a Forester or Warrener finde any Trespasser wandring within his Liberty intending to do damage therein and do fly away after Hue and Cry that is a Noise made after him the Forester or Warrener may kill him that so flies away and he shall suffer nothing This is a wicked Law and against the Royal Law of God (d) 3 Jac. 1. c. The Statute That an Attorney or Sollicitor laying out Moneys for his Clyent or Master shall not demand or recover his Money unless he can produce a Ticket under every man's Hand to whom he paid it which is a thing impossible to be done for that no Lawyer Serjeant Judge or his Servant will give any such Ticket It seems regularly that Statute pleaded is no Bar for a mans Fees for those are due where he layes out no Money if the Attorney take pains nor is it allowed in Bar of the Money laid out if a just Bill be delivered under the Attorneys Hand yet some Judges have allowed this to hinder a man from Recovering a just Debt This Law is a hard Law and ought to be amended (e) 21 Jac. c. The like may be said of the Statute concerning Limitation of Personal Actions which was Ordained to a good end that Debts might not be twice paid but now it 's constantly used by Knaves who owing Debts without Specialty will drill men on until the six years are up and then will impudently plead the Statute although they have never denied the Debt But it may be Witnesses are dead or the Debtor or Creditor dead or out of the Countrey in the time of the late Warres and so no Suit hath been brought within six years This Statute hath undone many Tradesmen in London and elsewhere It were fit this Statute were amended and something put in to help the Creditor where the Debt appears to be due notwithstanding the Suit was not brought within six years next after the cause of Action All these Laws are oppressive to the Subjects And although some of those last-mentioned had some ground of Reason for the promulgation thereof yet we see by experience That those as well as the former mentioned under this Head are grown to be prejudicial to all such whom they concern and are all against those Laws of God which condemn Oppression Ezek. 18.18 Zech. 7.10 Proverbs 14.31 and 22.16 1 Thessal 4.6 Isaiah 33.15 CHAP. VII That several Acts of Parliament made since Magna Charta and having the force of New Laws contain in them many Idolatrous and Superstitious Rights and Customs against the Law of God ALl those Laws which concern Presentations to Churches as they are called taking from the People that Liberty of choice of the Minister which they originally had in the Primitive Times as shall appear in it's proper place and the imposing a Priest or Minister upon them against their wills are Superstitiouâ— and tend to corrupt the Worship of God and to subvert the Order which Christ hath appointed in his Church of which sort of Laws are 13 R. 2. Chap. 2. and 31 Eliz. 16. The Statutes disallowing Clergie in many cases that is hanging a man because he cannot reade are both Superstitious and cruel Laws 23 Hen. 8. 1. 25 H. 8. 1. All in holy Orders as they are called shall have (a) 4 H. 7. c. 13 4 H. 8. c. 2. Benefit of Clergie but afterwards they and all other men are ousted of Clergie in many cases 28 H. 8. 1. 26 H. 8. 12. 32 H. 8. 3. 4 5 Phil. Mar. 4.2 3 Edw. 6. 20. 33. 5 6 Edw. 6. Chap. 9 10. 18 Eliz. 7. 39 Eliz. 9. But it 's observable That Manslaughter which is the killing of a man wilfully in hot blood for which the Offender ought to die was never ousted of Clergie All these are Superstitious and wicked Laws The Statute of the 25 Hen. 8. 16. authorizing Judges and great men to have Chaplains who may have a Benefice with Cure of Souls and not be resident upon the same implies two great Enormities 1. That some Ministers may have a Benefice or Church-living without Cure or Charge of Souls 2. (b) 28 H. 8. c. 13. That such Ministers may be absent from such Church or People and yet take the Tythes The Statute of the 25 Hen. 8. Chap. 20. about Consecration of Bishops with all the Ceremonies thereabouts is Superstitious The Statute of the 25 Hen. 8.20 appropriating to King Hen. 8. to be Supreme Head of the Church on Earth Impious if not Blasphemous This was Repealed the 1 and 2 Phil. Mar. her Successor was called Supreme Governor c. The Statute concerning First-fruits and Tenths payable to the King as they were formerly paid to the Pope in imitation of the Jews paying to the High-Priest all of them are Superstitious Laws 25 H. 8. 20. 26 H. 8. 3. 28 H. 8. 11. The like Superstitious are all those Laws which concern (c) 5 H. 4. c. 11 Tythes Oblations and Church-duties as they are called 27 H. 8. 20. 32 H. 8. 7. 37 H. 8. 12. 2 Edw. 6. 13. A Staâ—â—te was made 34 and 35 H. 8. 1. prohibiting the Reading or having Scriptures in English commanding That Religion should be as the King should appoint he that should Preach or Teach contrary to the Kings Injunctions should Recant his first Offence abjure the Realm for the second Offence and for the third Offence should be burned to Ashes This wicked and accursed Law was Repealed 1 Edw. 6. 12. Presently upon the making of this accursed impious Law 34 and 35 H. 8. 17. five new Bishopricks were erected by the King whereupon King H. 8. in that Statute is highly extolled for his Piety He cast out the Pope and made himself Pope and retained Popery The Statute of the 37 H. 8. 17. appoints Ecclesiastical Jurisdictions to be executed by Doctors of the Civil Law whereas all Ecclesiastical Power is in the Church All those Statutes which concern Uniting of Churches Election of Bishops Advowsons of Churches Jus Patronatus Quare Impedit are Superstitious and tend onely to the advancement of Antichrists Power 37 H. 2. 21. 1 Edw. 6. 1. 1 M. 5. The Statutes against eating Flesh in Lent and at other times little better then the Doctrine of Devils 2 and 3 Ed. 6. 19. The Statute 1 M. 3. forbidding to disturb a Priest or Minister in saying Mass or Divine-Service or the breaking any Altar Cross or Crucifix the Offender shall suffer Imprisonment and be otherwise punished This is a severe Law The Statutes appointing and setting up the Bishops above the Lords in Parliament next to the King his Vicegerent 31 H. 8. and all the old Statutes and those of later times also whereby the Lords Spiritual as they are called are placed before the Lords Temporal as they are generally in all Acts of Parliament this savours strongly of the Power of Antichrist The Statute of 1 Eliz. concerning the Oath of Supremacy now
Examen Legum Angliae OR THE LAWS OF ENGLAND EXAMINED By Scripture Antiquity and Reason Cujus Author Anagrammatῶs est Ἀ νόμος βο̂ᾳ ὡς βαÏÏ MALACHI 4.4 Remember ye the Law of Moses my Servant which I commanded unto him in Horeb for all Israel with the Sâ—atutes and Judgements LONDON Printed by James Cottrel 1656. To the Reader READER I Expect upon the very first view of the Title Page of this Treatise to be Censured by three sorts of men The first are some superstitious Antiquaries of this Age who are better skilled in Geoffrey of Monmouth and other idle Stories of the British Kings before the Romans entred Britain and in the Grants and Laws of the Saxon and Danish Kings of England made for exalting the Pope's Power Erection of Monasteries and other Superstitions and reverence them more then the holy Scriptures And as they believe the Name of a King to be Jure Divino and indeed little less then a God and that no man may Rule who hath not that Title because that a Plow Com. fo 177. b. 129. b. Bodin Repub. l. 1. p. 112. Name must never dye so they think That the Laws which they and others call the b Coke tit Cawdreys case l. 5. par 1. fo 1. Kings Laws are as the Town-Clerk told the Ephesians c Acts 19.35 concerning their Idol Diana the Image which fell down from Jupiter and of so d Lex illa Sanctio specialiter dicitur Cowel Instit Jur. Angl. l. 2. Tit. 1. sect 10. Impr. Anno 1630. sacred and divine Authority that they can admit of no alteration without breach of the divine Law To these I 'll say onely thus Government and so are Laws the e Rom. 13.1 2. Ordinances of God but what kinde of Government or how the Supreme Magistrate should be called or why Humane Laws may not be altered or amended I finde nothing in Scripture f Aristotle in his second fourth Books of Politicks proves this at large where he shews the kindes of Government and Titles of the Governors in his time Government in reference to the kinde is called by the Apostle PETER g 1 Pet. 2.13 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Humane Creature and whether the Government be Monarchical Aristocratical or Democratical or whether the supreme Magistrate be called Nasi Prince as the Jews called Moses or Leader h See the several Titles given to the Supreme Magistrate of several Nations anciently and lately p. 121. n. 18. â—equ Governour or i Bodin Repub. l. 1. p. 83. Hen. 2. King of France called Protector 1552. Adherbal King of Numidia termed himself