Means to prevent it Memory is a Natural Faculty of Great Use in all Humane Transactions but Especially in Government and that in the Lowest degrees of it For it is the duty of a Magistrate to Execute Laws not to make them and he is to have an Eye to the matter of Fact at the same time too now he that hath such a defect in that Faculty that he can neither remember the Law which is to Direct him nor the matter of Fact to which it is to be applied is certainly very unfit to be a judge and so in Proportion in all the intermediate degrees of it The Office of a Justice of the Peace is very diffused and comprehends in it a vast Number and Variety of things and it will consequently require a good Memory to tell presently whether any particular case be within his Jurisdiction or No. Mr. Lambard complained in his time and that is near a hundred years ago that there were Stacks of Statutes imposed upon them to take care of and the Number is now perhaps double to what it was then So that in this respect also it is Necessary that he who Undertakes this Office should be a Man of a good strong Memory If any man doubts the truth of this he will find upon trial that no humane Memory how great soever it be can perfectly comprehend all the particulars Exactly and that it will be Necessary to have frequent recourse to the Books Especially in Statute Cases without which many and great Errors must of Necessity be committed so that the Prudence of a Magistrate doth consist in a great degree in not Trusting too much to his Memory But then that shews a Necessity of having that useful Faculty to a good degree SECTION III. THere are three other Accidental qualifications which are of great use and would be considered A Competent Estate a good Reputation and a tolerable good Education and Learning The Justice of the Peace enters upon an imployment that will occasion him much loss of Time some Expence and many Enemies and after all will afford him little or nothing towards the bearing these inconveniences but a little unprofitable Honour attended with much envy and had therefore need before-hand be provided of a competent Estate at least to support him in that imployment or else he will suddainly repent what he indiscreetly undertook and it may be intail the Mischief upon his Family who will remember his honour with small complacency when they reflect upon his debts occasioned by it Nor will he and his Family be the only Sufferers the Country will and must bear a part in it too Men of small Estates are very often of Mean spirits and dare not do their Duties where they Expect opposition and have great and rich men to deal with and so betray Justice not for want of Skill or Honesty but of Courage to undertake and go thro with it Besides their Poverty will Expose them to great Temptations of Bribery and tho the profit that can come by it is very inconsiderable yet the mischief that will attend it is not so for the perverting Justice in the smallest instance is a great Dishonour and Damage to a Country and the meaner the cause the greater the infamy the Meaner the People are that are injured the greater the Clamour But of all men those that are much indebted are the least fit for that both the Creditor and his Friends must too often be gratified by the wretched man at the Expence of his Oath his Integrity his Honour and his Justice and all occasions must be sought for this too that the World may see how great a power the Rich Clown hath upon his Worship For these causes there was an Act of Parliament made some Ages since which is as followeth WHereas by Statutes made in the time of the Kings noble Progenitors it was Ordained That in every County of England Justices should be assigned of the most Worthy of the same Counties to keep the Peace and to do other things as in the same Statutes fully is Contained Which Statutes notwithstanding now of late in many Counties of England the greatest Number have beén Deputed and Assigned which before this were not wont to be whereof some be of small that is ill Behaviour by whom the People will not be governed nor ruled and some for their Necessity do great Extortion and Oppression upon the People whereof great inconveniences be likely to rise daily if the King thereof do not provide remedy The King willing against such inconveniences to provide remedy hath Ordained and Established by Authority aforesaid That no Justice of Peace within the Realm of England in any County shall be assigned or deputed if he have not Lands or Tenements to the Value of 20 l. by the year and if any be Ordained hereafter c. which have not Lands or Tenements to the Value aforesaid that he thereof shall give Knowledg to the Chancellor of England for the time being which shall put another sufficient in his place and if he give not the same knowledg as before within a Moneth after that he have notice of such Commission or if he sit or make any Warrant or Precept by force of such Commission he shall incur the penalty of 20 l. and nevertheless be put out of the Commission as before c. But this Act Extends not to Corporations and also Provided That if there be not sufficient persons having Lands and Tenements to the Value aforesaid Learned in the Law and of Good Governance within any such County That the Lord Chancellor of England for the time being shall have power to put other discreét Persons Learned in the Law in such Commissions tho they have not Lands or Tenements