by Execution to this end it is fit as most think to give a general Oath of faithfulness in their trusts although they agree it true that the generalty of men are just for Righteousness sake oath or no oath they are the same And so on the contrary but in a Commonweal in the State that England is now in it is fit to make Laws of this nature probationers for a time in each County and by due returns of what is done which is so required but neglected for that in all things its noted only from all Acts and Ordinances and Instructions earnestly required for a day or two and then rejected which is a great oversight in them supreamly concerned for it is visible all men are by this beaten out of the road of setled obedience and spin out time to attend the issue and that falling out as of old they will never be forward to service after so for service in Arms the forward appear the other slack so in Assesments upon the true value the forward pay to the utmost peny the other half no punishment but talking no deal gently thus is all sense of obedience to Powers and Authorities destroyed by the Powers themselves and their self-ended Agents seeking to make parties for one such time and person-server shall in this corrupt Age have more followers then 20. honest men But I return to my task If the supream Power have due returns let them see and judge out of the severall experiments made what is fittest to be the general head Rule and way of the charge of Arms It s visible in our condition at present the generality of the Nation are unfit to be entrusted but for accidental evils there can no particular remedie be well prescribed the general Rule wisely executed must be the top stone under God of the safety Magazines in the several Hundreds for the publick Arms of the Hundred or the chief Town adjoyning or such head Town or Town of defence in a County to be the Magazine of the County these have all their objections yea in a setled state all or any may be useful and in a distracted one may prove destructive now the difficulty is but to find out the best as we must say for the present temper of the Nation for its certainly true to settle unity love and peace and root out the jealousies and acerbities which are risen in a Nation its fit to have all the same general Law the Supream Magistrate ought so to administer Law that it be the same to all his Subjects To follow the crochets of Machivilian Politicians by transplanting souldiers is to nourish absolute dependences such as free Common-wealths explode only raise to an eminency of power to do good or evil at lust which is tyrannical no a necessary dependance is all here hinted which though some may extend farther then others yet while its rule is not absolute nor its constant practice there is no just ground for exception by this its plain the Laws must be equal that is respecting time place person estate c. and so universal now for the leading and conducting of these whether to place the whole under a general Command absolute and setled of a known Military Officer or of a Civil Officer as now the Sheriff and the other to be setled by the Supream power as need is is worthy enquiry yet easie to be determined for if it be looked into both will be seen necessary for the setled Law of England alwaies allowed the power of the County to suppress Riots c. and against obstinate offenders and oppugners of the Publick peace therefore the chief Judges in the County must have an Officer duly constituted who shall see to the execution of the Laws next to give the ancient Colonel or the Col. of Horse in each County the chief trust in order reserving special power of making an extraordinary Officer in chief is while Commissioners for the Militia are a Court resident the most evidently safe way Now we are come to consider a necessary engagement and that is the pay of Officers and Souldiers of the Trained Souldiers of the Nation To this it s easily answered if in actual service pay is necessary the doubt is only in time of peace now not to distinguish of peace as setled peace and disturbed peace intervalls of peace and war or outbreakings or fears I say in the most setled times its fit the Officer have some setled pay be it more or less as the Supream power thinks fit I shall not enlarge concerning that what the age of Souldiers is is not so needful ours is the best way that requires an able man of body and of this the Commissioners are absolute Judges It s not much requisite with us what rank a Horsman be of especially if the State be mixt Monarchy so called or Republical for honours engage not to a dependance that is should not but as the Law requires For offences done in the field and as Souldiers let them be tryed by the Commissioners for the Militia without any form of complaint legal or in writing that is so necessitated and let the Marshal see the Judgement executed For all things which now the Heralds exercise in Office and which the Lord Marshal did take cognizance of they ought properly to come to the Commissioners thereto appointed in the County and that for the Militia is the fittest for Honours arose from Arms and with them let the Records of Honors remain The Lists of them enrolled Souldiers Those authorirized to make and fell Arms Powder and Ammunition of all sorts Let them also have the sole power of watching and warding but by a like head-rule of a proportionate charge and let them have a set way by a joint consent at Sessions or as is by the Supream Magistrate appointed to raise monies to pay in case of necessity such as are imployed by them for the necessary peace of the County Let them appoint Superadvisors of Taverns Inns Alehouses c. and let them have their Licenses from them if allowed by the Justices at Sessions and you may make a Reservation of a Rent to the State to defray charges but to admit that entrance to increasing gain is a visible in let to all villany in enervating the good Law under colour of publick benefit which is most carefully to be avoided as the shelter to private knaveries Lastly the rule of punishments that is the general Law of punishing mutinous refractory and disobedient Souldiers and that both in actuall service and also in ordinary musters and trayning or better to express it appearing in Arms is to be considered and some other way thought of especially for trained Souldiers who are not in constant pay then cashiering or taking away of Arms for the despising of Arms is yet in mind and the honour of the trust of Arms is unknown it must be corporal punishment as whipping with cashiering some incorrigible rude unworthy
at last and though as the Law held forth a plausible remedy to all mischiefs so to this in the Chancery yet it hath been generally found the remedy was so far off and so dearly purchased that it was as evil if not worse then the disease and though these Courts might do some good heretofore yet now there accrued no advantage to the Commonwealth by them except the multiplying of Atturnies Alehouses and suits were a preservative for a languishing State To speak of Arbitrary Fines how intolerable illegal and inconvenient were to no purpose but all these evils grew in the Reign of Charls to an excessive burthen An other growing evil was the multitudes of poor which arose as naturally from a long peace and secondly from a want of a legal approved way of disburthening the Commonwealth by Plantations other then voluntary lest priviledge of the subject should be touched upon so fell it out A third reason was the multitude of Inns and Alehouses the Inns grew upon an old Law when the English scorned the lazy life of an Host aad there were few Inns yea too few for to lodge Ttavellers therefore the Law debarred none from taking up that Trade and the Lawyers not having a judgment against it say it is Law still though the Reason ceased long since The other is of Alehouses multiplying in all places sure for by-respects as knowing much drinking raises Malt and that Barley and so the Gentlemen let their lands and rack their rents more so it fills the rich mans purse and empties the poors Next it was the ordinary advancement of a Knights Justices c. over-worn Cook-maide or his Groom or happily a cast Fallconers fee or Huntsmans as the pentions which are now out of the casualties originally instituted for maimed souldiers Fourthly and most imprudently from the laxation of Laws in the Justitiaries of the Nation for whereas King James found the Nation so governed that they who could not maintain a wife might not marry for a License they could not have the Bishops taking care enough with their Officers that the poor might not have lawful favor of a Licence lest their Hospitality might be charged or impaired by their maintenance and their publike denouncing the bands of Marriage the fist time the Parish for the like cause hindred it the second if any cause were usually none were permitted marriage till the man were thirty five at least and the woman thirty whereas since they coupled at fourteen fifteen sixteen seventeen eighteen a great age this hath bred multitudes of poor weak and tender poor and so for want of due provision roguish lazy poor for many Statues are but all to small purpose some men being so chary of particular priviledges that they have undone the publike and to save a Rogue or Whore from whipping have starved thousands to death For this was the course of Englands good general Government they were all one body and that as men so as Christians and therefore what the Parish so called could not perform the next must if that served not the hundred must if not that the County and so forth and this both for a stock for work for those could work whereby they knew the laborious poor and lazy poor and could afford incouragement or discouragement accordingly Next for maintenance for those could not work or not to maintain their charge fully This now was in times of Popery reasonably supplied partly by the Deacons the proper Church Officer and partly by the civil Officers of the Town Charity being then the high step to heaven applauded by men as declared by Paul and though the great Charity went to Monasteries Frieries Nunneries yet these were pipes which afforded some refreshment to the hungry thirsty both strangers and domestike but now there were new Laws new Provisions new Officers and all to make supply yet the work grew so difficult it over-mastered the Actors partly from the reasons aforesaid but more from the niceness grown upon the Law so that the Justice of the Peace knew not what to do whip a Rogue or loose person or such as the Law held forth seemingly liable to the lash he was sued and there wanted either such cause as Master chief Justice thought fit a Warrant of Commitment or a legal