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
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
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
so far as to stir up any more wise and learned to take this matter in hand and shew us a more excellent way I have my reward And I do profess with him that wrote the History of the h 2 Mac. 15.39 Jews in the vacancy of the Prophets during the Government of Judas Macchabeus and his Fellows that if I have done well and as the matter requireth it is that I desired but if I have spoken slenderly and barely it is that I could Farewell The Contents of this Treatise Chap. 1. OF the supposed Excellency Certainty and Antiquity of the Laws of England and what is to be thought thereof in general Pag. 1. Chap. 2. That the Law of God contained in the holy Scriptures ought to be the Foundation of all Laws used or practised amongst Christians p. 4. Chap. 3. That the Law of England as it 's now in use and practise is a departing from the Law of God and a taking of a Law from Heathens and Idolaters p. 9 Chap. 4. That Magna Charta and Charta Forestae do not appear to be any Acts of Parliament although they be so called that therein was chiefly intended the advancement of the Romish Power in a Tyrannical Government p. 13 Chap. 5. That the Statutes of Marlbridge Westm 1. and the rest of the old Statutes said to be declaratory of the Common Law savour of the Power of Antichrist and contain in them manifold Impieties and Superstitions p. 17 Chap. 6. That divers of the old Statutes as well such as are said to be in affirmance of the Common Law as others Introductory of new Laws contain in them great Oppressions of the People p. 20 Chap. 7. That several Acts of Parliament made since Magna Charta having the force of New Laws contain in them many Idolatrous and Superstitious Rites and Customes against the Law of God p. 25 Chap. 8. 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 p. 29 Chap. 9. That there ought not to be a Court of Law or Justice and another of Equity such as are now in England maintained or used in any Nation prosessing the Gospel p. 39 Chap. 10. That all such cases as chiefly require a remedy in a Court of Equity might easily be determined by the Judges of Law if the Law were amended as it ought to be And therein that which is usually said for the upholding of Courts of Equity is answered p. 46 Chap. 11. That the Theory of the Common Law and some of the Statutes now in force contain in them very many Impieties and other things repugnant to the Law of God p. 53 Chap. 12. That the practick part of the Law as it 's now in use is in many particulars sinful and repugnant to the Law of God and an oppression of the people p. 87 Chap. 13. That the general execution of the Law as it 's now seated and practised at Westminster is a common Oppression to the whole Nation p. 105 Chap. 14. That the Body of the Law is wanting and defective there being neither Common Law nor Statute Law for remedy in many cases nor any punishment considerable for sundry great Offences p. 114 Chap. 15. A digressive Discourse about the Preaching of the Gospel the Ordination and Appointment of Pastors and Teachers and of their Office and Maintenance p. 137 Chap. 16. A Corollary or Conclusion wherein the Laws of England are compared with the Laws of the Jews Graecians Romans and other Nations p. 144 A Postscript containing certain Positions founded upon the holy Scriptures serving for principal grounds of Laws amongst Christians Examen Legum Angliae OR The Laws of England Examined by Scripture Antiquity and Reason CHAP. I. Of the supposed Excellency and Antiquity of the Common Laws of England and what is to be thought thereof in general IT may well be accounted a matter of Admiration to the Vulgar and more Unlearned of the People of this Nation and the wiser sort may well stagger in their Judgements to consider what high Encomiums or rather Hyperbolical Elogies are given to the Laws of the Land generally by all the Practicers and Professors thereof And yet what abundance of Pains and Labour hath been taken in order to the Amendment and Reformation of the same without any considerable benefit or satisfaction to the People (a) Coke Preface to the 8th Report It is Hyperbolically yet confidently affirmed by one of the Chief Champions of the Law whose Reports go for Law generally without control That there is no Humane Law within the Circuit of the whole World (b) Note this Gradual Hyperbole by Infinite Degrees so apt and profitable for the honourable peaceable and prosperous