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
Dotings against Prerogatives Some baffling over-wise Mooters Canker'd with Schism to Crop the Crown and beat the Scepter into a Spade talk much of mixt Empire which in strictness of Law is oppositum in objecto meer Quibbling and Repugnant making two Supremes being equally opposite as simple and Compound Fellowing the Prince and Subject as Co-Rulers or Partners in Power which by the Laws of State are Contradictions most Absurd being altogether inconsistent in one Body Creating a Penetration of Supremacy or distinct Regalities as divers as those of Naples and Denmark Indeed this equalness of Sceptring or Coordinateness of Power doth not only Clip the Wing but even debase the Sovereign And make Him more subordinate and less free then the Subject To make a gay shew of Potency but in effect no more Considerable or indeed Regarded then the King of the Frogs which made a noise and some Bluster but when it appear'd a meer Apparition or Non-entity of Sovereignty the Subjects became more than Familiar and somewhat Saucy even leaped upon their King and instead of obsequious Reverence afforded him nought but Sleights and Revilings That Laws are fram'd by Concurrency in some Nations 't is more out of Discretion then of strict Right and Necessity Because the Subject is best Conusant of himself and ablest to sit his own Condition And so a general Convention royal Bounty and more of Ease to the Prince then of Constraint and obligation in Law neither is this incongruous with sense or Liberty for the Prince to be Good to Himself must on Force be Gracious to the Subject The prosperity of the Subject being the best Revenue and Glory of the Sovereign The Primitive Law-givers Originally Princes stampt Laws themselves and alter'd them at Will for the best Avail of State there 's no saying to a Prince quare Ita facis what do'st thou being the Auditor alone of Heaven and so needless of the Allocations or poor Pidlings of Earth Sovereignty Defin'd This Jus Regium or Right of the Scepter call'd Prerogative is a large Field and according to the word a Priviledge of the mightiest Amplitude its Bounds and Extents best prov'd by Records and Constant Practice However we may safely Conclude without the Fear of an Errata the Government an harmonious Regency omnia in omnibus with the advice of the general Council absolute no Homager or Feudatory to any earthly Power though not a Crum Arbitrary because sweeten'd with the Cadencies of Justice to wit the Goodliness of Aristocracy and the Frankness of Democracy Being in all things directed by Clarified Reason Law but not a mite Coordinate Conditional or Deposable According to the beguilings of some seditious Gagglers but purely single and Independent without a State-Helper or Part-owner England the Commote of Honour the Pearl of the Terrene Globe Let 's not cry up this Country nor brag of the other but magnifie and admire our own mercies and ascribe the praise unto Deity for none under the Sun by the 45 E. 3. c. 4. de Talleg non Concedend are endow'd with that Freedom and safety like unto us Prerogative and Parliament keeping an equal Pace going Hand in Hand according to Fundamentals they cannot Erre Prerogative no Cormorant in Swallowing anothers Right As by a Case By the 1. H. 7. all Liberties Preheminences and Regal Franchises were given to Him in Tail generally without any Limitation or special saving Whereupon a great Question arose Whether inferiour Franchises and private Liberties were not likewise transmitted to the King Adjudg'd Per tout le Coife d' Angleterre by all the Judges that every private Right was impliedly sav'd by Provisoe of Law though not particularly excepted for that Prerogative can be no wrong Doer For Example The Estate and Persons of Ideots and Lunaticks are by Law Entrusted with the Supreme should the Sovereign Trustee Commit the Body or Estate of either of them to J. S. to do with them as Absolutely and Inordinately as he Pleases the Grant were void because Breach of Trust and the Committee punishable for any Exorbitant usage In other places if any though Poor are but suspected to be Rich or but well to Pass they shall be presented with a Basket of Fruit with Empty Bags which if not return'd Fill'd the Presentee must certainly Expect the Bow-string or an harder Cruelty Thus elsewhere Ruling is Lording manuforti by Force will is Law and Tyranny Freedom the Prince when most Bountiful but a Pharoah and the Leigh though most Deserving but Egyptian yet Dalliance of Liberty Peace and Honour will not still the Thankless but Sampson-like all must be shoulder'd down though they perish in the Fall SECT XI Par. 82. Kingdoms resembled to Families where the Troublesome are thrown out IN a private Family the Type of Empire is not Rule necessary can it stand unless bound up by the Ligaments of order And if the Domesticks will turn Ribaws Ruffins and Damme Boys sleight the orders of the Master Dismission in this Epicycle of Sovereignty is the lightest Censure that can be Expected By parity of Reason in the publick Family if the Erraticks in Contempt of Mastership will not lowre and bow to the spiritual Form not Dictated by the State-Master the King not Enacted by the Church But affeer'd and pronounc'd too by their own Consent Expulsion and Restraint are the softest Blows that can be inflicted Outward Worship ordainable by the Church In Law Rituals are Positivi Juris matters of humane Make the Modification or Rite left wholly to Church Discretion and Rites of distinct or divers Forms do no way stain or impair the Doctrinals Law-maxims the Quintessence of Reason and unquestionable By our learned Masters of the Common Law 't is not requir'd to assign an Answer why the Maximes were first ordain'd and admitted as the Pillars of the Law and the Resolves of Reason that may not be impeach'd nor impugn'd by brainless Searchers that will pick Holes in a seamless Coat But ever own'd with silence and veneration as the uncontroulable Results of Science Teste seipso Magisterially as Authorities of themselves though not provable by Argument or ocular Conviction being Compounded beyond logical Touch or mathematical Demonstration Infallible by the Allowance of the Exquisit'st Advisings In brief of the same Powerfulness and strength in Law as Statutes therefore Triable alone whether Maximes or no by the Judges and not per Pais by the Judgment of twelve men For Example A. hath issue two Sons by several venters B. and D. B. purchases green Acre and dies without Issue D. shall never succeed as Heir being barr'd by a Maxim or Principle in Law An harder case with the Clamorous near a Kin to Barbarity Father and Son and the Son acquires Lands in fee and dies Brotherless Sisterless and Issuless too the Father that in Law is pluis prochein de sank of the immediat'st Degree of Blood the Cause of his Being and so the occasion of the Purchase shall not lick his
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
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-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
Acts. TO unlock the Maxim by an Instance at Common Law to Conscience very Bull-beef as tough as Whitleather to Common Reason and meer oppression As by a Case If J. S. be Disseis'd of Black Acre the Disseisor aliens the Alienee knowing of the Disseisin ex Animo to bind the Right obtains a Release with Warranty of an Ancestor Collateral Conscious too of the Tort the Warrantor dies the Warranty descends on the Disseisee Now whether the Title of the Alienee be good to the Tenderling in Conscience is a a Quaere beyond Dispute in Law 't is indefeasible and clear Because this Case is somewhat Opacous very Duskish and Dark to most but Lawyers For an easier Instance If a Woman Covert for Dread of her Husband levy a fine if declar'd 't will not be Accepted if past after the Husbands Death unlacing her mind wide open that 't was Compulsory and by fraud shall never reverse her own Act that is annibilate the Feoffment upon Record The like useful for the Vexatious entangled in Law The Sheriff at a private man's sute on Request to open the Door and Denial thereof cannot break open the House to execute any Iudicial Process but He 's a Trespasser yet if Execution be done 't is good Confiscation without any Crime Committed For Wreck at Sea the violent Event of Tempest and Water the Goods to be forfeited 't is to afflict the Afflicted powring Bitumen into the Wounds to inflame the Sore so if J. S. be slain with the Sword of J. N. the Weapon as a Deodand is lost yet no Crime can be assign'd in J. N. Par. 136. The Guiltless Mulctable for the Guilty IN Law one shall be beaten for another's Stroke for if a Stranger Commit waste in the Tenement of Tenant for life the Holder for life shall suffer in a Devastavit or Action of waste according to the Maxim Tenants by Act of Law shall do no Waste nor suffer none to be done So shall the Master be wrung and must be Responsible for the uneven Steps of the Servant The Lord answerable for the Hireling For Example If a Servant through negligence burn his Masters house and the Neihbours too the Master is oblig'd to make reparations The like by the Civil and Common Law of an Inholder if a Traveller be robb'd by his Servants or Guests though against his will and privity yet he must answer the Damage At Common Law by the 22 of H. 6. the difference is very rational that if a Guest take another to bed with him out of courtesie without the Intreaty of the Hoast and be by Him or through his Treachery robb'd the Hoast is free but if on the request of the Hoast he lodge with him the Law is otherwise To illustrate this more evidently by a Case Lord and Tenant by certain Rent the Tenant Teases for a year then the Lord grants ouster his Signiory And the Tenant ceases for another year Here the Tenant is Culpable sufficient yet Justice cannot hit Him being Law-free And neither shall have a Cessavit Conscience measurable by Law A closer Case to All but Students very Rare and Incredible L. mortally wounds P. on the Deep or Main Sea with which wound P. Lands at Dover there languishes and dies Here 's apparent Felony if not Murder and by Law Death yet L. in spight of Justice will not care a Button for the Homicide for some think no Law can attach Him no great Justice with the shivering Conscience that Murder should go unpunish'd Par. 137. Sinderisis the Divine Faculty of the Soul Inhibiting Vice and Injuncting Virtue THus the Monitor of the mind or Lanthorn of the Soul Conscience after the definition of a great Lawyer is but the Law of Reason for that it resembles and ministreth the notions of Reason implanâ—ed in every reasonable Creature let 's give it a more beamy stile and call it the Envoyée from Above or Lidger of the Soul Private Conscience must stoop to the National Conscience which is Law And natural Reason to the Regulated Reason the Statute of the Realm As briefly by a Case If Titius bid his Bravo examine the Pockets of Sempronius on his Iourney to Bristol Fair And He acts this Braving Burglarly in Cheapside Conscience may Conceive the Encitor Principal but the Law not even Accessary A stranger Case J. at Stiles Conspires with the Husband to poyson the Spouse to effect the Design furnishes Him with Poyson the Husband tempers it with Syrup and gives it to the Wife to Eat who nescious of the Poyson gives it to an Infant who Eats thereof and dies Here 's plain Murder yet in Law J. at Stiles not even Accessary This Case is to many very rare and wonderful For If one lie in wait to beat J. at Nokes and J. at Downs coming in the way be assaulted and slain though a Mistake and never intended 't is Murder For the Law couples the Event with the Intent and Interprets the mind accordingly The same If A. out of an old Grudge to B. shoot at Him and C. his bosom Friend instead of A. meet with the Shot and be kill'd 't is adjudg'd Murder A closer Case If A. and B. casually meet and from Words out of malice prepense fall foul on each other And a Stranger to part the Affray to prevent mischief interposes And is slain in the Scuffle or Hurt whereof He dies And 't is not certainly known who struck Him 't is murder in both the Affrayors In the first Case Murder Animo or mentally was originally design'd that is a Person to be destroy'd the same individual Person scaping the Trap another being Caught and Kill'd one would think should not vary the Law as in the other Cases SECT XX. Par. 138. Mistakes Examin'd and the Truth Clear'd SOme short-sighted Hungerers after Change Conceive and Assert for an habitual Abuse of Prelacy the Temporalties are seisable and Estreatable into the Royal Coffers Mighty news indeed the Effect and Consequence of Law Familiar to every Ideot Nay when the State pants under any Exigency it may be Spirited and supply'd by the Rapine of the Church the Order thrown down and the Lands sold A most Corruptive Witchery of the ugliest Pollution Brew'd from the very Kennels of Impurity But whether the Temporals for Personal Crimes or State Indigence may be pleno jure or in Purity of Justice Transferr'd unto a secular use and thereby the Function quite cashier'd They offer not the least colour out of Scripture Authority or Reason in Proof of this Desperateness Par. 139. The Mistaker lost in his own Maze IN Law if the Church be Endow'd with a Chalice or Bell the Donor cannot at will or if Abus'd without Sacriledge Defeat or Recall the Gift The like if one set up an Organ or Erect a Pew these Devout Presents are instantaneously Dedicated to the Church The Benefactor cannot repent of his good Deed by Taking down the one or Removing the other at his Pleasure The
