4 If the ordinary Judges be not meet give sufficient assistance 5 Manslaughter Bailable by a certain imposition 6 All idle persons not able to give account how they live to put in good bail or go to the Work-house or c. 7 Councel to be admitted all men but one and no more and he only to speak as to matter of Law if dissallowed and the Counsel will appeal let him put it under his Hand and then the Itenerant visiting Judges to allow or disallow and punish as they see cause Chap. 40. p 162 163. shewing 1 That debts are to be recovered 162 2 First out of the personal estate if that suffice not then out of lands 3 The abuse of this discussed 4 The way to enter a Plaint opened 5 If satisfaction be not what to be done Chap. 41. p. 164. shewing 1 Wherein the great Charter of the Subjects priviledge principally rests 2 A speedy and safe way for trial of doubts for lands propounded 3 Affidavit under Hand Seal of a Justice with another witness to make two witnesses in Law 4 Obedience must be rendred to mistaken judgements 5 The unjust complainer or detainer to be fyned Chap. 42. p. 164. shewing 1 Courts of Equity may be allllowed but 2 Not till the Equity appears to the ordinary Judge of Law and be by him transmitted to the Chancery upon his Oath 3 Let then the Decree pass within a time prefixed under a severe penalty 4 Let all Orders be read and ingrossed as made in Court and signed 5 Objections against Courts of Equity Chap. 43. p. 165. shewing 1 That experienced evils must by lawful wayes be remedied 2 The work of Equity is fit generally for a diverse Court Chap. 44. p. 165. shewing 1 Students of the Municipal Laws of any Nation worthy honor 2 It s necessary to have sufficient incitements thereto 3 These were heretofore too great and were grown destructive 4 The duty and end of Pleaders laid down 5 The fit way of their due ingagement to the Commonwealth 6 The respects due in that course to them 7 The Objections vain or of little weight to the benefit Chap. 45. p. 166. shewing 1 The use and conveniency of Practizers as Attornies 2 That many must not be admitted 3 Their Fee to be set by the Magistrate 4 They and Lawyers to be fined in case of misdemeanor Chap. 46. p. 166. 1 That its fit to administer Oath to the Debtor of the true value of his estate 2 If this will not satisfie it s more beneficial to the State and to the Creditors benefit unless to satisfie the appetite of Rereage to make the debtor a servant then a Prisoner if servitude be lawful Chap 47. p. 67. shewing 1 That the all-wise God instituted servitude therefore not simply unlawful 2 The real wisdom to a rational man of that institution 3 Boundaries must be with Christians to the Masters power if allowed 4 Reasons why debtors should either be prisoners or servants 5 Whether the wife and children are to be servants with the husband and father 6 Good government will make that few servants thus will be ingaged Chap. 48. p. 168. shewing 1 What Vsury is 2 The reason why it came to a settlement and was made a Law 3 That farming of Lands came in upon the like reason 4 The loser and ill husband only complaines of both 5 That its looseness of Government pride laziness and gluttony more then moderate use that undoes any man ordinarily So over-purchasing 6 That Vsury is not forbidden Christians 7 No difference twixt that and letting lands if any 8 Mony more advantageous 9 Both fit yet to be moderated by the Magistrate Chap. 49. p 169. shewing 1 That tortures are against the light of Nature 2 Against Christianity 3 That though evils have been dâ—…ected by it yet not being a certain rule it s not to be practised as a Law by Christians Chap. 50. p. 169. shewing 1 That all publick Offices are to be born by the publick purse 2 That the Offices and stipends ought to be made certain 3 What is the publick Revenue Chap 51. p. 170. shewing 1 That ideots and mad men must be adjudged and provided for by the Magistrate 2 Their estates ordered for the benefit of their wife and children and self 3 For this Judges in certain must be appointed and their power Chap. 52. p. 170. shewing 1 That Bond or Copyhold tenure was but a dependent upon Knights Service and the rest and they gone that should go 2 The Nature of the thing wholly ceases so should the Law 3 That the continuance is not only illegal but visibly destructive to the Common-wealth by unjust dependences 4 How to settle it legally if not oust it Chap. 53. p. 171. shewing 1 How frauds grew notorious 2 The difficulty to get Laws against them or punish them nourished and encouraged thereto 3 The best way to prevent them 4 The Legal cheat of custome contrary to Law 5 Fit to settle Disputes of Inheritance justly 6 The punishment of frauds Chap 54. p. 172. 