so used which liberty being much abused the parties who upon the heat of the blood that is while the injury was fresh complained were bound over by Recognizance to prosecute for the King and so were the Witnesses but if the party or the Witnesses should refuse it it might much be scrupled what by our Law ought to be done to inforce them justly but Custome hath prevailed to go by steps The places of Trial of Crimes are either the Ordinary as Kings-Bench or Statute-Sessions or the Extraordinary and yet Ordinary viz. the Commissions of Oyer and Ter. and Gaol Delivery carried down alwayes with the Iustices of Nisi Prius at the Assizes or the legal Extraordinary which were an assotiation of more men then ordinary according to the novelty and exigency of the cause most legally and usually made up of all the Iudges of all the Benches and no other and heard in the Checkquer Chamber Now these are not to be scrupled in themselves the other and which are extraordinary and scrupled as illegal are meer Royal Commissioners consisting of Iudges Lords and other men according to the pleasure of the prime Magistrate and these were rare and but in case of great offences or doubts of imminent at lest so pretended concernment And there were two Causes the one professed which was the resolution of many wise men sworn to do right according to Law betwixt the King or State and the Subject who by concurrent Votes assured the interest of either party and surely were the Law by which they judged as plain and evident as the reason or foundation of their extraordinary judgements there would be no exception but the fear heretofore on the peoples part which is the ground to the present jealousies was in respect that Commissions pretended of that nature were aiding to the inchroaching vertue of the Supream Power to the advance of Prerogative especially after King James had made the Iudges which were the leaders in both these powers his meer Creatures by absolute dependance in altering their Patents as aforesaid from during their well abearing to during his pleasure How the Iudges Patents are now I know not but except the present condition of affairs make that now lawful which in it self is not surely such Arbritrary Patents are introductive of the heights of vassalage for if they in each Punctilio advance not the intendments and interests on foot of the Supream Magistrate be it good or evil for God or against Liberty or Bondage A Writ of Ease is next to be expected and that engages to the slander of every malitious enemy and he now lies open to the lash of every accuser especially if any litigious person hath been overthrown before him O how the man bustles and now is his time for revenge our eys have seen this and this I suppose to be the ground of fears of such Commissions I willingly avoid Ravelling Controversies upon presidents which in our Laws are so many and so diverse each from other and multitudes so contrary each to other as supream or most excellent reason must bear sway and then the arbitrium of the Commission will not be so much the question as the Law by which judged If it be objected against the adjoyning in Royal Commissions that they are nor Lawyers nor Iudges in Ordinary but Merchants c. I say there lies an Appeal to Parliament from any Court Ordinary or Extraordinary which receives Commission under the Parliaments Authority If it be objected they are meerly the States Pentioners then the Argument is against the Supream Magistrate mediately against their Iudges immediately and is remedied by appeal but this is manifest that there is no necessity of these Commissions they were continually declaimed against and denied as one gap to invade the native proper liberty of the Subject and if now inforced can but foment jealousie against the State Having now found out the proper Courts of Trial of criminal persons let us see who the criminous person is and how to be dealt withal the criminous person is vulgarly taken to be him that is accused Legally him that is convicted not differencing where upon examination before the Iustice there is confession of the party full evidence upon oath violent presumptions or barely suspition but all are dealt withal alike except they misdemean themselves and in case the matter be baylable baylable alike few Iustices looking at good bail but all the Clerks at their Fees in which case much error is where the Clerk is Iustice of the Peace or c. and the Iustice not able or too proud to draw a Warrant himself Now by the Law of England and just reason mens liberties being highly prised heretofore men were to be tried the next Gaol delivery I mean at the Sessions for the County but now by a Statute made in the time of Philip and Mary or at least under pretence of it all matters criminal being death that is out of the Rogues City of Refuge that is to which they cannot readily plead guilty of all Felonies within Clergy the still continued shame of England so that some use a hateful Proverb All Rogues to the Clergy and all Clergy to the Gallows they must be tried at the so called Assises This Statute was a great friend to the Clerk of the Assize above the Clerk of the Peace and those Iustices that will not see this Statute the Inquisitive Clerk of Assise can spy his time to fit him if he cometh in his compass which may be every Assises and though present put him down absent so he is fined forty shillings and to remedy it will cost twice so much Now in the Gaols the Schools of Iniquity they are not imployed and if any one will imploy himself he must purchase his liberty to use his Trade at the Gaolers discretion for there is no Law for it no not for Debtors so that having nothing to do the Prisoners confer notes and the older Thief Cutpurse c. still instructs the yonger in the revealed quidities of the Law Vain people think highly of these nice evasions of Law but the serious sees it makes the Law ridiculously difficult the great Rogues scape but the ignorant and unexperienced dye for it All honest men love mercy and are as loth simple Felony should be death as any but they would not men should by Custom abuse just things or endure unlawful ones or connive at wickedness Yet these and multitudes more well known have long and do still pass unremedied or are provided for but in part or for a parcel of the Commonwealth So that it is certain the generalty of men which once come into Englands prisons of all sorts as now used are spoiled for ever both as to industry and honesty yea so notorious is the evil that I have known many Justices avow it was their sorrow to be in place to be instrumental to such evils by sending one for his first offence to Gaol and likely to
to the complainant to be immediately awarded and delivered within three dayes under the penalty of a Fine Treble value for the time it is holden above three dayes to the rent for half a year For obedience in Civils must be rendred to mistaken judgements final or primary if final for ever if primary till death of the party unless he lives ten or twenty years for it is fit to set a time after such judgements that so it may be fit for a Purchaser who may otherwise pay his money and lose his land if the Demandant or Complainer be not able to make good his Title let him pay the Fine for the charges of the Defendent as is adjudged in open Court and then let him be dismissed which Fine must be according to the nature of the offence and the estate of the party both being considered How Equity is to be pursued BUt it may happen that part of the money in a personal action or complaint is paid and that the land is forfeited in case of a Mortgage upon a Cause equitable in Law as enemies hindred great Waters robbed going to tender the money and bound or the like not voluntary neglects as now whereby the controversing in Courts is more expensive to the Subject then the Army which appearing in the legal Court before the Judge there let him transmit the Case upon his word of a sworn Judge that is intended upon his Oath that there is just matter of equity and let him see the Case and examine what Witnesses he pleases and fend for what other he judges fit always provided he decrees the Case within a set time as ten dayes at the furthest and then let possession be continued or adjudged as the Case requires This also must be pursued that no rule at Common Law or Order so called in Court of Equity but be Ingrossed Read and Signed by the Judge before going out of Court Now to some there will some difficulties arise at first what needs this double work may not one Court determine Equity also Next the Lawyers will never agree an Order with the Judge in Court advantages are so sought and preferred as daily experience manifesteth Whether Law Courts and of Equity also are to be FOr this it is most certain that while men we must in all lawful ways give satisfaction to the experienced evils arising amongst men and that as the evil is capable of reformation heretofore many delays and draynings of the truth in a set legal course was thought a good way or at least so pretended to make justice pure form was set up to an eminent height and seeing the Idol men bowed down to it and it was thought better to part with some real Justice then lose a shadow which gave refreshment to so many c. Now this though it may have shadow which as the world grows past amusing will fall of it self so it hath substance for the work is proper to another judgement and of it self likely to be sufficient for one Court especially if those men be impowered to hear and determine all small matters of equity as it is fit The other Judges in Civil Courts should do all matters of trifle and also all suits both legal and equitable of poor men What and why pleaders are to be and their Duties SUrely the knowledge of the Laws municipal and just and righteous setled Customes of Nations which are Laws are highly to be honoured esteemed and provided for they are the left eye of the Nation as the instructers of the Nation in the knowledge of divine wisdom are the right eye Now to draw men to such labours there must be some allurements we had so many that of late years it drew all the prime wits and parts of the Nation that way and all the Courts being at Westminster the whole Nation during the so called Terms was void of requisite Government for these wits to maintain and encrease their honour and riches had made the Law so difficult that good honest Knights and Squires in the Counties yea though they had studied the Law durst not venture upon a matter extraordinary how then should Citizens and these and the Attorneys by the adjudges tricks and niceties had buried Justice past finding out by Juries each man had his legal quillet to deceive the honest man prejudice the State and yet satisfie his so called conscience Now if pleaders be rightly used then they are no more but men skilled in the Law who are for the party who chooses them for their Councel that is such upon whose judgement and skill in Law they will depend to make good the Law for them to the Judge to manage evidence which some have been famously infamous for to do what they can for the Clyent that is by lawful or unlawful wayes to get the day is most unchristian Thus yet old Lawyers through tricks use to deceive young Lawyers and unpractised Judges or old or sleepy or such ignorant ones as have been admitted and continued till they with credit of conscience left their place therefore it is unfit any Lawyer speak but to the Law and that only to the Judge and that to enform him and require his advice and that he ask these questions Let all these Lawyers after admitted to plead set in the Court below the Judges covered but when they speak and any one as a friend to justice though not retained may speak to the Iudge his opinion And let all but the present pleaders be as assistants as to so much as information of the Law according to their skill and knowledge let but one be retayned for one man and let not his Fee be above two shillings six pence and that a supply be let each one have a pension or an office from the State and then in case it amounts to a competent salary it is better to allow no Fee at all The objections of laziness and the like which will ensue upon this are no way answerable to the necessity of giving stop to the immoderate labouring after riches now in this generation and that onely to be Fathers to a lazy idle ignorant gallant Son c. What Attornies are to be and their Duties MAny will think Attornies as needless as Courts of Equity and so they are yea truly not of so much necessity yet much good there is in Attornies But so many is to nourish knavety and shew an unchristian Commonwealth for many of them cannot live no more then many Lawyers without much contention Which shews strongly that our Commonwealth is but baptized Christian with water not the Spirit of love meekness gentleness peace long sufferance forgiving as we would be forgiven Oh the sad case of Christendome so called I must grieve to think of it though others laugh at me But while all men are not capable of the plainest forms of Law it may be conceived requisite to admit men who shall appear by their warrant to answer for them but
in Germany and England ibid. William so called the Bastard or the Conqueror admitted King of England his claim his reign ibid. His politique settlement p. 24 His successors tyranny p. 25 The opposers and how quelled ibid. The gate God opened for freedom p 26 Magna Charta and Charta De foresta granted ibid. The Pleas of Kings against them ibid. The Judges and Lawyers absolute interest serving Kings tending to enslave the people ibid. Some Judges hanged for it ibid. The contest briefly examined pag. 27. Why the Pope suffered these contests ibid. The Popes policy to avoid Reformation from Princes ibid. Gods witnesses against Romes signs and her dealing with them ibid. The Pope and Princes strengthen each other pag. 28. The Kings of Englands best title is from Parliamentary elections and the reason ibid. Princes liberality to the Churches ibid. Parishes erected ibid. God still raises up witnesses against Rome ibid. Incestuous Marriages from the Popes dispensations in most of the chief Families in Europe pag. 29 The Kings labour to exalt Prerogative ib. The settlement of the Court of Kings Bench Common-Pleas Chequer c. ibid. In whom the choice of Judges and how ibid. Court of Wards erected c. ibid. Court of Star-chamber erected ibid. Admiralty and others Courts c. ibid. Luther and his Quarrel with the Pope pag. 30 His Doctrine ibid. His Abettors few if any ibid. His opposers all Christian Princes ibid. Hen. the 8 th of England writes against him ibid. The reason of the Princes siding against Luther ibid. Henry after quarrels the Pope The Reason ibid. His halting twixt Popery and Protestancie He seizeth the Monasteries c and the reasons pag. 31. How he rewarded his instruments ibid. Edward the sons zealous Reformation ib. Maries cruelty pag 32. Elizabeths deliverances and succession ib. Popish plots against her upon Reformation ibid. Englands laws distinguish twixt a Papist in Opinion and in Faction ibid. Englands Law at Elizabeths coming to the Crown ibid. Recusants why so called ibid. All Protestants agree not to Elizabeths Reformation ibid. Their Reasons and uninterestedness p. 33 Some of the Parliament men questioned by the Queen ibid. How she misliked the so called zealots ibid. They flie into Holland and they print freely ibid. Against both Magistracy and Ministery pag 34 Yea against the Queen in regard of manifest error continued both in Church and State ibid. Her Potency and relief to her Neighbours ibid. James succeeds Loves not Puritans ibid. Yet distasts them not ibid. Advances the Interest of Prerogat Courts ibid. Takes away the good old lawes to increase revenew ibid. The succeslesness of His wise Councels p. 35 His policy to subvert the freedom of Parliaments ibid. His way discovered ibid. The end then aimed at the subduing Scotland absolutely ibid. The Court party ibid. The King would not agree to Arms. pa. 36 The cross dealing of the Scotch Presbytery with King James ibid. Some lawes made in King James time how diversly executed ibid. Charles Crowned with great joy ibid. Disgusts against him in his first Parliament ibid. He gets mony and dissolves it ibid. Breakes his Royall word so called in his grant to the Petition of right pag. 37 The State of the Church here at the beginning of and during his reign pag. 37. 38. and 39. in the pride and dependance of the Hierarchie seeking by unjust wayes to raise private estates out of the Church revenues ibid. Their little regard of Blasphemy drunkenness c. ibid. All they sought was unity and by uniformitie ibid. Hate against good men ibid. Their policies to bring in Popery ibid. Some of their errors repeated ibid. The civil state considered pag. 39. 40 The King lost his Militia in all kinds ibid. His Lords given altogether to vain sports c. ibid. The Gentry follow them and the Yeoman them and so all order is broken ibid. Justice wholly turned into form and practice and destructive in all the pooceedings of Law pag. 40. 41. 42. 43. 44. So the first step to introduce generall poverty pag. 45. 46. And that demonstrated by consideration of the parties suing ibid. The process what whence and by whom ib. The Courts of Tryall above and below ib. The Attorny and their practice p. 43. 44. Declaration and Plea ibid. Issue single and double ibid. Jury ibid. Verdict ibid. Stay of Judgement ibid. Judgement ibid. Stay of Execution ibid. Remedy in Chancery the worst evil p. 45. 46 Sollicitors what c. 44. The reasons of all this Error pa. 45. 46. Priviledge of Persons and Places discussed pag. 46 Witnesses and the abuse in them ibid. Most ordinary matters in practice undetermined in Law pag. 46. and 47 Cheatings in Bargains sales and all conveiances pag. 48 Englands Law practicall only so that Government was subverted pag. 48. Coppy-hold or base or villein tenure discussed pag. 48. 49. Want of Forcing Plantations another causes of Englands povertie ibid. Inns Alehouses and Taverns another cause ibid. Marrying of the poor too young another cause and debilitates nature and makes unfit to labour ibid. Englands good lawes for maintaining honest laborious and punishing idle ones enervated and neglected pag. 50 Considerations of binding out poor children apprentices by the Justices of the peace p. 50. Difficulty and varieties of Lawes the Lawyers Gins evidenced ibid. The Criminall part of law neglected and how pag. 51 The policy in ruining the old frame of Englands Government ibid. The policy to evade the discovery of this ibid. London the great Monopol of Trading pag. 52 Monopolies one of the Royall trades ibid. The Kings policy in ship-mony and the end ibid. Kings Charles intends War pag. 53 Intends an alteration of Government ibid. That the alteration was made of necessitie ibid. For a ground he imposes the Eng. Liturgie upon the Scots ibid. His carriage to engage a deeper War ibid. He is necessitated to call a Parliament p. 53 Breaks it and necessitated cals it again ibid. The King seekes mony pag. 54 The King disables himself to dissolve the Parliament ibid. The Parliament questions Strafford ibid. His pleas the Parliaments answers ibid. The King attempts upon some Members ibid. The Parliament sets a guard ibid. The King practizes the Army ibid. 400000. l. Raised and the Army disbanded ibid. Ireland almost lost ibid. The dislike of the people to the Kings encrease ibid. The Bishops questioned and discarded ibid. The King flies pag. 55 The Parliament arm ibid. The King fled the Convocation follow ibid. Many Lords and Commons go also ibid. These he cals his Parliament at Oxford ibid. The Lord Keeper flies to the King ibid. The controversie twixt King and Parliament as it stood controverted between them ibid. The Nationall Covenant agreed on ibid. And the Nature of it ibid. The Kings aime in setling Government pag. 56 Exemplified in a demonstrative particular ibid. The disadvantage to the Parliament by being only defensive ibid. The divers interests that followed the divers