Government of this Nation as the Common Law is which he endeavors to prove to be most just and ancient and saith That the same is contained in the old Statutes Magna Charta Charta Forestae Merton Marlebridge Westminster De Bigamis Glocester Westminster 2 Articuli super Chartas Articuli Cleri Statut ' Ebor ' and Praerogativa Regis 25 Edw. 3. and in the Original Writs in the Register and the Indictments of Judgments thereupon as the very Text it self And that all the subsequent Year-books and Records for four hundred years are but Commentaries and Expositions thereof And in another place the same Author speaking of Littleton's Book saith That (c) Coke Preface to his Com. upon Littleton Littleton is not onely the name of a Lawyer but of the Law it self Which Book he affirms to be the most absolute and perfect Work that ever was written in any Humane Science And afterwards reckons up (d) Coke Com. upon Littleton Lib. 1. pag. 11. Fifteen sorts of Laws which he saith are in force in England Concerning many of which it doth not appear that Littleton wrote any thing I will not say That these Testimonies are repugnant But this may well be said That if the Assâ—rtions be true considering also the huge multitude of Statutes now in force then is the Law such an Individuum vagum as no man living knows what it is in respect of the variance and alteration thereof from what it was in former times both before and since Edw. the 4th his Reign when Littleton wrote And hence it is that the Judges themselves who are said to be the speaking Law in many cases (e) See Brooks Abridgment Dyers Reports and other the Year-Bookes which in many cases conclude with Quaeres uncertainties are divided and Truth it self is oft-times set upon the Tenters for want of a standing Rule and because the Law lies meerly in Opinion without other Foundation which appears sufficiently every Term by the Arguments of the Judges and may be gathered by view of the many Quaere's affixed to the Reports of former and latter times And these Differences are not about Niceties or Trivial things
but about that which is called The Foundation of Law and The Propriety or Liberty of the Subject (f) Arguments of Crook and Hutton in Hampdens Case Excheq Chamber Ann. 1638. As in the Case of Ship-money where the Judges were divided and the major part adjudged that to be Law which by the Parliament and Judges since hath been declared to be (g) Votes in Parliament 7 Decem. 1640 7 Febr. 1640. against Law But it may yet be questioned What the Law is in that case And surely if the Law were so perfect as is pretended what folly may be imputed to the wise men of the Nation who in the several Parliaments have corrected and controlled Littleton and the Common Law in near an hundred particulars by Acts of Parliament since he wrote And yet all these Alterations are said to be Amendments for the benefit and profit of the People And if the Theory be thus necessarily altered and another face put upon it and the Practick part more changed and corrupted as shall appear in this Treatise then must it be concluded that the Law which now we have in use is not the ancient Law of the land nor that the same Law neither was nor is so perfect and certain as it hath been commonly affirmed to be But that the Law as now it stands in use and practice is a new pompous Edifice erected upon some old Foundation and become an Engine to draw wealth to the great Officers Professors and Practicers thereof to the impoverishing of the residue of the Subjects not having any Foundation either in the Law of Nature or on the Positive Laws of God sufficient to bear up the same and therefore can deserve no such commendation or be held so sacred as that it ought not or may not upon good ground be altered and amended and the Prolixities Uncertainties Difficulties and Extravagancies thereof reformed It is observed by a (h) Gâ—otius Pol. Maximes Part. 1. cap. 4. pag. 34 35. Legem oportet esse brevem quo facilius ab imperitis teneâ—tur velut â—missa divinitus vox Jubeat non disputet nihil frigidius nil ineptius quam lex cum Prolâ—gomenis Coâ—l Rhod. l. 18. cap. 19. pag 699. great Statesman That those Laws are best which are short easie few accommodated to the Manners of the People and for Publick good Those are to be accounted Tyrannical Laws which are many obscure difficult like so many Snares to the People and not tending to the advantage of the Publick But whether our Laws are of the first or later sort let the Reader judge (i) Cowels Instit l 1. tit 1. sect 2. pag. 21. A learned Civilian hath this saying which