to the value aforesaid by his discretion The 18 H. 6. cap. 11. I have transcribed this Statute almost at large because it makes so lively a description of the inconveniences and takes so exact a care to prevent them and it is to be observed That xx l. by the Year at the making of this Statute was a Knights fee and that they would trust to Nothing but an Apparent Visible Estate for it must be in Lands or Tenements and yet was there not then the Hundredth part of that business committed to Justices then there is now and their Expences that were consequently much less and tho in case of Necessity some Lawyers of a less Estate were Admitted yet this was out of pure Necessity in those ignorant Times and then they were to be men of Good Governance that is of a Good Reputation for their Lives and Integrity and such men in those time might by their Professions be able to spend with men of good Estates But two inconveniences have arisen in our Times that were not in being then The first is That Men of great Estate do too commonly leave the Country and spend their times and Estates in London and other great Cities in perfect
down in the Judgment Seat and Act as if we were then newly dropt from Heaven without Friend or Acquaintance Enemy or Injurer but if we cannot so divest our selves of our former dispositions it is fit to send the Parties to some other Justice that is not in our Circumstances or at least to be very wary and careful what we do and say that we may be able to justifie our selves to God and Man and our own Consciences Covetousness is another great hindrance to the Execution of Justice Covetousness and therefore the Advice of Jethro to Moses That he should provide for Magistrates able Men such as fear God Men of Truth hating Covetousness Exod. 18. 21. was very good and thought fit to be recorded for our Instruction and to the same purpose was the Admonition of Queen Elizabeth of Famous Memory when she advised the Justices of the Peace that they should not deserve the Epethites of prowling Justices Justices of Quarrels who counted Champerty good Chevesance sinning Justices who did suck and consume the good of this Common wealth and indeed they that are eagerly intent upon encreasing their own Estates do seldom stick at any thing that may tend to promote their great Design but employ as well their Authority as their Wits to that purpose not caring what the publick suffer so their private Profit may be advanced by it in order to which any thing is to be done or omitted But such men if there be any such in Authority should do well to consider the grave advice of Bishop Sanderson Serm. the first ad Magistratum The Private is not distinguished from the Publick but included in it and no man knoweth what Mischiefs unawares he prepareth for his private Estate in the end whilest thinking to provide well enough for himself he cherisheth in the mean time or suffereth Abuses in the Publick And Zenophon in his Margin gives the reason for with the Publick all the Wealth of private persons is either saved or lost so that the most Covetous Man if he were not short sighted and half witted would be the most careful to preserve what he so much valued even for his own sweet sake by preserving the Publick I know notwithstanding it is impossible to convince such men of their Duty or Interest the Advantage is present the Danger is remote and at a distance and he must make use of all opportunities to encrease his Wealth and let them that come after or other men take care to secure it I wish therefore our Superiours would now and then look over the Commissions of the Peace and if they find such men crept in fairly lay them by that they may have leisure to follow the Chase after the Eagle that makes her Wings and flyes away towards Heaven where few of these Thrifty Gentlemen ever come Irregular Heats and Hopes â—rregular Heats and Hopes are great hinderers of Justice as to the first it was well observed by Sir William Scroggs in his Speech to the Lord Chancellor in Michaelmas Term 1676. when he was admitted one of the Justices of the Common Pleas. As to the discharge of my duty betwixt Party it is impossible to be performed without these two Cardinal Virtues Temper and Cleanness of hands Temper comprehends Patience Humility and Candour It seems to me that saying Be quick to hear and slow to speak was made on purpose for a Judg no Direction can be apter and no Character becomes him better and he that would not be said to have but one Ear methinks should be ashamed to have none and I appeal to your Lordships Experience if a patient attention accompanied with indifferent parts and a competency in the Law with a mind fairly disposed for Information or Conviction will not as to use and common benefit exceed the profoundest Knowledge and most towering Understanding that is attended with an impetuous hast either out of a glory of speaking or too great a fulness of himself And for Humility tho I will not say that every impatient man is proud because that may arise from other Causes yet every proud man is impatient sometimes of Information alwayes of Contradiction and he must be violent to maintain his own Imperiousness Thus far that Great Man whose words I rather chose to transcribe than to express my own thoughts because I expect they will derive a great Authority from the Speaker and Place where they were spoken and to my understanding they are as fit and more necessary for