when these Grants and Customs were procured and confirmed And it appears clearly upon perusal of the Statute called Magna Charta That the same was but onely the Grant of King Hen. 3. and the confirmation of King Edw. 1. and some of his Successors and the end and scope of it is the upholding of Tyrannical Government and the advancement of the Power of Anti-Christ And although by some particulars in the said Charter Tyranny seemed somewhat to be eclipsed or bound up by the Kings own Consent yet in other particulars it is as much enlarged and confirmed which appears upon view of the Second Third Fifth Seventh Eight and twentieth One and thirtieth and Two and thirtieth Chapters of the said Charter wherein provision is made according to the Law of the Normans (g) See the Customs of Normandy upon these subjects in the several Titles to settle Tenures by Knights Service and Capite and all the Slavery and Oppression which that Tenure drew with it to wit Wardship of the Body Primer Seisin Mesne Rates Marriage Relief Suing Livery or Ouster le Main and all such-like Miseries as were the Badges of a Conquered and Enslaved Nation All which Laws are as it 's hoped taken away with their Rack or Inquisition-house the late Court of Wards And besides this the Laws imposed upon the People were then written either in French or Latine which the Vulgar of the English understood not and yet they were bounden to obey under severe Penalties And although some of those Laws have been since translated yet many of the old Statutes and the bulk of that which is called The Common Law do yet remain in the Latine and French Tongues untranslated to the shame of the Nation as if we were resolved for ever to wear the Tokens of our former Captivity That this Charter called Magna Charta chiefly intended the advancement of the Power of Antichrist there is nothing more evident and needs no other proof but what is therein contained (h) Preface to Magna Charta First in the preface of King Hen. 3. to the said Charter it 's mentioned to be granted for advancement of holy Church that is the Church of Rome and the same is done in the Confirmations of the same Charter (i) Stat ' 25 Ed. 1. c. 1. 1 2 Ed. 3. 1 R. 2. by divers of the succeeding Kings And the Grants to all the (k) Coke Inst 2. part Pa. 1. In Charters of Creation of Dignities the directions have always been Archiepiscopis Episcopis Ducibus c. and his restibus in the end as Magna Charta hath which is a Badge of the Kings Grant and no Act of Parliament Archbishops and Bishops Abbots Priors and all those Popish Orders clear what was intended by the said Charter In the beginning whereof the King granteth to God that is either to the Pope or the Priest for so it 's to be understood in the Law where a Mortuary or Tythes are paid they are said to be given to God but they go to the Priest So a Deodand whatsoever moveth to the death of any man accidentally slain is said to be given to God but it was used to be disposed of by the Kings Almoner who was some Bishop (l) Ans 5 Rep. Coke Caudreys Case Instances in all the Kings from the Conquest until Ed. 6. c. 7. p. 155 156 160 168 to the end of the Book Then in the first Chapter the King grants That the Church of England shall be free not from Rome for the Pope rode the whole State both Ecclesiastical as they called it and Civil from the Conquerors time until King (m) Fournier Orbis Notitia part 1. l. 5. c. 12. p. 225. Preface to Magna Charta c. 5. 14. Hen. 8. but from the Secular Power that is Antichrist shall so far prevail and be exalted that all his Vassals Priests and Clerks shall be free from the Temporal Laws and Civil Power or Authority Insomuch that if the Ordinary would acknowledge any man for a Clerk he should be taken from Judgement and be discharged of all his Crimes and Offences be they never so heinous And the Priviledges granted to the Popish Clergie in the 5th and 14th Chapters of the said Charter do further confirm what the Kings intention was in making the said Grant or Charter nothing more then the advancement of the Popes Power And as concerning the Charter of the Forest a (n) Charta Forestae c. 6 9 10.11 considerable part thereof contains matters trivial and of mean concernment And that part of it which beareth the most weight was in it self a great Oppression to the People And the best which can be said of both the said Charâ—ers is That they were (o) Magna Charta est liber seu Codex Constitutionum quas Hen. 3. ad utilitatem subditorum suorum promulgabat c. Cowel Instit Index Exposit Lit. M. the Badges of a Popish Kings Favour and are said to be granted for the Salvation of his Soul and the Souls of his Progenitors and Successorâ— And we may remember how by colour of the said Charter of the â—orest the Justices in Eyre tyrannized over the Pâ—ople living in or near the Forests not long since the most considerable part of the Nation (p) Cok. Engl. Law p. 48. being like to have been brought within the compass of the Forests and subject to these Forest-Laws And what vast sums of Money have been exaâ—â—ed for Fines imposed for building hedging incroaching and other advanâ—ages taken against them in the said Forests And what Wrongs and Oppressions have been done to the said Inhabitants by the coâ—our of the said Laws it 's too well known And (q) Cok. Engl. Law p. 25. how many Towns have been destroyed to make a Forest and yet the poor People might not kill the Deer although they did eat up and spoil their Corn what price soever it beared But it is to be hoped That the Lord Protector will put these Forests to some better use then formerly they have been put unto the (r) An ancient Manuâ—â— Expos Forest Law fo 1 3. Original of them being for Coverts for wilde-beasts and wilde-fowl And lastly these Charters although haply they do contain some things which were the Laws and Customs of England before that time yet they have also the Laws and Customs of Normandy thereunto added having no shew or colour of an Act of Parliament in which the People were interested as parties to the mâ—king thereof both the said Charters being called The Grants of King Hen. 3. and the Confirmation of K. Edw. 1. (s) See the conclusion of Magna Charta The Statute de Bigamis is said by Shard Justice to be no Act of Parliament upon this ground Coke Instit 2 part p. 267. And in conclusion termed The Kings Letters Patents as all other the Kings Grants are and the Witnesses Names subjoyned in Testimony thereof which