The Steward of the People p. 121. Protector 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that iâ— King as the Greeks called their Chief Justice at Athens Dictator or k Chief Captain p. 157. Imperator as the Romans called their Chief Magisrate or as the Venetians call theirs Doge or Duke there is nothing in Gods Word against it But this is necessary that the Supreme Magistrate should have l Pasor Lex p. 206. b. Bodin Repub. l. 1. p. 110. Confer concerning Power of Parliaments p. 4 5 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Power and Authority which are to be upheld by good and wholesome laws founded upon the Divine laws of God the onely law giver who can save and destroy and secured and defended with the Power Estates and strength of the People who are to look upon the Authority which God hath set over them and m Ezra 7.25 26. Rom. 13.1 6 7. submit themselves therâ— unto for the Lord's sake and not to dispute about Change of Government which sometimes is both n Exod. 18.13 21. Numb 11.16 17. Deut. 1.13 14 15. Acts 13.20 21 22. lawful and necessary It seems clear That all Government was Originally in Families where the Master or Father of the Family was the Prince or Chief Magistrate o Haynes view Holy Scriptures p. 81. Ral. Histor l. 1. c. 9. sect 1 2. the Obedience to whom was called Piety But afterwards when the World grew better stored with People men began to associate themselves into Villages then into Cities and lastly into Common-wealths and Nations and these betook themselves to p Paraeus in Gen. c. 10. Hawk Right of Dominion l. 2. c. 4. p. 35 Arist Polit. l. 1. a Governour whom at first they called q Gen. 50.7 Exo. 3.18 24.14 Pro. 31.23 Elder which was not onely a name of age and gravity but also of superiority and Magistracy and continued untill Monarchical Government was Erected which it seems at first was a Government at r Bodin Repub lib. 3. cap. 3. pag. 293. l. 4. c. 1. p. 412. Jun. Brut. Vind. contra Tyran p. 95. Ex Herod l. 2. the Will of him that ruled and grew into Tyranny for want of Laws Å¿ Exo. 3.10 16 18. 18.13 Willet Hex in Exo. 18. v. 15 19. qu. 16 18. But it pleased God in favour to mankind and for the good of his people to establish supreme power in one person limited and bounded with wholesome Laws And as an affliction and Punishment to suffer Tyranny to be exercised in the t Bod. de Rep. l. 1. p. 47. l. 2. p. 200. out of Philo Judaeus and Josephus world and sometimes towards his own people as may be seen in the government of the Babylonians Assyrians Medes Persians and other heathen nations u Grot. Pol. Max. Par. 2. c. 8. Gen. 14.1 40.1 The chief Patern which can be expected and of most certain Antiquity both for government and laws is that of the Israelites with whom God was most eminently present Albeit there were many other Kings long before Moses brought the Israelites out of Egypt as those mentioned in the Book of Genesis besides the Kings of Egypt Babylon and Assyria of which w Ral. Hist l. 1. c. 10. sec 1. Haynes View Holy Scripture p. 125. Hawk Right of dominion l. 2. c. 7. p. 45 Ex Chrysost Muscul Nimrod was the first of these it 's not necessary to say any thing But concerning the Israelites their state laws and government we have most exactly recorded by Moses x Coke l. 7. fo 12. Calvins case the best and most ancient Writer of Laws in the Book of Exodus which contains y Willet Hex in Exod. p. 1 2. their deliverance out of Egypt with the concomitants and circumstances thereof in the first part of that Book to the end of the seventeenth Chapter Then their constitution and settlement in the Land of Canaan by wholesome and just laws z Exo. 21.1 which were delivered unto them from God by the hand of Moses Now to return after this digression If Almighty God gave Political laws to his own people no man dare say but that those laws must needs be most just and equal a Cock Engl. Law
are improper for Acts of Parliament (t) Coke Instit 2 part Proem p. 2 3. Hubert who liv'd when Magna Charta was made and was a witness to it knew the nature of it better then any one in these dayes who know but by Tradition or Conjecture K. John granted such a Charter which was impeached by his Successors because it was made when he was in Dures and the same is laid aside and not regarded And we finde it Recorded That the Charter of King John was avoided as a voidable Grant And that King Ed. 1. after the Confirming of the said Charters of Magna Charta and Charta Forestae by the Advice of Hubert de Burgo Chief Justice of England the principal Oracle of the Laws in those times cancelled the said Charters and declared That he was not bounden to observe them in regard he was under age when he granted or confirmed the same And this is said to be done by Advice of his Councel at Oxford which is a sufficient proof that the same were no Acts of Parliament for that although Non-age may make mens Grants voidable yet the minority of the King cannot prejudice any Act of Parliament Because such Acts are the Agreements of the People to which the King gives but his Assent And this may suffice to be spoken touching the said Charters CHAP. V. That the Statutes of Marlebridge Westminster 1. and the rest of the old Statutes said to be Declaratiry of the Common Law savour of the Power of Antichrist and contain in them manifold Impieties and Superstitions THe said Statute of Marlebridge in Chap. 12. concerning Derrain Presentments and Quare Impedits Marl. c. 12. 28. and Chap. 28. concerning the provisions for Successors of Bishops containeth matters Superstitious and tending onely to uphold Popery and are lately in effect all abolished by the abrogating of the Archbishops and Bishops which shews the uselesness of those Statutes Coke Instit 2. part in the preface p. 79. c. 6. p. 90. And the same may be said of the Statute of Merton a great part whereof concerneth the like Superstitions which are abolished The Statute of Westm 1. was made likewise with reference to the advancement of the State of Antichrist Westm 1. c. 2. as appears by the Preface to the said Statute And in the said Statute is likewise set forth as warranted by Law the Champions Oath in a Writ of Right which is many wayes sinful as shall appear where this Champions Oath and Tryal by Combate are particularly handled and the provision made in the said Statute for upholding of Bishopricks and Superstitious Houses and the ordering of a Clerk convict for Felony who notwithstanding his Conviction shall be delivered to the Ordinary and so escape which is said to be according to the priviledge of holy Church These Laws are Superstitious and Unlawful (a) Stat. de Bigamis c. 5. 25 Ed. 3. c. 4. The Statute de Bigamis and a Statute made 25 Edw. 3. which Ordain That such Clerks as shall be twice married being attaint of Felony shall not be delivered to the Prelates as Clerks but that Justice shall be executed upon them as upon other Lay-people This is a foolish Law that being twice married should be accounted an offence and the same Law is altered by a Statute made 1 Edw. 6. Chap. 12. In Chap. 5. of the Statute de Bigamis Coke Instit 2 part pa. 273. Pope Boniface the 8 his Councel at Lyons in France care is taken to preserve the Constitution of the Bishop of Rome concerning the Priviledge of Clerks which Bishop is there called Dominus Papa By the Statute of Glocester Chap. 8. it is Ordained That none shall have Writs of Trespasâ— for Goods taken unless he swear by his Faith That the â—oods taken were worth forty shillings and if he complain of beating he shall swear by his Faith That his plaint is true The intention and scope of the Law is good but the making an Idol of a mans Faith and putting it into the place of God the great Judge is wicked Profaneness and a breach of Gods Law The Statute of Westm 2. Chap. 5. concerning Darrein Presentments Quare Impedits and Advowsons of Churches is Superstitious and serves for nothing else but the setting up of Humane Presumptions in opposition of the Ordinances of Christ in his Church And the same Statute Chap. 34. appointing That he that carrieth a Nun away from her house although she consent shall have three years Imprisonment and be Fined is a Superstitious Law and tends to uphold the Antichristian Power of Rome And the same Statute Chap. 35. Enacting That he that takes away a Ward and marrieth her after years of consent shall abjure the Realm is a profane Law and aâ—ainst the lawful use of an Oath The Preface to the Statute called The Award between the King and his Commons at Kenelworth and the Curse thereto annexed containeth matters Impious if not Blasphemous and not fit to be preserved being a Monument of Idolatry The Statute concerning Consultations 24 Edw. 1. mentioning Ecclesiastical Judges served to uphold The Spiritual-Court or Court-Christian as it is called The Statute of 25 Edw. 1. Chap. 4. giving power to the Prelates to Excommunicate the breakers of the Great Charter and another Statute of Edw. 1. put next-before the Statute of Ireland giving the Prelates Power to pronounce Accursed all those that do any thing willingly against the Charters Chap. 6. These are Superstitious Laws and an abuse of the Church-Censures and the Power of Christ in his Church In that Law called Articuli Cleri 35 Edw. 1. the Church-yard is said to be Dedicated which Dedication is Superstitious no place under the Gospel being more holy or dedicated then another The Statutes made 9 Edw. 2. concerning Prohibitions Tythes Clerks convict Pâ—â—lates Spiritual-Court Excommunication Abjuration Power of the Ordinary Fee of the Church Superstitious Houses Monasteries Parsons Parsonages containing sixteen Chapters are nothing else but Popery and the advancement thereof The like may be said of the Statute of the 25 Edw. 3. Chap. 3 4 5 7 8 9. concerning Lapses of Benefices Clerks convict Ordinary Counterpleading of Title to a Church All which savour of nothing but Superstition The Statute of the 13 Rich. 2. 