173. shewing 1 Errors in Magistrates or Laws breed dislike of both 2 How England stands so affected to Juries 3 Justice is above Magna Charta and works no dispriviledge 4 What to be done with Christians before suit commenced 5 No suit till a Magistrate legally deputed allow the same 6 How to be entred for a Tryal 7 Within how long time after cause of complaint 8 How the Defendant is so brought to Answer 9 Tryal to be speedy 10 Jury to appeal how many to a Jury 11 How to be qualified and the reason 12 How Judges of Law and how to be punished in case of Error 13 bound to give the Court reason for going against their evidence 14 Other Qualifications requisite 173 Chap. 55. p. 173. shewing 1 That judgement ought immediatly to follow the Verdict unless just cause in Law appear 2 Execution ought to follow judgement and for both let the value be secured or deposited 3 If the person be present to sign the judgement and give caution to perform it or be imprisoned if able 4 If no Execution within twelve months after judgement Judgement to be void Chap. 56. p. 173. shewing 1 Offenders in putting in unfit Jurors to be fined 2 They also that draw Jurors Chap. 57. p. 173. shewing 1 That no man should be distreined in that whereby his Family immediatly lives 2 That due apportionment of distress for publick Service ought to be Chap. 58. p. 174. shewing What punishment is fit to be in cases of waste Chap. 59. p. 174. shewing That Commons are one of the great sores of England 2 The several sorts of Commons and why and how granted 3 The rule of Commoning is now lost 4 The evils arising thereby 5 The Remedy 6 Free Warrens and Fole courses considered 7 Now an opportune time to settle all advantageously and how Chap. 60. p. 175. shewing 1 That certain Magistrates must be
be composed if this will not do let a Magistrate allow a legal controversie Then let his Case be set down specially as it is after the nature of an Action upon the Case and let Oath be of the truth of it and that he is able to make it good by Law let the Case barely be stated no Conceits no Opinions but the naked truth which the Complainant is to make good Let this alwayes be within twelve moneths after cause of Action Then let a Summons go to the Defendant by a sworn Officer from the Court or the party or some other making Oath of the Summons if he appears not let a Note be fixed to his door under a severe penalty to any one to take off requiring appearance or to shew Cause if neither be done let the Trial immediatly be awarded if he appear let the day of hearing be ordered and entered in the Court-book and that truly by the Clerk under a severe Fine immediatly to be deducted by abatement in his Salary after which time let a Jury of twelve or six men for it is not the number that doth the work I think six best but that contest is not worth the while the alteration of an old received way is the greatest objection be warned not under the penalty of twenty or one hundred pounds and nothing ever paid but of ten or five shillings to be assuredly levied to the States use immediatly of Course unless sick in bed or otherwise imployed in the Service of the Commonwealth in the County above twenty miles or hindred by Providence which Causes sworn and allowed may excuse or essoyn him for not summoned the Officer is sworn and must admit no present contest Now the men must be knowing understanding men and of estate to answer dammages if that be continued if they give a false Verdict which is just being they are properly Judges of the dammage now if they and the Judge differ upon the Law let them do it at their peril for the Case let it be stated the Judges and their hands with the Counsel present set to it and let the yearly Judges decide it and if the Judge be faulty let him otherwise the Jury be fined to the State and if they give a false Verdict that is go not truly according to what is truly alledged and proved unless they or some of them of their own knowledge know the thing of which they are bound to give the Court publike Cognizance for Juries as other Judges are under a Rule of Reason and Common Justice then Jurors must be of the next inhabitants to the place where the fact was Committed of the vicinage neer dwellers so that they know the parties their lives and conversations and thereby judge But there ought to be no relations of Consanguinity or Affinity within three degrees for although spiritual or publick relations ought to be preferred above natural yet this is now little known less regarded Lastly he must not be who is a Jury-man a common Swearer Drinker Company-keeper nor ejected any congregation as an evil person an offender against the peace and quiet of the Nation or one that hath declared his opinion before sworn It is agreed it is best object against the Juror before sworn but what the court is mistaken in ought not to be proceeded in therefore till they be as we say gone from the bar just objections may be offered but the Judge must not allow objections as to favor or surmises after sworn if it be let it be proved for let no Juror after sworn be dismissed but the reason recorded and this proof is easie and then let him be fined When Judgement ought to be and Execution And when void IUdgement ought immediately to follow Execution unless some just cause and that only in