so called Warrant either it expressed no cause or not thought sufficient cause yet the cause in it self more then enough either it was to Bridewel where it should be to the Gaol or the Gaol where it should have been to Bridewel this for Rogues Then for idle people that would not work the due order of assessing wages was left so that what Rule to keep who could tell multitude of young people living at their own hand some commonly reputed to live whorishly others knavishly others theevishly for they neither wrought nor had of their own yet lived highly to complain was unneighbourly so they went on yet if complained of what could be done they answered they would have Services if they could yet if in Service they would do nothing nor tarry but their own pleasure or do but what work they pleased and wages they would have as they list and compound to do what they list or be gone and the Justices were so terrified by the Judges and the Masters by the length of suits as all was grown to loose liberty For the binding out of Apprentises a good and wholsome Law that the poor educated in better mens houses might be trained up to be fit for imployment as Husbandmen and otherwayes truly through the pettish wilfulness or niggardliness of some men in Authority it was assumed to be against the liberty of the Subject to impose a servant upon him and few or none will take willingly so that the Law requires it but none looks at execution if any do the particular Justices must upon refusal binde them over to the Sessions where he shall be plagued and as he saith malitiously vexed with attendance and pay fees and then nothing is done 'T is truth the Law holds forth a way of raising stock to put forth Apprentises but this is as litigious for there is much ado to make a Rate if they will not do it binde them over to the Sessions is all and there Lawyers make such work for their Clients as home they go without Fine or other punishment And generally the great persons are most backward many think scorn to be rated by their neighbours and if they rate them they will pay nothing or not above their estate there which happily is two or three hundred pound per annum and may come to six pence or eight pence per moneth and they have one two three four five six seven eight ten twelve twenty thousand it may be and how do they spend it but in pride riot vain excesses for generally they either live in Cities and then charge them otherways then they like or list they are gone or in small Towns that is
so used which liberty being much abused the parties who upon the heat of the blood that is while the injury was fresh complained were bound over by Recognizance to prosecute for the King and so were the Witnesses but if the party or the Witnesses should refuse it it might much be scrupled what by our Law ought to be done to inforce them justly but Custome hath prevailed to go by steps The places of Trial of Crimes are either the Ordinary as Kings-Bench or Statute-Sessions or the Extraordinary and yet Ordinary viz. the Commissions of Oyer and Ter. and Gaol Delivery carried down alwayes with the Iustices of Nisi Prius at the Assizes or the legal Extraordinary which were an assotiation of more men then ordinary according to the novelty and exigency of the cause most legally and usually made up of all the Iudges of all the Benches and no other and heard in the Checkquer Chamber Now these are not to be scrupled in themselves the other and which are extraordinary and scrupled as illegal are meer Royal Commissioners consisting of Iudges Lords and other men according to the pleasure of the prime Magistrate and these were rare and but in case of great offences or doubts of imminent at lest so pretended concernment And there were two Causes the one professed which was the resolution of many wise men sworn to do right according to Law betwixt the King or State and the Subject who by concurrent Votes assured the interest of either party and surely were the Law by which they judged as plain and evident as the reason or foundation of their extraordinary judgements there would be no exception but the fear heretofore on the peoples part which is the ground to the present jealousies was in respect that Commissions pretended of that nature were aiding to the inchroaching vertue of the Supream Power to the advance of Prerogative especially after King James had made the Iudges which were the leaders in both these powers his meer Creatures by absolute dependance in altering their Patents as aforesaid from during their well abearing to during his pleasure How the Iudges Patents are now I know not but except the present condition of affairs make that now lawful which in it self is not surely such Arbritrary Patents are introductive of the heights of vassalage for if they in each Punctilio advance not the intendments and interests on foot of the Supream Magistrate be it good or evil for God or against Liberty or Bondage A Writ of Ease is next to be expected and that engages to the slander of every malitious enemy and he now lies open to the lash of every accuser especially if any litigious person hath been overthrown before him O how the man bustles and now is his time for revenge our eys have seen this and this I suppose to be the ground of fears of such Commissions I willingly avoid Ravelling Controversies upon presidents which in our Laws are so many and so diverse each from other and multitudes so contrary each to other as supream or most excellent reason must bear sway and then the arbitrium of the Commission will not be so much the question as the Law by which judged If it be objected against the adjoyning in Royal Commissions that they are nor Lawyers nor Iudges in Ordinary but Merchants c. I say there lies an Appeal to Parliament from any Court Ordinary or Extraordinary which receives Commission under the Parliaments Authority If it be objected they are meerly the States Pentioners then the Argument is against the Supream Magistrate mediately against their Iudges immediately and is remedied by appeal but this is manifest that there is no necessity of these Commissions they were continually declaimed against and denied as one gap to invade the native proper liberty of the Subject and if now inforced can but foment jealousie against the State Having now found out the proper Courts of Trial of criminal persons let us see who the criminous person is and how to be dealt withal the criminous person is vulgarly taken to be him that is accused Legally him that is convicted not differencing where upon examination before the Iustice there is confession of the party full evidence upon oath violent presumptions or barely suspition but all are dealt withal alike except they misdemean themselves and in case the matter be baylable baylable alike few Iustices looking at good bail but all the Clerks at their Fees in which case much error is where the Clerk is Iustice of the Peace or c. and the Iustice not able or too proud to draw a Warrant himself Now by the Law of England and just reason mens liberties being highly prised heretofore men were to be tried the next Gaol delivery I mean at the Sessions for the County but now by a Statute made in the time of Philip and Mary or at least under pretence of it all matters criminal being death that is out of the Rogues City of Refuge that is to which they cannot readily plead guilty of all Felonies within Clergy the still continued shame of England so that some use a hateful Proverb All Rogues to the Clergy and all Clergy to the Gallows they must be tried at the so called Assises This Statute was a great friend to the Clerk of the Assize above the Clerk of the Peace and those Iustices that will not see this Statute the Inquisitive Clerk of Assise can spy his time to fit him if he cometh in his compass which may be every Assises and though present put him down absent so he is fined forty shillings and to remedy it will cost twice so much Now in the Gaols the Schools of Iniquity they are not imployed and if any one will imploy himself he must purchase his liberty to use his Trade at the Gaolers discretion for there is no Law for it no not for Debtors so that having nothing to do the Prisoners confer notes and the older Thief Cutpurse c. still instructs the yonger in the revealed quidities of the Law Vain people think highly of these nice evasions of Law but the serious sees it makes the Law ridiculously difficult the great Rogues scape but the ignorant and unexperienced dye for it All honest men love mercy and are as loth simple Felony should be death as any but they would not men should by Custom abuse just things or endure unlawful ones or connive at wickedness Yet these and multitudes more well known have long and do still pass unremedied or are provided for but in part or for a parcel of the Commonwealth So that it is certain the generalty of men which once come into Englands prisons of all sorts as now used are spoiled for ever both as to industry and honesty yea so notorious is the evil that I have known many Justices avow it was their sorrow to be in place to be instrumental to such evils by sending one for his first offence to Gaol and likely to
