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
have weight laid upon him as much as he can bear and shall have one day three bits of Bread the next day Gutter-water given to him and so every day until he dye with pain The practice is somewhat altered in the execution for the Condemned is Pressed to death presently and every one that will is his Executioner This is a wicked Law and contains three Offences 1. The Punishment is barbarous for that there is no Offence in this world against men but a man's life taken away is a sufficient satisfaction without any such lingring death 2. The party being Guilty is not bounden to accuse himself upon his Tryal much less ought he to be enforced to tell a Lye and say he is Not guilty 3. The great Offence is That he is Condemned without Proof 2 Cor. 13 1. Heb. 10.28 Deut. 17.6 Numb 35.30 Joh. 7.51 To this may be added Setting men upon the Rack (m) In sime of Popery this was frequent and hath been since used for discovery of Treason Examining them by Torture a Devillish Invention not long since practised and warranted by our Law 10. The Laws concerning Parishes Parsons Vicars Curates Deacons Churchwardens Advowsons Presentations to Churches Jure Patronatus Non Admisit Quare Impedit Quare Incumbravit Darrein Presentment Restitutione Temporalium Conge Desleir Admittances Institutions Inductions Ne Admittas Vi Laica Removenda Excom Deliberando cautione Admittenda Dedimus Potestatem ad Elegendum Abbatum Lincences to Preach Suspensions Ecclesiastical Censures in Ecclesiastical Courts These all are unlawful as being the Inventions of men to thrust out the Officers and Order which Christ hath left in his Church (n) Godw. Ant. Rom. l. 3. c. 2. p. 135. c. 3. p. 142 143. Fuller Holy State l. 2. c. 12. p. 87. Ex Conc. Toled 589. can 9. An. Coke Rep. l. 5. Cawdreyes Case c. 3. p. 48 49. c. 4. p. 72 73. c. 7. p. 169. thence to p. 356. The Parishes are the Hearch which keep in all these Superstitions and they were taken up by the Church of Rome from the Heathen Romans as likewise were their Pope or Fontifex Maximus their Orders of Priests Deductions Consecrations and many other Paganish and Idolatrous Superstitions And from Rome were hither sent and continued here all along by the Popes Power until the Reign of King Hen. 8. when he took upon him the Popes Office 25 H. 8. c. 20. Wingate Law c. 38. p. 62. n. 20 21 28. to be the pretended Head of his pretended Church of England Lev. 20 23. Ezek. 11.12 Hos 14.8 2 Cor. 6.16 Deut. 12.3 Cock English Law p. 16 22. 11. (o) Fitz. N. B. 269. b. Coke l. 5. fo 25. 2 H. 4. c. 5 15. 2 H. 5. c. 7. The Law for Tryal and Conviction of Hereticks delivering them to the Secular Power to be burned the Writ Haeretico Comburendo put in execution against the faithful Servants of God called by a Nick-name Lollards about the time of Rich. 2. and Hen. 5. and afterwards whom the Lord Chief Justice Coke concludes to be Hereticks and deriving their Name from Lolium as the Papists did rehearseth that impertinent Verse of Virgil Infoelix Lolium steriles dominantur avenae They were the followers of (p) Rast Entr. Haeres 1. White Way true Church sect 50. p. 393. Fox Acts and Mon. Vol. 1. p. 608 657 659 846. John Wickliff whose Opinions we may finde in Fox his Acts and Monuments and Symson his Church-History These and those afterwards by vertue of the Statute of the Six Articles were put to death onely for matters of Faith and Opinion without any disturbance to the State (q) Dalt offic Vice Juram Vice fo 4. All High-Sheriffs were Sworn even to the time of the beginning of these late Wars to extirpate these Servants of God and the Anabaptists which onely (r) Swinb Treat Willes par 2. sect 14. par 5. sec 2. deny Infant-Bapitism are reckoned amongst Hereticks By this we may judge what our Law-givers were and what was a principal end of the Law viz. The destroying of the true Faith and the rooting out of the sincere Professors of the Gospel which is a principal Mark of Antichrists Power These are Impious Laws and the execution most abominable Rev. 16.6 17.6 18.24 12.13 Gen. 4.10 Luke 11.50 51. Gal. 4.29 These Customs taken from the Romans Tac. Annal. l. 12. c. 11. p. 171. 