with an Intent to Convert it to his own use is Latrociny whether the owner of the Goods be known or no it abates nothing of Pilfering the Taker is still in Danger of Felony But if the thing found prove a Derelict that is quite forsaken or cast away by the Proprietour Resolving never to own it more some say it excuses By the Law of the Realm there 's no Forsaking the owner may claim his Goods when he will notwithstanding all Rejectings or verbal Disclaimings the Property still Continuing the same At Common Law I conceive the Trover or Casual Discovery vests no Property in the Finder But as a stray it shall rather Escheat to the Lord of the Fee or to the King in case the Franchise be not large enough to retain it The Law is most Curious and Worthy in this Publick Good of Property For Example If one find anothers Goods if afterwards they happen to be lost or even Damag'd through wilful Default the Finder is chargeable to the owner If lost casually without wilful negligence or Committed to anothers Custody who runs away with them he 's said to be unchargeable But some think the Committor must answer for the Slipperiness of the Runner for Reposing Trust in a Person of whose Honesty he had not sufficient Proof His own affected Supiness being the Cause of the Damage Par. 166. The Ecclesiastical Peace much Tender'd in Law THE Famous Statute so much Admir'd and talk'd of by popular Judgments Enjoyns Primarily and Particularly that the Church of England keep her Rights Inviolable de Circumspectè Agatis speaks the same The one the Redintegration or Collect of the Common Law the other a Concession of Justice never Controverted Westminster the First is in very Point which Commands in the first Place that the Peace of Holy Church be kept A Law fram'd by the Tutorships of Angels and will find obedience over the Gates of Hell Thus Pax Ecclesiae observetur the Peace of the Church must be kept is a Theorem in State And from hence we may infer that the Spiritualty is to be had in Equal Tenderness with the Temporalty He that snaps from the one may pull Judgment as a Burgessor of Life and Member from the other There 's a general Learning at Common Law that the King is not bound by any Statute if not specially nam'd for his Advantage he may Concern Himself sans Express Nosmer But in Acts that treat spiritually Majesty is strictly bound sans Esteant Nosme though not nam'd Religion being the stoutest Pillar and support of the Crown Par. 167. Lands neither Donable nor Deviseable BY Ancient Law Lands by Descent were not Alienable without the Consent of the Heir But a Gift to God in Exposition of Law to a Person devoted to his service 't was undeniable and Binding without the Heirs Assent or Privity The like at the Civil Law As by a Decision Caius mighty wealthy and wiser then to delay setling his Fortune till the last Grone devises his Lands in Alexia to Christ Two Questions 1. Whether the Will not void for the Vncertainty or Dubiousness of Limitation 2. If valid How to be Interpreted Resolv'd 1. That the Devise was Good 2. That the Mannor in Interpretation of Law was given to the Church Parochial where the Testator did more Eminently Reside or usually dwell The like Anciently at Common Law as a Fine levied Deo or Ecclesiae was Good As by a Case A. devises green Acre to B. for life Remainder to C. for Life Remainder to the Church of St. Andrew in Holborn By the 21 R. 2. I find it Adjudg'd a good Devise though by the 32. H. 8. I doubt much whether it will now hold Good Par. 168. Largesses of Devotion are Consecrated Feoffments Collatum Clero Collatum Deo A Gift to the Church is bestow'd on God the holy Gifts the old Legists call Frank-Almoinge or Free Alms And not so sleazily Removable as some Spangled out-sides fain would have it Presents of Consecration or Grants to the Church were in Pearlie Times stil'd Church-Chesset As the Rearings of Religion but now Nugatory Endowings for that Charity may well be spar'd and Heaven Commanded on cheaper Terms By the Devout over the Water for a small Pull to help the Groners out of placeless Purgatory great wealth is oftentimes Bequested But with us not a 〈◊〉 afforded to avoid that Gulf nor even to be Assur'd of Heaven Par. 169. Sacriledge the deadliest Crime BY the Common Law Sacriledge is defin'd Le Larcin des choses Sacrees Theft of Things devoted to a spiritual use And is deem'd Rettum Gravissimum the grievou'st offence for which no Clergy is Grantable Therefore by the Canon Law Sacrilegious Thieves were Commonly sentenc'd to Wild Beasts sometimes to the Flames To enjoy Religion without a Scourge is to fancy Animation without the Sun All Law-Books are so full and plain in the Point to blur Paper to Replead so clear a case were Sowing the Ocean or Fishing in the Skie SECT XXV Par. 170. If the Church be thrown down The next Life will be at the Law BUT what if the Church be skin'd and Learning thrown on the Hedge the Thriving Trade will be still kept afoot and the Effronted Lawyers grow Bankers This surmise may come short of an Handful of double Guinies But how will the Law be acutely Attain'd without being first Grounded with Scholastick Breeding so that Property must fall with Religion both Coffin'd in the same Tomb. Par. 171. Law as Spiritible or Inspirable as Theology AND why may not this Scambling Spright enlarge the Inspirings And take on him to Spew Law extempore just as fast as the higher Notion and more Sacred to wit Divinity He that 's saucy in the Parlour will scarce be Mannerly in the Hall No Difficulty but may be shoulder'd by the Ray or Spark of the Diety the Spirit I 'me sure with the late Usurpers Bracton was Foolish and Britton an Ass Perkins full of Crotchets and meer waste Paper Nay the Legis Alpha and very Textuary at Common Law for all the Gorgeous Elegies the learned Expounder gives him was no more Regarded then a Straw Every Major General or Common Agitator were par my par Tout perter Lawyers Deeper read men and more cunning to Cleave an Hair then the two late Famous Ones Hobert or Dier Par. 172. The Civil Disquisitour HOW came some bullish Clog-heads by that Dexterity without all Peradventure from their Familiar the Cheating Spirit for these Pretenders were just as Blunt and Bearish as a Cartor Having never Traded further in Learning then a Primer if so high Bred. For had ever these white Souls been call'd to coram nobis that is had Justice ever Demanded an Account of their Actings undoubtedly the Neck Verse would have stuck worse then the deluding Apple did with our Grandsire Adam And were it worth an Imprimatur I could versifie and say much more Par. 173. The juridical Advertiser A Word in
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
to the wrong Mother Equity Limited Neither are Courts of Equity a sic volo sic Jubeo altogether Boundless and Arbitrary Decrees must be Sana Discretio founded on Discretional Piles after the Form of Law for should Equity meddle with matters properly Issuable at Common Law savouring of Freehold 't is Prohibitible by Hussey Chief Justice should Equity venture to sheak a Judgment And Fleet the Parties for Contempt a Court of Law will discharge them But in some special Cases 't is held Unlimitable Law unerrable Juries when Attaintable If a Court of Law judge amiss Error leys to redress it if a Jury wilfully pervert Justice against their Evidence they are Punishable by an Attaint For an Example If a Feoffment in fee or an Estate for life be vested in John a Nokes and they find Kim Kam quite Cross from the Fact though Ignorant of the Law in that Point they 're in Danger of an Attaint The like in Equity Decrees wrested beyond the Standard of a good Conscience 't is Reversible by Review or Bill in Parliament So that the Law is Absolute the First-born of Excellency and near Infallible Par. 32. Chancery legally Stated THe world is generally out in their Conceptions of that Court for properly 't is not at all made up of Conscience of a mixt nature I Agree it and so Conscience may come into the Chorus and sit by Equity in some Cases to allay and swage the Summum Jus or severity of Law But for the most part their Stalls are several For Example If a non Compos mentis give away his Goods or pass his Lands by Record it shall not only bind Him but All others for ever Because of a Maxim in Law and 't is Ruled that the Keeper of the Kings Conscience shall afford no Relief against a Maxim Yet He shall not suffer on a Criminous Account because the Law pities his Infirmity why not the like in the other Case now can it Accord with Conscience that a Driveler or Fool natural should make a good Grant in Law that knows not the Right Hand from the Left nor hardly an Hog from a Dog or that the Gift of an Infant though given by his own Hand that happily can't tell Twenty nor a nine Pence from a shilling should not be void in Equity several other Instances that I could Cite seem to weigh much against Conscience Law not always Meetable by Conscience I confess my self a great Admirer of the Law and therefore shall be Hush Though as to Lawyers there are invincible Reasons given in Defence of it and should it be otherwise it might shake the whole Course of Law let this tutor us then that Law must not altogether be measur'd by Conscience If Enacted it must be obeyed Par. 33. More clamorous Censures and Lowings against the Chancery Discepted and Taken off THE Chancery is the Commanding Court and out of Dispute of undeniable use and Excellency when kept within its Bounds otherwise the Law would prove in many Cases an absolute Tyrant and not to be Endur'd The Consequences are so vulgar and easily to be Conjectur'd that I need not Englarge on so obvious a Truth 1. Were the Proceedings shorten'd and the Flippancy of Motions to multiply order upon order and Report upon Report with other out-slips Revis'd and Amended the Court would be abundantly Honoured and the oppressed much Rejoyc'd and Repair'd 2. A peremptory Time should be Assign'd to Answer otherwise the Bill to be Decreed as Taken pro Confesso And why should it be otherwise since 't is natural for the weakest Person living to Appear and make his Defence if wrongfully charg'd And to be Reimburs'd of the Complainer if unjustly vex'd And therefore Shifting by Buying of Attachments and Dallying with the Court implies clearly Guilt And so no Injustice though unheard if the Cause be Given against Him 3. The same at Common Law is the Constant Practice upon Issue for if the Defendant will not Appear and Plead Judgment on nient Dedire or by Default on Course is Ruled against Him Which proves as Forcible as if obtain'd on full Evidence Nay in Criminal Concerns if the Party Encoup'd or Arraign'd stand mute and refuse to Plead He 's usually sentenc'd to Peine fort and Dure or Press'd to Death A grievous Punishment which certainly none but the Mescrue or Desperate in Guilt would undergo If by Pleading or Palliating their Crimes by a Civil Defence they might probably find Favour 4. A set Time likewise in their Commissions to prove their Allegations with the like to the Defendant to Discharge and Acquit Himself would strike off much Fraud and Delay And not to be suffer'd to move for Commission upon Commission and Examinings upon Examinings the usual Practice with the wealthy and vexatious to weary out the poor Adversary and thereby obtain their Ends. 5. Some conceive that Attachments Writs of Rebellion Serjeants at Arms and the like are not of absolute necessity especially to the Ends they are now Commonly made use of Neither can they Divine if such Times be Peremptory upon them to Appear per se or per Alium in Person or by Attorney what mischief can Ensue Unless good Cause be shew'd to induce the Court to Enlarge the Time 6. Sequestrations may be necessary in case of Disobediences to Decrees But what need of tedious Proceedings which are mighty Expensive and Dilatory and in effect a kind of negation or Denyal of Justice This with all dutiful Reverence to the Supreme Court conceiving what I humbly offer will in no Respect retard Justice nor blemish Equity SECT VII Paragraph 34. The supposed Deformities and very Freckles of the Common Law Inspected and wash'd off IF the 25 E. 3.17 were Review'd and the Common Law reduc'd to its old Constitution of Summons Attachment and Distress Infinite according to Magna Charta nullus liber Homo Capiatur the Law would be eas'd of many Exclaimings and the Tout le Commune or poor Subject much enlarg'd in his Immunities Par. 35. To the Insolvent a Capias hard Justice IF the Fortune cannot Pay for the Body by suffering to imp it out Appears somewhat Cruel There being no mean or valuation between a mans Person and a sorry Debt 'T is true no Fault can be Assign'd in the Law because it doth but perform its office And the Life of the Law is the Execution thereof Yet surely the Intent of the Law is mistaken and abus'd the Law Designing the Body to Custody only as a Pledge to avoid Fraud that if no Estate can be Retriv'd then the Body to be Dismiss'd for so I find by the Perusal of several Records more expresly in 14 E. 3. Rot. 106. where the Debtor being long Imprison'd and by Inspection being found Decrepit and much stricken in years unable to undergo a longer Durance the Judges awarded an Ire sine Die or an absolute Discharge 41 E. 3. Rot. 27 the Duressee being Adjudg'd unfit to undergo Paenam
