at first Their punishments cannot be prescribed but according to the nature of other offences life with life dammage with dammage c. But alwayes provided that the error was intentional and except the guilt were notorious to discharge upon Oath but withall to lose his place And to avoid all scruples concerning Magistrates Elections as also for making and enacting due and fit Laws and knowing the errors of Magistrates in all places that there be respectively fixed places and sure appointed into which it should be lawful for any man after promulgation of a Law or nomination of a Judge to set down his Opinions and Reasons for or against the altering or annulling or rejecting the Law or Judge before the Law be established or the Judge confirmed with a mark no name to appear to make good if required upon the mark otherwise the note to be rejected and these kept by some sworn men under strict penalties I shall not treat how far ignorance of any sort excuses there is enough to hint the general reason before I now proceed and Quaere Whether the execution of Laws ought to be all after one maner and all Courts to have the same Jurisdiction Officers Proceedings and Fees AS to the Execution of Laws provided the head Rule be observed that is life to answer life c. Assuredly the Magistrate hath the absolute power to mitigate or inforce as he sees ocasion take execution for the way of punishing offenders in any kind but if you take it for the Uniformity or Identity of Law in all Counties surely there the Law ought to be the same if Reason be the same I dare not assert it of certainty to be of necessity that all Christians live by the like particular Laws but I believe that as Nature holds forth but one light to men and God but one Law to Christians so that it is most clear and the fittest way to avoid the ordinary jangles as aforesaid to settle that head-Law as our Rule and to draw by all just means to the like consonancy of Reason in the distributive as in the constitutive part of Law And this doth not as I in all humility conceive at all clash with these tling of Provincial Courts while as before the whole Law flows from the same fountain of Supremacy in the head-pipe of sedentary order of Judges or a fit number to over-see the whole Nation by way of yearly Circuits admitting and determining Complaints against even ordinary Judges and that without or Fine or Fee and determining matters difficult in Law or referring it to consulation after but determining without further expence and in a certain time for as before the Judge and so all Officers publike ought to be paid out of the publike purse But these Judges also must be bounded what presents they may take and from whom This will silence all jangles and the Englishman shall know his Law wherever he cometh in his own Nation Now as to the ordinary Courts or Hundreds it is requisite to have all Officers proceedings and fees alike not that it is intended the Hundred Court should have the same with the County or c. or the Messenger that goes ten miles no more then he that goes but two nor he that ingrosses or writes ten sheets as he that doth but five But at a due known allowed rate for all established by visible and plain Law Publike and in Print and that in such manner that the long hanging of a Cause in Court or multitude of Writs or warnings of Juries should not advantage Officers or as bad as amerce Suitors But that the Judge be fineable let the prosecutor be inforced to proceed or his Case dismissed with Fine for unjust clamor and litigation Next all Writs or Processes are to be had in the County and all returnable at one time be it one two three or four dayes or weeks How Appeals are to be admitted and false Judgements remedied and punished THis seems to receive satisfaction in some foregoing Considerations but in regard that all cannot be said at once I shall shortly inlarge Appealing in this Question is no more then the waving of the Court and going to a higher for so of necessity it must be This I must agree is necessary but though I allow Appeals I admit not the many gradations The reason why this grew so common was the meanness of Judges in County Courts which was ordinarily put off with an Attorneyes man but wise men will suppose that the qualifications must be intended in righteous Judicatories according to the trust therefore we will suppose the County supplied with able Judges c. I thefore Quaere what may cause an Appeal may fear of injustice No it ought not to be supposed But may greatness of dammage No for the difficulty must be either matter of Fact or Law for Fact there ought not to be any removeal rather let such extraordinary Cases if what need not be supposed must be be delayed till the Itinerant Judges come down as now For the difficulties will be onely or specially in Criminals for other great doubts are generally Titles and surely they are customarily made more difficult then they are however particular right of particular persons ought not to admist such publike hurries though gain hath guilded fair the rotten posts of interested Reason But there may yet be Reasons of Appeal as in Case the suit ariseth between one in the utmost bound North with one in the utmost bound South or in divers Counties Now this must have a Rule to settle in which County as where the wrong was done debt to be paid or c. Or else in a certain middle County in case of not observing which Rule an Appeal ought to be admitted to the Sedentary Judges out of their Circuits otherwaies in and to be determined at their return or by the Judges of both Counties if adjoyning in the bounds of the County where the wronged person dwels But these Appeals are to be allowed under the hands of the Judges of the County when admitted and so by them transferred to the Superior and if the Appeal be not justly grounded and speedily ordered the Judge to be punished for that he is the Author of delay but if upon consultation the Case be difficult there must be a Certificate to the Superior Judges of the truth of the Case attested by the Complainer who must make it good within a set time or the Appeal to be quashed and he fined but the Judges excused Now as to the remedying of false Judgements most certainly Writs of Error were justly made use of and allowed and the notion of false judgement for so thought good reason waved and so complaints ought to be as aforesaid but this must not attend the propounded Assises without satisfying the Judgment presently yea though it be false Next no error but to be allowed before the Writ issues forth for to purchase the Writ of Course and Assign one
