Inventions in the Worship of God being condemned as Will-Worship and things that are meerly Idolatrous in State serving for nothing but to uphold the Religion of the false Church of Rome and are not to be used by Christians Lev 20.23 Hos 14.8 2 Cor. 6.16 Deut. 12.3 CHAP. VI. That divers of the old Statutes as well suâ—h â—s are said to be made in Affirmance of the Common Law as oâ—â—â—rs Introductory of New Laws coâ—tain iâ— them gâ—â—at Oppressions and Wrongs to the People aâ—â— oâ—ght to be amended (a) Articuli super Chartas 3 Ed. 1. c. 7 31. 28 Ed. 1. c. 2. 10 Ed. 3. c. 1 4. 14 Ed. 3. c. 19. 25 Ed. 3. c. 1 15 21. 34 Ed. 3. c. 2. THe Statutes concerning Purveyance for the Kings Houshold where the Officers might take in a manner what they would at their pleasure This was afterwards changed into Money 36 Edw. 3.2 At the best it was a heavy Oppression to the People The like may be said of all those Laws concerning Villains whereby they were accounted the Goods of the Lord and might be bought and sold cum tota sâ—quela which is said to comprehend their Wives Children and Posterity And if any Lord pretended a man to be his Villain the Lord might seise him as his Villain although he had his Writ de Libertate probanda depending against the Lord 9 R. 2. 9 R. 2. c. By the Statute of 34 Edw. 3. Chap. 22. He that findes a Hawk and doth not restore the same shall have two years Imprisonment and pay for the Hawk and if he have not wherewith to pay he shall continue longer in Prison (b) 37 Ed. 3. c. 19. And by another Statute He that stealeth a Hawk or detains her being found shall be used as he that steals a Horse And by another Statute He that steals a Hound shall have a years Inprisonment Here a great mans Hawk or Hound is of as great a price as a poor mans Liberty or Life (c) Grotius Pol. Maxims par 2. c. 12. p. 129. A learned Statesman observes That a Common-wealth is often destroyed by such kinde of Laws as are made to the advantage of great ones and the prâ—ssâ—re of the Common People The Statuâ—e of 13 R. 2. Chap. 1. appoints the price of a Pardon for Murther to a common person 200 Marks This was in part Repealed 16 R. 2. Chap. 6. but the Power to Pardon Murther was left in the Kiâ—g These are wicked Laws repugnant to the Law of God as shall appear in their proper places In Actions brought for the Kings Debts in others mens Names unto whom they were bounden although the Suits pass for the Defendants the Plaintiffs should pay no Costs 24 H. 8. Chap. 8. Appeals to Rome in cases Testamentary and concerning Matrimony Divorces Tythes Oblations Churches c. which is seems were allowed at the Common Law were a great Oppression See the Statute 24 H. 8. Chap. 12. The like Statute is made 25 H. 8. Chap. 19. whereby Appeals to Rome are prohibited but there is power given to the Clergie as they are called to mâ—ke Canons which are Laws to binde and insnare mens Consciences which Law being Repealed 1 2 Philip and Mary Chap. 8. was Revived 1 Eliz. 1. By colour whereof a great persecution arose against the Non-conformists which hath continued until these times to the great Oppression of the Godly of the Land And some were put to death and others pined and starved by hard and long Imprisonment by colour of these wicked Laws and Canons The Commissions of Sewers grounded upon the Statute of 23 H. 8. Chap. 6. and 13 Eliz. 9. are over-chargeable and tedious and used as a great Oppression to the People in the County of Lincoln and parts adjacent The Commission grounded upon the Statute of 13 Eliz. Chap. 7. and other subsequent Statutes made against Bankrupts is grown a meer cheat of the People very troublesome and chargeable and concluding nothing but what is questionable again either at Common Law or in Chancery and for the most part whereas the Law intended a division of the Bankrupts Estate to all his Creditors it 's either spent in Suits or upon mercenary Commissioners or concealed to the Bankrupts use The proceedings upon the Commission grounded upon the Statute of the 5 Eliz. 4. concerning Lands Tenements and Moneys given to Pious or Charitable Uses is a circular and expensive way chargeable in Execution expensive in drawing up the Inquisition and Decree and procuring a Writ of Execution of the same in the Petty Bagge and when all this is done upon Exceptions put into the Decree of the Commissioners the Execution thereof is stayed upon a Motion in Chancery and the Parties come then to begin the Suit again putting in Answer to the Exceptâ—ons as the Answer to a Bill And thereupon the Parties go again to Examination of Witnesses and a new Hearing in Chancery and either a Confirmation of the former Decree or a Reversal thereof however if the matter be under Three hundred pounds it 's commonly all spent in Suit either for or against the Charitable Uses This is a great Oppression and cannot be avoided whilest things stand as now they are The Statute in the 25 H. 8. 