a Justice of Peace than for a Judg. How ill does it become a Migistrate who is a Minister of God to the People for Good and should be a Terror not to the Good but Evil to become so to all that come near him through his Impatience and Fury sparing neither Equals nor Inferiours and very often flying in the Face of God Almighty by his Irreligious and Detestable Oaths and Imprecations which are no unusual effects of such passions God Almighty is said to be slow to Anger and of great Kindness and that he repenteth him of the Evil that is the Punishment we have deserved when he is just going to inflict it It becomes then his Ministers to be like their Master and to be so far from being incensed against the Innocent and those that have not offended them as to pity and treat fairly the most provoking and worst Malefactor The Wrath of Man worketh not the Righteousness of God Jam. 1. 20. No how can it A man that is of that fiery temper is like the Furnace in Daniel not to be approached without danger if God doth not restrain his fury and he that is not able to use his own reason and govern himself will be less able to Govern others This is not said that a Magistrate should be like Esop's Block and suffer himself tamely to be trodden on no he ought to be a Terror to Evil Works for he beareth not the Sword in vain Rom. 13. 4. But then let men fear his Justice not his Passion his Rebukes and not his Taunts Irregular hopes are full as bad some men do ill things by way of pre-emption they will comply with a Brother Justice in any thing though it be never so unjust that he may do them the like favour at another time or that he may at least not retaliate them with a mischief thus they hope by Injustice to become more powerful with their Equals and more dreadful to their Inferiours than if they should always too stifly stand for Truth and Justice they have observed that Compliance makes friends and that inflexible honesty creates a man many Enemies and instead of trusting to the Providence of God for their Protection they lean to their own Wisdom but how unsafely the Event in the end will satisfie every man Some affect Popularity and they hope by being remiss and careless in their duty to acquire the love of the People and gain the Title of Moderate Men a good word
THE Justice of Peace HIS CALLING AND QUALIFICATIONS 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Cass lib. XXXVI Pag. 13. Provida severitate cavisti ne fundata Legibus Civitas eversa legibus videretur C. Plin. Pan. Traj Cap. XXXIV Ye shall do no unrighteousness in judgment thou shalt not respect the person of the Poor nor honour the person of the Mighty but in righteousness shalt thou judge thy Neighbour Lev. 19. v. 15. By Edmund Bohun Esq LONDON Printed for T. Salusbury at the King's-Arms next St. Dunstan's Church in Fleet-street 1693. THE PREFACE TO THE READER THe first thing that is usually inquired after in a Book is who writ it and according as the Author is liked or disapproved the Sentence often is passed without taking the pains to examine one tittle of it Could my Name have gâ—â—en any reputation to the Book it had perhaps not been concealed but I am none of those who have acquired any Fame in the World nor of them that desire it The only design of these following Leaves is to do good and if I may attain my end I desire no thanks And if I miss it I am as unwilling to reap Reproaches or Hatred so that if I may but be unknown it is all I aspire to I am forced by my Subject to reflect sometimes sharply on the Follies and Vices of Men in Authority and I must expect this will anger them and it will be a much easier Task in revenge to inquire into my faults than to amend and reform their own and if they can find me as culpable as themselves this will be taken for a sufficient reason why they should not endeavour to be better because their Reprover hath his faults as well as they and it may be greater The Author of the Whole Duty of Man and all those excellent Pieces that followed is as much to be admired for his Prudent and Modest Concealment of himself as for any other thing and I am fully perswaded that those pieces have done the more good in the World because they seem to drop from Heaven and no man claims the Honour of having written them And as I have endeavoured to imitate that brave Man so I should esteem it a mighty happiness if I might be as little known as he and this discourse might but prove half so useful to the World as any one of his have done It was long since observed by Cicero That there was not any sort of Life whether Publick or Private at home or abroad whether a man conversed with others or himself only which was destitute of its peculiar Rules and that the Excellence of Life consisted in Acting according to them all as Turpitude did in neglecting them And the Lord Bacon in his Seventh Book of the Advancement of Learning having distributed that part of Morality which relate to the Duties of Men into the General or Particular or Respective according to every mans Profession Calling State Person and Degree thus goes on The first of these I have already observed is diligently Cultivated and Explicated by the Ancients and others and the latter is by Parts also treated of though I never found it reduced into any perfect body of Science nor do I blame the thus handling of it in parts and perhaps it is better so to do For who is of that Capacity or Confidence that he either can