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
are so enfranchised Chap. 19. p. 130 131. Wherein is considered 1 Why the Law distinguishes 'twixt the person and power 130 2 Princes seek to avoid eternal Decrees by ensnaring the consciences of their subjects 3 What are Powers simply considered 4 That obedience generally must when setled be given to them 5 What duty Subjects owe to usurpers against their lawful Prince after a total expulsion 6 What the Subjects duty is after he comes under his first Princes Sword before expulsion of the Vsurper 7 VVhat is not the Ministers duty 131 8 The reason of all this 9 Dangerous and unsafe opinions concerning this ensnaring consciences from ambiguity or cruelty Chap. 20. p. 131 132. Wherein is cleared 1 Good the more universal the better therefore 131 2 The life of a particular Citizen not to be esteemed with the Cities safety 3 For this particular priviledges are to be dispenst withall as necessity requires 4 The meer Lawyers error in this 132 5 VVhy personall estate is seemingly preferred to real in some cases 6 Dangerous to allow contests of priviledge in times of necessity 7 Compensation must be made where dispriviledge is for publick good Chap. 21. p. 133 134 135. wherein is asserted 1 That its necessary to a free Nation to have Laws in the Native Tongue and in limits and bounds fit to yeeld speedy and easie Iustice 133 2 Walking Courts destructive and the reason 3 To look and settle these is the Supream magistrates Duty 4 It s a true and just Rule Ignorance of the Law excuses not 5 Therefore the Laws as in tongue so in number and phrase ought to be fitted to vulgar capacities 6 The Norman Conquest made our Laws speak French 7 The Roman Yoke and pretence of Learning made our Pleadings Writs c. in Latin 8 The end of both in legal French or Latine and is lost 9 Gain of the Practizing Lawyer the sole stop to Reformation 10 A subtiltie to unchristian reason of the Lawyer for continuance of strife and legal wranglings 134 11 Magna Charta's Rule true To delay is to deny justice 12 What the best men naturally counted delay 13 All liberties broken under pretence of difficulty of Laws 14 The general evils of delay known and visible 15 The evil of Remote Courts as bad as Arbitrary 16. General offers how to settle Judicatories 17 A way propounded to keep the Laws certain and one and admit Appeals and yet take away the Injustice urged in them Chap. 22. p. 136 137 138 139. shewing 1 The duty of Supream or Legislative or Law-giving Judges 136 2 The eminency of trust requires gifts answerable thereto 3 That no minor be capable of the offence of a Judge judicial much less Legislative with the reasons for both 4 Not decrepit in age mature nor green nor rotten the ages propounded and the reasons 5 Able in minde as of body 6 Free from obligations to injustice and dependances 7 Various dependances considered and their preservatives 137 8 As first to have a sufficient salary 9 To settle strictly what Bribery is 10 To punish both giver and taker 11 Judges must be such as evidently fear God 138 12 By whom Judges are to be appointed and their duties that elect 13 Qualifications requisite in respect of temper of passions 14 Weak justices or Judges make judgement despised and all Judges contemptible 15 Constables are Judges and Jurors therefore ought to be able men 16 The duty of ordinary Judges 139 17 Their punishments considered if offending 18 The best way of enacting of new Laws considered of Chap. 23. pag. 139 140. Shewing 1 How the Supream Magistrate is to look at unity of law in all Counties in his Regiment 139 2 With Christians wise or honest men the variances will not be material 3 It is requisite all Courts to have like Officers proceedings and Fees 4 All these to be published in Frint as allowed 5 The Evills if this be not 139 140 6 Judges must be fined if in a set time the case be not determined or dismissed 7 All Processes to be returnable at one time Chap. 24. pag. 140 141. Shewing 1 The reasons why appeals were made customary 140 2 What is truly a legall foundation for an appeal 3 How such appeals are so allowed 4 Punishment in case of Error 5 How false Judgements are to be remedied 6 The evil of Writs of Error and the necessity and how to be allowed 7 Further consideration of Punishment in case of Error 141 Chap. 25. pag. 141 142 143 144 145. Shewing 1 The extent of the Magstrates Power in chief must be to all things necessary to the well Being of the Commonwealth 141 2 What the Magistrate hath to do as to Divine worship considering the case of Uzziah stricken by God c. 3 That in case of doubt to whom the Power is the Civil Magistrates right is clearest 4 The difficulty to setle the Magistrates Power wherein it consists 5 The civil Sword to help the spirituall a gross vanitie 6 What the Magistrates Power is considered as to Blasphemers dolaters and Witches and how the Judicials in these rule us 142 7 Why the Judicials are not our rule 8 Paul a Blasphemer and bids only From such