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
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
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
draw all the world by the Clew of evident Reason and demonstrative Justice much more Authorities and when my reason could not prevail I would at utmost lift up my voyce in prayer with one hand and my heart and hold my sword in the other for my defence All that I say is be English men still war us not into slavery whom you were made souldiers to redeem from bondage but especially you Officers let not promotion cause you sit still because at case I cannot but give out one word of advice to the great and eminent City of this Nation you were sensible of evils past pride made you fat and you kicked with the heel Though the greatness of Trade be broken repine not break not out there is more lost in a day then can be gotten in a year vex not Strangers from your Potency nor Citizens by your Power Petition not against Will instead of Law in others and use far more irregularity and upon less ground your selves you heretofore gained the whole trading of the Nation into your company we are all English men shew us your Charter of Priviledge amongst the immunities of common Subjects will you admit that a particular Company in your City should of the Grant of the King have a priviledge to the detriment of your general Charter why should you then to the dammages of the whole Nation Agree therefore to just things give God the glory to part with quietly from the convictions of just Reason what you might happily hold either by Law or Power from your Grants if the Grant be now evil though not originally so for Reason making things lawful and being the bounds of Supream Monarches in general it cannot be excluded their particular Grants I know this will grate hard upon some among you but if Christians they will hear it were better to be less rich and less populous so more honest and better regulated you are at present yea after so long sitting under the Sword of the Vengeance of the Lord the sinke of abominable open prevailing sins you that should be the Head to the Body and the Eye to the Head in the greatness of Blessings going before others and being a Pattern and Example to all the rest as a Mother City as you have been stiled in the Nation you are not active for that glorious Regiment of divine Reason which as Christian is held forth to us in the Old and New Testament of our Lord and Saviour the Lord Christ Jesus you labour not in what is established by Law then sure it can be little expected that you should endeavor the Settlement of more it is a work of difficulty the opposition of the world will be but the world is overcome and this gives hopes of Conquest when we fight an Enemy that hath been beaten it s the course of the world to plead Presidents and then the highest are the best you are able do the work you have done much in settling a Magistracie in Chief set to the design this is of interest publike but cease not here fit them to the general end of Government as well as to the particular one of Opinion It s the way of all Corporations this may not be evil in Politicks but there is a better in States much more in Christianity And from you I pass to all Cities and Corporations You have evils every day which need remedy you spy errors in your Charters whereby you see you are no way able to act for publike benefit endeavour the Settlement by due consideration of just laws present them as is due to the Supream Magistrate let them settle the due priviledges and so enable by a standing Law the Rule of your Christian Government in a social frame Emulation may be hereby a spur to excellency of Order while the improving the same priviledges more or less will evidence the excellency of men which particular honor is the Bellows to blow up the spark of outward Vertue to a flame in a zealous or ambitious spirit And you rich men and men of parts in all places improve your Talents hold forth the Light God imparts to you for the healing of this languishing Nation The poor increase so vastly through continued and unrepaired losses at Sea and from the deadness of trading at Land that unless some course be taken all must to wrack besides the mercilesness of Wretches who sell the poor for a pair of Shooes some by forging Judgements and making folks to compound some under colour of Warrants breaking open of houses being Bayliffs and that at midnight and then by the Justice its said Justices of the Peace let go with onely restoring the goods again and this since acted in several places they passing unpunished otherwhere a Bailiff upon a Judgement of one hundred and eight pound upon a debt of forty pound out of the Common Pleas whereby ten pound sixteen shillings is due to one Officer for one Fee as dammage clear out of their estate who are not worth one farthing comes and makes seisure of a whole Shop of goods worth by estimation above two hundred pounds in Grocery and other small wares of Silk Buttons Lace Ribbonds Linnen and Woollen cloath c. besides all the Housholdstuff not leaving a bed to lie on or stool to sit on and these are by whole Sale as they say without any Inventory or due apprisal carryed away and yet no Judgement satisfied that is not fully forty six pounds is all can be made out of these goods Men constantly Arrested onely to force them to compound for stand out a Suit they are undone yet who becomes careful to give or crave relief in these matters Thus the poor and miserable people are daily utterly undone from Forms of Law and the priviledge is in the Form O Englishmen deceive not your selves and others with shadows These so more then evident errings wandrings failings and unreasonable unjust procedures of so called and proud of as striving for the name of best purest holiest c. Christians are the gaps and inlets to all those strange unheard of Opinions those Blasphemous and unnatural bestial actions and audacious Printings which there is such a stir withal in the world lay ought to their charge they recriminate and bespatter fouly and soyl hangs For the letter of the Scripture if Christians plead that they are gone it is as killing under the Gospel as the Law for the letter of Scripture and the lives of Christians are as different as life and death hell and heaven This in contemplative heads convinced of duty works high and assuredly brings forth all those Enthusiastick Rapsodies which so amaze the world these urge them by degrees to greater heights of so called zeal for Gods Truth and then after a Prophetick strain they utter things hard to be understood I cannot see any ground why any should be led away after them nor give any credit to their sayings No I rather believe it to be the
in Germany and England ibid. William so called the Bastard or the Conqueror admitted King of England his claim his reign ibid. His politique settlement p. 24 His successors tyranny p. 25 The opposers and how quelled ibid. The gate God opened for freedom p 26 Magna Charta and Charta De foresta granted ibid. The Pleas of Kings against them ibid. The Judges and Lawyers absolute interest serving Kings tending to enslave the people ibid. Some Judges hanged for it ibid. The contest briefly examined pag. 27. Why the Pope suffered these contests ibid. The Popes policy to avoid Reformation from Princes ibid. Gods witnesses against Romes signs and her dealing with them ibid. The Pope and Princes strengthen each other pag. 28. The Kings of Englands best title is from Parliamentary elections and the reason ibid. Princes liberality to the Churches ibid. Parishes erected ibid. God still raises up witnesses against Rome ibid. Incestuous Marriages from the Popes dispensations in most of the chief Families in Europe pag. 29 The Kings labour to exalt Prerogative ib. The settlement of the Court of Kings Bench Common-Pleas Chequer c. ibid. In whom the choice of Judges and how ibid. Court of Wards erected c. ibid. Court of Star-chamber erected ibid. Admiralty and others Courts c. ibid. Luther and his Quarrel with the Pope pag. 30 His Doctrine ibid. His Abettors few if any ibid. His opposers all Christian Princes ibid. Hen. the 8 th of England writes against him ibid. The reason of the Princes siding against Luther ibid. Henry after quarrels the Pope The Reason ibid. His halting twixt Popery and Protestancie He seizeth the Monasteries c and the reasons pag. 31. How he rewarded his instruments ibid. Edward the sons zealous Reformation ib. Maries cruelty pag 32. Elizabeths deliverances and succession ib. Popish plots against her upon Reformation ibid. Englands laws distinguish twixt a Papist in Opinion and in Faction ibid. Englands Law at Elizabeths coming to the Crown ibid. Recusants why so called ibid. All Protestants agree not to Elizabeths Reformation ibid. Their Reasons and uninterestedness p. 33 Some of the Parliament men questioned by the Queen ibid. How she misliked the so called zealots ibid. They flie into Holland and they print freely ibid. Against both Magistracy and Ministery pag 34 Yea against the Queen in regard of manifest error continued both in Church and State ibid. Her Potency and relief to her Neighbours ibid. James succeeds Loves not Puritans ibid. Yet distasts them not ibid. Advances the Interest of Prerogat Courts ibid. Takes away the good old lawes to increase revenew ibid. The succeslesness of His wise Councels p. 35 His policy to subvert the freedom of Parliaments ibid. His way discovered ibid. The end then aimed at the subduing Scotland absolutely ibid. The Court party ibid. The King would not agree to Arms. pa. 36 The cross dealing of the Scotch Presbytery with King James ibid. Some lawes made in King James time how diversly executed ibid. Charles Crowned with great joy ibid. Disgusts against him in his first Parliament ibid. He gets mony and dissolves it ibid. Breakes his Royall word so called in his grant to the Petition of right pag. 37 The State of the Church here at the beginning of and during his reign pag. 37. 