multitude of prisoners in Norwich Castle being as per Calender 144. The civil part was there only determined and not the criminal Now I shal omit to speak of the abundance of forfeitures by this means though falling much upon the poor it helps forward the necessity of Levellers in the grossest acceptation by reducing them to absolute beggery I shall onely speak of the triall of the Gaol which will hint matters of some concernment First there was a Commission of Oyer and Terminer next a Commission of the Peace These Commissions are not setled by Act of Parliament in the County but are a part of Prerogative and grantable at pleasure of the Supream Majestie Now there were many Prisoners which were bound over to the next Goal-Delivery these the learned in the Law upon mature deliberation and after great advisement resolve they cannot try consider the reasons which I must own Legally of great weight but hear them by the Commission of Oyer and Ter. they could not be heard for the Recognizance was onely at Gaol-delivery therefore they could not be called by the Commission of the Peace they could not try them for the Sessions of the Peace had before referred them to the trial of a Superior Judge of course for difficulty of the matter but if was agreed that had a Commission of Gaol-delivery come the same men without a Superior Judge or more skill or knowledge in the Law then they had before would have tried them Is not Form the Idol of the world I appeal to the Supream power for the priviledg of the Nation and beseech them that the due rights of a Free Nation may be established in setled Judicatories in the Nation Here also fell out another Quaere at this great Sessions namely what to do in case of an Under-Sheriff who should execute his Office beyond his year contrary to the Statute we found this The High-Sheriff of the County as usually before to the great prejudice of the people of the Nation under the late King did make a bargain with an Attorney to be or find one to be for him such a one as he would undertake for his Under-Sheriff This man contracts with the Kings Sheriff accordingly and himself and his son a young boy as the Justices upon view judged him of about eighteen years of age execute the Office both at the last Assizes and this Sessions and the intervals not having taken any Oath it was demanded of the boy who was Under-Sheriff he answered his father but his name was used he was tried by the Justices to read a precept he could not do it so for double disability he was disallowed by the generalty of the Justices by this practise if the Father were Under-Sheriff he lost two hundred pound by the Statute for this year and two hundred pound more for a year before for it is said he hath served now three years and I beleeve unsworn all the time if due inquiry were made Next the son forfeits 40. pound for executing without Oath yea though unfit but notwithstanding all this two Justices of the Peace present at the debate do the next day swear this Boy thereby sure intending to intricate the business and give the Father leave to plead against his Forfeiture of 200. pound or question for executing the Office unsworn I say no more but I think they deserve a Fine above his besides forfeiture of their Trusts and the rather because the mans integrity and so fitness for the Office is as much questioned as any mans in Norfolk Gent. To sue for this in the Travailes Expenses Delayes Tortures of the Law who will You are the Fathers of the Family if you please to take this notice according to your Trusts who are in the places of Eminency and Supream Power in the Nation from a son a brother a Citizen of the Commonwealth do if not I have satisfied my Conscience the evil lies at your door if you think as they who have gone before you have done to salve all with The Law is open 'T is begging the question We say the door was never so fast shut as now either in the setled Law Courts in Ordinary or new ones of Committees for though the doors be open that is there is easie beginning suits that is it is easie to complain yet the journey is great from the remoteness of places and in Committees 't is so difficult to get them together in the other Courts there is so much business that there are so many obstructions to right especially of poor men or quiet spirits and especially the men of Law are so favoured that there is a dead heart in all men to seek Reformation Remedy this and you will finde complainers enow But if a great man now be complained of for just things as have been offered to be avowed upon Oath yet rather then stand the shock of a suit the wise mans Councel in Ecclesiastes is the poor mans comfort Go not to suit with him that is too mighty for thee compound with him is the way though he requires all thy substance as too little to satisfie his wronged honour brought into question such a one as he scandalized though all his friends know the truth of the case how wisely soever carried that is legally avoiding the reach of the practical Law so called I know no truly wise and prudent man desires a measure exactly just that is such as against which no objection will lie no surely if there be such bad Christians there will be evil men what is desired is not only possible but feasable were there but just endeavours after it were not the diversions so visible it were tolerable but when it s well known that all eyes are upon you when all engagements and Artifices which the Religion held forth or prudence at best suggest have been not only proffered but penally enforced what but a seared conscience will not relent or a nealed face blush Former services do not acquit latter offences the instances of the elder of the Horatii Manlius and other among the Romans and multitudes of other in other places evidence The greatest and mightiest Princes are subject to the same proportionable changes with their meanest Subjects and the Subject hath this advantage he is best able to bear it Our evil hath grown from lenity our remedy must be at least necessary severity and if you be not guilty you may use it freely 'T is offendors cry out so sternly for mercy you are now by true interest and obligation to labour a well grounded peace to this the occasions of publique disgust must be first taken away Remember natural and rational Priviledge the clearing of interested Dependancies take them away they are visible and visibly known Next settle such plain and evidently rational Laws and proceedings as may assure Justice in the end and that Common and Universal Justice that as England is one our Law may be one and that known this will
presume must be from the hand of a Heathen rather then from the word of promise is the fruit of strong contemplative zeal for the punishment so it holds its due proportion take it from the Turk if you will or Persian it matters not The Turks punishment so it be not Torture may suit best the spirit or genius of the Nation for to burn hang behead or stone all is but death and this difference had Ceremonies so called been lawfull to be enjoyned might have stinted our controversie of old between the then so called Protestants and Puritans for the receiving the gestures set formes of Prayers Ornaments and Formes of and in Church-Service so called And assuredly it ever hath been one of the Devils gyns to fright men from truth and right by miscarriages in the manner c. hence cometh the scandals of profession from the errors if but of one or two hypocritical or mis-led professos we may as well refuse the Scriptures because Heretiques use them and that they lead to Judaisme is a great error for surely Judaising was intimated in no part of the Judicial Law of which any question can be For the exception in Fornication things strangled and blood the last two being meats we are now freed from There is a holy jealousie which is for God and is commendable and there is a pertinacy from interest which is Idolatrous and wicked the Lord open mens eyes especially those in Authority rightly to distinguish that they be not found fighters against God Now who are to expound this Law and settle it and how far their power extends is our next task 10. Who have the power to make Laws and how far that power extends SOme may think that the Judicials being laid down to be the fittest rules for Christians or any men to live by That this Quaere is needless For what have we to do with Law-makers of or among men when God himself hath fitted the work to our hand But these men must know that time brings to light new inventions of sin Satan goes about in variety of shapes and deceives daily and these offences many of them will be difficultly referred to the proper head of Transgression therefore it is requisite that there be a superintendency to oreview these errors and apply a remedy in time according to their rule yet to punish life with life goods with goods c. Now these are various according to the either condition or constitution of the Nation or both the constitution according to setled Law and constantly received the condition time of war or peace Now the time of war being only accidental we are specially to consider acts done according to the setled constitution of the Nation be it by Monarchy absolute or limited or Republique Republiques of all or any sort and their boundary is common and publique good and that either according to emergent necessity as in case the elders of Gibeah had consented to have all their eyes put out for National advantage for in such a case the elders had turned evident Traytors to their trusts but to lose one or either eye This will receive somewhat more ample satisfaction if we consider seriously 11. What are the proper Rights of the supream Magistrate so called Prerogative NOw in the handling of this Question it is fit a little to open what is Prerogative now this simply taken is the Priviledge or preheminence that one party hath either above or before another and so is no more then to have that of right and duty which others have by accident or by favor as to have the most honourable place to be heard first and such like But to take it in the proper latitude it is the sum of all those powers priviledges Rights and Immunities necessary to the Supream Power whether person or persons according to the strict rule that thereby the people may be the better governed according to the loose rule that the people may be kept in subjection and the glory of the King or Ruler exalted and that as to absolute Power over both body and goods Now therefore to treat of Prerogative in such a sence is vain for Prerogative is absolute power and what the Prince pleaseth is his Prerogative and this was assuredly aymed at here Now Prerogative according to the strict Rule is of two sorts that is more or less strict as for example some Prerogatives primarily usurped by time are agreed to and after constituted such as our vassalage of Tenures whether in Capite or that by grand or petite Serj. Escuage Knights Service Soccage or Villenage all which the estates of the Nation have looked upon and not annulled but regulated and the Kings sought to avoid those Regulations Now the more strict Rule of Prerogative is to give the dues necessary and that both for honour and order and safety which both the other are but as handmaids to for the etymologicall fautaries I pass them intending to hold out truth in her native simplicity without the ammusive garnish of needless witty vanities This then agreed what Prerogative is in general from hence it may be collected that what ever is necessary or rather of necessity to the well being of the whole is to be in the Supream Power Now this which is by some and generally alledged as proper to Kings yet must be also in all Supream Magistrates as Dukes Earls c. yea though Vassals or Tributaries to other Princes and must be also in Republiques or where the supremacy of power rests in more then one person whether Aristocratical Oligargichal or the pure Republique viz. the Democratique State For the Prerogative is incident naturally to the Supremacy of power and that of necessity for they are the Superintendents of the whole body and are to have requisites to that Office as necessarily as the father of a Family or any inferiour Magistrate under him ought to have to govern in their bounds precincts limits and places and therefore the Law of England justly in the matter however in the attribute or that to admit comparison with the Almighty might or may offend some mens eares by way of illustrative Analogy gave a kind of ubiquity or omnipresence to the King and so to the supream Magistrate as the first part of his Prerogative his diffused power for common good so ordered manifesting it self in all Offices whereby the publick peace so called the Kings peace was preserved and was necessary every where But as more necessary so more apparent in the Courts of Justice all of which were called the Kings Courts and the Process the Kings c. Now we being ruled by Laws for to avoid the inconveniencies afore-mentioned of pusillage and folly and alterations accidental to the best of men depraved through the fall make this supream power vertually to rest in setled Laws and by them they rule and so neither death folly nor any kind of wrong or injury can by the estimation of Law be done
