the Patriarch or chief Father of all the several Families And this power by lineal descent fell to the Eldest Sons so that the first-born were by prerogative of their birth Kings and Priests unless there happen'd a forfeiture as it was with Esau and Reuben who were therefore justly put by Afterward when kindreds themselves what with the propagation of their own Families what with the commixtion of strangers were so inlarged that they became Nations then the government was intrusted with Kings as Gods Vicegerents For though there be other Forms which I shall not now dispute against yet the Monarchical has this advantage at least over them all that it was the first and far the most antient of them all as the Historian Justin has observed that principio rerum at the beginning of the world that is when the world was first divided into Nations it was governed by Kings This among all other people but then God having a special care of his own people did not at first set up Kingly Government amongst them though afterwards upon their desire he did but to maintain the Theocracy his own Government among them did upon occasion of great troubles or imminent dangers raise them up Judges who were tantamount to Kings Nay Moses himself gives himself the very Title too Deut. 33.5 where he says that Moses was King in Jeshurum when the heads of the People and the Tribes of Israel were gathered together And thus Sufetes which is the word for Judge with the Phaenicians and Carthaginians their descendents as well as with the Hebrews is used by Seneca and others that speak of those people for the Supreme Magistrate 2. And such was Samuels power here as that of all the other Judges before him differing from the Kingly rather in name then substance as to the exercise of it Some tell us it was much-what like that of the â—ictators at Rome in that they were raised only upon extraordinary occasions and intrusted with an arbitrary power 'T is true as the occasion was extraordinary so 't was fit their power too in some measure should be But then these Judges of ours differed from them in this that these had extraordinary assistances from God not to say that these having taken upon them once the Government some of them as Eli Samuel c. never laid it down again nor returned back to their private condition as they all did but JulJus Caesar. By this power then they were instated in a supremaecy and were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unlimited unaccountable and unappealable They had the universal dispensation of Justice an absolute right to make War and Peace command of mens persons and fortunes and power of Life and Death And all other Magistrates and Officers derived their authority from them It is the opinion of some and those learned that the great Council of Seventy which Moses for his assistance set up by the advice of his Father-in-law Jethro to help him in the tryal of lesser causes usually called the Sanhedrim or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Jewish Parliament continued down from Moses without any interruption till Herods time if so then the Judge was chief over them Besides there were lesser Courts too in each City much like our Hundred-Court's and Courts-Leet to judge of smaller matters who as they received their authority from the Supreme Court so might be appealed from to it And all these inferiour Courts subordinate to the great Consistory and that it self to the Judge But I rather incline to GrotJus who thinks that in these times all the bands of Government were losened amidst the popular licentiousness when every one did what they list and that there were no Courts at all kept to call them to account but that God raised these Judges on purpose as well to recal the people to good order as to deliver them from the oppression of their enemies since the History makes it clearly out that at every vacancy or interval of Government the people fell off a fresh into their former disorders and those disorders brought new troubles upon them which both occasioned the raising of a new Judge to rescue them from one and t'other from their sins and from their foes For so we find Judge Samuel in this very Chapter first call them together to Mizpeh for a Fast and Humiliation before he venture them to Battel against the Philistines However it were these Judges had not their power from the people though sometimes the peoples consent and desire too was not wanting but immediately from God himself And so is it proportionably with all supreme Magistrates For that Ascham's position is not true that they receive their power by compact and agreement of the people this one argument amongst many is enough to evince that no man in the world has power over his own Life and consequently cannot transfer that power to another which he has not himself Nor has the whole Community together that power since the particular persons which make up the Community have no such power and the whole cannot have more in it then the parts had to contribute to it The Judicatory power then is not derived from the people but from God himself transmitted to the King as supreme and from him to the Judges as Ministers of Justice sent by him the King being the fountain of Justice and the Soul and Life of the Law 3. And this to the whole body and every part of it in all its concerns which is the extent of this power First over all persons for so 't is said of Samuel that he gathered all Israel to Mizpeh and there judged them The Church of Rome indeed priviledgeth her Priests from the civil judicature and there are Others though seemingly of far different perswasion that would fain have it believed they are not concerned in Law or consequently in government upon that assertion of the Apostles that the Law is not made for the righteous and in another place where he speaks of meekness temperance c. that against such there is no Law and I agree to them that if they do well as the same Apostle says Rom. 13. they need not fear but that upon this condition then eâ Lege if they observe the Law For what says the Apostle elsewhere Do we then by faith and I may say do we then by our good works make void the Law yea rather we establish it by performing what it commands Further Innocence it self may be impleaded and so fall under the inquisition of the Law and 't is the evidence must fetch her off The Law then is for clearing and acquitting the guiltless no less then for condemning criminals As at a Goal-delivery the Billa vera casts the Prisoner the no-evidence of the fact sets him free Again as this judicial power is over all Persons so 't is in all Causes Temporal by the Judge Spiritual by the Bishop by each as the Kings Delegate And Samuel acted
