Nimrod who notwithstanding he had elder brothers yet took the power of government upon him yet it s conceived he went no further then the government of his own family the heads of families appearing in the same age with him in the offspring both of Shem and Japhet and t is not probable that in those times the government was mostly such for they might have enough in one family for one man well to govern considering the many hundreds of years those ancients lived and the mind of man might well then be contented with it the profit was care and the honor duty and the end only safety against brutish invasion which course is as most natural so most conjectural untill the contrary be proved And most assuredly as their families increased even after the dispersion so divided they the land as well as in the dayes of Peleg and though it may be conceived that in this dispersion and confusion of languages the seed or occasion of future Discords Wars Jars and such like was sown yet it is probable that the earth in the fulness thereof being before them and the remembrance of kindred being fresh they did not immediately break out into blood by forcing a disseising or putting them out of possessions who were in but those unprovided sought out habitations and their numbers in their respective progresses increasing they sent out what we call Colonies The chief leader or Colonel of which was as is most likely the most Ancient who also gave forth to them the general law of their fathers whether traditional or otherwaies and the next in degree of age as the fathers of many children were accounted as chiefs next that cheif or King and these by Scripture according to that phrase in the time of Moses writing when now the world was grown to some setlement in disordered order were called Princes But these soon wax out the remembrance of their neerness of blood for surely where God was not regarded man was neglected forgetting God and his Law and private interest increasing the issue was divisions Wars and Jars The just might separate and divide as did holy Abraham and just Lot but the wicked fought for it and by power obtained their will and that law or liberty of blood-letting once admitted there was no stint of strife they renewed the Wars as the season of the year gave opportunity and with this strife out of all question came in against the law of nature the servitude of man to man and therewith also a confusion of families as to pure discent But let us pass on and hast the Lord makes now his family in the houshold of Abraham by especiall Covenant of promise with him and his seed rejecting all other Nations Yet how that rejection wrought is difficult for Melchizedech Abrahams contemporary was a holy man and assuredly kept purely the law of his fathers supposed of Shem though living amongst the accursed Cananites so Pharoah King of Aegypt to whom the Lord communicated his error in taking Abrahams wife and more especially Abymelech King of Gerar who apprehensive of Gods indignation for the same thing prayeth as one and that not only of himself but as of a Nation that knew and kept the Covenant of the Lord Wilt thou also destroy a righteous Nation said he not she is my sister But to proceed This Abraham is called a mighty Prince yet Arms but three hundred and eighteen this confirms what was before asserted shewing what Kings and Princes then were for these were to fight four Kings and manifestly proves the generality to be but heads of families though the Assyrian had now conquered many families mark also Abrahams complaint for lack of an heir urging his power and estate to difcend to Eleazar his chief servant These things are inserted only to lead the weak reader in a plain path way of historicall narration therefore this one example might suffice but this must be more then seconded both in Isaac the child of promise and Jacob and his progeny Isaac was Abrahams heir both of goods and graces yet falls into the offence of Abraham his father and for safeguard of his life denieth his wife And as a King governing his family hath issue Esau and Jacob Twins and although the birth right of divine blessing is by Isaac given to Jacob yet the temporall inheritance was to Esau which primogeniture is several waies and in the right of it acknowledged to Esau by Jacob whose substance was the gift of his God in and for his faithfull service he performed to Laban But le ts hast to see Jacob in his full grown family discended into Aegypt and there continued the time appointed by Gods promise during whose servitude while the yoak of Pharoah gauled the necks of his off-spring the way which God used to perform and fulfill his promise of freedom t is strange to flesh and blood you can look for no other government upon their shoulders then the whips of the Taskmasters untill the time of deliverance from the Lord comes who raiseth up Moses to be their saviour and leader but the judgements of his mouth during the whole course of his government were for the greatest part extraordinary even from the mouth or Spirit of the most high God which although it shews how nigh a relation holiness and obedience can work betwixt man and God yet so far it sheweth not ought as exemplary to us in our present Magistracy either the superior or subordinate in ordinary jurisdiction neither the Acts or judgements of any of those Judges afterwards in such special causes of evident supream either direction or assistance neither during their forty years peregrination in the wilderness nor in their daies of rest untill they called for a King nor indeed at any time That is we are not to take what ever one judges supream or subordinate in ordinary jurisdiction or legall government