or default the offender to be punished and in case of inconveniency the place to be dispriviledged Again It s no dispriviledge to a Free-man to have men attainted of crimes severely punished yea in some cases not agreeably to the letter of the at least present practical Law As for example a person dangerous and oft suspected for criminal matters as Robberies Burglaries Thefts Cutpursing and the like is acquitted by the formal ignorant or packed Jury for want of a clear more then noon day evidence which is now with Jurors through the servile terrors of selfish Judges expected if such a one for the peace and welfare of the Publique be detained in Prison made to work c. so one who hath had his Clergie several times So of gallant Rogues who live high and can give no account how they come by their expences to secure such is no doubt the great priviledge of the Subject These matters can never prove prejudicial to just or good men in a well ordered State they tend to the well setling of any State and although some may abuse such power against good men sometimes yet this is well known That that is the evil of men not of the power punish the men and appoint better but necessary power must alwayes be upheld This may be much opposed by some whom I have found earnestly to contend that prisoners convict of Theft and Vagrancie common Milchers and Pilferers could not by the Law be polled that is have their long haire cut off no not when it hath been proved they have made that instrumental to their roguery The Custome of old will not prevail but their new fancy that nothing of reason is Law but what we have an adjudged case for this must be maintained for this is their Diana who so stickle for Rogues and therefore they will not do this but advantageous customes are revived or created though no better and less reason thus they Tyth Mint Annise c. It s no dispriviledge to be enforced to plant yea if a Law were to plant the North and West side of each inclosure with fruit trees and the South and East with Timber and other wood and when any Close were above four Acres to have one row of Timber or fruit in or about the midst It were no dispriviledge to have all Commons inclosed and improved a certain quantity only kept for the meer poor of the Town nay it s the only way to advance the Nation provide assuredly for the poor who now all are eaten out by one rich Clown and make good roads for Trade and take away the Nurse of poverty It s no dispriviledge to alter the Heathenish days of the Moneths and weeks and idolatrous ones of Saints dayes Feasts weeks c. Nor to admit no Market or Fayr of speciall note save on Wednesdays and Thursdays so called that going and returning be not at all on the Lords Day No nor to take away multitudes of old needless Fayrs in England the principal end as practised being only drinking and wantonness It s no dispriviledge to have a Law that no ground within a certain space of a City or walled Town be plowed but all for pasture except allowed and that onely once in a set quantity of years by the Magistrate thereto appointed for necessity and then not except only for Roots Turnips and the like It s no dispriviledge to be punished for keeping Swine or using certain Trades in the heart or great streets or neer thereto of Cities and great Towns alwayes provided they be not tolerated under a rent or any payment to be enforced to sweep streets cleanse Vaults avoid Dunghils yea if it did extend to the avoiding or purging the belly of other excrements then water in any place and not bury it It s no dispriviledge to have the Magistrate set a rate upon what can admit it nor to punish the inventors or wearers of new Fashions It s no dispriviledge to enforce by Law to Tyle or Slate all houses in Cities and great Towns To conclude a general Law can be no dispriviledge nor any Law which truly intends publique good the not equal administring of that Law is a dispriviledge but then the fault is in the Judge not in the Law though it may prove very burthensome as in times of Prerogative nay destructive to a particular which evil will and ought to have a speedy remedy by complaint and due punishment not by alteration of the Law I come now to the last controversie of Priviledge and dispriviledge that I remember that is That men of such Estates shall not keep Hawks keep Greyhounds Guns setting Dogs Nets and the like many have questioned me what benefit we had by all our labours hazzards payments c. if this were practised they had as live the Lord Matravers should take away their goods as the Justices of the Peace but being informed what they did was according to Act of Parliament what he did by meer power what he did was to break the hearts of the people and fit them for slavery what the Justice did was to restrain the vanity of youth and keep poor people to labor that through the vain delights of sporting they might not neglect their Family what he did was to enslave poor and rich equally what they did was only to regulate exorbitancy and looked onely at inconvenience they all resolved the thing was just they would willingly submit and desired a certain enforcement of so just so necessary a Law 2. That trade should be regulated which most assuredly as to well working making fitting and trimming of matter is out of all doubt necessary if not of necessity but as to the times and places of sale wherein one Merchant or Tradesman may outreach another and may border upon particular interest that is not so easily determined only this the Supream Magistrate must take a note of direction that there is two evils which to well settle a free trade must be provided against First to loose a rule which is to place the superintendencie of power in the vulgar Artificer which will at least end in confusion the next is too strict a Rule giving the Masters of the Company as you may call them such a power as they shall make Laws and enforce the execution upon such terms as shall out all Freedom but only in name therefore some general Rules must be laid down and every County must have a Conservator of Liberties of Trade to restrain from unjust encroachments either of the poor by multitudes or rich by power and this will sureliest settle the foundations of all Priviledges But there is one Priviledge more yet remaining which is as it were the essence of all or rather that which in the enmity of the world doth secure all the rest and that is that the Subject himself unless he forfeits his liberty be master of his proper Arms and imployed in the setled Militia of the Nation For it is
where they may have no neighbours and there they have Cottagers servants but no other and some by this means pay not one penny in a year to the poor but their offall well they make a Rate the payment is refused what course now to come by it some Rates are to demand and within six days a distress others within four days some by the Constable some by Warrant from the Justice of Peace that signed the Rate some of any Justice some the distress is taken to be sold presently some within four some six some eight some ten dayes some the overplus is to be returned some deducting charges some certain charges some incertainly and so for Forfeitures and so Warrants some things to be done by one some by two Justices whereof one to be of the Quorum upon penal Statute Laws c. These variety of Laws were the Lawyers gins for seldom but the poor Officer smarted for that the Justice to avoid quarrel with him left his Warrant with this general clause at last according to Law which the poor Constable taking simply according to the literal Tenor of the Warrant he seldom went according to Law Thus was all due proceeding and the substance of Government lost to preserve a fair husk of so called priviledge of the Subject but the husks vertue had this attractive that all the idle money and good money of the Nation was dreyned into the Lawyers purses and the difficulty of the Law was invented by them assuredly on sâ—… purpose onely to keep up the Trade and not discovered by the Judges nor discountenanced upon the principle that every one had their times so letting of servants at Petty-Sessions and their not departure without a testimony and such like all grown to disorder and the rather because now even the honors of the Kingdom were as aforesaid made mercenary to the ends of Covetize and Tyranny and the debauchery of the Gentry spoiled the whole Nation so that the ancient Gentry whether of Brittish or Norman Race was lost wholly in the puddle of foolery and fashion so that put a childe into either a rich man or Gentlemans house and they learned nothing but the foundation of beggary they there growing onely nice neate lustfull and lazy But to return Thus were the Justices and all Officers made tender in execution of the Law and thus the Law extinguished And hence it grew that even Felons Murderers and all criminous persons had at last as much favor as baseness negligence and security could afford for no Hues and Cries were at all prosecuted with effect for no punishment where they ceased and the burthens of Constables in their services were such and the office now put on the meanest persons for vexation that little knowledge he had of his work he ignorant and the Law thorny both for understanding and execution so that he onely put off the work but to act vigorously or with care he durst not lest his own fire should burn his own fingers for if he were diligent and apprehended a Rogue he was bound over sometimes to prosecute the Rogue or Felon for want of an Attorney for the King or his not executing his place duly yet all Processes were by indictment at the Kings suit but however as a witness and Indictings and Recognizance Fees made them soon weary besides three or four dayes