be Enslav'd when the Law Proclaim'd them Free Par. 42. Reasons why the Body should not be Distrain'd 1. IN Nature Consequently in Judgment of Law nothing is Distrainable but what can satisfie now nothing can satisfie but what 's Marketable and of value and that must be an Estate either in Lands or Goods If neither then Impotentia excusat Legem even the King must lose his Due for the Body is neither Saleable nor Eatable without we turn Cannibals and deviate into Brutes 2. In Discretion the Debtee stands in his own Light and renders his Debt more Desperate by Disabling the Debtor Shutting Him up in a languishing Condition which if at large happily his Industry or good Fortune might inable Him to afford Satisfaction in Part and some Bread better then no Loaf 3. In State they deprive the Sovereign of his Subjects able Bodies according to the Intent of the Common Law that might be serviceable in Peace or War 4. In Justice 't is very untoward and against Conscience for the Debtor when He 's labouring to discharge his Duty to be snap'd upon an Utlawry and put to a great and unnecessary charge to Reverse it when if forborn He might perchance satissie the Debt I find the Civil Law very Candid in this Point by their Dies Justi or Days of Respite a certain Time of Forbearance for the Debtor to turn Himself in the better to inable Himself for Payment 5. In Divinity the Body being useless not vendible even for a Farthing 't is more than unwise with some even Barbarous and Inhumane racking the Body to Dice the Bones and pray God one Day it be not laid to their Charge Par. 43. The Known Inconveniences 1. MAny mischiefs fall out on the strict executing a Capias more then Brawls and Batteries oftimes Effusion of Blood A very unchristian thing and ought to be Redress'd 2. The Debtor is frighted and debarr'd of his Liberty in Traversing his occasions which might accommodate his Debts 3. The Tickers finding the Law on their side that they can Command the Person when they list they 're more Entic'd to Trust and so hand-smooth help many Swillers and Swaggerers out of their Estates 4. It Creates spend-thrifts Knowing their Lavishness may be Pomp'd up They 're more Allur'd to Rookings and so never mind to check their Runnings out which doth occasion many mens Ruine and the overthrow of great Families 5. I could wish there were no Cause for the Law to use these Pinchings for Running on Tick proves but ugly shifting and Ruffian-like and ends in Bitterness a sweet Comfort to peep through a Grate some chuck down with care to Keep the Wolf from the Door will spoil the Trade of Userers and Fetterers The Dolefulness unravel'd 6. The Truth is the Confidor or trusting Dealer is but smoother'd in his own Feathers for to pack off his Wares at any Rate He readily Books the loose Gallant beyond the Reach of his Purse And if his Fortune fall short then He Curses his Confidence and in wrath takes out a Capias for his Carkass to piece it out And this pays as much as Throwing his Cap against the Skie for where one Crawls out Twenty stick and are stifled 7. 'T were more Quiet and Credit for both Parties to sever their Horses the one wave Ticking the other not to want till he hath got Bayard in the Stable ready chink to pay Par. 44. The unsufferable Abusiveness of an Attachias THese Capia's are so exorbitant that they 'l even Attach a Corse and if the Attacher be not Compounded with continue the Attachee above Ground to the shame of Christianity and Poysoning of the Quick this I have seen and the Body kept unburied in the Church under pretence of Debt foolishly Conceiting the Friends would redeem it Many on this Jealousie interr their Friends skulkingly like Dogs whose Bodies when living were the Temples of the Holy Ghost for fear forsooth of Arresting the Hearse A Corse not Attachable for Debt A most horrid and simple Impudence and the Law most egregiously Dishonoured and mistaken for in speculation of Law a Capias Can serve but 1. Ad Respondendum or 2. Ad Satisfaciendum either to Procure an Answer or make satisfaction Now what Answer can a mute Corse or liveless Corps make or what satisfaction can it render Just as Good and sensible to demand Dues of a Stone as of a dead Person neither can the Law be so simple and unreasonable as to expect it 'T is warranted by the Statute to take the Body in the aforemention'd Cases but Lex non praecepit vana inutilia 1. The Law doth never Enjoyn Impertinencies therefore on necessity it must be reasonably understood of an animate living Body not an inanimate and dead one 2. Besides when Dead it ceases to be a Body 't is properly then at most but Cadaver a Carkass or Frame of Dust and Ashes so that after the Dissolution naturally and so Legally 't is no Body the Writ then on Course is superseded because not Executible There being no such Body then in Rerum naturâ according to the intended Tenor of the Caption 3. In Judgment of Reason no Benefit reapable by the Exeuction But a Cadaverous and Shadowy one which the Law the great Administer of Wisdom and Piety will never offer It being more Collusive and Absurd then Barbarous and Uncivil Thus the Law is most unworthily sham'd and Abus'd through Ideocy and Malice Par. 45. Not molestable by every Parochian Demander of Dues besides Law ANother Exorbitancy is likewise as frequent and Conjectur'd for Law by the Clergy to stop the Corse if Travailing through their Parish offering to interr it or pay Duties A brave custom to inforce a man to be Buried where some please or to satisfie their simple Avarice They had as Good and quite as Reasonable Prescribe to draw their Testaments and Carve to themselves like the Friers and Devouters what Part of the Fortune they think best Suppose one die in London and desire to have his Bones laid at the Mount in Cornwal in Cumberland or the remotest Part in Wales let any modest Person Compute what an easie Charge it will amount unto happily the Defunct Dying but small in Estate or worse then nothing If every Parish must be satisfied meerly for passing through A sweet nonsencestical Custom and against Law and so I find it Adjudg'd in point Trin. 15 Jac. in a Prohibition Staying or Disturbing the Bier under the prementioned Pretensions is Detestable in Law Neither can we Conceive that the Mirror of Justice and Piousness the Law altogether so lame and Defective But that the offender herein is more then a grand Trespasser and cannot scape unpunish'd without all Doubt He 's many ways Punishable 1. By Action of the Case for the uncivil Abuse Conceivable by the Heir or Trustee for the Sepulture or Burial 2. In the Court Christian pro Reformatione morum by Ecclesiastical Censures the Law of Christ
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
Receptacles of Gods Holy Spirit SECT VIII Par. 48. The whole Scheme of Law Disquisited and Affirmed LET Frumpers shut their Lips and forbear Carping at Lex Terrae or the Common Law of England that hath tenter'd the prime Wits of all Ages in Polishing and Trimming that 't is now a little Decay'd or at all out of Fashion needing a new Whamp or even an underlay is not Possible Examine the Law-Books they 'l Endure the severest Test some sneak'd out in Rude Times to prop up broken Printers may be flat and sapless But the licens'd ones the old Vouchers Codes gravely learn'd and Philosophical The meanest may well be Read by the Wisest being altogether Weedless The Vprightness of the Law The Common Pleas of Meum and Tuum or Commutative Justice are so Plain and Indifferent with a Saunce Regard de nulluy that hardly any Judgment so Hollow to open his mouth against it The Graciousness of the Law For those of the Crown the nicest Concern there 's no Law under Heavens of a greater Clearness than the Law of England without the Cruelty of the Torture or that which is near as Bad a tedious Languishment before offenders are call'd in order to their Deliverance Therefore Deserving better Language than some clamorous Aspersers are pleas'd to Afford it For Example An Indictment or Verdict that B. killed C. so Defended in Preservation of his own Life is not sufficient without Reciting the special matter That the Court might adjudge of the Inevitableness of the Necessity to direct the Iury accordingly Par. 49. Law the Pandect of Perfection IN fine without Playing the Panegyrick or Magnifier of Excellency the Law hath the Qualifications of an Angel in being on every side most Civil Reasonable and Honest 1. The Civility of the Law If the Defendant be summon'd to appear peremptory at a Day and mischances interpose as Mayhem sickness with other lets which hinder from appearance at the precise time if He appear by his Responselis or Attorney the Law hating surprise He shall be Essoin'd or excus'd from the Penalty of the Default and a longer Day granted Him And if an Essoin be once cast no ne Recipiatur can be enter'd only Adjourning it and looking to the Continuances 2. The Reasonableness of the Law One shall be Tenens per legem Angliae or Tenant by the Curtesie of a Rent though the Wife die before the day of Payment And of an Advowson though she slip away before the Avoidance Nay if the Advowson become void by Lapse during the Coverture and the Wife dies after the sixth months pass before any Presentment by the Husband And the ordinary Collares to the Avoidance yet the Husband shall have the Benefit of the next Avoidance as le Tenant par le Curtesie Reviver of the Curtesie A. marries B. an Heiress and hath Issue and afterwards commits Treason or Felony and be thereof Attainted but pardon'd yet the curtesie is lost If he chance to have any Issue after the Pardon such is the suavity of the Law to the Coverture the Priviledge is Reviv'd If the Dowress encroach and hold more then her Due or the Commoner by Appendancy or Vicinage surcharge the Common which is but foul sharking in both Therefore by W. 1. they shall be Admeasur'd The Writs are Vicountel the matter Discussible and Determinable by the Sheriff 3. The Honesty of the Law A Nude Promise binds not and why otherwise for what loss can the Defendant sustain when he neither gave nor Assum'd any Considerable Return But if one bid another Heal such a Wound or Repair such an High-way Admitting both Contracts made without any Promised Recompence In such Cases the Law Abhorring Baseness shall create a Promise and imply a Reward with full Damages should the Contractor approve Himself so unworthy in denying satisfaction The like if any specialty be executed beyond Sea to avoid a Fayler of Right 't is Triable at Common Law the Plaintiff may suggest 't was done at Toledo in Spain at Todington in the County of G. whether any such Place in that ville 't is not material the Issue will be singly whether the Parties Act and Deed. In brief if one grant the vesture or the Herbage of his Lands though no Inheritance passes the Grantee may enter and maintain an Action of Trespass But if he grant the Profits of such Mannor to J. S. and his H s. with Livery the whole Land passes Par. 50. The nobleness of the Law THus according to the 2 E. 3.14 E. 3. Common Right the Maintainer of the Crown the Law must be Agreed a deep science and mistical Beauty For had not the Law been as secure for the Subject as safe for the Sovereign There 's no Doubt as hath been observ'd but those several Revolutions of Conquerors with the late fidling Vsurpers that ever had an Aking Tooth at the Law would assuredly have alter'd it If not wholly laid it aside and Introduc'd their own Which is a satisfaction very full to any Civil Judgment of its Gravity and sufficiency That 't is truly Excellent and beyond compare SECT IX Par. 51. Groundless Cries against the Pontificial and Civil Law THE Roman Law with Don Whyners is a Choak-pear too and needless and may well be thrown aside I have been an unhappy Porer in all Polemical Learning Discovering little but by the smattering that I have of that Noble Science I cannot but deem it Imperial well suting with the Flavour or goldy Locks of Monarchy Why necessary Neither is the Regency Municipal Compleated with Law without Ecclesiastical and Civil Law Courts without their Company a Decay of Justice and Feebleness in the Crown would ensue for Causes meerly Spiritual are exempted from Westminster-Hall All Contracts and Querels made superaltum Mare on the Ocean append ' a loy d'oleron belong to the Admiralty An Ennoblement to the Crown to be serv'd with general Lawyers The great Reverence the Law ascribes to Hallowed Places I wish our Heterogeneous Brethren the Ravers against Monarchy were meeker spirited setting the same value on the Church as the Law hath done in all Times for at Common Law if one be Assaulted and Beaten too in a Church or Church-yard 'T is not Justifiable to return Blows in his own Defence By H. 12 Jac. B. R. de son Fort demesne will not Excuse which the Statute of E. 6. Confirms Par. 52. The Antiquity of Ecclesiastical Law NEither are the Halimots or Ecclesiastick Courts at all Encroachers any new Crept up Jurisdictions but as Fundamental and Antient as Justice it self for we read that Jehosaphat in his visiting of Judah to redress many Enormities in Church and Commonwealth ordain'd Judges not only secular But at Jerusalem for the mere Spiritualia He erected a Gourt Christian for so is the Text positive in the Point Amariah in Causes Spiritual was Chief Determiner And in Civil Zebediah the Head-Decider Why call'd Ordinary Hence it is that the Law most Emphatically stiles