12. (s) Litt. l. 2. tit Villenage sect 172 Coke Com. Litt. l. 2. sect 177. sect 189. Wingate Law c. 9. p. 17. n. 3. n. 5. Poulton Pax Reg. Regni tit Appeal fo 159. a b. Littleton tit Villenage l. 2. sect 190. The Laws and Customes concerning Villains and Villainage mentioned by Littleton and others observed by Coke in his Comment upon Littleton and plentifully discoursed of in the Old Books are Heathenish and wicked Customes That the Villain is as the Lords Goods and at the Lords absolute Disposal and so are his Wife and Children (t) Those whom we call Villains Niess thâ— Romans called Adscriprivos Glebae they plowed laboured and might be sold as the Romans Slaves That the Lord may enter upon him and take his Lands Tenements Rents and Chiâ—dren And although he that is pretended to be a Villain bring his Wriâ— to prove himself free the Lord may seise him as his Vilâ—ain (u) Appius Claudâ—us sâ—ised Virginia upon this pretence Tit. Liv. l. 3. p. 117. b. Pendente Lite and if the Lord rob the Villain he shall have no Appeaâ— against him And it hat been said That if the Lord ravish his Nief that is his She-Villain she could at Common Law have no Appeal of Rape against him but Littleton saith the contrary (w) If the Loâ—d marry his Nief or she villain and die seised of Land in Fee this wife shall not be endowed because she was his Villain Jo Perk. tit Dower sect 314. These Laws above-mentioned are too bad for Turks much more to be abhorred and rejected of Christians as being against all those Laws of God which condemn unmercifulness and injustice towards inferiours Exod. 1.13 14. Lev. 25.42 43 46 53. Eph. 6.9 Col. 4.1 Prov. 12.10 Luke 6.36 1 Kin. 9.22 There was nothing more regarded in the foundation of Christian Common-wealths then the discharging of Slaves and Villains and such Common-wealths were free from Slaves ever since the year 1250 as a (x) Bod. Rep. l. 1. c. 5. p. 39 40. p. 45. Those Slaves are at large described as above is said Cowel Instit lib. 1. Ti. 3. sect 3 4 5. Learned Lawyer hath observed who taxeth England and Scotland for continuing such Customs and Services upon their Tenants And likewise saith the Law of the Twelve Tables still in force in West-Indies and Africk as too rigorous towards Debtors and Servants (y) Rast Entr. tit Appeal fo 51. b. 27 H. 8. c. 24. Poul
Examen Legum Angliae OR THE LAWS OF ENGLAND EXAMINED By Scripture Antiquity and Reason Cujus Author Anagrammatῶs est Ἀ νόμος βο̂ᾳ ὡς βαÏÏ MALACHI 4.4 Remember ye the Law of Moses my Servant which I commanded unto him in Horeb for all Israel with the Sâ—atutes and Judgements LONDON Printed by James Cottrel 1656. To the Reader READER I Expect upon the very first view of the Title Page of this Treatise to be Censured by three sorts of men The first are some superstitious Antiquaries of this Age who are better skilled in Geoffrey of Monmouth and other idle Stories of the British Kings before the Romans entred Britain and in the Grants and Laws of the Saxon and Danish Kings of England made for exalting the Pope's Power Erection of Monasteries and other Superstitions and reverence them more then the holy Scriptures And as they believe the Name of a King to be Jure Divino and indeed little less then a God and that no man may Rule who hath not that Title because that a Plow Com. fo 177. b. 129. b. Bodin Repub. l. 1. p. 112. Name must never dye so they think That the Laws which they and others call the b Coke tit Cawdreys case l. 5. par 1. fo 1. Kings Laws are as the Town-Clerk told the Ephesians c Acts 19.35 concerning their Idol Diana the Image which fell down from Jupiter and of so d Lex illa Sanctio specialiter dicitur Cowel Instit Jur. Angl. l. 2. Tit. 1. sect 10. Impr. Anno 1630. sacred and divine Authority that they can admit of no alteration without breach of the divine Law To these I 'll say onely thus Government and so are Laws the e Rom. 13.1 2. Ordinances of God but what kinde of Government or how the Supreme Magistrate should be called or why Humane Laws may not be altered or amended I finde nothing in Scripture f Aristotle in his second fourth Books of Politicks proves this at large where he shews the kindes of Government and Titles of the Governors in his time Government in reference to the kinde is called by the Apostle PETER g 1 Pet. 2.13 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Humane Creature and whether the Government be Monarchical Aristocratical or Democratical or whether the supreme Magistrate be called Nasi Prince as the Jews called Moses or Leader h See the several Titles given to the Supreme Magistrate of several Nations anciently and lately p. 121. n. 18. â—equ Governour or i Bodin Repub. l. 1. p. 83. Hen. 2. King of France called Protector 1552. Adherbal King of Numidia termed himself The Steward of the People p. 121. Protector 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that iâ— King as the Greeks called their Chief Justice at Athens Dictator or k Chief Captain p. 157. Imperator as the Romans called their Chief Magisrate or as the Venetians call theirs Doge or Duke there is nothing in Gods Word