attendance and not one penny for all their charges Thus were Rogues incouraged and obstructors and disobedient to the Law Government and Reason whether for Covetize or worse ends sake is evident But the justly feared end of all this by wise men was that by the iniquity of this frame now wholly and visibly naught and lost the Subject might be enforced to submit to such Rules of Arbitrary Government as the King by his Edicts whether personal or from his private Councel should send forth to which all they of his Councel were fitted and all his Lords and Gentry to them by the means aforesaid Now that this evil is faln upon us is evident is it not known to all there was no due return of Warrants by the Constables for execution of Justice twixt man and man but that the party must enforce or secure the Officer or nothing done yea the Sheriffs of Counties from the nicities of Laws would not execute a judgement without securitie to bear harmless rather venturing breach of oath then the rigidity of a suit Now one Reason will manifest this was not unnecessary on their part for their at least practise of the Law did bear that if execution were upon another mans goods though in the shop of the party and of the same condition with his Trade yet upon a Trover and Conversion a figmentious Action the Sheriff must be overthrown these were the ways to prepare the Free people of England to slavery and absolute vassallage they doting upon their so called Laws The Bishops corrupted the Prince the Princes corrupted the Judges and they being the speaking Law the dead letter did little good so that it was time for English-men to look to themselves here were Symptoms enough of ruine threatned both to soul and body and estate but the wayes were dark for the contrivances were fitted to every capacity say Popery was intended nothing less the Laws sharp and execution visible as to the first part calling in question indicting and conviction all this brought gain The next step was gain also that is discharge upon composition Say Tyranny was intended to be introduced no you have your Judges both sedentary in the ordinary Courts at Westminster and Itinerary in the Counties and they gave the Law where was the King to be blamed this suggested and the evil continuing the King walks higher and by Pattents of grace so called that is the meer Will of the King he inhibits subjects their Trades and under a colour of mischief brings in an inconvenience that is to prevent an incertain charge or loss he imposes a certain charge and this contrary to Statute-Law these were called Monopolies London gained as much by this destructive chaffer as any place truly engrossing all Trade to her self under pretence of regulation which is necessary for the outward formal pretences of Companies of Merchants for well-making ordering selling c. of commodity is good but to leave them that are Masters of the company to the sole making of the Laws and execution also is destructive they are like Benchers of Inns of Court no Sir le ts not make Laws to bind our selves as if the place had given all power to them they make Laws only subservient to their own ends I shall exemplifie but in one petitioned against in Parliament these Merchants having places of Mart or sale the Masters agree in private send away their commodities and some dayes after declare where the Mart shall be theirs are either arrived or half way or prepared to the voyage when time 's so scanted to others if at all possible that the
or suffered by the supremacy of power so that truly the Law saith the King can do no wrong that is the Law by the supremacy of power enables him not to do wrong and to speak out the whole truth to men of the meanest understanding This law and the right understanding and executing of it is the highest Prerogative of any of Gods Vicegerents in higher or lower sphears and is the agreed Rule of common good as before-said Now our great error and delusion of late was to give that to the person which was due to the Office and to subjugate the Office to the person and not the person to the Office which the Law would never admit for the Law that is the purity yea tanscendencie of Reason leaves the person of the Prince naked in case of Male Action though it censures not in all male administration where it admits him positively to judge I shall give you an example to illustrate for if the King enters a mans house disguised and offers to vitiate his wife daughter c. and be slain of the father husband c. it is but as the death of an ordinary person and truly by the principles of the setled Law be he known it is no more I shall put but one Example more A Traytor is by vertue of the Kings Writ brought before the Judge Arraigned and Condemned the King grants no pardon which I suppose he in such Cases cannot generally though it was done customarily nor uses no legal peaceably way but by force personal sets himself in Act by his Guard to take this Traytor out of the hands of that Justice to which in his Politick capacity he hath Sentenced him and the Sheriffs men defending the Law and the Guard by the personal command of the King seeking the overthrow of it by taking away illegally the prisoner and they fighting about it and the King running in he is slain it is no murder by the principles of the Law which owns not the King in this Act of Tort and Force and takes no notice of the death of that person as King who in Law dies not for the Law cannot now take notice of it because out of his Sphear by this it is evident to what end the Magistrate is cloathed with so called Prerogative namely the advance of publike interest Now as in this sort it gives to the supream Magistrate the glory of the Courts of Justice and the disposings of them as one part of Prerogative so knowing the honor of the Supream Power cannot be maintained but by some set way as it seems the Ancients provided here so much of all sorts of provision both for the Kings Family as also for his Stable at the so called Kings price exceedingly abused besides the so called setled revenues of the Crown namely Crown lands Fee-Farm Rents c. So it also provided for Emergencies and that both for charges upon the sea and also for the land by Customs now so called Fines Forfeitures wrecks of the sea how unjustly soever land deserted of the sea lands of Ideots Treasure found goods without owners Tythes of lands out of Parishes and the like And upon these or any other matter if any debt did accrue it was satisfied to the King that the Commonwealth might not lose before any private person could be satisfied one penny the abuse of this was grown intolerable but I here treat of Settlements and how long since it was in the Kings case it matters not for no slipping of time could prejudice the Kings Title as in case of a common person who was tied to sue within such a time or the time might be pleaded in Bar as was justly enacted Now the reason of this was just and good preferring publike and universal good before private and particular yet this proved offensive oft-times because it was made the instrument to absolute Injustice while restitution was made to the King to the evident destruction of a stranger that is a third person whom the Law left remediless yea though utterly undone and begging from door to door It was also for the same reason construed to be Law that in all Grants made by the King they should be taken most beneficially for him and that they should not erre to any other construction then what was manifested in the body of the Grant that is the plain letter must be taken and no implicite construction of Law shall be taken advantage of against the good of the Commonwealth as against a particular party And lastly In case of Grants it is void if it appears that the King was deceived in his Grant truth these originally just things after the fatall wisdom of the Law was politickly perfected came to be made the Mystery of Iniquity for it was said the Grants were made according to these received Rules for the Kings sole benefit whereby he that was once made the Kings Officer was ever after scandalized for a Knave and he that was once the Kings Farmor Grantee or Debitor his estate was alwayes after esteemed incombred Now this was more feared when it was granted to him by Judgement of the Judges that he in Temporals might by a Clause of Non obstante dispence with any Statute Law and that though the Statute saith such dispensations should be utterly void as it was in the time of Henry the seventh the beginning was in Edward the fourth not so plain Acts of Parliament bind not the King unless especially named Now these unhinged all our Liberties for by the one he was not bound except named and by the second he might dispence how-ever named therefore these how ever used I cannot reckon as legal Prerogative I now proceed with Prerogative called Just that is That the King or Supream Power for the benefit of the Commonwealth have the estates of those that die without heir for no private or particular heir being the publike is rightly preferred so if they purchase who have no right as Aliens they have also given him those Royal Mines of gold and silver lest such things in Subjects should raise them so high as they should be able by leavying Arms to contest for the Supremacy and attempt a Tyranny Now this if agreed as agreed is most just They gave him some honorary respects meerly as for example That the Lord should not seise his Villein in his presence how justly may well be Quaeried For if just to be done why not more just before him To which may be added That Amerciaments Fines c. which had no exact literal Rule as offences made by Statute punishable by the Justices at Sessions with unlimited Fine or Amerciaments were said to be by vertue of his Prerogative as his Iustices that is they were to Fine at discretion that is according to the nature of the fact respect had to the Law that is saving his Freehold or not to the value of his Freehold or so that he should not for to pay that Fine be