say as a binding word issuing from an infallible spirit or accompanied with such divine directions But according to the respective laws and customs of the place and Nation wherein we live ordered according to the reason and necessity of intervening accidents wherein those general rules which nature teacheth of self preservation and of preferring generals before particulars and general and common good before particular alwaies presumed nought be done contrary or destructive to any part of Divine rule must by all men as was by them be observed But seeing all that Moses did was not extraordinary let us a little view his behaviour in the course of this narration even of that man with whom so extraordinary a spirit rested for his first actions I leave the reader wholly to Scripture only this he was under persecution from his infancy being then exposed to the mercy of the waters only for what I shall specially aim at shall be and are his acts judicial and those either in referenre either to Church or Common-wealth The first law of Moses mouth was not only
performed or otherways adorning Churches the several Manners Places Times of bowing gesture and order of pronunciation at or in reading all not only discoursed of but applauded and generally practized adoration at the entery of the Church and also at departure and that to the East all for uniformity the great and special pretence of the so called Church that is the Bishops the Fathers of the Church according to their own stile Bowing or Genuflexion or Adorations to at or of the name of Jesus Extream unction Confirmation Pennance all practised yea a Nuntio of the Pope but not so owned yet well known and which troubled the people most of all a raile of wood or other partition betwixt the so called Priest and people at the receiving the Sacrament so called of the Altar and this of necessity and the words of administration purely Popish as yet in the directory But all persons without question in the parish admitted to the Sacrament as by Law was established these things setled they haste for power to the further setlement of the Church in power and purity and by the Kings power they are convened and called the sacred Synod where they Act with large commission and fearing counter-buffs of Providence by them called Fortune they denied the Pope but admitt Popery in its full height and to evidence the Antichristianisme they establish their Hierarchy with an oath with that famous clause of c. labouring as the brood of old Rome to bring all Temporal jurisdiction under ecclesiastick censure and this was the condition of the Church or Churchmen or Clergy men so called I shall now as shortly give you a veiw of the civill State as the necessity of perspicuity will well permit You have heard upon what a politique Basis William so called the Conqueror founded his Empire which yet from evident causes declining even in the space of his own and Sons Raign did evidently shew the frailty of all humane wisdome and therefore might well in the space of six hundred years be brought to nothing and truly once for all to say it I am in my conscience perswaded that King Charles did see the want of Law in this land to govern the Nation rightly and upon that foundation sought to mould the kingdom to the similitude of other Nations for it is a sure and certain principle that States grow old and Laws c. And if not reduced by reformation there is a necessity of a new formation Now the chief thing which a Prince looketh at is the power of War or the Sword and this so far as the power rested in the King which was his Tenure was clean lost and gone for the many transmutations of possessions had made many litigious questions partly through the corruption of officers not duly awarding process against alienators without license partly other defects of certain boundaries and partly the evill of time which had through divers discents parcelled great estates into many persons So that there were many Tenants but few Knights and what was at first an honor to hold of the King or by Knights service because the Tenants Son and Heire should yet come to the education of a Lord paramount or higher then the Father and so should be bettered both for Arts and Arms the Kings of late years had made them absolutely but the fees of their Servants and the Heirs of gallant men were as bad as slaves to the will of the Kings Grantee whereby they were yoaked unequally in marriage or their estates were generally squeised of sometime a third sometimes a fourth or fifth part in the Court of Wards so that they that should have been the Princes guard as it were being thus prejudiced in their minority and drinking in hastily the complaints of their friends bewailing their Wardships as an insufferable vassalage could not heartily seek to maintain that power whose subsistence was their ruine to eternity in all their progeny and through the long tract of time it was grown to this that almost any great or rich mens Son must be a Ward all Titles of Lands being so exceedingly intricated that it was almost impossible to clear it and this rigor was never higher then in the daies of this King so that it is evident for a setled Militia for his own defence he had none but had left himself naked to the strokes of any timely opposition Next as he had robbed himself thus of power so had the example of all the Kings in part and the power from jealousie in other part devested the Lords of all power military by dependencies of Knights service The Oathes of homage and fealty the Kings had respited them to enhanse a revenue and the Lords were not willing to urge that which had been so fatall to many their predecessors through their dependencies