Writ of Execution of it and obeys it and this is the best that can be expected And then the parties fall to cast up their Accompts and it 's found That the Plaintiff at Law spent Eight pounds and the Defendant four pounds The Plaintiff in Chancery spent Twenty pounds and the Defendant Twenty Marks Lay all this together and in conclusion the Debtor hath spent 24 l. and paid 11 l. 6 s. 8 d. and the Creditor hath spent 21 l. 6 s. 8 d. and received for his Debt and Costs 11 l. 6 s. 8 d. So the Creditor loseth his Debt and Ten pounds out of his purse and the Debtor hath spent and paid 35 l. 6 s. 8 d. where the first Debt was but Ten pounds and the Remainder was but thirty shillings O famous Law and Equity I could shew many of these Cases And indeed this hath been the common practice with most Judges to send men to Equity and they ought to do so whilest the Law stands as it doth Now apply this to the Rule and Argument above-mentioned The Law could not relieve the Debtor but Equity doth relieve him Which of these two hath done him Right The Law did him none for if it had done him Right then the Chancery ought not to have done the contrary which it hath done for to charge a man and to discharge him are clean contrary And the Chancery hath not relieved him for in effect he hath paid and spent more then treble the principal Debt and Interest So upon the point he is relieved no-where And yet every man will say He is no just man who refuseth to deliver up a Bond when it 's fully paid How doth this Law put all together give every man Right and if it do not then is it an unjust Law I do confidently affirm That no Nation professing the Gospel ought to have or maintain any Law so severe or rigid that it needs any Court of Equity to moderate it If it were needful or convenient in any case to have relief in Equity it must needs be in case of Life and Death which is a business of higher Concernment then a little Money and more favoured in Law But no man ever heard of a Bill preferred into any Court of Equity to save one from the Gallows and therefore it is to be presumed there is no need of any such Court if the Law were Just and Equal But because it may be every man will not be satisfied that in the Case above-mentioned there was a direct Repugnancy in the Judgements of these two Courts because The Chancery did give relief in Tanto though not in Toto I 'll onely put one short Case more to put the matter out of question A man indebted upon a single Bill payes the Money upon the day in the Bill appointed and hath Witness of the payment but the Bill cannot be found This Bill comes after to be put in Suit the Defendant cannot be admitted to plead payment at the day nor hath he any other Plea sufficient in Law to discharge himself nor can be relieved at Law unless he have a Release although he prove the Debt paid but Judgement must needs pass against him either by Default or Confession or upon a Verdict after Issue joyned upon some false Plea which the Defendant thinks most easie and after which he shall have most colour of Equity Well Judgement is passed and the Defendant must expect Execution without relief at Law But for fear of the worst the Defendant hath before Judgement his Bill preferred into the Chancery to which the Defendant Plaintiff at Law answereth and the Cause comes to hearing where it appears the Debt to be paid thereupon the Court decrees the Bill to be delivered up Here is a just Contradiction and diametrical Opposition The Law condemns the Debtor or at least will not relieve him and the Chancery doth discharge him of the debt and so relieves him Upon this consideration some honest Judges of late dayes have used in some Cases to order the Plaintiff upon the Defendants payment of the principal Debt with Interest and Costs or what shall appear to be unpaid to deliver up the Specialty and discontinue the Suit or stay the same This is a short and equal way which is Justice and no more to give every one his Right according to that of the wise Heathen (n) Plutarch in Laco Apoph Stob. ser 7. Ex Agesil Nihil praeter aequum faciendum esse c. Justitiam semper oportet esse Clementiam temperatam Yet this is contrary to the Law and no Record is made of any such Judgement But other Judges have usually said in such Cases The Defendant must seek relief in Equity they must do Justice that is shew Extremity These two Courts can no more consist with Justice then two Weights or Measures of different bigness or length I use this familiar Comparison because it pleaseth the Holy Ghost to make use thereof to this very purpose Prov. 20.10 Prov. 20.10 Diverse weights and diverse measures are both alike abomination to the Lord. These words Diverse weights and diverse measures (o) D. J. Burgis in hunc loc word for word out of the Original are a stone and a stone that is different Weights and Measures of several sizes one bigger another less and this is expounded by that in Deut. 25.13 14. Deut. 25.13 14. Thou shalt not have in thy bagge diverse Weights a great and a small Thou shalt not have in thy house diverse Measures a great and a small These words by a Synecdoche speciei Note The difference between L. Chancellor Egerton and L. Chief Justice Coke about the Power of the Chancery after a Judgement at Law Wilson Hist Great Britain pag. 95. Bodinus the learned Civilian observes That Contention between great Magistrates or Courts about their Power or Jurisdiction is always hurtful to the poor Subjects Bodin Repub. l. 3. c. 6. p. 356. forbid all unjust and unequal dealing and commerce amongst men and all Injustice and Iniquity and the instruments tools and means thereof and implicitely the same Law commands all Justice and Equity and directly forbids two Courts having contrary Powers and Jurisdictions and executing things Repugnant and contrary one to another If the one proceed justly the other must needs be unjust Neither do the Scriptures any-where mention Justice and Equity as two several things to be distributed in one Case as if that might be done by the one which might not be done by the other nor that ever any good Judges gave any such Judgments but rather when they are said to do Justice it 's intended That they did justly and equally It 's true that the (p) Exod. 21.1 Judicial Laws are called Judgements and the execution of the Moral Law is called Justice And so (q) 2 Sam. 8.15 David is said to execute Judgement and Justice that is to judge justly and righteously both in respect
have his Body at Westminster at the day of the Return of the Writ without danger of death So if a Prisoner be bailed and a Bond given for Appearance if the Bond be â—uffiâ—ient the Sheriff will return That he hath taken the Body of the Defendant and hath it ready at the day and sometimes when the Defendant is Arrested and at liberty the Sheriff will return That he hath the Defendants body in Prison and that he languisheth when he goes abroad but is not minded to appear to answer the Suit The Common Barre and the story about Black-acre and White-acre and such things as are invented when men give to others colour of Title as an inducement to some other matter All which things are repugnant to Honesty and Simplicity The like may be said of Proceedings in Courts of Equity If a man sue for Lands to which he pretends an Equitable Right as a ground of Equity to make his Bill hold he usually alledgeth That the Plaintiff hath lost his Evidences That they are come to the Defendants hands That the Plaintiff can maintain no Action at Law for them because he knows not the Dates nor Contents of them nor whether they be in Boxes Bags or Chests and divers other such other false surmises when the Plaintiff hath the Evidences in his own Custody In a Biâ—l where a man sues to have an Agreement performed it 's usually alledged That the Witnesses to prove the Agreement are dead beyond the Seas or in remote places unknown or so