38. and 39. in the pride and dependance of the Hierarchie seeking by unjust wayes to raise private estates out of the Church revenues ibid. Their little regard of Blasphemy drunkenness c. ibid. All they sought was unity and by uniformitie ibid. Hate against good men ibid. Their policies to bring in Popery ibid. Some of their errors repeated ibid. The civil state considered pag. 39. 40 The King lost his Militia in all kinds ibid. His Lords given altogether to vain sports c. ibid. The Gentry follow them and the Yeoman them and so all order is broken ibid. Justice wholly turned into form and practice and destructive in all the pooceedings of Law pag. 40. 41. 42. 43. 44. So the first step to introduce generall poverty pag. 45. 46. And that demonstrated by consideration of the parties suing ibid. The process what whence and by whom ib. The Courts of Tryall above and below ib. The Attorny and their practice p. 43. 44. Declaration and Plea ibid. Issue single and double ibid. Jury ibid. Verdict ibid. Stay of Judgement ibid. Judgement ibid. Stay of Execution ibid. Remedy in Chancery the worst evil p. 45. 46 Sollicitors what c. 44. The reasons of all this Error pa. 45. 46. Priviledge of Persons and Places discussed pag. 46 Witnesses and the abuse in them ibid. Most ordinary matters in practice undetermined in Law pag. 46. and 47 Cheatings in Bargains sales and all conveiances pag. 48 Englands Law practicall only so that Government was subverted pag. 48. Coppy-hold or base or villein tenure discussed pag. 48. 49. Want of Forcing Plantations another causes of Englands povertie ibid. Inns Alehouses and Taverns another cause ibid. Marrying of the poor too young another cause and debilitates nature and makes unfit to labour ibid. Englands good lawes for maintaining honest laborious and punishing idle ones enervated and neglected pag. 50 Considerations of binding out poor children apprentices by the Justices of the peace p. 50. Difficulty and varieties of Lawes the Lawyers Gins evidenced ibid. The Criminall part of law neglected and how pag. 51 The policy in ruining the old frame of Englands Government ibid. The policy to evade the discovery of this ibid. London the great Monopol of Trading pag. 52 Monopolies one of the Royall trades ibid. The Kings policy in ship-mony and the end ibid. Kings Charles intends War pag. 53 Intends an alteration of Government ibid. That the alteration was made of necessitie ibid. For a ground he imposes the Eng. Liturgie upon the Scots ibid. His carriage to engage a deeper War ibid. He is necessitated to call a Parliament p. 53 Breaks it and necessitated cals it again ibid. The King seekes mony pag. 54 The King disables himself to dissolve the Parliament ibid. The Parliament questions Strafford ibid. His pleas the Parliaments answers ibid. The King attempts upon some Members ibid. The Parliament sets a guard ibid. The King practizes the Army ibid. 400000. l. Raised and the Army disbanded ibid. Ireland almost lost ibid. The dislike of the people to the Kings encrease ibid. The Bishops questioned and discarded ibid. The King flies pag. 55 The Parliament arm ibid. The King fled the Convocation follow ibid. Many Lords and Commons go also ibid. These he cals his Parliament at Oxford ibid. The Lord Keeper flies to the King ibid. The controversie twixt King and Parliament as it stood controverted between them ibid. The Nationall Covenant agreed on ibid. And the Nature of it ibid. The Kings aime in setling Government pag. 56 Exemplified in a demonstrative particular ibid. The disadvantage to the Parliament by being only defensive ibid. The divers interests that followed the divers
all which laws are still binding as accompted morall though neither wholly accepted nor neglected the mystery of the Trinity being by some impugned the likeness or similitude of God made now in the shape of man the most dangerous Idolatry his name blasphemed and no day kept as it ought though a day professed for his service but of this anon The other laws were relating from man to man first setling the rule of obedience to the then generally supream power being especially paternal whose Complaint the whole congregation were Judges of as executioners then he comes to the special and highest crimes of Murder Adultery Theft to secure life chastity property and for a further assurance gives a law against false witness and as the ground of all and root whence these vices flow forbids covetousness Now these laws were given in terror as Moses saith to prove them that his fear might be upon them that they sinned not yet all was too little to hold in so stiffe-necked a people and after these general laws as the heads of common Justice in the root and branch he gives other laws for all occasions both in respect of Magistrate and People Master and Servant Parent and Child Husband and Wife Enemy and Friend or Confederate and that both for War and Peace and that with respective security both to day and night and that for life Maime chastity goods good name and that as a beast might offend with respect to him as the Oxgoring yea to beast as a sufferer as wandring yea and to the wholesomness and means of healthfulness of men not only in their wandrings but in their settled habitations remaining still the host or congregation of God not to have any defilement open to veiw for all which I refer you to Scripture with the rest of the heads specified from the twentieth of Exodus and so onward and having thus settled an outward law of peace and rest or War and Captivity or other Judgements bound and assured by threats and promises the Lord now proceeds to the establishment of the manner of his worship which was and is generally holden wholly typical and ceased in our blessed and eternal Saviour the Lord Christ Jesus and this I wholly at present omit to enlarge and now come to the third thing considerable which is the manner of execution of these laws which was very severe as you may see in the punishment of Corahs sin and so in Achans The men wives children and all were punished not only by God as in Corah but after by Joshua in Achan a terrible God a terrible law and terrible execution yea the law was extream rigid if we regard the proness of mans nature to offend what a poor man to gather a few sticks for his necessity upon the Lords day and dye for it what the Princes and holy men that knew as much by themselves as by Aaron all devoured by an earthquake for their zeal in offering sacrifice to God the people were so sensible of it but in presumption that next day they blame if not threat Moses and Aaron for slaying the people of the Lord. Now these laws were the then rule of the people of God and by these did the people of God under the whole regiment of the law eithr justifie or condemn themselves So Joseph How shall I do this and sin against God So David thy law is my delight my continuall meditation that I may not transgress thy will so Job Thy waies have I kept and have not declined from them and so the yong man in the Gospel All these have I kept from my youth up and Paul after he was enlightned justifying himself in his integrity against the Jews his now persecutors sayes of himself As to law blameless that is he knew not nor could any one tell how to accuse him of the breach of the letter of the law in any title now if you ask whether these laws were the best or not I must tell you that most undoubtedly the laws in general were such laws as no Nation in the world nor altogether had from themselves so exact a plat-form of government but surely some of these were but particular to that Nation and that as our Saviour saith in the case of divorce yielded unto rather then given for the natural inclination of the peoples sake or by reason of the frowardness of their disposition which our Saviour calls the hardness of their hearts specified in divorce and also as that of the law of jealousie That law for unclean and clean food I accompt rather typical then judicial Now to all these laws were Promises annexed in case of obedience Threats in case of disobedience which were often reiterated by those special Prophets whom the Lord raised up in the several generations under the Judges Kings and Kingly Priests untill the Lord sent his own Son to declare his will unto his people in the fulness of time and though Moses were faithful yet that was but as a servant as saith the Author to the Hebrews but the Lord Christ Jesus who is the Apostle and high Priest of our profession is sent from the bosome of the Father to whom the whole will of the Father was known and in these last times God speaks to his people by him even his own Son whom he made heir of all things who being the brightness of the glory and the engraved form of his Fathers person and sustaining all things by his word hath by himself purged our sins and sits at the right hand of his Father wherefore we ought with all diligence to attend to that heavenly doctrine which this our Lord declares for if just punishment were retributed by the Lord to them who disobeyed the word spoken by Angels how shall they escape who neglect the Gospel given by the Lord of Angels the Son of the Father to whom the Angels are but ministring Spirits him of whom all the Prophets fore-prophesied even the Shilo the Messiah the Saviour who should save his people Israel and lead them through the wilderness like a flock of Sheep under whom they should lye down in the pleasant places of rest and none should make them affraid He that was now expected by the Jew and so much the rather as fearing bondage from the imperious and flourishing Romans and hoping of salvation and deliverance temporal Grandeur power and dominion by his puissance who was to break all Nations as a Potters vessel and thresh them with an Iron Mace to whom all people must bow down the mighty Councellor the Prince of peace and his yoak must be upon their neck and his government upon their shoulders till time should be no more Now lets a little consider how the state of Israel or the Kingdom of Judah stood at the time of Christs coming That they expected the Messiah is evident they seeing those things fulfilled which were fore-prophesied of which sure they were diligent heeders especially being driven thereto