reade This is likewise against the Law of God Numb 35.33 Lev. 24.21 Gen. 9.5 6. Rev. 13.10 (d) Bod. Rep. l. 4. c. 7. p. 542. To prevent Man-slaughter some wise States have prohibited the wearing of Weapons in time of Peace for that armed men are more insolent and ready to kill then other men disarmed 4. (e) Doct. St. c. 8. fol. 17. B. Fitz. Coro 404 415. Poult pax Reg. Regni Larceny f. 129. A. 18 Eliz. c. 4. The Romanes judged it a notable example of publike clemencie to spare life where other punishments are sufficient Tac. Annal. l. 14. c. 13. p. 215. That a mans life should be in danger for any Theft or trivial Felony above the value of Twelvepence is a Law against the Law of God who hath ordained Restitution and other Compensations as the Case shall be where things stollen are living or dead It 's a Rule without Exception given by the Learned That no humane Law can juâ—tly take away the life of a man for any offence without a general or particular warrant from God's Word because mans life is onely at God's disposing Willet Hex in Exod. 22.1 Qu. 3. Exod. 22.1 3 4. 2 Sam. 12.6 19. Luke 8. It may be observed That where the Laws are most severe against Stealing as amongst the Arabs there are most Thieves through the just judgement of Almighty God 5. (f) Poult pax Reg. Râ—gni Judgement Treason f. 244 6 El. Dyer 230 Cowel inter verb Treason Cowel Instit Jur. Angl. l. 4. Tit. 18. S. 8. p. 317. Anciently amongst the Romanes these facts were Treason 1. Betraying the Army 2. Stirring up the people to Rebellion 3. Bad managing the affairs of the Commonwealth 4. Impairing the Government and Majectie of the People of Rome Tacit. Annal. l. 1. c. 15. p. 29. The Judgement in Treason is a barbarous and inhumane Judgement viz. That the Offender shall be drawn upon an Hurdle to the place of Execution there to be hanged by the neck then cut down alive his Intrails and Privie Members cut from his body and burned in his sight then his head struck off and his body divided into four quarters c. This is an act of Cruelty and too much insulting over a poor fellow-creature in misery No such kinde of death was amongst the Jews Greeks or Romanes the nearest were those Torments devised by the Heathens for the Macchabees and those used in the first Ten Persecutions after Christs time which were devised rather by devils incarnate then men All such Cruelty is condemned Amos 1.3 4 5 11 12 13 14. Chap. 2.1 Jer. 6.23 Heb. 12.35 36 37. Jam. 2.13 6. (g) Magna Chart. cap. 1. Coke l 4. f. 46. a 9 Ed. 2. c. 16. 8 El. c. 4. 84 El. c. 5 Wingate Law c. 46. p. 85. n. 11 12. Cowel Inst l. 4. Ti. 18. sect 17. p. 325. The use of Clergie as it was at the Common Law is a great offence when he that could reade was not subject to be tryed for Murther and other great Offences but being claimed by the Ordinary for a Clerk should be taken from Judgement This is said to be the Priviledge of Holy Church viz. of Rome which is the exalting of the Romish Antichristian Power above the Law and Word of God who hath appointed Magistracy for the punishment of evil-doers without respect of persons in Judgement Rom. 13.4 All the Statutes made in affirmance or alteration of the Common Law in this Point of Clergie are unlawful as to save life in case of Manslaughter if the Offender can reade or to take away life for Theft above Twelve pence and in other cases where men ought not to suffer death Ezek. 13.19 Jam. 4.12 7. (h) Custom Norm tit Forfeitures f. 24. b. Exp. For. Laws a Manuse f. 40. Coke Entr. p. 1. tit Abjuration Stamf. Pl. Cor. l. 2. c. 39. f. 119 120. 35 El. c. 1. The Oath of Abjuration of such as took Sanctuary and then abjure the Realm the same used of late times to acquit Sorcerers and Conjurers and to punish such as offend against Forest-Laws This is a horrible prophanation of the holy Name of God and the abuse of an Oath which is a part of Gods solemn Worship Exod. 20.7 Heb. 6.16 Jer. 4.2 The Heathen Romans appointed Sanctuaries whither every lewd fellow escaping if he could but lay hold on Caesars Image he was free both from Debts and Punishments This was accounted a Grievance and condemned by the Heathen Historian Tacit. Annal. l. 3. c. p. 75. c. 13. p. 83. l. 4. c. 3. p. 94. c. 10. p. 104. 8. (i) Art Câ—â—â— 9 Edw. 2. 16. Chapters about these Superstitions See the books of Canons and of Consecrat of Priests Deacons Shepherds office of Church Ministers c. 8. n 2 3 4 5 6. Office Church-wardens c. 9. n. 1 2 3. Donus or Domus Bishop of Rome about the year 661. first divided the Romish Clergie into Ranges and Orders of Bishops Priests c. The whole Body of the Law called The Law of Holy Church and the Canon Law concerning Ecclesiastical Jurisdiction in Bishops Archbishops Archdeacons Deans Chancellors Commissaries Officials Suffragans Canons Spiritual Courts or Court-Christian Dispensations for Non-Residence Restraint of Marriage at certain times as Ember and Rogation-week Oath Ex Officio Compurgators Sanctuaries Penance Commutation of Penance Excommunications Absolutions Consecrations Prayers for the Dead Masses Dirges Pompous and Idolatrous Ceremonies and in conclusion the whole Body of Popery upheld and set forth in the old Statutes and Law-books which are said to be in affirmance of the Common Law and in other Statutes many of which are not Repealed All these are unlawful having no foundation in Gods Word and were the Inventions of men tending to corrupt the Worship of God Psal 19.7 8. Exod. 40.16 Isa 1.12 Mat. 15.6 Mar. 7.7 9 13. (k) Tac. Annal. l. 3. c. 7. p. 75. l. 3. c 15. p 86. Tit. Liv. l. 25. p. 5â—5 D. E. l. 43. p. 1163. f. l. 1. p. 32. G. l. 39. p. 1032. p. 357. a. l. 23. p. 495. a. Tacit. Histor l. 4. cap. 20. pag. 165. Many of these Superstitions wâ—re taken from the Heathen Romans onely called by other Names and used by the Papists as is proved in the particular places where these things are discussed 9. (l) Pault Pax Reg. Regni stand Mute fo 222. Westm 1. c. 12 Fitz. Cor. 233 283 359. Stams Pl. Cor. l. 2. f. 149 150. This Judgment is set down at large Cowel Instit l. 4. Tit. 18. sect 35. p. 334. The Judgement of Paine for t dure when a man charged with Felony or other Capital Crime either stands mute or refuseth to plead to an Issue to be tryed by a Jury it is That the party Indicted or Arraigned upon an Inquisition for his refusal to plead shall be laid upon his back with a Stone under it and
