant may better his condition he can not make it worse this I confess to be Law yet it seems very hard to me that an Infant should not be liable to pay such debts as he shall ow for any thing had or received after the age of discretion especially when I consider what the Law is in other cases of Infancy By custom he may make a lease at his age of 15. and it shall bind him Cook upon Littleton fol. 45. b. Nay further by custom he may make a Feoffement at 15. years 5. H. 7. 41. 11. H. 4. 33. Now no custom is Lawfull that is not reasonable And yet further an Infant of the age of discretion nay under may suffer death for Murder or Theft nothing more common 3. H. 7. 12. an Infant betwixt 10. and 12. gave a man several wounds till he died and then he drew the body into the Corn for which he was convicted but it is true that judgement in that case was respited for his tender age but many Justices that he was worthy of death Note an Infant of 9. years killed another and it was adjudged that he should be hanged quia malitia supplet aetatem But execution was respited to have pardon see the Assises A Woman Infant within age killed her Mistris and was burnt for it see likewise the Assises Again an Infant shall not avoid a marriage at the age of discretion made and contracted by him Cook upon Litt. fol. 79. Now I argue thus if an Infant may do the greater why is it not reason that he should do the less If he may be chargeable for things of a much higher nature why not for those that are of a lower By custom he may sell his Estate By Law he may suffer death for Felony and may contract Matrimonie things of much greater consequence to himself why then in reason should he not be liable to the payment of his debts my Lord Gook saith that argumentum a majori ad minus an argument from the greater to the less is a good argument in Law Besides he is as much obliged in