inferior places But assuredly the foundation of this mischief was principally in the abused practise of the Courts of Justice of this kingdom which holding also a Jewish dependency as before was hinted there was no stint of strife for the Law admitted appeals and what was so called the Subjects due ought not be denied them so that if you had either a knavish or a powerfull adversary to deal withal which power is manifold as either a great rich man or greatly friended by the officers or els powerful in a joynt stock as a corporation whose united purses have ruled over all justice and righteousness whatsoever in many places you could not get right but with repentance that is loosing by the bargain the particulars I shall demonstrate after this ruined many discouraged more discontented all except the gainers which were and are such a rabble and bed-roul of names in both Laws as would amaze a wise man much more a Christian for whereas a Christian saith let all things among you be done in love and let the brethren judge your differences that is without litigious pleadings after the manner of the world but with that quietness gentleness meekness and botherlike affection as the Gospel of Christ holds forth and the prudent man saith let it be before wise men duly appointed in a time convenient and with certainty and what one Judge cannot determine either for difficulty or doubting let aid be joyned and right done and that whither according to the exact letter or the rule of conscience The Laws of England held forth all things in practice I say in practice for the general rules or foundations of Englands Laws are good wholsome and sanative absolutely contrary for it held forth in the letter you should have right for every wrong this general rule was good but discend to the particular The Quaere now is what remedy for the wrong an Action you must prosecute But first it is considerable by whom this Action shall be brought for long suites and expensive have bin had and then the party ought either to have one or more joyned with them or where the Action was ioynt it ought to have bin sole sometimes in the respect of the nature of the Action sometimes in respect of the way of assessing or recovery of damages next it is considerable in what Court for ofttimes 100. li. hath been spent in the Court and then the Court had no cognizance of the business yet the ablest Lawyers in England advised within the case or so accounted as most favored c. But grant you hit the Court then the Quaere is what Action for one hundred Actions have been prosecuted in the right Court and before right and due Judges and by the right person and then the Action mistaken it was deceit and should have been a Trespass or a Tespass where it should have bin deceit so almost in all matters of higher or lower nature next agreeing what Action where shall you begin your suite out of what Court have your process and for your process whither from above that is the Kings bench which now holds cognizance of all pleas or the Common pleas the proper Court of all Subjects differences betwixt themselves at least in the Common Pleas by original in the Common bench by Latitat or els in the Chequer by a Surmise that you are a Debtor to the King or below in the County or City if the sum be not above their Trial and for the Chancery and such other Courts a Subpaena and then the several Writs must be issued in due course or all is nought Next for the execution of the Writ there is for the Chancery c. either the party plaintife or some other shows the writ to the Defendant or leaves a part or the body of it so called as the case requires at his house and if he appears not process issues against his person but upon the other he must be arrested by a Serjeant of the Mace so called the officers of a City or a bayliffe whether common special or of a liberty there is not much difference they are much alike Now these mens livelyhood is under the Sheriffe to execute writs of all sorts to judgements and Executions they have a fee proper from the party but that was set so long since that it is not a sufficient maintenance now and rather then take paines to raise that well foreseeing the trouble it would bring to alter all Fees in the Nation they let them gripe the poor and abuse the rich and wrong all Yea assuredly they many of them take hire of the Debitor or Trespasser not to see him and of the Plaintiffe or Creditor to see him as the searchers or under-writers for customes formerly or now for excise may do either for prohibited or custome stoln goods So that ofttime the charge of arresting is as much as the Debt and it is generally known that these men are the worst sort of men the old Law was none to be arrested but to find sureties that his cause was just and that he would prosecute with effect but that just Law being too hard to many poor men to surmise the best was not remedied but by practise that is the unwarantable proceedings of Judges Totally abolished and now a bill of Middlesex may abuse any man unknown and the law is made a stale to the both foolery and knavery of Sycophants or worse there is much pleaded for this arresting by Bayliffs as first he is a known and sworn officer I say only if he be so let his Summons without a Writ or attaching the person be enough and if twice summoned let him be proceeded against as to his goods who will not appear provided he be at or in Town but this is beyond my taske intended here There is another way of making the offender appear which is by Utlagary used very unjustly and so confessed but as good as the rest The next thing is where I must lay my action that is in what County And many times the action is laid in London for a matter of so small moment that a journey to London of himself and witnesses eats out all the gain justice gives especially when small matters are removed outof the County justly as I will say in this case they being indeed above the now proper rate of County or City Trialls or else unjustly as when a man is arrested in a liberty for five pound or forty shillings only which is there triable he gets himself arrested also for a greater summ and so removes both to London now for these proceedings in abuse of the common subject of the Nation in Law-proceedings believe not I can or hope to open all the sleights tricks quillets fetches deceits knaveries and abuses with the irrelegious abominable prophane juggles thereof it being in the whole practise I say practise of it nothing else but vanity and wickedness I am loth to say robbery extortion
forty shillings to the Judge otherwise to the Gaole without mercy of which Gaoles a word after Next this is an ordinary course at least so reported in petty trespasses they declare of course meerly to get Fees upon agreement though they assign no place others having liberty to proceed as they see good and make an end or do any thing which is generally the course of quiet poor people there is favor promised to either party he draws a judgement from his adversary the defendant yet sues on still and brings it down to Trial Per Nisi prius then stops proceedings with saying he will confess a Judgement and enters it the Term after others enter up Judgement without Warrant I have known worse abuses yet but no punishments oft for want of entring a Rule they suffer Judgement Per nihil dicit whereby great and extraordinary Charge accrues to the Client and but small gain to themselves but hereby they pleasure the Officers oft times they plead or confess a Non sum informatus and this without Warrant and then comes out a Judgement unexpected and this dealing is justly suspected of false dealing It was ordinary to enter false Orders false Affidavits imbezle depositions pack Juries draw Witnesses if not make them I know the labour and pains of a faithful and honest Attorney is great and very painful and laborious in running from Office to Office from Clerk to Clerk Officer to Officer Councel to Councel Judge to Judge Court to Court neither do I here question their proceedings who make either Law or constant practice their rule But these rude ignorant young heads who think and make it their way to gain practice to over-reach c. though I in my opinion am as Mountague said of learned Selden an Heretique in the faculty as to the whole managery of the Law who although the Law doth sufficiently provide against which were by the carelesness or faithlesness of the Judges in their trusts through dependance as aforesaid grown to an infinite number beyond what they were I beleeve in the time when by Statute of 33. Hen. the 6. they were limited in Suffolk Norfolk and Norwich where they abounded but they are now bound apprentice to the Trade as well as to tapping whether of wine or beer why not as well to Brothelling and it is thought unjust to put any by his practice though they ruine the Nation by it at least bring a deluge of poverty upon the people Yet these put the Lawyers also upon hard shifts for now the Office of an Attorney is to practice all the parts of a Lawyer he drawes all pleas or generally all but some speciall ones upon some difficult point and in that some one old beaten book-man in a County is famous but for making of Wills and drawing all sorts of conveyances or Covenants with strange niceties of form and cautelous qualifications limitations provisoes and such like none like them they not so much looking at their first trading into reason and solid causes or grounds of things as into the superficial niceties as the readiest way to purchase practice with cunning knaves and most affecting wit and youth and so are drawn into a way of evill before they be aware and after it is hard to reclaim them and for keeping of those pestilences off of England Lords Courts they take all the work which was heretofore the way of educating and bringing into practice the young Lawyer And in these last times there sprung up first under the wings of Noblemen and men of great estate for the help of the Attorney in Judicial Courts but as Attorney in the Prerogative ones a creature called a Sollicitor these men rob both Lawyer and Attorney and all the Subjects They are oft declamed against by the Lawyers but no course taken to restrain them many of them practizing as Attornies under the wing or name of an Attorney what fee he hath thus to abuse the Laws and his own fellow practitioners I know not but many faults and errours are hereby committed and where to fix it is not easily discerned and great men love not to take great pains in such discoveries without exceeding great profit few I fear do justice for the love of justice so that having shifted from Sollicitor present to Attorney absent 't is forgotten if remembred the fault is laid upon the Clerk the Clerk he turns you back again to them instructed him which happily is neither Sollicitor nor Attorney but a stranger unknown or a servant gone But it is objected you have your remedy at Law against an Attorney in any cause against Law So say I but he hath his priviledge that spares charges he hath councel for nothing and cunning so called knavery to boot And lastly the Judge must as much as may be favour a servant of the Court that is he shall have all lawful favour and the other all lawful disfavour and put any Lawyer to sue an Attorney upon these terms and the Attorney will undoe him To pass over the nicety of going to issue pleading specially when the generall issue would serve the turn or such like nor to shew how many several sorts of delayes the several Courts admit I shall shortly come to the tryal which is either in the ordinary set places as the Courts at Westminster or per nisi prius where there is such hudling shuffling quircks of law unequal hearing and both for honour as the Kings or Queens Councel order as Benchers c. except favour step in and then the son of a Iudge or Kinsman c. must make all the Councel attend till he speaks nothing to the purpose too too often so that I have heard wise and learned men profess they were ashamed to see great men and Favourites manage the business out of all order and rule of law while they knowing in practice as they term it that is versed in the Ministery of the cause could not be heard a word as if they were retained only to hold the paper and cry My Lord 't is truth there is another reason in it which is they have such multitude of Councel that all cannot speak and the great men must speak best reason for have not the Prince the choyce Some indeed either would be heard through boldness or must be heard through necessity as undertaking Cases which others either durst not or could not as Holborn with that noble Judge the Lord Chief Iustice St. John in the Case of Ship Mony and this was a step to advancement if they shewed ability and could turn with the tide or were thought fit of for some other by-respect as to have their mouthes stopped against Prerogative and opened as far as the Law would admit for the Kings advantage Thus were learned Calthorp engaged and the foresaid now Lord St. John though as I have to his honour be it spoken heard it credibly affirmed he denyed to be the Kings Servant upon the Lords day at
Councel Table pardon this necessary digression both here and in many other places purposely done to avoid treating of these things by themselves so that unless the Iudge were very wise and resolute having these so many traps he might ore-slip something how just soever his intentions were and the Lawyer might by the like means be drawn to some errour in point of Legal advice as well as the Attorney in practice for 't is evident or will be hereafter manifested that to gain a certainty of Law we ran into all incertainty that might be To speak of the errours of the Judges servants and their Marshals abusing both Law Judge and Countrey for expedition money and taking what fees they list and new Fees though it be material yet carrying with it the assured errour of his master who ought to know it better then the Countrey can tell I willingly pass it over but must insert that seldome a Jury is legally pannelled or if legally having outward legal qualifications yet not knowing men able to discern into the now used course of evidence for it is pitty to see if not pre-ingaged which is too too often they generally either follow the fore-man or hearken to such a Councellour or else are tyed to what the Iudge seems to incline to when he repeats the evidence which to avoid such leadings might be spared but in the confusion of the Councels thwartings if not false speakings and mis-recitals in their so claimed due of summing up the evidence cannot be wel forborn without a greater mischief then the other possible yet seldome seen palpable inconvenience I might evidence the same course of unrighteousness in all subsequent proceedings till execution but I haste These with hundreds of more common abuses in the Law which did indeed render both Law and Lawyers odious for this was grown usuall to get by any means or having gotten though justly to keep by any means and hold play with the others estate for they could upon a Bond for example drive off with good words a quiet man and fore-handed or a poor man or Orphan in regard of their relyance upon the penalty which in regard of the possible evils was now grown double as 200. l. for 100. l. five or six years or more then plead non est factum that is it was not their deed the Witnesses happily dead and no other or difficult circumstance appearing Verdict is either lost or hardly gained if it be a small sum and the Verdict against the Plaintiff he is not able to get any advantage but by renuing suit in Chancery to put him to his oath where the charges is so great he is undone If the Verdict go on his side then there is motion for stay of judgement to delay if that over-ruled then a Writ of Errour if that over-ruled then the Cause is not sent by the Iudges or Iustices to the Chancery upon a sight of the equity of the cause as the ancient Law in Edward the 3. was or seems to be but of course to delay except the Plaintiff dye in the time and then all is lost without hope of recovery and the Chancery by right is held not to have any cognizance of any case under 20. l. as if no conscience or equity were allowable in lesser matters where the falsity of formal customary surmizes be such that the simplicity that is sincerity or plain righteous dealing of the first Heathen Law-givers severely punished when they first instituted complaints to be in writing punishing him that complained of what he could not prove O the excessive unwarrantable proceedings in false suggestions and surmizes yet by these with such like practize in proceeding as in the beginning the cause may grow to 7 8 10 12 20. years continuance although the late Lord Littleton who dyed in the strife betwixt loyalty so called to his King and to the Commonwealth and was vanquished by personal respects did openly profess at his call to that high and honourable imployment in his speech in the Court at his taking the place That he had heard causes had depended there 12. years but knew no cause they should depend 13. moneths and resolved then to speed an end of all lasting causes and began with Peaeocks But when the Barr began to grow thin I say not he changed his mind but his course pretence of other business drew him like others before him to hasty hearings half hearings references and subitane Orders which with the laziness of Iudges and Masters of the Chancery but especially the wickedness of Clerks and Registers is the squeeze of the Subjects purse for all men know who have had any experience in the world that the Register makes the Order rather then the Iudge A chief means of continuing which evil is next after the want of due care of the Iudges to read the Order fair written before he rise want of a set stipend while he by more work gets more gain The last is want of sharp and speedy punishment of an offender this makes Orders past the ordinary length and infinitely beyond the rule of Justice in Tale above 40 Orders in a case Mr. Noy or I am deceived moved before the Lord Keeper Coventry when he durst say that was Kings Attorney my Lord I move upon the 49 Order to my best remembrance so that the by-word was upon a suit in Chancery you have gotten into a sute of Buff These things never pierced the conscience of these men they followed the example of their predecessors and grew by degrees worse and worse and thus it was also upon all other proceedings at Law in all Courts whether upon criminal causes or other offences against the publike or civil Laws so called or between person and person another evil was both in law and equity the priviledge first of places then of persons That of places partly arising from Order so called Divine that is from the Relative and similitudinary holiness of the Temple And therefore as the Churches were in the time of Popery and now new pleaded for Popery as the Cities of refuge of old and the so called Clergy still as aforesaid Idolatrously continued with us so other places were now priviledged and made the Sanctuaries for offenders which were the shelter for all insolencies tumults disorders and wickedness which places were first of separate or special jurisdiction as Cathedrals Minsters and such other liberties arising from pretended Ecclesiastick Right and Title under the Hierarchie Papal The other was of the Kings Court Lords Houses Inns of Court and Chancery the Seminaries as they ought to be of good Government and singular examples of order the persons priviledged were the King whose person the Laws as lately expounded had generally freed from all censure and purged all taints by the Crown and punishing his absolute Ministers was laboured much against now the reason of this was to uphold what was gained and to gain what might be for the King therefore the Lords as
