Law of the 12 Tables is said to be the end of Law and Equity Tac. 1. Annal. l 3 c. 5. p. 71. Nature holds forth but one Light to men and God gives but one Law to Christians This is the end of Magistracy The Execution of Justice which in their hands whether Supreme or Subordinate is that Vertue which is commonly called Distributive Justice and comprehends in it (c) Equity is the Law of Nature to which all men are bound That is honest which is agreeable to the Equity of Nature Bod. Rep. l. 1. p. â—05 Equity and the same likewise is called Righteousness Now that Justice and Equity are the same thing there is nothing more clear as Aequum Justum are Termini convertibilés so are Justice and Equity (d) Weems M. L. Com. 8. Exerc 8. p. 225 230. Godw. Antiq. Rom. l. 3. sect 4. c. 1. Isa 59.13 14 15 Prov. 17.26 And these are indifferently taken one for the other in the Holy Scriptures Isa 59.14 Justice standeth afar off and Equity cannot enter By these two words is elegantly set forth the Injustice of the Magistrates who had to do in execution of Justice and Judgement as is there expressed The same appears in that place of the Proverbs To punish the just is not good nor to strike Princes for Equity It is an evil and wicked thing to punish men for doing that which is just or to abuse Magistrates for executing Justice Coloss 4.1 Col. 4.1 Masters give unto your Servants that which is just and equal The two words there used are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are indifferently taken one for the other and either of them signifie just or equal Phil. 1.7 Phil. 1.7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montanus translates it Sicut est justum (e) Pasor Lex p. 187. a. 2 Cor. 8.14 Pasor in his Lexicon renders it Prout aequitas postulat 2 Cor. 8.14 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this is Englished That there may be equality The same word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is translated by the (f) Pasor Lex p. 343. a. Learned Aequalitas aequitas justitia and so it 's indifferently used for either Equity or Justce which are the same thing being referred to the act of the Magistrate in distribution of Law or Right (g) Psal 98.9 1 John 3.7 And Almighty God is said to Judge the World with Righteousness and the People with Equity The like appeareth in many other Texts of Scripture And in the same sense these words Justice and Equity are indifferently used by Profane Authors to signifie the same thing and they are onely distinguished thus (h) Franc. Sylvii Com. Orat. Cicero pro Murena Tom. 1. p. 771. Aequitas est ratio Legis Jus vero sententia ipsa so that Equity and Right are not administred as several things (i) The Law without Equity is as the Body without the Soul The least Judges have power to judge and give sentence according to the equity of the cause Bodin Repub. l. 6. c. 6. p 763 764. but the one is in the minde of the Judge the other more perspicuous and both made up the act of Justice And the same Author chargeth it as a fault that Usu saepè venit ut inter se pugnent Juus Aequitas In this sense the Lawyers themselves have used Lex for Jus and Aequitas or the one for the other (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Finch c. 1. f. 1. Consuet Norm tit de Jure fo 125. tit de Justit cod Cust Norm tit Justice pag. 7. B. Arist Eth. l. 5. c. 41. Lex dicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à distribuendo que ceo distribute droit a Chesc ' Because it gives Right to every one The very same words are used in opposition of that Law of the Romans called Lex (l) Eubul Din. Scho. in Orat. Cicer. de Lege Agraria tom 1. p. 710. This Law was for Division of Lands amongst the poor Commons being sound in the possession of private persons Tit. Liv. l. 2. p. 71. c. Agraria where the Commmentator in his Scholia's upon Cicero's Oration against that Law saith Lex suum cuique tribuit and thence reasons and concludes Logically thus Maj. The Law gives to every one Right Min. This Law doth not give to every one Right Concl. Ergo haec Lex Justitia non est Let our Law and Equity be laid to this Rule and see how any man living can defend both A poor man for Example is bounden in a Bond of Twenty pounds conditioned for payment of Ten pounds with Interest which Bond is forfeited because the Money was not paid at the day although it was paid two or