Law be offered and for execution notwithstanding the cause which may be for delay alledged let the goods be secured or the money deposited or no cause allowed And if the party be present let him enter caution immediately to perform the judgement or otherwise to imprison his person is not dispriviledge if he be able till he performs it let the caution be setting his hand to the judgement which ought to amount in Law to above all Statutes or Customary Judgements alwayes provided if the execution be not within twelve moneths upon any Judgement whatever the Judgement to be void for the long hanging of judgements and other securities is also legall injustice I say no more Offendors in impannelling Juries Imbracers and the like FOr offendors in putting in knowingly unfit Jurors in any kind let them be fined and the Fines high and deducted out of their salary if any in hand otherwise by distress besides loss of that place and disabled of any other for at least some years for it must be perjury for he is a sworn Officer For drawers of Iurors or informers of them aforehand to draw them to one party let all be upon presentment and tryed and fined What Distresses are lawful THe Law is just that no man be destrained in that whereby he principally earns his living if ought else be But to distrain one man for a Fine due from a Hundred Town c. this is hard without speedy remedy is unjust let this be generally committed to a Court and right done as the fact appears that is let an equal rate be and the Constable and Overseers gather it and pay it immediately with respect to his dammage adjudged and set and if they will not let the Court enforce the rate and all charges upon it and so in all other Cases What to be done in cases of waste c. IN case of waste let the forfeiture be certain for Tenants for year by Lease let it be their Term except an incom be and for that let a Jury mitigate For Guardians of Infants Tenants for life and the like let it be treble dammages those to be assessed by a Jury What to do in Commons THis is a matter of large extent and is one of the great sores of England which wants healing Our Commons are either appendant appurtenant or by reason of vicinage and were originally the relief of the beasts of the Plow and for the breed of young Cattel for the Freeholders and do primarily belong to them and as their Farm was so might they put upon the Common greater or lesser quantity of Cattel according to proportion But long since the rule of Commoning was lost and Commons are become the ruine of the generalty of the poor to whom Commonage belongs not For first they get a Cow in Summer and live idlely of that and not providing against winter they buy dear in the Spring and sell cheap at winter and the rich so long as the purse payes not few regard how things go by this at last miserable and remediless beggery ensues besides the general neglect of Commons as of all matteâ—… of publick interest whereby many poor are undone
in Germany and England ibid. William so called the Bastard or the Conqueror admitted King of England his claim his reign ibid. His politique settlement p. 24 His successors tyranny p. 25 The opposers and how quelled ibid. The gate God opened for freedom p 26 Magna Charta and Charta De foresta granted ibid. The Pleas of Kings against them ibid. The Judges and Lawyers absolute interest serving Kings tending to enslave the people ibid. Some Judges hanged for it ibid. The contest briefly examined pag. 27. Why the Pope suffered these contests ibid. The Popes policy to avoid Reformation from Princes ibid. Gods witnesses against Romes signs and her dealing with them ibid. The Pope and Princes strengthen each other pag. 28. The Kings of Englands best title is from Parliamentary elections and the reason ibid. Princes liberality to the Churches ibid. Parishes erected ibid. God still raises up witnesses against Rome ibid. Incestuous Marriages from the Popes dispensations in most of the chief Families in Europe pag. 29 The Kings labour to exalt Prerogative ib. The settlement of the Court of Kings Bench Common-Pleas Chequer c. ibid. In whom the choice of Judges and how ibid. Court of Wards erected c. ibid. Court of Star-chamber erected ibid. Admiralty and others Courts c. ibid. Luther and his Quarrel with the Pope pag. 30 His Doctrine ibid. His Abettors few if any ibid. His opposers all Christian Princes ibid. Hen. the 8 th of England writes against him ibid. The reason of the Princes siding against Luther ibid. Henry after quarrels the Pope The Reason ibid. His halting twixt Popery and Protestancie He seizeth the Monasteries c and the reasons pag. 31. How he rewarded his instruments ibid. Edward the sons zealous Reformation ib. Maries cruelty pag 32. Elizabeths deliverances and succession ib. Popish plots against her upon Reformation ibid. Englands laws distinguish twixt a Papist in Opinion and in Faction ibid. Englands Law at Elizabeths coming to the Crown ibid. Recusants why so called ibid. All Protestants agree not to