remedy against an evil present and emergent by act it is the knaves work to converse with a quick brained little conscienced Lawyer and crafty Attorney to find a loose from the Law which is too oft allowed and the Judge excuses himself by the letter of the Law Therefore I shall now generally declare that the whole frame and foundation of Englands Government was loosed rotten and vanished which I thus manifest Look at the Lands and its evident that had Noy lived or but the Parliament been deferred the most considerable part of the Kingdom had been Forrest upon the claiming of which what quick work was made in some places few but know that which had not been Forrest to the King would all have been secured to him by Office as holding in Chief or forfeiture otherwayes either upon the chief Lords or some inferiours want of Service And as the King had dealt with his great men so would they with their Tenants whether Knights or Soccagers but especially the Copy-holders should have suffered without remedy for it was grown to this that as no Jury durst find against the King if a strong contest were that is if it were a matter worth the striving for and supposed to be or might be a flowre of the Crown so neither durst any find against the Lord nor indeed well could they tell how to do right either to the Lord or between the particular Tenants for the Copies were generally brought to this course only to name so many c. of the Tenants R. or B. c. the Rent they denyed to set down so that the Bailiff cheated the Tenant but especially the honest or ignorant one at his pleasure and exercised more power rather Tyranny then a Prince for the Fines they generally drew them to the meer Will of the Lord and in that were absolutely illegall and although it was pretended the Chancery was the moderator that was but to help the Lord for not one man of a thousand would contest if rich seldom but he was a Lord for every Peasant was now become the purchaser of a Mannor if poor the controversie ruined him Now let us a little here look at the nature of Copyholds Which I conceive came in thus at the Norman Conquest upon the setling of his Commonwealth as he had laid his frame that is that all held of the Crown mediatly or immediatly that is they by greater services as Dukes Earls c. and the inferiour Lords of them so all these Lords had their inferiors under them that as they served the King in his Wars to preserve the publique so these might serve the necessities of the ptivate Families as Soccagers to plow sow and cut down c. and Villains to carry muck and do all drudgery or meaner work and were both but a kind of servants the one yet more free as having his Land only paying his Rent Corn c. the other absolutely bound over whom he had at first power of life and goods and all both yet of which as the Nation grew civilized and religious got more liberty and priviledge so that they became absolutely free and their present conditions are so diverse from past though the names remain that a man will hardly believe such things were Yet from these divers harsh villanous Customes and usages are still continued all or any and every of which are unreasonable and unwarrantable for the villain or bondman his Land was his Lords as was himself his wife and children After it was given him under a Service but he could not give nor grant then Services were turned into Rents yet he had no power to dispose all was in the Lord after the policy of the Kingdom being depraved and these villains being grown too numerous taking advantage of civill dissention among the Masters the Servants gained the priviledge of inheritance but not to pass it by free Deeds or grant or sell but to descend at last they came to sell and usage only regulated all this and then were used as free Lands all but the way of passing it which matter of form is most highly penall even to forfeiture and indeed these forfeitures are the sole end of most Lords Now these evils of forfeitures and the like though for small causes are grown exceeding penall mostly from the difficulties and delays of Law but enough from the rigorous unjust and cruel principles of the so called Lords of Mannors which now each greedy griping rich man is purchaser of and the value according to usage set accordingly Now these evils arise thus First all the Jury who enquire of the forfeiture are the Lords Tenants and those that are pannelled are not able or rich or commonly of any great reach and the Steward most commonly an Attorney he is the meer pentioner of the so called Lord and his improvement of his fortune is to improve his Lords Rents or estate and that is by searching out old antiquated Evidences for original Agreements Compositions or the first or primitive Custome and then pinch a poor weak Tenant upon that Custome and he submitting another and so on till all or the most be buxome and who is able to withstand If it be quaeried why some rich man opposes not it is answered few rich men but are either Countrimen and then either are or expect to be Lords if Citizens their gaines are great and are not desirous to spend their estates to inrich Lawyers and thus Lords and Clowns got into things called still Mannors broken divided and shattered no way retaining their original constitution through the baseness of Kings Judges and Officers and the interest of Parliament men few of them whose cause it is not the subject especially the poor is kept in a base unworthy vassalage under the constitution of the Norman Conquest and free men engaged by the tenure of lands and by prevailing and unregarded Custome to a slavery which was abhorred in the King yet usurped by fellow subjects upon each other and that with Prerogatives higher then in any the Princes Courts for the common priviledges of extraction and profession are no way pleadable against their Fines and Amerciaments so that I have known a professing Esquire take of a Christian a Knight and Barronet his neighbour fourty shillings for Amerciaments for not attending at his Court which was paid by him onely with this protest by his Steward that that fourty shillings should get his Master twenty pound per annum and where they may call a Court as oft as they list and too often as some widdows so called Ladys of Mannors holding it but for Life do it must be as burdensome as unjust Besides there is nothing certain in any Court either for the Ground or the Rent or the Fine or the Custome but the legal pated Steward can to wreack his spleen finde a flaw in and laying his land onely by so much in such a place if any ground be wood or rich that is the Lords
Market is over before they arrive or near it They also put exceeding charges upon admissions c. and no accompt but to themselves which in the consequences may be destructive not only to the private person but body politique in amassing Treasure The lesser Corporations were for marking measuring sealing sluffs linnen and woollen with a Crown Seal forsooth and these were his Majesties gratuities to the Lord of c. Marquess c. Q. Mother Lady Nurse Groom of the stool that is the Close stool whether King or Queen high and advantageous honours and this discended to outlandish as in Land commodities yea to pins and brooms and it was said to Rags for paper and Marrow-bones for Kitchin-stuff or grease Next he found one so base as being a Lawyer to take a pattent to have the first motion in the strictest sence or to be heard in all cases before any other which the Judges wisely quashed in the shell hearing him and shewing obedience to power and fulfilled this Patent therein and then declaring by an intimation of a rigid dislike that the Authority pretended could not that is with safety grant it for the Lawyers would be stirred who had the key of Knowledge and they once disaffected might be like a spark in powder All these had their success because they by degrees falling upon persons or trades only they even upon advice desisted generally from more then expostulation some few brought Actions and were killed with delayes and frowns Then the King intends a Master-piece which was at once to quash all controversies by a sleight and sudden judgment having a colour of Law but no substance and this was by an universal charge upon the whole body of Subjects so called Ship-Money which had for foundation thus much The Kingdom was an Isle the defence Shipping the Navy was decayed the King must replenish so he rigs his Ships and sends them forth to take the ayre as the idle ones said but indeed to inure bodies to the Sea settle them under pay and discipline and so engage dependance they return and whereas heretofore the Maritine Counties sent forth Ships and the Land towns paid now the King would provide all Ships and they all should pay now this was clearly done only to inhance the so called Crown Revenue for the Subject saw no Enemy and so no necessity the original cause of that Tax a general peace was held to the out side with all Nations after theslaughter of the gallant English at the Isle of Ree and the dismanteling of Rochel But the upshot was the King must be judge nay sole Judge of this necessity and this is quaeried by the King to his Judges which to prove the assertion before they were all King trodden that is had engaged all their abilities to his meer will two onely of twelve in this so important a business as indeed the whole life of the Subjects Liberty was involved in it as to his estate at first and for denyal of that to his restraint durst assert the truth which two only I shall own as men noble and honest Crook and Hutton and though both or one were by the plurality of Votes ingaged to the first Quaere Whether the King were sole Judge yet upon the Tryal brought by that true Patriot Hambden they righted themselves and the Nation to the utmost and honest Crook spake true plain English reason and good Law while mercinaries blundred upon the work and had they taken Barcley's Argenis and read the discourse betwixt Polyarchus and Hyanisbe touching such taxes they had saved their credits as only declaring the judgement of an Alien to English Liberty and reserved themselves But now 'twixt Truth and Loyalty so called they were confounded and gave no satisfaction no not to the well-affected to absolute powers and by this notwithstanding all power the Subject was enboldned to deny and at last after some two or three yeer the King was enforced to desist and surely his cogitations were for Armies how providence prevented there being so many discourses of it I shall omit only with this hint That these fore-runners manifestly declare that the Arms in Ireland raised by his Commission and continued in England against the same power of Parliament Assertors of the same Common Liberty by the Nation owned and petitioned for were undoubtedly the effects of the same cause namely the subversion of Englands Law and Government the peoples Liberties and all Rights making the King by his meer free will the absolute Arbiter of all actions civil and criminal Thus in brief I have set down some of the visible preparatives to Englands Climaterical Revolution which it now labours under In the discussion of the State of affairs civil and so called Ecclesiastick before but especially in the time of the late King and all shews that plainly there was left no more then an outside Christianity or formal Religion the temper of the clay of the world the pravity of Reason in the depraved principles of policy the iron of reason in the variety of species of Government and the gold of Christian simplicity the gold owned in the Scriptures by Authority allowed the iron in the rational formal profession of the same and the consequences thereof the Clay in the false and unconsequential glosses to make mans rule and absolute Government the higest and last refuge of every man and that for a particular persons end though in publke trust for that trust was said not so much to be for the peoples benefit as his own These things premised I might omit the passages since as being fresh in every mans memory but at the desire of some I shall go on in the way of a cursory Historical Narration repinings and grudgings by and from the actions of the King and his Ministers growing high so that it was not thought fit to proceed without some force ready for fear of insurrections which were indeed desired and therefore the people were afflicted that they might rebell and bring themselves into slavery The King having received the platform of alteration of his State from Thomas Earle of Strafford he is made his Agent to keep on foot a strong Army in Ireland who to speak truth were a company of men fit for as high an attempt as they were intended for but being Jesuited in great if not the greatest part they might have double designs that is rather to embroile all the Kingdomes and fit them for the tooth of the Spaniard their universal Patron then for the Kings absolute settlement in England whom they truly knew not to affect the Popes interest further then it stood with his own which is truly the Maxime of all Princes however they carry it Upon the confidence of this Army he is fooled into a quarrel with the Scots and was undoubtedly made beleeve that to let the Spaniard land 10000. in England was the only way to set all right and Wentworth a man of depth of policy and courage might
be amended but sent to Gaole whither he must go he was irrecoverably lost Now for maintenance in prison originally in such cases as the State was forfeited as in Treasons and Felonies which were tryed very speedily the State was seized by a publick Officer by way of securing and the wife and children if any were continued in the house c. giving security the goods were not imbezeled and nought removed or sold unless for the mainteance of the prisoner the forfeiture then reaching from the time of the fact committed and then though this were just there was this injustice that the forfeiture paid no debts an unjust and unchristian thing yea if opened the loose or inlet to abominable cheating cozenage and knavery Now the Law is that is practice constant that the prisoner maintain himself till himself wife and children are undone by selling all they have for the maintenance of the prisoner and paying Gaole Fees though he be not guilty a most wicked thing and this happily for acts or words no way Treasonable Felonious c. or for such matter which none but a malicious Adversary would have prosecuted And to say the King paid his prisoners Fees is but to argue from matter of fact for take a prison properly it is but as a pound to dammagious beasts and in the proper pound the owner must provide for them and they that offend must provide for themselves or rely on charity It is truth it is but just that in case of so called illegal or in cases dubious whether baylable or not or where baylable yet for good cause denyed and in all extraordinary imprisonments that is by absolute power in limited Monarchy being causes for which the Law provided not it seems reasonable that the same power that commits should sustain untill the Law adjudges the offence for in that case the restraint of a Free-man seems punishment enough now for such a man how he comes into prison that is whether by the ordinary Officer of Justice as a Constable or by an extraordinary hand as by armed men is not material but the Quaere must be rightly stated That is whether in a time of full peace no enemy appearing nor to be feared a Subject may be by Law arrested by an Armed power as to this it is said that considering Law to be the issue of perfect reason it is a matter worth mature advisement for the life of liberty lies in it that is the refuge of the Subject against the powers or authority call them what you wil for commonly the Souldiery are either in body and so obey no common Arrests and Processes of set Courts or dibanded and seldome an active man in his own County and well known will appear in acts of high dispriviledge so that offenders in this kind are seldome worth suing upon a trespass and the law of retaliation rather satiates the brutish then the manly passion or affection and bondage for satisfaction hath been hitherto exploded Others say the crime is to be looked at and then no matter who executes it as in Felony each man may by Law arrest and then if every man will it is neither Riot nor Conspiracy what ever it may be called Others rejoyn to both parts and say that they are sadly distressed to see the various interests of persons leading one way to day another to morrow which their diversity of opinions fully demonstrate They desire plain truth with Iustice and to that end they say that both are lawfull time and person considered and that this consideration is and must be left to the Magistrate who must not stick so in the bare letter that he lose the evident meaning of the Law and ought to be punished as a defaulter against his trust should he not in some causes use extraordinary power for the Commonwealth must not be without sufficient power to defend it self And therefore they say that if the Law doth not provide for such emergencies he ought to be defaulted if he improves not his power to the discharge of his trust that is the peace and safety of the Commonwealth though he incurrs the lurch of the Law according to the old Letter The example was under the late King James at his comming to the Crown when after the death of famous Elizabeth the County of York raised men and armed them against a sort of out-laws which Act was by the letter of the Law Treason c. but upon debate wary enough it was resolved their duty and they had their pardon against which only some object saying that if in reason they offended not why should they be pardoned Now this is answered others might else be imboldened without due cause which say the objector's is nugatory there is nothing of weight in the case more then the Officers Fees of suing out the pardon and to stop that scandal let such pardons issue of course by a day at the Officers penalty so that the party shall not need pay for expedition but as to the case in hand it is propounded that in cases of doubting it were better to assure all fears to let the Souldier be but assistant to the setled officer and not used but in evident necessity but the thing is the same I must agree the prison may be any where by the law which men in point of favour easily plead but touched then the Court of guard is a prison then White-Hall the head-quarters every thing is odious but were this same man put there under what he counted a civility it should be acknowledged it may be therefore of great policy this was left in the Judges brest to endear by such circumstantials where he saw cause but this was altered upon good reason in part and prisons made publick set and certain c. The next thing is to bring the prisoner to his Tryal wherein the Law as I said favouring life gives priviledges of no evident reason in case of crimes worthy of death especially the certain offendor present Truth is if the pretended Law of England did as many of the Officers of it do think one thing and speak another tell them they are to dye while the prisoner knows Mr. Ordinary say the Judge what he will will openly prophanely and unchristian-like of course lye out a Legit though he knows never a letter and his conscience never grumble to give sentence accordingly it were not worthy question but evident reason being its guide why should they question thirty six men without any cause or with a wise Sheriff c. is that so called priviledge ought at all yet this in some cases is highly advanced this past and that he is to plead which ought to be openly the doors not shut during the Tryal the Law of God of England common reason and constant practice of Nations agrees it First he may make all by the Law void in the Letter by an appeal yea I take it also without shewing any cause Next by