impotent that they cannot be produced at any Tryal West Symb. 2 part Tit. Fines sec 112. Old Natura Brevium fo 20 and many such-like So likewise in a Commission to take the Cognizance of a Fine it 's alledged That the Cognizors are so impotent that they cannot travel to a Westminster without danger of death when they are in perfect health These and many more lyes and falshoods are made and entred of Record every Term which are clearly sinful and ought to be reformed Job 13.4 Acts 5.3 4. Coloss 3.9 Revel 21.27 22.15 Luke 19.8 16. The uncertainty of the Law for want of a standing Rule the Law it self being but meer Opinion is a matter of great prejudice and causeth an excessive charge many times to the Suitors The Judges being (l) Bodin Repub. l. 3. c. 5. p. 325. The Magistrate is a living or breathing Law There hath been a Judgement upon a Writ of Error in the Exchequer Chamber given by all the Judges That no Information will lie in any Court at Westminster but in the proper County before the Justices and yet such Informations are constantly brought and prosecuted every Term contrary to that Judgement grounded upon the Statute of 21 Jac. c. 4. called the Speaking Law very frequently differing in their Opinions and sometimes the same Judges when Lawyers have given that under their hands for Law which when they have come to be Judges upon second thoughts they have judged otherwise although such Judges have been known and reputed to be men of Integrity and clear Judgement And this uncertainty is not onely about the highest Apexes of the Law but in things of ordinary concernment As about Waste abundance of Money hath been spent to know what power is given to a Termer by these words To hold c. (m) Coke lib. 4. fol. 62 63. Herlackendens Case compared with Iewes Boles his Case Coke lib. 11. fol. 81 82 83. See the many Cases there cited without Impeachment of Waste whether he be onely discharged of unvoluntary Waste or whether the Termer may take down fixed Wainscot or such-like which he set up or whether he may not cut down Timber-Trees and pluck down houses and further whether he may not take all the Materials to his own use If I mistake not all these things have been judged Negatively and Affirmatively And the last Solemn Judgement was That in such a case a Termer might commit wilful Waste and take all the Materials to his own use which is Repugnant to all former Judgements and yet all the Judges are not now of the same Opinion in some of the Cases above-mentioned It were an easie matter to set down twenty such Cases where the Judges have been divided and in divers Cases where one Court hath agreed the other Judges upon a Writ of Error being the greater number in the Exchequer Chamber have reversed their Judgements The like uncertainty is found in every mans practice in (n) There are many Controversies concerning Actions upon the Case for words and many times words of high concernment are adjudged not to bear Action and for others of less concernment judgement hath been given Corn. Tacitus observes That the Romans Laws were swayed hither and thither by Might Ambition and Corruption and all was for want of a standing Rule Tacit. Annal. lib. 1. cap. 1. pag. 2. ordinary things as whether in an Indebitatus Assumpsit for Wares and Merchandize upon a Non assumpsit pleaded the Plaintiff shall not be put to prove That the Money demanded grew due for such things as are mentioned in the Declaration or whether he may give in Evidence That it grew due for Rent or other things not mentioned Whether upon a Lease by Paroll an Action upon the Case will lie for Arrears of Rent Whether a man to an Action of Trespass oâ— Assault Battery and Wounding may plead to the wounding Son assault Demesne Within Thirty years it was commonly held for Law That if a man strike me with a Stick I might not cut him with a Sword but now of late the common use is to justifie the whole Battery both Beating and Wounding If a man were minded he might fill a Book with such Uncertainties And this is that which caused King James to tell Wilson Histor Great Brit. p. 96. Sir Edward Coke That he had inserted into his Books many extravagant Opinions for good Law which were not Law and therefore commanded him To Review and Correct them and bring them to him to be perused And the same Judge is also charged That he could turn the Edge of the Law any way and strike with that weapon whom he pleased (p) That Law which like the Lesbian Rule is so pliant that it may be turned every way loseth the force of a Law and becomes like a Nose of Wax and so the Judge who is but the Minister of the Law becomes the Master of the Law Bodin lib. 6. cap. 6. pag. 760. answerable to what a Learned Chancellour said once upon the Bench Such a Lord Chancellor was of that Opinion and I am of this Opinion If there were nothing in the Law faulty besides this it were worthy to be perused and amended for the Judges being the Speaking Law the Law is nothing but thâ—ir (q) Cock Essay p. 111. Opinions contrary to that Truth which ought to be in all Laws But the Judicial Law of Moses shall never be found
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
the whole book p. 3. as the punishment of him that touched a dead body Others concerned the Jews Common-wealth in their own Land as that concerning the year of Jubilee c. (i) And in c. 22. qu. 3. Com. 8. p. 492. The rest are Laws of Common Justice and Equity belonging to the Moral Law as Expositions thereof as the punishment of (k) Exod. 21.12 Murther and (l) Lev. 20.10 Adultery c. with death These and many others which shall be touched in their proper places were given to the Jews as men and did not onely binde the Consciences of the Jews but also of the Gentiles And as the Morall Law is (m) Willet in Exod. c. 21. qu. 1. 2. p. 458. principally grounded upon the (n) Bodin de Rep. l. 1. p. 46. Reason and the Law of God should always take place every where not being shut up within the bounds of Palestine Law of Nature so these Judicial Laws called by Moses Judgements flowed from the same Fountain and necessarily declared the punishments for the breach of the Moral Law which are not therein expressed (o) Mat. 15.4 Mark 7.10 comapred with Exod. 21.17 And this use our Lord Jesus makes of the Judicial Laws Now a Judicial Law may be known to be a Law of Common Equity from other Judicial Laws which did onely binde the Jews in the Land of Canaan (p) Perkins 1 Vol Treatise of Conscience p. 320 321. First if wise men of other Nations as well the Jews judged it to be equal and just by Natural Reason and Conscience Secondly if such Law did serve to confirm any of the Ten Precepts of the Decalogue or to uphold any of the three Estates of Men viz. Family Common-wealth or Church and upon this ground is it that Moses the (q) Coke l. 7. fo 12. Calvins case first Reporter and Writer of Laws in his Exhortation to the Jews requireth them to observe (r) Deut. 4.6 7 8. the Statutes and Judgements which he had taught them from God which Judgements are the Judicial Laws And this he tells them should be their wisdome and understanding in the sight of the Nations saying What Nation hath God so nigh unto them and that hath Statutes and Judgements so righteous And for this cause it is that the Godly Learned (ſ) Bodin Rep. l. 1. p. 104. What apparent reason can there be devised for which we ought to break the Laws of God That it may be done in any case the same Author there concludes most absurd and wise Statesmen have judged That for the Civil Magistrate to alter this Law at his pleasure as shall be thought fit for the time or manner of the Countrey is to make himself to be thought to (t) Willet in Exod. gen Observ qu. 4. p. 3. be wiser then God that onely wife (u) James 4.12 Law-giver who can save and destroy (w) 1 Cor. 1.25 The foolishness of God is wiser then men The Heathen Gentiles had a high esteem of Moses for a wise Law-giver Let one speak for many Longinus of whom Moses is named (x) Longinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pa. Philo Judeus calls Moses A most wise Law-giver Brod. Rep. l. 2. p. 211. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Glorious Law-giver of the Jews And although the Heathen were Idolaters and regarded not the First Table of the Decalogue accompting the Divine Worship of God a (y) Acts 25.19 Broughton in Daniel Conclus Suet. Tranq vita Claud. Caesaris sect 16. Tac. Annal. l. 2. c. 19. pag. 61. Barbarous and Mischievous Superstition yet they received those Judicial Laws which were Laws of Common Equity (z) Jer. 29.22 23. Nebuchadnezzar a heathenish Idolater had learned to punish Adultery with Death And (a) Perkin 1 Vol. Treatise of Conscience p. 320. Suet. Tranq in vita Jul. Caesaris sect 48. in vita August Caesaris sect 34. Anotat b. other wise Law-givers of the Heathen Gentiles as some of the Aegyptians Graecians as Draco Numa and Romans as Julius Caesar Augustus c. made Laws to punish (b) Tit. Liv. l. 39. p. 1032 p. 1034. K. l. 33. p. 804. R. 841. B. Murther and Adultery and Sodomy with death according to those Judicial Laws Exod. 21.12 and Deut. 22.22 Levit. 20.13 It may be observed That all Dominions except Impious Machiavel's have confessed That Humane Prudence hath not power sufficient to foresee good and evil so as to prevent the evil and therefore did all Nations fly to God some by a straight others by a crooked way and hence their (c) Grot. Pol. Maxims Par. 2. c. 8. p. 68 69. Cor. in fine Bodin de Rep. l. 1. p. 58. Tit. Livius l. 3. p. 110. H. Laws were pretended to come from God Upon all which I conclude That all the Laws of England ought to have their Foundation upon the Laws of God and yet this is no Judaizing or departing from the Gospel as some have vainly imagined for that it appears clearly (d) Deut. 6.5 6. Exod. 20.2 Luk. 10 27 28 Matth. 22. 37 38 39. Gal. 3.19 That Moses Law was given upon Gospel grounds and that the New Testament especially the Doctrinal part thereof as well as the Prophet's is a plain (e) Mat. 5.21 27 33 38. James 2.11 Heb. 4 2 6 7. Commentary upon Moses and to this purpose it is not improper to apply that of our Saviour (f) Mat. 6.17 18 I came not to destroy the Law but to fulfil it And as to the matter in hand that of the Apostle Paul (g) 1 Tim. 5.9 10 11. to Timothy puts it out of all doubt the Law namely the Moral and Judicial is made for the lawless and disobedient for the ungodly and for sinners for unholy adnd profane for Murtherers of fathers and Murtherer of mothers for man-slayers for Whoremongers and them that defile themselves with Mankinde for Men-stealers for Lyars for Perjured persons and if there be any other thing that is contrary to sound Doctrine according to the glorious Gospel of the blessed God The (h) The Law and the Gospel agree in substance and end differing in circumstance of time place persons dignity and effects The end of the Judicial Law is to teach Natural Equity Ral. Hist l. 2. c. 4 sect 9 10 11. Law was made for the good to guide them and for the evil to correct and punish them And that these Laws were not punctually put in execution under the Gospel in the Primitive times was not because they were not in force against evil-doers but because the Magistrates were Heathens and received them not as the Laws of God although they observed many of the Judicials as before is said Now the chief end and scope of all Laws ought to be Justice and Righteousness (i) Bodin Rep. l. 6. c. 6. p. 755. Justice is the right distribution or division of
Rewards and Punishments and of that which by Right belongs to every man And where shall this Justice be found but in the Holy Scriptures which is that perfect Rule and Law of Justice and Righteousness Without this Guide men have no more then that glimmering Light of Nature to lead them which although it retain general Principles of (k) Idem Bod. Rep. l. 6. c. 6. p. 761. Tac. Annal. l. 1. c. p. 2. Right and Wrong as one may so speak since the depravation thereof by the fall of Man yet we see by Experience That the most wise Law-givers who had the best endowments of Nature elevated and much perfected by Humane Learning and Knowledge without the knowledge of the Divine Law contained in the Holy Scriptures erred and wandred far and wide in many things as men blinde-folded and led aside by their lusts and passions and chiefly for want of this Golden Rule to walk by And if no more could be said of this subject this were sufficient to satisfie any rational man That there is an absolute necessity to compare (l) Vis Magistratus est ut praefit praescribatque quae recta utilia conjuncta cum legibus ut enim populo praesunt Magistratus ita Magistratibus leges Lex simul cum mente divina orta Creditur Itaque vera Lex Princeps apta ad Jubendum votandumque ratio est recta summi Dei Coel. Rhodig Lect. Antiq. l. 8. c. 1. p. 279. all Laws with the Laws of God and to frame and square these our Laws according to that Patern For that nothing can be or be truly accounted Right which is not agreeable thereunto And therefore (m) Bodin Rep. l. 6. c. 6. p. 759. the Jews called their Book of the Law The Book of Right or as it 's observed the Caldaean Interpreter hath it The Book of Rightness having no crookedness or error in it nor suffering such as walk by it to turn out of the way CHAP. III. That the Law of England as now it is in use is a departing from the Law of God and a taking of a Law from Hâ—abeâ—s and Idolaters IT is not to be doubted but as these Judicial Laws were the Foundation of the Imperial or Civil Law so were they of the Saxons Danes and Normans Laws amongst which many particulars of those Judicial Laws are found extant as amongst the Laws of this Nation which herein in their fit pâ—aces shall be made appear But the Roman Clergie or rather Idolatrous Priests being Chancellors Judges Reporters Scribes and Compilers of our Laws to these Laws of Common Equity added many Heathenish Impious Superstitious and wicked Customes and imposed the same upon the poor conquered and enslaved People for Laws Which things when we consider and what is reported by Sir Edward Coke (a) Coke Com. Littleton l. 3. c. 9. sect 535. and his Preface 8 Reports That in the time of William the Conqueror and long after his time the Chancellor Treasurer and Judges were for the most part Bishops Monks men of the Church as he calls them of whom he names very many expert in the Common Laws and such as wrote the same We may easily judge what Laws we were like to have from such men surely such as their Religion then was in the very darkest night of of Popery which must needs produce nothing so much as Idol try and the Oppression and Persecution of the Saints like the (b) Mic 6.16 1 Kâ—ng 22 26. 