against it But this is necessary that the Supreme Magistrate should have l Pasor Lex p. 206. b. Bodin Repub. l. 1. p. 110. Confer concerning Power of Parliaments p. 4 5 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Power and Authority which are to be upheld by good and wholesome laws founded upon the Divine laws of God the onely law giver who can save and destroy and secured and defended with the Power Estates and strength of the People who are to look upon the Authority which God hath set over them and m Ezra 7.25 26. Rom. 13.1 6 7. submit themselves therâ— unto for the Lord's sake and not to dispute about Change of Government which sometimes is both n Exod. 18.13 21. Numb 11.16 17. Deut. 1.13 14 15. Acts 13.20 21 22. lawful and necessary It seems clear That all Government was Originally in Families where the Master or Father of the Family was the Prince or Chief Magistrate o Haynes view Holy Scriptures p. 81. Ral. Histor l. 1. c. 9. sect 1 2. the Obedience to whom was called Piety But afterwards when the World grew better stored with People men began to associate themselves into Villages then into Cities and lastly into Common-wealths and Nations and these betook themselves to p Paraeus in Gen. c. 10. Hawk Right of Dominion l. 2. c. 4. p. 35 Arist Polit. l. 1. a Governour whom at first they called q Gen. 50.7 Exo. 3.18 24.14 Pro. 31.23 Elder which was not onely a name of age and gravity but also of superiority and Magistracy and continued untill Monarchical Government was Erected which it seems at first was a Government at r Bodin Repub lib. 3. cap. 3. pag. 293. l. 4. c. 1. p. 412. Jun. Brut. Vind. contra Tyran p. 95. Ex Herod l. 2. the Will of him that ruled and grew into Tyranny for want of Laws Å¿ Exo. 3.10 16 18. 18.13 Willet Hex in Exo. 18. v. 15 19. qu. 16 18. But it pleased God in favour to mankind and for the good of his people to establish supreme power in one person limited and bounded with wholesome Laws And as an affliction and Punishment to suffer Tyranny to be exercised in the t Bod. de Rep. l. 1. p. 47. l. 2. p. 200. out of Philo Judaeus and Josephus world and sometimes towards his own people as may be seen in the government of the Babylonians Assyrians Medes Persians and other heathen nations u Grot. Pol. Max. Par. 2. c. 8. Gen. 14.1 40.1 The chief Patern which can be expected and of most certain Antiquity both for government and laws is that of the Israelites with whom God was most eminently present Albeit there were many other Kings long before Moses brought the Israelites out of Egypt as those mentioned in the Book of Genesis besides the Kings of Egypt Babylon and Assyria of which w Ral. Hist l. 1. c. 10. sec 1. Haynes View Holy Scripture p. 125. Hawk Right of dominion l. 2. c. 7. p. 45 Ex Chrysost Muscul Nimrod was the first of these it 's not necessary to say any thing But concerning the Israelites their state laws and government we have most exactly recorded by Moses x Coke l. 7. fo 12. Calvins case the best and most ancient Writer of Laws in the Book of Exodus which contains y Willet Hex in Exod. p. 1 2. their deliverance out of Egypt with the concomitants and circumstances thereof in the first part of that Book to the end of the seventeenth Chapter Then their constitution and settlement in the Land of Canaan by wholesome and just laws z Exo. 21.1 which were delivered unto them from God by the hand of Moses Now to return after this digression If Almighty God gave Political laws to his own people no man dare say but that those laws must needs be most just and equal a Cock Engl. Law
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
are improper for Acts of Parliament (t) Coke Instit 2 part Proem p. 2 3. Hubert who liv'd when Magna Charta was made and was a witness to it knew the nature of it better then any one in these dayes who know but by Tradition or Conjecture K. John granted such a Charter which was impeached by his Successors because it was made when he was in Dures and the same is laid aside and not regarded And we finde it Recorded That the Charter of King John was avoided as a voidable Grant And that King Ed. 1. after the Confirming of the said Charters of Magna Charta and Charta Forestae by the Advice of Hubert de Burgo Chief Justice of England the principal Oracle of the Laws in those times cancelled the said Charters and declared That he was not bounden to observe them in regard he was under age when he granted or confirmed the same And this is said to be done by Advice of his Councel at Oxford which is a sufficient proof that the same were no Acts of Parliament for that although Non-age may make mens Grants voidable yet the minority of the King cannot prejudice any Act of Parliament Because such Acts are the Agreements of the People to which the King gives but his Assent And this may suffice to be spoken touching the said Charters CHAP. V. That the Statutes of Marlebridge Westminster 1. and the rest of the old Statutes said to be Declaratiry of the Common Law savour of the Power of Antichrist and contain in them manifold Impieties and Superstitions THe said Statute of Marlebridge in Chap. 12. concerning Derrain Presentments and Quare Impedits Marl. c. 12. 