2. appointing the King to present to Churches The Statute of Provisors of Benefices whereby the King and his Lords are to present to Churches shewing That the Pope did use to present to Bishopricks Religious-Houses as they are called and Churches The Statute of 25 Edw. 3. whereby the Pope diâ—annulled the Statute of 18 Edw. 3. concerning the Arraignment of a Clerk and many other old Statutes of the same nature wherewith the Lawyers have been so much pleased and whereof they have so much boasted are nothing else but the Badges and Characters of Antichrist All these Laws are repugnant to those Laws of God which forbid False Worship Superstitious and Humane
Pax Reg. Regni tit Pardon f. 218. b. 219. a. 2 Ed. 3. c. 2. 4 Ed. 3. c. 13. 13. By the Common Law the King had Power to Pardon Murther and it hath been commonly used in former Ages whereby the Land hath been defiled with Blood This is an Impious Priviledge or Custome and clearly against the holy Law of God and seemeth likewise to be contrary to the Kings Oath although by a Statute of Edw. 3. Chap. 2. it appears such Pardons were very common and ate available in Law against an Act of Parliament being made with a Non obstante c. Prov. 28.17 Jam. 4.12 Exod. 21.12 Weems M. L. Com. 6. Decal Exercit. 9. p. 131. (z) Sueton Tranq in vita Julii Caesaris sect 89. in fine It 's written That of all the Senate who murthered Julius Caesar there was scarce one that either survived him three years or dyed a natural death The Historian saith They were all Condemned and it doth not appear that any one of them had a Pardon (a) Bodin Rep. l. 1. p. 174. p. 175. No Soveraign Prince or any Man living can pardon the Punishment due to the Offence which is death by the Law of God no more then he can dispense with the Law of God whereunto he is himself subject 14. (b) Custom Norm tit Tenure par Homage fo 27. b. Kitchin Court-Baron Cowel Inst l. 2. tit 3. f. 3. p. 115 S. 15. p. 119. Wingate Law c. 7. p. 13. n. 29. The Oathes of Homage and Fealty to Lords of Mannors are Snares upon mens Consciences and savour of Tyranny and Oppression The Oath of Homage besides that which is mentioned in the old Books the substance whereof was That the Tenant would be the Lords True-man hath many trivial additions to it which are not of concernment enough to be the cause of an Oath and other things not fit to be sworn unto and all are against that Law Thou shalt swear in Righteousness and Judgement Jer. 4.2 Exod. 20.7 Jam. 5.12 15. (c) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. f. 20. b. fo 21. a. The Attributes of God in the Law given and ascribed to the Kings of England are too high if not Blasphemous viz. Majesty Soveraignty Most Sacred Majesty Infinity c. Ubiquity Immortality Perfection Verity Absolute Justice c. (d) Co. Tit. Pa. to his 5 6 7 8 9 10 11 Rep. Plowd Com. fo 234. a. 177. a b. And by Sir Edw. Coke seven times King James is called Le Fountain de tout Piety Justice la vie de la ley The Fountain of all Piety and Justice and the life of the Law O fearful Blasphemy Although it must be conceived that these Attributes are but Analogical Expressions yet it may be observed That such Arrogancy especially when by this temptation it 's taken to himself of whom it 's spoken (e) Such Emperors and Princes who have taken that Honour to themselves which is due to God alone as did Caligula Domitian Commodus Antiochus c. have all and alwayes miserably perished Jun. Brut. vind contr Tyrann p. 14. is a certain signe of Ruine as was seen in Herod when the people cried The voyce of God and not of man then was he smitten c. Acts 12.22 23. He that said Mine honour will I not give to another will endure no such pride (f) Gualdo Priorato Bell. Germ. p. 125. Battel Luâ—zâ—n p. 19 20. Divers of the Roman Emperors would not suffer themselves to be called â—oâ—l Jun. Brut. vind contra Tyrann p. 51. That famous worthy Gustavus King of Sweden foretold his own death upon this very ground and although he protested against the impious Acclamations of the people was slain within two dayes after they were given to him We condemn such Hyperbolical Titles in the Turkish Emperour and the Pope and by such means the Heathen Babylonians (g) Coel. Rhod. Lect. Antiq. l. 8. c. 2. p. 281. Persians and Râ—mans came to Deifie their KINGS and EMPEROURS But (h) Suet. Tran. in vita Augusti Caesaris sect 53 Augustus Caesar abhorred such Flattery and refused so much as to be called Gracious Lord (i) Corn. Tacit. Prooem l. 1. Annal. p. 1. l. 2. c. 19. p. 61. but was called Prince and it may be observed That Almighty God to prevent such arrogancy when he saith I have said Ye are Elohim Gods or as the word signifies Mighty Judges presently addeth that Ye shall dye like men All must remember this Psal 89.6 1 Sam. 2.30 Isa 42.8 48.11 Dan. 4.30 36. Acts 12.22 A very Learned man hath set it down Bodin Repub. l. p. 181. That for a Soveraign Prince to arrogate to himself the Titles of Most Excellent and Sacred Majesty is absurd the one being a point of Lightness and the other of Impiety For saith he what more can we give to the most Mighty and Immortal God if we take from him that which is proper to himself And he censureth the Princes of Germany for that in a Letter to the King of France there were V. S. M. which is Vestra Sacra Majestas which he calls An addition proper unto God 16. That a Disseiser taking a mans Land from him by (k) Littleton l. 3. c. 6. sec 385. Coke Com. Lit. upon the same place fo 238. a b. Coke l. 2. fo 56. Doct. Stud. c. 8. fo 16. force after a Discent he that hath Right and is the true Owner of the Land cannot enter upon the Heir of the Disseiser This is an unjust Law and a ridiculous thing That he that hath Right may not enter This was a Custome used in favour of such whose Ancestors had entred upon other mens Lands in the time of Wars and put out the Owners Then the Conqueror or Prevailing Party allowed this Priviledge to such of his Party who had so entred Here a man by doing Wrong gets a Right and the Magistrate ought to remedy it Isa 58.6 Ezek. 45.9 Psal 7.16 Luke 3.14 Mich. 2.2 Charta Forestae cap. Manwood Forest Laws par 2. n. 1. par 1. p. 139. 21 Ed. 1. c. Cowel Instit verbo Forest 17. The Laws concerning Chases Parks and Warrens are a great Oppression to the Common-wealth as now things stand as it 's partly declared before where the Charter of the Forest is spoken of It 's true King William the Conqueror had a Title which he got by his Sword and by his Bowe and had the more reason to dispose of those Lands as he pleased and of the Lands adjacent as men would hold of him But now time and it may be lawful Purchasees have made men Owners of such Lands and to make them subject to the Forest-Laws is a great Oppression and contrary to all those Laws of God which forbid Oppression It is to be hoped these waste grounds will be put to better use 2 Chron. 16.10 Isa 1.17 Prov. 22.16 Ezek. 18.7