1 Kin. 16.25 27 Statutes of Omri and Ahab according to that of the Psalmist (c) Psal 74. â—0 The dark places of the earth are full of the habitations of cruelty Upon these grounds it may be cleared That we are much departed from the Law of God and have received a Law from Antichrist and it will further appear in the particulars following That many wicked and profane Incroachments are made by our Laws upon the honour of God in abuse of his Holy Name and Worship and thereby also great Iniquities Injustice Wrongs Oppressions Deceits and Falsehoods practised maintained and acted continually towards all sorts of men as well by colour of divers Statutes as the Common Law now in use and practise But for the present let it be observed That the whole Body of Popery is in a manner comprehended (d) See Coke upon Littleton under these Titles Absuration Exile Appeal Advowson Bishops Appropriation Clergie Divorce Excommunication Heresie Frank Almoigne Marriage Parson Patron Presentation Profession Quare impedit Tythes and upon the old Statutes in Littleton's Book which is so much commended by Sir Edward Coke and that the old Statutes made in affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of Superstitions and Idolatrous Rights and Customs And if any man shall be offended that I do not lick the sores of Justice Littleton and Sir Edward Coke the two great Idols of the Law It sufficeth me to know That the first did (e) Littleton was a Judge in the Reign of King Edw. 4. according to the Religion then in use and it may be according to the Dictates of his own Conscience and in many things hath judiciously taught the succeeding Ages but therefore hath not deserved to be accounted an Oracle And for th' other I think of him according to (f) Scrinia Sacra Cabal p. 61 62 63. the Character given him by that Incomparable Learned Sir Francis Bacon in a Letter to him after his disgrace And something more I could say That he was a man of a bitter spirit against the dear Servants of God and if he should be judged according to the Judgement he gave of the most sincere Professors of Christs Gospel the (g) Coke l. 5. Part. 1. Cawdreys case f. 25. followers of John Wickliff abusively called Lollards and his (h) Coke in the Title-Pages of his Books of Reports being 11. judgement of Queen Elizabeth and Kings James whom he blasphemously calls The Fountain of all Piety and (i) The Law of the 12 Tables is called by the Roman Historian The Fountain of all Justice Tit. Liv. l. 3. p. 112. H. and out of this Heathen Sir Edw. Coke learned this Blasphemy Justice and the life of the Law A rational man indued with any knowledge of God would think such a man too ignorant of the wayes of God to be accounted an Oracle or termed The speaking Law as every Judge is or A Promulgator thereof Now if it shall be cleared without doubt whence our Laws came and that they contain such Impieties and Injustice as are before touched I say when that shall plainly appear every Christian whose heart God shall open to see the truth will assuredly be satisfied in his Conscience That this Law ought to be changed or greatly amended seeing that Christians ought to be so far from receiving the (k) Rev. 14.9 Mark of the Beast by taking Laws
H. 3. Dayes in Real Actions 51 H. 3. Dayes in Dower Preface to the book of Common-Prayer 5 6 Ed. 6. cap. 3. 2 H. 5. cap 4. The Returns of Writs upon the Dayes dedicated to Saints and Angels and Apocryphal Saints and upon Popish Holy-dayes such as S. (x) The true Michael is Christ who is like God as the Name signifieth Dan. 12.1 But this is some counterfâ—it Michael Michael S. Hilary S. Martin All Souls All Saints The Purification at the best are Superstitious and it 's determined by the Learned That the Dedication of Dayes to Saints is part of the Idolatry of the last times much worse are some of those Dayes mentioned in the Statutes dedicated to Idols as the Rood Corpus Christi the day when the Idol or false Christ was carried in Procession and worshipped being the third of May S. Thomas the Martyr that is Thomas a Becket mentioned in the Statute who was adored and worshipped blasphemously thus Tu per Thomae sanguinem quem pro te effudit fac nos Christe scandere quo Thomas ascendit (y) Verst Rest decayed Intel. p. 54 55 to 64. The dayes of the Week dedicated to the Sun Moon Tuysco Waden Thor Friga and Seater being old Saxon Idols The like may be said of the Moneths dedicated to Janus Mars Maia (z) Suet. Tran. Sup. Jul. Caes p. 2. in vita August Caesar sect 31. Syms Church-History in the Life of Commodus p. 27. Ex Euscb Julius Caesar Augustus Caesar c. These are taken notice of and used in the Law upon all occasions and cannot be changed without change of the Law but they ought all to be abolished according to those Laws Psal 16.4 Deut. 12.3 4. Exod. 22.20 23.13 Perk. Idol last Times 1 Vol. p. 683. Col. 1. August de Civit. Dei l. 12. cap. 10. 1 Corin. 10.12 The (a) Tit. Liv. l. 29. p. 719. f. Tac. Annal. l. 2. c. 7. p. 42. Heathen had such Holy-dayes dedicated to Idols in imitation of whom the Papists appointed such dayes as are first mentioned 25. The Oath as it 's administred in all Courts smelleth of (b) Stamf. Pl. Coro tit Trial per Battel l. 3. c. 14. f. 177. Idolatry (c) Willet in Exo. Hex in Com. 3. Decal The Jews swear upon their Thorah which is the Pentateuch or five Books of Moses This Custome is condemned as Superstitious our Laying the Right-hand upon the Gospel or New-Testament and kissing the same is no better Although some Superstitious persons account these very profitable and significant Ceremonies They ought the rather to be rejected for that such a kinde of Oath hath no resemblance to any Oath in holy Scripture But rather the lifting up of the Hand (d) Laws Geneva pag. 12. These Ceremonies of Laying the hand upon and kissing the Book are condemned by the most Learned See the Treatise of Oathes p. 57. written by the Nonconformists Horn. Mirror Justice c. 3. sec 24 25. Expos Forest-Laws fo 40. an Old Manuscript is to be approved and the significancy of the Ceremonies abovesaid an Oath being a Solemn part of Gods Worship makes them utterly unlawful for that it is the Office of Christ in his Word to appoint Teaching Ceremonies in his Worship And the truth is by the Common Law the party Swearing makes Idols of the Saints and sometimes of the Book the words are So help me God and all (e) Idem Cowel Instit l. 2. Tit. 3. sect 8. p. 115. sect 15. p. 119. p. 287. Saints and sometimes The Contents of this Book Gen. 14.22 Deut. 32.40 Rev. 10.6 Deut. 6.13 Mat. 5.34 35. Some Lawyers hold and amongst the Civilians it hath been constantly used That the Guardian may swear upon the Soul of his Minor or Pupil The very words of the Law are these which I finde in a (f) Cowel Inst Jur. Angl. l. 1. Tit. 21. sect 4. p. 70. Ex Fitz. N. B. f. 118. Body of the Law set forth by the late Kings Professor of Law in Cambridge Custos in Animam minoris Jurare potest and so the Proctor or Attorney may swear upon the Soul of his Master This is the same with Jurare in verba Magistri 26. (g) Kitch Felo fo 26. 23 H. 8. c. 1. 1 Ed. 6. c. 12. 5 Ed. 6. c. 9. 10. 8 El. c. 4. 39 El. c. 15. Doct. Stud. c. 8. fo 17. b. The Law against Felonies in many Cases as the Stealing of Goods worth five shillings out of a house or from a Stall in a Fair or Market or any small sum of Money from a Mans Person secretly and some greater Felonies for which the party convicted shall have Judgement of Death without any mercy or moderation of Justice as it 's called when more heinous Offenders have favour shewed them by means of that foolish Usage The Clergie This severity is clearly against the Law of God (h) Willet Hex in Exo. Gen. Observ p. 4. Rawl Hist l. 2. c. 4. sect 16. for the Magistrate to shew more rigour then Moses becometh not the Gospel It 's a Rule amongst the best Learned That it is not lawful for any Magistrate to inflict a greater Punishment for any Offence then is appointed by Moses Judicials although it's held there may be a mitigation Circumstances being considered in some cases not Capital nor to adjudge any man to death where the Sentence of Death is not given by Moses Willet Hex in Exo. General Observat p. 4. (i) Godw. Ant. Rom. l. 3. sect 3. c. 9. Cock Essay p. 166. This severity may better be turned to servitude and labour where Restitution cannot be had in the House of Correction like the Romans Pistrinum or Metallum or Mine-works or the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This would be a greater terror to the Atheists of this Age then Death it self it being a professed Maxime amongst such That a short life and sweet is better then a long life and sorrowful and the same is more agreeable to Gods Law Eph. 4.28 Exod. 22.1 3 4 7. 2 Sam. 12.6 (k) Tac. Annal. l. 14. c. 13. p. 215. Where other Punishments are by Laws inflicted without note of Severity for Crimes not Capital which make mens lives miserable There is no use of the Executioner or Halter 27. (l) 15 H. 7. c. 8. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 f. 145. b Rast Entr. tit Quare Impedit fo 473. a b. 474. a. 465. b. Coke Entr. tit Quare Impedit fo 469. a. 489. a That Law That he that hath the perpetual Advowson of a Church as it 's called may sell the next Presentation when the Church is full so the Incumbent be not Languidus in Extremis it being a Lay-Hereditament This is an Impious Law and the Merchandize of Rome whose Merchandizes are amongst other things said to be the souls and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bodies of men not Slaves as it 's usually