pleading to the Jurisdiction Next by denying himself to be the party with multitudes more how evident soever Which Laws in the letter being taken advantage of as one for example one first called said nothing then shewed his name was not John but John-as Jenkins therefore not the party indicted That amended the Clerk goes on John-as Jenkins of c. he answers not after much debate there is two Towns one Hoph Pet. the other Jo. and the Indictment is general he knows not which that agreed on then his addition is mistaken as he is Baronet indicted Knight or Knight and Baronet but all agreed on he is then to plead and to this he pleads First strange dilatory pleas as that the fact was done in another County c. These breeding great trouble and great delay were both in Civil and Criminal cases in great part rectified but so jealous was the Parliament ever of the thing called Priviledge that all was never done though it may be the greater evils were removed so that there are causes enough still to dally in Law to general disadvantage of honest and publike good and no liberty but of general capital offenders Now the reason of this was evident because the Subjects Liberty was by Princes sought to be totally enslaved the best and wisest were most active in opposition and to save these good men we ensnarled the Law and till now had never opportunity of rectification if yet we have this seen by the Crown side they engage three wayes by Judges absolutely depending A Jury of Conformists and the general Plea not guilty And thus Prerogative and Priviledge fought And surely the Law holds forth matter so clear in the Year-Books on the one side by Presidents Rights of Supremacy dispatch of business c. On the other side by Presidents reason of Priviledge for safety of Life that the controversie seems endless and yet Justice is plain let him plead not guilty but withall give what other matter he can in evidence which the Court ought to accept and upon the whole matter to give judgement hearing himself and Councel which surely if in any other Cause Matter or Plaint a Subject ought to have then much more in case of life especially if the Law favors it and more especially where the Judges are the meer Dependants of the Prince or State which jealousie cannot be satisfied without if withall other things can be supposed any way requirable and therefore it hath been accounted for Law that the Jury were not barely Judges of the fact but were surely intended as a barr to Prerogative in some sort or dependance thereon for they may be without all doubt so far Judges as to finde the matter specially will the Judge or nill he and if themselves will venture an attaint may be Judges of the Law indeed against the plainest evidences So that it is evident these questions are easie to be controverted and hard to be determined yet not in themselves but only because of the divers interests in this as in most matters in our Law wherein the Crown had any hook according to the prevailing of their party having laid foundations for their own benefits and advancing their particular designs which is the first rise of the controversie about the Militia which never was in England in the Kings hand otherwayes then that of Tenures the posse Comitatus being alwayes the proper defence of the County and not subjugated to the Kings will or Royal Commission Now the reason was War and Peace was nominally in the King really in the Subject because of Moneys which could not be charged without consent in Parliament some upon this ground a Quaere of main concernment Namely what are the Laws of England or where to be found Some as I have said answer the Law of God others say excellent reason some the Law of Nations peculiarized by use others say with the Lawyers That the Law of England is founded upon the Law of God the Law of Reason principles called Maximes Customes not contrary to reason received time out of mind and proper quarto modo to the people of the Nation Statutes and the resolutions of the Judges To this it is objected that these generals teach or edifie not what the Law of England is For the Quaere is If the word of God whether all or part if so the infallible or at least certain Rule pleadable to know which part they require the like certainty in reason and the Exposition of Principles and Customes for they say all these must solely depend upon the Iudges and then the Law in their opinion is wholly Arbitrary for if their only word makes it reason and their only word determines the end and meaning of the principle and so whether custome be good or not then it is meerly at the will of them and this they say experience manifested in the great Cause of Ship-Money wherein had not the Sword been the better Arbiter of their priviledge the sentence had been irrevocable to enslave them all to the King Therefore they say there must be common reason or some head-Rule which must judge most excellent reason not that they intend vulgar decision but a judgement must be tryed by its conducing to publike good The Rule is Good the more general and common so much the more precious and from this they conclude all these heads of the Law of Nature or Reason Principles or Maxims and Customes to be all the same with the dicta sap or resolutions of the Judges and then whose creatures they are and from whom they have their honour pay c. to them they will be bound which they cast not by way of odium upon them but common to them with all men to enforce and improve all their abilities by the first principle of nature to the preserving self and this they do and better self in advancing the Title and Interest of them upon whom they depend But they say this is as fatal a hawk to liberty to have such an absolute dependance upon a State as upon a Prince tending to the same end of enslaving the people Yea reducing a State from a Democracie to a Tyranny as well as from Royalty to Tyranny for they say they have heard from Lawyers and it is a general complaint That the Laws of England are they know not what at least a wise or so called Politick Judge may make them so and that this is easiliest done in matters of highest concernment Take them to be the Law of God no such matter where is ought according to that rule They exemplifie in Henry the Eights Law for marriages made meerly for private interests and now for the same neglected for Gods Name is scandalized prophaned blasphemed and not regarded horrible adulteries and some say incests unpunished Yea all the rabble of Popish Episcopal and now so called Presbyterial Professors that is the baptized Christian are guilty of walking clean contrary to their profession
is such that it is one of the most destructive for there is no conscience of an oath with the most and though it be visible there is no due punishment Gentlemen you that are at the Stern whom God hath lifted up in the height of his power and placed in seats of Eminency do not trifle away your precious time let speedy care be taken to settle this poor distracted Nation look not to your own works and let the Lords lie still there appeared in you a strong dependance upon God give not wicked men cause to blaspheme Rowze up your selves and consider God hath a controversie with the Nation and will not be appeased with all Offerings except Justice and Righteousness be done Let the Complaints of the poor afflicted distressed come to your ears who have great wrongs injuries and oppressions and none to relieve them Yea let the cryes of quiet peaceable men come to your ears who are oppressed only because not willing to return evil for evil rayling for rayling stroak for stroak action for action To sue is to perplex their minds ruine their estates if they have it and bring them at least to a wanting condition who lived well not to sue to be sued and forced to compound at the legal Theeves Will. If poor the Law is chargeable equity unreasonable and get a Lord Chief Justice Warrant so called Order of Reference it is derided not obeyed after much expectation loss of time and some expence by the poor Sutor You are on earth in Gods place and must to him give an account let not your eyes sleep till these works of Righteousness be setled There is great complaint of Inns Alehouses Taverns c. encreasing under your Regiment for the Lords sake look speedily about you let not your Officers as the Kings set your honor to sale for the increase of their Fees you are yet in a slippery place the promises and engagements upon you are great and the expectations of the people high and those most considerable of your own party are the highest their spirits breath after just Liberty they see how you toss and tumble all the Rubbish of the Government of the world to find fit stones for your building Truly they dare say among all the Christian Princes practised Rules Edicts Orders Statutes Laws c. you cannot find materials enough to lay one step to the Throne of pure Justice in the supremacy of power and they therefore much fear lest you should stumble at the same stone of offence with them and place the excellency of your eminency in power to do rather then doing Justice and when you get a little strength to stand on your selves to think and by power make good you are as they accountable to none but God there is no clearness in the walkings and actings of men because yours are not so But most will hope as they pray for better things and although they knowing the great burthens which are upon your shoulders cannot desire so much as some do neither will they nor dare they as others think much less say most likely to render your actions odious that you seek nothing but your selves and because you do not all that is desired therefore cry out you sit to do nothing No all may see you have done great things but it is desired that some things of conceived necessity for your establishment be speedily ordered until with the whole they may be in due time established or setled As first for the breeding up of all youth that all Schools be supplyed with able honest and religious School-masters all according to one form and rule setled by the Supream Magistrate And so the Universities where the youth are yet rather poysoned then profited and though the humerous conceit of Caps and Capping and such like be justly waved that such a decency be ordered in the habits of youths as may not adapt the mind to licentiousness many wise men placing much in things of that nature and to that end that all youths habits of both sexes at least may be ordered throughout the whole Nation but especially apprentices and servants of all sorts So as at least to distinguish not shame that of shame only affronting not reclaiming and for all servants to be admitted their services by Testimonial under a penalty to the Master or Dame their wages to be set by the Magistrate or some appointed universality and absolute conformity in these even to unity may be pressed without just scruple of conscience For to speak once for all to make acts of common reason intendment and benefit for particular places by them in supremacy of power because by them asked and not by others is exceeding selfish which who ever hath purchased out a particular act can easily resent Therefore it is justly desired such things to be generally the same For prohibiting of new Inns Taverns c. and ousting those erected within seven or ten years unless allowed by your Commissioners and upon due and set cause to disable the remainder and allow others or fine to some purpose as receiving any to tipple on the Lords Day or dayes of publike either prayer or humiliation And that all things may hold a proportion that all Offices Honorary fiduciary or profitable be so distributed that the work intended may be done or the neglecters punished and that such as are faithful may know certainly to whom to make their addresses for many errors are seen and felt and the State is sensible of them in part as by the careful Orders issued out from the Right Honorable the Councel of State appears But how to execute them and not be caught in the witty springes of our present Cabalistical Law no Justice of Peace can determine and generally the more knowing and able the more wary at least in opening of the fruitless or rather destructively fruitful niceties past whereby the many are cooled to action For if they apprehend men dangerous That live high and yet can give no account how they come by it what should they do To imprison for no cause visible is hard to some not to do it destructive with others to prison in the Gaole chargeable and the place having no labor to busie body or mind fatall in Bridewell shameful and generally work they will not and all this from the want of due Law Next our Lawyers are eminently favourers of nicety of Law and open it to the ruine of publick safety for from an opinion that Lead is parcel of the free-hold of the Church to rob all Churches so called is so frequent that it is feared they will soon come to pull down houses No saith the Learned sue him and he hath nought to recompence the same so there must be visible actuall force with Guns c. to evidence a forcible detainer or the indictment lies not whereby possessions are kept oft times ten years together many seven sue they dare not the Law is so nice dubious and
of a body of Law out of all Laws making Gods Word at least generally or the Moral Judicial that is that which in point of Reason is equal and just to the Samaritan or Egyptian as to the Jew to whom yet an Hebrew was an abomination Now it is worthy serious consideration who to imploy in this work to imploy Lawyers is to give no satisfaction to the people jealous of these men whose interest depends so specially thereon not to use them is to stir up the prime men of parts and of vast revenues to a contest of great importance and some think not of evident necessity for there are many wise just and outwardly religious amongst them out of Englands Law-Books its desired it should come the head Rule of Gods Word and Truth preserved still in the eminency of Power and then let the Rule of just and good be by such of them as you shall appoint and such others as you shall chuse to commissionate with them drawn out of those deep fountains of Wisdom then which none are more excellent generally nor more divinely rational and laid open to the view of each one to judge I shal give you but one example we all agree that the civil Law here raigned originally and by it the next of kin whether of fathers side or mothers to whom the inheritance did by Law descend was Guardian of the Infant The Law of England now is the next of kin to whom the inheritance cannot discend is Guardian the reason of the Civil Law was because alliance of bloud was the bond of Love and who would take greater care but this Law of Nature was found to be most unnatural many by accidental passions being corrupted for pride covetize or envy sake brake the bonds of Nature and for the inheritance sake became the murderers or instrumental to the murder death or captivity of such infants thereby to keep the estate for ever or gain to themselves the estate and inheritance saying this is the heir let us kill him and the Inheritance shall be ours so that it is evident Supremacy of Reason bare sway but the reason is founded upon the divine Rule but look at other cases which are divers and the reason divers and yet all hold force in Law and that for good reason sake As first The Law gives in some and most places all the Land to the eldest and the reason is because he is thereby enabled to give greater assistance to the King in his wars with horse of service as William the Bastard plotted In Kent there the land is divisible equally among all because all stand in equal relation to the father and where the Custome is its Law at this day A third rule is Borough English there the younger son had all the Land as least able to maintain himself there were no great evils found in these therefore these all stand but it s believed by most that were a double portion given to the eldest and no otherwise it might be the ground of a better settlement then this Nation ever had who it is agreed did never yet submit to that Law It cannot be denied but that it will take off much from the vastness of estate which is now ofttimes for many generations continued in the stock of noble Ancestors but t is answered That it will keep from the Gallows and other places as infamous and more miserable many noble and gallant Sprouts and Syences of Royal stocks who having as it oft falls out more active and ingenious spirits then the Elder brother and brought up by the indulgent Parent according to the rank and quality of his father he dead and either none or a small portion no way equal to his breeding but infinitely short of his birth as he calls it or of his spirit left him he being before fired with ambition is now madded with envy and in a kinde of desperation puts himself upon looseness and villanies to support his indigency This Law hath therefore much need to be seriously considered as also that concerning Estate in Tayl and Feoffments upon condition T is ageed none will be more able then the religious Lawyer in this part but as to the setling of Courts Fines Officers Fees Times of Trial Process Execution and the like it s conceived wholly unfit to have Judge or Lawyer impowred if holding places of profit actually or pactising in any Court under a Fee for the Nation complains not so much of the Law of property and right and wrong as in the discipline or execution of the Law it s found to be corrupt interest that troubles both Church so called and Commonwealth therefore in this let Lawyers object but others determine and that according to a Rule of righteousness namely for Justice sake not to maintain interest as hitherto the puny Clerks and unfavored Lawyer and young Attorny and heretofore some puny Iudges would be content with Reformation for they could not be worsed by the bargain No t is those Officers that have places from four or five hundred to ten or twenty thousand per annum that are loth to be drawn to the Standard of Iustice T is this and the like casts odiums upon just things under the name of Levelling destroyers of property despisers of Governments haters of Order projectors for Anarchy enemies to Caesar that is the Supream Magistrate we have seen and most do believe that many no way affecting Reformation have held forth just things only to deceive and delude and lull the State asleep untill they were fit for their design But these also admire that the State do not these just things to take away the colour of such mens aspersions and mutinous clamorous and hinder others from being drawn into such Toyls by too easie credulity while they after renewed complaints finde no amendments they hear and listen day after day and moneth after moneth but there 's no end of their expectation God hath changed and changed and changed again but their bondage is they say the same T is most true t is not possible to please every pallat especially when each pallat hath most visibly a disgust we are faln into many pieces God hath taken us and dashed us one against another yea now the Evil is come to that pass that the wound of carnality is most evident in the Envyings of Professors O what bitter enmity among those call themselves the people of God! and though Discipline be pretended its evident the root is Government the high-gate of Preferment eminency of Power multitudes of followers and the like Brethren is this of Christ Is this according to his Rule He that will rule let him be servant to all I cannot but apply to such heady ones that of Festus to Paul without cause to you with cause The knowledge of the world hath beguiled you You deceive your selves and others while you contemn all men but your selves and all judgement that agrees not with your opinions