he citeth out of Bracton Juris Pracepta sunt haec Ex Bracton l. 1. cap. 4. n. 6. Honestè vivere Neminem laedere Jus suum cuique Tribuere i.e. The Precepts of the Law or Right are these 1. To live honestly 2. To hurt none 3. To give to every one his Right Whether these three Precepts comprehend all that men are bound to do in reference to the Law I will not determine but this I deliver positively and doubt not but it 's sufficiently proved in fourty Particulars in this Treatise which the Reader if he please may observe That the Laws of England both in their Redundancy and Excess as likewise in their Want and Defect are intolerably faulty not holding forth Justice or Righteousness in reference or according to any one of those three Precepts And the clear Reason and Cause of this Extravagancy Gal. 6.16 2 Tim. 3.16 17. is The rejecting of the Holy Scriptures which are the Onely Rule of Righteousness CHAP. II. That the Law of God contained in the Holy Scriptures ought to be the Foundation of all Laws used or practised amongst Christians (a) Willet Hex in Exod. c. 21. qu. 1. p. 458. THat the Holy Scriptures are the Foundation of all just Laws is a Truth undeniable and evident to every one who hath any competent knowledge therein comprehending in them as well the Dictates of the Law of Nature and right Reason Isidore calls Law A Constitution written agreeing with Religion fittest for Government and Common Profit Humane Law is a righteous Decree agreeing with the Law Natural and Eternal Raleigh Hist l. 2. c. 4. sect 15. Omne id quod ratione consistit Greg. de Val. Ex Tho. Aquin. qu. 91. art 3. as all other things necessary for the Ruling Guiding and Ordering all the affairs of this life whether Political Oeconomicai or Personal which appears by this That the Law of God (b) Psal 19.7 is perfect (c) 2 Tim. 3.16 17. That the Holy Scriptures are able to make a man of God not onely the Minister but every other man perfect throughly furnished to every good work God hath spoken but once in the Holy Scriptures so fully to all doubts and cases and to all good works that he needeth speak no more Whites way Sect. 11. pag. 57. If any thing be needful either to be known or done the Scriptures teach it c. Idem ex Espencaeo Com. 2 Tim. 3.15 16. And upon this ground is that Maxime founded That no Act of Parliament or Law repugnant to the law of God is of any force This is agreed amongst the Lawyers and it 's cited out of Augustine by one of the most Learned for Arts and Tongues of that Profession That (d) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. p. 3. Ex August l. 3. de Civit. Dei Omnium Legum est inanis Censura nisi Divinae Legis imaginem gerat (e) Conference about the Power Parliament Speech 3. p. 64. Aâ—freds Laws Powels Court Leet pag. 6. 12 13. Fox Acts and Mo. V. 1 p. 185 That Renowned King Alfred who reigned Anno Christi 872 began his Laws thus Locutus est Dominus ad Mosem hos sermones Ego sum Dominus Deus tuus and so recites the Decalogue and then proceeds to mention the most material Laws set down in the 20 21 22 and 23 Chapters of Exodus which he affirms to be the most apt and compatible for the Government of his Kingdome and according to his Laws his Government was blessed with universal Peace and Quiet above other Kings of this Nation (f) Fournier Georgra Orbis notitia l. 5. pa. 1. c. 10. p. 220. There being neither Thieves nor Robbers to molest the People (g) Cok. Engl. Law pag. 107 108 109. Cok. Essay p. 168. Bod. de Rep. l. 1. p. 44. What Law can there be more just more strong indifferent or better then the Laws of Gods Now not onely the Decalogue but also the Judiâ—ial Laws of Moses are an eminent Foundation of Politick Laws holding forth plainly the Reason of Commanding and Prohibiting Of these Judicial Laws some belonged to the Jews properly as being appendent to the Ceremonial Law (h) Willet in Exo. gen obser qu. 4. upon