whereof Sr Edw. Cook accounts Hereticks these are likewise uncapable to make any will to be Executours or receive any legacy The best of the people of God in England are of this Religion holding the same faith with the followers of John Wickliff who were a busively called (e) White way to the true Church Sect. 50. pag. 393. Lollards By this we may see what lets but that the faithfull servants of God might be wasted and destroyed as in former times not our Laws but our Magistrates for whom we are to blesse God in the mean while this is a wicked and cruel Law both against Religion and Common right 1 Sam. 25.2 8 11. Rom. 13.7 Gen. 14.23 Numb 22.30 32. Rom. 13.7 59. Tenure in (f) Plow com Sharringtons Case f. 305. b. 7 8 Eliz. Littleton Fran. Almoig fol. 30 32. Wingat Law cap. 7. pa. 13. N. 18. free Almes when Lands are granted to men for to say prayers Masses and other Divine Services as Littleton calls them for the Souls of the Donors and for the Souls of their Fathers Children or Ancestors these grants usually were made to Monasteries and Hospitalls and also to Deanes and Chapters and to the parsons of Churches But this Tenure is Impious and Superstitious and yet the same is both favourably spoken of (g) Coke com Littleton l. 2. cap. 6. Sect. 134 135. A learned Civilian saith of such Tenants who hold in free Almes that pro donatoris suorum tam vivorum quam mortuorum Animis apud Deum orationibus Divinis Officiis Intercedant The King might and the Lord Protector may make such a grant at this time Westm 3. Cowel Inst l. 2. T. 2. S. 24. p. 125. Impr. 1630. and commended by the Lawyers in our Law-books since Queen Maryes time that Popery was abolished in some measure It ought to be taken away as Idolatrous and Superstitious the rather for that the mindes of men are too prone and ready to be led aside to such Superstitious Vanities and Will-worship repugnant to the Law of God Sir Edward Coke in countenance of such Superstitious Grants hath this passage Nuâ— quam res humanae prospere succedunt ubi Divinae negliguntur But this poysoned Divinity ought to be condemned and some Law provided against such Superstitions Isaiah 1.12 Rom. 14.23 10.8 Matth. 15.3 6. Coloss 2.8 60. That where Lands come to the Lord of the Fee by Attainder of a Traytor or Felon the King hath (h) Coke Comment Littleton Relief l. 3. sect 514. fol. 294. Wingate Law c. 19. p. 30. n. 13. Cowel Instit l. 4. Tit. 18. sect 10. pag. 319. Idem Index Expos Litera a u. l. 4. Tit. 18. sect 45. p. 341. Annum diem vastum The Law in this case is That the King shall utterly waste the Inheritance by plucking down Houses cutting down Trees Ploughing up Meadows c. and at Common Law such was the Judgement in an Attaint upon a false Verdict This is ridiculous Law and a prejudice to the Common-wealth contrary to that frugality which our Saviour enjoyned touching the very Fragments which remained after he had fed four thousand and five thousand persons with meat which cost nothing and yet he would have nothing lost or spoiled Joh. 6.10 11 12. Mar. 8.8 9. Mat. 15.37 38. 61. That there should be no (i) Littleton l. 3. c. 12. sect 691. Coke Com. Littleton Remitter fol. 362. b. Wingate Law c. 22. p. 33. n. 11. Cowel Instit Jur. Angl. Index Expos litera R. Recordum Averment against a Record is a hard Law and may at some times prove unjust considering what men of mean Credit less Conscience many times have the keeping of them It is necessary general Credit should be given to Records but yet where just causes of Suspition and Corruption may appear it 's necessary the validity of such Records be put to Tryal The contrary is a means to countenance Perjury and Forgery and therefore this Rule of Law would be Expounded and Amended for Preservation of Truth and Justice Isaiah 8.1 2. 2 Cor 13.1 Ezra 4.15 16. compared with Ezra 6.1 2 3. Exod. 23.7 62. That the Widow of the Kings Tenant of Lands to which the King is intitled by Office held of him in Chief before she could have her Dower assigned by a Writ de Dote assignanda should take her Oath in Chancery Not to (k) Wingate Law c. 38. p. 60. n. 4. n. 6. Marry without the Kings License This is an Unreasonable Law and was one of those Badges of Slavery attending Knight Service-Tenure which was brought in by William the Conqueror and is contrary to that Law of God which gives liberty to all persons to marry onely in the Lord at their own will and pleasure 1 Cor. 7.2 9 28 29. Gen. 2.24 1 Tim. 4.1 3. 63. The Heathen Romans ordained Sanctuaries and were a grievance to the State Tac. Annal. l. 3. c. 7. p. 75. The King might notwithstanding the Statute taking away Sanctuaries appoint any place to be (l) Wingate Law c. 48. p. 68. n. 48. c. 40. p. 70. n. 69. n. 70. a Sanctuary or Safeguard for any Offenders flying thither although they had committed Murther and such Offenders once getting to such a Sanctuary shall not be enforced to answer any Indictment or Accusation for the fact but may confess the fault to the Coroner and abjure the Realm This is an impious Priviledge and the Oath unlawful as hath been before said and ought to be altered for that all men ought to be punished for great Offences 1 Kings 20.42 Prov. 28.17 Numb 35.16 19 31. Rom. 13.4 (m) Symson Church-Hist Cen. 7. p. 364. These Sanctuaries were ordained by Pope Boniface the Fifth (n) Res Sacrae sunt quae rite per Pontifices Deo consecratae sunt veluti aedes sacrae dona quae administerium Dei dedicatae sunt ut Calices Cruces thuribula Item loca sacra sunt Ecclesiae Capello coemiteria c. Cowel Inst l. 2. Tit. 1. sect 8. p. 81. Impr. Anno 1630. and are still available if the Lord Protector please and in our Law things made Holy or Sacred are not to be violated 64. That an Utlawry should be (o) Wingate Law c. 46. p. 86. n. 21. Judgement in it self for Felony is a hard and unjust Law because a man may be Indicted and Utlawed and never hear of it It is a worse Law then the Heathen Romans had which was That no man was to be Condemned nor Judged until the Accuser and Accused came face to face and it is contrary to those Laws of God which require all persons accused to be judged upon the Testimony of Witnesses 2 Cor. 13.1 Acts 25.16 Numb 35.30 Deut. 17.6 7. Joh. 7.51 65. The like may be said of that Law where a man may be judged to be branded dismembred and his life in danger for a few unadvised or rash words