the Bishop Ordinary Because the great Minister of Decency or Judge of Order in Ecclesiastical Affairs These distinct Consistories are likewise Assis'd and Ascertain'd by our Saviours Comforting the Apostles against Persecutions of Delivering them up to Councils and scourging them in Synagogues several other Proofs I could bring to prove the Pontifical Jurisdiction But in so clear a Text 't were casting Water into the Sea Par. 53. Foreign Transactions Impleadable TRansmarine Contracts or Bargains made beyond-Sea are triable before the Constable or Marshal for the Admiralty is solely confin'd to the Sea Extra Corpus Comitatus out of any County Derogations of the Common Law Prohibitible But any specialty or Contract made for Payment of mony or Doing any Act wherein the Common Law can administer Justice Then by 8 R. 2.13 R. 2. and several other Laws neither Constable Marshal nor Admiral must intermeddle because Derogatory to the Law Paramount and they Act without Authority Therefore Countermandable by Prohibition Par. 54. Transmarine Acts how Triable IF any be kill'd beyond Sea an Appeal by 1 H. 4.13 H. 4. and the 25 Eliz. Douties Case lies by the Wife or Heir before the Constable or Marshal whose Proceedings are by Witnesses or Combat Pyracy with other Misdemeanours on the Sea belong to the Admiralty or Attaintable at Common Law by the Statute The same Law reaches to Ireland because but one Admiral in both Kingdoms So that the Law is Transcendently Compleat and Just Healing every Gangrene Perfectly but Pettishness and Malice Par. 55. Prejudice Requited BUT ruat Coelum all Excellencies must be strangled that stand in their way Transcendencies Devasted or laid waste that matches not their Froppishness without Droling well Apaid are some of both Professions for their spiteful Declaimings and snappings against Prelacy Thus the Law the Protectress of Life and Doneress of Fortune is well Rewarded not only a Mock with some Psalter Scholars but a by-word and Wake of Mirth with the Sisterhood I wish from my soul for their own sakes they would give over Tatling against Law and Pecking against Majesty SECT X. Par. 56. Murmurs against the Meritorious AS to the Exceptions against Minority that 't is Jeopardous to trust the State-Pinnace with a green-Headed Steerer By Copley's Case I agree it hath been Practis'd and some Colourable Reasons may be Render'd And the Practice not so Perilous because no Judges of Record though I fear the Law will hardly justifie it Infancy a Conceiv'd Disablement 1. In Common sence and Reason can it be Imagin'd that an Infant that cannot govern himself being so Adjudg'd in Law therefore uncapable of all Judicial Acts should be Ripe enough for Ponderous Affairs to personate his Country not only to bind Himself and them but likewise the whole Kingdom Why not Elective 2. If a Minor be Arrayed on a Jury He 's Challengeable much stronger must the Law be if Impanell'd on the grand Enquest of State If deem'd unfit to try a private Cause the Law can never be so weak as to adjudge him sufficient for the Exitus Reipublicae or publick Issue of the whole Nation therefore we may invincibly Conclude him non-Eligible because unserviceable Par. 57. Every Member a National Agent 'T Will be Reply'd having a free Choice they may send whom they please if their Grievances are lamely Represented or their Interest sorrily manag'd the Loss will be solely to themselves This is neither Law nor Reason I agree in Point of Freedom if I have Business to France I may send whom I please to Cross the Sea But if my Errand be of Importance and skill in Managing 't is no small Error to entrust a venterous undertaker without Language or Experience there being no thoughts but the business must miscarry Much more if of Publick Concern wherein a whole Nation must suffer what Discretion can it be to employ a Youth in Affairs that require the greatest Maturity For when Return'd and actually sitting he 's no Procurator for a single Interest but the universal the general Concern of England And therefore if nient suffisant not fully Accomplish'd according to the Summons he 's unduly Elected and Rejectible Par. 58. Mis-elections occasion'd by Treating of Tumults BUt how is the Law faulty if any Miscarriage they may thank themselves and not the Law being most Curious of publick Welfare Therefore if any Mischief 't is a Chick of their own Hatching for by the Directives of Law the choosing of les Grandees des Counties as the 27 E. 3. calls them should be De Probioribus Potentioribus the Civil'st and most Potent that is in suppute of Law the most literate and virtuous not the strongest in the Beef-pot or the most Powerful with the spells of Bacchus to Canvas and Feast Multitudes stuffing their Guts to idle Purpose and against Law to shout and bluster for them By which means the most Personable capable to serve may be beaten off the Pitt and so Bolted out Par. 59. Non-officiating an Abuser Inditeable or Expellable THE miscarriage is very bad for many out of Pomp and Vain-glory may covet to be Senators Who when they come to Act may altogether find themselves impatient of the life of State which is Diligence And never attend Plays and Taverns affording them no spare Time for publick matters which doubtless is redressable by Information or by vote of their own House either by Commitment or Expulsion for the neglect of their Office Par. 60. Diligence and Intendance Requirable by Law THis Cavil resembles Silenus Statue they can never be good Patriots that prefer Masquing and Bibbing before the Discharge of their Office Being sent to supervise that Ascanius live safe and Coridon at Hearts ease and non-Attendance hath been the loss of Monarchy But in this the Choosers wilfully Confound themselves by their Hastiness of not resolving upon a Stanch Senate Par. 61. The Qualification Non-Resiancy Dubitable IN Result of Law the Elected are the Chief Visitours of State and therefore ought to be Qualified as the 14 H. 8. describes some Professors Grave and sadmen well Experienc'd and Sober Most Pregnant and Prudent according to the 23 H. 6.15 the notablest Knights and Resiants from which two Doubts may arise 1. It may be quaeried whether any under the Degree of a Knight be Chusable 3. Whether Non-Commorancy be not a Non-Ability Rendring the Candidate unqualified and so uncapable to be Elected 1. To the first I conceive very clearly that the Law is not to be Taken literally Confining the choice to that Degree If the Election be made De magis sufficientibus of a Person duly Qualified it will be sufficient enough 2. For the second it may be doubted like that of a Jury which must be of the Vicinage Because presum'd to have the best Knowledge of the Issue and so most apt and Capable to be a Trier or Judge of the Fact The like in this Point some Conceive the Elected ought to be Commorant or Demurrant on or near
King that scourg'd the Hellespont for by their Actings I find naught but Gravity and Wisdom And therefore to be Embrac'd with Bone-fires of Joy for so Pick'd an Assembly Par. 66. No Parliament without an Act. 'T IS held in strictness of Law properly no Parliament only an Assembly unless some Act pass or Record be made thereof though all Formalities requisite in State as one would think hath been perform'd to denominate it a Parliament 1. No Meeting on their own Heads without a lawful Citation being summon'd by orderly Precept to the Sheriff 2. No surprise without due notice of his Writ to the Country who by virtue of his Warrant Royal Convene such a Day at the usual Hours directed by Law to appear and Elect. 3. They personally appear and make their Choice the Party Elected accepts the Trust and is formally Return'd 4. The two Houses meet at the Day set in the Writ with the Appearance of his Majesty or his Chancellour if in Remotis to signifie his Call 5. Imagine several Sittings with interlocutory Discourses and Conferences of both Houses the Journal full of Movings and Debates with Bills past ready for the Royal Hand Now what shall hinder but according to the meaning and Common Acceptation of the Word here 's a Compleat Parliament yet in Law without some Act pass'd strictly 't is no Parliament only a Convention And so several times Agreed by all the Judges of England I confess this is no small Nicity for in Law in case of an Arbitrement if once a Controversie be submitted by Deed or by Parol and Arbitratours actually Chosen and they meet and Debate labouring to Reconcile though their Labours prove successless making no Award yet 't is proper to averr an Arbitration as in Pleading to say the matter was submitted to Arbitrement The Arbitrours meet and Consulted Examining the matter in variance in order to end all Differences but could not Agree to make an Award in this fense 't is good enough to alledge an Arbitrement and Arbitours though nullum fecerunt Arbitrium why not the like in the Parliamentary Point Obsequiousness Applied No I find the Modern Authorities clear against it though by the 18 R. 2. a Judgment given in B. R. was revers'd but no Statude made yet Adjug'd a Parliament Let this lesson us how vain and Impudent Conscience is to winnel and nose Law if Law there 's no Disputing Par. 67. Whether the whole Establishment may be subverted 'T IS scrupled by ome Constultors or gingling Enquirors whether perverting Acts are Binding I shall not trouble my Head in stating this Curiousness But at Common Law if one depute a Proxey to give seisin on Condition and he delivers it Absolute 't is void or if the Warrant be absolute and He deliver it Conditionally 't is the same The like in this Point the Members of that Consultation are no Com-peers of Sovereignty at most the one but the Princes Advisers the other the Peoples Delegates both limited and Controulable being Entrusted ad tractandam de quibusdam urgentibus to treat of certain Arduous and Important Affairs and therein to use their Power Prudently in preserving Fundamentals and accommodating the State by redressive Acts in lopping of all Excrescencies or annoying Stems inconvenient or oppressive but not at all Authoris'd to mangle Settlements or dispute with Princes Par. 68. Their Priviledges not Disputable BY Thorps Case the Priviledges of these High Counsellors are not to be touch'd on much less to be describ'd or determin'd To busie then our Pates in designing the Form or Jurisdiction of that transcendent Court is for silly Questionists for every sober Person is bound to shape his Conceptions thereof with an humble and obedient Reverence Par. 69. The Priviledge not Releasable Transferrable nor Extinguishable I Conceive the Priviledge neither suspendible nor Abateable by any private nor even judicial Act of the Person Priviledg'd without notorious Breach of Trust and the Peril too of the Publick safety Neither can this admit of any Curiosity or wonder when his Condition is throughly viewed and in what capacity he mov'd The capacity being publick so not to be quitted on a personal Account or Privacy of Design And therefore if weary of his Procuratorship He ought to signifie his Debility or Weariness to Continue And the Delegators or Parties Electing left to their choice to depute another in his stead Not Deputable or Assignable Hence it is Regularly in Law that he cannot Depute a Proxy or Assigne because chosen and Trusted by others Moving in auter Droit and so not Master of himself to Assign or transfer the publick Deligacy or Trust to others Trusts not Delegable To illustrate this more plainly by the Common Practice If A. be intrusted by B. for the use of C. and others and he accept the Trust He can hardly transfer this Trust without the consent of the Parties entrusting should he do it without their Privity and Assent Equity as well as common Civility will take it ill and award the Parties Damages the Injury being Relievable by Action The Case of Factorship or Common Attorneyship makes it plainer for if either undertake more then what they can well perform if the Clients receive loss 't is Remediable by Action so they 're Confin'd to Mediocrity though they usually moyl themselves over shooes and Boots and engross more then they can well grasp Much stronger in the Parliamentary undertaking there 's no Remedy over if any the Damage may be so Immense that 't is Impossible for a single fortune to satisfie therefore on necessity the Priviledge not Quittable otherwise the Publique shall be in a worse Condition then the Private which no Law will admit but still on the Contrary the Rule being undeniable over the whole Face of the Earth Better one suffer then the whole The Case lately of the Lord S. in B. R. was strange where on a Trial by Consent the Priviledge was Halted at though He affirmed very positively a surprise being fain to attend publick Affairs wholly taken up therewith and so Disabled to fit himself for a Trial And therefore Prayed a further Day 't was Denied with some judicial Assertion that the Priviledge was wayv'd which may be Doubted because I take the Lords to sit on the Behalf of the whole Nation as well as the Commons and therefore their Hinderance as publickly Damageable Neither can Consent in Adjournment though a vacancy from the publick Employ quit the Priviledge because Demandable at the Royal Pleasure before the time appointed In Prorogations I agree the Priviledge suspended But that 's by Act of Law and a quasi Dissolution for the time and so no Right violated the Publick at no Detriment or Danger Should any be so easie in Relinquishing the Priviledge I Conceive 't is a Contempt and no small Dishonour to the House no way to extinguish it but by Act and I much question whether that can do it because of Entailing a Wrong on Posterity With