11. appointing a whole years Imprisonment for taking the Eggs of a Wilde-fowl is a hard and severe Law The Statute of Intailing the Crown of England in the Posterity of King Henry 8. may be a cause of great trouble 25 H. 8. Chap. 22. The Statute of 32 H. 8.2 limiting the Prescription of a Writ of Right Assize Cosenage Ayle c. to no less then threescore years and in a Writ of Entry sur Disseisin to fifty years this Statute doth more harm then good That a man's Hand should he struck off for striking in the Kings Palace and the party to have perpetual Imprisonment a severe Law 31 H. 8. 12. That none may Pardon Felony or Murther but the Kâ—ng and that he may pardon Murther is an Impious Law 27 H. 8. Chap. 24. That it should be Treason for a Popish Priest to be found remaining in England giving no offence nor making any disturbance in the Common-wealth is a hard Law 27 Eliz. 2. The Statute concerning Reformation of Disorders in Ministers a Superstitious Law 13 Eliz. 12. Divers Offices exposed to sale by an Act of the 5 and 6 Ed. 6.16 is a cause of Bribery and Extortion Intailed Lands forfeited for Treason seems to be an unjust Law as now things stand because sometimes such Intails were made for valuable considerations when Estates were all Fee-simple it might haply be more just that there should be such Forfeitures The Law concerning Wreck of the Sea which is that if a Ship be cast away and the Goods float to Land and neither Man Woman Dog nor Cat escape alive the Owner shall lose all the Goods This is a wicked and unjust Law The Statute of the 21 Edw. 1. If
a great abatement in the Countrey of what is spent and paid in London 7. The last thing which shall be mentioned touching this matter and which is most suitable to the propounded end of the discourse in hand is that this carrying of all causes to Westminster makes in a manner all the Courts of Record in all other Cities Towns Corporate with the County Courts Hundred Courts and the Courts of the Mannours and all other Court Barons to be disused and in a manner destroyed to the prejudice both of Lords and Tenants who are much impoverished with Suites at Westminster upon every trivial occasion and in the mean while there is much disorder at home for want of Courts to redresse petty wrongs and so to keep and preserve quietnesse 8. These things are enumerated as evils occasioned by the general Residence of the Laws at Westminster without reference to the particular Courts now something shall be spoken of in relation to the several Courts which are necessitously oppressive to the Suiters in regard of the multitudes of Suites The chief grievance in this kinde is the crowding of all causes of Equity into Court of Chancery except a very few in some cases in the Exchequer in which Court there have been said to be ten thousand causes entred into the six Clarks books some of which are seven eight or ten years old and without doubt there are as many more upon Sub-poena's and Bills not fil'd of all these there cannot be lesse than one thousand alwayes ready for hearing besides such as stand to be heard upon Reviews Pleas Demurrers Exceptions and Reports And in one Term there is not time usually to determine one third part of them besides hearing of motions which necessarily arise in most cases the rest being put â—ff insomuch that many times you shall finde above twenty cauâ—s in the paper for one day whereas within thirty years last past ere were usually appointed not above four or five causes to be â—eard every day in Court and not many more at the Rolles But since the abolishing and disuse of the Court of Wards Court of Requests high Commission Star-Chamber Ecclesiastical Courts as they were called Queens Court and Dutchy Court every of which as might be easily shewed especially the Court of Requests poured something into this Ocean the Chancery the same is grown so full that it 's impossible that the causes there should be dispatched without an excessive charge and long attendance (i) Cooke English Law pag. 45 46. And this Court as it now stands is the next great oppression of the Nation and tends chiefly to the inriching some few Officers and Practicers and the impoverishing of the Common-wealth where in most causes unlesse they be agreed by Compromise the remedy is worse than the disease 9. The next thing to which I take exception occasioned by the general practice of the Laws at Westminster which may be accounted a grievance is That almost all the Suites in Law of the whole Nation are brought in the Courts of the Upper Bench and Common-Pleas which are more tedious and chargeable than they need to be for whereas a man arraigned for his life hath but a day nay it may be but an hours warning to make his defence onely he knows before hand when the Goal-delivery will be here regularly a man cannot begin and end his Suit be it never so trivial under