from Idolaters that they ought to root out their Idols and all (l) Deut. 12.3 Exod. 23.13 34.13 2 King 18.4 Hos 2.17 Zech. 13.2 their Superstitions from under heaven For that whilest things stand as now they are we cannot expect the comfortable Presence of God so effectual for our good and protection as if they were removed according to that (m) Psa 94.20 of the Holy Ghost by the Prophet Shall the Throne of Iniquity have fellowship with thee which frameth mischief (n) Such Laws as are contrary to the Laws of God and Nature the Prince may abrogate at his pleasure Bodin Rep. l. 1. p. 105. by a Law And if we consider that these Popish Laws coming from Idolaters branded this Nation with the Mark of the Beast which all those Kingdoms and Common-wealths received who were under the Power of Antichrist as this was until King Henry 8. his time who although he cast out the Pope's Supremacy yet retained Popery we may justly fear that without serious Repentance which cannot be testified but by Reformation the Maintainers and Countenancers of these Superstitions (o) Rev. 14.9 10 11. shall taste of the wine of the wrath of God and be tormented with fire and brimstone for ever But our God will save his people from their sins and deliver them from his wrath Howbeit it concerns us to know That although God (p) Acts 17.30 winked at the former times of Ignorance yet now he commandeth all men everywhere to repent and although we have hitherto failed of our expected Reformation and that all the labour and pains taken in order thereunto hath been lost and frustrate because a Patern from Gods Word was not sought for which may be imputed to be the true cause thereof yet at last it may be found that the Moral and Judicial Laws of Moses and other Rules and Consequences from Scripture are a sufficient standing Rule in all cases not onely for Godliness but also for Righteousness Justice and Sobriety according to that of the (q) 2 Tim. 3.16 17. Apostle to Timothy herein before recited And it is to be hoped upon very good grounds That the neerer we come to perfect Reformation the more we shall taste of Justice and Righteousness in the (r) Isa 60.17 execution of holy and just Laws under such Judges and Magistrates as were in the beginning which is to be earnestly prayed for knowing That good Laws are more security to the People then good Magistrates But when Almighty God giveth both together that 's an eminent sign of his special favour (Å¿) Isa 1.26 And this is promised to the People of God in the later times and now began to be fulfilled in this Nation in as much as the blessed Gospel of our Lord Jesus Christ and the People of God in the Profession thereof have more freedome and incouragement to Worship God according to his Divine Will then ever England enjoyed in any former Age either before or since the last Reformation But it 's much to be lamented that many who within this Age suffered Persecution under the tyranny of the Bishops and Archbishops upon pretence of breach of these our Laws in not conforming to Order and Discipline They themselves under the same pretence of Order and Church-government as they call it are now as ready to persecute their Brethren whose Consciences are not just of their Size if they could get Power into their hands to execute their Canons and other Popish Injunctions as ever the Bishops were since Queen Maries dayes For although they with the Scots are glad to be rid of the Bishops yet they at least many of them have the Scotch Presbyters Spirit in them (t) Simson Church-Hist in the Life of Anastatius Cent. 6. p. 88. who in his Church History commendeth the People of Antiochia that they were very friendly to their Pastor Flavianus and that they finding a great Number of Monks savouring as he saith of Eutyches Error and having an intent to compel their said Pastor or Bishop to accurse or abjure the Councel of Chalcedon but how their purpose was manifested doth not appeare in the Story The People set upon the Monks as not long after the honest Monks of Bangor were set upon slew a number of them others leaped into the River Orontes where as the Scotch Presbyter faith they found a meet burial for Seditious Monks There is no means under Heaven certain to preserve the People of God from Persecution but the abolishing of all Popish Laws and to Conform our selves to the holy Laws of God And that is the scope of this Treatise CHAP. IV. That Magna Charta and Charta Forestae do not appear to be any Acâ—s of Parliament although they be so called That chiefly therein was intended the advaâ—cement of the Romish Power in a Tyraâ—nical Goverâ—ment FIrst it is to be considered That upon the Norman Conquest by Duke William (a) Fox Acts Mon. Vol. 1. pag. 221 222. Ex Henrico Huntingdon l. 6. the bulk of all the Lands in England some few excepted Wales being then a Kingdom of it self were divided to such Noblemen Commanders and Gentlemen as joyned with him in the Conquest the design not being carried on by himself alone but by the forces helps and purses of many others who were to share with the Conqueror therein who besides what he reserved in Demesne he divided the rest to his Friends and Assistants to be holden of him by such Tenures Rents and Services as he thought fit (b) The Romans subduâ—d the Britains to be Subjects but not to be Slaves They were willing to pay all Levies of Men and Money if Insolencies were foâ—boâ—n Tacit. in vita Jul. Agricolae p. 188. as the Romans had done a thousand years before (c) Cambdens Britannia p. 94. Cowels Interp. word Doomsday Lamberts Exposition of Saxon words Jus Dacorum This occasioned the great Survey of England to be taken called Dooms-day-Book wherein were set down all the Lands in England and in whose possession they were Upon this Division the Natives (d) Stow Annal. p. 10. Life of King William the Conqueror Cok English Law p. 24 25. were horribly oppressed and rigorously dealt with insomuch that it was afterwards a (e) Fox Acts Mon. Vol. 1. p. 222. col 2. shame to be accounted an English-man which caused very many to remove into Wales and other Countreys rather then to abide the Tyranny of the Normans and the rest were left to the mercy of the Conqueror and the Strangers who came with him who (f) Stat ' Ebor ' 12. Ed. 2. in Preface Plowd Com. fo 129. B. Fourn Geogr. Orbis Notitia l. 5. part 1. c. 11. pag. 224. thereupon altered or rather abrogated the Laws of England and put upon them the Customs of Normandy written in the French Tongue and for ought appears the Nation had no considerable settlement by Laws until Hen. 3. his time
when these Grants and Customs were procured and confirmed And it appears clearly upon perusal of the Statute called Magna Charta That the same was but onely the Grant of King Hen. 3. and the confirmation of King Edw. 1. and some of his Successors and the end and scope of it is the upholding of Tyrannical Government and the advancement of the Power of Anti-Christ And although by some particulars in the said Charter Tyranny seemed somewhat to be eclipsed or bound up by the Kings own Consent yet in other particulars it is as much enlarged and confirmed which appears upon view of the Second Third Fifth Seventh Eight and twentieth One and thirtieth and Two and thirtieth Chapters of the said Charter wherein provision is made according to the Law of the Normans (g) See the Customs of Normandy upon these subjects in the several Titles to settle Tenures by Knights Service and Capite and all the Slavery and Oppression which that Tenure drew with it to wit Wardship of the Body Primer Seisin Mesne Rates Marriage Relief Suing Livery or Ouster le Main and all such-like Miseries as were the Badges of a Conquered and Enslaved Nation All which Laws are as it 's hoped taken away with their Rack or Inquisition-house the late Court of Wards And besides this the Laws imposed upon the People were then written either in French or Latine which the Vulgar of the English understood not and yet they were bounden to obey under severe Penalties And although some of those Laws have been since translated yet many of the old Statutes and the bulk of that which is called The Common Law do yet remain in the Latine and French Tongues untranslated to the shame of the Nation as if we were resolved for ever to wear the Tokens of our former Captivity That this Charter called Magna Charta chiefly intended the advancement of the Power of Antichrist there is nothing more evident and needs no other proof but what is therein contained (h) Preface to Magna Charta First in the preface of King Hen. 3. to the said Charter it 's mentioned to be granted for advancement of holy Church that is the Church of Rome and the same is done in the Confirmations of the same Charter (i) Stat ' 25 Ed. 1. c. 1. 1 2 Ed. 3. 1 R. 2. by divers of the succeeding Kings And the Grants to all the (k) Coke Inst 2. part Pa. 1. In Charters of Creation of Dignities the directions have always been Archiepiscopis Episcopis Ducibus c. and his restibus in the end as Magna Charta hath which is a Badge of the Kings Grant and no Act of Parliament Archbishops and Bishops Abbots Priors and all those Popish Orders clear what was intended by the said Charter In the beginning whereof the King granteth to God that is either to the Pope or the Priest for so it 's to be understood in the Law where a Mortuary or Tythes are paid they are said to be given to God but they go to the Priest So a Deodand whatsoever moveth to the death of any man accidentally slain is said to be given to God but it was used to be disposed of by the Kings Almoner who was some Bishop (l) Ans 5 Rep. Coke Caudreys Case Instances in all the Kings from the Conquest until Ed. 6. c. 7. p. 155 156 160 168 to the end of the Book Then in the first Chapter the King grants That the Church of England shall be free not from Rome for the Pope rode the whole State both Ecclesiastical as they called it and Civil from the Conquerors time until King (m) Fournier Orbis Notitia part 1. l. 5. c. 12. p. 225. Preface to Magna Charta c. 5. 