to others But the first thing I shall consider is what the judgement which the foresaid Act calleth fort dure is and then what the reason should be that so severe a judgement is given in that case and then we may easily judge whether it be consonant to reason and conscience The judgement is that the Man or Woman shall be remanded to the prison and laid there in some low and dark house where they shall lie naked on the bare earth without any litter rushes or other clothing and without any garment about them but something to cover their privy parts and that they shall lie upon their backs their heads uncovered and their feet and one arm shall be drawn to one quarter of the house with a cord and the other arm to another quarter and in the same manner shall be done with their legs and there shall be laid upon their bodies iron and stone so much as they may bear and more and the next day following they shall have three morsels of Barley bread without any drink and the second day they shall drink thrice of the water that is next to the house of the prison except running water without any bread and this shall be their dyet untill they be dead Well might my Lord Cook stile it as he doth after a strange and stupendious punishment for when I first read it I was even amazed and astonished at it that such a Law should be tollerated amongst Christians much more amongst Protestants strict professors of Christianity putting to death with such aggravations of torture and miserie is rarely to be heard or read of except amongst Heathens Turks and Infidels Here is a dying three manner of wayes though all but one death which will at last nonplus Tyranny and put a period to all such like tortures Onere fame frigore by weight famine and cold and therefore saith my Lord Cook this punishment if it were executed according to the severity of the Law should be of all other the most grievous and fearfull I confess I have not been an eye-witnes nor would I for all the world of any mans suffering in that kind though it be every years experience of some mēs undergoing that death and I do believe according to the severity of the Law too for it lies not in the power of the Judge much less of the executioner any way to lessen or mitigate it after judgement past But now for the reason of this heavy and terrible judgement which is according to the foresaid Act because he refuseth to stand to the Common Law of the Land that is Lawfull and due trial according to Law and therefore his punishment for this contumacy without comparison is more severe lasting grievous than it should have been for the offence of Felony it self and for the Felony it self it cannot be adjudged without answer A very strange thing that a man should suffer ten fold more for his wilfull obstinacy in refusing to put himself upon a legal tryal than he should for his crime or offence which is a hundredfold greater more for the lesser than the greater offence more for contumacy than murder The punishment ought to agree and to hold proportion with the offence and not to exceed it The rule of Law is that a man ought to be punished according to his offence and the Statute of Magna Charta cap. 14. is that a man shall be punished secundum modum delicti according to the manner of his offence but certainly here is not the least equality or proportion between the offence and the punishment Contumacy the offence pressing and starving to death the punishment It is true that God having Genes 9. 6. commanded the Murtherers bloud to be shed by man the Murtherers not the Thiefs and thereby enstated the power of the sword on the Supream Magistrate not onely permits him and makes it Lawfull for him so to punish such malefactors but commands and requires him so to do as his Minister to execute wrath for he ought not to bear the sword in vain but this Commission is not given to him absolutely arbitrarily to use as he list though he may take away the Murtherers life yet he hath no rule nor Warrant to take it away by cruel and exquisite tortures and torments that is praeter mandatum beside the command Mercie is one of Gods attributes and even the very sum and body of the Scripture therefore Tyrannie must needs be against the mind and will of God religion Christianity Taking away mēs lives by cruel tortures is Diabolical and Heathenish it is the Divils part to torture and torment and it is no strange thing for wild beasts to be cruel but that homo homini daemon one man should Act the part of the Divil with another or that Christians should be cruel this is contrary to our education and profession The Magistrate for prevention of sin and wickedness may severely punish and correct yea and in some case take away the life too but not Tyrannically Barbarity and inhumanity Suits not with Magistracie The Prophet David cals Magistrates Gods and certainly they approch then nearest to the deity when they shew mercie Questionless it was a high and great aggravation of the sin of the Jews in torturing of our blessed Saviour by that most cruel death of the Cross But to this it will be said that that was wholly unjust in the Jews not so here because it is an execution of Justice To this I say that it is in no case just to take away mans life by lingring and cruel tortures this turns the execution of Justice into sin and makes the Law it self unlawfull But it may be objected that it is the parties own fault that he stands Mute and will not plead to be tried volenti non fit injuria seeing he will so suffer there is no injury done him and therefore not to be pittied To this I say let him suffer death for this his obstinacie as he should if he had been tried and found guilty and as the Law was if we believe some before the foresaid Statute which is a satisfaction equal to the highest crime or offence whatsoever against man but let this cruel and barbarous Law of Paine fort dure be taken away and expunged out of our Books never to be revived Silence may contract guilt but ought not so to aggravate punishment and certainly a mans folly or obstinacie will not excuse or extenuate the Magistrates cruelty But to conclude I cannot pass by that gracious and mercifull Act of this present Parliament which hath taken away that barbarous and tyrannical Law of quartering of men in case of treason and doubtless this Law if strictly examined will be found as Tyrannical if not more than the other and if it shall appear that there is as much reason to take away this as that I hope it will not continue long after it I shall say no more