three Terms unlesse the Defendant will confesse the Action especially in the upper Bench where after the Arrest or appearance which sometinies is hard to get done the first Term the Plaintiff declares and the Defendant imparles the second Term the Defendant pleads to issue and the Plaintiffe carries down the cause to tryal to the Assizes where if the cause be tryed Judgement is given thereupon in the next Term following and this takes up about (k) At new England the Defendant hath warning a covenient time before the Causse be heard and most Causes are ended upon the hearing at the same Court. Lechfords News pag. 29. seven moneths time but if the Defendant be wilfull and liberal he may keep the Plaintiffe in Suit a far longer Term whereas in some Courts of Record in the Countrey such a cause may be ended in six weeks and might be done in half the time if the Law were amended and made like the proceedings in Wales which are better and shorter than at Westminster 10. To these may be added as an evil growing out of the general Execution of the Laws at Westminster the greatnesse of Offices both in respect of work and revenue which for the most part are executed by Clarks and Deputies and nothing done by the Master of the Office but onely to take the Accounts and receive the Fees at the end of the Term allowing little or nothing to such as do the work but what comes by sharking the late-born Miscreant called Expedition and indeed the great Officer who stands like an Andiron in a great Room onely to make a shew sets the Clarks to all the labour and to abide the heat of the businesse And this must needs be so for these Officers formerly used to pay seven years purchase for their Offices Is it not a shame that one man should pay for an Office first and lust forty thousand pounds as it 's generally said one paid for the Upper Bench Office That a Prothonotor of the Common-Pleas should pay nine thousand pounds for his Office That a six Clark in Chancery should pay seven thousand pounds for his Office And not Aphilozers The Romans used not to sâ—ll Offices the Qâ—â—stoâ—ship was granted according to the worth of the Suiters untâ—ll by Dolabella's advice it was put to Salt which is blamed by the Heathen Historian as a fault Tacit. Annal. lib. 11. cap 7. pag 148. The Senators were chosen by voices and if they proved infamous they gave up their places to save their Credits Idem l. 11. c. 8. p. 150. Exigenters Clark of the Warrants Essoines Curciters or hardly any other Office to the very Cryer and Bag-bearer but all exposed to Sale in this last Age and many times sold to such as were onely fit to be entertained because they gave the most money for them And then as a necessary consequence he that bought dear must sell dear insomuch that I have heard it credibly reported that a Souldier becoming a Courtier was by King James made a Master of the Chancery the man I knew well this Master being taxed that he expected too much money in some businesses before him in an angry manner said that the King promised him that the place should be worth five hundred pounds by the year to him and he would make it so if he could (l) Alexander Severus at his coming to the Empire after that proâ—use beast Heliogacalus although he found thâ— State much in debt refused to make Sale of any Offiâ—e saying Non Paâ—iâ—r mercatores Potestatum and
but about that which is called The Foundation of Law and The Propriety or Liberty of the Subject (f) Arguments of Crook and Hutton in Hampdens Case Excheq Chamber Ann. 1638. As in the Case of Ship-money where the Judges were divided and the major part adjudged that to be Law which by the Parliament and Judges since hath been declared to be (g) Votes in Parliament 7 Decem. 1640 7 Febr. 1640. against Law But it may yet be questioned What the Law is in that case And surely if the Law were so perfect as is pretended what folly may be imputed to the wise men of the Nation who in the several Parliaments have corrected and controlled Littleton and the Common Law in near an hundred particulars by Acts of Parliament since he wrote And yet all these Alterations are said to be Amendments for the benefit and profit of the People And if the Theory be thus necessarily altered and another face put upon it and the Practick part more changed and corrupted as shall appear in this Treatise then must it be concluded that the Law which now we have in use is not the ancient Law of the land nor that the same Law neither was nor is so perfect and certain as it hath been commonly affirmed to be But that the Law as now it stands in use and practice is a new pompous Edifice erected upon some old Foundation and become an Engine to draw wealth to the great Officers Professors and Practicers thereof to the impoverishing of the residue of the Subjects not having any Foundation either in the Law of Nature or on the Positive Laws of God sufficient