ballance against Iustice but wind and dust This Machivellian reason is of the corrupt Court viz. men by these private litigations wranglings and contentions are fired in spirit each against other and so are taken off projects against the publick peace of the Nation but a Christian will easily beleeve this reason heightens both publick and private vengeance Besides this blind reason makes no distinction betwixt poor and rich just and wicked men but put all to the Oare and let them tug for Mastery and the Lawyer sets on the bank and with their labour is carried into the Ocean of so gotten riches this I presume sufficiently evidences that the Laws ought to be without any question in the Native Tongue plain and few and nigh at hand Next let us know how we should have them administred wherein waving the private interests aforesaid the matter will be plain for it is agreed on all sides That Iustice ought not to be delayed no more then denyed or sold the Subject demanding this had no more but Iustice when it was granted in the so called Magna Charta Now I suppose this delay must intend not the customary time of lawing but the due time and that peremptorily except in cases of so called Essoyn that is when such due case in Law appears as all reason must agree there can be no proceeding but with greater wrong to the other party then the stay can be to this which is injustice but the truth is to have so many reiterated summons formal and costly for small causes is yea though it were Law that is formerly so either established or practised unfit to be so continued And in many cases formal processes are vain dilatory and ruinous and the Subjects priviledge is that is just mens to have all such excrescences cut off and meet Medicine applyed to the wound the want of which after so many Vows Covenants Promises Engagements c. giveth spirit to the enemy and sets an edge upon their reproaches and deadens the hearts of all true friends to Iustice and Righteousness Some Nations would never suffer the Sun to rise upon a crime unpunished committed after the Sun went down and so not go down before punished if acted after Sun-rise you must suppose complained of and possible to be effected But the meaning is their punishment was immediate others gave three days others fourteen dayes Now the best men alwayes give the least time yet enough delayes whether in criminall or Civil Cases alwayes are the nourishers of corrupt ends if not perjuries our Judicatories are for Civil Cases in some places weekly but the business in formality depends a quarter half and sometimes a whole year let there be justice done under a penalty Now the trick is delay till the Witness be gone or hath forgotten it or can be wrought off or the Jury fitted to the turn The Heathens abhorred what Christians practice for the Criminal part the Sessions are or ought to be four times in the year but the now Lawyers are so afraid of their own Law for it is so doubtful that few but the Superiour Judges who by reason of their places must do or will understand it And hence men for ordinary acts lie sometimes twelve moneths two years in prison by Adjournments and no penalty upon the Iudge for he is seldom evidently faulty but the Clerks no Commission to try him or a defective one whereby the prisoner is without all Remedy Next the Processes for the Tryal before the Iudges are not every mans purchase and the appeal being onely to London the charge which rich men and free men count nothing of is to poor men destructive and unsufferable And we had need call for setled Courts and Laws and the Judges to determine by a day under a Fine or Penalty for in Arbitrary ones and so remote as London from many parts and the Clyent must go himself or his case is lost and undone where orders are gotten to day and then the party out of Town revoked to morrow and Order upon Order Term after Term and Judges sittings uncertain onely when they can be perswaded together What is it but the Abyss of confusion and that which threats most direful plagues and judgements to the Nation let the honour of the Nation be never so much pretended yea though these acts were done to enemies both of God and men solely and onely For pure and holy Justice is prostituted if not ravished nay is then made the Bawd to each exorbitant passion and affection Wise and Just Law-givers must therefore settle Courts in due and fit places times frequent and ordinary yea if it were every day and enforce prosecution under due penalties And in case of appeals while appeals which in respect of difficulties and that of moment may be betwixt persons mean and of small ability that they be setled in due places and ordered in such manner that Right may be done to the meanest not as in the formal way of so called Forma Pauperis and all the Processes thence issuing where the cause is determinable all Dilatory Pleas excluded and errors of course amended and no error pleaded after issue joyned These are principal priviledges of free Subjects but indeed the highest and greatest are least understood or regarded by the many Now whether these Laws be administred in the Towns Hundreds c. is in the Supream Magistrate surely in the County and in a due place there both for convenience of Travaile and Reception of Suitors not in Confinio Comitatus The reasons for and against this will not be worth the while they holding forth nothing of moment more then what is before declared onely this That by this means every County will have a various Law and carried according to particular interests of places and persons but this is not be esteemed for we allow the Supream power the enacting the head Law So that the Law will be the same though the dispensation may be diverse then as it is now and ever will be for bind what you can a wise Iudge will have or make to himself a latitude but if truly wise who will grudge while Iustice indeed is his onely ayme and end But to avoid such and the like Objections If the Supream power settle County Courts both for Law and equity and admit once yearly itinerate Iudges to receive the complaints of Suitors against all other Iudges and for determining difficult matters in Law after the manner of the now Assizes it will take away all the grounds of interested objections against the necessary administrations of Provincial or County Jurisdictions which some frame from the reasons of County as Congregational Independency or their seares of introducing the Churches giving an Analogicall Rule at least of exteriour Governement to the Common-wealth Now having taken this short view of the Laws Administration let us in the next place consider the Qualifications of the Law-giver and Law-dispenser whereby Iustice may be executed
negative From this I shall take liberty to exemplifie It is not fit any Iudge receive a New-years Gift Gown Cloth Venison Mutton or the like from any practizer at the Law as well as from a Suiter at Law for though I would not nor can I asperse any in place of Authority yet these things having been found evil and inconvenient it is evident then that evil may be And as good men must shun the appearances of evil so wise Magistrates must take away all things giving just occasion of suspition therefore it is necessary not onely to have these things setled by the publike Supream Magistrate but also published that so each man may know his duty and for this case it is thought inconvenient any one that takes a particular Fee of any man to be intrusted judicially for many aspersions have lain upon Iustices of Peace Counsellors whether deservedly or not I cannot affirm but it is justly suspected when they have been more fully informed of the Case and pleaded more earnestly then the retained Lawyer for his visible Fee but this is the present Opinion and thought of many who also conceive it just that a Iudge attempted by Bribery should complain to a Iudge duely appointed and the bribe-offerer convicted to be punished as well as the bribe-taker for neither in the Politikes of Christianity will be allowed The next Qualification of a Judge is fearing God in the Law in the Gospel it is the same but hath many parts for sure his qualification ought at lest to be as high as a supposed lay Elder then he must be in Church Communion and not onely not given to filthy lucre but sober or grave in his behaviour ruling well his own Family which now admitted it is a hard matter to fill the ordinary seats in Westminster for such is the looseness of all Government that Government is esteemed harshness cruelty oppression tyranny and worse if worse may be but this is enough to a wise man onely this he must not be subject to Anger that is overcome of it And it is the duty of the Chusers of these men not to satisfie themselves sleightly in these qualifications nor of the people too readily to asperse for unless defects be evident and notorious Wisdom will cover on the one hand and fear of punishment if that be readily allowed bridle on the other for there will be such an awe upon spirits that whom love of duty and vertue cannot prevail over fear of vengeance will I come now to consider by whom the Judges are to be appointed to which it is easie to resolve That it properly belongs to the body Representative none fitter in ordinary course unless otherwise ordered by the Supream Power according to the establishment of a Nation for assuredly the chief Judges are the Arteries of the Commonwealth and therefore a due and just dependance upon the Supream Power is requisite but never would the Supream look to all administrations And if Judges be in Provinces or Counties as is due not onely the sedentary at the elbow of the Supremacy but the chief in the Counties ought to be at least allowed and authorised though the nomination may be in the County by the Supremacy but that all be done in this kinde by an open plain known publike Law is most requisite Now before we come to the duties of Judges we must shew the necessity of excellent Qualifications in Judges in point of due temper both of passions and affections for it is before asserted that the Judge must be bound by a head Law which takes away the pure Arbitrium and also to punishments which he may not exceed and that both corporal and that as well to restraint of Liberty as Correction so called as criminal or purs-paiment And this Prudence allows an extraordinary care in the due choice or speedy care in removeal of unfit Judges which is that principally can free from diversity of Laws according to the divers natures of men in regard of which diversity of spirits as fierce and untractable and quiet and meek the Magistrate as before ought to have power above what is at all times and to all persons fitting to be used We have seen that the want of this and putting men for riches or Family sake or other outward relations as of breeding and the like but no way improveing them in place and honored with judicial trusts yea though but a Justice of the Peace hath made Justice it self either from weakness or wickedness disesteemed whereas let nothing draw from the natural rational Rule and you shall see Justice carry that due Splendor and Majesty which properly belongs to those who bear the Image of Gods name in a more especial manner Among Judges I also must intend not onely Justices of the Peace but Constables yea and Jurors who now are made of men of no esteem and so justly disesteemed For Jurors if they were but bare Judges of fact yet in that they are Judges and ought