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
therein still and these successes against him whom God would cast down engaged them the more speedily to effect their intentions and enact a disbanding of the Army lest the Army should disband them This hastens the Armies march to London I am consident altogether unresolved what to do the work which God now called them to was higher then ever and the presages were the ruine either of London the Army or both certainly there were many who would have put it to the Tryal but the Citizens wisely considering that the multitude of discontented persons poor and necessitous were as great if not greater dangers within then the Army without and that lose they what they could by compliance they must lose more by opposition they admit the General The Parliament is now shattered many of the Members being taken and imprisoned are declared as guilty of the bringing in the Scots and might as well if not better of the several mutinies in England on the Land and defection of the Ships at Sea London is now Garrisoned the Arrears which were great there intending by want of pay if possible to dishearten the Souldier are strictly ordered and the Seat of the beast there that is Pauls Church the Cathedral made a Court of Guard and such Members as would avow the proceedings with the King excluded the House Ireland all this while was to the Parliament almost as it hath been with me a thing not regarded but now there are thoughts of that and the Army setled under a certain number with a settlement of pay respectively and order taken for the settling the Navy and Generals sent forth there is great thoughts of the necessity of doing Justice mens minds had run no higher generally then happily to bring a Lord or two to the block but lo God raiseth mens spirits to that height and brings them to it by degrees that they bring even the King himself to the Barr of Justice O that every heart may tremble at the work of the Lord he hath here manifested his power let all Princes tremble Charls of England the best of Kings I may admit but the worst of all other men for none hath such obligations is the example No Nation had the like mercies with England the hand of heaven had planted and watered us we were grown rich our eyes stared with fat and our bodies sweat under the pride of apparel but our Religion was formal and all our improvement of outward mercies were to licentiousness the poor were naked idle and unprovided for the Law held forth righteousness but the Judges and Ministers made it crooked or broken the rich men only were imployed the honour of Magistracy was rich clothes and a full Table but they were too good to take pains Now O all you Magistrates see God hath plucked him out who was prayed for as the light of your life and the breath of your nosthrils the fountain of your so called Honours your Idoll and hath broken off not only the palms of his hands and his feet but by the Sword of the Lord hath cut off his head as an offender against the Laws which he was entrusted to be the chief Keeper of I write it when I still see with grief men great in riches able in parts think scorn to be left out of Offices and places of trust as neglected but put them in and if they have nothing else to do they think that a work below them I avow it just if God should turn them out of all and set the Plough-man to be their Lord but I see yet no Justice for man to do it yet that they should be punished is most just but of this more seasonably afterwards men that will may see God in this and admire I know many pious Christians enemies to this Act who yet adhered to the Parliament in all the Wars and contributions thereto against the King yea in the offensive one but their stick is the Covenant I would have such rest content 〈◊〉 their own innocency in the fact they might have opposed if then they resisted not let them now be silent seeing the Lord is high in judgement That party of Parliament who transacted the affairs of State now still keeping the name of the Parliament though assisted with or guarded by the Army and in that saving to us our due Rights and Liberties of equal Law and property After this fatall Sentence proceeds to the sentencing of others both of high and low estate and enact the alteration of the State of the Nation from a Monarchy the Government being grown wholly confused the due regulation of the Prince the priviledges of Parliament and the liberty of the Subject being rather not to be distinguished then destinguished rather treated on in the Schools then by themselves and our Laws though the ignorance of them excused no man by the Judges or Senate then by the many concerned whether Executioners as Justices of the Peace inferior Judges Constables c. or the poor multitude yea all our Cities and Boroughs lost in their Franchises and Towns lawless in all kinds so that there was a kinde of legall levelling or theevery grown common Was it not high time for the Parliament of England to step up God raised up some spirits and but a few they attempted high matters feared not the frown of a King nor the combinations of all neighbour Princes which was threatned but resolved to establish the work God set them about And I let them to know God hath plained the way unto them there is no opposition but Self they have been Gods instruments for great works and must be yet for greater success doth not always demonstrate the truth God may suffer them in many errors for one good sake What he intends I determine not but may conjecture that themselves saw God Almighty intended an alteration of that frame of Government which was in this Nation What to settle is their work and how to oppose this settlement was now the endeavour some things I fear in the many Counterbuffs which God had given were taken to oppose which were never so intended though they might be tendered inopportunely and under the time of the grand design of Petitioning As namely some Petitions which though not burned by the hands of the Hangman as that was presented to the ungarbled House yet it was for some things it may be justly distasted in the whole disowned and called or rather miscalled as seditious by some interessed persons to render the whole odious Rainsborough is slain and no due enquiry into his death or Sir H. Cholmleys supposed compliance with the Pomfreteers This in an unsetled State where though faith was highly known and pretended to on both sides little was acted by the parties controverting but as men adopted enemies to new attempts and that from grounds given forth plausible enough for the Engagements at New-Market and Triploe-Heath c. were made the outside of the design The matter proposed
be amended but sent to Gaole whither he must go he was irrecoverably lost Now for maintenance in prison originally in such cases as the State was forfeited as in Treasons and Felonies which were tryed very speedily the State was seized by a publick Officer by way of securing and the wife and children if any were continued in the house c. giving security the goods were not imbezeled and nought removed or sold unless for the mainteance of the prisoner the forfeiture then reaching from the time of the fact committed and then though this were just there was this injustice that the forfeiture paid no debts an unjust and unchristian thing yea if opened the loose or inlet to abominable cheating cozenage and knavery Now the Law is that is practice constant that the prisoner maintain himself till himself wife and children are undone by selling all they have for the maintenance of the prisoner and paying Gaole Fees though he be not guilty a most wicked thing and this happily for acts or words no way Treasonable Felonious c. or for such matter which none but a malicious Adversary would have prosecuted And to say the King paid his prisoners Fees is but to argue from matter of fact for take a prison properly it is but as a pound to dammagious beasts and in the proper pound the owner must provide for them and they that offend must provide for themselves or rely on charity It is truth it is but just that in case of so called illegal or in cases dubious whether baylable or not or where baylable yet for good cause denyed and in all extraordinary imprisonments that is by absolute power in limited Monarchy being causes for which the Law provided not it seems reasonable that the same power that commits should sustain untill the Law adjudges the offence for in that case the restraint of a Free-man seems punishment enough now for such a man how he comes into prison that is whether by the ordinary Officer of Justice as a Constable or by an extraordinary hand as by armed men is not material but the Quaere must be rightly stated That is whether in a time of full peace no enemy appearing nor to be feared a Subject may be by Law arrested by an Armed power as to this it is said that considering Law to be the issue of perfect reason it is a matter worth mature advisement for the life of liberty lies in it that is the refuge of the Subject against the powers or authority call them what you wil for commonly the Souldiery are either in body and so obey no common Arrests and Processes of set Courts or dibanded and seldome an active man in his own County and well known will appear in acts of high dispriviledge so that offenders in this kind are seldome worth suing upon a trespass and the law of retaliation rather satiates the brutish then the manly passion or affection and bondage for satisfaction hath been hitherto exploded Others say the crime is to be looked at and then no matter who executes it as in Felony each man may by Law arrest and then if every man will it is neither Riot nor Conspiracy what ever it may be called Others rejoyn to both parts and