Elizabeths Reformation ibid. Their Reasons and uninterestedness p. 33 Some of the Parliament men questioned by the Queen ibid. How she misliked the so called zealots ibid. They flie into Holland and they print freely ibid. Against both Magistracy and Ministery pag 34 Yea against the Queen in regard of manifest error continued both in Church and State ibid. Her Potency and relief to her Neighbours ibid. James succeeds Loves not Puritans ibid. Yet distasts them not ibid. Advances the Interest of Prerogat Courts ibid. Takes away the good old lawes to increase revenew ibid. The succeslesness of His wise Councels p. 35 His policy to subvert the freedom of Parliaments ibid. His way discovered ibid. The end then aimed at the subduing Scotland absolutely ibid. The Court party ibid. The King would not agree to Arms. pa. 36 The cross dealing of the Scotch Presbytery with King James ibid. Some lawes made in King James time how diversly executed ibid. Charles Crowned with great joy ibid. Disgusts against him in his first Parliament ibid. He gets mony and dissolves it ibid. Breakes his Royall word so called in his grant to the Petition of right pag. 37 The State of the Church here at the beginning of and during his reign pag. 37. 38. and 39. in the pride and dependance of the Hierarchie seeking by unjust wayes to raise private estates out of the Church revenues ibid. Their little regard of Blasphemy drunkenness c. ibid. All they sought was unity and by uniformitie ibid. Hate against good men ibid. Their policies to bring in Popery ibid. Some of their errors repeated ibid. The civil state considered pag. 39. 40 The King lost his Militia in all kinds ibid. His Lords given altogether to vain sports c. ibid. The Gentry follow them and the Yeoman them and so all order is broken ibid. Justice wholly turned into form and practice and destructive in all the pooceedings of Law pag. 40. 41. 42. 43. 44. So the first step to introduce generall poverty pag. 45. 46. And that demonstrated by consideration of the parties suing ibid. The process what whence and by whom ib. The Courts of Tryall above and below ib. The Attorny and their practice p. 43. 44. Declaration and Plea ibid. Issue single and double ibid. Jury ibid. Verdict ibid. Stay of Judgement ibid. Judgement ibid. Stay of Execution ibid. Remedy in Chancery the worst evil p. 45. 46 Sollicitors what c. 44. The reasons of all this Error pa. 45. 46. Priviledge of Persons and Places discussed pag. 46 Witnesses and the abuse in them ibid. Most ordinary matters in practice undetermined in Law pag. 46. and 47 Cheatings in Bargains sales and all conveiances pag. 48 Englands Law practicall only so that Government was subverted pag. 48. Coppy-hold or base or villein tenure discussed pag. 48. 49. Want of Forcing Plantations another causes of Englands povertie ibid. Inns Alehouses and Taverns another cause ibid. Marrying of the poor too young another cause and debilitates nature and makes unfit to labour ibid. Englands good lawes for maintaining honest laborious and punishing idle ones enervated and neglected pag. 50 Considerations of binding out poor children apprentices by the Justices of the peace p. 50. Difficulty and varieties of Lawes the Lawyers Gins evidenced ibid. The Criminall part of law neglected and how pag. 51 The policy in ruining the old frame of Englands Government ibid. The policy to evade the discovery of this ibid. London the great Monopol of Trading pag. 52 Monopolies one of the Royall trades ibid. The Kings policy in ship-mony and the end ibid. Kings Charles intends War pag. 53 Intends an alteration of Government ibid. That the alteration was made of necessitie ibid. For a ground he imposes the Eng. Liturgie upon the Scots ibid. His carriage to engage a deeper War ibid. He is necessitated to call a Parliament p. 53 Breaks it and necessitated cals it again ibid. The King seekes mony pag. 54 The King disables himself to dissolve the Parliament ibid. The Parliament questions Strafford ibid. His pleas the Parliaments answers ibid. The King attempts upon some Members ibid. The Parliament sets a guard ibid. The King practizes the Army ibid. 400000. l. Raised and the Army disbanded ibid. Ireland almost lost ibid. The dislike of the people to the Kings encrease ibid. The Bishops questioned and discarded ibid. The King flies pag. 55 The Parliament arm ibid. The King fled the Convocation follow ibid. Many Lords and Commons go also ibid. These he cals his Parliament at Oxford ibid. The Lord Keeper flies to the King ibid. The controversie twixt King and Parliament as it stood controverted between them ibid. The Nationall Covenant agreed on ibid. And the Nature of it ibid. The Kings aime in setling Government pag. 56 Exemplified in a demonstrative particular ibid. The disadvantage to the Parliament by being only defensive ibid. The divers interests that followed the divers