The Romans punished words very slightly Tacit. Annal lib. 1. cap. 15. pag. 29. And capital Punishment for words is charged as a fault Tacit. Annal. lib. 2. cap. 12. pag. 50. as he that said merrily He would make his Son Heir of the Crown meaning his House which had that Sign The like rash words used by one Burdet a great Gentleman of Warwickshire were said to be the cause of his Death This Severity is against Gods Word 66. The greatness of the body and bulk of the Law in force in the next place is a great Grievance to the Common-wealth p Grotius Pol. Max. par 1. c. p. 34 35. The Laws ought to be short easie and few This I touched in the first Chapter where is recited wherein Sir Ed Coke saith the Text of the Common Law is contained whereunto I refer the Reader desiring it may be further considered what an uncertain thing it is to know the extent thereof I set it down positively That no man by reading those Statutes and Books which Sir Edward Coke speaks of as containing the Text of the Law can tell what the Law is in an hundred particulars wherein there have been Judgements and Opinions given for Law of which hardly any thing can be found in those old Statutes and Books That this is so there needs no other proof but the Statutes made within the last 120 years and Sir Edward Coke's own Râ—ports Insomuch that it 's certainly believed That a man may know more of the Law by reading the Statutes and Reports of this last Age then by reading all the old Books which comprehend many Volumes 67. (q) The more Laws there be the more suits there are about the Interpretation thereof France was said to have more Laws and Customes then all the Neighbor-Nations and so also more Suits then all Europe besides which grew through the heaps of written Laws Bodin Rep. l 6. c. 6. p. 766. See the Book called Consuerud Normand The whole Law I mean the Statutes Old Books Entries Registers and Year-books cannot be read over under three or four years with any deliberation the Books being so many that they at an ordinary rate come to above twenty pounds price whereas the Text of the Laws of Normandy are contained in about forty leaves of Paper in folio The Laws of Athens were no more then might be read over in one day and every year upon the (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rous Att. Ant. l 3. c. 1. p. 101. Eleventh day of their Moneth called Hecatombaeon which is July their Laws were read over in the publick Assembly which being done Proclamation was made and then it was demanded If those were Laws enough for the Senate and the Common-wealth and no new Law was easily received by the Senate or the People (s) Amongst the Romans ten men were appointed to Collect the best out of their own and the Laws of other Countries and out of them they composed the 12 Tables The Historian condemns the multitude of Laws and chargeth it as a corruption that Laws upon Laws were multiplied and saith That persons were chosen to salve the intricate Quirks of the Laws Tac. Annal. l. 3. c. 5. p. 71 72. The Romans Laws were likewise but few (t) Tit. Liv. l. 3. p. 108. g. 109. a. 112. h. Raleigh Hist l. 2. c. 4. sect 15. the chief was the Law of the Twelve Tables which they had from Greece and their proceedings in promulgation of Laws were much like theirs of Athens And to mention no more the (u) Willet Hex in Exo. whole Body of the Jews Laws both Moral and Judicial which onely concerned Distributive Justice are comprehended in three Chapters and eight Verses of the Book of Exodus except a very few dispersed in the three last Books of Moses which were added upon special occasions (w) Cock Essay p. 111 134 136 These Laws the Jews knew most exactly but we know not our Laws as one hath lately written by reason they are not set down in a Body nor determined plainly but left doubtfull and inshrined in the breasts of the Judges and few but they may take upon them to expound them This I account a great Oppression Exod. 20. 21. 22. 23. to the 9 verse The Laws of Geneva are contained in about five sheets of Paper See the Book printed in English 68. The (x) Magna Charta c. 1. Coke Instit par 2. in Westm 2 c. 33. p. 431 432. See the Grants to the Templers Cestercians and Hospitallers Concil Vienna dissolved the Templers Anno 1311 and their Lands given to the Hospitallers 17 Ed. 2. Coke ut supra The Clergie as they are called still claim to be free from payment of Constables Levies and some of the Judges and Justices allow it At W. Sess Mich. 1655. great distinction between the Clergie and the Layty as they are called in Conformity to the Popes Laws and Constitutions is a thing superstition oppressiâ—e to the Nation and tends to the advancement of the Roman Power meerly Antichristian Hence the Archbishops and Bishops being set above the Dukes Earls Baron c. with their Attendants inferiour Priests and Deacons and other Ecclesiasâ—ical Orders made as it were another Common-wealth free from Secular Services The Priviledges granted to the four great Orders of Monks in England are largely discoursed of and their particular Charters and Immunities rehearsed in the new book called Monasticon Anglicanum which is to be sent to Rome by J. A. and cannot but be there highly esteemed It is a famous Monument of Idolatry Taxes and Payments and served chiefly to maintain a Faction against the Common-wealth of the Layty by upholding the State of Antichrist against the Temporal Power Now under the Gospel all men are in one condition and the Lords Lot Clergie are his People in every calling without respect of persons Isa 61.6 1 Pet. 2.9 Rev. 5.10 William Laud late Cardinal of Canterbury had a design on foot to make a perfect distinction between these two Common-wealths and to the better strengthning of his Party he had an improbable Project to erect again the Old Monasteries at least such as there could be any colourable pretence to seize into the Kings hands And several persons whom I could name were employed to finde out and report the Foundations and Priviledges of these Monasteries But blessed be God who hath prevented these Superstitions The Law had need to be changed in this point of Distinction CHAP. XII That the Practick part of the Law as it 's now in use is in many particulars sinful and repugnant to the Law of God and an oppression to the people 1. COmmon Recoveries for assurance of Lands being truely called (a) Doct. Stud. c. 32. dial 1. fol. 56. a. Cowel Inter. verb. Recovery Cowel Instit Index Expositor Litera R. Fined recoveries are nothing else but a pack of lyes And a colloquie at the Bar and
Examen Legum Angliae OR THE LAWS OF ENGLAND EXAMINED By Scripture Antiquity and Reason Cujus Author Anagrammatῶs est Ἀ νόμος βο̂ᾳ ὡς βαÏÏ MALACHI 4.4 Remember ye the Law of Moses my Servant which I commanded unto him in Horeb for all Israel with the Sâ—atutes and Judgements LONDON Printed by James Cottrel 1656. To the Reader READER I Expect upon the very first view of the Title Page of this Treatise to be Censured by three sorts of men The first are some superstitious Antiquaries of this Age who are better skilled in Geoffrey of Monmouth and other idle Stories of the British Kings before the Romans entred Britain and in the Grants and Laws of the Saxon and Danish Kings of England made for exalting the Pope's Power Erection of Monasteries and other Superstitions and reverence them more then the holy Scriptures And as they believe the Name of a King to be Jure Divino and indeed little less then a God and that no man may Rule who hath not that Title because that a Plow Com. fo 177. b. 129. b. Bodin Repub. l. 1. p. 112. Name must never dye so they think That the Laws which they and others call the b Coke tit Cawdreys case l. 5. par 1. fo 1. Kings Laws are as the Town-Clerk told the Ephesians c Acts 19.35 concerning their Idol Diana the Image which fell down from Jupiter and of so d Lex illa Sanctio specialiter dicitur Cowel Instit Jur. Angl. l. 2. Tit. 1. sect 10. Impr. Anno 1630. sacred and divine Authority that they can admit of no alteration without breach of the divine Law To these I 'll say onely thus Government and so are Laws the e Rom. 13.1 2. Ordinances of God but what kinde of Government or how the Supreme Magistrate should be called or why Humane Laws may not be altered or amended I finde nothing in Scripture f Aristotle in his second fourth Books of Politicks proves this at large where he shews the kindes of Government and Titles of the Governors in his time Government in reference to the kinde is called by the Apostle PETER g 1 Pet. 2.13 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Humane Creature and whether the Government be Monarchical Aristocratical or Democratical or whether the supreme Magistrate be called Nasi Prince as the Jews called Moses or Leader h See the several Titles given to the Supreme Magistrate of several Nations anciently and lately p. 121. n. 18. â—equ Governour or i Bodin Repub. l. 1. p. 83. Hen. 2. King of France called Protector 1552. Adherbal King of Numidia termed himself The Steward of the People p. 121. Protector 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that iâ— King as the Greeks called their Chief Justice at Athens Dictator or k Chief Captain p. 157. Imperator as the Romans called their Chief Magisrate or as the Venetians call theirs Doge or Duke there is nothing in Gods Word against it But this is necessary that the Supreme Magistrate should have l Pasor Lex p. 206. b. Bodin Repub. l. 1. p. 110. Confer concerning Power of Parliaments p. 4 5 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Power and Authority which are to be upheld by good and wholesome laws founded upon the Divine laws of God the onely law giver who can save and destroy and secured and defended with the Power Estates and strength of the People who are to look upon the Authority which God hath set over them and m Ezra 7.25 26. Rom. 13.1 6 7. submit themselves therâ— unto for the Lord's sake and not to dispute about Change of Government which sometimes is both n Exod. 18.13 21. Numb 11.16 17. Deut. 1.13 14 15. Acts 13.20 21 22. lawful and necessary It seems clear That all Government was Originally in Families where the Master or Father of the Family was the Prince or Chief Magistrate o Haynes view Holy Scriptures p. 81. Ral. Histor l. 1. c. 9. sect 1 2. the Obedience to whom was called Piety But afterwards when the World grew better stored with People men began to associate themselves into Villages then into Cities and lastly into Common-wealths and Nations and these betook themselves to p Paraeus in Gen. c. 10. Hawk Right of Dominion l. 2. c. 4. p. 35 Arist Polit. l. 1. a Governour whom at first they called q Gen. 50.7 Exo. 3.18 24.14 Pro. 31.23 Elder which was not onely a name of age and gravity but also of superiority and Magistracy and continued untill Monarchical Government was Erected which it seems at first was a Government at r Bodin Repub lib. 3. cap. 3. pag. 293. l. 4. c. 1. p. 412. Jun. Brut. Vind. contra Tyran p. 95. Ex Herod l. 2. the Will of him that ruled and grew into Tyranny for want of Laws Å¿ Exo. 3.10 16 18. 18.13 Willet Hex in Exo. 18. v. 15 19. qu. 16 18. But it pleased God in favour to mankind and for the good of his people to establish supreme power in one person limited and bounded with wholesome Laws And as an affliction and Punishment to suffer Tyranny to be exercised in the t Bod. de Rep. l. 1. p. 47. l. 2. p. 200. out of Philo Judaeus and Josephus world and sometimes towards his own people as may be seen in the government of the Babylonians Assyrians Medes Persians and other heathen nations u Grot. Pol. Max. Par. 2. c. 8. Gen. 14.1 40.1 The chief Patern which can be expected and of most certain Antiquity both for government and laws is that of the Israelites with whom God was most eminently present Albeit there were many other Kings long before Moses brought the Israelites out of Egypt as those mentioned in the Book of Genesis besides the Kings of Egypt Babylon and Assyria of which w Ral. Hist l. 1. c. 10. sec 1. Haynes View Holy Scripture p. 125. Hawk Right of dominion l. 2. c. 7. p. 45 Ex Chrysost Muscul Nimrod was the first of these it 's not necessary to say any thing But concerning the Israelites their state laws and government we have most exactly recorded by Moses x Coke l. 7. fo 12. Calvins case the best and most ancient Writer of Laws in the Book of Exodus which contains y Willet Hex in Exod. p. 1 2. their deliverance out of Egypt with the concomitants and circumstances thereof in the first part of that Book to the end of the seventeenth Chapter Then their constitution and settlement in the Land of Canaan by wholesome and just laws z Exo. 21.1 which were delivered unto them from God by the hand of Moses Now to return after this digression If Almighty God gave Political laws to his own people no man dare say but that those laws must needs be most just and equal a Cock Engl. Law