28. and Chap. 28. concerning the provisions for Successors of Bishops containeth matters Superstitious and tending onely to uphold Popery and are lately in effect all abolished by the abrogating of the Archbishops and Bishops which shews the uselesness of those Statutes Coke Instit 2. part in the preface p. 79. c. 6. p. 90. And the same may be said of the Statute of Merton a great part whereof concerneth the like Superstitions which are abolished The Statute of Westm 1. was made likewise with reference to the advancement of the State of Antichrist Westm 1. c. 2. as appears by the Preface to the said Statute And in the said Statute is likewise set forth as warranted by Law the Champions Oath in a Writ of Right which is many wayes sinful as shall appear where this Champions Oath and Tryal by Combate are particularly handled and the provision made in the said Statute for upholding of Bishopricks and Superstitious Houses and the ordering of a Clerk convict for Felony who notwithstanding his Conviction shall be delivered to the Ordinary and so escape which is said to be according to the priviledge of holy Church These Laws are Superstitious and Unlawful (a) Stat. de Bigamis c. 5. 25 Ed. 3. c. 4. The Statute de Bigamis and a Statute made 25 Edw. 3. which Ordain That such Clerks as shall be twice married being attaint of Felony shall not be delivered to the Prelates as Clerks but that Justice shall be executed upon them as upon other Lay-people This is a foolish Law that being twice married should be accounted an offence and the same Law is altered by a Statute made 1 Edw. 6. Chap. 12. In Chap. 5. of the Statute de Bigamis Coke Instit 2 part pa. 273. Pope Boniface the 8 his Councel at Lyons in France care is taken to preserve the Constitution of the Bishop of Rome concerning the Priviledge of Clerks which Bishop is there called Dominus Papa By the Statute of Glocester Chap. 8. it is Ordained That none shall have Writs of Trespasâ— for Goods taken unless he swear by his Faith That the â—oods taken were worth forty shillings and if he complain of beating he shall swear by his Faith That his plaint is true The intention and scope of the Law is good but the making an Idol of a mans Faith and putting it into the place of God the great Judge is wicked Profaneness and a breach of Gods Law The Statute of Westm 2. Chap. 5. concerning Darrein Presentments Quare Impedits and Advowsons of Churches is Superstitious and serves for nothing else but the setting up of Humane Presumptions in opposition of the Ordinances of Christ in his Church And the same Statute Chap. 34. appointing That he that carrieth a Nun away from her house although she consent shall have three years Imprisonment and be Fined is a Superstitious Law and tends to uphold the Antichristian Power of Rome And the same Statute Chap. 35. Enacting That he that takes away a Ward and marrieth her after years of consent shall abjure the Realm is a profane Law and aâ—ainst the lawful use of an Oath The Preface to the Statute called The Award between the King and his Commons at Kenelworth and the Curse thereto annexed containeth matters Impious if not Blasphemous and not fit to be preserved being a Monument of Idolatry The Statute concerning Consultations 24 Edw. 1. mentioning Ecclesiastical Judges served to uphold The Spiritual-Court or Court-Christian as it is called The Statute of 25 Edw. 1. Chap. 4. giving power to the Prelates to Excommunicate the breakers of the Great Charter and another Statute of Edw. 1. put next-before the Statute of Ireland giving the Prelates Power to pronounce Accursed all those that do any thing willingly against the Charters Chap. 6. These are Superstitious Laws and an abuse of the Church-Censures and the Power of Christ in his Church In that Law called Articuli Cleri 35 Edw. 1. the Church-yard is said to be Dedicated which Dedication is Superstitious no place under the Gospel being more holy or dedicated then another The Statutes made 9 Edw. 2. concerning Prohibitions Tythes Clerks convict Pâ—â—lates Spiritual-Court Excommunication Abjuration Power of the Ordinary Fee of the Church Superstitious Houses Monasteries Parsons Parsonages containing sixteen Chapters are nothing else but Popery and the advancement thereof The like may be said of the Statute of the 25 Edw. 3. Chap. 3 4 5 7 8 9. concerning Lapses of Benefices Clerks convict Ordinary Counterpleading of Title to a Church All which savour of nothing but Superstition The Statute of the 13 Rich. 2. 