Chap. all Israel was by Samuel's order summoned to appear and kept a Fast and powr'd out water before the Lord that is tears of repentance as GrotJus understands it and Samuel Judged them here that is punished them for their iniquities and offered up a burnt-offering and then miraculously the Philistines were discomfited There were reasons then sufficient both Politick and Religious for Samuel to make choice of these places that were thus Innobled and Consecrated by such Famous and Sacred actions for his seat of Justice whence the Lxx render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in all these holy sanctified places And that we may not pass them without some Observation Our Reverend Judges though they go not the same Stages with Samuel they go upon the same Designs They begin at Bethel the Church the house of God where judgment uses and ought to begin there to enquire of the Lord. They proceed to Gilgal to roll away the reproach of the Countries by punishing malefactors and to Mizpeh to inquire into misdemeanours and see what condition the Publick is in For so they are styled in Law Justitiarii deambulantes perlustrantes Justices that take a walk and make a vJew of the Countries And at this time I may say we are most properly met in Mizpeh upon a day appointed by the Church for Humiliation to pour out our water before the Lord and to bewail our own sins and the sins of the Nation as the Israelites did first and then Samuel judged them II. As to the necessity of this Justice in Circuit though Samuel's may be called an Episcopal Visitation too he being the High-Priest It is that Justice may like the Sun the great Minister of Nature Visit all places and Influence all parts of the Nation with light and heat and vigour it being as impossible the Commonwealth should subsist one day without Justice as the lower world be maintained without the Sun 'T is so here he rode Circuit from year to year but Josephus tells us and I know not whether the Hebrew may not well bear that interpretation that he did it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 twice a year as Ours do The Causes of this perambulation I take to be four two in respect of the People and two in respect of the Tryals 1. For the People 'T is for their Ease that they are not put to the trouble and charge of bringing up their causes to Ramah to the higher Tribunal the Kings Bench but have them tryed in propriis comitatibus 2. It throws an Awe upon the Community when they see justice brought home to their own doors DarJus was wont to complain his Empire was like a raw Bull-hide tread it down in one place it would rise up in another but where Justice is sent into all parts of the Land at the same time and judgment is alike administred in every district all is easily kept in order Again as to the Causes to be tryed 1. Some are such as cannot handsomly be judged but upon the place for the convenience of Witnesses the circumstances of the Thing and the judgment of the Voisinage as 't is in the Court of Nisipriu's for matters of Fact 2. Others admit not of delay as great and horrible offences to be inquired into and punished flagrante Crimine out of hand Thus God himself came down to Babel to Sodom and Gomorrha as it were upon a Commission of Oyer and Terminer And this expedition of Justice and ousting of delays is given as the main reason of Itinerant Justice ad celerem justitiam in eâ parte exhibendam I come now to Application and let not Me do 't neither but let Samuel himself yet not as a Judge to give the Charge here but as a Prophet and a Priest in humble manner to address himself First to my Lord the Judge You are now at Bethel in the house of God may God direct you The Judgment is His. Your Persons your Functions are sacred You your selves in Scripture Language are stiled Gods Elohim God standeth in the Congregation of the Gods The Confidence the Law reposes in you is as great as the Trust she hath disposed to you and That 's no less then the Lives and Fortunes of all her Subjects De Fide Officio Judicis non recipitur Quaestio is one of her known Maxims A Judge is viva Lex a living Law and ought to be like the Law Without Passion Without Partiality Next to you the Worshipful the Justices and Gentry of the Country who are intrusted with the Peace and one way or other what by Authority what by Example with the Concerns of the Government that you would make it your business to encourage and cherish Moral Honesty and Truth in dealings among the People and to discover and defeat all knavish and false practices which pervert the purposes of government and cut the very Sinews and Ligaments of Society which consists in a mutual confidence by bringing men into a general distrust and jealousie of one another The Learned Jew I spoke of before in his Book called Cozri ingenuously confesses that it was upon this that God was so highly displeased with the Israelites that they rested themselves upon their Religious Services their Oblations and Sacrifices and other parts and acts of Gods Worship whereas in the mean time they wholly neglected the Laws of Nature and the Rules of Society the neglect whereof does by inevitable consequence tend to the dissolution of the Communities of Men it being a vain pretence any man makes to Religion and the Worship of God who wilfully breaks those Obligations and Ties by which he stands bound to God and Man upon the very account of Nature I wish this were well considered by Those who make a great pudder about Religion and yet are not at all scrupulous of publick danger and I heartily pray that common Honesty and good Morality that Truth and Justice and a due Obedience to Authority which are the best and only preservatives of Kingdom and Religion both may more vigorously and constantly more Conscientiously and Universally be practised amongst us Till this be done we have but small hopes of seeing either Church or State in a flourishing condition To you the Worthy Counsellors and other Practisers of Law You are all in your Spheres under our Reverend Samuels Ministers of State too Your Imployment is Publick your Profession Noble Shall I tell you the end of the Law I need not I cannot do it better then in the words of a Worthy Author of your own in a most excellent Preface he has to Chancellor Ellesmere before his Book of Reports It is he tells you to Comfort such as are Grieved to Counsel such as are Perplexed to Relieve such as are Circumvented to Prevent the Ruin of the Improvident to Save the Innocent to Support the Impotent to Take the Prey out of the mouth of the Oppressor to Protect the Orphan the Widow and the Stranger 'T is sad