p. 4. and most profitable for the people And upon this ground it 's to be maintained That b Lex vera Lex bona est aeterna mutationis prorsus nescia immò eadem ubique si modò vera nam que ingeniorum afflatu subinde locis temporibsque interpolatu distinguitur Protei modo formam evariat neutique Lex dicenda est Veteres legum latores earum inventiones esse divini muneris Arbitrati Coel. Rhod. Lect. Antiq. l. 18. c. 19. p. 697. all laws by whomsoever instituted repugnant to those holy laws of Almighty God are to be rejected although they bear the Image of reverend Antiquity because they have not the stamp of the chief Law-giver upon them The second sort of men from whom I expect a Censorious Vote are the greatest number of Officers Clerks and Practisers of the Law who indeed by their superstructures alterations innovations additions and other devices have subverted the practice of the Law and set another face upon it These will tell me That by this Craft we have our wealth as Demetrius told his fellows when DIANA as he thought was in danger They are come into the rooms and places of the Popish Clergie as they were called who anciently were the Clerks and Officers in the Courts at Westminster c These Clerks used to make all Conveyances and wrote the legice-Legice-books 14 H. 8. 8. And in such sacred Orders that the chief of them the six Clerks in Chancery had no liberty to marry until they had license by the Statute of 14 Hen. 8. cap. 8. And these are sworn and resolved to all their old courses tending to their profit And therefore if they consult about this matter they will conclude That many things may be amended as they found at their last Meeting in Staple-Inne-hall but heed must be taken that nothing be excepted against which tends to the Practisers or Clerks profit And I shall very likely hear them say of me as I heard some of them speak of one of the most considerable of the late Reformers of the Law that he was like the Fox in the Fable which would have all other Foxes Tails cut off because he had none of his own But to such of these as are resolved still to make silver-shrines for DIANA and to prefer these our laws before the Laws of God I 'll say no more but this d Rev. 22.11 He that is unjust let him be unjust and He that is filthy let him be filthy To the rest of them of whom I have more hope that they have something of the knowledge of God and Religion I shall onely commend that Motto which I once saw set up in a Lawyers Study Non quid sed Quomodo If this were well considered that a little well gotten with the Blessing of God upon it would be better then great treasures of Iniquity and that the good of the Nation is to be preferred before private profit This I say would make men willing to have a happy reformation which cannot be had until we be fit for it For that which may be cast upon my self I do aver Most men are like Tiberius the Roman Emperor who said that his time was no time for Reformation Tac. Annal. l. 2. c. 8. p. 43 That I have had my share of advantage by the laws equal to most of my condition in the Countrey where I live But I do profess that now after almost thirty years practice I finde the laws in divers particulars of Common Right and Punishment of some Offences more uncertain unequal perplexed and repugnant to the Laws of God and burthensome to the people then any Laws either of Heathens or Christians that ever I read or heard of and these make these Laws cry out for Amendment The third sort whose Censure I must look to undergo are the great Props and Supporters of this Law who will tell the world with Sir Edward Coke That no one yet ever censured or controlled Littleton the Common Law but he that understood him not To this I answer That I do not censure Littleton more then Gods Word censures him There is one that accuseth him and you even d Joh. 5.45 Moses for that ye are departed from the Law of God and have followed Littleton and other Papists and heathenish Politicians The holy Ghost sends us to the e Isa 8.20 Law and to the Testimonie and Christ sends us to f Luk. 16.29 Moses and the Prophets If Littleton or any other Oracle speak not according to these whether their Laws concern faith or manners it is because there is no light in them But I have much hope of many of the Judges and great men of the land that they will lay their hands to the Work of Reformation to the honour of God who hath honoured them and for the good and benefit of the people forasmuch as they cannot but be very sensible of the great evils which attend the Laws as now they stand being repugnant to the Laws of God as many Judges g Sir George Crook Serjeant Parker Justice Ask about Manslaughter at W. and Co. Sir George Crook about Witchcraft exercised where death followed not at Cov. have hinted upon the Bench in several Cases And this is all I shall say in answer to mine accusers One thing more I do affirm That to my knowledge I have not in this Treatise willingly charged any thing as a fault upon the Law either in the excess or defect in the Theory or Practise but what I have found therein and proved the same to be repugnant to the Rules and Consequences of the holy Scriptures contained in the Old and New Testament And for such things as are any whit questionable whether the law be so or no I have usually there quoted the Authorities of the law for proof thereof and put down the Scriptures as their Opposites for their correction and in confirmation of mine own Assertions But where in matters of daily practise every Clerk or Attorney can be my witness I have alledged any thing as about suing to the Exigent Tryal of Prisoners Returns of Writs and the like and have not cited any Books or Rolls for proof thereof I did it purposely because I held it needless being constantly and commonly done every Term. Now to draw to an end lest the Gate should prove too big for the Building I do profess that I am not so confidently ignorant as to imagine that all that I have herein written ought to pass for currant without controll having to deal upon such an uncertain subject as the law wherein Sir Edward Coke himself is censured for gross Mistakes but rather that through ignorance and other infirmities I may erre and wander in many things having gone an untrodden way without a Guide or any one to go before me there being not one Book to my knowledge extant of this kinde If what I have done shall but prevail