and being now grown generally loose lazy or worse from the long peace we had enjoyed they had no contests but at Tennis Drinking Dicing or worse sports and sometimes a Law suite These yet sunk many of their estates and they had no waies of raising them but by the Kings sole favour for there were no Lords now that had absolute power in any County this made them wholly quiet and the rather because to be of an active warlike spirit gave cause of jealousie to a Prince especially of any who were not meerly his creatures namely of ancient popular Nobility that is their Ancestors of great repute with the people Many therefore retired themselves lived privately and quietly in respect of the Court but few of them with great love in the Countries where they were resiant carrying too severe a hand towards their Tenants by racking of Farme-rents and otherwaies as Lords of Mannors enhansing fines as all the Gentry also at their own wills enclosing of Commons for private profit and by the evill example both of themselves Servants and Retainers bringing a general Lewdness Looseness ād debauchery in religion and civill manners into all the quarters of the Nation For the Country still at least as far as it may or can imitates the Court and so downward by this means a general almost universal pravity and corruption stole upon and got possession of the English Nation not that I think to speak once for all that England was worse in any respect eirher for civill or Ecclesiastick government then any other Christian kingdom no but that it had departed from that purity of Government which it self held forth and had in some measure exercised yet was then taxed to hold forth little of a true Christian Government at all for first though the Sabboth was held moral yet it was prophaned and that by publique authority as by the book of sports which also gave such a loose to the power of the master of the family that he could not govern by an exact rule that power being before too much broken and this opened a gap to all inordinate walking towards magistracy in other both superior and
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
a sworn Officer and published in Print and a Book kept in every Town or Precinct What is the Magistrates duty in all Orders of Government and necessaries thereto And first whether the Christian Magistrate may admit War THe Magistrate ought to provide for the well-being of the Nation or any part thereof repectively according to his trust so let us consider the evils which may disturbe this well-being and that arising First from open war secondly from private force thirdly from deceit or fraud and lastly from difficulty Let us a little discourse therefore of war and whether Christians may war Surely the Church that is the Congregation of Saints are militant on earth but that opposition being against spiritual enemies Satan lust pomps vanities c. are not the subject of our discourse against these there is no Quaere they must war and these are enemies both outward and inward and though the children of God will not cannot war among themselves yet there are false brethren such as go out because they were never in Heretiks so called Deceivers Lyars and all such as are cast out of the Church Now for these I still humbly conceive that we must look at the nature of the offence for if it be meerly mental opinative and internal from the souls mistakings but not degenerating in actual scandal the weapons that are to be used against these are meerly spiritual which are mighty to the beating down of all the strong holds of sin and overthrowing every thing that is not of God and against such I suppose no outward force yea though you suppose or beleeve them firmly to be Hereticks may or ought to be used so as they disturb not the Civil Peace But a case will enlighten somewhat Suppose one doth beleeve as many are said to do the abolishing of the Sabboth may the Magistrate enforce obedience To this I say that he that holds the abolishing of the Sabboth held a Sabboth was and then must acknowledge the power whereby that Sabboth was and so the end to which it was directed which was the ease of the creature from corporal labor and for his edification in the service of God in the Spirit This gives no loose to any Jocundrie that day no Sporting no nor idle Tatling Walkings but the Spirits Recreations in the Contemplations of Divinity ought to be the repasts of the Soule Then assuredly the Magistrate may hinder this and cause keeping within doors and punish offenders Therefore let not the Gates of a City be opened that day but to such as pass too and fro and are known and that to partake in divine and spiritual services and that not above a Sabbath dayes journey and agree that but dilate not twelve moneths what is a Sabboth dayes journey but within the private Family there is no inforcing of the Magistrate that is he seems not to be bound to it nor is his power evident No the better way to know the care and diligence of the Master of the Family is to appoint some men not as Church Officers but Civil Inquisitors of Knowledge who may see the progress in Knowledge of such as are out of the Schools and Colledges and punish or cause them to be punished at first and afterwards the Parents and Masters and not to admit to places of Magistracy such as are ignorant themselves so neither those that do not carefully educate and instruct their Family whereby they may in their season become serviceable in the Congregation of the faithful Now this war of Hereticks and profane persons being over let us see what is to be done to those without the Church I say to these That these also as the Religion wherein they were educated are to be