turn away 9 What the Magistrate is to do when he wants a Divine rule 10 The Magistrate may inflict death on prophane wicked ones not on Civil doubting Christians though their doubts may amount to blasphemy as spoken 11 Witches may be put to death as murderers c. 12 Why the Apostolical writings urge not punishments 143 13 The Christian Magistrates and Churches distinct Power setled 14 This not to extend to Heathens blaspheming God 15 A caution to the Magistrate in case of doubt 16 A generall comprehension of the Magistrates Power 17 Some Judicials disused with us fit to be renewed 144 18 A reason why the Magistrate should not press conscience so called 19 The distinct Offices and Powers of Magistrate and Minister further considered 20 Cases are when conscience cannot be pleaded and the reason being that things doubtfull but Civil 21 Evils concerning Church service to be moderately prosecuted 145 22 Some further considerations who is keeper of both the Tables and the reasons Chap. 26. pag. 146 147. Shewing 1 Each mother ought to suckle her child 146 2 Riches enable but the better thereto 3 Through the abuse of comforts better now to nurse by poor people 4 A hint to professors to be moderate in the use of creature-comforts 5 Magistrates duty to take care for Education of youth 6 That it extends to Armes as Arts. 7 The best way propounded with the reasons 8 Rules to be observed by the masters in the ordering of them and that as to habit diet study exercise c. 9 The benefits hereby arising 10 Separate Jurisdiction not to be allowed to any of them 147 11 Books of learning to be appointed by the Magistrate 12 Set times of respit to the Ministers 13 Further benefit
forty shillings to the Judge otherwise to the Gaole without mercy of which Gaoles a word after Next this is an ordinary course at least so reported in petty trespasses they declare of course meerly to get Fees upon agreement though they assign no place others having liberty to proceed as they see good and make an end or do any thing which is generally the course of quiet poor people there is favor promised to either party he draws a judgement from his adversary the defendant yet sues on still and brings it down to Trial Per Nisi prius then stops proceedings with saying he will confess a Judgement and enters it the Term after others enter up Judgement without Warrant I have known worse abuses yet but no punishments oft for want of entring a Rule they suffer Judgement Per nihil dicit whereby great and extraordinary Charge accrues to the Client and but small gain to themselves but hereby they pleasure the Officers oft times they plead or confess a Non sum informatus and this without Warrant and then comes out a Judgement unexpected and this dealing is justly suspected of false dealing It was ordinary to enter false Orders false Affidavits imbezle depositions pack Juries draw Witnesses if not make them I know the labour and pains of a faithful and honest Attorney is great and very painful and laborious in running from Office to Office from Clerk to Clerk Officer to Officer Councel to Councel Judge to Judge Court to Court neither do I here question their proceedings who make either Law or constant practice their rule But these rude ignorant young heads who think and make it their way to gain practice to over-reach c. though I in my opinion am as Mountague said of learned Selden an Heretique in the faculty as to the whole managery of the Law who although the Law doth sufficiently provide against which were by the carelesness or faithlesness of the Judges in their trusts through dependance as aforesaid grown to an infinite number beyond what they were I beleeve in the time when by Statute of 33. Hen. the 6. they were limited in Suffolk Norfolk and Norwich where they abounded but they are now bound apprentice to the Trade as well as to tapping whether of wine or beer why not as well to Brothelling and it is thought unjust to put any by his practice though they ruine the Nation by it at least bring a deluge of poverty upon the people Yet these put the Lawyers also upon hard shifts for now the Office of an Attorney is to practice all the parts of a Lawyer he drawes all pleas or generally all but some speciall ones upon some difficult point and in that some one old beaten book-man in a County is famous but for making of Wills and drawing all sorts of conveyances or Covenants with strange niceties of form and cautelous qualifications limitations provisoes and such like none like them they not so much looking at their first trading into reason and solid causes or grounds of things as into the superficial niceties as the readiest way to purchase practice with cunning knaves and most affecting wit and youth and so are drawn into a way of evill before they be aware and after it is hard to reclaim them and for keeping of those pestilences off of England Lords Courts they take all the work which was heretofore the way of educating and bringing into practice the young Lawyer And in these last times there sprung up first under the wings of Noblemen and men of great estate for the help of the Attorney in Judicial Courts but as Attorney in the Prerogative ones a creature called a Sollicitor these men rob both Lawyer and Attorney and all the Subjects They are oft declamed against by the Lawyers but no course taken to restrain them many of them practizing as Attornies under the wing or name of an Attorney what fee he hath thus to abuse the Laws and his own fellow practitioners I know not but many faults and errours are hereby committed and where to fix it is not easily discerned and great men love not to take great pains in such discoveries without exceeding great profit few I fear do justice for the love of justice so that having shifted from Sollicitor present to Attorney