Rewards and Punishments and of that which by Right belongs to every man And where shall this Justice be found but in the Holy Scriptures which is that perfect Rule and Law of Justice and Righteousness Without this Guide men have no more then that glimmering Light of Nature to lead them which although it retain general Principles of (k) Idem Bod. Rep. l. 6. c. 6. p. 761. Tac. Annal. l. 1. c. p. 2. Right and Wrong as one may so speak since the depravation thereof by the fall of Man yet we see by Experience That the most wise Law-givers who had the best endowments of Nature elevated and much perfected by Humane Learning and Knowledge without the knowledge of the Divine Law contained in the Holy Scriptures erred and wandred far and wide in many things as men blinde-folded and led aside by their lusts and passions and chiefly for want of this Golden Rule to walk by And if no more could be said of this subject this were sufficient to satisfie any rational man That there is an absolute necessity to compare (l) Vis Magistratus est ut praefit praescribatque quae recta utilia conjuncta cum legibus ut enim populo praesunt Magistratus ita Magistratibus leges Lex simul cum mente divina orta Creditur Itaque vera Lex Princeps apta ad Jubendum votandumque ratio est recta summi Dei Coel. Rhodig Lect. Antiq. l. 8. c. 1. p. 279. all Laws with the Laws of God and to frame and square these our Laws according to that Patern For that nothing can be or be truly accounted Right which is not agreeable thereunto And therefore (m) Bodin Rep. l. 6. c. 6. p. 759. the Jews called their Book of the Law The Book of Right or as it 's observed the Caldaean Interpreter hath it The Book of Rightness having no crookedness or error in it nor suffering such as walk by it to turn out of the way CHAP. III. That the Law of England as now it is in use is a departing from the Law of God and a taking of a Law from Hâ—abeâ—s and Idolaters IT is not to be doubted but as these Judicial Laws were the Foundation of the Imperial or Civil Law so were they of the Saxons Danes and Normans Laws amongst which many particulars of those Judicial Laws are found extant as amongst the Laws of this Nation which herein in their fit pâ—aces shall be made appear But the Roman Clergie or rather Idolatrous Priests being Chancellors Judges Reporters Scribes and Compilers of our Laws to these Laws of Common Equity added many Heathenish Impious Superstitious and wicked Customes and imposed the same upon the poor conquered and enslaved People for Laws Which things when we consider and what is reported by Sir Edward Coke (a) Coke Com. Littleton l. 3. c. 9. sect 535. and his Preface 8 Reports That in the time of William the Conqueror and long after his time the Chancellor Treasurer and Judges were for the most part Bishops Monks men of the Church as he calls them of whom he names very many expert in the Common Laws and such as wrote the same We may easily judge what Laws we were like to have from such men surely such as their Religion then was in the very darkest night of of Popery which must needs produce nothing so much as Idol try and the Oppression and Persecution of the Saints like the (b) Mic 6.16 1 Kâ—ng 22 26. 1 Kin. 16.25 27 Statutes of Omri and Ahab according to that of the Psalmist (c) Psal 74. â—0 The dark places of the earth are full of the habitations of cruelty Upon these grounds it may be cleared That we are much departed from the Law of God and have received a Law from Antichrist and it will further appear in the particulars following That many wicked and profane Incroachments are made by our Laws upon the honour of God in abuse of his Holy Name and Worship and thereby also great Iniquities Injustice Wrongs Oppressions Deceits and Falsehoods practised maintained and acted continually towards all sorts of men as well by colour of divers Statutes as the Common Law now in use and practise But for the present let it be observed That the whole Body of Popery is in a manner comprehended (d) See Coke upon Littleton under these Titles Absuration Exile Appeal Advowson Bishops Appropriation Clergie Divorce Excommunication Heresie Frank Almoigne Marriage Parson Patron Presentation Profession Quare impedit Tythes and upon the old Statutes in Littleton's Book which is so much commended by Sir Edward Coke and that the old Statutes made in affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of Superstitions and Idolatrous Rights and Customs And if any man shall be offended that I do not lick the sores of Justice Littleton and Sir Edward Coke the two great Idols of the Law It sufficeth me to know That the first did (e) Littleton was a Judge in the Reign of King Edw. 4. according to the Religion then in use and it may be according to the Dictates of his own Conscience and in many things hath judiciously taught the succeeding Ages but therefore hath not deserved to be accounted an Oracle And for th' other I think of him according to (f) Scrinia Sacra Cabal p. 61 62 63. the Character given him by that Incomparable Learned Sir Francis Bacon in a Letter to him after his disgrace And something more I could say That he was a man of a bitter spirit against the dear Servants of God and if he should be judged according to the Judgement he gave of the most sincere Professors of Christs Gospel the (g) Coke l. 5. Part. 1. Cawdreys case f. 25. followers of John Wickliff abusively called Lollards and his (h) Coke in the Title-Pages of his Books of Reports being 11. judgement of Queen Elizabeth and Kings James whom he blasphemously calls The Fountain of all Piety and (i) The Law of the 12 Tables is called by the Roman Historian The Fountain of all Justice Tit. Liv. l. 3. p. 112. H. and out of this Heathen Sir Edw. Coke learned this Blasphemy Justice and the life of the Law A rational man indued with any knowledge of God would think such a man too ignorant of the wayes of God to be accounted an Oracle or termed The speaking Law as every Judge is or A Promulgator thereof Now if it shall be cleared without doubt whence our Laws came and that they contain such Impieties and Injustice as are before touched I say when that shall plainly appear every Christian whose heart God shall open to see the truth will assuredly be satisfied in his Conscience That this Law ought to be changed or greatly amended seeing that Christians ought to be so far from receiving the (k) Rev. 14.9 Mark of the Beast by taking Laws