Action Not Relinquishable in State 1. Can the Ruffest Person be so Doltish so lamentably clownish to Conceive it Handsome or at all Just for his Majesty to be evicted of his Servants without leave or to Dispence with a Discharge to incur an Inconvenience without his Privity 2. A fine Comeliness in Honour for the Servants to be snatch'd up and the Prince to wait on himself 3. Once Sworn 't is Conceiv'd the Party can by no Devise of his own Head for self Ends Relinquish Discharge or Forfeit his Attendance 4. That his Majesty may chuse to allow of any such Disabling without his Knowledge and Assent 5. Both Punishable for Attempting to disaccommodate his Majesty by nulling or indeed waiving the Priviledge No way Dispriviledgable without Leave A Fondness or rather Dotishness of Conceit strongly reigns with some that Outlawry after Judgment will Attach a Courtier Being then Judicially outed of all Aulical Indulgence or indeed Protection of Law This is Commonly Receiv'd for Law and many times Practis'd too but Communis Error non facit Jus is a Maxim in Law and a Canon in Politiques And therefore Conceiv'd by some a gross Error and Solecism of State a very uncivil and irregular Practice and strictly a surprise without leave and so a Contempt and Punishable To the Head-Officers the Deemsters of Priviledge Some may be over-noble and easie in giving leave others too Importuning in Requesting more then Justice or Civility can possbly grant 'T is thought they may still Protect the Servant from being Impleaded for any Act though voluntary and with Consent because uncapable to Contract and a third Person is mischief'd thereby which the Law will not suffer The Relinquisher deserves little Protection for wilfully Intangling Himself however 't is not Just nor Civil that his Majesty should be disserv'd for anothers Folly Par. 76. The Sequel of Vulgar Oversights THese mistakes have begot a general Prejudice on Monarchs and some Greeks in chief the Physicians Son tumbling in muckey Republiques have somewhat besmear'd Monarchy writing not only coldly but depravedly thereof perchance more out of Ignorance then Envy because they knew no better But it hath been found true enough by woful wringings that no Last will fit an English Foot but the Rule by a single Person Monarchy the best Government To speak unbiasly 't is the Exactest Platform and freest from Corruption least inclin'd to twinge the Purse or wrench the Conscience because not given to Faction and great Parties In brief the speediest Termination of Justice and if Credit may be given to Scripture the Pattern of Heaven and therefore most universally receiv'd by all Mankind Par. 77. The Easiness of living under Princes NEither can Monarchy be so Burdenous and subject to Groanings as other species of Regency if fierce and chargeable 't is safer to dread one Tyger than many And less smoaking the Purse to feed one spendal then a Multitude One or two Counsellors in Physick or Law their Judgments mellow'd by Experience are more cheap and safe than many Variety of opinions seldom unite and do but retard the Cure Par. 78. Princes Reclaimable IF a Monarch should chance to be Raw and Riotous if Advice and Honour cannot Age must on Force reclaim But a Senatory or Popular State grows feverish and worse and ever continues so to the end of the Chapter And when all Medicines are Essayed no Remedy by Hook nor Crook can be found out but the Scab totally given over by Counsel and Patience Death will assuredly help the one by Remove and there 's Hopes a better may spring up and please every Tooth but what 's perish'd with the Phanatick Worm But the other is for ever succourless because out of reach of Vicissitude being swath'd with Eternity Par. 79. Supremacy Hereditary more safe then Elective 'T IS stifly disputed by some Athenian whifflers that post-pone Monarchy to hold a Trencher to a popular Elbow whether Supremes by Descent or Choice are the aptest Rulers and most Available for the People 't is said by the Railers against Succession that a Prince may happen to be a Minor unable to govern and Guardians will but make Hay while the Sun Shines Taking Advantage of the Guardianships to Christen their own Child and neglect the publick Good Secondly if at ripe years the Prince may prove a waster and in Dandling his Affection destroy the People And therefore the Scepter is best bestow'd on the Sharpest Sword or the Worthiest Par. 80. A setled Monarchy not Damageable by Infancy THE Disputers against Election may rejoyn and Alledge in case of Minority the Council will supply the Defect and be more watchful for the Shame will be theirs if the Prince suffer through Slothfulness or sinister Conduct An Elective State proves more Heavy and Chargeable for the Party Elected to gratifie his Faction must impair the Crown by large Donatives And to raise his own Stock pull much from the Domain Royal Knowing his Regency is no Entail but must Terminate in him which is often practis'd by Electives and Usurpers as lately with us by H. 4. Par. 81. The Monarchy of England Avowed 'T IS said by the Stormers against Sovereignty that the King cannot Reverse a Decree nor Countermand a Judgment at Law therefore no Compleat Monarch That Judicial Acts are not Countermandable 't is not for want of Omnipotency in the King but Possibility in the Affair for the King in operation of Law is ever Present in Court and hence by the 28 E. 1. En Presence del Roy is taken for the Kings Bench because He is there Virtually though not Presentially therefore cannot be non-suit because not Demandable in Judgment of Law being never Absent but still Potentially Sitting For Instance A stroke within the Resiancy of the Royal Person unless Blood thereupon Ensue is no Amputation or loss of the Hand But in the Iudgment-Hall by the 41 E. 3.280 22 E. 3.13 but the 1 Trin. E. 4. Rot. 3. is in point the Courts sitting for very striking the Hand must be Amputated or Cut off which I find by that Record was accordingly executed on the striker Apud le Standard de Cheap the Reason of the severity is render'd Because in Judgment of State Majesty is Present And the Law the great Preserver of Peace and Reverence to the Sovereign will not away with such an Insolence Now the Lords Justices represent the Sacred Person and what 's Pronounc'd by them is tacitly Declar'd by him And so to reverse or controul what is Decreed by Himself were Absurd and Acts of Justice more changeable then the Moon no Body ever safe and the Glory of England the Law more useless then scribled Paper I 'me loth to let my Pen run in Discussing this Point a fit Theam for an Hubert de Burgo for though welted never so Candidly and Warrantably too by Studied Reason Law I shall hardly slip the Censure of Dodging as a Clawer of the one and an Abaser of the other
with a Collar Band or a large one with a narrow or broad Hem Plain or Lac'd the like of an Hat or Mounteer Cap with a Wast Belt or Shoulder All of them in nature are Indifferent the one equally as Decent and Rich as the other But if the Arbiter of Modes the Court affect one more then the other the Indifferency is Decided then one is become Handsomer then the other because more Modish being worn by Sophies of State whom in Indifferency Regis ad exemplum 't is our Duty in manners to imitate and obey The like in Church Discipline the peevish must content themselves with the Fiat and Injunction of their Betters throw by all Dunstical dogged Humours and comply with the present Form Are Garments that cover our nakedness and defend us from the Rudeness of the Air the less Decent and serviceable for modest Trimmings is Cloth or Serge spoil'd less useful if Guarded for some or not Graceful if Gymp'd for others of better Rank and costly Fring'd the cloth continues the same doubtless much better being decently set off unless slovingliness and sluttery are more sweet and seemly then neatness and sober Attire After the same Comparative how can the Doctrine be vitiated with polite Ceremony purl'd by Order But with unshorn souls of an high nap All 's Fantastical and superstitious that 's not slutter'd and slubber'd with unholy Peevishness Thus Ceremony is the very soul of Order and Order the Governess of Humanity for let but Order turn out and urbanity dissolves Par. 87. The lawfulness of useful Ceremonies AS to Divinity we must not conceive them in their own natures simply unlawful for if so God would not have ordain'd them under the Law And under the Gospel I find none Prohibited but such as are Enthralling to exchange the Liberty of Grace for the Tyranny of the Law The Apostle indeed doth condemn Circumcision Jewish observings of Days Months Times and years which are no less then superstitious because unprofitable However we are bound by the Gospel to retain those that Conduce to Edification Order and outward Decency in the Church Otherwise the same Apostle would never have commended the Corinthians for their Care in keeping the Ordinances which he deliver'd to them which Canons were after the opinion of the best Doctors concerning the outward Worship not about the Essentials as Faith and Repentance but reverent Behaviour and Gravity the Adjuncts of Religion 'T is true our Saviour reproves the Samaritane saying that He must be Worshipped in Spirit and Truth and no more Idolatrously after the accustomed Samaritan Worship But in Truth not in Types and Shadows but in Christ the substance And no longer in Respect of Promises and Predictions which were fulfill'd by the Coming of Christ Thus Spirit and Truth the often wheasings of our Dissenters I conceive very clearly are not opposed to Ceremonies in General only to legal ones which were Typical and to cease on the full Manifestation of our Saviour Let some Mouchers from the Church of England resolve us what more Damage or Hurt they can be to Gods Service now then when God expresly enjoyned them if the Heart be Righteous for unto the pure all things are pure But Momus when he could not spy any Blemish in the Picture of Venus pick'd a quarrel with the Slipper Par. 88. Discipline fram'd by Princes Allowable by Law A Christian Prince is out of all Doubt in Right of Divinity Episcopus extra Ecclesiam the righful Overseer as to Externals and Orderer of Ecclesiastical Concernments though no Bishop in the Church to exercise the Priestly Function without a Call King Vzziah might not burn Incense nor offer Sacrifice He may order and Command the Persons of the Clergy and enjoyn them their Task so King Jehosaphat commanded the Levites and Priests to teach the Law in the Cities of Judah As Princes have Power over outward Concerns so 't is their Devoir and ought to be their principal Care to promote the Service of God They must not act against Gods Law nor reign with a loose Hand that may be injurious to his Rites or Worship They 're bound to down with all false Worship to Prohibit and Resist all Attempts that have but the least Tincture of Tendency thereunto in securing the Church from being a Puppey-slave to a Foreigner So did Hezekiah Josiah and all other good Kings of Judah Par. 89. Sovereigns are Erectors and Judges of Ceremony THus after the Warrant in Divinity the King in Law is Censor Morum the Modeler and Controuler of Discipline Beneplacito Regis quoad Ritus tanquam legi obtemperandum est His Majesties Mandamus quoad Ceremonials is Law and in this sense An Order of State hath been Adjudg'd Equipollent to an Act of Parliament Therefore if Lex Loquens the Oral Law or Supreme in this Case delegate his Power to the Church for these outward Ministrations 't is good and obliging if quadrated by the Apostles Rule in Decency and Order who but a Miscreant will bend his Brow to deprave and Disobey Hence may Copes and Bowing not to but towards the Altar and the like be Binding because Decent and Harmless if the Church enjoyn it though I confess I am not much for either but if the Church adjudge it fit then my Indifferency is circumscrib'd I must obey in obedience to the Church as matter of Decency That 't is bad because a Dalilah or Fondling at Rome is Lobster Logick Papists eat and drink therefore we must padlock our mouths and throw the Creature to the Dunghil Nay Indian-like even abandon Heaven because they profess to land at that Port as the Haven of Souls I 'm as resolvedly against the Fucusses of Rome as Ridley or Cranmer and shall venture more then the Digging up my Bones for the Reformed Truth In fine if any Bracks in the Discipline to the Blemishment of Christs Church 't were but mannerly zeal for the Taunters against Decency to discover them in order to be handsomely Dern'd up and Amended without Renting the whole Piece SECT XIII Par. 90. The Pilot of the Soul for his careful steerage is worthy of Double Honour BY the Canon Law an Office requires a Benefit a Position in nature for each member to aid and requite the other most Absurd then for the Caterers of the Soul to be at great charge and baulk all worldly Hits to live otherwise to fit themselves to administer Spiritual Food and be grudg'd for their Catership a Carnival Return 'T is but Common Barter nothing of Bounty the bruted misers of the world Lawyers and Physicians the one to frisk and capeer the Body the other to ravel and tangle the Estate are greas'd with fat Thanks But the manciple of the Soul for his Guidage and Pasturing of the Spirit must fare hard and nibble upon a Rock But how can their Revenues be ravin'd or repin'd at without Sacriledge or the grossest Impiety their Demeans most Hippo's or poor Pittances and