to bear up the same and therefore can deserve no such commendation or be held so sacred as that it ought not or may not upon good ground be altered and amended and the Prolixities Uncertainties Difficulties and Extravagancies thereof reformed It is observed by a (h) Gâ—otius Pol. Maximes Part. 1. cap. 4. pag. 34 35. Legem oportet esse brevem quo facilius ab imperitis teneâ—tur velut â—missa divinitus vox Jubeat non disputet nihil frigidius nil ineptius quam lex cum Prolâ—gomenis Coâ—l Rhod. l. 18. cap. 19. pag 699. great Statesman That those Laws are best which are short easie few accommodated to the Manners of the People and for Publick good Those are to be accounted Tyrannical Laws which are many obscure difficult like so many Snares to the People and not tending to the advantage of the Publick But whether our Laws are of the first or later sort let the Reader judge (i) Cowels Instit l 1. tit 1. sect 2. pag. 21. A learned Civilian hath this saying which he citeth out of Bracton Juris Pracepta sunt haec Ex Bracton l. 1. cap. 4. n. 6. Honestè vivere Neminem laedere Jus suum cuique Tribuere i.e. The Precepts of the Law or Right are these 1. To live honestly 2. To hurt none 3. To give to every one his Right Whether these three Precepts comprehend all that men are bound to do in reference to the Law I will not determine but this I deliver positively and doubt not but it 's sufficiently proved in fourty Particulars in this Treatise which the Reader if he please may observe That the Laws of England both in their Redundancy and Excess as likewise in their Want and Defect are intolerably faulty not holding forth Justice or Righteousness in reference or according to any one of those three Precepts And the clear Reason and Cause of this Extravagancy Gal. 6.16 2 Tim. 3.16 17. is The rejecting of the Holy Scriptures which are the Onely Rule of Righteousness CHAP. II. That the Law of God contained in the Holy Scriptures ought to be the Foundation of all Laws used or practised amongst Christians (a) Willet Hex in Exod. c. 21. qu. 1. p. 458. THat the Holy Scriptures are the Foundation of all just Laws is a Truth undeniable and evident to every one who hath any competent knowledge therein comprehending in them as well the Dictates of the Law of Nature and right Reason Isidore calls Law A Constitution written agreeing with Religion fittest for Government and Common Profit Humane Law is a righteous Decree agreeing with the Law Natural and Eternal Raleigh Hist l. 2. c. 4. sect 15. Omne id quod ratione consistit Greg. de Val. Ex Tho. Aquin. qu. 91. art 3. as all other things necessary for the Ruling Guiding and Ordering all the affairs of this life whether Political Oeconomicai or Personal which appears by this That the Law of God (b) Psal 19.7 is perfect (c) 2 Tim. 3.16 17. That the Holy Scriptures are able to make a man of God not onely the Minister but every other man perfect throughly furnished to every good work God hath spoken but once in the Holy Scriptures so fully to all doubts and cases and to all good works that he needeth speak no more Whites way Sect. 11. pag. 57. If any thing be needful either to be known or done the Scriptures teach it c. Idem ex Espencaeo Com. 2 Tim. 3.15 16. And upon this ground is that Maxime founded That no Act of Parliament or Law repugnant to the law of God is of any force This is agreed amongst the Lawyers and it 's cited out of Augustine by one of the most Learned for Arts and Tongues of that Profession That (d) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. p. 3. Ex August l. 3. de Civit. Dei Omnium Legum est inanis Censura nisi Divinae Legis imaginem gerat (e) Conference about the Power Parliament Speech 3. p. 64. Aâ—freds Laws Powels Court Leet pag. 6. 12 13. Fox Acts and Mo. V. 1 p. 185 That Renowned King Alfred who reigned Anno Christi 872 began his Laws thus Locutus est Dominus ad Mosem hos sermones Ego sum Dominus Deus tuus and so recites the Decalogue and then proceeds to mention the most material Laws set down in the 20 21 22 and 23 Chapters of Exodus which he affirms to be the most apt and compatible for the Government of his Kingdome and according to his Laws his Government was blessed with universal Peace and Quiet above other Kings of this Nation (f) Fournier Georgra Orbis notitia l. 5. pa. 1. c. 10. p. 220. There being neither Thieves nor Robbers to molest the People (g) Cok. Engl. Law pag. 107 108 109. Cok. Essay p. 168. Bod. de Rep. l. 1. p. 44. What Law can there be more just more strong indifferent or better then the Laws of Gods Now not onely the Decalogue but also the Judiâ—ial Laws of Moses are an eminent Foundation of Politick Laws holding forth plainly the Reason of Commanding and Prohibiting Of these Judicial Laws some belonged to the Jews properly as being appendent to the Ceremonial Law (h) Willet in Exo. gen obser qu. 4. upon
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