2. appointing the King to present to Churches The Statute of Provisors of Benefices whereby the King and his Lords are to present to Churches shewing That the Pope did use to present to Bishopricks Religious-Houses as they are called and Churches The Statute of 25 Edw. 3. whereby the Pope diâ—annulled the Statute of 18 Edw. 3. concerning the Arraignment of a Clerk and many other old Statutes of the same nature wherewith the Lawyers have been so much pleased and whereof they have so much boasted are nothing else but the Badges and Characters of Antichrist All these Laws are repugnant to those Laws of God which forbid False Worship Superstitious and Humane
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
Bishops could do or procure without the help of the Judges 1 Cor. 8.12 Joh. 16.2 3. 1 Pet. 2.19 Jer. 38.6 51. The Law concerning Heriot-Service where Heriots multiply insomuch that if a Tenement be divided into twenty parts he that hath but a Foot of Land shall pay a Heriot (f) Kitch f. 134 44 Ed. 3. Fitz. 1 Custom Corley Com' Wai ' Case between L. Brook and Sewal Cowel Inst l. 2. Ti. 3. S. 31. p. 129. that is his best good or beast or the second as the Custom is The Lord doth usually till on the Tenants and takes 5 s. or 10 s. for a Heriot where a man pays Five or Six but if the Tenant cross the Lord he can take the utmost according to the Rule above-said This is a great Oppression Isa 33.15 Exod. 1.13 14. Levit. 25.46 (g) Bodin Rep. l. 2. p. 202 This Tenure was first created and payable by Souldiers who had Lands given them by the Conquerours in England and many other Countries long since and is worthy to be abrogated 52. That great (h) 25 H. 8. c. 22. Cock Engl. Law p. 4. Jun. Brut. vind p. 49. Laws Geneva p. 12. Claiming Offices by Descent is condemned and rejected by the French and several Decrees made against it In the Records of that Court one solemn Decree appears Anno 1272. Bod. Rep. l. 3. c. 5. p. 331. The Israelites before they had a King in time of Warre chose them a Chiâ—ftain such a one as God had stirred up to save them and to him they gave Regal power Idem l. 3. c. 7. p. 363. Offices of Rule and Trust requiring great abilities and especiall graces for the execution thereof should be Hereditary or by Succession seems to be against the current of Scripture Moses sons ruled not but Joshua succeeded for that such as have been special Instruments to save or deliver the people as Moses Joshua some of the Judges David and others were especially designed of Almighty God for Government and others were appointed and elected by the People who were to be such as are described Exod. 18.21 Psal 89.20 1 Sam. 10.12 13 21 24. 1 King 19.15 16. Deut. 17.15 It 's said of Augustus Caesar That he never commended his sons to the People for Government but with this Clause added thereto If they shall deserve Suet. Tranq in vita August Caesar Grot. Pol. Max. part 1. cap. 3. pag. 20. Godw. M. A. lib. 5. cap. 5. Willet Hexa in Exod. 18.21 22. Qu. 21. Hos 1.11 (i) Idem l. 4. c. 1. p. 412. Hank Right dom l 2 c. 6. p. 37. This Succession is judged to be the cause why there are so few good Rulers and Magistrates 53. Tryal by a Jury is no Scripture-way and as now things are generally practised As a man is friended his Cause is ended In ordinary Cases the Jurors are of the meanest of Free-holders both in Understanding Credit and Estate and for the most part such as will give the Bayliffs nothing to excuse them Anciently they were to have (k) 8 H. 6. c. 9. 1 H. 8. c. 8. 23 H. 8. c. 13. 35 H. 8. c. 6. 