permitted their Conscience without force suppose them Papists and suppose them Idolators suppose them Turks and suppose them Heathens for unless by the pure light of Nature they must or may see it that is it be evident and perspicuous I take it Reason Divine or Humane corrects not notwithstanding that Parable of the Servant that knew not his Masters Will and was to be beaten Now this is evident for among all the clashings amongst opinions untill now where was it not that every one strove onely to free themselves from the power of others to be inforced yet would inforce others but now I take it to be the infinite Mercy of the Lord to reveal this thing unto us that see it how many do not that is they can see nothing but confusion accompany it Now as to the other part of Papistry though claimed as part of Religion viz. That the Pope is Head c. and may dispose Kingdoms dissolve Leagues Oathes and remit obedience to powers and that because he hath said it there is no faith to be kept with Hereticks All or any of these being contrary to the peace and safety of a State may be enforcedly renounced and the parties denying justly banished I say not their goods confiscate for we know many do conscienciously hold these things and with great strength of Natural Reason as much as maintains the greatest pretending opinion in this Age and now in contest with us And in case of Resistance War is lawful So that in brief I take it War is lawful against the Enemies of the Church Spiritually with Spiritual weapons against the carnal enemies with corporal weapons of Banishment in case of destructive errors to peace and civil quiet and warlike force where the State and Nation cannot otherwise in Prudence secure it self for the entring the others Country or Limits First To make that the Seate of the war where other things are clear the Law of Nations which admit it will well setle it What Arms or Armies he ought to use whether his own People or Strangers ASsuredly the necessity of Arms being preservation it were indiscretion to put that strength into a Strangers keeping Experience hath proved it unsafe and Religion will count it unlawful to imploy an other about that which we count simply evil Next onely to keep the people from delight in blood it must be Civil or Divine Knowledge must do that indeed there is a shadow of exception in the Law which prohibites Butchers to be of a Jury of Life and Death but that was I suppose because most of them were of mean and servile condition and so ignorant for assuredly the killing of beasts makes not a man careless of the life of a man in a judicial way it was the office of Gods High Priests though it may in the way of a particular quarrel next Souldiers for never so many battels are not debarred the being of Juries How the Militia ought to be setled ALL Humane Laws have their settlements and of themselves naturally devolve into Error so that if we eye all the wise settlements of Nations in this or ought else it is nought worth now The Jewish Romane Grecian Egyptian or other old or Modern the foundation yet of most of
better for see how Lent was kept lay in so much flesh before as served the household And so it would be ye will say for two dayes in a week I agree it therefore I say truly observed therefore as in the historical part I propound that the reason of every law be divulged and conscience from conviction of the benefit of it engaged to obedience and no way like that as the examples of Catholique abstinence now manifest But if the Magistrate would use force I shall offer the best and most reasonable way which is to send to every household in every town so many fish at an equal and set rate by him according to the number of his family so many fish for every head by the year accompting two daies in the week wholly for fish Now the benefit of the preservation of yong Cattell is great and warily to be provided for therefore let the Magistrate enact that all Lambe killed before such a day shall be forfeited and the killer and eater to forfeit a price So no Chicken Turky Duck or Goose till such an age no Rabbit till Midsommer And that in Two great respects First till that time they bear little grouth and do not much harme if well looked too Secondly the wool and skin is then serviceable Now for Calves the laws for rearing of yong Cattell must be made in them more certain for Bull Calves needs not in many places to be preserved equally as others some also are plainly unfit for to be reared at least by opinion Therefore there must be a loose to them more then others But to setle all to provide that every second third fourth or fifth Calfe be reared up or so much paid to the hayward of the Town And every Town to have one seems easie and feazible Whither losses at Sea by Piracy ought to be satisfied by whom and how ASSuredly the taking of customes c. engages the Supream Magistrate to the guard of the Sea now this done many think the work is done and customes are due clearly but the Subject must bear his private loss Others Christianlike say that there are providences which none can eschew and for these each one must bear his own burthen Next there are remote places wherein Traffique is thought setled Yet clearly in dominions of other Princes and States and that for any Supream Magistrate to assure their Subjects in all places is impossible Therefore the Engagement of the Magistrate must be setled First that the Piracy be within such a precinct or bound Secondly that it be a vessel of the Nation Thirdly of goods lawful but not that if any goods unlawful were in the Ship no recompence be but that recompence be only for lawful that is not goods prohibited whether for importation or exportation