4 If the ordinary Judges be not meet give sufficient assistance 5 Manslaughter Bailable by a certain imposition 6 All idle persons not able to give account how they live to put in good bail or go to the Work-house or c. 7 Councel to be admitted all men but one and no more and he only to speak as to matter of Law if dissallowed and the Counsel will appeal let him put it under his Hand and then the Itenerant visiting Judges to allow or disallow and punish as they see cause Chap. 40. p 162 163. shewing 1 That debts are to be recovered 162 2 First out of the personal estate if that suffice not then out of lands 3 The abuse of this discussed 4 The way to enter a Plaint opened 5 If satisfaction be not what to be done Chap. 41. p. 164. shewing 1 Wherein the great Charter of the Subjects priviledge principally rests 2 A speedy and safe way for trial of doubts for lands propounded 3 Affidavit under Hand Seal of a Justice with another witness to make two witnesses in Law 4 Obedience must be rendred to mistaken judgements 5 The unjust complainer or detainer to be fyned Chap. 42. p. 164. shewing 1 Courts of Equity may be allllowed but 2 Not till the Equity appears to the ordinary Judge of Law and be by him transmitted to the Chancery upon his Oath 3 Let then the Decree pass within a time prefixed under a severe penalty 4 Let all Orders be read and ingrossed as made in Court and signed 5 Objections against Courts of Equity Chap. 43. p. 165. shewing 1 That experienced evils must by lawful wayes be remedied 2 The work of Equity is fit generally for a diverse Court Chap. 44. p. 165. shewing 1 Students of the Municipal Laws of any Nation worthy honor 2 It s necessary to have sufficient incitements thereto 3 These were heretofore too great and were grown destructive 4 The duty and end of Pleaders laid down 5 The fit way of their due ingagement to the Commonwealth 6 The respects due in that course to them 7 The Objections vain or of little weight to the benefit Chap. 45. p. 166. shewing 1 The use and conveniency of Practizers as Attornies 2 That many must not be admitted 3 Their Fee to be set by the Magistrate 4 They and Lawyers to be fined in case of misdemeanor Chap. 46. p. 166. 1 That its fit to administer Oath to the Debtor of the true value of his estate 2 If this will not satisfie it s more beneficial to the State and to the Creditors benefit unless to satisfie the appetite of Rereage to make the debtor a servant then a Prisoner if servitude be lawful Chap 47. p. 67. shewing 1 That the all-wise God instituted servitude therefore not simply unlawful 2 The real wisdom to a rational man of that institution 3 Boundaries must be with Christians to the Masters power if allowed 4 Reasons why debtors should either be prisoners or servants 5 Whether the wife and children are to be servants with the husband and father 6 Good government will make that few servants thus will be ingaged Chap. 48. p. 168. shewing 1 What Vsury is 2 The reason why it came to a settlement and was made a Law 3 That farming of Lands came in upon the like reason 4 The loser and ill husband only complaines of both 5 That its looseness of Government pride laziness and gluttony more then moderate use that undoes any man ordinarily So over-purchasing 6 That Vsury is not forbidden Christians 7 No difference twixt that and letting lands if any 8 Mony more advantageous 9 Both fit yet to be moderated by the Magistrate Chap. 49. p 169. shewing 1 That tortures are against the light of Nature 2 Against Christianity 3 That though evils have been dâ—…ected by it yet not being a certain rule it s not to be practised as a Law by Christians Chap. 50. p. 169. shewing 1 That all publick Offices are to be born by the publick purse 2 That the Offices and stipends ought to be made certain 3 What is the publick Revenue Chap 51. p. 170. shewing 1 That ideots and mad men must be adjudged and provided for by the Magistrate 2 Their estates ordered for the benefit of their wife and children and self 3 For this Judges in certain must be appointed and their power Chap. 52. p. 170. shewing 1 That Bond or Copyhold tenure was but a dependent upon Knights Service and the rest and they gone that should go 2 The Nature of the thing wholly ceases so should the Law 3 That the continuance is not only illegal but visibly destructive to the Common-wealth by unjust dependences 4 How to settle it legally if not oust it Chap. 53. p. 171. shewing 1 How frauds grew notorious 2 The difficulty to get Laws against them or punish them nourished and encouraged thereto 3 The best way to prevent them 4 The Legal cheat of custome contrary to Law 5 Fit to settle Disputes of Inheritance justly 6 The punishment of frauds Chap 54. p. 172. 173. shewing 1 Errors in Magistrates or Laws breed dislike of both 2 How England stands so affected to Juries 3 Justice is above Magna Charta and works no dispriviledge 4 What to be done with Christians before suit commenced 5 No suit till a Magistrate legally deputed allow the same 6 How to be entred for a Tryal 7 Within how long time after cause of complaint 8 How the Defendant is so brought to Answer 9 Tryal to be speedy 10 Jury to appeal how many to a Jury 11 How to be qualified and the reason 12 How Judges of Law and how to be punished in case of Error 13 bound to give the Court reason for going against their evidence 14 Other Qualifications requisite 173 Chap. 55. p. 173. shewing 1 That judgement ought immediatly to follow the Verdict unless just cause in Law appear 2 Execution ought to follow judgement and for both let the value be secured or deposited 3 If the person be present to sign the judgement and give caution to perform it or be imprisoned if able 4 If no Execution within twelve months after judgement Judgement to be void Chap. 56. p. 173. shewing 1 Offenders in putting in unfit Jurors to be fined 2 They also that draw Jurors Chap. 57. p. 173. shewing 1 That no man should be distreined in that whereby his Family immediatly lives 2 That due apportionment of distress for publick Service ought to be Chap. 58. p. 174. shewing What punishment is fit to be in cases of waste Chap. 59. p. 174. shewing That Commons are one of the great sores of England 2 The several sorts of Commons and why and how granted 3 The rule of Commoning is now lost 4 The evils arising thereby 5 The Remedy 6 Free Warrens and Fole courses considered 7 Now an opportune time to settle all advantageously and how Chap. 60. p. 175. shewing 1 That certain Magistrates must be
appointed to ore-see Bridges Rivers Causeyways and all that is now within the extraordinary Jurisdiction of the Admiralty and Commission of Sewers 2 This so be setled that errors in Neighbouring Counties may be quietly remedied 3 The Error of purchasing Commissions Chap. 61. p. 175. shewing 1 The necessity of good witness in case of controversie 2 Legal objections difficult 3 Wicked men may be heard not sworn and the reason 4 One such evidence alone not sufficient 5 Objection of Alliance how to be accepted Chap. 62. p. 176. shewing 1 The necessitie of promulging Laws 2 The best way thereto 3 Punishment till then unfit to the common Subject Chap. 63. p. 176. shewing 1 How vain light apparel works upon nature 2 The Advantages publick from this no way equal to the dammage and is unlawful 3 The Magistrates duty to repress the excess of Apparel Chap. 64. p. 176. shewing 1 That Titular Honours as now flowing from a King give a tendency to the establishment of that Government 2 Good to decline them and that by exalting proper vertue Chap. 65. p. 177. shewing 1 No offence but under some general head of Law but the want is no set punishment where circumstances aggravate the offence exceedingly 2 Fit the Judge to punish according to the head rule or consult his Neighbours or secure till resolved legally in circuit 3 No Judge to be punished meerly for defect in form Chap 66. p. 178. shewing 1 The necessity of providing fit remedies for the ordinary causes of Duels 2 Words and light acts when grown obnoxious must have punishments suitable 3 Speedy remedy in this case of necessity 4 Incertain Tryals as by fire and water how best to be setled 5 If the suspected walk still inordinately how to be dealt with Chap. 67. p. 178 179 180 181 182 183 184. shewing 1 Questions 'twixt Magistrate and Church must be wisely discussed and here only hinted to open clearly the controversie so to pacifie 2 Wherein the controversie as now stated principally rests 3 This so far troubles the outward peace that the Magistrate must umpire 4 Certain questions urged by the Congregational way 180 181 5 Some private Quaeries concerning the Ministery and its maintenance 6 Age of Pastors and Baptizing Infants only hinted 7 Wherein Christian liberty principally consists 8 This opening the matter how it settles peace 9 The right of Tythes and how 182 10 What Religion the Magistrate must settle 11 Wherein the Churches power principally consists 12 Whither there may be two Supreams 13 How the controversie rises 14 How they of the Congregationall way settle it 183 15 An objection answered arising from the supposall of the necessity of uniformity 16 How far outward or sword Power reaches 17 What are impropriations and appropiations 18 Some things making Reformation difficult 19 That Prescription is but a particular mans custom 20 It ought to be adjudged lawfull and recorded before allowed Chap. 67. p. 185 186. Shewing 1 The Imperiall or Romane Civil Law to be the foundation of our Justice 185 2 How the multitude of their cases came to be digested 3 Why that Law was with us rejected or not used 4 Why those Lawyers were neglected 5 The evils of having two divers Laws to Judge by in one Nation 6 When a Church or State are in evident Error or Apostacie 185 186 7 A well constituted Nation must have a known settled Law proper 8 As little form as may be 9 The habits of honor kept distinct I say not sacred Chap. 68. pag. 186. Shewing 1 That to put Offices to sale in any kind is the inlet to all injustice 2 That wise and honest men have approved is no argument now 3 That there is a sufficient Revenue to carry on the work of Reformation with satisfaction to the Office and advantage to Magistrate and people 4 A consideration of the succession graduall of Officers 5 The way to have good Officers considered Chap. 69. pag. 187. Shewing 1 Breeding able Mariners of necessity to this Nation 2 How to breed them or how they be best bred 3 How to encourage and settle them 4 A consideration of the season called Lent 5 What the Magistrate may do in it 6 Objections against it Religious and Physical 7 Two wayes offered to salve all the first Religious the other Politique and not unjust for its general 8 The benefit considered and some laws fits to be established universally Chap 70. pag. 188. Shewing 1 Customes received engage to secure the seas 2 The Magistrate not bound to secure all but to imploy a sufficient guard 3 Yet the losses by Piracy are to be in some sort defrayed out of the advantage of prizes 4 Cases wherein there ought to be no satisfaction admitted Chap. 71. pag. 188 189. Shewing 1 That all officers that receive the revenues of the Commonwealth ought account 188 2 That its fit this be done in the particular Counties and the reasons 188 3 Judges must be thereto appointed and have power c. 4 All Fees settled and Offices during well abearing Chap. 72. pag. 189 190. Shewing 1 That the Magistrate hath all power to preserve the Peace 189 2 As King he hath no power in Church assemblies 3 Prudentially yet what ever done by him not simply unlawfull is lawfull 4 Reasons why no publick Church Conventions should or way be without particular allowance of the Magistrate 5 If upon disturbance of the peace the Magistrate settle a Law the Churches are bound to obey 6 The Right of calling Councels for setling matters of Religion so called cleared 190 7 The reason of the Authors undertakeing 190 191 192. 8 The Authors Prayer for a Spirit of turning to the Lord c. 192 193 c. FINIS ERRATA PAg. 102. l. 10. r. cautious l. 18. r. govern all l. 19. r. of force l. 22. r. as p. 112. ca. 11. l. 24. r. fancles p. 113. l. 27. r. transcendency p. 115. l. 10. dele this was derogative l. 36. r. groundage p. 118. l. 6. r. swerve p. 119. l. 47. r. now p. 120. l. x. r. at his l. 27. r. conquassations p. 123. l. 9. r. handed p. 225. l. 36. r. run p. 141. l. 45. r. simular p. 142. l. 24. r. objectors p. 146. l. 40. r. under p. 149. l. 10. r. that p. 151. l. 31. r. do we not rather p. 154. l. 40. r. into p. 158. l. 7. r. practice constant l. ult r. none p. 162. l. 13. r. without delay l. 17. r. twenty pound p. 163. l. 44. r. the fourth p. 165. l. 7. dele equally p. 165. l. 26. r. adjudged p. 173. l. 28. r. verdict p. 177. l. ult r. person p. 178. l. last but 4. r. discuss p. 186. l. 26. r. eighteen thousand l. 28. after Lord Au. r. c. p. 187. l. 15. for I r. It p. 192. l. 27. r. act vigorously AN ESSAY OF Christian Government The first Quaere what is Monarchy and its Divisions FIrst Monarchy in General or
put to sell his Freehold all which are argued for with much nicety little Christianity Now as for the benefit of the Commonwealth the Law put the King into possession of others though by matter of Record so it kept him in the State of the Commonwealth for for Lands Jure personae or hereditary at Common Law the rule of Law extends not to it as I conceive therefore the King cannot be disseised and many other such things as the goods of Felons murderers c. which is or may be just in murder in some sort but in no case in Felony but they ought to go to the person wronged and in manslaughter and defence of a mans own person there ought to be no right to the Checkquer not in the Self-defence at all and in the others it ought to go to the party for if the Law in forceable strikeing give dammage and more in wounding and more in Maihem then most in killing where the life of the criminal is saved That of Deodands is in the Law and I see no warrant for it but the meer allusive equity of the Judicial It is also said to be a part of the Kings Prerogative to have special Iudges to try the right of his revenues as is the Checkquer and the differences of his immediate Officers and servants as the Steward and Marshal of his house and instead of Action against his person The Law by the Ordinance of Edward the third for honor sake framed it in nature of a Petition but the Process was as against an other person and so if Iustice be upon that it is just otherwise not it will also admit no wager of Law against him and which proved a great abuse and was unjust and is no way either honorary or necessary he did take men under pretence of being his debitors into his protection to the overthrow of many particular persons and universal detriment thus was Derogative Again Judgment was never final against him but with a figmentitious advantagious evasion of a saving his right and this was also new and not necessary I come to two main and principal steps to the eminency of Prerogative alwayes afforded the Supream power which are first That the King hath by his publike trust power to do whatsoever there is no Law against So that from hence hath arisen the obstructions to Laws upon new Causes namely setling that in the Law which was before in the King and so abridging the Royal Tenure By vertue of this he created Corporations and made Denizens The other was from Gods appointment to Moses surely to appoint places so called of Priviledge like Cities of Refuge but undoubtedly this was a civility betwixt the Kings and Popes to raise a benefit to the King by priviledging That Charter had many Fees and then the Pope made it by allowance a Sanctuary and so secured by both powers what can be doubted that must be just where Moses and Aaron joyn and these men both Pope and Prince did well they saved the life but squeised the purse and none affoord such milke more freely then Rogues and Whores as all Histories evidence This is the summ of all the Prerogative so called that I in this haste remember just or unjust that the Laws of England hold forth The three main pillars upon which the Edifice of Prerogative stands all these being but the Ornaments thereto are the absolute power to make Laws War and Peace and raise moneys Except in some few scattered judgements arising upon Emergencies and are not indeed worthy the name of Prerogative though in our Topical heads of Laws they be so ranked but rather priviledges or Royalties many of which were obtained by Subjects for what a Subject may enjoy I count not Prerogative therefore not Copning of money c. nor Royal fishes nor a hundred matters of the like nature and wreck is generally detestable and the Royalty of grandage abominable but the generalty of them are justly belonging to all men with the Supream Majesty especially those favors of errors in pleadings c. Now this Legislative power was never in the King nor no reason it should which alone shews the Kings in England never was since the establishment of the three estates the Supream power for the makeing of Laws was alwayes since in them as the body Representative of the Nation and so the Lords and Commons were put as a Bar to invading Prerogative Next for war or peace it was not in the Kings power his Knights were bound according to their Tenures but not otherwayes and the special of them not performing their service were to be fined nowhere but in Parliament The last of them which are the sinews of the war were always in the peoples hands never denyed by any King however subtilly obtruded upon as by loans privy Seals c. which were always declaimed against and damned by Parliaments These were and are necessary to the Supream Power but never trusted to Englands Kings a sure sign the Supremacy was not in the King he knew it necessary to aggrandize his power and for an absolute subjection of all interests to his to claim that these were incident and appendixes to the Supremacy absolute which he aspired unto And though the Forts Ships Magazines and appointing Judges Governors Captains c. were actually in his power yet hereby it is plainly seen to what end and how trayterous they were to the then true English Interests who stuck to the King against the Parliament in this war but that controversie is besides my task here Therefore I proceed and say that it is necessary still that the total and absolute Supremacy hath these powers viz. of making or giving forth Laws making Leagues offensive and defensive denouncing Wars and establishing Peace and also to raise moneys Now this I know not denied by any publike and approved Judgement but these men have their bounds their limits also for general common and publike good is their limit their chain and to see the end of this it is fit next to see 12. Who is Judge of publike good and his Rule of Restraint and whether it be fit to admit this absolutely in the Supream Power THe Kings formerly were not unskilled in the issue of this mystery they boulted out what others will bake who ever eats it Now it is plain this also is required in the Supream Power for it is impossible to settle particular Laws sutable to each particular occasion for in the corrupt state of man as the Law is profitable or disprofitable so it is rellished as for example in an equal rate the just man likes the equality and so doth the covetous but he saith no rate at all and if an honest Miser can be he approves equality but he repines at the payment Now the boundary is evident publike good and of this in the manifest parts of it are all men Iudges for though in transactions of the high affairs of State the progression