Rewards and Punishments and of that which by Right belongs to every man And where shall this Justice be found but in the Holy Scriptures which is that perfect Rule and Law of Justice and Righteousness Without this Guide men have no more then that glimmering Light of Nature to lead them which although it retain general Principles of (k) Idem Bod. Rep. l. 6. c. 6. p. 761. Tac. Annal. l. 1. c. p. 2. Right and Wrong as one may so speak since the depravation thereof by the fall of Man yet we see by Experience That the most wise Law-givers who had the best endowments of Nature elevated and much perfected by Humane Learning and Knowledge without the knowledge of the Divine Law contained in the Holy Scriptures erred and wandred far and wide in many things as men blinde-folded and led aside by their lusts and passions and chiefly for want of this Golden Rule to walk by And if no more could be said of this subject this were sufficient to satisfie any rational man That there is an absolute necessity to compare (l) Vis Magistratus est ut praefit praescribatque quae recta utilia conjuncta cum legibus ut enim populo praesunt Magistratus ita Magistratibus leges Lex simul cum mente divina orta Creditur Itaque vera Lex Princeps apta ad Jubendum votandumque ratio est recta summi Dei Coel. Rhodig Lect. Antiq. l. 8. c. 1. p. 279. all Laws with the Laws of God and to frame and square these our Laws according to that Patern For that nothing can be or be truly accounted Right which is not agreeable thereunto And therefore (m) Bodin Rep. l. 6. c. 6. p. 759. the Jews called their Book of the Law The Book of Right or as it 's observed the Caldaean Interpreter hath it The Book of Rightness having no crookedness or error in it nor suffering such as walk by it to turn out of the way CHAP. III. That the Law of England as now it is in use is a departing from the Law of God and a taking of a Law from Hâ—abeâ—s and Idolaters IT is not to be doubted but as these Judicial Laws were the Foundation of the Imperial or Civil Law so were they of the Saxons Danes and Normans Laws amongst which many particulars of those Judicial Laws are found extant as amongst the Laws of this Nation which herein in their fit pâ—aces shall be made appear But the Roman Clergie or rather Idolatrous Priests being Chancellors Judges Reporters Scribes and Compilers of our Laws to these Laws of Common Equity added many Heathenish Impious Superstitious and wicked Customes and imposed the same upon the poor conquered and enslaved People for Laws Which things when we consider and what is reported by Sir Edward Coke (a) Coke Com. Littleton l. 3. c. 9. sect 535. and his Preface 8 Reports That in the time of William the Conqueror and long after his time the Chancellor Treasurer and Judges were for the most part Bishops Monks men of the Church as he calls them of whom he names very many expert in the Common Laws and such as wrote the same We may easily judge what Laws we were like to have from such men surely such as their Religion then was in the very darkest night of of Popery which must needs produce nothing so much as Idol try and the Oppression and Persecution of the Saints like the (b) Mic 6.16 1 Kâ—ng 22 26. 1 Kin. 16.25 27 Statutes of Omri and Ahab according to that of the Psalmist (c) Psal 74. â—0 The dark places of the earth are full of the habitations of cruelty Upon these grounds it may be cleared That we are much departed from the Law of God and have received a Law from Antichrist and it will further appear in the particulars following That many wicked and profane Incroachments are made by our Laws upon the honour of God in abuse of his Holy Name and Worship and thereby also great Iniquities Injustice Wrongs Oppressions Deceits and Falsehoods practised maintained and acted continually towards all sorts of men as well by colour of divers Statutes as the Common Law now in use and practise But for the present let it be observed That the whole Body of Popery is in a manner comprehended (d) See Coke upon Littleton under these Titles Absuration Exile Appeal Advowson Bishops Appropriation Clergie Divorce Excommunication Heresie Frank Almoigne Marriage Parson Patron Presentation Profession Quare impedit Tythes and upon the old Statutes in Littleton's Book which is so much commended by Sir Edward Coke and that the old Statutes made in affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of Superstitions and Idolatrous Rights and Customs And if any man shall be offended that I do not lick the sores of Justice Littleton and Sir Edward Coke the two great Idols of the Law It sufficeth me to know That the first did (e) Littleton was a Judge in the Reign of King Edw. 4. according to the Religion then in use and it may be according to the Dictates of his own Conscience and in many things hath judiciously taught the succeeding Ages but therefore hath not deserved to be accounted an Oracle And for th' other I think of him according to (f) Scrinia Sacra Cabal p. 61 62 63. the Character given him by that Incomparable Learned Sir Francis Bacon in a Letter to him after his disgrace And something more I could say That he was a man of a bitter spirit against the dear Servants of God and if he should be judged according to the Judgement