Fourthly to a Subject of the Nation in other cases let the customes of Nations prevail But in these cases it is just that Recompence be to the loosers by the Supream Magistrate out of prizes taken by his men of War which ought therefore to be valewed and returnes made Annually to the losers as their losses are proved in time allwaies provided a high punishment bee to him or them abuse the State Now there is great difficulty made of the proof of these things But we perceive it is easie to the State if the Governors have a minde for the lading will appear in the Bill or Cocket if they have it if not and That that be miscarried they can have what they can claime out of the office from whence they sailed And the Principal Merchants can quickly make out the work especially if all Merchants be brought under rules of Trade as they ought to be what ever is yet alledged to the Contrary How all Accompts for the Common Wealth are to be setled c. THis ought also to be done in the several Counties there are the men best known and their dealing Admit complaints to men impowred and that with speedy and due Justice and small charge and men in conscience will complain oft where little or no cause is but that is quickly ended But make it difficult and Envy and Malice are the only accusers men do accuse then not of but out of conscience only Let the times be set positively wherein to have all accompts cleared and yet let none be called to accompt upon error after a set time for I would have all formal accompts cleared and burnt once in seven years they are not worth the keeping let the Auditors be carefully assigned who are to prove the accompts and let the punishment be in case of Error or Arrears securing estate till cleared and the person except good Sureties be for it is clear it is the due prosecution of justice is the great priviledge and if nothing but securing persons will keep them in due order let the work be done For the Iudges they must have power to call to account as oft as they see cause but all to be ended with the year as aforesaid And let all Treasurers and Officers have their fees from the State as before Next let them have their offices onely during well abearing and so much in the pound truly for all discoveries of deceits and the work will manage it self especially if once the erroneous principle of conceiving it unchristian and unbrotherlike for a brother to enform of a brother be beaten out of the world In whom is the Right and Power of Calling Councels THis is a great Question much ado is made concerning it in the world and yet all to little purpose for that most spend their time onely in treating what was done but few upon what right it was founded It is not nor cannot be intended here who should Congregate the people in Civil Matters No it is intended in Questions doubtful troubling the peace of the Churches of God Now it is plain by what hath been said before that the latitude of the Magistrates power in these cases is only the preservation of the publick Peace otherwise he hath but the relation of a private Christian Therefore as Emperour King or State to settle or convene a Colloque Assembly Dyet or Councel Provincial or General he hath no Power in a Church-way It must be only prudentiall to assure or continue the publick peace in the best way they may wherein all things that are not unlawfull and be expedient become lawful But to assure the jealousie of the Supream power it is not requisite to have such publick Conventions without the Magistrates permission but to turn this sufferance into a Right was an Error Again for the Churches to desire the Magistrates permission and after to enforce a Grant or summon without was a greater fault for their profession admits less deviation just Magistrates will not deny the Churches lawful meetings while the Churches seek but lawful things lawfully Now as the Churches have the first insight as by Office into Church Errors it is their duty to
person or running the Gantlop and this by the judgement upon vote of the Officers of Troop Company or Regiment if the Regiment be there Seek not many but fit souldiers but look none keep Arms but those charged or allowed by the Militia or Justices as now one is fit if not of necessity I have now but one word to the Commissioners and Officers and in them to all Officers of Trust Judges and others be strict in your duties to your Supreams and require nothing but just things and obedience will flow of it self it is the Military power that in all alterations of State gives forth the Rule of Government from their order is the Nation setled Reduce therefore your Discipline to a just and setled Rule and then each one labor to beget this opinion in your Souldiery which is truly a Christian as well as prudent humane Maxime That the riches and safety of the Master is in the emulation of servants but as that so this must have a just emulation and by that the Army and so the Commonwealth will be established and preserved but this emulation is fit to be a little better known It consists principally in the glory of doing good but that doing good is materially in avoiding or hindring of evil I mean they that will faithfully serve the Commonwealth must not only keep the Laws themselves out of conscience of their own duty but also see to and as much as in them lies that is as lawfully they may in their places enforce the performance of them by others the want of which hath so disordered Civil Government that he that requires or advises but the obedience to the Law or a just and consciencious regard thereto is thought nay called a busy-headed fellow a Roundhead a pragmatick self-conceited shallow-brain'd fellow Turks and Heathens will