that they be not one day cast into that black dismal and infernal Lake from whence there is no redemption But I know that it will be objected to me that debtors may conceal or secretly convey over their Estates to cousen their creditours which cannot be discovered so that if their persons may not be imprisoned creditors shall be wholy without remedy To this first I say that it is a rule in Law that Nullum iniquum est in lege praesumendum presumptions of fraude or deceite are not permitted in Law that is so just that it conceives all men to be just likewise till there appear something to the contrarie and why should our thoughts be otherwse but it is so men of corrupt lives judge all others like themselves I answer further that such as are resolved to be dishonest it is not imprisonment will make them otherwise and in such case if you take their persons you are further from gaining of your debt than before for you cannot then fasten upon their Estates and let not the innocent suffer with the nocent the willing and unable with those that are able and unwilling Besides how often is imprisonment made a meer cheat even by the prisoners themselves to defraud their creditors they willingly submitting themselves to a prison to preserve their Estates But it is further objected that if imprisonment of mens persons for debt should be taken away it would be a great hinderance to trading which is as it were the soul of every Common-wealth for then men would not dare to trust one another To this I answer trading driven upon credit seldom thrives And I may safely say that many men who are now beggers had been rich men had they had less trust and confidence little profit without is more than great with hazard and danger I know no reason that any man should be trusted who hath not wherewithall to pay and certainly men in general then thrive best when they trust least and for my part I judge that man worthy to lose his debt who trusts to the security of a mans person onely Again Lex respicit finem the Law hath an eye to the end of all actions and as this is not the next way to get mens debts by the imprisonment of their creditors persons as I have said and proved before So I beseech you to consider who it is that gains by it it is certain the creditor seldom if ever gains his debt the sooner Why the onely gainers are Sheriffs Bayliffs Serjants Goalers and Keepers of prisons c. these are they that grind the faces of the poor that add affliction to affliction and live upon the ruins of others these are the mala necessaria the bloud-suckers the leeches of the Common-wealth evils they are and great ones too I am sure of it but did I say they were necessarie I must recall that word otherwise I must of necessity approve of the Devil and his cursed instruments and Hell and a prison have no small resemblance onely there is more hopes of getting out of the one than the other A silver key so long as a man hath it will unlock the prison doors and set him at liberty but if he shall make default in payment of his rents or other extortions exacted of him by the keeper and his bloud-hounds he shall quickly be hunted after and fetched in again and there remain untill he hath satisfied them that being done he shall be restored to his former liberty but if his purss be not of considerable magnitude it will soon be emptied and then no longer pipe no longer dance the creditor shall be sure then to find him and now nothing remains but the body which the creditor so unwisely made choice of for satisfaction of his debt This I know to be the constant course of many Keepers of prisons and the conditions of their prisoners and whether this be the way for creditors to get their debts or no let any sensible understanding man judge But lastly it hath been said by some that it doth indeed stand with reason and conscience that where a man becomes unable through the Act or hand of God without any Debauchery or default of his own to satisfie his debts that in such case he should not be detained in prison but if through his own default in such case he deserves no mercie To this I say under favour that though he be so impoverished through his own default it is very hard and to me unreasonable that he should so suffer First because that this is not Gods Method or way of dealing with poor sinfull man for if God should inflict the severity of his Justice upon us but for one of a thousand sins that we commit against his Divine Majesty no flesh living could be saved why should we then so exact one upon another as not to forgive one fault or transgression of our Brother are we not required to be mercifull as our heavenly Father is mercifull and do we not dayly pray that God would forgive us our Trespasses as we forgive them their Trespass against us how then dare we harbour malice in our heart against our Brothers since except we truly forgive we are not to expect forgiveness consider with thy self how much thou art indebted to God and if he as in Justice he might should require that great debt at thy hands nay but one of a Million thou must inevitably go to prison I to that prison to which all earthly sufferings and torments are as nothing from which there is no redemption to all eternity and therefore forgive as thou dost expect to be forgiven Again this is not the way to satisfie the debt which is the end of the Law in such executions but to ruin the party who had he is Liberty might leave his former vanities and ill courses and live to be able to make satisfaction of his debts God happily waits for thy reformation all thy life do thou as in duty thou art bound deal so likewise with thy Brother I shall conclude all with this one word let us consider those that are in bonds as if we were in bonds together with them The next I have considered to treat of is the Chancery and its power and therein I shall propose this short question Whether the High Court of Chancery as the practice is there be not a very great grievance and burthen to the Common-wealth IT is not my purpose or the scope of my indeavour to speak or write against a Court of Chancery I know there is an absolute necessitie of it Equity said D. 8. lib. 1. cap. 16. is a right wiseness that considereth all the particular circumstances of the dead the which also is tempered with mercie and such an Equity must be observed in every general rule of the Laws of man for Summum jus summa injuria viz. If thou take all that the word of the Law giveth thee thou shalt sometimes do against