in both these capacities here so that he had the people upon a double account obliged to him for the punishment of crimes and the decision of controversies in both Courts Civil and Ecclesiastical according to the sentence in Deut. 17.12 where having sent them to the Priest and the Judge he tells them that He that will do presumptuously and will not harken to the Priest or unto the Judge that does not stand to their award and submit to their judgment even that man should dye Of those who pretend submission to the Judge but have not the same obedience for the Priest and so would own but half a Samuel we have spoken before nor shall we need to repeat any thing here 4. As also we have at large in the very entrance of the discourse treated of the Rule to wit the Law according to which judgment is to be made so that we need not have much more to say The Law then by which the Judge is to be regulated is in the first place the Law of Nature which indeed is no other then the Moral Law and to this all mankind stands obliged and accountable Whence the Apostle tells us that very Heathens by the light of Nature know the judgment of God that they who do such things i. e. such as are forbidden by the Law of Nature are worthy of death Let me only take notice by the way that there are some who acknowledge no such thing as a Law of Nature but that these things we call Laws were invented upon emergent necessities or politick designs and so are only ex instituto 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by institution and compact and so are impositions rather of the government or but compositions at best of the Subjects with the government then Laws The Poets and some Ancient Philosophers too who knew not the original of mankind make a pleasant story of it that men were used at first to fall out and quarrel about their Acorns and other such provisions Nature could furnish them with before the invention of Tillage and with fists first and then with clubs disputed their rights till at last the strongest to be sure got the better but then he that was strongest today by ill hap many times meeting with one stronger then he the next was forced to resign the booty of his last conquest By this means being tired with these daily Frays and grown weary of their Club-Law one wiser then the rest perswades them to quietness and tells them if they would agree and live civilly together there would be enough for them all Whereupon the major part of the weak ones out-voting the strong who were but few and would have been apt to fall out among themselves and could not if they had held together made good their smaller party against a multitude in league they were all content and presently Articles were drawn up and Laws made and Rules of society consented to by which all mankind has ever since time out of mind been governed Nor has a late I am sorry I cannot call him Christian Philosopher mended the matter but made it much worse who in his Leviathan sets down that for doctrine which with them past only for fancy or at best but conjecture According to this great Master of corrupt reason every man is free and has a natural right to every thing he can make himself master of only men for fear of disturbances and out of care of self-preservation combin'd into Societies or else over-powerd by force for here lies the Argument with him that the longest sword creates the best Title gave up their Liberty and quitting that right they had by Nature to all things submitted to unequal terms for peace sake chusing rather to sit down by the loss and enjoy a little with quietness then hazard their security by venturing at all Hence sprang Propriety hence Rules of Government and Politick Constitutions which are no longer valid says that Author then they have power to back and justifie them But if it be so that Fear and Force are the principles of Society and the grounds of Subjection then what hinders but when a man can shake off that Force or be rid of his own apprehension he may return to his natural Freedom and re-assume his antient Rights At this rate Wives Monies Estates all properties are exposed as a prey to the bold and the Thief if his design hit has a better claim then the Owner and Rebellion Murder Rapes and Rapines if attended with success prove lawful actions and 't is miscarriage only makes them Crimes And the main reason that Author offers against these practices is not because they are in themselves unlawful but because they are to the designers unsafe These are impious and dangerous Tenets Alas if we hold together upon no better terms then these where are we we lye hourly at the mercy of those that dare be wicked and what incouragement would this be to wickedness if men were perswaded once that as they grow prosperous in villany they cease to be wicked But I have shewed before that there is no such natural Freedom he talks of and that we are born Subjects and consequently that natural Right he speaks of is under restraints and limitations 'T is true God made Man a reasonable Creature and Lord of the rest of the Creatures But how not so as that any one man should ingross the whole to himself and exclude all others his fellow-men from a share in that dominion That were not reasonable that where there is an equal right there should not be an equal share and by cōnsequence not sutable to the nature of Man For he that made Man reasonable made him sociable too He was to Marry to beget Children to maintain and govern a Family to provide for those that belonged to him His Children were to be obedient to him to accept of his provisions to use their own industry and when they came to be Masters of Families themselves to take the like care of them Hence came Proprieties hence Inheritances hence Purchases hence Trades Callings Professions and other honest courses for getting a livelihood Thus we see our first Parent bred up his Children the one to be a Husbandman the other to be a Shepherd Intimating that every one is by Nature to live by his own labour and not by invading anothers right These are the great purposes of Society and all this agreeable to Nature whose grand maxim 't is To do as we would be done by There is then a Meum Tuum founded in Nature There are such things as Vertue Honesty Equity Industry Justice and the like to be practised amongst men even by the Law of Nature and they are to be looked upon as Hostes Humani generis Enemies to Society Enemies to Nature that would perswade the world to the contrary But there are I said besides This of Nature other Positive Laws which oblige the external actions of men and