three years after and nothing unpaid but Interest The Creditor puts this Bond in Suit it may be either out of meer covetousness or to hook in some other pretended Debt or Duty The Defendant pleads Condition performed or upon the general Issue gives in Evidence the payment of the Principal three years after the day limited in the Condition The Judge in such case must give direction for Law That the Jury must finde for the Plaintiff for that the Defendant (m) Justitia legalis stricte sumpta quatenus opponitur aequitati est iniquitas c. Amesii l. 5. de Conscientâ—â c. 2. p. 269. Finis Legis est Justitia Coed Rhod. l. 13. c. 19. p. 697. must have his Remedy in Equity and accordingly a Verdict is given for the Plaintiff And the Defendant preferreth his Bill into the Chancery and therein alledgeth all that is true and somewhat more to make his Bill hold and if the Plaintiff at Law get Judgement entred before the Bill come in which may be had the first week in the next Term after the Tryal there is an end of the Suit the poor man hath had Justice Summum Jus that is the extremity of the Law which is Summa Injuria and his Adversary hath Execution against him for the Twenty pounds Penalty and Eight pounds for Costs which is given in nature of damages This he Defendant must pay or lie in Goal and the Law as it is Justice in conceit cannot relieve him Well the poor man hath it may be got a Reprive upon preferring his Bill the Plaintiff at Law is either in Contempt or prayes a Dedimus Potestatem to answer in the Countrey or it may be in his Answer confesseth part of the Money paid or else that the Bond is ancient Hereupon the Complaint in Chancery obtaineth an Injunction and in short goes to Commission and brings the Cause to Hearing and hath a Decree That the Plaintiff paying the Interest which may be some thirty shillings and Costs which may be five Marks besides the aforesaid Eight pounds the Defendant who was Plaintiff at Law shall acknowledge satisfaction of the Judgement and deliver up the Bond. The Decree is inrolled and the Defendant served with a
defective Matthew 5.27 28 38 39. Daniel 7.25 Nehem. 9.13 14. Esth 1.19 Ezek. 20.24 25. Esth 3.8 17. The matter concerning special Verdicts is a business needless Every mans purse who hath a special verdict witnesseth this I have known two hunderd pounds spent to know whâ—n a lease should Commence which seems plain to every Ordinary Capacity but the wits of men made the matter doubtful uncertain Special vedict between Sowtham and Clerk in the upper-Bench now in the Common pleas Let all who have contractâ—d at these places say whether this be not true and if they deny it the Author will either by Instances prove the truth of it or put it out of the next Impression and acknowledge his offence and of unsuffâ—rabâ—e charge which might be prevented if the Judâ—e in his â—ircâ—it where he took the verdict would but report the matter in a few words to his fellows or if all the â—uâ—ges at the Bench would determine what the Law is when they hear the tryal for that their Judgment then would be as effectual as when it is given upon a special verdict for that if either party dislike the Judgment he may bring a Writ of Error as well in one case as in the other where a verdict is given by the Jury There are few of these verdicts if they be upon Titles but they cost an hundred marks one both sides Drawing Ingrossing Copying and Entring somtimes much more and generally serve for nothing but the oppressiâ—n of the people and inriching of some few Officers contrary to the directions of the Holy Scriptures Job 29.16 Amos 5.7 Isa 2.6 18. To these oppressions and evills in the practise of the Law I may well adde the practise of new Law at Drury-house Worcester-house Gurney-house and other places for sale and Contracts of Lands confiscated These Cloyster up themselves and usually a man may wait a week before he can have an anâ—wer and spend four times as much upon Door-keepers as the Fees o the order come to and he that hath the best skill to do his own business is enforced to entertain one of their Offiâ—ers to do it because another cannot be admitted The pâ—ssing of an assurance here costs three times as much as the passing of a Grant under the Great-Seal there you shall have a Clerk get more mony in three years then an honest man can uâ—uaâ—ly save in thirty years practise of the