rise up against us Gent. you it is that must redeem Authority buried in the ashes of politick mercy which hath destroyed Kings will ruine this Commonwealth ere it hath the honour of a settlement unless the prudence of power set it on his legs again with the blessing of the Spirit of the eternal wisdome without which all mans labor is in vain But I proceed with my intended settlement Whether Indictments or Appeals are to be pursued in cause of crime or both HAving done with the due regulation of Arms which under God are the great staies and support of men to assure their peace quiet repose enjoyment of what God by their friends or labors hath vouchsafed them for I must agree that the foundation of humane happinesse subsists in the providence of the Almighty however he useth us as instruments that is gives success to our endeavors thereto We come now to look at the civil settlement in the remainder and first because the criminal part of law is of most and greatest concernment as looking at the life of man I shall therefore look first at that now in this the difficulties causing difference are these in an appeal there must and ought to be witness besides him that appeals for he is the accuser and that either in his own right or as next of kin but all for private benefit Secondly there the dammages are to the party and it is a personal thing proper to the complainer and he may desist when he will and compound as he will The Indictment is at the suit of the supream Magistrate solely for the benefit of the Commonwealth and the State hath all the goods and all dammages and the prosecutor or complainer is here a witness for the State but at his own charge which is as now used unjust The Interest therefore of the Magistrate the Subject ought here to be compromised rationally for assuredly if life goes for life dammages are cut off as unfit or of unequal value to be rendred for the life of a man therefore the heir or wife or friend who should bring an appeal as I conceive ought to have no forfeiture some recompence may be where the life is lost as in all cases of Murders and voluntary considerate killings and in all appointed duels not in heat of blood especially if for ought the Law gives a remedy for great abuses dispunishable by Law it seems not reasonable but of this more after Now for to clear this indeed it is requisite that there be as is justly supposed in Law an Attorney for the State whether called Clerk of the Crown Clerk of the Peace or what other name you will give him setled in every County who upon a set day each week by vertue of his place should receive all complaints and that upon oath himself being duly sworn and then by and with the consent and advice of one or more Justices should frame an appeal generally thus I do challenge you A. for the peace of the Commonwealth to answer to B. for the death wounding c. of C. whereof you are accused and let B. and another witness make two witnesses and upon the finding of him guilty let him be fined moderately that is so that at least a fourth part of his estate be left him The like Law also in case of Maym wounding c. whereof two parts to the party wounded c. a third part to the State to bear all charges for it is not fit to add charge loss of time to him that is before oppressed in case of life let life answer life unless by misadventure yet then he must be fined but not to the party but to the State and that but to a third part of his estate reall or personal to bear charges and where the life is lost the charges must also be apportioned in like manner For the leavying this the way is before set but for discovery of estate there is the difficulty but in Lands admit no trusts for deceit nor uses to cheat and the estate in the Land will be visible and take the goods in possession at the time of death and all is satisfied that can be expected Only let a set time be for Creditors to come and be satisfied also that the Common-wealth be satisfied and the members not ruined undone and impoverished Thus shall both interests be satisfied and the multitudes of legal quarrels by indictments c. will be quitted which have freed many rich Murderers Poysoners c. and of other offendors multitudes when there have been poor prosecutors That this must be done in the County where the fact is committed is owned Let the transferring him from one County to another when taken out of that County be setled in an easie and speedy way and that a Judge be there ready to determine such cases weekly if not daily however to examine witnesses immediately upon Oath which all Justices must have power to give as they see cause therefore make wise and honest Justices better then yet are and let this be taken as evidence as far as is credible and let not witnesses stay
a moneth a quarter a year for Tryal and at unreasonable charge and as soon as gone a Tryal if stay a flaw in the Indictment though the Evidence be plain This was Englands old Law and the reasons are the same the alteration was the sweet benefit not Justice or Righteousness Why cannot the Justices in Ordinary in the County try Felons Murders and Treasons as well by a setled Commission as a Special one And in all faults the condition of the fault and the quality of the person ought to be observed In an Amerciament or Fine I would have but one word for all purse-pains for that is just and is our Liberty of old and now ought to be For Murderers of themselves and Murders and Manslaughters by unknown persons let such rule be as is proportionate for Fines to deterr not ruine Wife and Children and enquiry in all by one specially appointed as with us per Coroner but let his power and Fee be certain that he encroach not on the Office