say that they are sadly distressed to see the various interests of persons leading one way to day another to morrow which their diversity of opinions fully demonstrate They desire plain truth with Iustice and to that end they say that both are lawfull time and person considered and that this consideration is and must be left to the Magistrate who must not stick so in the bare letter that he lose the evident meaning of the Law and ought to be punished as a defaulter against his trust should he not in some causes use extraordinary power for the Commonwealth must not be without sufficient power to defend it self And therefore they say that if the Law doth not provide for such emergencies he ought to be defaulted if he improves not his power to the discharge of his trust that is the peace and safety of the Commonwealth though he incurrs the lurch of the Law according to the old Letter The example was under the late King James at his comming to the Crown when after the death of famous Elizabeth the County of York raised men and armed them against a sort of out-laws which Act was by the letter of the Law Treason c. but upon debate wary enough it was resolved their duty and they had their pardon against which only some object saying that if in reason they offended not why should they be pardoned Now this is answered others might else be imboldened without due cause which say the objector's is nugatory there is nothing of weight in the case more then the Officers Fees of suing out the pardon and to stop that scandal let such pardons issue of course by a day at the Officers penalty so that the party shall not need pay for expedition but as to the case in hand it is propounded that in cases of doubting it were better to assure all fears to let the Souldier be but assistant to the setled officer and not used but in evident necessity but the thing is the same I must agree the prison may be any where by the law which men in point of favour easily plead but touched then the Court of guard is a prison then White-Hall the head-quarters every thing is odious but were this same man put there under what he counted a civility it should be acknowledged it may be therefore of great policy this was left in the Judges brest to endear by such circumstantials where he saw cause but this was altered upon good reason in part and prisons made publick set and certain c. The next thing is to bring the prisoner to his Tryal wherein the Law as I said favouring life gives priviledges of no evident reason in case of crimes worthy of death especially the certain offendor present Truth is if the pretended Law of England did as many of the Officers of it do think one thing and speak another tell them they are to dye while the prisoner knows Mr. Ordinary say the Judge what he will will openly prophanely and unchristian-like of course lye out a Legit though he knows never a letter and his conscience never grumble to give sentence accordingly it were not worthy question but evident reason being its guide why should they question thirty six men without any cause or with a wise Sheriff c. is that so called priviledge ought at all yet this in some cases is highly advanced this past and that he is to plead which ought to be openly the doors not shut during the Tryal the Law of God of England common reason and constant practice of Nations agrees it First he may make all by the Law void in the Letter by an appeal yea I take it also without shewing any cause Next by
is such that it is one of the most destructive for there is no conscience of an oath with the most and though it be visible there is no due punishment Gentlemen you that are at the Stern whom God hath lifted up in the height of his power and placed in seats of Eminency do not trifle away your precious time let speedy care be taken to settle this poor distracted Nation look not to your own works and let the Lords lie still there appeared in you a strong dependance upon God give not wicked men cause to blaspheme Rowze up your selves and consider God hath a controversie with the Nation and will not be appeased with all Offerings except Justice and Righteousness be done Let the Complaints of the poor afflicted distressed come to your ears who have great wrongs injuries and oppressions and none to relieve them Yea let the cryes of quiet peaceable men come to your ears who are oppressed only because not willing to return evil for evil rayling for rayling stroak for stroak action for action To sue is to perplex their minds ruine their estates if they have it and bring them at least to a wanting condition who lived well not to sue to be sued and forced to compound at the legal Theeves Will. If poor the Law is chargeable equity unreasonable and get a Lord Chief Justice Warrant so called Order of Reference it is derided not obeyed after much expectation loss of time and some expence by the poor Sutor You are on earth in Gods place and must to him give an account let not your eyes sleep till these works of Righteousness be setled There is great complaint of Inns Alehouses Taverns c. encreasing under your Regiment for the Lords sake look speedily about you let not your Officers as the Kings set your honor to sale for the increase of their Fees you are yet in a slippery place the promises and engagements upon you are great and the expectations of the people high and those most considerable of your own party are the highest their spirits breath after just Liberty they see how you toss and tumble all the Rubbish of the Government of the world to find fit stones for your building Truly they dare say among all the Christian Princes practised Rules Edicts Orders Statutes Laws c. you cannot find materials enough to lay one step to the Throne of pure Justice in the supremacy of power and they therefore much fear lest you should stumble at the same stone of offence with them and place the excellency of your eminency in power to do rather then doing Justice and when you get a little strength to stand on your selves to think and by power make good you are as they accountable to none but God there is no clearness in the walkings and actings of men because yours are not so But most will hope as they pray for better things and although they knowing the great burthens which are upon your shoulders cannot desire so much as some do neither will they nor dare they as others think much less say most likely to render your actions odious that you seek nothing but your selves and because you do not all that is desired therefore cry out you sit to do nothing No all may see you have done great things but it is desired that some things of conceived necessity for your establishment be speedily ordered until with the whole they may be in due time established or setled As first for the breeding up of all youth that all Schools be supplyed with able honest and religious School-masters all according to one form and rule setled by the Supream Magistrate And so the Universities where the youth are yet rather poysoned then profited and though the humerous conceit of Caps and Capping and such like be justly waved that such a decency be ordered in the habits of youths as may not adapt the mind to licentiousness many wise men placing much in things of that nature and to that end that all youths habits of both sexes at least may be ordered throughout the whole Nation but especially apprentices and servants of all sorts So as at least to distinguish not shame that of shame only affronting not reclaiming and for all servants to be admitted their services by Testimonial under a penalty to the Master or Dame their wages to be set by the Magistrate or some appointed universality and absolute conformity in these even to unity may be pressed without just scruple of conscience For to speak once for all to make acts of common reason intendment and benefit for particular places by them in supremacy of power because by them asked and not by others is exceeding selfish which who ever hath purchased out a particular act can easily resent Therefore it is justly desired such things to be generally the same For prohibiting of new Inns Taverns c. and ousting those erected within seven or ten years unless allowed by your Commissioners and upon due and set cause to disable the remainder and allow others or fine to some purpose as receiving any to tipple on the Lords Day or dayes of publike either prayer or humiliation And that all things may hold a proportion that all Offices Honorary fiduciary or profitable be so distributed that the work intended may be done or the neglecters punished and that such as are faithful may know certainly to whom to make their addresses for many errors are seen and felt and the State is sensible of them in part as by the careful Orders issued out from the Right Honorable the Councel of State appears But how to execute them and not be caught in the witty springes of our present Cabalistical Law no Justice of Peace can determine and generally the more knowing and able the more wary at least in opening of the fruitless or rather destructively fruitful niceties past whereby the many are cooled to action For if they apprehend men dangerous That live high and yet can give no account how they come by it what should they do To imprison for no cause visible is hard to some not to do it destructive with others to prison in the Gaole chargeable and the place having no labor to busie body or mind fatall in Bridewell shameful and generally work they will not and all this from the want of due Law Next our Lawyers are eminently favourers of nicety of Law and open it to the ruine of publick safety for from an opinion that Lead is parcel of the free-hold of the Church to rob all Churches so called is so frequent that it is feared they will soon come to pull down houses No saith the Learned sue him and he hath nought to recompence the same so there must be visible actuall force with Guns c. to evidence a forcible detainer or the indictment lies not whereby possessions are kept oft times ten years together many seven sue they dare not the Law is so nice dubious and