40 s. per an of Free-hold afterwards that 40 s. was raised to (l) 27 Eliz. c. 6 Four pounds yearly Now in cases of Titles and other business of any considerable importance the Jurors are privately dealt withal and although no more can be proved but that (m) Cock Eng. Law p. 45. such a man desired them to appear and do their conscience which is justifiable yet many times the Jury know the matter in question beforehand sufficiently and one side or other is confident of the Jury if such and such leading men appear and they know who will give them the best reward or are like to prove their best friends If the Judges were such as the Scripture holds forth That they should be able men men of truth fearing God and hating Covetousness there were no need of such poor-conâ—ition'd fellows as many times they are to be Judges as these are in all matters of Fact between Cause and Cause which I take to be an offence against God Cock Essay p. 138. the Jurors wanting the qualifications of Judges that the Judges and those which ought to be Judges delegate their power to others and do not judge all Causes themselves (n) Plow Com. f. 231 a. Anciently there were a Jury of Judges in the Upper Bench and Common Pleas that is Six in each Court who used to meet together to declare the Law It is the pride of man to judge onely matters of (o) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 1. f. 58 a b. 9 H. 6. 38. 14 Eliz. 410. Law and to let matters of Fact to be tryed that is judged by the Jury who may also try the matter of Law if they will The Jews had a righteous Law from GOD which was That the Nasi or as the Grecians call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Prince or King for so Moses was called should judge all (p) Augustus and Tiberius did observe this Course Hawk Right of Dominion pag. 55. Ex. Bodin Sueto Tranq the hard causes and the Judges should judge the rest without any Juries The Jews had the great Court of the seventy Judges or Sanhedrim (q) This fulfilled that prophesie Gen. 49.10 Godw. W. A. L. cap. 1. pag. 4. lib. 5. cap. 5. p. 213. Num. 11.16 continued from Moses until Christs time when they were put down by Herod the Askalonite they had also two other Courts for tryal of smaller matters the Sanhedrim although they usually sat at Jerusalem Yet many times they divided themselves and did sit in five several places for the ease of the people although all the Land of Canaan which the Jews had on this side Jordan was not above 100 miles in length and 36 miles in bredth The next (r) Godw. M. A. L. 5. c. 4. pag. 210. 111. 212. Court consisted of 23 Judges which sate in the Gates of the several Cities every City having such a Court. The third Court consisted of three Judges which judged the smaller matters in every Village (Å¿) Godw. An. Rom. lib. 3. Sect. 4. cap. 20. The Graecians and Romans had their proceedings in causes criminal and civil and personal much like unto the Jews and in case of life and death the whole Court of Judges sate who were more in number then the Jews Sanhedrim and the Judges (t) Rous Att. Ant. pag. 110 112 118 125 126. were sworne where there was a Law to Judge according to that Law and where there was none to Judge according to equity and conscience The Chief Justice or President amongst the Graecians was called Basileus in Imitation of Moses who was the first chief of the Sanhedrim And if the heathen by the light of nature thought good to receive these laudable Customes and Laws from the people of God why
most communion with God and were best instructed did in matters of Law and Justice in these respects 2. And then we will consider what the Gentiles did by the light of nature and reason or rather what they had gathered from the Laws of Moses not so much because they were the Laws of God as because they were the Laws of a wise Law-giver and of a wise people for that the wise of the Heathen Gentiles and the Philosophers Poets who were accounted their Prophets had knowledge of Moses his writings there is nothing more clear by many passages in their books and the very Laws of the Heathen themselves in many particulers suit with the Judicial Laws of Moses Concerning the Jews I have set it down before in this Treatise that upon occasion of Jethro his wise Counsel their (b) Exod. 18.21 22. first Judges and Rulers of all sorts were instituted and afterwards the Court of (c) Numb 11.16 17. Wâ—llâ—t Hexe in Exod. c. 18. ver 21 22. quâ— 19.20 21. Deut. 1.15 16 17. seventy which was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Senate of the Jews was appointed by Almighty God This was the great Court or Judicatory of the Jews and consisted of three-score and (d) Bodin de Republ. lib. 1. pag. 57. ten persons most eminent in their Tribes and the President which was Moses or as others say three-score and twelve that was six out of every Tribe however they were called the seventy as were the Interpreters of the Old Testament who translated it into Greek bearing the name of the Septuagint although they were seventy two This Counsel of the Jews heard and determined generally all controversies according to the Laws of God and if a cause were too (e) Exod. 18.22 hard for them by reason of the want of a particular positive Law (f) Numb 27.1 2 5 7 8. Godw. M. A. l. 5. c. p. 209. Willet Hexa in Exod. 18. ver 22. qu. 21 