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
that there is no competent or sufficient meanes of maintenance setled for a Gospel Ministry but onely that which was ordained and continued by that Antichrist of Rome and his Vassals and ought not to be upheld or made use of by the people of God but with the Leviticall and Ceremoniall worship and the Temple to be abolished CHAP. XVI A Corollarie or Conclusion IN this discourse is clearly evinced the manifold impieties superstitions prophanesse oppressions falshoods uncertainties ambiguities prolixities and other enormities as well in the Theory as in the Practick-part of the Laws of England as they are now in use and practice some few of which evills were sufficient cause to decry and abolish any humane Law under heaven Insomuch that the civilized Heathens and Pagans in many things appertaining to distributive Justice both in their Laws and in the practice and execution thereof have shewed more impartiality reason and judgment than many of our Laws can admit and therefore it 's to be hoped that the great Patrons thereof will bee silent whilst other men seek to God and supplicate the supream Magistrate and Legislative power of the Land for a more perfect pattern and foundation whereupon may be built a more glorious structure Know the world will say that this Law is a sacred spark some excellent guift from above as * Grotius Pol. Max. part 2. c. 8. p. 68 69. Corol. in fine Bodin Republ. lib. 1. p. 58. Tit. Liv. lib 3. p. 110. H. all the Heathen generally held their Laws to be the very Records having gained the name scrinia sacra and the professors and practicers of it having found it as profitable as Diana was to Demetrius and the rest of his craft and therefore that it needs no alteration and it may be others will say it s an easie matter to finde fault with the Law but it s not so easie to amend it to all these I shall say this which I formerly hinted That the written word of God contained in the Old and New Testaments manifesting the minde of God by (a) Exod. 20.8 12. commands (b) Exod. 20.4 13. prohibitions (c) Deut. 6.3 4 5. exhortations (d) Rom. 12.2 19. dehortations (e) Psa 41.1 2. promises (f) Rev. 22.18 19. threatnings (g) Jude 6.7 11. judgements (h) Mich. 6.9 13 afflictions (i) Acts 13.10 11. objurgations (k) Jerem. 13.23 27. expostulations * Gen. ◠2◠sarcasmes and l Amos 4.4 5. bitter taunts Ironical †Ezech. 28.3 4. affirmations and negations (m) Math. 23.15 16. reproofs (n) Math. 11.28 29. invitations (o) Hebr. 13.5 6. incouragements (p) Acts 12.7 11. signall deliverances (q) Isa 5.2 4 7. especial favours (r) 2 King 7.4 6 15. and leading providences commended to us in holy Scripture to teach us and sundry (ſ) Cant. 5.11 12 13 14 15 16. Gal. 4.14 Eph. 6.14 15 16 17. Tropical and (t) Apoc. 19.11 12 13. figurative expressions of his will to our capacities with necessary (u) Math. 22 31 32. Mal. 4.4 consequences from the word are sufficient to over-rule all cases instruct all Magistrates and Judges and to teach all duties towards God and man and that there need no other Laws but what are founded upon this ground and built upon the same foundation And by these were the Israelites happily governed without any other policy And this is all the Directory which the Lord by the Prophet Malachi left to his people to be their guide in that 400 years from his time untill John Baptist wherein there were to be no more Prophets Remember the Law of Moses my servant which I commanded unto him in Horeb for all Israel with the statutes and judgements Mal. 4.4 And where its commonly said that many sins are invented and faults found out since the Scriptures were written which cannot be obviated or comprehended in Scripture Laws It may be answered that there can be no offence new or old but it s (x) Psal 19.7 Psal 119.96 condemned in the word of God for example there are many Superstitions new Oaths and much false worship lately invented which no man will deny to be condemned by that word of God which forbids will-worship prophanesse and humane inventions in Gods worship that word which (y) This is agreed by Perkins Downam Dod Wolebius and generally all Protestants who have commented upon the Decalogue commands us to worship God according to his own will and appointment condemnes all newly invented false worship and that Law which commands us to reverence the holy Name of God or forbids the abuse of the same by prophane or vain swearing in one kinde forbids all other sins of the same kinde or nature And if it be so in respect of the first table much more is it to be granted that the Law of God is sufficient to teach all things concerning righteousnesse and sobriety being the duties of the second table whereabouts distributive Justice is chiefly conversant for that by one kinde of injustice all other injustice is forbidden as is herein before declared and