he gave of the most sincere Professors of Christs Gospel the (g) Coke l. 5. Part. 1. Cawdreys case f. 25. followers of John Wickliff abusively called Lollards and his (h) Coke in the Title-Pages of his Books of Reports being 11. judgement of Queen Elizabeth and Kings James whom he blasphemously calls The Fountain of all Piety and (i) The Law of the 12 Tables is called by the Roman Historian The Fountain of all Justice Tit. Liv. l. 3. p. 112. H. and out of this Heathen Sir Edw. Coke learned this Blasphemy Justice and the life of the Law A rational man indued with any knowledge of God would think such a man too ignorant of the wayes of God to be accounted an Oracle or termed The speaking Law as every Judge is or A Promulgator thereof Now if it shall be cleared without doubt whence our Laws came and that they contain such Impieties and Injustice as are before touched I say when that shall plainly appear every Christian whose heart God shall open to see the truth will assuredly be satisfied in his Conscience That this Law ought to be changed or greatly amended seeing that Christians ought to be so far from receiving the (k) Rev. 14.9 Mark of the Beast by taking Laws
Inventions in the Worship of God being condemned as Will-Worship and things that are meerly Idolatrous in State serving for nothing but to uphold the Religion of the false Church of Rome and are not to be used by Christians Lev 20.23 Hos 14.8 2 Cor. 6.16 Deut. 12.3 CHAP. VI. That divers of the old Statutes as well suâ—h â—s are said to be made in Affirmance of the Common Law as oâ—â—â—rs Introductory of New Laws coâ—tain iâ— them gâ—â—at Oppressions and Wrongs to the People aâ—â— oâ—ght to be amended (a) Articuli super Chartas 3 Ed. 1. c. 7 31. 28 Ed. 1. c. 2. 10 Ed. 3. c. 1 4. 14 Ed. 3. c. 19. 25 Ed. 3. c. 1 15 21. 34 Ed. 3. c. 2. THe Statutes concerning Purveyance for the Kings Houshold where the Officers might take in a manner what they would at their pleasure This was afterwards changed into Money 36 Edw. 3.2 At the best it was a heavy Oppression to the People The like may be said of all those Laws concerning Villains whereby they were accounted the Goods of the Lord and might be bought and sold cum tota sâ—quela which is said to comprehend their Wives Children and Posterity And if any Lord pretended a man to be his Villain the Lord might seise him as his Villain although he had his Writ de Libertate probanda depending against the Lord 9 R. 2. 9 R. 2. c. By the Statute of 34 Edw. 3. Chap. 22. He that findes a Hawk and doth not restore the same shall have two years Imprisonment and pay for the Hawk and if he have not wherewith to pay he shall continue longer in Prison (b) 37 Ed. 3. c. 19. And by another Statute He that stealeth a Hawk or detains her being found shall be used as he that steals a Horse And by another Statute He that steals a Hound shall have a years Inprisonment Here a great mans Hawk or Hound is of as great a price as a poor mans Liberty or Life (c) Grotius Pol. Maxims par 2. c. 12. p. 129. A learned Statesman observes That a Common-wealth is often destroyed by such kinde of Laws as are made to the advantage of great ones and the prâ—ssâ—re of the Common People The Statuâ—e of 13 R. 2. Chap. 1. appoints the price of a Pardon for Murther to a common person 200 Marks This was in part Repealed 16 R. 2. Chap. 6. but the Power to Pardon Murther was left in the Kiâ—g These are wicked Laws repugnant to the Law of God as shall appear in their proper places In Actions brought for the Kings Debts in others mens Names unto whom they were bounden although the Suits pass for the Defendants the Plaintiffs should pay no Costs 24 H. 8. Chap. 8. Appeals to Rome in cases Testamentary and concerning Matrimony Divorces Tythes Oblations Churches c. which is seems were allowed at the Common Law were a great Oppression See the Statute 24 H. 8. Chap. 12. The like Statute is made 25 H. 8. Chap. 19. whereby Appeals to Rome are prohibited but there is power given to the Clergie as they are called to mâ—ke Canons which are Laws to binde and insnare mens Consciences which Law being Repealed 1 2 Philip and Mary Chap. 8. was Revived 1 Eliz. 1. By colour whereof a great persecution arose against the Non-conformists which hath continued until these times to the great Oppression of the Godly of the Land And some were put to death and others pined and starved by hard and long Imprisonment by colour of these wicked Laws and Canons The Commissions of Sewers grounded upon the Statute of 23 H. 8. Chap. 6. and 13 Eliz. 9. are over-chargeable and tedious and