22. as the Case of Zelopheads daughters then they came unto Moses (g) Alfonsus the tenth K. of Spain commanded his Judges to come unto the Prince himself as often as there was nothing written in the Laws of their own Countrey concerning the Matter in question Bodin Republ. l. 1. c. 8. p. 108. who enquired of the Lord and received direction from him and according to the minde of God the Case was Judged instead whereof we have now the written word of God compleat Besides this the Jews had another Court which dealt in Criminal and pecuniary causes consisting of three and twenty Judges and this Court was subordinate to the Sanhedrim And thirdly they had another Court which consisted of three Judges which was subordinate to the other two Courts The Sanhedrim sate commonly at Jerusalem and was sometimes divided into five parts and sate in five several Cities The Court of three and twenty sate in the several Cities and were a standing Court every (h) The Romans had such a Court in every Citie Tac. Annal. li. 1. c. 3. p. 5. Citie having such a Court these the Jews called Councils and of these our Saviour speaks when he saith (i) Math. 10.17 They will deliver you up to the Councils The third Court or Court of three was in every Town or Village and dealt in ordinary and smaller matters And by this we see that the Jews were not forced to go far for Justice but had it near them at all times and (k) Mercat Atlas descript Holy Land pag 839. Jerusalem it self was not above fifty miles from the Confines of the Land of Canaan in the length of it and not above twenty miles from the Confines in the breadth thereof and yet the Jews had not all that in possession And in the next place in imitation of the Jews (l) Rous. Att. Ant. l. 3. c. 1. p. 108. Bodin Republ l. 3. pag. 263. the Grecians at Athens had a Senate consisting of four or as some write five hundred persons which was the great Council of the Citie and Common-wealth and upon weighty occasions all these or as many as would sate in judgement (m) Idem Att. Anti. l. 3. c. 1. p. 125 126. There was another Court called Ariopagus consisting of the number of three-score of the wisest and most grave Citizens of which the President or Chief Justice was called Basileus that is King and they had cognizance of matters of life and death and Criminal causes and other things of great concernment Then they had also another Court which heard and determined matters by way of (n) Idem l. 3. cap. 3. Sect. 4. Thâ—se were like the Jews Courts Godw. M.A. lib. 6. c. 10. pag. 294. Willet Hexa in Exod. c. 18. v. 25. q. 26 27. Compromise and there was not any cause if it exceeded in value ten Drachma's which is but fifteen pence of our money the Attick Drachma being but one penny half penny but it past these mens hands before it might be admitted into any Superiour Court. In like manner the Romans and likewise the Lacedemonians agreed with the Athenians for the most part in respect of their Courts and Judicatories The Romans had three Courts †Sueton. Tranq in vita Julii Caesaris Sect. 41. untill the third was put down by Julius Caesar and afterwards Augustus other Emperours appointed a privy Counsel of twenty of the chief of the Senate to treat of great affairs of State in private like the privy Council of England which at first were but 15 Persons instituted 450 years since 1. * Bodin Republ l. 3. pag. 262. and 267. Godw. Ant. lib. 3. sect 4. cap. 20. The Romans in their Suits proceeded in this manner 1. They obtained a summe of course 2. They asked leave to enter their Plaint or Action 3. Then the Action was entred if it were allowed of by the Court. 4. Which done both parties put in pledges either in money or gave security the one to prosecute the Suite and the other to abide the Judgement The proceeding at Geneva is much like the Romans one Court or other sits almost every day and the causes judged in three weeks or a moneth usually Laws Geneva p. 17 18 19 20. The third Court day regularly the Cause was heard and Judged if the Cause were Criminal the Praetor would not suffer the same to be entred untill the Prosecutor had sworn that he did not accuse the Defendant falsly or maliciously And when any man had killed another the Chief Justice and the whole Bench of Judges sate upon the life and death of the Man-slayer o Sueton. Traâ—q in vita Flavii Vespasian August Sect. 10. And when in the time of Flavius Vespatianus Augustus the Courts were too full of Causes that whil'st the old Actions hung still undecided new quarrels arose to increase them he chose certain Commissioners by Lot to Judge between party and party and to reduce the Causes to as small