to have their qualifications accordingly for estate in them it is necessary because their disburthen is by dammage But as to other qualifications respectively as others for the choise of Judges as the the Supream ought to chuse the next immediate so it seems to some that the Judges gradually ought to chuse but that savors more of form then substance for the necessity lieth not in the Judgeship but Supremacy which if wholly in the order of Supremacy devolves into Tyranny naturally as on the other hand into confusion if wholly in the populacy To place it in the Judges is solely to establish interest which yet being most inconvenient is to be waved with greatest severity and care And it seemeth best to place the choice of inferior Judges in some certain men of the people duly qualified with due regulations of necessity to be observed One word to their duty which will on the contrary evidence defaults The duty of Judges therefore is twofold first to hold forth practically as well as literally the true and proper sense of the Law and not to admit Formality Practise or Custome against the letter while the letter holds forth ought of Justice in the setled State at least for that liberty brings all Laws into the meer will of the Judge Secondly where they perceive error in Law which gives just cause of exception it s their duty to declare the same publikely to the Supream Magistrate with a fit expedient whose duty it is to enact a due remedy and establish the same accordinly if upon inquisition the same be found just otherwise not and if they do not they perform not the trust reposed in them for the Supream Magistrate though in the Democratike State where most eyes and ears are at work and jealousies be highest cannot discern each dangerous obliquity in legal administrations therefore they who are intrusted should in their places consult for preventing evils as well as for remedying and this is to have Judges as
person or running the Gantlop and this by the judgement upon vote of the Officers of Troop Company or Regiment if the Regiment be there Seek not many but fit souldiers but look none keep Arms but those charged or allowed by the Militia or Justices as now one is fit if not of necessity I have now but one word to the Commissioners and Officers and in them to all Officers of Trust Judges and others be strict in your duties to your Supreams and require nothing but just things and obedience will flow of it self it is the Military power that in all alterations of State gives forth the Rule of Government from their order is the Nation setled Reduce therefore your Discipline to a just and setled Rule and then each one labor to beget this opinion in your Souldiery which is truly a Christian as well as prudent humane Maxime That the riches and safety of the Master is in the emulation of servants but as that so this must have a just emulation and by that the Army and so the Commonwealth will be established and preserved but this emulation is fit to be a little better known It consists principally in the glory of doing good but that doing good is materially in avoiding or hindring of evil I mean they that will faithfully serve the Commonwealth must not only keep the Laws themselves out of conscience of their own duty but also see to and as much as in them lies that is as lawfully they may in their places enforce the performance of them by others the want of which hath so disordered Civil Government that he that requires or advises but the obedience to the Law or a just and consciencious regard thereto is thought nay called a busy-headed fellow a Roundhead a pragmatick self-conceited shallow-brain'd fellow Turks and Heathens will rise up against us Gent. you it is that must redeem Authority buried in the ashes of politick mercy which hath destroyed Kings will ruine this Commonwealth ere it hath the honour of a settlement unless the prudence of power set it on his legs again with the blessing of the Spirit of the eternal wisdome without which all mans labor is in vain But I proceed with my intended settlement Whether Indictments or Appeals are to be pursued in cause of crime or both HAving done with the due regulation of Arms which under God are the great staies and support of men to assure their peace quiet repose enjoyment of what God by their friends or labors hath vouchsafed them for I must agree that the foundation of humane happinesse subsists in the providence of the Almighty however he useth us as instruments that is gives success to our endeavors thereto We come now to look at the civil settlement in the remainder and first because the criminal part of law is of most and greatest concernment as looking at the life of man I shall therefore look first at that now in this the difficulties causing difference are these in an appeal there must and ought to be witness besides him that appeals for he is the accuser and that either in his own right or as next of kin but all for private benefit Secondly there the dammages are to the party and it is a personal thing proper to the complainer and he may desist when he will and compound as he will The Indictment is at the suit of the supream Magistrate solely for the benefit of the Commonwealth and the State hath all the goods and all dammages and the prosecutor or complainer is here a witness for the State but at his own charge which is as now used unjust The Interest therefore of the Magistrate the Subject ought here to be compromised rationally for assuredly if life goes for life dammages are cut off as unfit or of unequal value to be rendred for the life of a man therefore the heir or wife or friend who should bring an appeal as I conceive ought to have no forfeiture some recompence may be where the life is lost as in all cases of Murders and voluntary considerate killings and in all appointed duels not in heat of blood especially if for ought the Law gives a remedy for great abuses dispunishable by Law it seems not reasonable but of this more after Now for to clear this indeed it is requisite that there be as is justly supposed in Law an Attorney for the State whether called Clerk of the Crown Clerk of the Peace or what other name you will give him setled in every County who upon a set day each week by vertue of his place should receive all complaints and that upon oath himself being duly sworn and then by and with the consent and advice of one or more Justices should frame an appeal generally thus I do challenge you A. for the peace of the Commonwealth to answer to B. for the death wounding c. of C. whereof you are accused and let B. and another witness make two witnesses and upon the finding of him guilty let him be fined moderately that is so that at least a fourth part of his estate be left him The like Law also in case of Maym wounding c. whereof two parts to the party wounded c. a third part to the State to bear all charges for it is not fit to add charge loss of time to him that is before oppressed in case of life let life answer life unless by misadventure yet then he must be fined but not to the party but to the State and that but to a third part of his estate reall or personal to bear charges and where the life is lost the charges must also be apportioned in like manner For the leavying this the way is before set but for discovery of estate there is the difficulty but in Lands admit no trusts for deceit nor uses to cheat and the estate in the Land will be visible and take the goods in possession at the time of death and all is satisfied that can be expected Only let a set time be for Creditors to come and be satisfied also that the Common-wealth be satisfied and the members not ruined undone and impoverished Thus shall both interests be satisfied and the multitudes of legal quarrels by indictments c. will be quitted which have freed many rich Murderers Poysoners c. and of other offendors multitudes when there have been poor prosecutors That this must be done in the County where the fact is committed is owned Let the transferring him from one County to another when taken out of that County be setled in an easie and speedy way and that a Judge be there ready to determine such cases weekly if not daily however to examine witnesses immediately upon Oath which all Justices must have power to give as they see cause therefore make wise and honest Justices better then yet are and let this be taken as evidence as far as is credible and let not witnesses stay
the Councel be highly fined All these matters are subject to devolve into meer Form except Justice in the Supream Magistrate aws all for according to their example do all others frame themselves therefore it is still fit they be under due and visible regulations How Debts are to be Recovered HAving briefly passed these Heads I come now before I come to treate of the way and manner of Trials particularly by twelve men to treate of the Civil Policy as diverse from Criminal and look at that as it looketh at Liberty Goods and good Name And in this I shall pass over the Introductions to Debts which are Trading Bargaining Selling Giving Granting Bequeathing and the like and the consequences thereof now as to this all Revenge is but bestial Satisfaction is Rational Now the satisfaction must be either from Lands or Goods Lands for the benefit of Posterity ought to be preserved as much as may be therefore till there appear no Goods there ought to be no Process against Lands but as the evil present is alwayes heaviest so the liberty of the Parent is to be esteemed above the future advantage of the issue and then the lands are to be sold Our Law holds forth things just enough I cannot in my conscience but say the fault is principally in the Practiser and the Judge the one to move unjust things the other to determine them although I believe many of the Errors were brought in upon Prudential grounds rather then Legal or to avoid the rigidity of the Letter originally For thus it stands the Law being thus anciently that first Goods then Lands then Liberty was to be seised for debts c. upon a just and proportionate Rule necessity found wayes to evade Quaere the Goods and they were others Quaere the Lands and they were aliened and to run through the difficulties of all these Trials the burthen was found too great and therefore the Law of imprisonment at first by Atrest was brought in That it is against Priviledge that is as used I believe it highly but that it is against Priviledge duly used is not to be deemed We ought in all things to remember we are Christians our professing well and practising ill makes bad Christians nay meer civil ones Atheists and keeps good Heathens from Conversion Surely now we by our Laws make such multitudes of poor that we see no way to relieve them and