used as a great Oppression to the People in the County of Lincoln and parts adjacent The Commission grounded upon the Statute of 13 Eliz. Chap. 7. and other subsequent Statutes made against Bankrupts is grown a meer cheat of the People very troublesome and chargeable and concluding nothing but what is questionable again either at Common Law or in Chancery and for the most part whereas the Law intended a division of the Bankrupts Estate to all his Creditors it 's either spent in Suits or upon mercenary Commissioners or concealed to the Bankrupts use The proceedings upon the Commission grounded upon the Statute of the 5 Eliz. 4. concerning Lands Tenements and Moneys given to Pious or Charitable Uses is a circular and expensive way chargeable in Execution expensive in drawing up the Inquisition and Decree and procuring a Writ of Execution of the same in the Petty Bagge and when all this is done upon Exceptions put into the Decree of the Commissioners the Execution thereof is stayed upon a Motion in Chancery and the Parties come then to begin the Suit again putting in Answer to the Exceptâ—ons as the Answer to a Bill And thereupon the Parties go again to Examination of Witnesses and a new Hearing in Chancery and either a Confirmation of the former Decree or a Reversal thereof however if the matter be under Three hundred pounds it 's commonly all spent in Suit either for or against the Charitable Uses This is a great Oppression and cannot be avoided whilest things stand as now they are The Statute in the 25 H. 8. 11. appointing a whole years Imprisonment for taking the Eggs of a Wilde-fowl is a hard and severe Law The Statute of Intailing the Crown of England in the Posterity of King Henry 8. may be a cause of great trouble 25 H. 8. Chap. 22. The Statute of 32 H. 8.2 limiting the Prescription of a Writ of Right Assize Cosenage Ayle c. to no less then threescore years and in a Writ of Entry sur Disseisin to fifty years this Statute doth more harm then good That a man's Hand should he struck off for striking in the Kings Palace and the party to have perpetual Imprisonment a severe Law 31 H. 8. 12. That none may Pardon Felony or Murther but the Kâ—ng and that he may pardon Murther is an Impious Law 27 H. 8. Chap. 24. That it should be Treason for a Popish Priest to be found remaining in England giving no offence nor making any disturbance in the Common-wealth is a hard Law 27 Eliz. 2. The Statute concerning Reformation of Disorders in Ministers a Superstitious Law 13 Eliz. 12. Divers Offices exposed to sale by an Act of the 5 and 6 Ed. 6.16 is a cause of Bribery and Extortion Intailed Lands forfeited for Treason seems to be an unjust Law as now things stand because sometimes such Intails were made for valuable considerations when Estates were all Fee-simple it might haply be more just that there should be such Forfeitures The Law concerning Wreck of the Sea which is that if a Ship be cast away and the Goods float to Land and neither Man Woman Dog nor Cat escape alive the Owner shall lose all the Goods This is a wicked and unjust Law The Statute of the 21 Edw. 1. If
this annex'd a Proviso That it shall be lawful for the Covenanter at any time during his life to revoke any of those Uses This is good in Law the Proviso being coupled with an Use But at Common Law if a Feoffment or other Conveyance had been made with such Proviso the Proviso had been repugnant and void 42. By the Common Law all men were at liberty and might use what Trades they would without being bounden Apprentice 5 El. c. 4. 11 El. c. 11. 1 Jac. c. 16. 1 Jac. c. 17. But by the Statute of the 5 Eliz. Chap. 4 the whole business of Servants and Apprentices is setled and all men who use any Trade Art or Occupation which was a Trade at the making of that Act are bound to serve as Apprentices seven years and in some cases by other Statutes restraint is laid upon some Tradesmen from keeping too many Servants which is contrary to the Common Law 43. By the Common Law no Costs were given to a Defendant which was a great Oppression but that is amended since Littleton wrote 8 El. c. 8. by several Acts of Parliament and now the Plaintiff shall pay Costs in almost all cases in personal real and mixt Actions unless upon Demurrers and in Popular Actions where the Informer discontinues he shall pay Costs 44. The Law concerning Interest of Money since Littleton wrote 13 El. c. 8. 21 Jac. c. 17. 3 Car. c. 4. 20 H. 3. c. 5. 3 H. 7. c. 5 6. 