may not be fit to be made publike yet the winding up as it is evident so the reasons of that issue may as some conceive fitly be accounted of at least to some specially appointed who are to be impowred to that particular end as the Ephori or Spartan Court who judged their Kings Actions the Tribunes at Rome and Democratie at Athens To this it is answered That the condition of the Commonwealth where the Rulers and Law givers are transient and personal are naturally inclined to more equality in dispensations then Kings who wholly labour to bring all to the power of their Successors Princes like them but the sons of the other are like to be under government The other reply that with all men present interest works and power present may if not bound and limited prove obnoxious and for private respects neglect publike profit in the Republike as in the Monarchick State for all are men nay experience hath manifested that many Senators have been corrupted to the betraying their estates to the Empire of a Foreigner never yet a King but to assure his Kingdom and so he was not corrupted The other return that these accidents of the world do not at all conclude more then what was done The ambition of most Princes hath made them true to themselves and the Covetize of some Senators made them false to their Country But the Question here is onely of the absolute judgement of the Supream Power and that is concluded positively to rest there in all dubious matters most unquestionably but for matters destructive to common good or to common Justice or against Reason they are allowed to be accountable Yet it is again replied these were the boundaries before to Kings and are the boundaries to all Powers all have generally broken in all sorts of Governments the examples of submissive accounting Supreams are rare one was found in Rome and one in Greece and to finde two more in all the world is difficult for who as these will be buried and have their daughters married of the publike purse when they have the Treasures of a Nation in their dispose and may benefit themselves much with little or no hindrance to the State Pitty it is the injustice of great men should give such cause of suspition and folly were it while men may not to set a bound and not to set it in the first setlements makes the proposal for the future difficult the establishment dangerous Therefore they propound that the Law be established as agreeable to the light of Nature examples of other States continued experience and not against divine institution The wise and just man will submit to that in himself which he holds requisite to require from an other The Parliament of England allowed the King a Judgement of the necessity but not che sole Judgement but that was because the Supremacy was not absolutely in him and all held fit not to vest absolutely Supremacy anywhere but in Law so that untill established by Law the matter is in question And though the time past when the Legislative power depended upon the Kings will and pleasure by his calling or not calling Parliaments as he pleased there might be some difficulty to settle dubious matters yet that Bar broken where can a let be unless we convert our mercy into a judgement Upon all this it is plain that there are many difficulties in the nature of Prerogative whereby to understand it clearly and truly All States that is the Supremacy of power do labor naturally to advance the so called Prerogative And the people generally ayme as much at liberty but Kings most and they more specially where the Crowns go by way of succession for the great part of personal Prerogative of a King dyes in a State except the Supream power will continue it but then it is requisite in such an alteration to settle justly and remedy fore-experienced and evidently foreseen evils therefore it is requisite that the continued complaints of men especially against the Kings Butlers the Clerks of the Pipe Chequer c. in their fees be setled for the paying and gaining of a Quietus upon a duty to the King is almost as much in Fees as the Rent it self Now I come to see 13. Whether the Supream power can grant the inferiour Prerogatives such as Wreck Forfeitures of Felons Royal Fishes Treasure Trove c. and How NOw for this it is plain first that the Kings have done it and these honours were never denyed for for most of them generally the charge of obtaining was as much to the Crown as the thing it self Therefore whereas they had Officers and Offices in every County attended upon every Court and some special Courts for Sea matters The Kings did give these as rewards to their Nobles and great men within special Precincts where in the primitive settlement of the Nation their dwellings were and so he was discharged of his Officers and the due Courts were let down and the Tryals were reduced all to his Court of Admiralty which as in all cases was and is a burthen intolerable to the Subject and to all impoverished persons Justice is by this turned into Gall and Vinegar especially to distressed persons by Sea for the poor people all along the Coast are like so many Harpyes wreck or no wreck all that comes to their net is fish and thus to save a little charge we are infinitely inhumane but by this it is plain all but the power of making Laws war and peace levying Moneys and some say Royal Mines are grantable by the Supream Power Provided that due means of Tryal of Right be preserved for the publique benefit otherwayes not Some say that this is generally true that is the Supream Magistrate hath power in all Laws meerly Civil but in cases religious or wherein properly the conscience may some say does scruple the Magistrates power ceases therefore it is fit to look a little at that and quaere 14. Whether the Magistrate be Keeper of both the Tables so called THey who make this controversie are not presently to be thought enemies to Magistrates nor enviers of Ministerial Dignity Some have admitted the Popes Primacy who have denyed his Supremacy others have given Princes all power some a Negative but not an Affirmative power in so called Ecclesiasticks or Church matters others take away the Popes Primacy for they take him away equalizing all Pastors and that that speciall designation befits no earthly person others bind up the Magistrates hands wholly some by denying Magistracie others by restraining him wholly to the name of Civils not sufficiently caring for by assured and preventive means those errors which have heretofore clouded the excellency of Magistracie by the pride of Church-men For were inherent holiness visibly and setledly and so infallibly tyed to either of these the Supremacy were determined but while they are all men they must have their bounds and limits Yet in the Kingdomes of the world the
Prince must bear sway and hath the preheminence The Heathens in glory of the Prince annexed the Priestly Office to the Superior Power not the Kings to the Priests and under Gods Law Moses was Aarons Prince or Father Aaron Moses Prophet Next the Civil part of Judicature was ever and now is clear and manifest except where interest or humour prevails and let that humour alone and it is ready to swarm into interest immediatly But this you will say determines the first part of the Question but the latter is undetermined To that it is generally answered that what power is necessary for the preservation of the peace of the Nation or Government is proper to the Supream Magistrate but an obliging power that is that simple obedience is to be given to his determination of but dubious matters in points of either Doctrine or pure Church-Discipline I beleeve never was nor will be yielded to him in matters circumstantially Religious otherwise barely civil was as generally agreed and will not now be denyed as concerning the time of Congregating the place and other Circumstantials for preservation of the peace of Church and Commonwealth yea if it were upon good reason the number that were to congregate provided there were enough to constitute a Congregation might be set by the Supream Magistrate and Christians bound to obey but this is only as keeper of the first Table not of the second Now to clear this it is to be known that if it be taken to be the Keeper of the two Tables so called to promote by all lawful means the glory of God as the good of men as all good and just Magistrates will and ought yea if it be by preaching himself or themselves and that either by word or Doctrine as good life they and all Christians are the keepers of both Tables and he or they as supream in power and so as more entrusted with means by God to do most for God then he or they who have the supremacy are by way of eminency the special keepers of them but that they are designed more especially to represent either the Kingly Priestly or Prophetical Office of the Lord Christ as head of his Church without the manifest tokens of more especial Grace and divine Revelation whereby to periodize the Controversies of their own Subjects holding forth to us under the same rule the will of God as the Priests under the Law is not easily discerned nor will I beleeve be strenuously urged The blessings which our Lord and Saviour held forth were meerly tending to his spiritual Kingdome and the propagating of it and given out to the Apostles and in them to all the Church as most sutable to not onely reason generally but the reason of that our King in his Transactions amongst them of this enough at present I come now to the last Quaere of the Prerogative of Princes 14. Whether Male Administration doth ipso facto dethrone Princes and give their Subjects power to depose them 15. And whether Kings and other Supreams may be punished by whom and how THis is a great weighty controversie truly Magistrates that desire to be flattered stand off you can hear nothing safely for your safety is your danger Now what we have said before tends much to the illustration of this point that is the due consideration of the end for which Magistracie is ordained for by the Law of pure Naturals no one is above another namely the preserving few against many weak against strong and right against wrong in Scripture phrase to be a terror to the evil and to that end not to wear the Sword in vain so that while evils are or may be Magistracie is necessary to be Now generally the defects and failings of Governors in themselves are not simply and alone a cause of neglect of obedience to them or the Laws by them for evil men may be good Magistrates but in case the Magistrate seeks to overthrow laws and all Righteous Government altering or crossing wholly the end of his ordination it is in this case clear he is not a Magistrate but he is a Tyrant an usurper an Enemy to Justice but then it is beleeved by some that the light or interpretation of this defection is in every man and so each man judges and may justly withdraw obedience and oppose This is gross ignorance no then every unjust man punished would be ready to rebell and miscall his deficiency Revenge of injury to the publique The Pope by the evill management among Princes of this quarrel brought the decision of all these controversies to his Tribunal and by the steps of seeming justice mounted the Chayre of Antichrist for he finding that the Ambition Pride Lust Covetize of earthly gods had raised up men against them and that many halings and pullings were between the Princes and Potentates of the earth and their Subjects the one to have all the power in their own hands the others to defend what they called sometimes Priviledges sometimes just Rights one while the inheritance of their Ancestors as what they had contended for and delivered to them sealed with their blood otherwhile their proper and natural birthright as dues to the people which no Power or Usurpation of a Prince could divest them of he politickly holding forth the necessity of an Umpire got absolutely into the Chayr of preheminence and deposed Kings for pleasure and Kings and Emperors and all for his profit Who would beleeve that now after five thousand years experience the world should not be able to unriddle this mystery the source of all our controversies is the Judicials not rightly understood for assuredly the Acts of their Kings is no rule for us or ours we are to follow them no further then they follow the light which God gives us all to walk by that is if you will look at their King it must be as bounded not as imitating the Kings of the Nations as not exalting himself over his brethren not as taking away the excellent young men and beautiful Maidens to be his servants and if so that he be under a Rule then he is not to rule not onely not evilly but not so well as he presumes he might unless it be made parcell of his Rule But if he breaks this Rule who shall enforce Now in this case it is plain that a Prince Ruler or inferiour Magistrate doing greater good then his Rule limits is in an error especially if opportunity were of having that enacted into a Law for men are men and to do so opens a door of jealousie 'twixt him and his people Next it stands as a president to his Successor Lastly it absolutely intimates either a neglect of the Law or seeking freedom by degrees from it but if this were evill or detrimental what remedy To clear this there must be a difference taken betwixt things partly destructive to the end of well reigning and wholly for unless wholly destructive threatning the whole community
ballance against Iustice but wind and dust This Machivellian reason is of the corrupt Court viz. men by these private litigations wranglings and contentions are fired in spirit each against other and so are taken off projects against the publick peace of the Nation but a Christian will easily beleeve this reason heightens both publick and private vengeance Besides this blind reason makes no distinction betwixt poor and rich just and wicked men but put all to the Oare and let them tug for Mastery and the Lawyer sets on the bank and with their labour is carried into the Ocean of so gotten riches this I presume sufficiently evidences that the Laws ought to be without any question in the Native Tongue plain and few and nigh at hand Next let us know how we should have them administred wherein waving the private interests aforesaid the matter will be plain for it is agreed on all sides That Iustice ought not to be delayed no more then denyed or sold the Subject demanding this had no more but Iustice when it was granted in the so called Magna Charta Now I suppose this delay must intend not the customary time of lawing but the due time and that peremptorily except in cases of so called Essoyn that is when such due case in Law appears as all reason must agree there can be no proceeding but with greater wrong to the other party then the stay can be to this which is injustice but the truth is to have so many reiterated summons formal and costly for small causes is yea though it were Law that is formerly so either established or practised unfit to be so continued And in many cases formal processes are vain dilatory and ruinous and the Subjects priviledge is that is just mens to have all such excrescences cut off and meet Medicine applyed to the wound the want of which after so many Vows Covenants Promises Engagements c. giveth spirit to the enemy and sets an edge upon their reproaches and deadens the hearts of all true friends to Iustice and Righteousness Some Nations would never suffer the Sun to rise upon a crime unpunished committed after the Sun went down and so not go down before punished if acted after Sun-rise you must suppose complained of and possible to be effected But the meaning is their punishment was immediate others gave three days others fourteen dayes Now the best men alwayes give the least time yet enough delayes whether in criminall or Civil Cases alwayes are the nourishers of corrupt ends if not perjuries our Judicatories are for Civil Cases in some places weekly but the business in formality depends a quarter half and sometimes a whole year let there be justice done under a penalty Now the trick is delay till the Witness be gone or hath forgotten it or can be wrought off or the Jury fitted to the turn The Heathens abhorred what Christians practice for the Criminal part the Sessions are or ought to be four times in the year but the now Lawyers are so afraid of their own Law for it is so doubtful that few but the Superiour Judges who by reason of their places must do or will understand it And hence men for ordinary acts lie sometimes twelve moneths two years in prison by Adjournments and no penalty upon the Iudge for he is seldom evidently faulty but the Clerks no Commission to try him or a defective one whereby the prisoner is without all Remedy Next the Processes for the Tryal before the Iudges are not every mans purchase and the appeal being onely to London the charge which rich men and free men count nothing of is to poor men destructive and unsufferable And we had need call for setled Courts and Laws and the Judges to determine by a day under a Fine or Penalty for in Arbitrary ones and so remote as London from many parts and the Clyent must go himself or his case is lost and undone where orders are gotten to day and then the party out of Town revoked to morrow and Order upon Order Term after Term and Judges sittings uncertain onely when they can be perswaded together What is it but the Abyss of confusion and that which threats most direful plagues and judgements to the Nation let the honour of the Nation be never so much pretended yea though these acts were done to enemies both of God and men solely and onely For pure and holy Justice is prostituted if not ravished nay is then made the Bawd to each exorbitant passion and affection Wise and Just Law-givers must therefore settle Courts in due and fit places times frequent and ordinary yea if it were every day and enforce prosecution under due penalties And in case of appeals while appeals which in respect of difficulties and that of moment may be betwixt persons mean and of small ability that they be setled in due places and ordered in such manner that Right may be done to the meanest not as in the formal way of so called Forma Pauperis and all the Processes thence issuing where the cause is determinable all Dilatory Pleas excluded and errors of course amended and no error pleaded after issue joyned These are principal priviledges of free Subjects but indeed the highest and greatest are least understood or regarded by the many Now whether these Laws be administred in the Towns Hundreds c. is in the Supream Magistrate surely in the County and in a due place there both for convenience of Travaile and Reception of Suitors not in Confinio Comitatus The reasons for and against this will not be worth the while they holding forth nothing of moment more then what is before declared onely this That by this means every County will have a various Law and carried according to particular interests of places and persons but this is not be esteemed for we allow the Supream power the enacting the head Law So that the Law will be the same though the dispensation may be diverse then as it is now and ever will be for bind what you can a wise Iudge will have or make to himself a latitude but if truly wise who will grudge while Iustice indeed is his onely ayme and end But to avoid such and the like Objections If the Supream power settle County Courts both for Law and equity and admit once yearly itinerate Iudges to receive the complaints of Suitors against all other Iudges and for determining difficult matters in Law after the manner of the now Assizes it will take away all the grounds of interested objections against the necessary administrations of Provincial or County Jurisdictions which some frame from the reasons of County as Congregational Independency or their seares of introducing the Churches giving an Analogicall Rule at least of exteriour Governement to the Common-wealth Now having taken this short view of the Laws Administration let us in the next place consider the Qualifications of the Law-giver and Law-dispenser whereby Iustice may be executed