absent 't is forgotten if remembred the fault is laid upon the Clerk the Clerk he turns you back again to them instructed him which happily is neither Sollicitor nor Attorney but a stranger unknown or a servant gone But it is objected you have your remedy at Law against an Attorney in any cause against Law So say I but he hath his priviledge that spares charges he hath councel for nothing and cunning so called knavery to boot And lastly the Judge must as much as may be favour a servant of the Court that is he shall have all lawful favour and the other all lawful disfavour and put any Lawyer to sue an Attorney upon these terms and the Attorney will undoe him To pass over the nicety of going to issue pleading specially when the generall issue would serve the turn or such like nor to shew how many several sorts of delayes the several Courts admit I shall shortly come to the tryal which is either in the ordinary set places as the Courts at Westminster or per nisi prius where there is such hudling shuffling quircks of law unequal hearing and both for honour as the Kings or Queens Councel order as Benchers c. except favour step in and then the son of a Iudge or Kinsman c. must make all the Councel attend till he speaks nothing to the purpose too too often so that I have heard wise and learned men profess they were ashamed to see great men and Favourites manage the business out of all order and rule of law while they knowing in practice as they term it that is versed in the Ministery of the cause could not be heard a word as if they were retained only to hold the paper and cry My Lord 't is truth there is another reason in it which is they have such multitude of Councel that all cannot speak and the great men must speak best reason for have not the Prince the choyce Some indeed either would be heard through boldness or must be heard through necessity as undertaking Cases which others either durst not or could not as Holborn with that noble Judge the Lord Chief Iustice St. John in the Case of Ship Mony and this was a step to advancement if they shewed ability and could turn with the tide or were thought fit of for some other by-respect as to have their mouthes stopped against Prerogative and opened as far as the Law would admit for the Kings advantage Thus were learned Calthorp engaged and the foresaid now Lord St. John though as I have to his honour be it spoken heard it credibly affirmed he denyed to be the Kings Servant upon the Lords day at
the King must have their priviledge and as the King must not be sued but by Petition a Royal cheat so the Lords must not be arrested but by prayer a Noble flattery but a most grand abuse arose from this for much cost did many bestow to get the King Queen and Lords into their debt who never gained more then undoing the recompence of foolery by their knaveries and multitudes of debtors and trespassors bearded Law and Justice both Now for Judges Counsellors Attorneys Lawyers of all sorts or pretenders thereto the other persons priviledged they stuck together like brethren so that hard it was to pinch them especially two the Judge for his power and the Attorney for his priviledges but of this before sufficient for the present intention Thus were all matters in distast as to the great and principal ruling part of the Commonwealth and head and heart thus sick the body sure was in a distemper for all the Courts indeed from the County Court to the Court of Pypowder which I think is one at least of the lowest followed the track in proportion of all the tricks quiddities niceties of unjust dilatory and expensive lawing used in the high so called and supream Courts of judicature I shall but hint the abuse in Witnesses there being now grown visibly many more just exceptions against men then the old Laws allowed But the great evil in all Courts was and is that the indeed common and most ordinary questions were not determined and setled Matters of Accompt matters of Covenant which hold partly an equitable partly a legal right determinations of litigious questions in Wills as in case of a name mistaken in case of a gift given to a child payable under age who shall acquit the party that payes it nay indeed the ancient law concerning acquittances real and personal to me seems lost To ravel all and shew the utmost of absurdity error and perversness grown upon our Courts Lawes and Lawyers is not by one pen to be declared all is out of order I will cease to tell what all know and complain of there is nothing sought but riches and honour by what means soever I wish the Seats of Judgement had been clear of receiving moneys so called Dammage clear which shortly is thus A man sues and recovers now by the Law there is a supposall and but a supposall if that be to be supposed which is well known to the contrary that the Recoverer hath his debt or his damage and costs of suit now the first Law holding forth and looking at a kind of equity if the suit were for so small a matter that it exceed not 3. li. 6. s. 8. d. recovered then it took nothing but if it were more then it took two shillings upon every pound Now although I suppose at the original this was or ought to have been a sufficiency to have tryed the Cause and to be added to the Judgement and paid by the Defendant yet now it comes only to the Master of the Office who assigns Costs upon the Judgement and this is paid before Execution which the party happily never lives to see performed this was as to a moity allowed in the Upper Bench. But in the Term called Easter Term 1649. it was as an oppression taken off by the Judges a small beginning to a great work but fit to operate the clean contrary way but is still continued in the so called Common Pleas. In probate of Wills and suing out Administrations to whom it belongs whether accomptable if divers