or dare undertake to discourse and desire pertinently and to the Life of the particular and Relative Duties of all Orders and Conditions of Men And those discourses of such Subjects as these which are destitute of Experience and are only drawn from a General Knowledg and Scholastick Learning for the most part prove vain and useless For though the Stander by do sometime see more than the Gamester and there is a Proverb which is more bold than sound as it relates to the Censure of the Rabble concerning the Actions of Princes That he that stands in the Vally can best view the Mountain yet it were much to be wished that no man would concern himself with these sorts of Subjects but he that was very expert and well acquainted with them For the discourses of Speculative Men on Practical Subjects seem nothing better to them that are Conversant and acquainted with them than the discourses of of Phormio concerning War seemed to Hannibal who took them for mere Dreams and Delusions But there is one fault usually attends this Experimental sort of Writers that they never know when they have commended and Extolled their Province enough Thus far that Great Man hath discoursed of these sorts of Duties but I having him in Latin have perhaps taken off something of the Elegance of his Stile by turning it into English yet it will give the Reader his sense of these undertakings and whether I have done my part well or ill belongs not to me but to him to determine only I will assure my Reader I did not consult many Books for it but I have rather endeavoured to represent things as I found them by Experience Nor do I knaw of any one who before me hath made any such Attempt for tho many have written the Law-part both in former times and of late yet the Moral part is either totally neglected or only to be found in Sermons or some hints in other discourses which are very much too short to give a clear and satisfactory Account and two much dispersed to be suddainly Collected Yet there is hardly any Subject that more deserves or needs a discourse of this Nature whether we consider the Office I treat of or the persons that are employed in it The Office of a Justice of Peace is of a vast extent and if my Reader be but pleased to consult the Heads of this discourse he will find it is no barren Subject for Moral Reflections there is no one Virtue in the World of which a Justice of Peace as such will not sometimes stand in need and there is no Vice neither which will not look worse in him then in another man but I have only selected them that were most pertinent to my Subject and for the rest my Reader may much better consult other Writers And I have endeavoured to discourse of Virtues and Vices in another manner then the Moralists usually do and it did well befit me so to do while I considered them as the Attendents of a publick person which had a great influence upon the Community For a good Justice of Peace is a publick bleâ—â—â—ng and does more good by his example or might do if such were not too usually envied and hated than by his Authority And again a Wicked Ruler by his ill example corrupts more than he can reform by his Severity If we consider the persons that execute this Office such a discourse must needs be very useful for tho the Arch-Bishop of Canterbury and his Maâ—esties Privy-Counsellors and these Judges that go the several Circuits and in short almost all the
self to reduce the Scales of Justice once sway'd down to an eqnal Ballance Wherefore it is the safest Course for a Judge that Nothing touching the proofs and merit of the cause be intimated before-hand untill both Parties be heard together Thus far this great Man who was once Lord Keeper of the Great Seal of England And a Justice of the Peace is in much more danger of being prepossessed than a Judge because the Complaint is made at first immediately to him and he may afterwards be more easily approached yea and deceived too than a Judge as being not so well versed in affairs or prepared for the Execution of his Office by his Education and therefore should be the more Wary and Jealous of himself Sometimes the prejudice is of an Ancienter date than the Complaint depending and is sometimes the fault and at others the misfortune of the Party if he have given just cause for it by his former misdemeanors and ill Life then he can blame no body but himself and yet the Justice ought not to condemn him in his very thoughts till he is clearly proved Guilty for the Worst of Men may be Wronged and every man is supposed at first innocent and afterwards penitent till the contrary be shown not by surmises but by proof But alass we live in so False and Slanderous an Age that the Fame of very Good men is often blasted behind their backs and it is become a common practice for men to blacken their Reputation whose Persons or Estates they design to Ruine and for the most part more mischief is done the Party by these Under-hand Accusations which he can never answer then by all the direct proof And therefore the Justice of the Peace ought to suspect all informations that are from the purpose as Slanders and designed for no other purpose than to prepossess him with an ill opinion of the party What I have said will in some degree discover the Mischief of Prejudice but there is this further in it Reason is the Light and Eye of the Soul Now if the Eye be simple the Whole shall be full of Light but if it be darkened with prepossession how great is that Darkness Matth. 