from Idolaters that they ought to root out their Idols and all (l) Deut. 12.3 Exod. 23.13 34.13 2 King 18.4 Hos 2.17 Zech. 13.2 their Superstitions from under heaven For that whilest things stand as now they are we cannot expect the comfortable Presence of God so effectual for our good and protection as if they were removed according to that (m) Psa 94.20 of the Holy Ghost by the Prophet Shall the Throne of Iniquity have fellowship with thee which frameth mischief (n) Such Laws as are contrary to the Laws of God and Nature the Prince may abrogate at his pleasure Bodin Rep. l. 1. p. 105. by a Law And if we consider that these Popish Laws coming from Idolaters branded this Nation with the Mark of the Beast which all those Kingdoms and Common-wealths received who were under the Power of Antichrist as this was until King Henry 8. his time who although he cast out the Pope's Supremacy yet retained Popery we may justly fear that without serious Repentance which cannot be testified but by Reformation the Maintainers and Countenancers of these Superstitions (o) Rev. 14.9 10 11. shall taste of the wine of the wrath of God and be tormented with fire and brimstone for ever But our God will save his people from their sins and deliver them from his wrath Howbeit it concerns us to know That although God (p) Acts 17.30 winked at the former times of Ignorance yet now he commandeth all men everywhere to repent and although we have hitherto failed of our expected Reformation and that all the labour and pains taken in order thereunto hath been lost and frustrate because a Patern from Gods Word was not sought for which may be imputed to be the true cause thereof yet at last it may be found that the Moral and Judicial Laws of Moses and other Rules and Consequences from Scripture are a sufficient standing Rule in all cases not onely for Godliness but also for Righteousness Justice and Sobriety according to that of the (q) 2 Tim. 3.16 17. Apostle to Timothy herein before recited And it is to be hoped upon very good grounds That the neerer we come to perfect Reformation the more we shall taste of Justice and Righteousness in the (r) Isa 60.17 execution of holy and just Laws under such Judges and Magistrates as were in the beginning which is to be earnestly prayed for knowing That good Laws are more security to the People then good Magistrates But when Almighty God giveth both together that 's an eminent sign of his special favour (Å¿) Isa 1.26 And this is promised to the People of God in the later times and now began to be fulfilled in this Nation in as much as the blessed Gospel of our Lord Jesus Christ and the People of God in the Profession thereof have more freedome and incouragement to Worship God according to his Divine Will then ever England enjoyed in any former Age either before or since the last Reformation But it 's much to be lamented that many who within this Age suffered Persecution under the tyranny of the Bishops and Archbishops upon pretence of breach of these our Laws in not conforming to Order and Discipline They themselves under the same pretence of Order and Church-government as they call it are now as ready to persecute their Brethren whose Consciences are not just of their Size if they could get Power into their hands to execute their Canons and other Popish Injunctions as ever the Bishops were since Queen Maries dayes For although they with the Scots are glad to be rid of the Bishops yet they at least many of them have the Scotch Presbyters Spirit in them (t) Simson Church-Hist in the Life of Anastatius Cent. 6. p. 88. who in his Church History commendeth the People of Antiochia that they were very friendly to their Pastor Flavianus and that they finding a great Number of Monks savouring as he saith of Eutyches Error and having an intent to compel their said Pastor or Bishop to accurse or abjure the Councel of Chalcedon but how their purpose was manifested doth not appeare in the Story The People set upon the Monks as not long after the honest Monks of Bangor were set upon slew a number of them others leaped into the River Orontes where as the Scotch Presbyter faith they found a meet burial for Seditious Monks There is no means under Heaven certain to preserve the People of God from Persecution but the abolishing of all Popish Laws and to Conform our selves to the holy Laws of God And that is the scope of this Treatise CHAP. IV. That Magna Charta and Charta Forestae do not appear to be any Acâ—s of Parliament although they be so called That chiefly therein was intended the advaâ—cement of the Romish Power in a Tyraâ—nical Goverâ—ment FIrst it is to be considered That upon the Norman Conquest by Duke William (a) Fox Acts Mon. Vol. 1. pag. 221 222. Ex Henrico Huntingdon l. 6. the bulk of all the Lands in England some few excepted Wales being then a Kingdom of it self were divided to such Noblemen Commanders and Gentlemen as joyned with him in the Conquest the design not being carried on by himself alone but by the forces helps and purses of many others who were to share with the Conqueror therein who besides what he reserved in Demesne he divided the rest to his Friends and Assistants to be holden of him by such Tenures Rents and Services as he thought fit (b) The Romans subduâ—d the Britains to be Subjects but not to be Slaves They were willing to pay all Levies of Men and Money if Insolencies were foâ—boâ—n Tacit. in vita Jul. Agricolae p. 188. as the Romans had done a thousand years before (c) Cambdens Britannia p. 94. Cowels Interp. word Doomsday Lamberts Exposition of Saxon words Jus Dacorum This occasioned the great Survey of England to be taken called dooms-day-Dooms-day-Book wherein were set down all the Lands in England and in whose possession they were Upon this Division the Natives (d) Stow Annal. p. 10. Life of King William the Conqueror Cok English Law p. 24 25. were horribly oppressed and rigorously dealt with insomuch that it was afterwards a (e) Fox Acts Mon. Vol. 1. p. 222. col 2. shame to be accounted an English-man which caused very many to remove into Wales and other Countreys rather then to abide the Tyranny of the Normans and the rest were left to the mercy of the Conqueror and the Strangers who came with him who (f) Stat ' Ebor ' 12. Ed. 2. in Preface Plowd Com. fo 129. B. Fourn Geogr. Orbis Notitia l. 5. part 1. c. 11. pag. 224. thereupon altered or rather abrogated the Laws of England and put upon them the Customs of Normandy written in the French Tongue and for ought appears the Nation had no considerable settlement by Laws until Hen. 3. his time