the entry accordingly of persons acting and things done but nothing really except the parties coming to the Bar to do they know not what This is meerly a device or fiction to deceive and scrue morny from the people the very fees come to almost four pounds besides the fine upon the Alienation which is according to the value of the Land taxed by the Commissioners if above 40 shillings by the year it may be from 6 shill 8 pence to 20 pounds lesse or more All which might be saved if all mens estates were made fee-simple and the Statute de Donis Conditionalibus replealed or that the making of a Feoffment which is done by livery or the Inrolment of a Deed might discontinue the intail and Bar the Remainders In the mean while this Common recovery in regard of the expence is an oppression and the formality or rather subject matter of it being nothing but lyes whether Jocosa officiosa or perniciosa is against the Law of God Col. 3.9 Levit. 19.11 Rev. 21.8 Rev. 22.15 2. That Errours in Judgments and proceedings in the Upper-bench the Action being brought by Original should not be heard and determined but before the (b) Wingat Law cap. 47. pag. 89. N. 10. King or Lord Protector and Lords in Parliament seems to be a hard Law and at best is a Tedious and expensive way and so an oppression to the people and against the Law of God Ezek. 18.8 1 Thes 4.6 Isai 33.15 Prov. 22.16 3. (c) Westm 2. c. 1. Stat. de Donis Condit 27 H. 8. c. 10. Statute of Vses Châ—dlyes Case Coke l. 1. fol. 121. Intails upon the heirs males of a mans body with remainders over to brothers and after to strangers of the name to the disinherising of ones own Daughter having no Son is sinful and against the Judgment of Almighty God immediately given in the case of Zelopheads Daughter declared with an emphatical addition That this shall be a Law of Judgment c. That if a man have no Son his inheritance shall go to his Daughter There is a Custome in Ireland that all Lands which have not come to the Kings hands by surrender escheate Attainder or forfeiture The eldest Son of the house shall enjoy the same during his Life and then the second and third if there be so many Brothers before the heir in Lineal descent This is called the Custome of Tanestrie and the same grew by reason of their Civill warrs not only the greatest against the greatest but even every Baron and Gentleman one against another Therefore they left their Successors of Age to defend their territories Davis Report case Tanest Ra. Histor lib. 2. cap. 4. S. 15. And the same is a Law of Common equity not one of those Judicials which only did binde the Jews in their own Land but dictated to every man by the Law of nature which teacheth that a mans own child being part of himself is more dear and near to him then a stranger and hitherto is that to be referred He that provides not for his own and those of his own House first his own Wife then his own Children and then his Servants as the rest of the househould such a one hath denyed the faith and is worse then an Infidel Then are many of the Nobility and Gentry worse then Infidels whose inheritances upon such an Atheistical or Heathenish opinion as the builders of Babel had to get them a name least they should be scattered are turned from their Daughters to strangers and little or nothing left for them upon consideration of which a wise and Religious Judge once said I would surely make such mine heir whom God makes mine heir the contrary practise is against the Law of God and nature Numb 27.7 8. 1 Tim. 5.8 4. In a Replevin no man living knoweth what is the general issue to be pleaded by vertue of the last Statute and in some cases there can be no (d) This is agreed by the Protonotaries of the Common-Pleas and the practise is accordingly Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 1. fol. 14. Judgment to have the Cattle returned and when such Judgment hath been given and the Cattle taken upon a reâ—urn habend he that took them and obtained the Judâ—ment can neither use them as his own nor sell them nor can the former owner have them again but either the Taker muâ—â— keep them at his own charge until the owner will redeem them or they must dye in the Pynfold and then the Avowant who first distreyned may distrayn again and go to suite afresh and so be put to a circuit of Action which the Law in other cases doth disallow This is a foolish and ridiculous Law and against Common right and so against the Law of God every one ought to have recompence in his suite where the Law passeth for him Lam. 3.36 59. Amos 5.24 1 Kings 10.9 Isai 59.14 5. The practise in real and mixt actions occasioning (e) Stat. 51. H. 3. concern dayâ—s in Real Act. and Stat. 51. H. 3. concerning dayes in Dower many Delayes by Essoynes Adjournments Veiw Counterpleading Colour and Dilatory pleas is a great oppression by reason of the delay and unreasonable expence besides the nicety and thereby uncertainty in the proceedings where by mistake of a word syllable or dash with a pen or coming to adjourn an hour too late the Cause may be lost this is an oppression and a meer Trap to catch men and an occasion of much injustice for who will yield to any man his right where he hath hope to foile his adversary by any such trick or weary him at Law Job 22.10 Luke 18.4 Isai 59.14 6. Trials by Nisi prius in personal Actions begun in the Courts at Westm where the plaintiffe to have amends for a trespass or battery for which five shilling would satisfie him This is Common in evâ—ry mans Practise and needs no Proof must spend before he can have Judgment neer eight pounds and the Defendent about half as much although to his ruine and he must pay the plaintiffs charges and damages which is all in nature of Damages or lye in Gaol this is a grievous Law and not to be suffered but rather such Courts of Record are to be Cherished where a cause may be tryed for 30 or 40 shillings this were more for ease of the people and more agreeable to the Law of God 1 Sam. 12.4 Isai 58.6 Isai 5.7 and 33.15 Zeph. 3.1 7. The like and much more may be said concerning tryalls at the Bar Common Experience shews this to be liue which cannot be tryed if the Jurors come but two dayes Journy under an hundred marks and commonly there is much more spent This is a horrible oppression and such courses make poor men affraid to sue for their right and great men to Trample upon the poor the same is a crying offence against God Psal 73.8 Ezek. 18.8 1 Thes 4.6 Prov. 22.16 Isai 33.15
Psal 12.3 8. That a man being after some sleight manner assaulted with a small stick which it may be the party assaulted wayting for such an advantage by provocation did procure falls upon him that assaulted him and beats him so sore that he puts him in danger of death the party so beaten brings an Action of assault and battery c. the Defendant either pleadeth Son assault Demesne or pleads the general issue and by power of the last Act gives this special Justification in Evidence Then the only (f) Coke Entr. fol. 644. a. question is who began the affray and if it be proved that the plaintiffe who was so grievously beaten gave the first assault then he loseth his suite and must pay the Defendants Costs In point of Conscience it ought to be considered aswell who had the hurt and losse as who began This is an incouragement of private revenge Lord Bacon Essayes Title Revenge which is term'd by that learned St. Francis Bacon a kind of wild Justice which is to be weeded up Rom. 12.19 Prov. 2O 22 9. The same may be said of that Law as it is now in practice This is likewise the Common Practise If upon a slight occasion first offer'd one man kill another The Jury usually find such a man guilty of Manslaughter in his own defence I confesse the Ancient Law hath been that no man could be said to kill another in his own defence iâ— he could have escaped from the party and inâ—â—ances of â—uch ineâ—itable necessity are shewed where a man is pursued to a River or a Wall or as far as he can go and then must eithâ—r defend himself by offending his adversary or yeiâ—d to be slain In such a case it 's better to kill then be killed and Justifiable by all just Laws whatsoever but the practise is after another fashion as above said and against the Law of God there is a difference to be put between him qui infert Injuriam and him qui propulsat Injuriam Weemse M. L. Com. 6. Exercit 7. pag. 115. 