settle the power Now I come to the Rules of bounding the inferior Magistrate wherein I conceive it is principally requisite to add to the general Rules of Law or head Laws particular Officers by which onely it is lawful to act in time of peace or not imminent danger That to this Officer being sworn or tyed under a set penalty of faithfulness in his Office the Magistrate send his Warrant expressing the cause of the Warrant as now to Constables and that this Warrant discharges the Officer and then the complaint is and ought to be against the Magistrate For no reason one should be punished for executing his Office by command of his Superior Nor is it fit the Magistrate should be too suddenly lyable to Question therefore it is requisite to have some appointed near hand to whom the Magistrate in Ordinary and also the Subject may have recourse who knowing the Law may speedily determine for otherwise the Judge or Magistrate is discouraged on the one side to act and the Subject on the other side fears his liberty to be infringed both which must be provided against speedily and certainly For it is assuredly meet That every one not acting Legislatively but judicially upon Laws set should be under the jurisdiction and Cognizance of some one or more person or persons and to make returns to them of at least all matters doubtful And again That they that act Legislatively should not act judicially nor be the same persons unless in case of visible necessity least otherwise Justice fail As for example if the Judges of the Common Bench Common Pleas and Chequer were Judges in Parliament could we think the Parliament fit to determine their Errors le ts have the best Laws that could be Laws would be but dead letters still in themselves 9. Whether the Laws ought to be according to the Judicial or what and whether a head rule or not I Come now to that great and old difference or difficulty what is the boundary to humane Power or Authority or Dominion call it what you will it is the executive vertue in the Magistrate Supream in dictating or giving forth of Laws Now I in this shall wave treating of Law in its variety of objects and shortly give you this description of it It is the Rule of well ordering Societies of men or many Families of men living together and aims especially at preserving the poor and weak against the rich and mighty c. Now it is truth that many Nations have divers Laws yea great variety and all just and some Nations have a few Laws and many unjust naturally each one seeks particular good But as this grew obnoxious to particular persons or families they joyned together and that under agreements wherein there being still particular respects according to the advantages and disadvantages of the Covenanters so were the Laws more or less unjust but ofttimes that which was seen unjust after was not discovered such at the time of enacting Hence some have to take away all wrangles fallen upon a Community some from Community to Property still looking to avoid the present evil yea from hence indeed spring all the Commotions and hurries of the world which so Rent and shake people and Nations So that there was nothing so highly honored as the enacting good Laws I take it to be the Original at least one of the chief Originals of the Heroes or Daemones men Deified so God himself stiles Magistrates because of their Representation of him among men and all these Law-givers pretended at least to receive them from the gods or the friends of the gods For even to natural men it seemed just that what wise men had instit uted wise men might alter Now if these Laws were onely some Prerogatives of the Princes or Priviledges of great men which men had sought to usher into the world with such pomp there might have been a ground for obstruction but these which were the Laws of well living the Laws tending to publick quiet repose riches honor custom of living being equal to if not above nature were of necessity thus brought in onely by fear of the supposed Gods yea also the future Magistrate was by this superstition call it so onely kept in aw not to break forth into exorbitant affections or decline action either not to make the Law like the knife of Delphos for all purposes or else for no purpose So are men byassed by private respects on the one hand and loving supremacy of power on the other that unless there be some over-awing decree some setled boundary beyond which we must not pass there is no safety Now if it be said this is indeed true in the cause of natural men but not so to Christians Grace perfects nature I agree it is truth in some sence but not in every part for it is rather true in the future then any other Tense for it works here in the flesh not so intensively but more remisly yea sometimes the effectual work of grace seems dead that this is true the agreed failings of the Saints evidence Yea those in whom the work of Grace was begun sure enough as witness Davids Pride Murther Adultery c. Samuels sufferance of his sons Hezekiah and all others before Christ Peter the sons of Zebedee Paul Barnabas and others under the Gospel So that it is plain we must remember it to be truth in some sort which was objected against Aristotles councelling Alexander as was pretended to use the Greeks as friends and carry himself as their Guide and Conductor but to use the Barbarians meaning thereby all other Nations as enemies and carry himself towards them as Lord and Master The reason of their objection was very acute for say they there are many Greeks wicked and many vertuous Barbarians So that if any Quaere whether Laws should be diverse in respect of divers sorts of men it is shortly answered Laws are to restrain and punish onely evil whether men or actions This being cleared the next thing is to come to the more close and plain resolving of the question wherein I cannot urge antiquity for I wave all Authors more then as illustrative taking none as Authoritative the superintendency of the Expurgatorian Classis abroad in forreign Authors and our Licentia or Placet at home making them speak what they list or as they list who are masters of the Press for if so done to some why not to all or who can tel to which and indeed there is no necessity of either ancient or modern testimony the Almighty wisdom having the same fountain of endowments graces and abilities as in any age and the same as plentifully poured out now upon us however it is improved This premised I then Quaere what law is existent among any or all the Nations of the world like that which is called Moses Judicial holding forth such fit and apt punishments as are there laid down carrying with it such a visible reason for it self
might be but now a clearer light manifests higher things or is so pretended to The main particular and worthy consideration is our formation of Christian policy according to the Jewish Model for we held all Baptized as Circumcised to be Christians Now of these how excellent Christians we have the Gallows Gaoles Houses of Correction for punishment and all places of vanity such as almost the Heathen would blush at Drinking Dicing Drabbing c. publickly known manifestly proclaim and though no rents to the State as at Rome for the Stews yet to the Statesmen they enhance Farm Rents c. for surely were there no advantageous interests they would not against common profession be upon so weak reasons as they are tolerated while winked at yet what is done with these Christians lo they are punished are they not Surely no not one of ten if one of a hundred and this punishment is the sacrificeing for sin and this past they are if it be but commutation as clear Christians as the best and being now become more serviceable to corrupt interests these spied out the lawful Liberties of better Christians which the Judicials not affording a whip for The Magistrate must be loosed from his restraint rather then not have an honest man punished this raised error upon error and opened this loose to the Christian to seek freedom from an unjust Law and to the Magistrate to seek to punish at lust But if you see through all the Apostles Writings they only forbid the sin and for punishment look at the Law in general which surely they could not intend but of the Judicial Now for the Commands of Christ the Lord and the Precepts of Love Charity Patience forbearance c. they are certainly true and to be observed and then the Quaere or Objection is what need of Law The Answer to this is as evident as the other That the purest Congregations Churches c. have had and ever will have evil men among them not only hypocrites but open sinners The error of the Congregations not ejecting or Magistrates not punishing or not due regulating by punishment rather shews the necessity of Law then the uselesness of it Now grant that the whole Nation were purely Church-Members of which no visible cause of ejecting or rejecting communion appeared yet there would or might arise many debates differences and controversies which would require a Magisteriall Authority to determine if but for difficulty And surely the Congregations of Christians never so little declining could not avoid litigations and wranglings and there being no word to extirpate the Civil Magistracie it becomes not Christians to wrangle much less violently to oppose so approved so necessary an Ordance That opinion that in the simplicity of the last Age as in the beginning the father of the Family shall be King and Priest hath little warrant that hath more that each Saint shall be so and yet in the mean time as hitherto subject to the powers yea the Heathen ones for conscience sake of the radiancy or glimpse of the Divinity holden forth in them It is truth pure Christians will not be contentious some meek spirits may and will obey the letter of Christ and sure they that do so in faith shall not fare the worse for their exact obedience but in the mean-time this is no binding rule to us except the