and such like epithites which some mens zeal bestow upon it cauterised under the scourge and lash of a long pilling polling suit hurried from Town to City from City to Country from Court to Court Hearing upon Hearing Order upon Order Judgements and Verdicts both so called and yet in a labyrinth not onely Term after Term but year after year and still almost as far off as ever if not further no I aim but to give a clear light that our Laws practised are not the Laws of the Nation that is a set rule of Justice but usurped upon us by evil men they are as practised neither according to natural reason the foundation of the Laws of Nations nor Religion the Law of the Almighty Wisdom pardon my zealous digression I now return to what I had omitted which is that by Law that is the custome allowed A Sheriff or under-Sheriff shall make Returns of Course onely for the benefit of Officers as for example that the party was not found within his Baylewick or that he hath no goods c. when both are contrary yet he is sworn to excute all Writs truly but this is no perjury by or within the judgements of any the English Judges because not being within the niceties of their wise sayings or resolutions no more then thousands of other perjuries which though they may excuse themselves for because the Laws of the Land so called look not at them as the Judges of such perjuries yet that they get no other Law established seeing the great want for redress of such matters they finde before them will be their or the Lands afflictions at last but to go on in a course of Triall These difficulties over I must now put in my Declaration that is the narration of my complaint into the Court in writing and that not in English but Latine though I understand never a word and that in the form the Law requires though I can tell no more then the meer matter of my wrong And in the same manner must my adversary so called also though little wiser then my self But to help out this we have Attorneyes so called allowed Deputies to answer for us skilled in the way of practise and these men they do even do what they list for the Client so called is seldom knowing of practise and he hath so much first for his Fee then drawing the Declaration or Plea which is either general or special and though done with much difficulty and charge is oft mistaken the one for the other again double pleas are exploded and though great advice taken which matter to plead the best is left and so left remediless at Law unless a new bout in another Court help him or else the Chancery either of which remedies is generally worse then the disease Now the reason of Attorneys was this as riches multiplied pride and outward pomp encreased long suits came into fashion and to maintain Officers it was laboured for to avoid further suit by these means to bring all Trials to the upper Bench or common Pleas c. And pleadings ordered wholly in form and in Latine which what for ease and what for the so pretended being so made necessity namely keeping of Records as presidents they were admitted and to get an Attorney was difficult in such chargeable prosecutions which to remedy they were allowed privilâ—dges as Officers in some Courts yet being the Clients Deputies they were the Plâ—…ders or Serjeants I say no more servants and carried their baggs as divers of them did throw in their teeth upon discontent though they have now almost shaked the yoak off their shoulders Give me now leave a little to speak of Attorneys and their practise which almost over-ruled the whole Law First the Judges though the Licenser or allower of Attorneys yet receiving great part of his extraordinary revenue from him as upon Fines c. Next the Serjeants upon all special pleas and the Serjeants and Câ—…ellor upon all legall proceedings the â—lient being generally if not wholly led by the Atturney they were the principal men and Lawyers grown numerous many would covenant to have half Fees with the Councel I profess and averr that a late Judge did being a Serjeant declare it to me as an audacious part of I. B. whom I then found going from him with these words Paultry saucy Knave cast after him by the Serjeant But assuredly they were grown very knowing in the practical part of the Law and some of them have among multitudes of more had these abusive practises laid to their charge against the Laws as taking of Capias's from the Common-Pleas yet never filing an Original This redounding meerly to his profit abusing the Officers of the Court to inrich himself and not advantage his Client for the Cursitor so called looseth one shilling the Philizer one shilling two pence c. So that the Writ which is six shillings two pence cometh onely to him except for the Seal seven pence and if this be discovered before Iudgement though after Verdict I believe it would overthrow the whole proceeding So in suing forth the Capias utlag For whereas upon true practise a Capias being awarded to the Sheriff who by wicked custome not looking after him returns a Non est inventus that is upon a Writ to take his body the Sheriff though he might take him returns him not found whereupon another Capias or Writ to take his body wherein of Custome as aforesaid the Sheriff again makes such a perjured in Christian acceptation return again then goes forth another Writ mentioning what ado they have made to get him and oft times he is out of the County indeed it being done of purpose in another County that he might not know it and then for his contumacy he is exactioned proclaimed and out-lawed and this oft in two Terms which ought to be done in five by the Law but little justice in any part of it though spetious in pretence yet if the Capias were delivered to the Sheriff there were some rule observed but the knowing Atturneys can do it themselves using the Sheriffs name who never sees the Writ and did he not one of a hundred can tell what to do but by his under-Sheriff a late constituted Officer upon the high made difficulties of Law who being one of the same Tribe calleth discovering of error defiling the neast and so lets all pass as Custome leads Thus is a man put out by the Law of the priviledge of a Subject and this only to maintain Officers for let all the course be examined and the issue will be nought else I have known this sued against a man for that the Law gave no action the party yet never demanded the thing and of a man not worth twenty shillings in the whole world and the matter it self not worth five shillings the Charges came to nigh four pound and if he hath notice no way but to sue a Supersedeas which is I take it
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
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
pleading to the Jurisdiction Next by denying himself to be the party with multitudes more how evident soever Which Laws in the letter being taken advantage of as one for example one first called said nothing then shewed his name was not John but John-as Jenkins therefore not the party indicted That amended the Clerk goes on John-as Jenkins of c. he answers not after much debate there is two Towns one Hoph Pet. the other Jo. and the Indictment is general he knows not which that agreed on then his addition is mistaken as he is Baronet indicted Knight or Knight and Baronet but all agreed on he is then to plead and to this he pleads First strange dilatory pleas as that the fact was done in another County c. These breeding great trouble and great delay were both in Civil and Criminal cases in great part rectified but so jealous was the Parliament ever of the thing called Priviledge that all was never done though it may be the greater evils were removed so that there are causes enough still to dally in Law to general disadvantage of honest and publike good and no liberty but of general capital offenders Now the reason of this was evident because the Subjects Liberty was by Princes sought to be totally enslaved the best and wisest were most active in opposition and to save these good men we ensnarled the Law and till now had never opportunity of rectification if yet we have this seen by the Crown side they engage three wayes by Judges absolutely depending A Jury of Conformists and the general Plea not guilty And thus Prerogative and Priviledge fought And surely the Law holds forth matter so clear in the Year-Books on the one side by Presidents Rights of Supremacy dispatch of business c. On the other side by Presidents reason of Priviledge for safety of Life that the controversie seems endless and yet Justice is plain let him plead not guilty but withall give what other matter he can in evidence which the Court ought to accept and upon the whole matter to give judgement hearing himself and Councel which surely if in any other Cause Matter or Plaint a Subject ought to have then much more in case of life especially if the Law favors it and more especially where the Judges are the meer Dependants of the Prince or State which jealousie cannot be satisfied without if withall other things can be supposed any way requirable and therefore it hath been accounted for Law that the Jury were not barely Judges of the fact but were surely intended as a barr to Prerogative in some sort or dependance thereon for they may be without all doubt so far Judges as to finde the matter specially will the Judge or nill he and if themselves will venture an attaint may be Judges of the Law indeed against the plainest evidences So that it is evident these questions are easie to be controverted and hard to be determined yet not in themselves but only because of the divers interests in this as in most matters in our Law wherein the Crown had any hook according to the prevailing of their party having laid foundations for their own benefits and advancing their particular designs which is the first rise of the controversie about the Militia which never was in England in the Kings hand otherwayes then that of Tenures the posse Comitatus being alwayes the proper defence of the County and not subjugated to the Kings will or Royal Commission Now the reason was War and Peace was nominally in the King really in the Subject because of Moneys which could