2 Kings 6.23 Rom. 12.19 10. The practise of suing a man to the Exigent This is every Terms Practise and observed both by the officers and practisers where there are four Writs viz. the Original Capias Alias and Pluries which should every of them have fifteen dayes at the least between the Teste and Return and were anciently return'd by the Sheriff from whom regularly the Defendant might hear of the suite But now as the practise is in the first week of a Term these four Writs may all be sued forth filed and the Exigent and Proclamation taken out in a day or an hour And in this case if a poor man be sued for a debt of forty shillings or any petty trespass he shall never hear of it until the plaintiffe hath spent 15. shillings 7 pence and if so soon as the Defendant hears of it he pay the debt or agree the trespass it must cost him that 15 shillings and 5 pence and 5 shillings more to withdraw the suite But if the Defendant never hear of the suite as it oftentimes falls out until he be Utlawed the Reversal of the Utlawry costs him above thirty shillings and if he be taken upon the new Orders he must procure a Supersedeas and reverse the Utlawry by a writ of Errour which will cost him above 40 shillings and all this is said to be for the benefit of the Court that is the inriching of the Offiâ—ers A Summons with a penalty in Terrorem like a Subpoena were a more equal just way for that experience shews that where one of forty fails to appear upon a Subpoena there is not one of five who appears upon common Processe This ought to be amended as an oppression of the people Isai 33.15 1 Thes 4.6 11. The Law imposing the forfeiture of a mans goods and Chattles for flying for felony (g) Every Jury which passeth upon a felon hath this in châ—rgâ— alâ—hough they finde him not guilty yet they are to enquire and presâ—nt whether the fâ—lon did flie for it and then what goods and chattels he had c. as it 's now in use is an unjust Law Suppose a simple man being questioned or suspected of felony or if such a thing be pretended and the poor man unwilling to fall into his Enemies hands fearing their power or malice or being fearful of Imprisonment foolishly runs away and absents himself some short time afterwards yeilds himself being better advised and upon his tryal is acquitted but upon the evidence he is found to fly for it in this case he loseth all his goods There is no reason that a poor man in such a case should lose all his goods and Chattles if he be not guilty of the felony his flight was but to save himself and every creature naturally seeks its own preservation if the poor man had resisted the Officer or those who pursued there had been some colour to punish him and so if he had been guilty of the felony he must have suffer'd the Law But the losse of all a mans goods and Chattles if he had five-fold as much as was stollen might be too great a punishment if he should be found guilty much lesse should he lose all for flying when he is not guilty 2 Sam. 15.11 Rom. 15.1 12. This is likewise admitted in all Courts If the Jury will believe the witness a single witness is sufficient Cons Norm Tit. Privil Crucis fol. 139. a. That any person charged with any offence touching his life or member should be convict upon the Testimony of a single witness is an offence against the Law of God and contrary to all Rules of Scripture The civil Law is in this point more agreeable to the Law of God and so likewise was the Law of Normandy which determine the Testimony of one single witness insufficient to charge any man in the cases aforesaid And the like may be said of a single evidence in personal Actions where there are not other circumstantial proofs evidencing the matter in question that no Judgment is to be grounded thereupon Deut. 17.6 2 Cor. 13.1 John 8.17 Matth. 18.16 Heb. 10.28 Numb 35.30 13. The like may be said of the tryal of men charged with felony or other such like Crimes the Prisoner hath not liberty either to have witnesses sworn for his defence to clear him nor admitted to have any Counsel (h) Wingat Law cap. 40. p. 70. N. 64. if he deny the fact although there be a Lawyer as Eloquent as Tertullus against him unlesse he come in upon his traverse that is if after the Bi l found and presented by the Grand-Jury the Prisoner can provide three pounds or more to pay the fees of the traverse he shall be allowed Counsel for his mony but if he be a poor Thief and hath no mony he shall have no Counsel however the Judge will hear his witnesses
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
Creatures he prohibited under a severe penalty Prov. 12.10 Deut. 14.21 Exod. 23.19 66 That Men-stealers be punished by losse of life and as the greatest Felons in the World Exod. 21.16 Deut. 24.7 1 Cor. 6.6 67 That Marriage of children without Parents consent be disanulled and Marriages with Infidels prohibited Ezra 9.14 Gen. 27.46 Mal. 2.11 Hest 1.22 Numb 30.5 68 That strange fashions and Whorish attire be prohibited by Law and all persons ordered to wear Apparel fit for their degrees and callings Zeph. 1.8 Isa 3.18.19 Prov. 7.10 Gal. 5 9. Deut. 7.3 69 That the matter of divorce be setled in the Magistrate onely in case of Adultery that Marriage likewise be solemnized in the presence of some publick Magistrate in an open place after due publication Ruth 4.9 Math. 19.9 Mark 10.12 Luke 16.18 70 That unlawfull Magick and the Rudiments thereof Judicial Astrologie and all other such wicked Arts be prohibited under severe punishments Deut. 13.1.3 and 18.10.11 Ezech. 21.21.22.23 Dan. 2.2 Jer. 10.2 71 That Heirs may be bound to pay the Debts of their Ancestors after the Lands which descended be sold as well as before so far as the Land extends and that an Action of Accompt or Debt upon contract may lie against an Executor or Administrator for the Debt or duty of the Testator so far as he hath assets 2 Kings 4 7. Prov. 22.26.27 Rom. 13.8 72 That the Processe in all Cases of Suite be onely a Summons which being duely served if the Defendant refuse to appear or shew not sufficient cause to the contrary the Plaintiffe may proceed to his proof and so to hearing or trial as if the Defendant had appeared Numb 16.11.14.28.32 Deut. 25.8 Hest 1.10.11.19.21 73 That no man have final Judgement against him by default without proof in any Case be it never so small unlesse the party accused do at the time of the Judgement openly confesse the fact Numb 35.30 Deut. 17.6 1 Kings 8.31 74 That common lyars and Inventers of false news slaunders may be punished as disturbers of the peace Psal 101.7 Prov. 26.20 Levit 19 16 75 That the Superstitious and Paganish names of the moneths and dayes be changed and called by the names of first socond and third c. according to the Scriptures Levit. 20 23. Exod. 12.2 Deut. 12 3.4 Genes 7.11 Genes 1 5. Ezech. 32.1 Psal 16.4 Exod. 23.13 76 That the body of the Law may be collected into a volume that it may be known to the Supream Magistrate and to the Judges and the people 1 Sam. 10.25 Deut. 17.18.19 Exod. 20. from verse 3. to the 9. verse of Chap. 23. Hester 1.19 77 That all the Tythes and Gleab Lands with other things called Church dues may be sold and that a more fit and lawfull maintenance be provided for the Ministers of the Gospel Hebr. 7.9.12 1 Cor 9.7.8 9 12.14 Gal 6 8. 78 That no Monarch or Supream Magistrate may usurp that Impious priviledge to pardon murder if ever any such pardon should be granted in any age hereafter the same may be declared void Numb 35.31 Levit. 24.17 Exod. 21.12 Jam. 4 12. Prov. 28.17 79. That some course may be taken by a Law for ballasting the Trade of the Common-wealth and for relief of the Inland Cities and Towns of the Nation 2 Cor. 8.13.14.15 Exo 16 18 Josh 13.32 80 That Godly learned men may be incouraged to labour the conversion of the Iews and to that end to learne the Portugal's and Italian tongues that they may be able to preach to them for that in most part of the World they understand those Languages Rom. 11.25 26. Isa 43.6 and 59.20 and 60. whole Chap. Rev. 81 That interest of money be not suffered to run or be exacted upon poor people which borrow for their necessitie for food and cloathing or grow poor by the hand of God Neh. 5.10.11.12 Exod. 22 25 26 27. Levit. 25.35 36. 82 That all Laws which upon examination shal be found repugnant to the Laws of God or oppressive to the people may be repealed Mich. 6.16 Psal 94.20 Isa 10.1 2 3. 