words be so intended It is truth the child of God seeks not his own c. he is wholly taken up with God c. shall the Magistrate therefore see evil against him go unpunished Again love and not avengeing wrongs and praying for enemies in the spiritual sence may stand with the punishing afflicting and bringing to judgement the body of the transgressor in the literal yea God is thereby glorified otherwise how can the peace of good men be preserved against the wicked but miraculously which we have no warrant to expect at present and what shall be hereafter as the light manifests it self the Lord grant we may walk in it and also up to it and that our Laws may be established according to a rule of Righteousness even according to the wisdom revealed by God himself and that all emergent Laws may flow from the same fountain for for every action contingent there is as is agreed no particular Law already setled nor well can be but the Christian Magistrate ought to provide that not the least wrong or trespass but be righted or punished I must yet remove one rub and that is the Judicials have been our misguider hitherto therefore better any other Law then them 't is the same that was objected for using of formes whether of prayer or otherwise which the Church of Rome used and was partly spoken to before particularly in that all our old errors having sprung from that root that it is necessary yea some say of necessity to wave that for our rule lest we tread the same trace of error that was before our ruine and therefore better take our Laws from Turk or Persian or c. then from the Judicials Now let us examine this and all will appear vain for first it is denyed that the observing the Judicials yea though as binding as the prototype was the error of Christians so as to bring so horrible a defection upon our Judicatories We maintain not I desire to be rightly understood That this Nation professing Christianity is bound to the Mosaicall Judicials in the command to the Jew But assay to manifest that those Judicials were not our misguidance The Decalogue or Ten Commandements we all agree except in the set day of the Sabboth to hold forth but even what Natures light determinately approves whereby it is evident that sin is the same to us as with them which all the writings of the Apostles manifest Now the sin in the head Law being the same what difference in the branches either in respect of the severall species of transgression or manners of punishment Now as to these we all agree the error an error but we must differ concerning the â—nfliction of punishment which I drive to this head That the Law prescribed in the Judicial for punishment holds a due proportion punishing life with life goods with goods c. if so then that these mediums or rules of due punishment ought much more to be observed by the Christian Magistrate under the Law of the Gospel the glad tydings of peace and mercy then by the Jew and not to outbound unless after the utmost of execution the Law be found evidently defective which I presume it never will be under prudent Magistrates Now to him that sayes the observation of these Laws was our ground of error I say in the Ceremonials of Moses it was and that the receiving of the Judicials might open a gap to introduce that error the more facily I will not deny but that this must either cast out the Judicial or make us take the Rule for this in any just Law I
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
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
Error or more of course this Term then more the next and then a peremptory day and then Errors Cassed is but legal extortion So that it is plain to take errors totally away is as bad as to have all allowed but to prevent the mischief let a certain day in Court be to determine errors before issue and not after Now the punishments in these defaults are and must be pecuniary and that both in the Judges of Fact as Jurors as well as Law but where the default is evident there ought to be a dispriviledging for future as to all publike trusts at least for a time but out of the Judicial place presently yea though the oath be that he was onely mistaken in Law and did not do it at all maliciously or with a minde of injustice Now to oaths it is fit any Justice of the Peace should give it at discretion this requires able Judges and so should Judges be but of this more in due place Concerning what things the Magistrate may and ought to make Laws YOu heard before that there must rest in some persons thereto designed either by God as those who claym to rule by absolute power or by men as those who rule by Compact or Convention as who either had no power but were meerly elected and agreed with having no Right primarily or had some power but not enough and so condiscended to some rule that they might rule assuredly Now this being in one person or more yet the power ought to extend to all things justly necessary to the well being of a Commonwealth and therefore they have respectively the general powers of war and peace life and death But because we have before hinted that there was a necessity of the Magistrates regulating of those things which many men call dispriviledge to Christians as well as men we will according to the rule before laid that is of the head Law according to Gods own Law the God of Christians as of the Jew see the Government of reason laid there down both for Divine and Civil worship Wherein first it seems directly given to the Magistrate to have the ordering of divine worship to God under the Law Now let us see how this works for Vzziah is a Leper for acting in the Priests Office Yet the aberrations both of Priest and People are laid to the Kings charge and the good Kings commanding just things and not onely so but seeing of them performed are blessed and on the contrary the evil Kings punished and their Adherents And those disobedient to the King as to Ahab the seven thousand that never bowed knee to Baal were those who were to take root downward and bring forth fruit upward Now the great difficulty is to settle the Magistrates power so that he may not bring sin upon himself and the Nation by commanding or tolerating things evil and unjust or unjustly enforcing things just and good Now as to this it is to be considered that we all profess Grace is from Heaven the meer gift of God and that the Spirit breatheth where it pleaseth as the wind bloweth where it listeth if so the Magistrate Yea grant there were a clear Church Magistrate that were by divine Word impowred with the Sword of Paul as the Keys of Peter could he go further then the outward man it is plain he could not Next then grant no such Magistrate sure the Civil or in case of doubt of Spiritual Power the Civil Magistrate onely can act clearly Now for the Spiritual Power to be helped out with the Civil Sword surely it is one of the grossest vanities that Popery ever broached God stands not in need of mans wisdome or power But God having not cleared that the implicit construction by Analogical or singular reason from the legall severity is proportionate to the gentle and quiet brotherlike Rule of the Gospel nor agreeable to the Commission which our Saviour gives to his Apostles which was either to the Jew Matthew the 10. Mark the 3. and Luke the 9. or to the universality of men Matthew the 28. Mark the 16. Luke the 24. and clear enough in that of the 21. of John and 15. where nothing is spoken of but preaching and teaching and feeding If then the Pastor have not the Sword but of the Spirit let us see the material and Magisterial Sword which is not born in vain what may this do If we look to the Jewish Model which many men seem so much to contend for There we see that the Magistrate had power over blasphemers Idolaters and tempters to Idolatry witches c. and this extended to death and that it should do so with us is by them desired Now many suppose this difficulty though very great may be at least in great part assoyled if we consider that the persons to whom this Law was given was a people chosen by wonderful miracles and wonders from all Nations to be the people of God and bear out to the world the Ensigns of his special love to man in all Ages and Generations which tokens of love in obedience to his Law were suited with answerable judgements in the neglect of the same And surely those things which relate immediately to God in the point of gracious service hold forth nothing to us but assurance of eternal punishments to the unrepentant sinner Saint Paul confesseth himself a blasphemer 1 Timothy the 1. 13. and declaring in the last times what fearful and horrible sins should appear among men 2 Timothy 3. 2. he takes notice of blasphemy and bids onely from such turn away Now if you would have a Magistrate to work without a divine precept we must look at the height of improved reason There we find that zeal for the Gods among all Heathens made blasphemy death and surely reverence is due by the light of Nature to what ever is called God Of blasphemy under the Law the Councell was Judge Now the Sanhedrin was not of Priests they might ask Councel of the Priest but determined themselves and these by Gods Law put the blasphemer to death many conjecture upon this the Devil Aped Gods Law others his delight in blood hinted the Law as in Heathen Sacrifices but sure such reason makes against these objects intended to take away the pure light of reason for who that will acknowledge a Deity will allow the Deity to be blasphemed But now the doubt is whether these are not under the Gospel to be reserved to the last Judgement Some beleeving that if Paul of a blasphemer and who ever was a greater became a Saint a Preacher of the Messiah who did and thought to do many things against the Name of Jesus that is against them called on his name why may not any other be converted where is Gods dispencing with the Law where the special reservation of Paul he did it not against the humanity of Christ but his Divinity it was for calling on his Name Some excuse Paul because zealous but others