11 H. 7. c. 8. hath been altered several times by Acts of Parliament By the Common Law and some old Statutes lending of Money for Usury as it 's called was unlawful and the one half forfeited so lent Afterwards it was permitted to take ten in the Hundred for Loan or Interest by the Statute 37 H. 8. then the Statute of the 21 Jac. 37 H. 8. c. Coke l. 5. Rep. Claytons Case brought it to Eight in the Hundred and now it 's reduced to Six in the Hundred which is a great alteration of the Common Law 45. In the old Law-books there are few or no Actions upon the Case for Words now of late there is nothing more common and this seems to be a great alteration since Littleton wrote The pleadings are clean altered they are said to be brought into form in Edw. 3. his time but very short which are now grown excessive long and that which was usually disputed by the Lawyers seems now to be put into the pleadings in writing in many Cases 46. The Writ called a Clausum fregit Vpon this Writ the Plaintiff may declare in any Personall Action as if the special matter had been in the Writ is a late Invention I mean to the purpose it 's now used serving in stead of a Latitat and is of very great use insomuch as it serves to expedite mens Suits and saves them from abatements and so from losing their Suits and enforcing them to begin again in case where there wants good Instructions or any thing mistaken in the Original This is a change of the Law since Littleton wrote in point of Practice 47. By the Common Law M.F. ordered to pay 5 l. for serving an honorable person with a Subpoena about Easter-Term 1634. a Noble-man could not be Arrested nor his person imprisoned upon Mesne Process in any Personal Action neither could a Subpoena be made forth against him In the first Case there was onely (a) Cowel Inst Jur. Angl. l. 4. Tit. 2. sect 5. p. 291. a Summons and thereupon a Distress and so Issues returned untill the Defendant appeared and in the later Case the Lords Commissioners then Lord Keeper or Lord Chancellor use to write his or their Letters to such Noble-man to give him notice of the Suit desiring him to appear and Answer Now Noble-men are used as others are Their Priviledge of Peerage being not allowed to them This is an Alteration of the Law in point of Practice Now upon Consideration of all this it 's evident That Littleton and the Common Law hath been altered in so many particulars which are not thing trivial but points most material and of general Concernment to all sorts of People and especially there being as I take it very few Particulars enumerated but what appear by Sir Edward Coke his own Writing to which I most confine my self to have been altered and changed as aforesaid besides many more Alterations of the Common Law which have been made in some things of High Concernment as appertaining to Religion and other things more Trivial and of less Concernment and yet worthy to be taken notice of but here omitted as being besides the Scope of the Matter in hand because Littleton hath written nothing of the same And although I have referred all these Alterations to Fourty seven particular Heads yet upon perusal thereof the Reader may finde in some one of those Heads many Particulars comprehended and very few of them mentioned but contain more then one Particular I say That every man who will but observe what is here set down will agree with me That Littleton hath been altered in more then an hundred Particulars besides what Alterations are made in other parts of the Common Law of which Littleton hath not written And therefore That sure Lâ—ttleton or the Common Law was not so Perfect and Compleat nor so Profitable to the People as the world hath judged it to be it having had need of so many Alterations and Amendments CHAP. IX That there ought not to be a Court of Law or Justice and another of Equity such as now are in England maintained or suffered in any Nation professing the Gospel THis Position is so clear that the contrary hath no manner of Foundation of Truth either in the Law of Nature Right Reason or the Word of God For that Justice is but one as Truth is but one and simply one and Justice and Injustice are opposites I speak of distributive Justice not of Essential Justice in God from whom some Arguments might be brought to confirm the point in hand but that appertains to another Consideration nor have I here to do with Commutative Justice concerning the various management of Affairs in Commerce between man and man for rectifying the Abuses Frauds Oppressions Wrongs and other Enormities therein It pleased Almighty God to set up this Light and to Ordain Powers and Authorities to distribute (a) No Act of Parliament either printed or not printed in former or later times gives the L. Chancellor power to hold any Court of Equity Coke Inst 2 part Art super Chart. p. 553. All Courts of Law at Westminster said to be Courts of Equity in the time of Ed. 3. Coke Instit 2 part Art super Chart. p. 552. Justice and Equity amongst men for the upholding of Society Political and Oeconomical and the preserving of Sobriety and Temperance and for encouragement of men in well-doing (b) Cock Essay p. 139. The