children or the wife to have all or the eldest child all and the rest nothing with a thousand other things are so difficult in Law though easie in Reason as cannot but be the wonder of any one that sets himselfe to consider it Now to speak a little of the Titles by way of Feofment or bargain and sale what a world of difficulty in them I dare say never a Lawyer in England can especially in the most excellent tenure of the land assure to any man a good Title neither Knight nor Lord and all arose First from the want of care in Judges authorized to enact Laws who heard of cheatings and yet gave no stop for this is sure he that is able and sells not for need but for conveniency to better himself otherwhere will not deceive grosly because he knows it brings scandal as much as charge and trouble though his conscience be but loose but the poor needy Prodigal that drinks away thrift and hardly knows and little cares what he does he it is that falls upon this trick and he first entayles then mortgages then sells The entayle is setled by the wives friends to secure the estate to her and her children they keep this secret but to keep their credit they will not borrow the money nor commonly witness the Mortgage Thus hath he all his deeds and the discent appears fair or the bequest 't is sold to redeem the Mortgage the deeds and state all parts from the Mortgage and the buyer thinks himself secure but is cheated and the Statute of fraudulent conveyances shall not help c. and all the recompence he hath is the Creditors body if he can catch it Lands so setled pay no debts Another way of cheat is the Statute of Uses setling of estates in trust to deceive making long Leases and such like This filled the world with infinite jangles and although an easie and speedy remedy were proposed both to King James and the late King yet the interest of the Lawyers being now made subservient to Prerogative all was quashed so that the Land was filled with multitudes of oppressions cruelties cheatings and extortions and no remedy and the Lawyers only enriched thereby with the Officers of Courts upon long tedious and intricated controversies they were also vexed with old sleeping judgements which no time being set unto it was the fashion to keep money in hand upon a purchase to clear incumbrances and that kept was seldome paid for to say there was no encomber amid so many wayes was difficult to swear it to no end but to prove it impossible thus if an honest seller met with a knave a rich and contentious or contentious buyer only he gat it not or so that he had as good have lost it So for Annuities Rents c. Again for conveying there was livery and seisin the supposed absolute strength a fine and the late passage by enrolment yet none of these absolutely certain for the fine though strongest and the five years limited passed yet if the seller had no right at the time as many had not being neither heir purchaser nor possessor the fine wrought not yet this not to be discovered by all the writings produced which shewed good title the livery voided per some prior lease and the enrolment not done in due time Indeed almost all good Statutes are by the loosness of Judges invalidated for so soon as honest men provide
willing to oppose yet I hope yea and am verily perswaded of some of them they did both respectively out of a tenderness to men whom they had known valiantly to oppose the common pretended Enemy out of conscience of the interest they now seemingly opposed or at least cleaved not unto though they avowed they adhered to the interest always pretended but the men were changed and acted not as they had declared Others were opinionated that community was the Regiment of the Lord Jesus and that all Christians ought to submit to it and they may say true but that time may not be yet and when it is surely it will not be a confused community the community among the Apostles stretched only to voluntary sales and that was somewhat for the present necessity but especially and for ever to manifest they were all as one Family under their Head the Lord Jesus and that no man called a Christian could call ought his own while his faithful brother stood in need which was though not inforced ever held by all Christians how ever weakly practised and in the declining State of the Church grew more obnoxious â—o evident neglect Now such a community that the poor Christian being laborious if able to work should be relieved where his labour failed or in what it reached not unto that so he might live comfortably and rejoyce in the Covenant of his God assuredly ought and I hope will be reduced to its original purity Now there was another unjust Levelling talked of which was an unregulated community that is the setitng up the Law of Naturals without the Divine regulations that is to live like beasts to kill and eat to live each man to his lusts and the stronger to overcome the weaker which confusion having ushered in a necessity of regulation then and thereby to lay the foundations from that necessity of a holy or just Community among the people supposing men while enjoying ought assuredly would not be drawn to an uninterested Politie wherein though the end be approved yet no just man will allow the means if he remember we must not do evil that good may come of it no not in this juncture of time when the flood-gates of Liberty were broken up though that some may think to that end Providence so ordered the matter and to men so settled there is no chain strong enough O Lord I pray thee open such eyes especially of those that from a sincere heart desire thy glory least their zeal not according to knowledge make thy truth and zeal for thee evil spoken of and most like it is of such spirits were they who were seduced if seduced or that they drew away themselves and others