Law This Cloystering up themselves is against the Lauâ—able Customes of the Jews and other Nations recorded in the book of God whose Judges sate in the Gates and the same is the cause of much bribery extortion and oppression If they consulted ab ut State-affâ—irs it were fit they should be private but Matters of Contract and purchases and other things of that nature ought to be open and publique Job 31.21 Prov. 21.23 Esth 2.19 and 3.1 2. and 5.13 Dan. 2.4 Jer. 38.7 and 39.3 19. The constant practise of retaining Counsel or Advocates r This is so common that he is many times made to pay Costs that hath no Counsel as if he did it for delay Holt against Matthew in Chancery in all causes as it 's now used is (Å¿) Exod. 23.2 Deut. 27.19 11. a high provocation of Almighty God and without Gods great mercy a ruine to the Souls of the practisers These men for fees must stretch their Consciences and set Truth upon the Tenters or Imprison it in unrighteousness which is a marke of a Reprobate-minde in as much as there is not one cause of a thousand which is pleaded but one side or other endeavours to suppresse the truth and he that with an Impudent Face and the strength of his Wits being blinded with the gift cannot set a fair Colour upon a bad cause is accounted but a simple fellow and not to deserve his fee this is to call evil good and good evil and the practise like that of Tertullus his rayling against Paul and the fee or reward is no better then Balaam's wages of Iniquity and against all Scripture-practise The only remedy hereof is that the Lawyers or Advocates should be r sworne as Amici Curiae (t) At New England the parties in all causes speak themselves and if need be the Magistrates where the cause requires 〈◊〉 do the parts of Advocates withâ—uâ— fee or reward Lechford News pag. 28. or assistants to the Judges to endeavour to discover the truth without partiality and for this to have their reward from the State Acts 24.5 Exod. 23.2 Lam. 3.35 36. Num. 22.7 17. 2 Pet. 2.15 Judges 19.30 and 20.7 8. Rom. 1.18 We read in the Church-Historie that (u) Euseb l. 6. c. 21. Bassianus the Emperour Son of Severus having stain Geta his Brother would have had Papinianus a Lawyer to have pleaded his defence of that Fact before the people of Rome But the Lawyer Refused therein to be an Advocate for the Emperour saying Sin might more easily be commâ—tted then defended (w) Symson Church Histor life of Bassianus pag. 31. And for this worthy fact he suffered death but God suffered not this murder to go unpunished for this Bassianus was shortly after murdered by Macrinus his Successor in the Empire Let this Lawyer be an Example to all Lawyers lest he rise up in Judgment against them at the last day and Condemn them for being more blind and unjust then the heathen (x) Wall on 1 Corin. 2.2 Intit None but Christ The Romans allowed no mony or gift to pleaders Piso the Roman Praetor condemned this kinde of pleading calling it cruelly in Advocates Tacit Annal. lib. 2. cap. 8. pag. 43. l. 11. c. 1. p. 142. Plato esteemed these hyred Orators but as Calumniators and Sycophants hinc innocens ut nocens damnatur contra making the Guiltless Guilty and the Guilty Guiltless Cato refused to allow such pleading quia orationis facundiâ facilè possent aequa iniqua persuadere Because by Eloquence of words they could easily perswade to right or wrong Demosthenes boasted that he could change the Sentences of the Judges at his pleasure And Cicero was called Rex oratione sua omnia regens Playing Râ—x with his Oratory thereby ruled all things at his pleasure This is both an offence against God and a wrong to the people especially to the poorer sort 20. That Ridiculous or rather Profane form of Prayer used by the Clerk upon the arraignment of a Prisoner upon his Trial when the Prisoner being demanded whether he be Guilty or not Guilty answereth Not Guilty Then the Clerk to make up the Issue Replyes Cul. Prist That is Thou art Guilty and I am ready to prove it Then is the Issue joyned (y) Such forms in all cases are accounted as the Common Law and sometimes the proceedings are nought without such formalities the Common Law being chiefly old customes and nothing else besides the Judges opinions Now comes out that Common Prayer or Conjuration which