of the Justice who is but Inquisitor yet it might be better to give every Justice that power For Deodands let the Law be setled by some Rule of proportion which our Law books hold not forth but solely for the advantage of the Crown so called yet under the Right of God as the Priests portion this seems wholly superstitious For words threatening life let good Sureties be for the peace and let due publick and evidently hearty confession of his unchristian walking be before remission This will quiet all double Controversies For of suing first an Appeal and then an an Indictment first Indictment and then action brings that there is no end of labour Now let us see how Felons are to be apprehended How Felons ought to be accused and apprehended FOR this for the security of the Priviledge of the people we must distinguish between palpable and publick justly known or probably suspected Malefactors and private and concealed yet with some light and possible causes of suspition Now in all known cases and justly suspected every one may apprehend without a Warrant yea if but justly that is upon strong presumptions suspected because of flying but in case of but probable lighter and lesser suspitions no man ought to be apprehended but by Warrant that is the causes of Suspition allowed by the Justice the Warrant is to be granted if he denyes the party may go to another and where ever just suspitions be or a warrant the party complaining except the informations be feigned or causes of apprehension meerly suggestions no suit ought to be and in case the person be obstinate and dangerous or the number many the Civil Officers may undoubtedly crave the assistance of the Military power of the Nation if any be ready or otherwise raise them and it is no dispriviledge at all Now shortly let us see how they are to be dealt withall when apprehended How and where imprisoned How maintained And of the Treasurers therefore ASsuredly things are best tryed immediately as acted and would save much needless if not unjust and imprudent trouble and vexation in the world and then imprisonment would not be a question of such controversie But in case it shall be delayed a short time for it is unjust to delay so long as restraint and charge there happily of an innocent shall bring a greater evil by beggering wife and family then the original dammage Yea grant it were for Murther but put it so Let the Prisons for criminal offenders be only within walled Towns or at least Corporations in respect of the multitude of Inhabitants necessitated to incorporate and come under particular Government not contrary to the general Law of the Nation Next Let them there be maintained at the charge of the County at a set Rate if they have not whereof to live and this according to their condition and if clearly not guilty of offence against the Commonwealth let them be acquitted free from Fees or Fines To this end as before Let the Gaolor and all Officers have Fees from the State out of the Fines Let there be special Trasurers to whom the Atrorney for the Commonwealth shall pay the Fines as the Record is for in this there shall need no abateing of Fines for all men shall still have something to live upon For their imployment in prison let it be according to their Trade if not highly criminal that is for life in which Cases the more speed ought to be that so he may again return to the service of the Commonwealth and sustentation of his particular Family unless a person notoriously factious and dangerous and that in time of danger in which Case better restrain Liberty private then endanger the publike safety Who is Baylable THe answering body for body is now out of use or it had better be and one onely word of bailing used wherein the party is to appear at a day or the Recognizance that is the summ wherein he was bound to be forfreted Now set the Rule certain in high Treasons where the party is eminent and times dangerous surely to admit Bail were vain therefore resolve the contrary for it is no priviledge yet as such it would be claimed and breed Tumults or lay the foundation of Sedition But for misprision of Treason and words let them be bayled but in all Treasons as in all Cases of death speedy trial is of necessity if the ordinary Judges be not sufficient send down either at the Circuit if such may be agreed or adjoyn others of the same or adjacent Counties in a setled way that the Subject may truly know his time for trial otherwise to be bayled of course and set the Judge his power in certain that he may know his duty and perform it without or be duly questioned and his reason known why he denies But for Bayl 's in Manslaughter and the like set down the value as for Example for Manslaughter two hundred Maim one hundred wounding fifty beating forty assault twenty or leave it to discretion of Justices onely put not in men unfit our present shame And thus let all Vagrants all idle persons though seemingly able to live of themselves if suspected or not able to give a good account to the Justice go under bayl for their good behavior or be sent to the place of their birth or if found refractory or dangerous set to work in Bridewells well ordered and sufficiently provided with good wise and faithful Visitors Justices of the Peace there to be till enquiry be or certificate of their condition that order may be taken accordingly Now for the Trial of all persons let it be as speedy so publike and with one Counsel no more if they please who may freely and openly speak the Law and no more not manage evidence as is now used and if the Judge denies the Law let an Appeal lie to the next Circuit under the Councels Hand and with his Reason but if the Judgement be affirmed let