This is a matter requiring great and vast expence and how shall it be raised To the first I answer If the Magistrate hath power to make the Law then duty ought to subject all minds to unity in obedience To the second I answer That this is so far from dispriviledging that it is the highest yea the top stone of Liberty I dare not say it is not possible to abuse or misuse this power but if rightly used it is the extent of Priviledge for may a Magistrate make a Law to keep mad mens children to educate Ideots Lunaticks and the like and dispose their goods to the necessary use of their Family which all Laws of Nature and Nations allow Who art thou then Quaeriest if thou dost it thy self thou wilt grant that must be by allowed means and lawful wayes I say not That there cannot be just causes of Negation but I say Submit to just things in their Seasons it is your duty and deny unjust ones when time of trial comes that is your duty also This takes not away your Guardianship of Nature but makes your load lighter especially when and where it is greatest for the most poor and ignorant are most like to brable and wrangle such intendments for the charge I confess its great but the great Lett will be if you settle this aright the rich must pay for the education of the poor and the barren of them that have children For I can allow nothing of a Rate but by an equal pound Rate and that on all the estates of all persons and that not onely for Wars but for the poor for maintenance of Ministers yea for Bridges Causywayes Highwayes all publike Meeting-places and that both for Divine and Civil affairs if you settle it no higher then Counties at first it may do something but in a young or begun State it is requisite to cast all into a lump were Righteousness obvious in the disposers it would easily be assented to But now the fear is and Objections are if you do thus the Parliament men will look to distribution of parts most unequally and they that are best friended shall have the best proportion though they have least need As now in general Leavies The Towns and Counties are most free or burthened as they have active Parliament men Committee men and Justices of the Peace to stand by them Therefore first it is requisite that each man shew forth integrity in his actions cast away selfishness own in deeds what you profess be not deceived God cannot be mocked The Heathens at the preaching of Jesus yea the Wise men they that used curious Arts brought their Books of great price and burnt them come and do likewise with your advantageous interests of all sorts you are all a Nation without scruple though no National Church But you object further This Nation hath lost its Politike Rule it is overspread with multitudes of men nay multitudes of poor so that to take care for the educating of all these is you say wholly unfeazable To this I say That no Nation if not plagued with War or Diseases but naturally it will grow over-numerous Now the Magistrate Supream ought truly to know the contents of his Territory and be as able to lay out the possible subsistance of his Subjects as the wise Grasier to know how many beasts will be depastured in such a ground or how much seed will sow one Acre These are the Mysteries of wise Regiments which few Princes or Magistrates now adayes if at any time will study but it is their duty for from not well considering these things Nations which might in ordinary course live quiet being grown over populous whereby the due care of inferior Magistrates is obstructed they grow loose and lazy then swarve into crimes Then complain of neglects of duty of Magistrates which is evident then interest gains head these make parties and then the Sate is either embroiled or altered Therefore if the Princes will in the use of the wisdom God hath given them to Rule by Rule well and safely they must once every seven years number their people if the Accidents I must so call them of Plague War Famine c. hath not done it and either by opening a fit way publikely known of easing their Counties burthen by setling them in an other County or if all Counties be full by transporting them into an other Country avoid this danger This Act of Numeration well used will take off the jealousie to what end such matters tend and the well and carefully providing for the Colonies will encourage Adventurers This will enlarge a Nation infinitely and if well carried on will by just means so settle Christian interest that great if not universal will be the propagation of the Gospel Now we send away Rogues then you may send away Preachers Teachers Scholars Masters of Prudence in respect of Christian and Civil knowledge This fitted you see visibly your charge cannot be so insupportable you look at the Commonwealths corruptions as now wholly sick wholly defiled this frights you but let your speculations mount higher it is not Vtopianisme it is Christian wise order all you that look for Christs Raign upon earth labor after it I bid you not sit down by this this is rational yours is divine this may be it hath been yours may and is to be prayed and attended for patiently and if it heightens you in the active part of more exemplary conversation who will oppose it let him first live above you and then teach you not upbraid your opinion But surely all the Taxes Charges Levies Payments ought all to be set assessed and paid according to one set Rate so that each poor honest Countrey man may immediately resolve his payment and in case of Refusal the Officer may know how to leavy it namely by distress and all to have one time and till that time be past the Magistrate ought not to issue out his Warrant and then upon a Warrant the Magistrate superior to be sued not the Officer for levying it for no reason he should be questioned or molested much less undone as now for executing the commands of his Superior for it is agreed the inferiour Officer in legal Administration ought and so may act not question otherwise each Officer might delay and therefore it is justly constituted if he denyes and takes upon himself the knowledge of the Law if he mistakes he is highly finable and his Fine and all other Fines and the Fees and Salaries belonging to all publick Officers ought to be so Assessed and leavied c. And where no distress is apparent that is no goods in the house be they whose they will or denyal and they either delay or by denyal imprisonment till payment if able to pay I must in this case also remember That it is fit that no person as no place be infranchised from payments for if one may be all may be except onely as necessity enforces and then
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
a moneth a quarter a year for Tryal and at unreasonable charge and as soon as gone a Tryal if stay a flaw in the Indictment though the Evidence be plain This was Englands old Law and the reasons are the same the alteration was the sweet benefit not Justice or Righteousness Why cannot the Justices in Ordinary in the County try Felons Murders and Treasons as well by a setled Commission as a Special one And in all faults the condition of the fault and the quality of the person ought to be observed In an Amerciament or Fine I would have but one word for all purse-pains for that is just and is our Liberty of old and now ought to be For Murderers of themselves and Murders and Manslaughters by unknown persons let such rule be as is proportionate for Fines to deterr not ruine Wife and Children and enquiry in all by one specially appointed as with us per Coroner but let his power and Fee be certain that he encroach not on the Office of the Justice who is but Inquisitor yet it might be better to give every Justice that power For Deodands let the Law be setled by some Rule of proportion which our Law books hold not forth but solely for the advantage of the Crown so called yet under the Right of God as the Priests portion this seems wholly superstitious For words threatening life let good Sureties be for the peace and let due publick and evidently hearty confession of his unchristian walking be before remission This will quiet all double Controversies For of suing first an Appeal and then an an Indictment first Indictment and then action brings that there is no end of labour Now let us see how Felons are to be apprehended How Felons ought to be accused and apprehended FOR this for the security of the Priviledge of the people we must distinguish between palpable and publick justly known or probably suspected Malefactors and private and concealed yet with some light and possible causes of suspition Now in all known cases and justly suspected every one may apprehend without a Warrant yea if but justly that is upon strong presumptions suspected because of flying but in case of but probable lighter and lesser suspitions no man ought to be apprehended but by Warrant that is the causes of Suspition allowed by the Justice the Warrant is to be granted if he denyes the party may go to another and where ever just suspitions be or a warrant the party complaining except the informations be feigned or causes of apprehension meerly suggestions no suit ought to be and in case the person be obstinate and dangerous or the number many the Civil Officers may undoubtedly crave the assistance of the Military power of the Nation if any be ready or otherwise raise them and it is no dispriviledge at all Now shortly let us see how they are to be dealt withall when apprehended How and where imprisoned How maintained And of the Treasurers therefore ASsuredly things are best tryed immediately as acted and would save much needless if not unjust and imprudent trouble and vexation in the world and then imprisonment would not be a question of such controversie But in case it shall be delayed a short time for it is unjust to delay so long as restraint and charge there happily of an innocent shall bring a greater evil by beggering wife and family then the original dammage Yea grant it were for Murther but put it