Scope of the story which was to shew that Naaman by the Miracle of healing with the word applied by the Prophet was converted from Paganisme to vvorship the true God and the same well suits with the Prophets answer to Naamans Petition go in peace (h) Calvin Institut l. 3. cap. 2. f. 32. Calvin considers Naaman as a new Convert and one that had some knowledge of Christ The common reading makes Naaman a grosse Hypocrite praying to be dispenced with in his beloved sin and it seems to charge the Prophet with unfaithfulnesse in not reproving Naaman for this reservation which could not have stood with true repentance but rather incouraging him Saying go in peace which inconveniences are all taken away by rendring the words in the sence of the Preterperfect tence That in Judges 11. concerning Jephthah his vow Judges 11.30.39.40 and concerning his daughter The last Translation seems to countenance such horrible Murder as was committed by the Heathen Gentiles and sometimes by the Idolatrous Israelites in sacrificing their Children to Devils The word in the last verse Translated lament the daughter of Jephthah being rendred according to the Marginal reading To confer or talk with the daughter of Jephthah sufficiently clears the matter Piscator on the Place And lets us know that she was not murdered or offered for a burnt-offering But that she was redeemed as God had appointed in the (i) Lev. 27.2 3. Num. 18.15 Exod. 34.20 Law but was dedicated to be a servant in the house of God as Samuel was This reading agrees with that vers 38. she bewayled her Virginity not her death This Act of Jephthah is judged to be an Act of his faith for which he is commended Heb. 11.32 If he had murdered his daughter he would have been reproved for it which he is not Therefore we must conceive that Jephthah's vow was Conditonal Vers 31. that if that which had met him coming out of the doors of his house had been a thing which might have been offered for a Dog or a Swine might have met him which might not be offered in Sacrifice he would have offered it to the Lord If otherwise it were a thing not to be offered and might be redeemed he would redeem it and offer something in lieu thereof As Abraham did the Lambe instead of his Son There are divers things in the New Testament which ought to be cleared in point of Translation That Acts 14.23 Acts 14.23 Translated when they had ordained them Elders in every Church The Text being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is (k) Pasor Lex pag. 609. A. Quun que ipsis per suffragia creassent Presbyteros 2 Corint 8.19 truely read they Created them Elders by suffrages which in the Geneva Translation is rendred they ordained them Elders by Election But this word Election signified by extending or lifting up the hands of the people the late Translators Holyoke Belcanqual and their fellows being Episcopal men made shift to thrust out of the Text That they might preserve the Bishops power of ordination as our Presbyters do now who tell us that the Church Math. 18.17 is but the Presbytery or representative Church which exposition is justified by no Scripture for the word Church is either taken for the (l) Acts 15.3 4 22 23. and 13.1 Members without the Officers called brethren or else for the Officers and Members together That in Phil. 1.21 Phil. 1.21 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The new Translation reads Grammatically out of the Vulgar Latine For to me to live is Christ to dye is gain which is perfect non-sence The two infinitive Moods without wronging the Text may be either translated substantively or as participles and then the sence is for Christ is to me in life and death or living and dying gain or advantage which is according to the Geneva Translation and suits with the sence of the fore-going verse Christ shall be magnified in my body whether it be by life or by death For these and many other causes which might be shewed it were fit a more perfect Translation of the holy Scriptures were had and published 3 In the next place I set it down as a sinfull defect that there is no Law against swearing by Creatures as the Sun Light Jerem. 5.7 Perk. on the Decal Com. 3. vol. 1. pag. 42. col 2. the Bread the Drink the Money and such like which Oathes are very common amongst the prophane and ignorant multitude and are as bad if not worse than prophane swearing by the holy name of God Math. 5.34 35. Exod. 23.13 Isa 65.16 Amos 8.14 4. The like may be said of swearing by Idols as the Crosse the Masse the Rood or by Saints as Saint Mary by our Lady That place Matth. 