might here be further insisted upon if it were requisite (z) Bodin Republ. lib. 4. cap. 3. p. 471. And it is to be considered that Law of man is so sacred as it s called but that upon urgent necessity it is to be changed And Solon that wise Law-giver after he had published his Laws caused the Athenians to swear to observe them onely for one hundred years Laws must be perused and some abroged and others established being but humane Laws For that there can be no setlement but upon the immutable Laws of God The Bactrians Egyptians Persians Carthaginians Athenians Scithians pretended their Laws to come from God And Mahomet affirmes his Law was delivered from God by Gabriel Plato that his Laws cam◠from Jupiter and Apollo Cael. Rhodigi l. 18. c. 19. p. 698. 2. The last thing which may be expected as to the answer of the objection before mentioned that those that finde fault with the Law do not shew how it should be amended I shall onely set forth what course hath been taken by wise States and Common-wealths both in respect of their Judicatures and proceedings and humbly offer it to the wisdom of such as it concerns in this Nation and the Dominions thereunto belonging To judge what is right and may be most agreeable to the constitution of the Government and most conducing to the support of the authority of the Civil Magistrate both supream and subordinate and to the good and happinesse of the people that we may lead a quiet and peaceable life in all (a) 1 Tim. 2.2 Tit. 2.11 12. godlinesse and honesty and this is the end of all Laws and Government First therefore we will a little consider what the Jews who were the people of God and in the best times of their government when their rulers had
most communion with God and were best instructed did in matters of Law and Justice in these respects 2. And then we will consider what the Gentiles did by the light of nature and reason or rather what they had gathered from the Laws of Moses not so much because they were the Laws of God as because they were the Laws of a wise Law-giver and of a wise people for that the wise of the Heathen Gentiles and the Philosophers Poets who were accounted their Prophets had knowledge of Moses his writings there is nothing more clear by many passages in their books and the very Laws of the Heathen themselves in many particulers suit with the Judicial Laws of Moses Concerning the Jews I have set it down before in this Treatise that upon occasion of Jethro his wise Counsel their (b) Exod. 18.21 22. first Judges and Rulers of all sorts were instituted and afterwards the Court of (c) Numb 11.16 17. Wâ—llâ—t Hexe in Exod. c. 18. ver 21 22. quâ— 19.20 21. Deut. 1.15 16 17. seventy which was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Senate of the Jews was appointed by Almighty God This was the great Court or Judicatory of the Jews and consisted of three-score and (d) Bodin de Republ. lib. 1. pag. 57. ten persons most eminent in their Tribes and the President which was Moses or as others say three-score and twelve that was six out of every Tribe however they were called the seventy as were the Interpreters of the Old Testament who translated it into Greek bearing the name of the Septuagint although they were seventy two This Counsel of the Jews heard and determined generally all controversies according to the Laws of God and if a cause were too (e) Exod. 18.22 hard for them by reason of the want of a particular positive Law (f) Numb 27.1 2 5 7 8. Godw. M. A. l. 5. c. p. 209. Willet Hexa in Exod. 18. ver 22. qu. 21 22. as the Case of Zelopheads daughters then they came unto Moses (g) Alfonsus the tenth K. of Spain commanded his Judges to come unto the Prince himself as often as there was nothing written in the Laws of their own Countrey concerning the Matter in question Bodin Republ. l. 1. c. 8. p. 108. who enquired of the Lord and received direction from him and according to the minde of God the Case was Judged instead whereof we have now the written word of God compleat Besides this the Jews had another Court which dealt in Criminal and pecuniary causes consisting of three and twenty Judges and this Court was subordinate to the Sanhedrim And thirdly they had another Court which consisted of three Judges which was subordinate to the other two Courts The Sanhedrim sate commonly at Jerusalem and was sometimes divided into five parts and sate in five several Cities The Court of three and twenty sate in the several Cities and were a standing Court every (h) The Romans had such a Court in every Citie Tac. Annal. li. 1. c. 3. p. 5. Citie having such a Court these the Jews called Councils and of these our Saviour speaks when he saith (i) Math. 10.17 They will deliver you up to the Councils The third Court or Court of three was in every Town or Village and dealt in ordinary and smaller matters And by this we see that the Jews were not forced to go far for