not be charged without consent in Parliament some upon this ground a Quaere of main concernment Namely what are the Laws of England or where to be found Some as I have said answer the Law of God others say excellent reason some the Law of Nations peculiarized by use others say with the Lawyers That the Law of England is founded upon the Law of God the Law of Reason principles called Maximes Customes not contrary to reason received time out of mind and proper quarto modo to the people of the Nation Statutes and the resolutions of the Judges To this it is objected that these generals teach or edifie not what the Law of England is For the Quaere is If the word of God whether all or part if so the infallible or at least certain Rule pleadable to know which part they require the like certainty in reason and the Exposition of Principles and Customes for they say all these must solely depend upon the Iudges and then the Law in their opinion is wholly Arbitrary for if their only word makes it reason and their only word determines the end and meaning of the principle and so whether custome be good or not then it is meerly at the will of them and this they say experience manifested in the great Cause of Ship-Money wherein had not the Sword been the better Arbiter of their priviledge the sentence had been irrevocable to enslave them all to the King Therefore they say there must be common reason or some head-Rule which must judge most excellent reason not that they intend vulgar decision but a judgement must be tryed by its conducing to publike good The Rule is Good the more general and common so much the more precious and from this they conclude all these heads of the Law of Nature or Reason Principles or Maxims and Customes to be all the same with the dicta sap or resolutions of the Judges and then whose creatures they are and from whom they have their honour pay c. to them they will be bound which they cast not by way of odium upon them but common to them with all men to enforce and improve all their abilities by the first principle of nature to the preserving self and this they do and better self in advancing the Title and Interest of them upon whom they depend But they say this is as fatal a hawk to liberty to have such an absolute dependance upon a State as upon a Prince tending to the same end of enslaving the people Yea reducing a State from a Democracie to a Tyranny as well as from Royalty to Tyranny for they say they have heard from Lawyers and it is a general complaint That the Laws of England are they know not what at least a wise or so called Politick Judge may make them so and that this is easiliest done in matters of highest concernment Take them to be the Law of God no such matter where is ought according to that rule They exemplifie in Henry the Eights Law for marriages made meerly for private interests and now for the same neglected for Gods Name is scandalized prophaned blasphemed and not regarded horrible adulteries and some say incests unpunished Yea all the rabble of Popish Episcopal and now so called Presbyterial Professors that is the baptized Christian are guilty of walking clean contrary to their profession
yet no way punished Gods Sabboth contemned god-Mammon that mental Adultery of Idolatry is most of their sin common to them with their other brethren in the flesh by what names soever called or known And for the duty towards Neighbour there is nothing but envying and malice furfetting gluttony or drunkenness the Nurses to Adultery and Lasciviousness with pride in apparel and abundance of idleness which increasing poor increases and by them necessity and that brings Theft or Covetize or both and sure among such to swear in truth will not at all be regarded it will be thought cruelty not to tell an Officious so called lye to save thy brothers life which now makes it nothing to have lyes sworn this brings scandals upon seats of Iustice for these things known and not remedied if possible will asperse But some say some Judges make no conscience of such acts they exemplifie not only in Ship-Money but in ordinary Tryals while they deny justice by delaying and admitting the continuance of delayes in justice and sometimes go against their own knowledge in the Law as in the case of admitting such to read as they know cannot and more evidently such as are not capable by Law as those branded before not once but seven times whereby the Rogue is as preserved so encouraged and this because due notice is not taken of persons branded in the Calender nor Records penally presented in Court to which though ignorant persons answer they will not come there again but act their Villainies in another County wise men will not who know the Law admits no going out for it will prove wandring in such of necessity but with Certificate but the true reason though it cannot wholly excuse is the best namely they think the Law too hard and would rather have constant work-houses but there is two evils in this so just so righteous a proposal to change