23.22 Condemneth such swearing Perk. on the Decal Com. 3. vol. 1. pag. 42. col 2. by Imaginary Saints as Saint George by Faith and Troth c. the like may be said of wicked cursing against our selves or others as Pox Plague the Devil rot thee and the like c. these are all unlawfull yet we have no Law against them their unlawfulnes appears by these Scriptures Ier. 4.2 and 5.7 Psal 109.17 and Psal 115 8. Deut. 6.13 Willet Hex in Exod. chap. 20. pag. 347. 5. The use of Lots in sport is a sinfull thing and no Law against it as (m) The use of Cardes dice and the very Sale of them are prohibited by the Lawes of Geneva Lawes Geneva pag. 30. 36. Carding Dicing Playing at such Games as wherein is no use or exercise of skill or memory but meer chance as it 's called these are a sporting with the Divine providence of God which is not to be meddled with but with great reverence and Lots are to be used onely in weighty matters for that therein Almighty God is immediately appealed unto as Judge and determiner of the controversie So they may be used in chusing of Officers or Governours where God hath not declared his will or in division of inheritances and such like The use of these Lots in other cases is unwarrantable Prov. 16.16.33 Levit. 16.9 Perkins on the third commandment vol. 1. pag. 43. Acts 13.19 6. The like may be said of Gaming and playing for great sums of money the same is a horrible sin and the cause of many other sins there is unlawfull getting and unlawfull spending with unnecessary expence of precious time every Lawfull means of getting is sanctified by the word of God and prayer Gaming for money is not sanctified by the word of God and prayer Ergo Gaming for money is no Lawfull means of getting The Major of this Proposition is the Scripture it self all things i. e. all Lawfull things are sanctified by the word of God and prayer the Minor is undeniable there being no word of God to vvarrant such a course of getting and what man upon any ground of Scripture or word of faith can or dare
as occasion is offered And although these Miscreants do wander abroad and so justly incurre the danger of the Laws made against Rogues and Vagrants yet their sports are so sutable to the lusts of men that hardly any man will or dare apprehend them There ought to be a Law to inforce these to work and labour and leave their idle courses Hosea 7.3 Eph. 4.28 1 Thes 3.10 2 Thes 3.9 At Geneva there is a Law that idle persons losing their time shall be punished and so enforced to work and follow some Lawfull calling Laws Geneva pag. 30.37 (y) Bodinus thus censures Stage-players and Comoedians Bodin Republ. l. 6. cap. 1. pag. 645. Stage-players were prohibited by the civilized Heathen and the Comoedians stage is concluded by the vvisest Politicians to be the Apprentiship of all impudence loosenesse vvhoredom cozenage deceit and wickednesse 9. In the next place as adjuncts also of these meetings I set down as unlawfull and against which we have no humane Law singing of baudy songs Ribaldry and rotten Communication which tend to the corrupting of good manners and ought to be obviated by some wholesom Law Eph. 4.29 1. Cor. 15. All this filthinesse is prohibited by Law at Geneva upon pain of three dayes imprisonment with bread and water Laws Geneva pag. 32. 36 37. Geneva hath a Law against this prophaness Laws Genes p. 32. 36 37. 10. The like may be said of railing mocking reviling opprobrious language taunting and such like abuses The late ordinance for prohibiting of Duells and Provocations there unto doth extend onely to provoking words and carriage tending to Challenges King James in his book of Libertie prefers the Papists before the Puritans This is Charged as a great wickednesse in the Heathen That when they abused the Christians in the Primitive times upon complaint to the Emperour he answered them with this scoffe you are to suffer injuries patiently for so they are commanded by your God Perk. on the 3. Com. vol. 1 pag. 44. col 2. Ex Tripart Hist cap. 39. l. 6. against which there is no Law except it be for womens scoulding and where the words are actionable although there abuses are prohibited by Laws in other Countreys Laws Geneva pag. 32. 