Justice but had it near them at all times and (k) Mercat Atlas descript Holy Land pag 839. Jerusalem it self was not above fifty miles from the Confines of the Land of Canaan in the length of it and not above twenty miles from the Confines in the breadth thereof and yet the Jews had not all that in possession And in the next place in imitation of the Jews (l) Rous. Att. Ant. l. 3. c. 1. p. 108. Bodin Republ l. 3. pag. 263. the Grecians at Athens had a Senate consisting of four or as some write five hundred persons which was the great Council of the Citie and Common-wealth and upon weighty occasions all these or as many as would sate in judgement (m) Idem Att. Anti. l. 3. c. 1. p. 125 126. There was another Court called Ariopagus consisting of the number of three-score of the wisest and most grave Citizens of which the President or Chief Justice was called Basileus that is King and they had cognizance of matters of life and death and Criminal causes and other things of great concernment Then they had also another Court which heard and determined matters by way of (n) Idem l. 3. cap. 3. Sect. 4. Thâ—se were like the Jews Courts Godw. M.A. lib. 6. c. 10. pag. 294. Willet Hexa in Exod. c. 18. v. 25. q. 26 27. Compromise and there was not any cause if it exceeded in value ten Drachma's which is but fifteen pence of our money the Attick Drachma being but one penny half penny but it past these mens hands before it might be admitted into any Superiour Court. In like manner the Romans and likewise the Lacedemonians agreed with the Athenians for the most part in respect of their Courts and Judicatories The Romans had three Courts †Sueton. Tranq in vita Julii Caesaris Sect. 41. untill the third was put down by Julius Caesar and afterwards Augustus other Emperours appointed a privy Counsel of twenty of the chief of the Senate to treat of great affairs of State in private like the privy Council of England which at first were but 15 Persons instituted 450 years since 1. * Bodin Republ l. 3. pag. 262. and 267. Godw. Ant. lib. 3. sect 4. cap. 20. The Romans in their Suits proceeded in this manner 1. They obtained a summe of course 2. They asked leave to enter their Plaint or Action 3. Then the Action was entred if it were allowed of by the Court. 4. Which done both parties put in pledges either in money or gave security the one to prosecute the Suite and the other to abide the Judgement The proceeding at Geneva is much like the Romans one Court or other sits almost every day and the causes judged in three weeks or a moneth usually Laws Geneva p. 17 18 19 20. The third Court day regularly the Cause was heard and Judged if the Cause were Criminal the Praetor would not suffer the same to be entred untill the Prosecutor had sworn that he did not accuse the Defendant falsly or maliciously And when any man had killed another the Chief Justice and the whole Bench of Judges sate upon the life and death of the Man-slayer o Sueton. Traâ—q in vita Flavii Vespasian August Sect. 10. And when in the time of Flavius Vespatianus Augustus the Courts were too full of Causes that whil'st the old Actions hung still undecided new quarrels arose to increase them he chose certain Commissioners by Lot to Judge between party and party and to reduce the Causes to as small
a number as might be such a Survey might do well in the Courts in these dayes to the end that the trivial frivilous and vexatious Suites being spewed out as (p) Lord Bâ—kon Essayes the surfets of all Courts such as were of good use and concernment might have time to be determined (q) Sueton. Tranq in vita Claudii Nâ—ronis sect 17. It was a Law amongst the Romans that no Clark or Notary who was to draw or write any other mans Will should put down any Legacy for himself Also that impleading and deciding of controversies all those causes which aforetime were debated before the Masters of the Exchequer or Citie Chamber should be removed into the Common-Hall there to be tried and that appeals from the Judges should be made onely to the Senate (r) Bodin Republ. l. 4. c 6. p. 500. 502. The Historian commendeth this practise Sueton. Tranq in vita Augusti Caesaris sect 33. Idem in vita Tiberii sect 31. 33. Augustus Caesar used to sit daily in Judgement to hear Causes in the Tribunal or if he had not health then in his own house (Å¿) Idem in vita Flavii Domitiani sect 8. Flavius Domitianus used also to sit in Judgement upon the Tribunal and many times reversed such Judgements as were given for favour or obtained by flattery he warned the Judges not to give ear to perswasions and Rhetorical assertions and such Judges as were faulty he used to tax publickly and he was so carefull to chastize the Magistrates that the Historian saith they were never more temperate and just in their places than in his dayes (t) Bodin ut supra p. 415. Romulus left the ordinary Administration of Justice to the Judges but reserved the greatest matters to his own Judgement (u) Godw. Aâ—â—i Rom. l. 3. Sâ—ct 4. c. 6. The Romans had a Law that no Senator should use any Trade but those were utterly forbidden the use of trading for fear it should breed favour or corruption And another Law of the Romans was (x) Idem l. 3. Sect. 4. c. 17. Ex Cicerone de Senectuâ—e that no Advocate or Oratour should receive any gift or reward from his Client for pleading his Cause for that they were paid by the Common-wealth which was a very (y) Cook Essai pag. 185. indifferent way for all people Cock Essay pag. 185. (z) Rous Att. Ant. l. 3. c. 1. pag. 110. and pag. 111. 