every day (f) Bodin Republ. l. 4. câ—p 2. p. 441. all their Conjectures are uncertain 30. Perjury in an answer in Chancery or Exchequer is not punishable by any penal Law The ordinance for Reformation of the Court of Chancery appoints Legacies to be sued for at Law and excludes them the Chancery but doth not dirâ—ct what account shall be brought 5 Eliz. c. 15. or Act of Parliament onely it 's said that it may be punished upon a Bill for Perjury in the Court where it was committed this is a long way further than a man will be willing to go at his own charge and I never yet knew any man punished there for any such Perjury and it was punishable in some cases in the Star-Chamber however it 's sinfull perjury before God Iohn 8.44 Zach. 5.4 Ier. 5.2 31. There was no Law to recover Legacies but in a Court of Equity before the last Ordinance and there is yet no Law setled for recovery thereof if the Legacy exceed not twenty pounds the charge of the Suit in Equity if it come to a Decree will be as much as the Legacy it may be much more if the Defendant be wilfull or liberal nor is there any Law to acquit executors upon payment of Legacies to Infants although it be done to their great preferment this is a defect Rom. 13.7 Heb. 9.17 32. There wants a Law for punishment of Witch-craft where murder is not committed setting a Witch upon the Pillory and imprisonment for exercising her Devilish malice upon Cattle (g) The defect of this Law was complained of by St. George Crooke upon the triall of a Witâ—h convicted of Witchcraft but not of Murder about the year 1627. at Coventry or men when death follows not is not sufficient such Witches as likewise Magicians ought to be put to death Exod. 22.18 K. Iam. Daemonol lib. 3. cap. 6. pag. 76. An Action upon the Case will not lye for calling one Witch and this reason is given in the book because Witch-craft is but Art and the word doth not imply any Act or exercise of it But Gods word teacheth us not to consult with the Devil or his evil instruments (h) Tacit. Annal. l. 2. cap. 8. p. 43. Pituanius a Magician was cast down headlong from the Tâ—â—peâ—u Rock The Romans banished such as consulted with Wizards and sometimes put the Magicians and Wizards to death according to Gods law Thou shalt not suffer a witch to live 33. There wants a Law directing how mens personal Estates shall be divided by Administrators when a man dieth in Estate (i) Magna-charta c. 18. Fitz. N. â— 122. l. Wingat Law cap. 11. p. 19. numb 13. It was anciently at the discretion of the ordinary who used to dispose of part of mens Estates or what he pleased in pias causas or for the health of the Soul of the deceased as it was said but now the Superstition is removed it 's necessary it should be declared what proportion the Wife and Children or Kindred should have it seems anciently a Wife was to have a third part of her Husbands clear personal Estate and Children unpreferred another third part Cook English Law pag. 47. but this is not observed All men who have any estate ought to make Wills to preserve peace after their deaths and to divide their estates amongest their Children Gouge on Epes 6. Tract 6 pag. 321. The remedie of thâ—s is to have all mens estates inrolled in the Counties where they are As the Jews had their estates with their Pedegrees inrollâ—d Ezra 2 6â— Jer. 32.11 John 14. and 15. and 16. 34. The like want is found where a man seized in Fee-simple of Lands having no personal Estate and many Children dyeth in Estate the Land descends to his Heir and the younger Children can claim nothing this is a hard case And far worse is it where a man hath an Estate in Tail and nothing else to preferre younger Children In the first case he may by Will in vvriting charge his Lands in this he cannot dispose of his Lands by Will charge them with any thing to raise portions for younger Children this would be amended by some profitable Law and Lands for this cause would be made Fee-simple Gen. 25.6 Luke 15.12 Iosh cap. 14. and 15.16 17. 35. There wants a Law to secure purchasers from being cheated by old Intails sleeping Morgages Judgements Statutes In somuch as I heard a Learned man say once there is no fence against a Knave some publick Register in every County should be setled and a Law made that whatsoever Estate should not be there entred should be void as against purchasers and such as some in for valuable considerations there are many men cozened and undone in such cases and no remedy if the Incumbrances were for any valuable consideration at the first although of long continuance This ought to be amended see this case recited by Charles Geo. Cook Essay pag. 123. 36. That Copy-houlders of Inheritance should not have liberty to set or let their Lands (k) Bodin de Republica Tit. 1 p. 39. Cook compleat Copie-houlder sect 9. p. 8. sect 12. pag. 14 15. unlesse for a year or three years is a hard Custome and to Fine at the Will of the Lord is worse the pretence of Ease in Chancery or Exchequer is a meer gullery the first ought to be amended and the last assertained by some good Law Cook English Law pag. 48 49. 37. That there should be no means to recover Debts upon (l) It 's made a note of a wicked man to borrow and not to repay Psal 37.21 Therefore there those should be a Law to enforce men to pay just debts and not to suffâ—r men to cheat men by such niceties Gouge on Ephes 6. Tract 5. pag. 271. col a. b. simple contracts against Executors nor to recover from the Executor of him that was Bayliffe or receiver of monies as it falls out in some cases is a great defect the reason of it is because the Testator might in his life-time have waged his Law But in some cases it is impossible that he should in reason by such gager discharge himself as when the money is an Infants and when there are witnesses to prove the contract This ought to be amended being but a Law of common right to enforce a mans Estate to pay Debts which are justly due 2 Kings 4.7 Exod. 22.26 27. Luke 6.35 and 7.42 38. There wants a Law for restraint of excesse and oversumptuousnesse in diet and house-furniture the excesse wherein doth ordinarily undoe and cause to goe to ruine the Estates of very many especially (m) Coel. Rhodig Lect. Antiq. lib. 9. c. 13. p. 330. Citizens and is the worst Thief in the Common-wealth except gaming and suretyship the Romans had Laws for restraint in this kinde and therein (n) In villaticis pastionibus sunt qui pro guloso accipiunt Aegyptio Regi