with them But let them know that in such unruly breakings out of parties into contentions of divided interests it is more lawful for their opposites being in present power to subdue and punish them then for them to labour and indeavour by force or disobedience to subdue or cashiere their opposites And now I am come to the more particular discussion of just Levelling or just things held out by men no way aiming at any by or corrupt end or interest whatever Just Levelling then so called is an impropriety in regard of the acceptance of the word a propriety in regard of the end for it looks at just things justly however it is scandalized and is in a word but the rule of proportionate Justice I say not onely Justice but proportionate that is that there be not onely one Law but that Law held forth with due respects of equity and righteousness as for example To charge a Gentleman that hath three hundred pound a year a horse for Service and to charge him for 300. li. a year to a Rate is just for such an estate there is and to charge a Gentleman of three thousand pound a year a horse also is just and to charge him for three thousand pound per annum is just but this is not levelled that is brought to the proportion of equal distributive Justice for if you will do so then the proportion must and ought to be thus fixed first admitting that qualifications of the mind though honored be not charged for that of the Poll-money was in that exceedingly unjust divers Knights Esquires Doctors Attornyes c. not being worth the money they were assessed at by the Poll but I say that excepted they must fix a Rule for the value of a Gentleman Esquire Knight c. To which end Suppose the estate of a Gentleman be 300. li. per annum as before and that this shal be charged one horse then a Gentleman of 600. l. must be three for if that three hundred maintain a Gentleman and one horse six hundred may maintain two horses more and so in proportion in all charges and duties in the Commonwealth These Levellers prefer the integrity of a Religious conversation in all things answerable to the strictness of their holy profession above all policy and carnal interests therefore they honour rich men but they especially esteem and trust vertuous men and therefore desire that in publike Administrations the basis and settlement of the Commonwealth may be so tempered that the vertuous and experienced judicious man may not be cashiered a fit Regiment for want of Riches being well knowing that the purity and corruption of interest are the props and decayes of a Common-wealth respectively as they are admitted They deny not that the foundations of England settlement were just nor that there was alwayes a politick settlement held forth but they say it was never practized as held forth and yet held forth far short of what the perfection of our profession enlightens unto whereupon they urge that the whole frame of our Government Civil as well as Ecclesiastick ought to be brought to the Standard of Justice at least to that the Declarations of Parliament seem to â—old forth which own as much in Generals as they desire in particulars wherefore they say that they are confident it can now be nothing but corrupt and partial Interests that can divide and therefore they desired that the foundations being assured the superstructure might be answerable and that in not only the clearing of the Rights of the supreme Magistrate but of the Subjects in all Offices Trusts and Degrees in such a plain evident Christian manner that no man might complain justly either that through ignorance he knew not the Law or difficulty that he could not perform it or delayes that he were oppressed instead of relieved by it and to that end desired the Laws in English all fained actions and intricacy of pleadings to be annulled Courts of Law and equity with all other legall proceedings to be in the respective Counties Bargains and Sales and all conveyances to be enrolled all Lands to pay debts Creditors to be paid equally out of the whole estate of the Debtor not preferring fraudulent Judgements before honest Bills all actions under such a
value to be determined by any two Justices of the Limit by their Warrants without Writ especially at monthly meetings but more especially if they were both poor that is not worth one hundred pound clear or if but one of them the poor being grown lately as well enemies and devourers of one another as the rich That there might be but one waight whether Troy or Aver du-poiz in the Nation and so one measure and one tenure that is Freehold of the State not grantable to any person or persons so called mean Lords as tending to the high advancing of particular interests much more subject to destroy then support the Commonwealth especially that basest badge of slavery and the most prejudicial to the interest of a free Commonwealth the so called Villeni or bond service urging that the Rule of Littleton That Land being the less worthy cannot engage the person of a free man which is more worthy and so that Villenage or now so called Copy-hold is incompatible with freedome and the evil effects of this have appeared in choyce of Representatives as dangerous as ever did any Feife service of the Barons to their Soveraigns the Kings and they say it is just the Comminalty should have right done against inferiour Lords now the Lords have right against the King or State that so while we be freed from the Tyranny of a Prince we may not be worse slaves each to other for they can instance more wicked unchristian merciless and cruel acts in Copyhold Lords then in all the Princes in the world They also desired if the State took Tonnage and Poundage Customes c. that the Seas might be guarded and some said if they did not it was lawful to steal Custome but I put that opinion in a