112. The Graecians proceedings in their Courts was like to the Romans and if the Defendant did not appear upon the Summons he was taken by default and if he would have any ease against the Judgement he must bring the Cause on to hearing against himself within six weeks or else the first Judgement to stand That Defendant which had not five of the Judges voyces for him was to be fined and the Plaintiffe that made not good his charge was to pay costs And if the Cause were Criminal before the Suit was allowed to proceed the Prosecutor took his Oath that his accusation should be just Cook English Law p. 103. To conculde good Laws are more securitie to the people than good Magistrates our Laws have sufficient in them to bring in the whole body of Popery except the Popes supremacy and to destroy all the faithfull people of the Land and therefore it 's to be wished that the Laws were (a) Lâ—chfords Newâ— pa. 26. In the great Câ—uâ—t at new England held twice in â—he yâ—ar like our Assizes the Matters of the Charge to be inquired of are reduced by the Governour who gives the Charge under the Heads of the Decalogue made agreeable to the Laws of God and then if the proceeding and execution of them were either like the Jews the Graecians or the Romans and that all ordinary matters might be decited and determined in the proper Counties it would be found I doubt not a great blessing and happinesse to the people And I cannot imagine what can be said against this but that which is called reason of State the very name whereof an honest Pope abhorred This (b) Grotius Pol. Max. par 1. c. 4. p. 31. 32. as one saith was anciently the same with Equitie but as now it s used in the world is nothing else but a device that carries the face of equitie supposing it Lawfull not onely to transgesse the Laws of men (c) Bodin Republ l. 1. pag. 104. accounts this a thing most absurd The three Temples belonged to the Templâ—rs untill Ed. 2. his time and thence to the Hospitallers untill the desolution in the time of H. 8. but even the Laws of God for Politicke ends And since Machiavel plaid Achitophel this for shame is called reason of good government 1. This policie will tell us that thee hange of the Laws the practice thereof will dishonour and demolish the most famous Universitie in all the world for our kinde of learning the Inns of Court and of Chancery 2. It will Eclipse the glory of Westminster and a great part of London whose inhabitants live by lodging and victualling 3. That tediousnesse of Law-suits and the great expences thereof are to be tolerated as a necessary evil or punishment which serves to keep men quiet and deterre them from many unnecessary Suites which otherwise would be commenced but that they fear the remedie may be worse than the disease 4. That the Law is a (d) Tyrants use to imploy their Tributaries in wars abroad or idle and needlesse Trophies that they might want leasure to think of other things Jun. Brut. Vind. Conâ—râ— Tyran p. 10â— Upon this ground stage-playes and Stewes are suffered in some Countreys necessary evill to keep men from contriving and practising Worse mischief in the Common-wealth which they have no leasure to do whil'st they are wrangling and jangling about Law-suits 5. That expence on Law-suits is a good means to keep such men who are of restlesse and unquiet spirits poor in the Common-wealth whereby they are disabled to make head against the Government These and such like props for upholding this frame of building appear upon the first view to be too weak and unsound to prop up the same being herein already answered and are all overthrown by that rule of Scripture (e) Rom. 3 8. We must not do evil no not the least that good may come thereof Now seeing it hath pleased the Lord our God to bring us not onely out of that iron furnance and darknesse of Egypt the hard service and ignorance of Popery but also to give an end to our wildernesse miseries and to settle us in peace after all our wars and distempers and so to put us into a condition as the Israelites to receive good and wholsom Lawes let us learn Gods end in this and know for our instruction what is recorded by the Holy Ghost Psal 105. v. 43.44.45 hee brought forth his people with joy and his chosen with gladnesse c. And