Maunderings of some Mopsey Heads but the Doubting of Causidical ones Judgments of the first Rate as not strictly maintainable by the Law of Reason though Reasonable a very nice Reasoning which doth not attach the Reasonableness of the Custom For should the Fortune be Hutspotted or slic'd into Driblets the whole Class of Honour would soon moulder away and in a short time come to an Alms In fine the Monarchy Rebate much of Ornament in Peace and strength in War go very low and shrink into Splinters Thus with severer Judgments 't is no unconscionable or foul Dealing to Horse the Eldest and to leave the younger to seek out for a Steed Par. 106. The Casual Promotion or Right of Descent IN nature this Gourmond Flanting of Eldership or Repeek of Primogeniture is but the Chance or lot of being the First-born Hence Inheritance is the fortuitous Dole and Favour of Fortune and Godee Fortune a plain Lotteress where usually the solar or most Excellent are fobb'd off with Blanks But the Saturnine or Gaffer Souls grac'd with the Prize in Justice happily no hard measure since Ideots would trouble the Door if not buoy'd up by the Imagery of Happiness And since others are enrich'd with Arras the Goods of the Mind they may well be Content they enjoy more then what feathery Revellers can ever hope to attain However the Moderator or Vmpire of the Law Equity which should relax and qualifie the severity of Justice will give no Redress But Capuchin-like leave the Children to seek their Bread exposing them to pittiless Charity for the Chancellor is bound according to the Maxim To order the Kings Conscience according to Law Par. 107. Estates partible by some Sanctions BY the Civil Law generally the Inheritance is Divideable among Males At Common Law if the Estate be Personal 't is likewise shareable But Primogeniture is a gracious Minion of the Common Law For Example If an Advowson descend to Coparceners And they can't agree to Present the eldest shall have the first turn And the Assignee By Right of Seniority or Priority of Birth Par. 108. Customary Law consists with Reason BY Godmanchester or Borough English for the youngest Son to come Peeping after the Inheritance is more then lustily promis'd perchance orderly setled justling out the eldest and snap all into his Claw is a Pertness with most over-bold and unmannerly I confess this Law by many is adjudg'd very odd and crabbed against the very Course in nature For by the steps in Nature the first in Being as eldest in Knowledge in Justice ought not to be youngest or last in Love But first in Preferment According to Philosophy there being no Motives in nature for a moral Tenderness for what 's unknown In Discretion to leave a Swan for a Gosling is a strange Levity Having eaten no Salt with the one the recent Companion may prove old in viciousness though young in years And so no good Angel for our Embrace Though the right Hand was indulg'd by Jacob to Ephraim before Manasses which Joseph would have conferr'd on the eldest But it seems the younger was the Tidling Dads nown Child or Mams White Boy or according to Law the least thought on the most unable to shift for himself but as much a Gentleman And so merited the more Pity and better Portion Mootable Doubts 1. But whether Lands of this Tenure in case the youngest shall die without Issue shall still descend to the younger And not to the eldest after the Course at Common Law are fine Moots for Utter-Students 2. Whether one seis'd of these Lands leaving Sons the Wife Inseint whether the Son in Esse shall Inherit by virtue of the custom or the Posthumus or After-born shall oust him as in Shelley's Case is a quaere for the under-Mooters For by the 11 of Car. 1. I find the Court Divided in both Points Par. 109. The Inheritable Levellers or Brotherly Sharers a warrantable Custom IN Gavelkind that the Brothers only Doient ouellement Inheriter should shoal together to share alike and run away with the whole Blessing And put by the poor Sisters to pick sticks to make their Pot boil And happily go without the Price of Esau's Birthright for their Pains to Blunderbusses is very Hog-like and almost Incredible Owelty of Partition Reasonable This Parcenary or Co-Heirship of Lands hath been along Time in usage because built on the clearest Reason for that every Son by the Verdict of Heraldry is a Gentleman alike and in Possibility of Law Co-heir or equally born to the Blessing who happily through honest Strivings may not only make Himself but even enlarge the Family if turn'd abroad with Powder and Shot to bird for a living that is somewhat fledg'd with Res relicta a Competency which probably may render the Flight Prosperous But if thrown off with a Spar-Hawk and four Nobles Rent when he can catch it or kept at Home all his Prime as a Drudge and when the Parents turn is serv'd shak'd off without Hands or Legs naked into the world his House can expect no Advantage or Credit by this scanty cruel Purparty and unnatural Nurture but Calamity and Shame for that Brick cannot be had without Straw nor even mud Walls dawb'd up by Drudging without Materials The Egalty of Sharing no new practice Neither is this Shashton or shifting without President for the whole world became a Divident among three happily imitated by the first British King and so continued But this Co-Heritage or Partnership of Estate was very provisionally to make good Families by the 31 H. 8. made indivisible after the Course of the Common Law this Inheritance pro Indiviso or dribleting usage proving very devouring As the Child of Idleness and the Decay of brave Descents Law Ruleable by Custom A stranger Custom I have from our ancient Writers that if a Freeman took a Villein to a Freehold and libero Thoro or Free-bed And they had Issue two Daughters one should be Free the other Villein The servil'st Condition of Servitude The Substantialis which Bracton speaks of that what is the Servants either by Descent or Acquest shall be the Masters is a Law fuller of strangeness Par. 110. Custom Patron'd by Law THat the Heir at 15 by Feoffment may alien but not by Devise nor by Lease and Release which in Law of Charter Lands amounteth to a Feoffment By some custom when He can measure an Ell of Cloth or tell twelve pence with crawling scruplers savours of the Cross and Pile or Span-Counter for a meer youngster just out of the Shell may perform so easie a Task And yet to be inabled to do the solid'st and gravest of Acts is strange up to the Hilts for so we must adjudge the Parting with the Temporal Blessing for without it the soul can hardly solace in a quiet Sphere to mind Heaven Par. 111. A Concession void if not Pursuant to the Custom IN Copy-hold Lands if the Custom be not strictly pursued the Grant may
the Bishop is generally Amerc'd Permissive waste unpunishable 10. If one Demise a Farm with a fair House and fruitful Herbage thereunto Belonging at will And the Tenant prove an ill Husband over slothful and Base suffering Both to go to Ruine The House to fall down for want of timely Repairs or Burnt through Carelessness And the Land to be Juncose or become Rush'd over even over-run with Weeds and chok'd up 'T will soon be Demanded How the owner shall right Himself of so wretched a Fellow At Common Law by the 42 43 Eliz. B. R. I find it Adjudg'd in Point no Relief And the Statute of Gloster leaves it Incurable Neither do I find it Curable at all for by the Pliers in Equity I 'me Assur'd the Chancellour is not sworn to make Fools Wise If men dread any After game a Gods name let them Away to the learned Lawyers and for a good wholesome Fee they will secure them against such unlucky Rentors Voluntary Vastation Punishable 11. For spontaneous waste as pulling down of Houses Ploughing Meadows Destroying Woods which alters Evidences and so tends to a Dis-inheriting I conceive it Punishable by Action of Trespass It amounting to the Determining of his Interest without Entry of the Lessor Par. 116. Conscience must be Submiss and Silent to the Digest of Policy Law NOW there 's no Mooting for Conscience in these Points it must Conform and agree it for Law And if Law then Justifiable at the grand Sise for if not Connatural or of the like Dimension with the Law eternal 't is monstrous and not to be practis'd To clear this by a Case If J. S. infeoffe J. N. of all his Lands in London and Middlesex And give Livery only in London the Lands in Middlesex will hardly pass Had they lain all in one Shire though Remote it had been a good seisin of All. In natural Conscience doubtless they are Convey'd by the same Intent Compriz'd in the same Deed and the Consideration the same yet the great Oracle of Polity the Law will not allow of the one though it tolerate the other Conscience guidable by Law A Bond defeasanc'd to murder J. S. is void but a Feoffment Condition'd that the Feoffee take a Purse on Black-Heath the Estate is indefeatable though the Condition be impudent and bindless So A Grant that the Grantee shall not Alien nor be Pernor of the Profits the Estate Compleatly good though the Provisoe be trifling and illegal an obligation in both Cases Concords with Law For a more Familiar Diversity If an Infant or Mad-man steal or kill unless wittingly and maliciously they shall not be impeach'd But in Trespass for a Corporal Hurt they may be impleaded and punish'd too So In Felony if the Principal die or be pardon'd before Conviction the Accessary is quit But in Trespass 't is simply otherwise For If J. S. abett his servant to strike J. N. or burn his House if the Abettee die yet the Action of Trespass or Conspiracy stands good against the Abettor In these Points according to the sages of Political Reason Law from Diversity of Law arises the Diversity in Conscience which ought to be lead by the Amber Chain of Reason that is Law And not by the Hempen Cord of Fanatick Opinion Thus may we see with half an Eye indeed if blinder then a Beetle how Insolent and Groundless Pretence of Conscience is represented by the Perspective of Refin'd Reason that clean and blanch'd Reason doth not regard every Scullion frantick Humour nor will it be rul'd by the Distaffe so it respects the safety of the Church the Common Peace 't is sufficient to be engrav'd in every Breast and obey'd by All but Rebels and Pagans Par. 117. A good Conscience Regulable by Law TO come more close to the Saints to prevent rude Sallies on Divinity let 's agree the Conscience the Reflex of the soul or Nuntio of the Diety garbling the good Objects from the Bad the white Angels from the Tawny Ad vulgus or in a secular sence 't is still but Winnowed or Exalted Reason Law which must be Hammer'd and Regulated by Magistracy and since Oracles are ceas'd the voice of God silent what other Asyle can there be 't is true the Power Divine in the Throne of Diety the Soul is still vocal though not Articulately to the Ear yet Intrinsically by the Impulsives of Nature to the Conscience his speaking by Supremacy must be Recorded and as to Externals the Dictates of Fann'd Reason Law ought to be obey'd A Citation before an Incompetent Judge dangerous To instance this by a Case If J. S. be Excommeng'd in the Court spiritual for matter of Temporal Cognizance which properly belongs to the Crown and Dignity Royal He must be Assoil'd without making satisfaction if the Plea be continued a Premunire may endanger the Party litigant and Iudge too So If a roguish Royster lay violent paws on a Clerk Handling Him somewhat roughly with Blows the Battery is soly Determinable in the Court Temporal the Rudeness to the Person Pour ingetter les violent mains sur luy in the Court Christian At Common Law Dato that a Lease by Deed is made to J. N. Remainder to the Right H rs of J. S. with Livery too according to the Form of the Charter Here 's a good Estate to vulgar Reason in Conscience but in Law the Remainder if J. S. be then living flutters without a Wing and is void The like Lessee for 40 years takes another Lease for 20 years Conscience intends to inlarge his Interest to 60 to make it up a round number of years equivalent to a solid Estate However his Condition is worsted and in Law here 's but an Estate for 20 years Thus Conscience must comply with Law if not the Law will be more then Angry fling and bite too Par. 118. No Faultiness in the Law WHY should sublimated Reason the Law be storm'd or flouted at being no way Factious having no side no by-ends no leaning or Respect to any I confess 't is past ordinary Cunning to encounter this Monster to reduce Schism to the lines of Mediocrity to submit to legal Prudence and Authority Spuriousness of Zeal to spurn at Law The world is come to a fine pass huge Hopes of Saint-like Times when the Spindle and the Prong every blober-lip'd Wise-acre not a Flight quoad Intellectuals above a Plant-Animal must question Acts of State And not only demur in Obeying but manfully jocund Himself in Resisting 't is neither grave nor safe to romp and wherle through Thick and Thin lege inconsultâ without Advising with legal Discretion to plunge themselves in needless Troubles The Law marches slow but discharges swifter then Pegasus Par. 119. Single Conscience must Conform to the Vniversal I 'Me ignorant of the Reason why a Private Conscience should not comply with the Publick that is the Law Provided it be no way Pernicious overtly polluted with superstition not Incongruous with the Word