14. Hen. 8. but from the Secular Power that is Antichrist shall so far prevail and be exalted that all his Vassals Priests and Clerks shall be free from the Temporal Laws and Civil Power or Authority Insomuch that if the Ordinary would acknowledge any man for a Clerk he should be taken from Judgement and be discharged of all his Crimes and Offences be they never so heinous And the Priviledges granted to the Popish Clergie in the 5th and 14th Chapters of the said Charter do further confirm what the Kings intention was in making the said Grant or Charter nothing more then the advancement of the Popes Power And as concerning the Charter of the Forest a (n) Charta Forestae c. 6 9 10.11 considerable part thereof contains matters trivial and of mean concernment And that part of it which beareth the most weight was in it self a great Oppression to the People And the best which can be said of both the said Charâ—ers is That they were (o) Magna Charta est liber seu Codex Constitutionum quas Hen. 3. ad utilitatem subditorum suorum promulgabat c. Cowel Instit Index Exposit Lit. M. the Badges of a Popish Kings Favour and are said to be granted for the Salvation of his Soul and the Souls of his Progenitors and Successorâ— And we may remember how by colour of the said Charter of the â—orest the Justices in Eyre tyrannized over the Pâ—ople living in or near the Forests not long since the most considerable part of the Nation (p) Cok. Engl. Law p. 48. being like to have been brought within the compass of the Forests and subject to these Forest-Laws And what vast sums of Money have been exaâ—â—ed for Fines imposed for building hedging incroaching and other advanâ—ages taken against them in the said Forests And what Wrongs and Oppressions have been done to the said Inhabitants by the coâ—our of the said Laws it 's too well known And (q) Cok. Engl. Law p. 25. how many Towns have been destroyed to make a Forest and yet the poor People might not kill the Deer although they did eat up and spoil their Corn what price soever it beared But it is to be hoped That the Lord Protector will put these Forests to some better use then formerly they have been put unto the (r) An ancient Manuâ—â— Expos Forest Law fo 1 3. Original of them being for Coverts for wilde-beasts and wilde-fowl And lastly these Charters although haply they do contain some things which were the Laws and Customs of England before that time yet they have also the Laws and Customs of Normandy thereunto added having no shew or colour of an Act of Parliament in which the People were interested as parties to the mâ—king thereof both the said Charters being called The Grants of King Hen. 3. and the Confirmation of K. Edw. 1. (s) See the conclusion of Magna Charta The Statute de Bigamis is said by Shard Justice to be no Act of Parliament upon this ground Coke Instit 2 part p. 267. And in conclusion termed The Kings Letters Patents as all other the Kings Grants are and the Witnesses Names subjoyned in Testimony thereof which
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
Bishops could do or procure without the help of the Judges 1 Cor. 8.12 Joh. 16.2 3. 1 Pet. 2.19 Jer. 38.6 51. The Law concerning Heriot-Service where Heriots multiply insomuch that if a Tenement be divided into twenty parts he that hath but a Foot of Land shall pay a Heriot (f) Kitch f. 134 44 Ed. 3. Fitz. 1 Custom Corley Com' Wai ' Case between L. Brook and Sewal Cowel Inst l. 2. Ti. 3. S. 31. p. 129. that is his best good or beast or the second as the Custom is The Lord doth usually till on the Tenants and takes 5 s. or 10 s. for a Heriot where a man pays Five or Six but if the Tenant cross the Lord he can take the utmost according to the Rule above-said This is a great Oppression Isa 33.15 Exod. 1.13 14. Levit. 25.46 (g) Bodin Rep. l. 2. p. 202 This Tenure was first created and payable by Souldiers who had Lands given them by the Conquerours in England and many other Countries long since and is worthy to be abrogated 52. That great (h) 25 H. 8. c. 22. Cock Engl. Law p. 4. Jun. Brut. vind p. 49. Laws Geneva p. 12. Claiming Offices by Descent is condemned and rejected by the French and several Decrees made against it In the Records of that Court one solemn Decree appears Anno 1272. Bod. Rep. l. 3. c. 5. p. 331. The Israelites before they had a King in time of Warre chose them a Chiâ—ftain such a one as God had stirred up to save them and to him they gave Regal power Idem l. 3. c. 7. p. 363. Offices of Rule and Trust requiring great abilities and especiall graces for the execution thereof should be Hereditary or by Succession seems to be against the current of Scripture Moses sons ruled not but Joshua succeeded for that such as have been special Instruments to save or deliver the people as Moses Joshua some of the Judges David and others were especially designed of Almighty God for Government and others were appointed and elected by the People who were to be such as are described Exod. 18.21 Psal 89.20 1 Sam. 10.12 13 21 24. 1 King 19.15 16. Deut. 17.15 It 's said of Augustus Caesar That he never commended his sons to the People for Government but with this Clause added thereto If they shall deserve Suet. Tranq in vita August Caesar Grot. Pol. Max. part 1. cap. 3. pag. 20. Godw. M. A. lib. 5. cap. 5. Willet Hexa in Exod. 18.21 22. Qu. 21. Hos 1.11 (i) Idem l. 4. c. 1. p. 412. Hank Right dom l 2 c. 6. p. 37. This Succession is judged to be the cause why there are so few good Rulers and Magistrates 53. Tryal by a Jury is no Scripture-way and as now things are generally practised As a man is friended his Cause is ended In ordinary Cases the Jurors are of the meanest of Free-holders both in Understanding Credit and Estate and for the most part such as will give the Bayliffs nothing to excuse them Anciently they were to have (k) 8 H. 6. c. 9. 1 H. 8. c. 8. 23 H. 8. c. 13. 35 H. 8. c. 6. 40 s. per an of Free-hold afterwards that 40 s. was raised to (l) 27 Eliz. c. 6 Four pounds yearly Now in cases of Titles and other business of any considerable importance the Jurors are privately dealt withal and although no more can be proved but that (m) Cock Eng. Law p. 45. such a man desired them to appear and do their conscience which is justifiable yet many times the Jury know the matter in question beforehand sufficiently and one side or other is confident of the Jury if such and such leading men appear and they know who will give them the best reward or are like to prove their best friends If the Judges were such as the Scripture holds forth That they should be able men men of truth fearing God and hating Covetousness there were no need of such poor-conâ—ition'd fellows as many times they are to be Judges as these are in all matters of Fact between Cause and Cause which I take to be an offence against God Cock Essay p. 138. the Jurors wanting the qualifications of Judges that the Judges and those which ought to be Judges delegate their power to others and do not judge all Causes themselves (n) Plow Com. f. 231 a. Anciently there were a Jury of Judges in the Upper Bench and Common Pleas that is Six in each Court who used to meet together to declare the Law It is the pride of man to judge onely matters of (o) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 1. f. 58 a b. 9 H. 6. 38. 14 Eliz. 410. Law and to let matters of Fact to be tryed that is judged by the Jury who may also try the matter of Law if they will The Jews had a righteous Law from GOD which was That the Nasi or as the Grecians call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Prince or King for so Moses was called should judge all (p) Augustus and Tiberius did observe this Course Hawk Right of Dominion pag. 55. Ex. Bodin Sueto Tranq the hard causes and the Judges should judge the rest without any Juries The Jews had the great Court of the seventy Judges or Sanhedrim (q) This fulfilled that prophesie Gen. 49.10 Godw. W. A. L. cap. 1. pag. 4. lib. 5. cap. 5. p. 213. Num. 11.16 continued from Moses until Christs time when they were put down by Herod the Askalonite they had also two other Courts for tryal of smaller matters the Sanhedrim although they usually sat at Jerusalem Yet many times they divided themselves and did sit in five several places for the ease of the people although all the Land of Canaan which the Jews had on this side Jordan was not above 100 miles in length and 36 miles in bredth The next (r) Godw. M. A. L. 5. c. 4. pag. 210. 111. 212. Court consisted of 23 Judges which sate in the Gates of the several Cities every City having such a Court. The third Court consisted of three Judges which judged the smaller matters in every Village (Å¿) Godw. An. Rom. lib. 3. Sect. 4. cap. 20. The Graecians and Romans had their proceedings in causes criminal and civil and personal much like unto the Jews and in case of life and death the whole Court of Judges sate who were more in number then the Jews Sanhedrim and the Judges (t) Rous Att. Ant. pag. 110 112 118 125 126. were sworne where there was a Law to Judge according to that Law and where there was none to Judge according to equity and conscience The Chief Justice or President amongst the Graecians was called Basileus in Imitation of Moses who was the first chief of the Sanhedrim And if the heathen by the light of nature thought good to receive these laudable Customes and Laws from the people of God why