83 That Guards of Souldiers and Armes are necessary and to be used for safety of the Common-wealth and of the Princes person 1 King 1.38 2 Sam. 23.8 to the end 2 Sam. 20.23 2 Kings 11.8 2 Chro. 23.7 10. FINIS ERRATA IN the Epistle pag. 2. lin 5. add he before little lin 13. for of read and. pag. 13. and pag. 16. in the Margents for Cok. read Cock pag. 49. lin 19. for chuse read cheat and lin 20. for use read trust pag. 56. lin last save one for deductions read dedications pag. 61. lin 14. for habâ—ntes read habentis pag. 63. lin 21. add help pag. 87. lin 2. for fined read feigned pag. 106. lin 2. for maney read money and lin 6. add it pag. 108. no. 3. add been and for started read sterved pag. 109. lin 1. for excrementious read excremâ—ntitious pag. 114. lin 4. add on lin 6. put out some pag. 116. lin 18. for were read was pag. 117. lin 8. add of pag. 123. lin last for Judges read Indiâ—s pag. 121. lin 12. for Balington read Babington pag. 128. num 22. for seeing read seeming pag. 131. num 29. lin 9. add but. pag. 132. lin 1. add punished pag. 133. for in estate read intâ—statâ— â—ad lin 8. add nor ead num 35. lin 6. for some read come pag. 135. num 39. lin 10. for purâ—ly colouâ—ed read paâ—ty coloured pag. 139. num 40. lin 8. for counsels read Consuls pag. 140. lin 14. for Ciâ—y read Citiâ—s pag 145. lin 3. add l. pag. 146. lin 16. add noâ— pag. 148. num 1 fo Summe read Summons Scripture-Groun num 46. to be to be read before brought up
Law of the 12 Tables is said to be the end of Law and Equity Tac. 1. Annal. l 3 c. 5. p. 71. Nature holds forth but one Light to men and God gives but one Law to Christians This is the end of Magistracy The Execution of Justice which in their hands whether Supreme or Subordinate is that Vertue which is commonly called Distributive Justice and comprehends in it (c) Equity is the Law of Nature to which all men are bound That is honest which is agreeable to the Equity of Nature Bod. Rep. l. 1. p. â—05 Equity and the same likewise is called Righteousness Now that Justice and Equity are the same thing there is nothing more clear as Aequum Justum are Termini convertibilés so are Justice and Equity (d) Weems M. L. Com. 8. Exerc 8. p. 225 230. Godw. Antiq. Rom. l. 3. sect 4. c. 1. Isa 59.13 14 15 Prov. 17.26 And these are indifferently taken one for the other in the Holy Scriptures Isa 59.14 Justice standeth afar off and Equity cannot enter By these two words is elegantly set forth the Injustice of the Magistrates who had to do in execution of Justice and Judgement as is there expressed The same appears in that place of the Proverbs To punish the just is not good nor to strike Princes for Equity It is an evil and wicked thing to punish men for doing that which is just or to abuse Magistrates for executing Justice Coloss 4.1 Col. 4.1 Masters give unto your Servants that which is just and equal The two words there used are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are indifferently taken one for the other and either of them signifie just or equal Phil. 1.7 Phil. 1.7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montanus translates it Sicut est justum (e) Pasor Lex p. 187. a. 2 Cor. 8.14 Pasor in his Lexicon renders it Prout aequitas postulat 2 Cor. 8.14 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this is Englished That there may be equality The same word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is translated by the (f) Pasor Lex p. 343. a. Learned Aequalitas aequitas justitia and so it 's indifferently used for either Equity or Justce which are the same thing being referred to the act of the Magistrate in distribution of Law or Right (g) Psal 98.9 1 John 3.7 And Almighty God is said to Judge the World with Righteousness and the People with Equity The like appeareth in many other Texts of Scripture And in the same sense these words Justice and Equity are indifferently used by Profane Authors to signifie the same thing and they are onely distinguished thus (h) Franc. Sylvii Com. Orat. Cicero pro Murena Tom. 1. p. 771. Aequitas est ratio Legis Jus vero sententia ipsa so that Equity and Right are not administred as several things (i) The Law without Equity is as the Body without the Soul The least Judges have power to judge and give sentence according to the equity of the cause Bodin Repub. l. 6. c. 6. p 763 764. but the one is in the minde of the Judge the other more perspicuous and both made up the act of Justice And the same Author chargeth it as a fault that Usu saepè venit ut inter se pugnent Juus Aequitas In this sense the Lawyers themselves have used Lex for Jus and Aequitas or the one for the other (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Finch c. 1. f. 1. Consuet Norm tit de Jure fo 125. tit de Justit cod Cust Norm tit Justice pag. 7. B. Arist Eth. l. 5. c. 41. Lex dicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à distribuendo que ceo distribute droit a Chesc ' Because it gives Right to every one The very same words are used in opposition of that Law of the Romans called Lex (l) Eubul Din. Scho. in Orat. Cicer. de Lege Agraria tom 1. p. 710. This Law was for Division of Lands amongst the poor Commons being sound in the possession of private persons Tit. Liv. l. 2. p. 71. c. Agraria where the Commmentator in his Scholia's upon Cicero's Oration against that Law saith Lex suum cuique tribuit and thence reasons and concludes Logically thus Maj. The Law gives to every one Right Min. This Law doth not give to every one Right Concl. Ergo haec Lex Justitia non est Let our Law and Equity be laid to this Rule and see how any man living can defend both A poor man for Example is bounden in a Bond of Twenty pounds conditioned for payment of Ten pounds with Interest which Bond is forfeited because the Money was not paid at the day although it was paid two or three years after and nothing unpaid but Interest The Creditor puts this Bond in Suit it may be either out of meer covetousness or to hook in some other pretended Debt or Duty The Defendant pleads Condition performed or upon the general Issue gives in Evidence the payment of the Principal three years after the day limited in the Condition The Judge in such case must give direction for Law That the Jury must finde for the Plaintiff for that the Defendant (m) Justitia legalis stricte sumpta quatenus opponitur aequitati est iniquitas c. Amesii l. 5. de Conscientâ—â c. 2. p. 269. Finis Legis est Justitia Coed Rhod. l. 13. c. 19. p. 697. must have his Remedy in Equity and accordingly a Verdict is given for the Plaintiff And the Defendant preferreth his Bill into the Chancery and therein alledgeth all that is true and somewhat more to make his Bill hold and if the Plaintiff at Law get Judgement entred before the Bill come in which may be had the first week in the next Term after the Tryal there is an end of the Suit the poor man hath had Justice Summum Jus that is the extremity of the Law which is Summa Injuria and his Adversary hath Execution against him for the Twenty pounds Penalty and Eight pounds for Costs which is given in nature of damages This he Defendant must pay or lie in Goal and the Law as it is Justice in conceit cannot relieve him Well the poor man hath it may be got a Reprive upon preferring his Bill the Plaintiff at Law is either in Contempt or prayes a Dedimus Potestatem to answer in the Countrey or it may be in his Answer confesseth part of the Money paid or else that the Bond is ancient Hereupon the Complaint in Chancery obtaineth an Injunction and in short goes to Commission and brings the Cause to Hearing and hath a Decree That the Plaintiff paying the Interest which may be some thirty shillings and Costs which may be five Marks besides the aforesaid Eight pounds the Defendant who was Plaintiff at Law shall acknowledge satisfaction of the Judgement and deliver up the Bond. The Decree is inrolled and the Defendant served with a