6. 23. and I may add how incurable how inexcusable too It is certain we shall all stand before the Tribunal of Jesus Christ and whatever Judgment we here pass upon Things and Persons shall be there reviewed and therefore it befits us to be very exactly careful that we do not draw upon us a just Condemnation from that most Righteous and All-seeing Judge by condemning our fellow-Servants thro Prejudice and Prepossession Wrongfully Nor let us ever think that we shall escape the censure of men for they will certainly at one time or other discover the Cheat and esteem us according as they find cause tho perhaps they will not dare freely to tell us their minds and if they never should yet our Consciences will Accuse us for it and God in his Providence will take care to punish us for it and that it may be in the same way we have offended So that he that can be secure in the midst of so many dangers and open his Ears and expose himself to every secret Whisper against a Man is a Person disposed for ruine and doth neither deserve the Advice or Pity of any Man Bribery and Prepossession do for the most part spring from others Favour and Hatred Favour and Hatred take their Rise from our selves and are as great hinderances to Equal and Impartial Justice as the other two there is no man so mean but he may by Accident or upon Design oblige his Betters and beget in them a good opinion of him and most men are naturally apt to do it before hand and all the little Arts of Flattery Obsequiousness and Courtship are on such occasions made use of and many a man hath been drawn in by them who would have abhorred a Bribe Nor can any man on the other side live so innocently as at all times to avoid the displeasure of his Neighbours and a Justice of Peace is as capable of resentment as other Men and in some degree more because Pride and great Expectations of Submission and Regard do naturally follow Power in all its degrees and Circumstances and the least opposition or defeatexasperates such more then ten times as much would another so that the Natural Consequence is that a man in Authority and Power will have many pretending Friends and if he be not the more careful as many real or suspected Foes and if his Love and his Hatred have any room left for their Activity in the Execution of his Office they will betray him to many Inconveniences and Acts of Injustice which he would otherwise have avoided Whereas Justice should in this respect be blind and not see the Parties but the Fact on one side and the Law on the other and then with discretion and impartiality without Favour or Affection Hatred or ill Will give to every Man according to his Works But in the State man is this is so difficult that if Reason and Religion be not called in to our Assistance it will not be done the man hath injured me and therefore another is false Logick but yet so powerful that it is almost impossible to see the Fallacy especially whilest a Man is under the Dominion of Anger and Hatred which are powerful Passions and the Argument is as weak the other way the man is an honest man and therefore would not do amiss or complain without good Cause Why he is a man still and subject to all the Infirmities of Flesh and Blood and therefore I ought not to surrender my self blind-fold to his Conduct but diligently search out the truth And indeed if men would entertain low and humble thoughts of themselves they would seldom be mistaken but if I think my Smile my Nod my kind Word or Look a mighty Obligation and make a Muster of my Friends by the List of my Flatterers and Admirers I shall soon have a large Roll but they will in Adversity appear to be what they are like false Musters in Peace appear in their Ranks and Files a full Body but in time of necessity and need be like the gleaning after the Vintage thin and of no use and every Act of Injustice I do will diminish the number of my Friends even of those for whose sakes I did it and increase the number and fury of my Enemies But on the other side Exact and Impartial Justice is venerable and lovely in the sight of God and Men and even those that suffer by it will when the smart is over love and revere the man that Administred it to them so the upright Impartial Magistrate shall in the end have fewer Enemies and more hearty Friends then the other If there were nothing but this to be said for it there were reason enough to banish all our Affections and Passions when we sit
our Dissenters Gain by all their Perjuries between 40 and 60 what are they the better for all those they have procured or abetted since is not the hand of God against them in all they undertake defeating all their Projects and Designs and making them every day more Odious than others For my part I do not fear that perjurious Projects will ever prevail or do any body any good but the Crime being spread so vastly I fear a National Judgment a Calamity that shall be as general as the Sin and then no man will be free from suffering the sad Effects of it thô those that have procured it will smart most by it and this is enough to oblige every good Man that loves his Countrey especially all Magistrates to stand in the gap and to prevent the further Growth of it as much as is possible by discountenancing it and punishing it too as occasion serve Some are of Opinion this Sin might be stopped by a severe Law against it but I am of another mind and I heartily believe