Parenthesis they desired that no person or condition of men might be secured from Law that all evils as appearing might be at appearing rectified and to that end that an easie address might be to Courts of Justice setled in power in the respective bounds both for ending and determining according to Law setled and preparing for remedy to emergent evils by certificate of the matter They said they valued their priviledges as high as any but they would part with their priviledges of men to enjoy the priviledge of just and wise men they therefore would deny themselves things lawful if found inconvenient thus did they submit to the Magistrate and thought not themselves wiser then them whom God set over them but this also admitted that Magistrates were men and might err that the rule of their Government being but perfect reason supposed that infallibility was not tyed to the Seat of Justice if not to the Throne of the Prince and Chair of the Bishop that it was the duty of the Subject with fear and humility to advise of the Law and that no man might oppose the Law but lawfully not to be the Authors of disturbance to the State lest each man might contend for his own opinion until there were as many Laws as men They said that the poor were a parcel of the body politick which ought to be provided for setledly and sufficiently some propounded Commons some concealed Lands some one thing some another but these were mistaken parties generally though well affected they might be for Commons were the Tenants Rights originally not the poors and concealed Lands might now have proved as fatall a Hawk to the State to whom they now belong as Forrest Lands did before to the King for as I have said before all Tenures Titles c. being grown so difficult what might not have been adjudged now concealed as then was Forest These men further allowed and desired that persons should be brought into due degrees the due power of all persons respectively setled the primitive order for security of the Nation by the enforcing the Laws of Tythings for idle vagrant persons Hues and Cryes for Thefts Robberies and such like that due orders of Cities and Walled Towns Bridges and great Roads for Watches c. Regulations of all Trades by certain and just Laws might be renewed Prisons not made the Schools of all Villany but places of due laborious restraint and safe keeping and that specially first for persons criminous next dangerous lusty riotous lazy and idle Publike Offices to be born at the publike charge and no just Office to be the burthen or ruine of a man such as to be a Reader of Inns of Court High-Sheriff Constable Major Sheriff c. of Counties and Cities That all Customes be certain all Fees of Officers with a thousand things more which experience had rendred manifestly holding forth Justice or the foundations thereof Now these just things being so diametrically opposite to the Interest of multitudes who had for their corrupt interest sake or to make a fortune in their own Idolish phrase joyned themselves to the Parliament party were heard but neglected then scandalized to commix Interests with the errors afore-supposed in Levelling in the grossest acceptation so that each rule almost of morall honesty was now miscalled Levelling The reason why I call these just things Levelling is to unmask these Satans and to manifest to all men the strange artifices used to obstruct the truth and take men off from the entertaning true apprehensions of it suggesting to them these jealousies that though the Propositions held forth nothing but seemingly just honest and Christian yet no doubt there was a Snake lay in the grass to eat in pieces the root of Government and debase the Supremacy of Magistracy destroy order annihilate property and introduce the confusion which some as I have said are said to intend and we may justly fear if some timely and just order preventive be not applyed will by these self-seekers be assuredly perfected But all these just Levellers had not the same foundation or principle for their designs though know assuredly all honest men reall and of publike spirits Papist or Kings Protestant that is he that would walk no further in the way of Christ then the Laws of the Land taught him that is beleeving as was by Law established according to the Canon c. yet zealously making conscience of being wiser then his Teachers Presbyter or Independent or of any Sect Opinion or Religion soever were nick-named Levellers by them that found it best fishing in troubled pudled waters But as I say they had several principles The Presbyter founding his Levelling upon the Judicials of Moses stuck to that Rule that the Judicials were Gods own Law given to his own people with whom he had entered a Covenant not only upon Mount Sinai but in the loyns of Abraham father of the faithful that so Abraham is our father and we by faith his seed and so bound Again that the people chosen of God were Types of all Gods people to whom that Law was given in them and living according to that Law should thereby manifest themselves each to other to be the people