should we depart from them being none of those Ceremonial or temporal Laws which now being abrogated are unlawful to be used Exod. 18.13 21 22. Numb 27.1 2. Deut. 17.6 10 11. Ezra 7.25 26. Acts 25.9 10. 54. That no man can be punished upon Indictment for breach of any penal Law be the matter never so plain except in some few cases lately provided for (u) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 2. fo 69. The bill found by the Grand Jury is but an Accusation until the matter be found by two Juries unlesse the offender will confesse the fact which causeth few or none to be punished for wilful breach of the best Laws in force by reason that the Prosecutor is forced to be at so great a charge to promote the execution of Justice and every petty Errour is sufficient to overthrow the Indictment being but a mistake of a word or syllable it 's fatal being helped by no statute of Jeofails Thus such as are Indicted creep out by one means or other the Prosecutor or Informer being never favour'd in any Court and seldom any Common Jury will finde for the Prosecutor it being a common saying amongst such Jurors that if they finde for the plaintiffe they shall have nothing for their labours By this means most of the penal Laws stand as so many scar-Crows effecting nothing (w) An ineffectual Law is quasi Campana sine Pestillo A bell without a clapper Danaeus Hawk Right of Dominion l. 2. c. 9. p. 65. This course in proceedings is faulty three wayes 1. It 's too Tedious and chargeable to the Prosecutor 2. It puts the Jury into the place of the Judge as before is said 3. It 's an encouragement to Offendors and in all these against the Law of God Acts 24.22 26. Exod. 18.22 Eccl. 8.11 55. Purgation by Ordael or Ordaeals when such as were accused of Crimes were put to their tryal by (x) Glanvil l. 14. c. 1 2. Cow Interp. verb. Ordael Combate by fire by hot water or cold water and so according as they came off they were pronounced guilty or not guilty Concerning the first I have herein formerly spoken That which was performed by fire Verstegan Rest decayed Intell. Pa. 50. 51 52 53. was either by taking red-hot Irons into their bare-hands or walking bare-foot over red-hot plow-shares blindfold That by hot water was by thrusting the parties Armes aâ—cused into boyling water to the Elbows That by cold water was by casting the party accused into a deep pit with a cord under his or her Armes In these cases if the accused partyes go over seven plow-shares being laid a little distance one from the other and either tread besides them being blindfolded or treading upon them with their bare feet or taking the hot Irons in their bare hands have no hurt and so if the parties putting their Armes into the hot water be not scalded or he or shee that is cast into a Pool do sinke and then come up again without hurt they are pronounced innocent and not guilty but if they are burned by the hot Irons or scalded by the hot water or cannot sinke in the cold water as likewise he that is slain or vanquished in the combate in such cases they are pronounced guilty Of these Sorceries for they are no better invented by Pagan Conjurers the old Law-books speak largely that the same were used before and after the Conquest and the (y) At Hampton in Arden Com. War A Woman suspected for a Witch was so tryed by the rude people for which they were indicted 1653. It s said some of these Trials are taken away by a statute of H. 3. but seems to be very obscure and doubtfull rude people use to try Witches by cold water as above is said until this day And although these Ordaeals be not commonly used yet they may be there being no Law as I take it against them but only a decree of Pope Stephen II. which is no binding Law These superstitions were never ordained to try or acquit guilty persons or such as are queâ—â—ioned for their lives they ought to be tryed by the testimony of witnesses Deut. 17.6 Numb 35.30 Heb. 10.28 56. (z) Coke l. 7. Calvins case fol. 2.19 28. That the King heretofore should have had to his own use all such Lands as any stranger borne of parents out of the Kings Allegiance purchased in England is an unjust Law and contrary to that which was used of old times and mentioned in the Holy Scriptures where men were admitted to purchase Land amongst the heathen and to enjoy the same Abraham bought a Field of Ephron the Hittite and enjoyed it and Isaac and Jacob had it after him as appears Gen. 23.17 18. compared with Gen. 49.30 31 32. 57. (a) Swinburn Tract Wills par 2. sect 14 15. Part. 5. sect 3. That Anabaptists such as deny the Baptism of Infants are accounted in our Law Apostata's and are not capable to make any will to be Executors or to receive Legacies this was not only held to be Law in times of popery but hath been since so determined the same is a wicked and unjust Law for if it should be granted that these men hold an Errour about Infants Baptism which may be questioned yet it cannot be thought to be an Errour in the foundation or a rejecting Christ and the Gospel nor so bad as to hold that all Infants although the Children of Pagans unbelievers and excommunicate persons ought to be or may be Baptized because this is contrary to these mens own principle grounded upon that Acts 2.39 Acts 2. The promise is made to you and to your children and to all that are afar off even as many (b) By this Scripture only the Children of believers or such as are called have right to the promise as the Lord our God shall call But howsoever this opinion cannot take away the civil right or property of any man to the things of this life to which the most wicked man living may have (c) The King hath Power and Soveraignty The property and possession of every mans things yet reserved to himself Bodin Republ. lib. 1. pag. 110. 111. a civil right This therefore is an unjust Law Gen. 14.23 Numb 22.30 32. Acts 5.4 58. The like Law is concerning (d) Coke l. 5. fol. 25. Hereticks who are such in our Law as deny any Article of the Creed if it be but the locall descention of Christ into Hell or such whose opinions have been condemned by a General Council as the Papists will tell us the Protestant reform'd Religion hath been by the Council of Trent 2 H. 5. cap. 7. and other Popish Conventicles and that the Doctrines of our Religion have been condemned by several Acts of Parliament Swinburn Treat Wills pa. 2. Sect. 14. pa. 5. Sect. 2 Doct. Stud. f. 115. b. c. 29. under the name of Lollardries the Professors
the Punick war But before that was payed the Macedonian war grew on whereupon the people began to account their debts desperate saying that their moneys which they lent upon courtesie and benevolence was like to fall to the common Chest of the Citie seeing that one war followed upon the neck of another To satisfie these debts which was but the third part of the whole and the last payment Tit. Liv. l. 31. p. 781. A. B. All the Common Lands within 50 miles of Rome round about were conveyed to the Citizens in Fee-farm reserving three farthings by the year upon an Acre to testifie that they were the Cities Lands and to be redeemed when the State should have money This Land was called Trientius and Tributus because it was granted in lieu of the third part of the Loan money And as another means to enable the Romans to discharge great debts they * Idem Tit. Liv. lib. 7. p. 267. D. Tacit. Annal. lib. 6. cap. 4. p. 126 127. used in time of necessity to bring interest of money to one in the hundred and sometimes to half one in the hundred I suppose this were enough for money lent upon the publick faith if it were well considered seeing almost every Creditor hath received more benefit than the interest of money having his share in the blessing of Peace with the freedom of the Gospel and his Estate secured and quiet It is to be wished that after our late wars before the publick debts be payed we do not hastily run into other wars without just inforcement lest we bring our selves into the Romans conditions being far lesse able to raise money or to give satisfaction than they were CHAP. XV. A digressive discourse about the preaching of the Gospel the ordination and appointment of Pastors and Teachers and of their Office and maintenance IT shall in this discourse as my private opinion be premised wherein I crave pardon if I differ from other men that the (a) The distinction of Clergie and Laitie grounded upon Magna Charta and other