more innocent than guilty Men would suffer by it if we had such a Law because these wicked Wretches make Parties to uphold one another and will lay things so well together that it is almost impossible to discover the Cheat and then as for Oaths to prove them that they never want whereas good Men are not so vigilant suspecting as little ill as they mean and so would be more exposed to the force of such a Law But as for Publick Officers especially Constables and such like I wish together with their Oaths they might be compelled to enter a Recognizance of the same Condition with their Oaths which if it were but of small value as X or XX lib. it would work much upon them and in a great measure put a stop to this Impiety for some that do not reverence an Oath wou'd yet fear to forfeit their Recognizance and in time Religion would return and take away the necessity of such double Obligations As for Private Concerns there is excellent provision made by a late Statute 29 Car. 2. Cap. 3. and the extending it to a few more particulars might be very useful and till this can be done Men must commit as little as is possible to Verbal Testimonies by taking all things they can in Writing 2. Another of the best and most effectual means that is left to stop this inundation of Perjury is for Magistrates to express a great detestation of it not only by their words as Occasion serve but by their Actions too by shewing themselves to be exceeding Careful not to do any thing that is contrary to their Oaths and sometimes giving that for a reason of it for that makes a greater impression upon the Minds of Men than any words without it because it is at once a Verbal and a Practical Declaration and their Authority will make it the more taken Notice of and regarded The Oaths of Supremacy and Allegiance are so frequently Administred that I need not take any further notice of them here but that which more immediately concerns the Justices of the Peace is as followeth YE shall Swear that as Justice of the Peace in the County of C. in all Articles in the King's Commission to you directed you shall do Egal Right to the Poor and to the Rich after your Cunning Wit and Power and after the Laws and Customs of the Realm and Statutes thereof made and ye shall not be of Councel of any quarrel hanging before you and that ye shall hold your Sessions after the form of the Statutes thereof made And the Issues Fines and Amerciments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entered without any Concealment or imbefilling and truely send them to the King's Exchequer ye shall not let for Guift or other Cause but well and truly you shall do your Office of Justice of the Peace in that behalf And that you take nothing for your Office of Justice of the Peace to be done but of the King and Fees accustomed and Costs limited by the Statute And ye shall not direct nor cause to be directed any Warrant by you to be made to the Parties but ye shall direct to the Bailiffs of the said County or other the King's Officers or Ministers or other indifferent Persons to do Execution thereof So help you God You shall do Egal right the very way of Writing which word Egal instead of Equal shews this Oath is of great Antiquity and that it hath been very carefully Transcribed when there have been so much scruple made of changing a G. into a Q. according to the Latin and our present Authography and it would be a burning shame to us if we that are Sworn should be less careful of the Articles in it than the Clerks have been of the Letters And that ye shall hold your Sessions how they can Answer it to God or Man I know not who reside in any County or act as Justices of the Peace in it and yet never appear at any Sessions by the space of many years together without any lawful excuse or hindrance or those who come and take the King's Wages and before half the Business is done betake themselves to the Tavern leaving two or three to finish and conclude the Business so that if any Controversie arise it must be left to another time or ended as it can rather than as it ought it is true neither of these Disorders can be Punished by the Court but then it is because the Law supposeth that Men of that Quality will not need it but will religiously observe their Oath so that the fault is so much the greater because it cannot be Punished but by God only I shall not make any more Reflections on this Oath because this whole Discourse is but a kind of Commentary upon it and whatever I have omitted is taken notice of by Lambard and other Writers But the Care of a Magistrate ends not in himself but is to extend to Others and therefore he ought to take great heed that he minister none but Lawful and Necessary Oaths Secondly That if he find Men ignorant he give them good Advice and sharp Reproofs in case of the least failure By Lawful Oaths I mean such as the Laws and Customs of England will allow him to give and therefore before he take an Oath he ought to consider whether he have Power to do it for thô he hath a great yet he hath not an unlimited Power as is manifest by that Parenthesis which is so frequent in our Statutes which Oath the said Justices are by this Act Authorized to Administer which is repeated almost as often as a new Power is given them and for the most part in these very words And yet I doubt not but when good Reason requires where ever they may Hear and Determine they may do it upon Oath thô the Statute doth not