to most men which causes dissentions amongst men in Families Kingdoms and Common-wealths wherefore I could wish that every man would take up the saying of the Prophet David and carefully observe it I will take heed to my wayes that I offend not with my tongue I will keep my mouth as with a bridle But now I beseech you give me leave and I shall in a word inform you how these frivolous contentious actions may be very much abated if not wholly taken away Let no words be actionable which do appear to have been spoken in choller and passion or if actionable yet let the Plaintiff recover no more in damage than he can upon Oath make appear that he was really and actually damnified by the speaking of them and if this were provided by Act of Parliament these actions would be as strange and as rarely brought for time to come as they were in former ages for nothing incourages the bringing of them more than the intollerable unjust and excessive damages usually recovered by them I shall conclude with this Though the tongues of men be set on fire I know no reason wherefore the Law should be used as bellows to blow the coals The next thing that I am to consider is concerning actions that die with the person and therein the question is in short but this Whether it be a reasonable Law that actions should die with the person THe rule is Actio moritur cum persona now what those actions are that shall die with the person is the thing to be inquired into and first negatively Quicquid oritur ex contractu vel conventione non moritur cum persona whatsoever arises by way of Covenant or contract doth not die with the person Affirmatively all actions that are said in Law to be meerly personal as Trespas debts upon simple contract Battery Words Debts upon an escape against a Keeper of a prison c. and such in Law die with the person and no action can be brought against the Executors This seems to me to be a very hard Law and a failer of Justice that I should suffer against Law and that the death of him that doth the wrong there being no Act or default in me should take away my remedy It is true that the Law in case of a Bond Covenant or the like binds the Executor though he be not named and what is the reason because the Executor represents the person of the Testator why then upon the same reason should not a personal tort of the Testators as well bind the Executor Besides it is a rule in Law that the Act of God as it is here in case of death shall prejudice no man why then in such case should it take away my action Again there is another rule in Law that Lex non debet deficere conquerentibus in Justitia exhibenda the Law ought not to be defective in exhibiting Justice to complainants But in this case the Law is defective in justice if the inevitable fate of death shall take away my action There is likewise another rule in Law that Lex nulli facit injuriam the Law injures no man but I say in this case it injures me if it deprives me of my action by the death of the person In Fine where ever there is a damage there ought in reason to be a satisfaction for it which ought not to be taken away or otherwise discharged but by my Act that am damnified which I submit to judgement The next thing that I shall debate is concerning Paine fort dure and in that propound this question Whether the Law or Judgement of penance or pain fort dure against a man who is indicted of Felony and stands Mute be agreeable to reason and conscience or not THis Law or Judgement of penance or pain fort dure is that which we commonly call pressing to death which is used in such case where a man is indicted of Felony upon matter evident and proveable for in case of an Appeal this Judgement cannot be given nor doth it hold in case of Treason or petit Larceny and thereupon stands Mute in such case saith the Statutâ— of Westminst. 1. cap. 12. solent mises en la prison fort dure c. that is they shall have strong and hard imprisonment By the way I shall here observe that the words of this Law do not extent to pain but onely to fort dure to hard and strong imprisonment and therefore since that Law I cannot understand the ground or reason of that cruel and heavy judgement which is given in such cases hard and strong imprisonment may be inflicted upon such an offender according to that Law without pressing and starving to death by famine and cold nor can I conceive those words to extend to death but admitring the Law were such I shall that all may understand the reason of the Law before I go any further let you know what it is to stand Mute and in what case a man may be said to stand Mute and what the Judgement thereupon is My Lord Cook in his 2 part of his Institutes fol. 177. upon the foresaid Statute saith that a man may stand Mute two manner of wayes First when he stands Mute without speaking of any thing and then it shall be inquired whether he stood Mute of malice or by the Act of God if it be found by the Act of God then to proceed and the Judges to make inquiry and to allow him all pleas as if he had not stood Mute And the words of malice are remarkable for it may be the prisoner in truth cannot speak and yet being not Mute by the Act of God he shall be forthwith put to his penance as if the Delinquent cut out his own Tongue and thereby become Mute Another kind of Mute is when the prisoner can speak perhaps pleads Not guilty or pleads a plea in Law and will not conclude to the enquest according to the foresaid Act or speaks much but doth not directly answer c. to be short when in the end he will not put himself upon the enquest that is De bono malo to be tried by God the Countrey then the foresaid Act is sufficient warrant if the cause be evident or probable to put him to his penance but if he demurre in Law and it be adjudged against him he shall have judgement to be hanged so if he challenge above the number of 36. he shall be hanged and not have Pain fort dure I shall not inquire what the Common Law was before the making the said Statute whether the prisoner then stading Mute should be hanged as some held and as at this day it is in case of high Treason and as they say in case of appeal or whether then in favour of life he should neither have Pain fort dure nor have judgement to be hanged but to be remanded to prison untill he would answer according