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
vindicate his Honour Herein I find the Concurrence of the Law of England in Pascatia's de la Fountaines Case a Spaniard whom the Judges conceiv'd no Enemy to be deny'd the Benefit of Justice till open War were proclaim'd between both Kingdoms though several Acts of Hostility were Committed Arms justifiable if Repairs be Refus'd By this we may Collect that a Prince may justifie Arms if satisfaction by amicable Demands be deny'd But to snatch and pilfer a Booty by Law Military without Proclaiming War and Throwing of the Dart is doubtless very un-Prince-like and unjustifiable strictly by the Law of Honour no victory only oppression by Surprise and Rapine no valianter then to Draw on a naked man or to Creep on a slumberer to prevent his Wake In both Cases by the Gallant Hen Heartedness and unwarrantable Law neither Costly nor Vncivil 3. For the third Going to Law not simply unlawful for then not only the Coat but the Cloak too would soon be gone And the Body left over naked without Leaves Vnlawful only sub modo by Circumstance of malice oppression or the like That with the Apostle is utterly a Fault and no Darling of Law The Law like the Deputy of Heaven the King hath no gloting Eyes petty offences are not only Traversable but not Actionable Regularly the Law will never fester where it can cure Being the Physician General of the State to prevent strife and not to beget it therefore words of Heat and Choller though utter'd by a small member yet often sharper then a two-Edged Sword the Law will not heed without Temporal Damage Would to God the Factious knew their own Happiness Frolicking in Goshen that even over-flows with Wealth and overmuch Freedom then they would leave Flouting Magistracy and Back-biting their best Friend the Law for the Law more tender-hearted then the Empress that hatched an Egg in her Bosom like a good Master to whom we have All sworn Allegiance principally aims at a triple Avowment to make the Subject Compleatly Happy The threefold Protection 1. To Guard the Person 2. To defend the Estate 3. To preserve that which is more Precious and of a Nobler Preise then both to wit the Good name 1. If the Person be menac'd and but in Dread of an Assault the Bear may be muzled at Common Law as a Trespasser As well as Justiced by Surety de bono Gestu for the good Abearing For Example If A. slay B. though necessariò as the Civil Law terms it in safeguard or Defence of his own Life the Town shall be Amerc'd with the loss of his Goods Though Justifiable even by the Law of Nature and Commendable too to kill rather then be kill'd yet the Law will Punish in Testification of Tenderness that heretofore was Death At Common Law Killing by Misadventure though not Destinatò with a man-slaying Intent 't was Murder nay by 21 E. 3.16 a Man-slayer though se defendend ' was Hangable and estate forfeitable in both cases as of Murder Neither is there any great Injustice or strangeness in this without a slaughterous Intent or malice prepense for the same was at the Judicial Law before Sanctuaries and Cities of Refuge were Erected But these Mischiefs at Common Law were Remedied by the 25 H. 3. the St. of Marlebridge This strictness without malice preconceived was the Law of mercy in Prevention of Blood ut Dolor ad nullos Terror ad Cunctos perveniat to fright All and punish none 2. For the Fortune one's more safe by a Quare clausum fregit then if surrounded by Xerxes Host 3. For the Good name Repairs will be bad against Defamatory Bullets snagled by malice by Action on the Case which will still keep the worthy more Shot-free then Caeneus Par. 221. Property Demonstrated THat ambulatory Trespass may be brought 't is on necessity of municipal Reason to avoid a publick Inconvenience For in supputation of boulted and seirs'd Reason all Lands are mounded though they be Campagne or lie unhedg'd which among Lawyers is Reason not far fetch'd much strain'd or Imaginary if we Consult the Dominion of the Sea which by Reason of its floting Currency cannot be walled or Paled in nor limited per metas Bundas by meets and Bounds after the good Husbandry and Usage of our Mother Element yet in Contemplation of Law 't is deem'd shut and Enclos'd though the Fence be not pointed out by an Isthmus Rock or any other known Buttal like an Agrarian Mound By the Marine Law any kind of Putative Boundary by oblique Lines Turnings and Angles doth Express Shutting and Enclosure And in nicety of Law annote as great a Right on the Sea as any Arcifinious mark or visible bound on Terra firma in a legal Meaning those Extracluse Buttings notifying a bounding Frontire or bordering Royalty The Lordship of the Sea Debated and Avouched On this Notion in Law 't is not hard to Conceive a Naval Sovereignty though Expos'd with open Arms Catholick and Common to All. Yet may the Pischary as in private Rivers with other navigable Priviledges be claim'd and enjoy'd without Encroachment or Infringing the Vniversal Rule or Law of Nations The famous Civilian that labours to have it in Common argues more like a Philosopher then a Lawyer when he draws his Flourishes from the Freedom of the Air with others of the same strain which are meerly Rhetorical and not Topical For what 's in Occupation Custom or Command there 's Property in Law or within the Reach or Protection of our Timber Walls the Law will create a Property But that some Waters are positively so none can gain-say Therefore Community without leave is a Disseisin an Encroachment or Breach of Civil Peace and good Cause of War if Reparations cannot be had otherwise Tokens of a Maritine Interest The Constant Homage of Loring the Sails doth imply Dominion otherwise Strangers of as high Insteps as our selves and stand much on the Tiptoe of Honour would hardly be so Civil signifying in Law as Flags and Marks of Sovereignty Christ-Dole Demandable and Due In a Pond Mote or several Piscary Tythe payable as a Predial and ought to be set forth as the 2 of E. 6. directs of Fish taken in the Sea as Decimae minutae like Herbs some Doubt hath been made because ferae naturae and the Sea within no Parish which are but Tiffany Reasons and not at all Convincing for Aquatiles in fresh Rivers are just as Haggard or unreclaim'd And Lands though Extra-Parochial are held clearly Tytheable to the mixt Person 't is granted a sum of mony shall be paid in lieu of Tythes which infers sufficiently the Law thereby adjudges an owner-ship If Exotick and purely Personal why then more Tytheable then Spices and Lemmons But by a late Prohibition I find very Tythe demandable for Fishing in the Sea on their Landing And that the Spiritual Court might warrant such a Libel The Bi-partite Property of the Earth At Common Law the Earth hath a two-fold Entire
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
Admonish'd against Apostacy WIlfully in despight of the Checks of Reason and Chidings of Spirit to serve from the professed Known Truth Is an Imp of Apostacy Total Never getting up to its Reprobate Mounts but ever effecting a fatal Downfal in the Climer Let me Counsel then some Margent-Stuffers the Vomiters of Cursed Speculations to keep their Venime to themselves And forbear Spawning such hellish Whimsies to the Deflowring of Virtue and Strumpetting Religion Shiness Requir'd in Putting forth the child of the Brain As Words are the Images of the Thoughts so Books the Calender of the Brain and Dial of the Soul Pointing out the inward Man Therefore Heads of the finest Mould and choicer Forms whom some stile Schollars should be nice and wary how they send Abroad infectious Ramishness to dirt Religion soyl and slaughter too their own Souls In brief discreet and modest Persons for very Reputation 's sake will hardly bring up their Issue reprobately But if desperately Dispos'd Contrary to all good nurture and Manners they will be Asham'd to send them out and scarcely own them The like of the Intellectual Off-spring as of the Corporal All but Crazy-brain'd Virtuoso's meer Blurrers will hate and defie to father any Progeny but what 's Perfect and Consentaneous with Civility and Law Seditious Scriblings blot the Soul In fine at the great Day a single sheet of Conformity Compos'd in Charity will inherit a larger Mansion of Glory Then Voluminous Tracts ronk of the Comedy or Satyr against Church or State Par. 147. Extraordinary Acts not Imitable THat David did eat of the shew-bread and our Saviour of the Ears of Corn at the uttermost Pinch to avoid Famine is not to de drawn in President to justifie Sacriledge or Rapine The one was an Humane Diety and the other divinely Inspir'd or Minister of Heaven and might act more Transcendently then Carnality now adays ought or dare to imitate Besides 't was Necessity which Advocates cannot restrain but legum Vincula irridet breaks through the strongest Fastnesses of Law that necessity in Epikay by the Rules of Extremity might vacate the Propriety and legitimate the Act. But to speak strictly according to the Mosaical Indulgence and the Law of Nations 't was neither Felonious nor even Trespassable and so in a manner Lawful Necessity considerable in Law 'T is a Topick in Law that this swadling of Extreams necessity creates a Priviledge or Indempnity quod Jura Privata against private Bonds Therefore in Defence of life some say Alimony may be made Bold with without Breach of Law Municipal or Moral If a Prison casually happens on Fire the Flight of the Prisoners is neither Escape nor Breach of Prison In case of an Assault in Preservation of Life and Limbs to keep in a whole skin one may fly over anothers Ground without the Riscoe of a Trespass Hence the Conjunction and necessity of obedience between Baron and Femme in Felony shall Excuse the Trull from being Principal or Accessary In Judgment of Law having no will that is during the Coverture no free Agency in her self But wholly sub Imperio under the Rod to most Intents in Law much Inferiour to the state of an Infant In brief by Fogassa's Case this imperious Governess of Humanity necessity is very Absolute and Lawless And will dispense even with the very Letter of a Statute Pety Larceny Condonable in Conscience and Law But the Gathering an Apple or a Grape will not warrant Larceny Though by the Law of Moses it escape the Judgment of Thievery In Construction of Law because of the Implicite Consent or tacit Perswasion that the owner will not be distasted at so sleacy a Damage And so Intentionally and Consequently in Sereness of Justice no Theft And hence the Law of Nations did indulge a Traveler to take some Grapes to relieve his Hunger but not to Carry away But the Pernancy of Taking when gather'd by the owner or to his use as Chattels sever'd may alter the Case and amount to Felony May this justifie a Backberond or Common Thiever with all Lewdness and Wantonness of Heart meerly for Spoil and Lucre to rob Orchards and waste Vineyards We read that Israel Robb'd Egypt and Elisha slew the Mockers will this warrant Stealing or Murder as Adlely can the former Case be urg'd as a President to inthral or despoil the Church to strip her of an Estate Ratified by Law Ingratitude no Venial Sin I 'me tormented some manumitted Students void of Thankfulness the noblest Predication of a Gentleman should forget their Manumission and Pardon to merit the Censure of Ascendants from the Dog Star for their Shoving and Snarling against Law SECT XXI Par. 148. The Ministers of Devotion by the Minstrels of Sedition Tabered down As the Dormitories of Owls and Gorguts THat the holy Tabernacles or Religious Houses were thrown down in furious Times Are not Paths that we must necessarily tread in However I shall not scruple the Sageness of those Footsteps because Affirm'd by Law Distingue Tempora Ponder but the Touchiness of some Times and their Actings not so Oraculous as to be Querpo Justice and Picquant Patterns To judge of Colours by an half Light or Commonly as some do in the Dark or Mistiness of Humour implies Feebleness of Judgment A Discussing altogether Fallacious and no way satisfactory Par. 149. Voluptuousness not the End of their Erection THat Monkeries and Frieries became Luxuriant and a By-word to Sanctimony And so digg'd their own Graves cannot be Deny'd However the Design by the 35 E. 1. apud Carliolen of Founding those secluse and solitary Enjoyments without Doubt was not at all Voluptuous nor Owlish But with much Stanchness of Wisdom and most Divine Reasons why Monasteries were Erected 1. As Colledges of Rules and Retiredness to advance Learning and plant Devotion to fit the Clergy the better to purge and purifie the Lay Soul the safer to Insure it to Heaven 2. To declaim incessantly for the Church to keep Centry for secular Souls Continual Watch and Ward for their Spiritual Concerns That were clog'd with worldly Slaveries and could not so aptly Mediate themselves 3. To be a Pharo's or Blazing Stars of Holiness of Life not Sleepers or Chambering Bubbers 4. For the Retirement of great Spirits wearied out with publick Toil to withdraw from the Drummings and Broils of the World To wait for the nunc Dimittis or Call to the other Life A Cloister an apt Counting House for the Soul For after we are mounted to the Alps of Honour the great Ends that we are born for being Attain'd in serving the Prince and Countrey even Achilles being not Death-free we must to Dust the Shooting of that Arrow being uncertain to arm against its stroke the next and proper Flight is Solitude to go off in Peace in Contemplating the Sphear of Glory No Aiery of Dormice For this the devout Fathers of the Church retir'd to a Monastick life to Compute their Frailty to set All even for the other