37. And the same are condemned by the Law of God 1 Cor. 6.10 2 Sam. 16.7 and 6.20 Isa 58.22 Gen. 37.19 Neh. 4.3 In all Nations generally they that are most zealous imminent in the profession of that Religion used and professed amongst them are alwayes most honoured and esteemed And yet in England heretofore nothing hath been more in disgrace than to be accounted a Zealot or forward in Religion 11. No more is there any Law against prophane jesting with the holy Scriptures unlesse it be in Playes and Interludes nor for speaking contemptuously or vilifying the same holy word of God or the Divine Authority thereof this ought the more to be cared for for in regard the Devil hath sent abroad so many in this age to cast aspertions and contempt upon the word of God contained in the holy Scriptures which God hath magnified above all his Name or whatsoever he is made known by Exod. 20.7 Deut. 5.11 Psal 111.9 Isa 66.2 12. There is no competent Law against Men-stealers They were amongst the Romans such as like the Banditi in Naples the Tories in Ireland and the Mosse-Troopers in the North snapt'd up Travellers such as they could catch they either kept them to work as slaves or made them away These were severely punished who were found guilty of such vilanies as Tit. Liv. Suetonius both report which are now more common in England than in former times when the Judges were undiscovered these wretched Creatures are called spirits and are either men or women well known to such as entertain them or set them on work the men intice and steal away Men or Boys upon pretence of profitable imployment or service under men of quality the Women steal away Children with Apples and such like toyes or bigger vvenches or Boyes upon other false pretences and when they have gotten them into houses near the water-side they keep them there untill they can have opportunity to ship them away to the Indies against their wills This is an horrible offence against God and such Thieves should be punished with death and their confederates by some severe punishment made examples Exod. 21.16 Deut. 24.7 1 Cor. 6.6 The Laws of New England are collâ—cted into a body and endeavoured to be made agreable to the Jews Law morall and juditiall Lechford News pag. 26 27. The Romans Collected thâ—ir Laws into a body which they accounted the end of Law and equitie Tac. Annal. cap. 5. pag. 71. 13. That there is not a body of Law extant declaring in short what the Law is and how men should obey it is to be accounted a great defect and ought to be supplied with some Treatise to be agreed upon by the Legislative power comprehending the heads to which all cases are to be referred which are to be agreeble to Scripture rules Sr. Henry Finch hath writ a book wherein he intended such a thing which is lately abridged by E. W. Esq and may be perused This (z) K. Edward the Confessor out of an indigested Raphodii of the Laws of the Romans English Danes selected the best compiled them into a compendious systeme Hawk right of Domi. l. 2. pag. 67. Ex Cook 3. Rep. Ep. ad Lect. course hath been held I suppose by all States and Nations which are civilized most precisely by the Grecians and * The Godly Emperour Theodosius the second Collected the Laws of Kings and Princes into a short volume hee was invited by Justiman whose book is famous amongst the Civilians and is much in conformitie with Moses Juditials sympson Chu Histor. Life Theo. 2. pag. 81. See the Laws of Geneva printed Rawleighs Hist l. 2. cap. 4. §. 15. Bodin Republ. l. 6. c. 6. pag. 766. Romans and likewise the Custome of Normandy seems to be the body of their Law It 's said to be agreeable to the Laws of England but comprehends as ours do the whole body of Popery in a manner and many other sinfull Customes The whole body of the Jews Political and Moral Laws are all recorded in the holy Scriptures as before is said are comprehended in a very little Compasse The Laws of Geneva may be read over in two or three hours The want of such a body of Law in France makes their proceedings over-tedious and uncertain and is the cause of many Suits following partly the course of the Civil Law and partly the Laws of Normandy and other Customes Insomuch that John Bodin that famous Lawyer and States man complained that there were more Suites in France than in all Europe besides 14. In the next place I presume to set it down as a most material want and sinfull defect in the Law that (*) Cooke Essa pag. 172.