properly THe Government of the Family being setled let us see how they part out of the Family and that is commonly by Marriage It is agreed the parents did at their own Liberties dispose their children by natural reason corrupted I conceive they against Nature exposed their children not onely to the next hand of man that took it up by a setled place for that purpose where they that had not the blessing of children of their own bodies might take them off others hand that had many which hath reason in it and undenyable but their exposings were to meer fortune as they called it that is let the will of the Gods be done let the Beasts devour it hunger or cold or both starve it or the merciful hand sustain it and nourish it but these are wholly rejected with us the way is to sustain them till fit for labour or Marriage Now that of labor is generally hinted before none may be brought up idle Now for Marriage there is much to be said The general plea is the Magistrate hath no power to set an age for Marriage The reason is generally that there are divers times wherein Nature works with men and women and to prescribe one certain rule for all is unfit Next it is the Parents duty to take care of that Lastly the gift of Continencie is of God and not of man and the Magistrate hath no power the first and last I shall couple together and answer them thus It is truth divers men and women are of divers tempers and Constitutions and therefore one time will not agree to all but surely the matter is not whether all men or women shall marry at one age but that there is a duty upon the Magistrate to preserve the vigour of the Nation by seasonable Marriages doth it not much more concern us to breed a generation of men fit to manage beasts then to breed beasts fit for management This natural similar reason is of some force surely there is too much looseness in this our Law to allow Copulation at twelve in the woman and fourteen in the man Now the disquisition of the other part concerning the gift of Continency will resolve the whole for I pray you how is the Law of Liberty and Continency to be pleaded may the Child marry without the good liking of the Parent Can the Child plead to him that he hath not the gift of Continencie or do we rather know it is the loosnesse of Government the evil of idle unclean education both in young men and Maids that inflames affections The young ones are ignorant of what is sin and the eldest often and they fall into contagious offences each with other before they understand the rules of wise Reason being led away of natural appetite and not withstanding all incentives the father is allowed to dissent from the Marriage of his son or daughter and in case of disobedience to chastise with stroaks or disinherison or both the son and it is done to the daughter But should the son that had stoln the daughter bring an Action or the married son could he justifie or not by the Law I profess the case is difficult for if lawful why beaten if not lawful why may not the Magistrate set the rule of restraint to Naturall appetite as well as the Parent the publick as the private Magistrate for by paternal power and Jurisdiction he enforces Now the Christian Magistrate therefore upon the whole may and ought to bridle this beast in man by a discreet Moderate Law to restrain the Lusts of proud rich lazy idle and so lustfull young ones And take of the itch of mean ones by work and labor of the body and minde or both with slender dyet and holy exercises Divine and Spiritual breathings after God in the sense of our own weakness will as well restrain exorbitant affections in Christians as the love of Philosophy or the fear of the gods so called could Heathens Let us not therefore eat to lust and live in idleness and then we must marry O we burn It is as lawful from that reason to have many wives many husbands or diversity of men or women in the accidents of sickness long journeys and the like of yoak-fellows The Modern Age is wholly loose through pretence of Christian Liberty that is the undoing destructive principle and it seems by many who out of zeal against humane wandrings go about to eclipse the glimpses of divine inlightenments to be fit totally to be rejected but both must stand a just Liberty with a due restraint that Justice with Righteousness be in all Now as it is rational that the publick Magistrate may temper the liberty of the child not to marry till a season so after that season to mitigate the Rigidity of the parent is as necessary many parents being extream and cruel forcing them to marry whom and how they please or not admitting Marriage at all I know the difficulty of these businesses hath discouraged but Christian piety ought to advance endeavors in this kind yea in some cases to portion moderately children dutiful and obedient in all other things and permit them their own choyces if nothing can be objected on the parents part but meer will It is also fit to resolve the degrees of Marriage for late Liberty hath made Quaeries concerning a just and Regular Law And to see all this done the Magistrate is the onely fit man The Act is meerly civil it is old Popery acknowledging Marriage a Sacrament that onely continues it in the Clergie so called Therefore let no Marriage be solemnized but before one or more publick Magistrates thereto appointed inrolled or recorded in a book of purpose with their hands and of the Parent if living or Certificate under hand and Seal of the Magistrate where the parties live otherwise of the Guardian unless they be of such an Age as is fixed by the Magistrate or they be married by Magisterial Authority that is though the Parent before refuse having no just cause alwayes resolved that if a Magistrate offends or Rasures be and alterations that the punishments be exceeding high Who ought to be Guardians Tutors c. SUrely in this the so called Law of England Common Law I mean as before-said provides excellently above the Civil General of Nations so called Christian by placing the next in blood to whom the inheritance cannot discend to be Guardian and the duty of his Account is well regulated by the other part of the so called Law of England namely the Statutes But the Heir in Capite or by Knight Service being in Ward till 21. the Heir in Soccage but till 14. the Heir in Burg. English but till he can measure cloth tell Money c. These Ages and Tenures breed confusion and difficulty can a plain honest illiterate man know his duty therefore let one time be for all Ages viz. not under 21. And till then let them not dispose by will or otherwise nor
ought be paid out by the Guardian but necessary expences according to the proportion of the Estate at a fixed rate not above Let the Guardian be appointed by a sworn and also answerable Magistrate for the value And the discharge of that Guardian or any Guardian by Nature or Nurture as to any estate accruing to the Infant under age so they be visibly responsal at the time ought to be as good as any mans of full estate and as to them that are visibly unable or evidently debaucht indebted c. then the person or persons that are to pay ought to pay it to the publick Treasure of the City or County which ought to that purpose be setled to be paid at full age to the infant and in the mean time 5. l. per cent and no more or four as the chief Magistrate shall see reason to enact And for successions in inheritances to real Estate let it be in case of the death of any brother c. as the Magistrate shall agree whether all to the next of the whole blood or the son of the second wife to succeed before the daughters of the whole blood Or in case of division a double portion to the Eldest and the rest equally divided the division to be made by three persons one chosen by the Eldest a second by the rest they two to chuse a third man and for personal estates all to be equally divided and the division as to value to be setled who ever be intrusted to the ordering of the matter before ought done besides burial of the dead onely decently and paying of debts Whether it be requisite to have Cities Town Corporate c. And they to have Priviledges and Laws And whether all ought to have like Priviledges and the best way of trial of Laws or probation of Laws and by-Laws AFter the youth be grown to Age they are to become sharers in Trusts and Duties and Offices of the Commonwealth some in the Countries some in the Cities for the evils of Depredations Thefts Roberies c. did at first necessarily cause men to gather into Societies and Companies and the same end of safety in time of War to have strong places to retire to is still and the same necessity did inforce Laws diverse from the other places of the Country here were Taxes for repairing of Walls Bridges Defences Watchings Wardings Pavings cleansing of Streets Common-Sewers and the like which were certain hence the taking people infected with the Plague c. from their own dwellings and removing them into places specially appointed according to their quality hence men are liable to Laws of conveniencie temporary or ought to be and that for peace sake which saves life absolutely healths sake and trades sake which are but comforts of and for well-living but most assuredly Cities being necessary and Towns It is necessary and of necessity to maintain and allow a necessary distinct Law within the Precincts not as Franchises against Law but of diverse Laws according to the necessity of the place and the trades there driven Now the Laws of Cities c. though they must in the regards aforesaid be diverse yet in respect of their proper nature as bodies corporate they ought all prefixedly and positively to have those Laws set and known and a due enforcing power in a speedy way for the standing out of a man in a tedious suit cools all obedience as Experience manifests clearly Therefore draw and settle the Government of these places by a head Law the Charter-Grant is but the foundation of Bribery and Extortion Nurcery of Prerogative and Arbitrary Liberty and fit to be avoided Experience hath so evidenced the Truth that I cease to contend and onely assert This head Law must distinguish Inn-land and Sea-Towns and Cities for the other Laws respectively they are communicable generally one to another onely the particular Regulation of Trades which must have special power well setled to regulate the exorbitances of the Artificers particularlys And to that end they must both Cities Towns and Companies have power to make By-Laws which are to be approved Now to that one word to the probation of Laws and By-Laws which being respectively for the Nation Cities Towns and Companies of publike concernment and what are of particular use may have a general influence Therefore it is requisite after a defect Seen to propound the defect and remedie which the then chief in Trusts respectively for City Town or Company think fit to the City Town or Company That being done the same to be promulged for a Law if allowed but not so to be received for a short set time during which any Citizen Towns-man or Artificer is to bring his Reasons in Writing against that Law and propounding a better or offering expedients to remedy visible evils and only leave their Reasons Then is the Supream Officer to cause them to be searched read and debated if great difficulty arise to take the opinion of the Judges in Circuit appointed who are to determine the difficulty or the Law as appointed by the Magistrate to stand if they find difficulty then to state the Case and present it to the Representative of the Nation who are to discuss and allow the same alway es provided that for Regulation sake from one moneth after need seen of a Law and promulged by hanging up openly in several the eminent parts or places of the City Town that Law to stand though not so good till another Law be established by them or the Supream Magistrate for better an evil Law then none at all No Law after once established to be questioned by particular men which enervates not onely the particular Law or Priviledge but tends to confusion and as no City nor Town so no company ought to be without due Regulation nor any person but in and of some Company Decree or Order setled and known Whether and how Customs are to be admitted as Law CUstom hath necessarily been accounted part of our Law and that rightly as to the Rule namely That no Custom is good unless the same be reasonable yet this admitting of Custom among Christians is of the prophane Apostate Church and Commonwealth for by this Rule the whole Family Township City County Nation may as we have done live all dayes of our life under evil wicked and pernitious Customs Therefore the Magistrate ought to admit nothing to be pleaded as a Custom untill allowed by certain Judges who allowing or disallowing the Custom as reasonable that is justly to be used by not onely men but Christians the same is equal to and is indeed the Law temporary or setled for a certain limit or more generally or universal as the nature of the thing is this will avoid the ingendring of all sorts of corrupt envious and self-seeking Customs and cool our greedy devillish upholding of them by manifest and open perjuries and the like Then that all particular Customs of particular places be inrowled under
men to be necessitated to it of custome as now seems not just Two belonging to every Court of Judicature is enough let his duty be onely to receive instructions from the party in the matter of Fact and to set down the witnesses names in a paper for the Judge and to what they can speak but not to speak in the Court but to the Judge and let them have a Fee as the Magistrate shall think fit Let both Lawyers and Attornies be sineable by the Judge and all that plead as such in Case of misdemeanor and that without a Jury Whether Debtors be to be imprisoned Surely where there is neither goods nor Lands to satisfie the rational man the Law of Christ of Love will not still engage to satisfie angry revengeful persons in exorbitant and irrational appetites therefore if he will take oath that he is not worth a third part of the Debt that not exceeding sixty pounds or what summ the supreme Magistrate thinks fit let him be freed let the oath be general or particular I care not for he that will swear upon a trust will swear upon no trust but let the thing concealed be forfeit if you will not do this keep not debtors in prison rather make them servants the same for Felons Trespassors and the like Whether servitude be lawful among Christians c. And whether fitting or not SUrely the Almighty wisdome appointed nothing in it self but just and that justly yea above other Law-givers who from want of prudence oft multiplied servants to such numbers as they oft oretopped their Masters and the Laws but the Lord by allowing servitude among his people yet limiting it for a time gave satisfaction to justice every way the proprietor was satisfied by labor where estate failed and the servant had his day of freedom and the danger of multitudes was never obnoxious to them for we see the Lords and great men offended in forcing service but not the contrary service therefore well limited is held by many and those prudent men and godly Christians no way dissonant to the Liberty nay equality of the Gospel wherein by Christ we are brethren and fit to be practised as well as bound Apprentices but with well tempered Laws As first the power not to extend to life or mayme next not work above so many hours in a day then to be cloathed against cold and fed for Natures sustenance that is he shall be better then in a prison the greatest difficulty will be to make servants of wife and children for it seems to some unreasonable that they should be made servants Our Heralds in many heads have made such shatters that they cannot think fit a high-born man or woman or the like which are accidents of inferiour providence as I may call it should be subject to the universal Law of Mankind but certain it is if all Debtors c. pay or serve these men ought not to be excluded but that the women must follow the condition of man is not of necessity no more then to be imprisoned c. she must be miserable but needs not be in servitude nor the Children Now the Law-maker ought to settle something against them upon two grounds First of satisfaction secondly of aw or fear upon this score to make the children and wife suffer would do much as some think but I conceive otherwise for self is generally neerest Next for children it would or might ruine education whereby the publick loseth more then the private gains Lastly for the wife if all parties be pleased let them come and serve together otherwise not But under the Law of mercy to shew mercy and love let the evident poor man be discharged as before with something to begin the world but once more repress idle houses of all sorts vanity in Apparel c. And settle estates and rate them truly and keep strict and just Government and you will not complain of poor nor fear cheating nor need servitude but with content of all parties but above all take off high Covetize and preach by example as precept Magistrates Ministers c. men of all sorts having food and rayment be therewith content But because Usury is supposed a manifest cause of beggery and is so much questioned in the world and so beaten by the Pope and his Councels and Usurers so accursed and our Law present onely wincks tolerates not let us a little consider that and Quaere Whether Vsury be lawful And how compared with Letting of Lands I Take Usury to be a Covenanting for to receive the principall with interest Now the reason of the coming to a setled way of use by particular persons that is twenty fifteen ten eight six or four in the hundred was upon consent of parties to avoid tedious and deceitful accounts and reckonings and the like the Laws settles it to avoid excessive gripings just as in Lands the Tenant hires now at a certain price and puts the gain in his pocket truth is we are a light loose proud lazy prodigal Generation for we have had much liberty educated under no restraint aw nor fear no reverence of youth to Age of people to Magistrates of poor to rich no order all men now Masters all brave all for back and belly this spends fast and gains are decreased and oft all lost and then the fault is use-money I pray what difference between being undone by a cruel racking Landlord or a biting hard-hearted Usurer you will say all one He that gains little by Land or Money cryes I had rather take money and hire Land to give account I am undone some by being unfit to manage Land or Money others by ill managing of it he that thrives will never agree to this no that were to be alwayes a servant Again some will over-purchase themselves and receive four in the hundred in Lands and pay eight and this ruines them others have good Trades in debt purchase pay use and thrive Nay it is certain Money is a more possible way of great increase then Lands and the Complaints even in all Nations much what alike therefore I conclude as to that it is fit to regulate letting out of Moneys but it is also fit to order some proportion for Lands or give a Rule for Landlords that squeaze a poor ignorant labouring creature as we do a Honey-comb let neither be permitted unjustly and for rich Tenants let them not defraud the Commonwealth This premised Usury in it self may be lawful if not forbidden now if it be forbidden let me see where it is if it were Typical it is abolished if judicial generally it is rational that is all those Laws hold forth the reason of commanding or prohibiting plainly and then let us see the reason Now if you take it judiciall specially as proper to the Jew then it must by like reason run thus Take no use of thy Brother a Christian the English Translation hath it poor Brother which to me plainly hints the