World Par. 150. Dronery no Founder of Seclusories or Academies of Sanctity THus doubtless the End of those Religious Anchorisms or Cells of Piety was most Angelique not dronishly ordain'd as Hives for pot-bellied Buzards or Dortours for Swill-bowls But as Seminaries of State for the Propagation of Holiness and Improvement of Learning That the order was Criminous and so deserv'd the Axe because the officiaries were Dronish and Disorderly doth not weigh with some The Abuse in Law cannot Vitiate the Vse for then Frontiniack and the Friqueezes must be Banish'd the Table because often Abus'd through Intemperance Reasons why Thrown Down But the Excess of Implicite Zeal heaping mountainous wealth upon them which in Time might have absorb'd or gulf'd up the whole Laiety and their own Dronishness neglecting their Office with that Reason of State very just Dissolved them is a nemine contradicente Agreed by all Hands Par. 151. The Disanulling justified in State 'T IS the Doubt of many especially of Divines whether the Possessions be still Teneble in Conscience I 'm clear in the Affirmative 1. First in Law the Converting them into a lay-Fee was no Chimney-Corner Act the Off-spring of Passion or Infidelity but the publick Judgment or full Debate of the whole People pronounc'd in Parliament Adjudging by wearied Experience the Droning over notorious and the Church cloyed with Superstitious Luxury which render'd their Office useless and Abominable Being too great an Engrosser of the Temporalty beyond the Cure of Visiting or Purging so the Depriving or total Abolishing no Infeudations of Rapine or oppression It being the very same Power that Created them that Disanull'd them The Law that gave them a Being without Injury to Church or State might likewise Dissolve them And we are not to Conceive the least Prejudice imaginable against their Inactings being Presumed no sober Person in his right Wits will ever wilfully wrong another nay wittingly destroy his own soul For so had it been were not the Demolishing necessary and Civil The Dissolving maintain'd in Conscience 2. For the Niceness in Divinity how a Spiritual use without violence to Conscience can be Transmuted into a Temporal Contrary to the Will of the Donor is a Demurrer that sticks with many of singular Parts But thorowly understood there 's no just Cause of Scruple A Surfeit being better spar'd then continued therefore the Taking them off an Act no way Dolorous or Inconvenient The Worship of God consisting not wholly in the Estate Spiritual the good Management of the Temporal doth no less glorifie him For if that Faint the other will hardly Flourish so that there 's a necessity to uphold the one to support the other And we may discharge a good Conscience very liberally to the Instructor of the Soul as much as Heaven doth require without making him an Idol like the Dotage of those Times in Offering All we have to purchase a Kiss of St. Jude or a smile from St. Peter and be laugh'd at for our Pains 3. Were the Church much Impair'd so Beggard that an able Clergy could not be maintain'd And all Encouragements taken away to incite Youth to the Study thereof And thereby the Service of God neglected and like to fall or even the Votaries to Virtue at all Damnified I should Agree the Negative But sufficient being still left if us'd soberly to propagate Religion And no just cause of suspecting any Decay of Learning the Remains being most fair and Inviting Means still enough for the highest Merit I cannot see with the search of both Eyes as the Church now stands what Annoyance the 27 or 31 H. 8. can be to any intelligent and Loyal Conscience that 's a true Obediencer to King and Law The Abolishing not Contrariant to Civil Justice 4. If not Continued Spiritually why not Reverted to the Right Heirs This Request seems Plausible had not so many Centuries pass'd that the right Heirs without a Divinour could hardly have been found out A multitude of Claims would soon have put in and the very true Heir scarce have ever been Known And so the Land given back to meer Pretenders and false Owners Then the Cure worse then the Disease The Infadation of Droneries or Permuting them to a secular Free-hold warrantable in Divinity 5. But had the Institution been so Fresh that the lineal Heir had been then Alive and Certainly Describ'd and Known However the Transmutation lawful The Giving being Intentionally Publick and Consecrated for a general Benefit happily a By-bag or spare Revenue that the Heir might well part with and never sleep the Worse And so not originally Design'd for Him but Advisedly always put aside by the Giver for that Purpose The Disposing of the Grant to another end then what was Directed by the Grantor will be neither Forfeiture nor Frustration of the Grant Because still enjoy'd by the Publick according to the Intent of the Giver the Gift only Imployed to a more needful and better use then the Continuance of Droneship and slavering the Adored Toe Agreeable with Foreign Laws Neither is this any suddain opinion without Authority for the Civil Law allows of the Conversion as Legal and Honourable As by Lysimachu's Decision Who desirous to live in After-times charg'd some Lands to maintain publick Shews which happen'd to be forbidden and put down by Law Two Questions 1. How the Rent should be Dispos'd of 2. Whether not Accruable or Descendible to the Heir Resolv'd 1. The Legacy could not die though the literal Use became Unperformable 2. Therefore 't was ordered that the Magistrate with the Heir should advise of another way How the Intent of the Legator might be gratified The Tenure as Durable as other Tenements 6. These Possessions are Commonly Twitted by our Well-willers to the Cast of Drones or Sleepy Crammers to be of a Volatile and fleeting Nature And so not to be Enjoy'd or indeed worth Looking after Being bann'd with an unlucky Fate or Mark of Divine Displeasure Therefore seldom or never staying long in one Hand but very swift in Passing away Sometimes proving meer Plague-sores Infecting the other Estate bringing All to Confusion Therefore some Conceited Heads otherwise wise enough are shie forsooth to Purchase them Their Twitlings Blown off A very weak and false Aspersion and groundless on Design by Papish Plotters the Vnderminers of the Church of England to discourage all honest People from Purchasing or in sooth Holding them To resolve these idle Giberings or Popish Bannings which are as Credible as the Legend of the Crow mourning over St. Vincent's Corps or the Reliques of Aleppo We may say of them as justly as of old Granam's Winter Goblings or Gossoping Prophesies That they 're mark'd when they Hit but never when they fail The same with these Lands when they happen on Sale a thousand God-morrows and jabering Pritlings must pass But they may stay till Dooms-day before any Boast be made of their Prosperity and Luckiness of Continuance 'T is aptly observ'd by the
Accomplishment without the Party be Dextrous in Jabering French I detest that Mimicalness Deeming our own Mother Tongue just as Good if not more Expressive Elegant and Grave 3. If the Ticklish take snuff at the Jocoseness feeling himself thereby Galled I wish it may prove a Drench strong enough to prevent his further Retchings against the Church I mind not the Telescope of Spite the Squintings of Gibers or the waywardness of some Shuttle-Cocks nor indeed the Pryings of the severest Censour being Conscious of my own Candidness having made no Breach of Charity or Civility conceiving Huffings and Durtings Billingsgate Arguments will never make a Proselyte And therefore forbore all Tartness of Expression more then what the Subject matter did of necessity require not a syllable hissing at any Body in Particular by Anagram or Circumlocution no Lampoon of Wantonness nor Iambicks of Malice the frequent Arguings of the Spawlers against Prelacy 4. Making a little Bold with the Masculine Saintship perchance with the Mild might have been somewhat Pardonable If Chiming against the Female had been forborn which with the Guilty seems untunable and Hideous I cannot think striking on this String will be either Maget or Moat in any Civil Eye not blear'd by Faction for I handle them without Levity or Gibery with the Julip of Bowels without the least Cramb or nick of Reproach to take off the fiery Depravedness against Monarchy Aiming to Disabuse the negative Believers or wandering side in Rescuing their souls from the ridiculous Cosonage of this holy Imposture 5. The Discourse in the Bulk being purely Controversal acting no individual Person only Checking by the Modishness of Reason and likewise by the Laws of Charity Counselling the Beguilers I need not Imparle with the Discreet to pardon my Slippings nor shall I much care to take off the Spatterer from his Mocking and Mewing By the Enchanting way of the Saints with Cramping the Spirit to flourish my Pen with bumbast Phrases or Perfuming it with Flattery the Cardinal Doctrine of Sedition Neither can I surmise that the sowrest or peevish'st Person alive that advises with Civility will be in the least offended at these Debates being no more then a Modest Defence for the King Church and Law of the Land which the Lowest are not only oblig'd in Thankfulness for their Protection and Enjoyment of Peace But formally bound up by Oath to honour and yield Obedience 6. If proscrib'd by the Orthodox I shall lend my Hand to the ostracism And that the Church might be Indempnified rest Pleas'd and rejoyce in the Proscription May the great God of order reclaim these turbulent Rangers from being any longer Gull'd with the flashy Saintings of Delusive Clouds to our Sorrow and their own Ruine Lord chase out all Flashiness of opinion all Growlingness of Humour And Restore them to their right senses to render obedience to thy Word and submission to the Law And they must be Happy even against their Wills FINIS 'T IS desired the slips of the Press might be Corrected before the Perusal that the sense of the Author might not be Mistaken Misprintings PAge 91 line 11. for from Appearance read his Appearance p. 114 l. 16 for Nicity r. Nicety p. 115 l. 8 for Statude r. Statute l. 13. for by ome r. some p. 117 l. 23 for or Assigne r. or make an Assignee p. 126 l. 13 for by an r. by any Act or Deed p. 138 l. 13 for Talleg r. Tallag p. 174 l. 12. for Back r. Bank of Reason p. 213 l. 12 and Estate r. and the Estate p. 286 l. 14. for overture r. overtness p. 300 l. 15 for from r. for The Contents of the Sections of this BOOK Sect. I. THE Occasion of this Discourse Page 1 Sect. II. Prelacy a graceful Prop or Column to Nobless Page 10 Sect. III. Tidlings over-Fond and Dangerous Page 21 Sect. IV. To pride our selves sager than Law is both vain and unmannerly Page 32 Sect. V. Sophistical Cavils or idle Belchings against the Common Law Page 46 Sect. VI. Complainings against Equity Page 55 Sect. VII The supposed Deformities and very Freckles of the Common Law Inspected and wash'd off Page 63 Sect. VIII The whole Scheme of Law Disquisited and Assirmed Page 89 Sect. IX Groundless Cries against the Pontificial and Civil Law Page 95 Sect. X. Murmurs against the Meritorious Page 100 Sect. X. Captious Brablings against Courtiers Page 120 Sect. XI Kingdoms Resembled to Families where the Troublesom are thrown out Page 140 Sect. XII Ceremonies Expostulated and Asserted Page 144 Sect. XIII The Pilot of the Soul for his careful steerage is worthy of Double Honour Page 156 Sect. XIV To be Incumbent of Livings is neither Gluttonous nor Greedy Page 173 Sect. XV. A Curious Conscience Condemn'd Page 177 Sect. XVI Mis-conceivings and mis-Teachings Dissected and Resolved Page 204 Sect. XVII Church Disquieters Prosecuted not Persecuted Page 224 Sect. XVIII Severity no unadvised Precept or Club-Law Page 231 Sect. XIX Vnpractical Actings ill Presidents and Dangerous to Resolve Page 238 Sect. XX. Mistakes Examin'd and the Truth Clear'd Page 247 Sect. XXI The Minsters of Devotion by the Minstrels of Sedition Tabered down As the Dormitories of Owls and Gorguts Page 261 Sect. XXII Vpbraidings against Church Lands Page 272 Sect. XXIII Literature Honourable Page 275 Sect. XXIV Temporal Theft an Hanging matter Page 284 Sect. XXV If the Church be thrown down The next Lift will be at the Law Page 292 Sect. XXVI Advice to the Fugitive and Frontless Page 297 THE END