popish Laws is still stisly maintained and upon that ground the Ministers claim to be discharged of Constables Leavies and other secular services as they are callâ—d And the Lawyers are very earnest to uphold this superstition Although all Gods people being alike his Lotor Clergie are called a Kingdom of Priests 1 Pet. 2.9 Isa 61.6 Revel 5.10 Deut. 32.9 ech 2.12 great distinction of the Tribe of Levi from the rest of the people with all their Sacrifices Circumcisions Services at the Altar their portion of the Tythes and Fruits their restraint from having any Lot of Land amongst their brethren in the Land of Canaan except that which was allotted and set out to them their purifications significant Garments with all other their Levitical and Ceremonial service are all finished by the death of Christ who fastened all those to his Crosse and took away this distinction and the burden of these Ordinances And that they were dead and not binding after Christs death That they had an honourable burial and were perfectly abolished at the demolishing and plucking down of the Temple the place of the residence thereof fourty two years after Christs death And that as at the first these things were necessary being the Commandments of God attending his service worship so after Christ they were dead and at the most things indifferent and rather suffered for the weaknesse of the Gentiles and in compliance with the Jews to the furtherance of the Gospel than for any necessary use thereof nay and in case of scandall and where they were much stood upon as matters appertaining to religion they became unlawfull and to be esteemed as beggarly rudiments Circumcision it self being a rejecting of Christ But after the distruction of the Temple when that Levitical and Ceremonial vvorship with all the appurtenances were destroyed dead and buried the use thereof became utterly abominable And therefore it is an unlawfull accursed thing to raise them out of their Craves again and to use the same in derogation and opposition of Christ and the sufficiency of his sufferings and upon this ground I conceive it unlawfull for the Ministers of the Gospel to Judaize in point of claiming by Divine right or receiving of Tythes as much in respect of the lawfulnesse or unlawfulnesse of the thing as if they should again fall to circumcising and to sacrificing as the Papists pretend to do in their idol of the Masse And it may be judged that the Ministers are blinded with the profits of the Tythes more than they were with their significant Garments and ceremonies because they receive more worldly advantage by them than by the rest which being unprofitable they have more willingly parted withall And especially their Parishes which the Church of Rome received from the Heathen the City of Rome it self being before the Suburbs were built or the Citie sacked by the Goaths and Vandals divided into two and thirty Parishes and so came into the hands of the Pope who succeeded the Pontifex Maximus of the Heathen with payment of Tythes like those of the Jews as before is herein set forth and thence came all this trash into England with the Hierarchy of Bishops and Arch-Bishops in the room of the Flamins and Arch-Flamins of the Heathen and to the shame of Christianity and scorn of the Gospel are not yet all cast out as unclean things O England wilt thou not be made clean when will it once be This being premised I presume to enquire what Ministry there ought to be in the times of the Gospel Before Churches were gathered anâ— setled Kings and â—mperours had the ordering of the affaires of the Church aswell as the Common-wealth and had the nomination of Bishops untill the Pope usurped that power Hawk right of Dom. l. 3. c. 5. pag. 136 138. 140. what is the nature of their function and who hath the appointment thereof and how the Ministers shall be maintained and so the publick vvorship of God upheld And herein I suppose we ought neither to imitate the Jews in what they did by vertue or authority of the Levitical or Ceremonial Law nor the idolatrous Heathen who borrowed many of the Jews Rights and Customes nor yet the idolatrous and Superstitious Papists who retained both the Ceremonies of the Jews and Pagans But that in and concerning the things before mentioned we look for a pattern or vvarrant from the holy word of God sufficient to instruct us in this point and which may be a standing rule not to be changed or altered as the Levitical and Ceremonial Laws were And herein I affirm that a (a) About Ann. 320. Constantine the Great the first Christian Emperour sent forth preachers of the Gospel Sympson Hist of the Church lib. 1. pag. 6â— ex Sozom. l. 2. cap. 6. great part of the work lies upon the hands of the (b) â—he Pontisex maximus or chiefe Preist amongst the
gave them the Lands of the Heathen and they inherited the labour of the people that they might observe his Statutes and keep his Laws A POST-SCRIPT Containing sundry Positions founded upon the holy Scriptures serving for principal grounds of Laws amongst Christians 1 FIrst that the holy Scriptures are of Divine Authority the rule of life and good manners Isa 8.20 Gal. 6.16 Eccles 12.10 Luke 16.29 31. 2 Tim. 3.16 17. 2 That Christian religion reformed contained in the holy Scriptures is to be held forth as the general and publick profession of the Nation Math. 10.32 Luke 12.8 Rom. 10.9 10. 3 The holy Scriptures are to be publickly and constantly read in the Congregations Act. 13.15 and 15.21 Deut. 31.11 12. Neh. 8.18 4 The worshipers of idols or false Gods and such as draw others to idolatry are not to be tolerated but to be punished severely Exod. 22.20 Deut. 13 5.8 9 15. Job 31.26.27 28. Exo. 32.27 28. 5 Blasphemous cursing and speaking reproachfully against God is to be punished with death but not every errour or reputed Heretical opinion or which is accounted blasphemy Lev. 24.11.14.15.16 1 Sam. 17.43 45. Job 2.9 Dan. 3.29 6 The conscience of the weak is to be perswaded not to be enforced contrary to the light thereof especially in case of things indifferent Rom. 14.3.13 23. Act 15.24 28. Gal. 5.1 7 That the publick worship of God is to be commanded and provided for by the Supream Civil Magistrate 2 Chron 14.3 4. and 30.6 and 31.2 1 Kings 8.1.5 15. 8 The Supream Magistrate if not known by evident Demonstration that he is designed of God to Government by conquest or special deliverance wrought by him is to be chosen by the people 2 Sam. 5.1 3. 1 Chr. 11.1 3. Psal 78.70 Deut. 17.14 15. 9 That there ought to be Government of several sorts and degrees subordinate from the Monarch or Chief Magistrate unto the number of ten in every Village and these to be appointed by the Supream Magistrate Exod. 18.21 22. Numb 11.16 17. Rom. 13.4 10 That all matters of controversie wherein one man wrongs another are to be judged by the Civil power in the hands of Magistrates and Judges 1 Sam. 2.25 Exod. 18.21 22. 1 Peter 2.13 14. 11 That the Supream Magistrate is Judge of all great and weighty Causes and the word of God ought to be his rule Exo. 18.22 26. Num. 27.5 8. Deutr. 1.17 Lev. 24.11 12 Many thing are to be Judged according to the discretion of the Judges with reference to the Law of God and such Judgments not to be accounted Arbitrary much lesse to savour of tyrannical Government Exod. 21.22 30 35. Numb 27.8 1 Kings 2.44 and 3.16 25 27. 13 No man ought to be a Judge or Magistrate but he that hath abilities of nature grace that feareth God and hateth covetousnesse ordinary Jurors not to be allowed as competent Judges of matters of fact for want of qualifications Exo. 18 22 26. Numb 11.16.17 and 27 18 20 Acts 13 22. 2 Sam. 23.3 14 Magistracy is to be reverenced and the contempt thereof punished according to the offence Exo. 22.28 Acts 23.5 2 Sam. 16.5 6 7. 1 Kings 2.44 15 The power and Authoritie of the Supream Magistrate is to be upheld and maintained and the Common-wealth defended by the Estates and strength of the people Mark 12.17 Math. 17.27 Rom. 13.6 7. 16 Disobedient Children sons of Belial without Yoke given up to drunkennesse and excesse of Riot such as curse strike and abuse their parents are to be severely punished and being found incorrigiable are to suffer death Deut. 21.20 21. Exod. 21.15 17. Math. 15.4 17 Every man ought to rule in his own house the Magistrate upon complaint to rectifie abuses therein Deutr. 21.19 20. Hester 1.20 22. 1 Tim. 3.4 Exod. 20.10 18 He that wilfully killeth any person although in hot bloud and upon some petty provocation ought to suffer death Exod. 21.12 Rev. 13.10 Lev. 24.17 21 22. 19 He that hurteth or striketh another is to be punished according to the hurt to pay for the cure and recompence the party hurt for his damage and losse of his time and if the hurt were done malitiously and presumptuously he is to pay eye for eye tooth for tooth 21. Exod. 18.19 Levit. 24.19 20. Deutr. 19.21 20. Such as make uproares in the Common-wealth where death follows or is occasioned by such uproares are to suffer death Luke 23 19. 