this Law for if either work-houses or due course of certificates were setled the Commonweale would be quickly rid of such vermin But then the first evil appears namely Clerks Fees would cease The next evil is the matter of charge in building repairing and maintaining the houses and Officers c. for a work-house in this age where building back and belly cat up all will hardly be maintained much less raised but to be well provided with stock and Overseers rather venture all There is complaint against our now Iudges taking Fees if so they do having yet 1000. l. per annum that Fees might be discharged But these Complainers have one word more to the Law that is they say the great Charter of Normandy they own rather to be the old Norman Laws before William the Bastard then the Law of England though he might well labour to introduce the whole plot Truth it will serve to discover the Reasons of our bondage and that 's all which while Copyholds are not discarded together with Crown Tenure we are not freed of For Fleta and Bracton they say they are the meer heads of Justinians Institutes a little corrected according to the guise of Englands Principles of liberty above the Ancient Roman or State of Greece in the height of the Empire Yet for that exploded by the Kings Iudges For Horn Britton Glanvil they are reputed more English but may be as well Scottish Sweadish or Danish especially Glanvil who if compared with R. Mai. Scot the old Tenures Customes Services Writs c. are the same word for word the other were they who drew the Traditions of our fathers into form by insensible degrees raising debased Engl. to a glimmering of Native liberty in the use of a body of law for it is plain Englands Law unwritten could not be well known by the vulgar Fortescue taking the advantage of the contest betwixt York and Lancaster declares more freedome happily then consists with reason in the letter Now all these books were altogether exploded Fleta and Horn not permitted to be printed but hung up by the licence liberty and all that was the common reading of the Lawyer was the resolutions of the Iudges in the so called Year-Books which have no date beyond Edward the Third there being then a stipend given to certain men constantly sitting in Court to report the reasons of the Iudges so that let them answer at their perill for now their reasons were permanent and brought to strict judgement Yet they still had their evasions in cases of great interest either for one Kings Title or other for Prerogative or Priviledge as particular respects engaged and providence favoured as was evident in the case of R. 2. and his Iudges which lay asleep from him till our late Charls revived it and suffered publickly for it as Richard did privately far the more manly and exemplary way of the two and rational it is for if it be lawful for man to give Law he may and ought to enforce and no way can be more consentaneous to order then that of the body Representative which is not in this case denyed either by the Regular Presbyterian or violent so called Interdependent only they deny this a Parliament as before is said These Reporters wrot till Henry the Seventh there are some fragments of Henry the eight Edward the Sixth and Q. Mary and Elizabeth taken by Students then and since which are called by the names of the Authors as Kelway Petty Brook Dyer Plowden c. with some particular assertions of others but none durst write freely Lord Cook put out several Books of Reports all which being principally matters of Title or betwixt party and party swam down stream Now in most of these were matters altered at pleasure for out of these books it is easie to argue black white and white black Reason was cut into such fine shreads of wit and form which is as vain that judgement was puzled to find something where there was so much of nothing and if any thing were it was so disjoynted a piece in 1o. Ed. 3. debated further 18o. further Process in 23o. and finished 31o. Jan. 24o. ultimo Regis Caroli Rex ultimus Brittannorum A subtile Oracle true and not true let matters pass as they will so that in such a confused study who could learn ought though helped with Fitz-Herberts yea and Brooks Abridgement for the old Books and the late Indexes the least too big for any book of Law for a Nation where each is to be supposed knowing of it and no man excused by his ignorance Now for the Crown Law of which we had no compleat Tract but Stamford the Lord Cook treating of that particular and tacitly in his both Jurisdictions of Courts and Expositions of Statutes holding forth not only the bare letter but a rational disquisition of the Texts they also were estopped and well is it say some if they have not met with a concealed Dominicane Expurgator or Jesuitical Emendator there being such hard hold on all sides for them and against them since published
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
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
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