therefore we exact not the Law of common distributive Justice I dare not be too bitter The Lord write upon the hearts of Magistrates such let me say Christian affections that the poor may be rightly maintained but that is not my task here therefore I proceed If any Debtor be let the Creditor come to a legal Officer appointed and there Avow in the word of a Christian that such a one is truly indebted to him in so much and shew particularly how if the publike Officer knows the man responsal let the Debtor be immediatly summoned to answer to the Creditor for so much be it by Bill Bond Book Promise c. If the Officer knows not the Creditor then let the party be summoned and if he denies the debt then let one legal Witness for all men are not to be admitted Witnesses Avow by that I mean a Protestation in the name of a Christian as before a Magistrate that he knows the thing then if the party satisfies not the debt by a day let a Plea be entered No more but thus A. of such a place impleads B. of C. for ten pounds which he ows him upon a Bond or Bill or as the matter is Then let the Debtor answer thus B. to the complaint of A. for the debt of ten pounds denies the debt promise Bond c. or pleads so much paid and tenders the residue with submission to the Order of the Court. If he appears not let an other summons go by way of exacting the party or parties to appear under the penalty of the value of the debt if he appear not nor any Attorny for him being warned let the goods be immediately seised and inventoried by one sworn man or more and apprized by sworn men as they are truly worth then to be bought at the first hand to the utmost of their knowledge and let one Justice of the Peace administer the Oath to appear equally and indifferently between Creditors and Debtors then let a Jury of twelve or six men such as shall be lawfully called of the next neighbours capable of the great trust of such Judgement sufficiently qualified with estate to recompence knowledge to discern and faithfulness to act according to knowledge for such ought all Juries to be and then the Trial by Juries is excellent where the matter needs or will bear the delay except you shall so enforce obedience that Trials may be speeded as called then the debt proved let not payment be till all Creditors be called in and then let their debts also be proved not allowing above forty dayes for all and then let the goods be divided into three parts if there be no other estate otherwise three parts of the whole be distributed proportionately as the respective debts amount a third part saved to the Creditor c. And the same Trial that settles the goods let it pass the lands and let the Seisure of the Land and Sale be by the publike Magistrate but all enrowled in a Book for that purpose How Lands are to be Recovered SUrely the old way of State and Seisin so called in the simplicity of that Age was good but to speak it once for all it is the Magna Charta the great priviledge of Free men that they may make Laws according to necessity I write not this to destroy but enlarge the Subjects Priviledge who now by the practike part of Law are deprived of the just end of Magna Charta and all else I know there is a conceited humerous generation that are content with nothing but the Letter of Magna Charta and others as much against it I shall equally walk equally between them It was then a good boundary to the Prerogatives of Princes and power of Judges and it were better to follow that truly now then to be again ingulphed in as vast an Ocean as no Law in the variety multiplicity and difficulty of Laws for how many things literally observed would plainly much prejudice the Commonwealth but I proceed Lands then in case of doubt must receive a Trial as for other matters of value before a publike Judge the course by a short complaint at a day set for both parties with their Witnesses present who can prove the matter in question or upon Oath made that they are sick or such Case as is allowed upon Oath taken before a Justice of Peace the Affidavit of such persons may be read attested under the Justices Hand and Seal Alwayes provided the Affidavit without another special Witness doth nothing and in Case that the land be adjudged
equally just yet let the Commonwealth have its due freedom let the Fines be made certain one years clear value which cannot be above two parts in three Next No forfeitures next to pass by free deed lastly all as Free-hold at Common Law except onely the Rent for it is better enlarge the Rent and have no Fine Lastly let no Rent be distrainable for upon the land after eighteen moneths due and for the apportionment of Rent let it be recorded between Buyer and Seller and if parties concerned cannot let two Justices of the Peace upon hearing both parties determine it and let it be recorded in the Parish or Town-book to cease all Controversies after To clear this Let a Commission issue to some persons to return a Survey of all Mannors when granted what Customs what Tenants what Rents Free or Coppy the quantity and nature of lands particularly the value yearly that so a foundation of settlement may be laid but because of the great advantage hath been said to accrue to the Commonwealth by Coppyhold-lands above free and Charter-hold in respect they were not subject to cheats frauds c as Free-hold lands let us a little consider how lands are to be passed Whether Inrollments ought to be in each County and how and the way to avoid deceit in Conveyances c. and of Frauds and the best way of punishing them HEretofore Deceits were not so frequent men yea even the highest preferred honor above inheritance Now as the love of riches the god of the world prevailed so private interest grew and from thence looseness of Law and the jealousie between our Kings and people made Laws come forth difficulty and when ever they came the interest of one side was visible or the Law so choaked with ambiguities or incertainties or so short in the main that it did but add to Contention besides the difficulty of obtaining them without an active leading Parliament man were the Author or eager promoter which in those dayes few would or did undertake out of pure zeal so that men set down willingly by the evil and lookt to prevent it as well as they could and take their chance as they called it amongst others rather then stir for new Laws of any sort This made of late years the legal robberies of cheating and truly fraudulent conveyances encrease as well as Letters yet not within the adjudged remedy of Statute frequent for it is as easie to avoid the Statute as to quench ordinary fire with scalding hot water one good Law against all frauds is better then a hundred of the best against fraudulent conveyances the reason is so gross and visible that it neds no president there are yet too many But while all possible means of the exact purity of Justice are to be indeavored by all Magistrates especially Christian It is just and requisite that they take the hint of the good hath flown from the manner of passing of Coppyhold Estates which truly proves that an Office of Inrollment at least in the Head-Town of every County is of necessity with such due regulations as is fit and in the same Office a passing of the wives consent by sealing the Deed of Sale or releasing it provided the Act be done before two Justices of the Peace be as good as a Fine the Dedimus upon the Fine is to meaner persons less fit to be trusted then some Justices may be however not under the conscience of an Oath which all they be the charge of a Fine is not so much though to some it is more then they are worth and ought to hold some rule of proportion as the trouble care delay c. Let there be therefore alwayes some authorized to take these There is another legal I dare not call it deceit the Custom hath established it as a Fine to bar the issue intayle or a recovery or both with single and double voucher but what is this but Custom against the Statute Law by the assent of the Statute I know the Evasion is but a meer Evasion it is better to mould the Law anew for the Law is both wayes unjust for the Statute Dedonis is in it self a perpetuity and would settle lands impassible in a short time and then all men must flie to the Supream Power for remedy let them therefore settle how lands shall be De jure as for example The eldest son to have all two parts of three or three of four or a double portion or at the will of the father provided he gives it no otherwise but to him and his heires and indeed all other estates are but to be a little over-wise but in this I shall not undertake to prescribe ought I shall onely add let the Law be All frauds to be punished by Presentment which found legally dammages to be to the party according to the value proved and then a fine to the State according to the Law and the nature of the offence Now this according to Law brings us to discussion of Juries Whether it be best to have Trials by Juries and in that of the Course of all Trials Civil ALL agree that right is to be done but many nay most differ about the way and certainly there are divers wayes and all good but there are better wayes and the best but the diversity of Opinions is great in these for some call that best which others call but good so various is Judgement much more Opinion for many which have found the good of one just wise discerning Magistrate will think him better then a Jury of Twelve and they that have found corruption in one Magistrate and Justice from Twelve men abhor what they call Prerogative Sentence it must be assented to that while in the flesh the best men are subject to fails and mistakes and therefore to drain Justice hath been thought the best this with popular jealousie in the just fears of dependencies of Judges rivited England to the maintenance of Juries who will not easily forgo it and though there is at present so much miscarriage that I think there is far more evil then good by them to the Nation I would not their temporary ejection but their due strict and setled Regulation But first every Case is not worth such trouble but Justice must be done in every Case and unless you will pay Juries for their pains they cannot travel therefore to avoid this you must make Judges in every Town and though the letter of the Magna Charta is general yet do but the Justice of Magna Charta and the Subject will not complain Justice never wrought dispriviledge and is above Magna Charta But before we proceed with Jurors let 's see how Cases ought to come to the decision of Juries then what Juries c. Now it is just that before any suit be the party wronged should first privately seek peace then call the party before a Magistrate to know what the difference is and see if it yet may