Error or more of course this Term then more the next and then a peremptory day and then Errors Cassed is but legal extortion So that it is plain to take errors totally away is as bad as to have all allowed but to prevent the mischief let a certain day in Court be to determine errors before issue and not after Now the punishments in these defaults are and must be pecuniary and that both in the Judges of Fact as Jurors as well as Law but where the default is evident there ought to be a dispriviledging for future as to all publike trusts at least for a time but out of the Judicial place presently yea though the oath be that he was onely mistaken in Law and did not do it at all maliciously or with a minde of injustice Now to oaths it is fit any Justice of the Peace should give it at discretion this requires able Judges and so should Judges be but of this more in due place Concerning what things the Magistrate may and ought to make Laws YOu heard before that there must rest in some persons thereto designed either by God as those who claym to rule by absolute power or by men as those who rule by Compact or Convention as who either had no power but were meerly elected and agreed with having no Right primarily or had some power but not enough and so condiscended to some rule that they might rule assuredly Now this being in one person or more yet the power ought to extend to all things justly necessary to the well being of a Commonwealth and therefore they have respectively the general powers of war and peace life and death But because we have before hinted that there was a necessity of the Magistrates regulating of those things which many men call dispriviledge to Christians as well as men we will according to the rule before laid that is of the head Law according to Gods own Law the God of Christians as of the Jew see the Government of reason laid there down both for Divine and Civil worship Wherein first it seems directly given to the Magistrate to have the ordering of divine worship to God under the Law Now let us see how this works for Vzziah is a Leper for acting in the Priests Office Yet the aberrations both of Priest and People are laid to the Kings charge and the good Kings commanding just things and not onely so but seeing of them performed are blessed and on the contrary the evil Kings punished and their Adherents And those disobedient to the King as to Ahab the seven thousand that never bowed knee to Baal were those who were to take root downward and bring forth fruit upward Now the great difficulty is to settle the Magistrates power so that he may not bring sin upon himself and the Nation by commanding or tolerating things evil and unjust or unjustly enforcing things just and good Now as to this it is to be considered that we all profess Grace is from Heaven the meer gift of God and that the Spirit breatheth where it pleaseth as the wind bloweth where it listeth if so the Magistrate Yea grant there were a clear Church Magistrate that were by divine Word impowred with the Sword of Paul as the Keys of Peter could he go further then the outward man it is plain he could not Next then grant no such Magistrate sure the Civil or in case of doubt of Spiritual Power the Civil Magistrate onely can act clearly Now for the Spiritual Power to be helped out with the Civil Sword surely it is one of the grossest vanities that Popery ever broached God stands not in need of mans wisdome or power But God having not cleared that the implicit construction by Analogical or singular reason from the legall severity is proportionate to the gentle and quiet brotherlike Rule of the Gospel nor agreeable to the Commission which our Saviour gives to his Apostles which was either to the Jew Matthew the 10. Mark the 3. and Luke the 9. or to the universality of men Matthew the 28. Mark the 16. Luke the 24. and clear enough in that of the 21. of John and 15. where nothing is spoken of but preaching and teaching and feeding If then the Pastor have not the Sword but of the Spirit let us see the material and Magisterial Sword which is not born in vain what may this do If we look to the Jewish Model which many men seem so much to contend for There we see that the Magistrate had power over blasphemers Idolaters and tempters to Idolatry witches c. and this extended to death and that it should do so with us is by them desired Now many suppose this difficulty though very great may be at least in great part assoyled if we consider that the persons to whom this Law was given was a people chosen by wonderful miracles and wonders from all Nations to be the people of God and bear out to the world the Ensigns of his special love to man in all Ages and Generations which tokens of love in obedience to his Law were suited with answerable judgements in the neglect of the same And surely those things which relate immediately to God in the point of gracious service hold forth nothing to us but assurance of eternal punishments to the unrepentant sinner Saint Paul confesseth himself a blasphemer 1 Timothy the 1. 13. and declaring in the last times what fearful and horrible sins should appear among men 2 Timothy 3. 2. he takes notice of blasphemy and bids onely from such turn away Now if you would have a Magistrate to work without a divine precept we must look at the height of improved reason There we find that zeal for the Gods among all Heathens made blasphemy death and surely reverence is due by the light of Nature to what ever is called God Of blasphemy under the Law the Councell was Judge Now the Sanhedrin was not of Priests they might ask Councel of the Priest but determined themselves and these by Gods Law put the blasphemer to death many conjecture upon this the Devil Aped Gods Law others his delight in blood hinted the Law as in Heathen Sacrifices but sure such reason makes against these objects intended to take away the pure light of reason for who that will acknowledge a Deity will allow the Deity to be blasphemed But now the doubt is whether these are not under the Gospel to be reserved to the last Judgement Some beleeving that if Paul of a blasphemer and who ever was a greater became a Saint a Preacher of the Messiah who did and thought to do many things against the Name of Jesus that is against them called on his name why may not any other be converted where is Gods dispencing with the Law where the special reservation of Paul he did it not against the humanity of Christ but his Divinity it was for calling on his Name Some excuse Paul because zealous but others