so Let the Prisons for criminal offenders be only within walled Towns or at least Corporations in respect of the multitude of Inhabitants necessitated to incorporate and come under particular Government not contrary to the general Law of the Nation Next Let them there be maintained at the charge of the County at a set Rate if they have not whereof to live and this according to their condition and if clearly not guilty of offence against the Commonwealth let them be acquitted free from Fees or Fines To this end as before Let the Gaolor and all Officers have Fees from the State out of the Fines Let there be special Trasurers to whom the Atrorney for the Commonwealth shall pay the Fines as the Record is for in this there shall need no abateing of Fines for all men shall still have something to live upon For their imployment in prison let it be according to their Trade if not highly criminal that is for life in which Cases the more speed ought to be that so he may again return to the service of the Commonwealth and sustentation of his particular Family unless a person notoriously factious and dangerous and that in time of danger in which Case better restrain Liberty private then endanger the publike safety Who is Baylable THe answering body for body is now out of use or it had better be and one onely word of bailing used wherein the party is to appear at a day or the Recognizance that is the summ wherein he was bound to be forfreted Now set the Rule certain in high Treasons where the party is eminent and times dangerous surely to admit Bail were vain therefore resolve the contrary for it is no priviledge yet as such it would be claimed and breed Tumults or lay the foundation of Sedition But for misprision of Treason and words let them be bayled but in all Treasons as in all Cases of death speedy trial is of necessity if the ordinary Judges be not sufficient send down either at the Circuit if such may be agreed or adjoyn others of the same or adjacent Counties in a setled way that the Subject may truly know his time for trial otherwise to be bayled of course and set the Judge his power in certain that he may know his duty and perform it without or be duly questioned and his reason known why he denies But for Bayl 's in Manslaughter and the like set down the value as for Example for Manslaughter two hundred Maim one hundred wounding fifty beating forty assault twenty or leave it to discretion of Justices onely put not in men unfit our present shame And thus let all Vagrants all idle persons though seemingly able to live of themselves if suspected or not able to give a good account to the Justice go under bayl for their good behavior or be sent to the place of their birth or if found refractory or dangerous set to work in Bridewells well ordered and sufficiently provided with good wise and faithful Visitors Justices of the Peace there to be till enquiry be or certificate of their condition that order may be taken accordingly Now for the Trial of all persons let it be as speedy so publike and with one Counsel no more if they please who may freely and openly speak the Law and no more not manage evidence as is now used and if the Judge denies the Law let an Appeal lie to the next Circuit under the Councels Hand and with his Reason but if the Judgement be affirmed let
by loss of their beasts the ground spoiled and not half improved And lastly no due extant visible rule set which ought to be in all Counties anew and Rules for dreyning and improvement beyond what the Commission of Sewers can reach To avoid this it is necessary as in other matters to empower some Gent. to consider the Commons give them only their charges necessary at a set rate let them have power if you can pitch upon trusty persons to settle Commons if you will continue them otherwise to part them proportionably and improve them by severalties leaving a set part to the poor only to be improved for them according to order of the Commissioners by the overseers for the poor and the order recorded in the County-Book for that purpose and also in the Town or Towns if there be entercommuning this is the best way of the two as by experience meeting with more evils and remedying them then the other way is capable of in a present settlement and is assuredly far more durable Let free Warrens and Fold-courses be considered but not at the height and setled where they please in severalty this if wisely and prudently ordered will afford not only a great and most considerable improvement but will afford a mean of setling the Nation and may now be done without danger of Insurrections or Tumults And let but the setling of Tenures be carried on rationally plainly and prudently with it and the Generalty of the Nation will assuredly see the clear benefit of change of Government Provided they may have Justice that they may abide by that is know assuredly when to end as to begin and at what expence Who ought to have the oversight of Bridges Rivers c. NOw as all matters of right and wrong are under the cognizance of the Supream Magistrate who as he cannot by himself dispatch all businesses belonging to the Land but by many hands so much less all both at water and land and all the evils accruing and arising in from and by both Therefore it is fit to have a Magistrate specially deputed for cognizance of all such matters which now lay in the cognizance either of the Admiralty or Commission of Sewers or Iustices of the Peace respectively or for which any Commission is issuable upon any Statute with such rules as are necessary both for amending judging and determining matters yearly emerging and also such as are meerly accidentall and that in the respective Counties yet in such a way as the errors in the adjacent parts of Counties may be tryed without infringement of Liberties which is best by a mediety of Jurors impanelled yearly one year by the appointment of the Judges of one County the other year by those of the other County and so by course constant in those places we seeing the excessive charge and trouble of purchasing Commissions for let a Statute appoint five shillings only as in case of the Commission of Sewers you can have none under five pounds and ten or twenty pounds attendance to procure it Who are to be admitted witnesses in Judicial Tryalls IF Jurors be to have knowledge and estate and that in such manner as may answer the Trust then surely in some measure witnesses upon whose evidence the Jury is sworn to lay the foundation of their judgement so called Verdict ought to be men fit to be beleeved The Law principally looks first at infamy especially perjury but this being legal perjury the punishment was so penal and the Law so difficult that few were complained of fewer attainted Now this is sure moderate punishments severely executed curb more then severe punishments remisly or not at all The Law in the next place lookt at Excommunication for relations they are not valued in Law as to witnesses Assuredly he ought who is a legal witness to be of sufficient understanding next not convicted of notorious crime for justly what is the cause of rendring a man uncapable of the benefit of the Law or rejection of Church-Society ought to be admitted if proved a good plea against the witness yet let such a man speak but not upon oath for he that obeyes not man for Gods sake nor God for his own is not be allowed to call God to witness for in his acts he denyes him though with his mouth he owns him If it be askt Why heard Then I answer he may speak truth but is unworthy that sacred Testimony Therefore the Magistrate must from his words and probabilities and circumstances and so the Jury gather the truth of the matter but where the man is capable of oath let him be sworn whether 'twixt the State and Subject or Subject and Subject for right is the same There is also necessity to hear the wickedest mans Testimony though not swear him because we cannot alwayes chuse witnesses therefore estate is not requisite nor can be stood upon in witnesses as in Jury-men who are to be chosen For point of favor I find in this Age it is of great importance for such relations in Nature are generally preferred to though unworthily relations either of Countrey or City earth or heaven few men leave all for Christ Truth or Justice sake Therefore I would admit the notice of alliance but not the objection and hardly carry it upon such a single Testimony When Laws have their beginning and how to be promulged ASsuredly there ought to be a day certain before which in the several Cities Towns Hundreds c. respectively there ought to be an Assembly of the people those at least who are or may be or immediately are concerned in that Law and there by some one or more of the Justices of the limit or some other thereto appointed the whole nature of the Law and the reason of it ought to be opened and the people exhorted to obedience themselves and also to see that their Neighbours do the like which is of necessity But the inability of Iustices and difficulty of Laws have rendred the people wholly doubtful and stupid or petulant and stubborn And before such promulgation no punishment but of the Iustice for not promulgating or Certificate of the default of the representative for not transmitting the Law the same to be setled and published accordingly The lew knew all Moses Law the Christians Lords know not their Law they are all enshrined in the breast of the Iudge but enough of that The Magistrates duty to repress excess in Apparel THe mind of man is apt to take impressions of sundry Natures and education may assuredly rectifie Nature much of this rests in Apparel for vain light Apparel makes the spirit lofty not solid and changes of habit adapt to mutability of fancy a light flashing wit in stead of a composed judgement Proud humerous self-conceited and stubborn in stead of a reserved prudent debating or submission If the interest of setting many poor on work and supposition of enabling to pay Taxes can over-ballance the interest of the just and