be composed if this will not do let a Magistrate allow a legal controversie Then let his Case be set down specially as it is after the nature of an Action upon the Case and let Oath be of the truth of it and that he is able to make it good by Law let the Case barely be stated no Conceits no Opinions but the naked truth which the Complainant is to make good Let this alwayes be within twelve moneths after cause of Action Then let a Summons go to the Defendant by a sworn Officer from the Court or the party or some other making Oath of the Summons if he appears not let a Note be fixed to his door under a severe penalty to any one to take off requiring appearance or to shew Cause if neither be done let the Trial immediatly be awarded if he appear let the day of hearing be ordered and entered in the Court-book and that truly by the Clerk under a severe Fine immediatly to be deducted by abatement in his Salary after which time let a Jury of twelve or six men for it is not the number that doth the work I think six best but that contest is not worth the while the alteration of an old received way is the greatest objection be warned not under the penalty of twenty or one hundred pounds and nothing ever paid but of ten or five shillings to be assuredly levied to the States use immediatly of Course unless sick in bed or otherwise imployed in the Service of the Commonwealth in the County above twenty miles or hindred by Providence which Causes sworn and allowed may excuse or essoyn him for not summoned the Officer is sworn and must admit no present contest Now the men must be knowing understanding men and of estate to answer dammages if that be continued if they give a false Verdict which is just being they are properly Judges of the dammage now if they and the Judge differ upon the Law let them do it at their peril for the Case let it be stated the Judges and their hands with the Counsel present set to it and let the yearly Judges decide it and if the Judge be faulty let him otherwise the Jury be fined to the State and if they give a false Verdict that is go not truly according to what is truly alledged and proved unless they or some of them of their own knowledge know the thing of which they are bound to give the Court publike Cognizance for Juries as other Judges are under a Rule of Reason and Common Justice then Jurors must be of the next inhabitants to the place where the fact was Committed of the vicinage neer dwellers so that they know the parties their lives and conversations and thereby judge But there ought to be no relations of Consanguinity or Affinity within three degrees for although spiritual or publick relations ought to be preferred above natural yet this is now little known less regarded Lastly he must not be who is a Jury-man a common Swearer Drinker Company-keeper nor ejected any congregation as an evil person an offender against the peace and quiet of the Nation or one that hath declared his opinion before sworn It is agreed it is best object against the Juror before sworn but what the court is mistaken in ought not to be proceeded in therefore till they be as we say gone from the bar just objections may be offered but the Judge must not allow objections as to favor or surmises after sworn if it be let it be proved for let no Juror after sworn be dismissed but the reason recorded and this proof is easie and then let him be fined When Judgement ought to be and Execution And when void IUdgement ought immediately to follow Execution unless some just cause and that only in Law be offered and for execution notwithstanding the cause which may be for delay alledged let the goods be secured or the money deposited or no cause allowed And if the party be present let him enter caution immediately to perform the judgement or otherwise to imprison his person is not dispriviledge if he be able till he performs it let the caution be setting his hand to the judgement which ought to amount in Law to above all Statutes or Customary Judgements alwayes provided if the execution be not within twelve moneths upon any Judgement whatever the Judgement to be void for the long hanging of judgements and other securities is also legall injustice I say no more Offendors in impannelling Juries Imbracers and the like FOr offendors in putting in knowingly unfit Jurors in any kind let them be fined and the Fines high and deducted out of their salary if any in hand otherwise by distress besides loss of that place and disabled of any other for at least some years for it must be perjury for he is a sworn Officer For drawers of Iurors or informers of them aforehand to draw them to one party let all be upon presentment and tryed and fined What Distresses are lawful THe Law is just that no man be destrained in that whereby he principally earns his living if ought else be But to distrain one man for a Fine due from a Hundred Town c. this is hard without speedy remedy is unjust let this be generally committed to a Court and right done as the fact appears that is let an equal rate be and the Constable and Overseers gather it and pay it immediately with respect to his dammage adjudged and set and if they will not let the Court enforce the rate and all charges upon it and so in all other Cases What to be done in cases of waste c. IN case of waste let the forfeiture be certain for Tenants for year by Lease let it be their Term except an incom be and for that let a Jury mitigate For Guardians of Infants Tenants for life and the like let it be treble dammages those to be assessed by a Jury What to do in Commons THis is a matter of large extent and is one of the great sores of England which wants healing Our Commons are either appendant appurtenant or by reason of vicinage and were originally the relief of the beasts of the Plow and for the breed of young Cattel for the Freeholders and do primarily belong to them and as their Farm was so might they put upon the Common greater or lesser quantity of Cattel according to proportion But long since the rule of Commoning was lost and Commons are become the ruine of the generalty of the poor to whom Commonage belongs not For first they get a Cow in Summer and live idlely of that and not providing against winter they buy dear in the Spring and sell cheap at winter and the rich so long as the purse payes not few regard how things go by this at last miserable and remediless beggery ensues besides the general neglect of Commons as of all matteâ—… of publick interest whereby many poor are undone
by loss of their beasts the ground spoiled and not half improved And lastly no due extant visible rule set which ought to be in all Counties anew and Rules for dreyning and improvement beyond what the Commission of Sewers can reach To avoid this it is necessary as in other matters to empower some Gent. to consider the Commons give them only their charges necessary at a set rate let them have power if you can pitch upon trusty persons to settle Commons if you will continue them otherwise to part them proportionably and improve them by severalties leaving a set part to the poor only to be improved for them according to order of the Commissioners by the overseers for the poor and the order recorded in the County-Book for that purpose and also in the Town or Towns if there be entercommuning this is the best way of the two as by experience meeting with more evils and remedying them then the other way is capable of in a present settlement and is assuredly far more durable Let free Warrens and Fold-courses be considered but not at the height and setled where they please in severalty this if wisely and prudently ordered will afford not only a great and most considerable improvement but will afford a mean of setling the Nation and may now be done without danger of Insurrections or Tumults And let but the setling of Tenures be carried on rationally plainly and prudently with it and the Generalty of the Nation will assuredly see the clear benefit of change of Government Provided they may have Justice that they may abide by that is know assuredly when to end as to begin and at what expence Who ought to have the oversight of Bridges Rivers c. NOw as all matters of right and wrong are under the cognizance of the Supream Magistrate who as he cannot by himself dispatch all businesses belonging to the Land but by many hands so much less all both at water and land and all the evils accruing and arising in from and by both Therefore it is fit to have a Magistrate specially deputed for cognizance of all such matters which now lay in the cognizance either of the Admiralty or Commission of Sewers or Iustices of the Peace respectively or for which any Commission is issuable upon any Statute with such rules as are necessary both for amending judging and determining matters yearly emerging and also such as are meerly accidentall and that in the respective Counties yet in such a way as the errors in the adjacent parts of Counties may be tryed without infringement of Liberties which is best by a mediety of Jurors impanelled yearly one year by the appointment of the Judges of one County the other year by those of the other County and so by course constant in those places we seeing the excessive charge and trouble of purchasing Commissions for let a Statute appoint five shillings only as in case of the Commission of Sewers you can have none under five pounds and ten or twenty pounds attendance to procure it Who are to be admitted witnesses in Judicial Tryalls IF Jurors be to have knowledge and estate and that in such manner as may answer the Trust then surely in some measure witnesses upon whose evidence the Jury is sworn to lay the foundation of their judgement so called Verdict ought to be men fit to be beleeved The Law principally looks first at infamy especially perjury but this being legal perjury the punishment was so penal and the Law so difficult that few were complained of fewer attainted Now this is sure moderate punishments severely executed curb more then severe punishments remisly or not at all The Law in the next place lookt at Excommunication for relations they are not valued in Law as to witnesses Assuredly he ought who is a legal witness to be of sufficient understanding next not convicted of notorious crime for justly what is the cause of rendring a man uncapable of the benefit of the Law or rejection of Church-Society ought to be admitted if proved a good plea against the witness yet let such a man speak but not upon oath for he that obeyes not man for Gods sake nor God for his own is not be allowed to call God to witness for in his acts he denyes him though with his mouth he owns him If it be askt Why heard Then I answer he may speak truth but is unworthy that sacred Testimony Therefore the Magistrate must from his words and probabilities and circumstances and so the Jury gather the truth of the matter but where the man is capable of oath let him be sworn whether 'twixt the State and Subject or Subject and Subject for right is the same There is also necessity to hear the wickedest mans Testimony though not swear him because we cannot alwayes chuse witnesses therefore estate is not requisite nor can be stood upon in witnesses as in Jury-men who are to be chosen For point of favor I find in this Age it is of great importance for such relations in Nature are generally preferred to though unworthily relations either of Countrey or City earth or heaven few men leave all for Christ Truth or Justice sake Therefore I would admit the notice of alliance but not the objection and hardly carry it upon such a single Testimony When Laws have their beginning and how to be promulged ASsuredly there ought to be a day certain before which in the several Cities Towns Hundreds c. respectively there ought to be an Assembly of the people those at least who are or may be or immediately are concerned in that Law and there by some one or more of the Justices of the limit or some other thereto appointed the whole nature of the Law and the reason of it ought to be opened and the people exhorted to obedience themselves and also to see that their Neighbours do the like which is of necessity But the inability of Iustices and difficulty of Laws have rendred the people wholly doubtful and stupid or petulant and stubborn And before such promulgation no punishment but of the Iustice for not promulgating or Certificate of the default of the representative for not transmitting the Law the same to be setled and published accordingly The lew knew all Moses Law the Christians Lords know not their Law they are all enshrined in the breast of the Iudge but enough of that The Magistrates duty to repress excess in Apparel THe mind of man is apt to take impressions of sundry Natures and education may assuredly rectifie Nature much of this rests in Apparel for vain light Apparel makes the spirit lofty not solid and changes of habit adapt to mutability of fancy a light flashing wit in stead of a composed judgement Proud humerous self-conceited and stubborn in stead of a reserved prudent debating or submission If the interest of setting many poor on work and supposition of enabling to pay Taxes can over-ballance the interest of the just and
necessary well being of a Common-wealth Let the Magistrate neglect a due care in this But I presume it is fatall however let not the cloathes and colours which are the Ensigns of Majesty Honour and special Vertue be made not onely common to mean men but their ordinary Liveries and for servants of all sorts let their Rules be set and let others do as they will so it be ordered that they bear all publick charges at their rate of private expence Whether Titular Honours be consistent with a Free Commonwealth IF it be supposed that the Quaere be whether the Commonwealth may admit them or that they be ruining of such a settlement in themselves It is not intended to bring it into controversie the Magistrate may do it and the State may yet stand but the Quaere is onely of Prudence For the honours being hereditary and native from Monarchy their tendency is thitherward and while the root remains and hath but any sap there will be sprouting each day which will labour a re-establishment so that prudence in a resolved Commonwealth would not so much as in any case but that of necessity grant such Titles to be at least claimed of right but let only vertue proper exalt the man and then a Commonweal of all settlements is the most happy establishment which God grant may be first held forth then practised and that will assure a lasting Government for the shattering of States is Pride and Emulation of Competitors for principal management which in an interval of peace is as natural to natural men in such a case as Sweating What to be done in Cases for which no Law is set or the Law clearly abused annulled and antiquated SUurely there is no offence no transgression but it falls under some Head of general Law yet Circumstance may aggravate it so that to quash the thought of it in the corrupt heart of man there is exemplary punishment requisite upon this account The lying with a maid-child under ten years of Age consent or not was justly made death But put Case as trial was A man abuses a boy at the mouth whereby the child breaks out with pustules c. in the letter it is not Sodomy Buggery c. for which the Law provides but a filthiness of a worse nature so some of the old Earl of Castle-Havens abominations so the business so called of Mopping in Star Chamber tried in an extraordinary Court and brought in upon a challenge between two at least one great spirit This for criminal matter so for all defects and deceits which be remedied by Statutes Supplemental so called of the Common Law that is since it was presumed that there was no Law for which there was not an adjudged Case in the Year-books leaving the Rule of the string to go by the bow or in some things which ought to be remedied but now cannot as for example A. sojourns in the house of B. his Nephew A. hath divers Nephews and Neices upon whom he would settle his estate being old crazie and not able to stir abroad B. finding his Uncles and Kindred to endeavour a just and equal settlement according to A. his intention they come to A. for that purpose A. gives it under hand and declares the pressures of B. to settle all upon him and that he knows B. will make him alter all to this weakness hath Age brought him B. after this shuts the doors against Father Brothers Uncles Friends and all and will suffer no one to see A. or speak to him the Magistrate is complained to he hath no power A. is thus imprisoned it is fit to be provided that the Magistrate should take a sworn Clerk and make A. his Will not to be altered but by the Magistrate sent for by A. but it cannot be done that is lawfully and A. is now kept a prisoner till death his estate as informed all seised and converted by a debauched man a rebellious disobedient son and ungratious Nephew Thousand such things are which while the Magistrate is tied from the Rule by particular Laws lay as heavy judgements upon the land especially upon the Supream Magistrate who as a wise and good Physitian ought to have a salve for every sore The Rule of Law is Quae sunt minoris culpae sunt majoris infamiae these things which are unjust while profitable and unpunishable are the Tetters of the Common-wealth they do spread daily Therefore it must either be resolved the Magistrate in Ordinary shall punish them as the Cause is that is under the Rule of the head Law if plain or not criminal or criminal respectively otherwise to attend a meeting of divers Judges or the extraordinary Judge for Criminals and in the mean time to secure by bayl or imprisonment as the Case requires And this must be observed no Judge to be punished for want of Form if the Act tends to the speedier settlement of the Commonwealth and doth the Act in person Whether Duels be lawful or not and other Trials by fire and water c. As in the trial of Witches suspition of Adultery c. and all doubts I Shall first treat of Duels which is without question unlawful in all Cases yea of the greatest doubt But first to speak to plain Cases most of which are disgraces affronts c for which the Law gives none or not considerable satisfaction or reparations Now it is clear in Law and Reason that when words and signs become dangerous and prejudicial the Magistrate ought to provide accordingly to repress King James made very rational orders in the very cause of Duels but saw them not executed which disgusted the most discreet spirits but it was evident the catch was but to halter the great men in the Springe of the Star-Chamber Law such policies never throve yet Piety when the end is Gods Glory with the peoples good not particular persons interest is the best policy Let therefore the Magistrate no longer count words light while they bear the weight and price of blood but repair every breach give a just recompence for every loss and then punish transgressors severely in such Cases for many think they may justly become their own avengers where thc Law affords no remedy The example is evident in stealing Dogs so called for pleasure which hath cost Lives and Ears The Lord Marshall did take notice of some of these matters but not all and that with such delay and difficulty that the parties were better try it shortly therefore for all words give speedy remedy let the complaint come presently to the Judge and receive a trial accordingly as the Supream Magistrate shall order For the second part which are difficulties suspitions c. we have no infallible word to warrant it the practise arose rather from Heathenish Superstition then Christian Faith therefore we are to leave them to Gods judgement and settle the matter rather some other way as of lot in Case of doubts in civil claims which