2 Chr. 23.14.15 2 Sam. 20.21.22 21. a All Adulterers a Buggerers â— Witches b Sodomitâ—s b Ravishers and profâ—ssed or common â— Whores are to be put to death and so are all such as commit a Incest in the nearest degrees truly so called a John 8.5 Levit. 20.10 Jer. 29.22.23 a Exod. 22.19 Levit. 20.15.16 a Exod. 22.18 Levit. 20.6 b Levit. 20.13 and Lev. 18.22 b Deut. 22.25 2 Sam. 13.14.29 a Gen. 38.15.24 b Levit. 20.11.12 and 18.6.7 22. Fornicators are to be punished severely and to make satisfaction to the parties wronged by such uncleanesse Exod. 22.16.17 Deut. 22.28.29 Jude 7. 23. All wantonnesse laciviousnesse and filthy acts of uncleannesse are to be severely punished by the Civil Magistrate Prov. 6.29 Jude 7. Deut. 25.11.12 24. That for felonies of Goods or Cattle stollen the Thief not to suffer death but to make restitution according to Gods Law as the case shall be and be bounden to serve in case he cannot satisfie Prov. 6.30.31 Exo. 22 1.7.4 7. Job 20.15.18 2 Sam. 12.6 Luk. 19.8 25. That for publick and presumptuous theft to the great prejudice of the Common wealth or where murder followeth the Thief shall suffer death Josh 7.11.25 2 Sam. 12.5 Exod. 22.2 26. That no man to be convicted in any case Capital but by the Testimony of two witnesses at least Deut. 17.6 2 Cor. 13.1 Heb. 10.28 Numb 35.30 27. That a single witnesse shall convict no man in any case without other proof or evincing circumstances Deut. 19.15.18 John 8.17 and 5.31 Math. 18.16 1 Cor. 13.1 28. That a perjured or malitious false witnesse shall suffer the same punishment or losse which his false Testimony regularly should cause another to suffer and the suborner of Perjury in like manner Dan. 6.24 Deut. 19.18.19.21 Prov. 19.5 29 That for all trespasses by ones self or any other by his appointment the wrong-doer shall make satisfaction both for damages losses Gen. 31.39 Deut. 22.19 Exod. 21.28 Exo. 22.5.6.9 30. That for all losses by breach of covenant or promise satisfaction to be made by the wrong-doer both damages and losses Gen. 31.39.28 Exod. 22.10.12 Levit. 19.13 31. Where a man is over-wrought and deceived in any contract or covenant the deceived iâ— to be relieved and not to be bound by such agreement 1 Thes 4.6 Levit. 19.13 Isa 1.17 and 58.6 32. That where a man at liberty and of aged discretion swears to perform any lawfull contract or agreement he is to be enforced to perform it although he were deceived 1 Kings
out of use and ought to be Repealed The Act for Reforming of Disorders in Ministers a superstitious Law 13 Eliz. 12. The Statute of the 5 Eliz. 23. whereupon the Writ De Excommunicato Capiendo is grounded is an impious wicked Law as the Excommunication it self is a horrible Prophanation of the Ordinance of Christ in his Church The Statutes of 35 Eliz. 1 2. appointing grievous punishments for not coming to hear Divine-Service as it is called and for Meeting in Private-houses for to Pray or Worship God This is a wicked Law and was an occasion of great Persecution for many years Those Laws which create Apocryphal Saints as Thomas Becket called Thomas the Martyr 2 H. 5. 4. The Statute of 25 H. 6. Chap. 5. equalling superstitious and Idolatrous dayes with the Lords-day Holy-Rood-day called Corpus Christi Assumption of Mary Good-Friday All-Saints put all together with the Lords-day called there Sunday These are profane Laws The Sâ—atutes of 21 H. 8. 6. and 26 H. 8. 15. appointing the payment of Mortuaries which are pretended to be given to God for the purging of the Souls guilt of the deceased which he contracted by non-payment of Tythes Thi is a superstitious Law and a derogation from the All-sufficient Merits of Christs sufferings The Statute of the 3 Hen. 5. 4. contains in it Prayer for the Dead a thing unlawful and superstitious There are divers Laws made against the Followers of John Wickliff called Lollards who in the Statutes are said to be Hereticks who intended to subvert the Christian Faith The Law of God The Church and the Realm 2 H. 5. 7. and 5 Rich. 2. 5. 2 H. 4. 15. 25 H. 8. 14. These were the most sincere Professors of the Gospel A Law was made 1 Edw. 6. 12. to Repeal the Laws against the Lollards yet long after that the High-Sheriffs were yearly sworn to extirpate these Hereticks as they were called and that clause was continued in the Sheriffs Oath until the late Wars Sir Edward Coke calls them Hereticks we may see what Times have been and how the bent of the Lawes have been to root out the Gospel and to Establish Popery The Statute of the 4 H. 4. 18. That an Attorney playing the Knave shall forswear the Court This is an abuse of an Oath and profaning the Name of God These Laws are all of the same kinde with those before-mentioned in the 5th Chapter where the Statute of Marlbridge and other old Statutes made in affirmance of the Common Law are recited and are Repugnant to those Laws of God contained in the Holy Scripture which are there expressed as further appeareth in this Treatise where most of these Laws are more particularly handled CHAP. VIII That the Common Law hath been altered and changed since Edw. 4. his time when Littleton wrote in an hundred particulars most of them of great Importance BY the Statutes made since Littleton wrote 37 H. 8. c. 9. 13 El c. 8. Coke Rep. l. 5. fo 7. Assurances of Lands and all Statutes and Obligations made upon Usurious Contracts against those Laws are avoidable and the Law therein altered since Littleton wrote 2. By a Statute concerning the inrollment of Deeds 27 H. 8. c. 16. Coke Rep. l. 2. fo 36. l. 4. fo 70. l. 5. fo 1. l. 7. fo 41. l. 8. fo 93. the Purchaser hath many Priviledges which he had not at the Common Law in force before that Statute as the Estate in Lease or a Reversion passeth without Attornment and the Purchaser may distrain for Rent And if it be the Inheritance of the Wife the Husband having Issue by her shall be Tenant by Courtesie and an Estate passeth without Livery 3. There were several Statutes made since Littleton wrote 32 H. 8. c. 2. 34 H. 8. c. 5. 27 H. 8. c. 10. enabling men to devise their Fee-simple-Lands by Will in writing which regularly a man could not do by the Common Law unless by Custom which was but in some Boroughs and some few other places If the Lands were holden in Knights Service the Owner might devise two third parts if in Soccage he might devise all And since of later times the Tenures in Knight-Service and Capite are abolished 4. At the Common Law 13 Ed. 3. det 135 139. an Heir might have had an Action of Debt upon an Obligation made payable to his Ancestors and his Heirs But the Law is now altered and onely Executors and Administrators can recover upon such an Obligation This is plain by the Probate of every Will and is so in daily practice for all the Goods and Chattels are Assets and shall pay Debts to the Creditors their Executors or Administrators Coke Com. Littl. Dower l. 1. c. 5. sect 53. 55. 5. At the Common Law a Woman should have lost her Dower by the Felony of her Husband that Dower which was Ex assensu patris ad ostium Ecclesiae and her Dower by Custome But now it 's otherwise by several Statutes and these two former sorts of Dower are now out of use 27 H. 8. c. 9. Coke Rep. l. 5. fo 27. 6. By the Statute of 27 H. 8. Chap. 9. A Joynture before Marriage made to a woman is a Bar to a Writ of Dower to be brought by the woman for the Third part of the Lands whereof her Husband was seised during the Coverture which was otherwise at the Common Law when Littleton wrote Westm 2. c. 1. 7. By the Statute of Westm 2. Chap. 1. If a man seised of Land in general Tail had taken a wife and afterwards been attainted of Felony 1 Ed. 6. c. Coke Com. Littleton l. 1. c. 5. sect 53. before the Statute of the 1 Edw. 6. the Issue should have inherited although the wife should not have been endowed But now she shall be endowed and yet the Issue in such case shall not inherit the Lands which the Father had in Fee-simple 32 H. 8. c. 28. 13 El. c. 10. 18 El. c. 20. Coke Rep. l. 6. fo 37. l. 11. fo 67. 8. By vertue of several Statutes made since Littleton wrote Bishops Deans and Chapters Halls and Colledges Parsons Vicars and Governours of Hospitals are disabled to make long Leases or Conveyances of their Lands belonging to them in right of their Corporations And they may avoid such Leases as they shall make of such Lands contrary to those Statutes which they could not do when Littleton wrote and the Law iâ— altered in those Points by the said Statutes and they are now restrained 13 El. c. 20. 3 Jac. c. 4. 32 H. 8. c. 28. 9. Also by vertue of the same and some other Statutes Ecclesiastical persons may make Leases of their Beneâ—â—ces so they be not non-resident or absent fourscore dayes and Tenant in Fee-simple in Right of his Church Tenant in Tail and a man and his wife seised in Fee or Fee-tail in Right of the wife may make Leases of such Lands for three