18. (l) Coke Com. Litt. l. 1. c. 6. sect 5. 381. Coke l. 6. fo 37. l. 10. fo 38. Occupancy is onely where there is no proper Owner Gessend de Philos Ep. c. 1756. The Law concerning Occupancy when a man hath a Lease of Lands for one or more other mens lives granted to him without the word Heirs the Grantee dyeth now whosoever after his death first enters and claims the Land shall have it during the Lease without any other Title whereas if it cannot go to the Heir it should come to the Executor This is an unjust Law and serveth for nothing but to cozen simple men of their Right 1 Thess 4.6 Lev. 19.13 Exod. 20.17 Mic. 2.2 Rom. 13.9 Before Dominion was setled the first Possessor had a Property which Pliny calls Proprium habentes and Grotius Jus occupantis but this is at an end because every thing hath an Owner 19. (m) 40 Ed. 3. 34. b. 2 R. 3. 15. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fo 12. That a man being Outlawed and his wife waved in a Personal Action and the wife taken upon the Utlawry she cannot reverse the Utlawry nor get out of Prison by the Law unless her husband will joyn with her in a Writ of Error to reverse the Utlawry when it may be the Utlawry was sued by the consent or practise of the wicked husband I have known the like done This Law tends to overthrow Oeconomy or Houshold-Government Upon such an occasion it 's said the Judges gave this Rule That it was a Trick to be rid of a Shrew But this clearly against the 5th and 6th Precepts of the Decalogue and many other parts of holy Scripture Gen. 2.24 Exod. 21.10 2 Sam. 12.3 Mat. 19.6 Mar. 10.9 20. (n) Westm 1. c. 4. Cok l. 6. f. 107. a. Cust Norm tit â—â—â—eek c. 17 New Term law verb. Wreck Plow Com. fo 243. b. The Law concerning Wrecks of the Sea If a Merchant fraught a Ship hire a Master and all Officers and Mariners and send his Son to Sea in it all these suffer Shipwreck through the hand of God by Tempest or other Disaster and the Ship is lost and no living creature Man Dog or Cat cometh alive to shore but many of the Goods float and are driven to land In this case the Owner shall by the Law have none of these Goods but they belonged to the King or to the Lord of the Mannor who if he had a Grant of such Wrecks shall have the Goods This is an unjust and cruel Law and addeth affliction to the afflicted and causeth the wicked people who live by the Sea-side to wish and wait for such Disasters that they may get the Goods calling the Goods so gotten Gods good Zeph. 1.15 Amos 15.15 Obad. 13. Phil. 2.16 Jam. 1.27 Bodin Repub. l. 1. 179. It is a thing saith a Learned Statesman truly most barbarous and not anciently used by Soveraign Princes shamefully to suffer thâ— Reliques of the Goods and Fortunes of such as have by Shipwreck miserably perished and whom we ought with some part ot our own to relieve being cast upon our Coasts and which ought to be restored to be shamefully spoiled 21. The like unjust Law is this If Goods be taken from the (o) Wingate Law c. 11. p. 19. n. 23. Owner by an Enemy the Property is changed and the Owner shall not have them restored unless he recover them before the Sun go down although he finde them afterwards (p) Godw. Ant. Rom. l. 3. sect 4. c. 16. The Romans had a more just Law in this point viz. That by Theft no man should gain a Property in Goods but the Interest should alwayes remain with the Owner to take them whenever he could finde them So is Gods Law Lev. 19.13 Luke 19.8 Tac. Hist l. 4. c. 17. p. 159 Certain persons were appointed amongst the Romans to see Restitution made of those things which had been by force taken away in time of War And the Law of the Twelve Tables seems to warrant this 22. The Law concerning Gavil-kinde Lands where all the (q) Kitchen fo 102. Camd. Brit. p. 239. Sons shall inherit as Coheirs and such Tenures where all the Children shall inherit together This is against the Law of God who hath appointed the eldest Son to the place of his Father as Prince of the Family and to have a double Portion of his Goods if he do not forfeit it by some notorious Crime as Reuben did Therefore Judah had the Kingdome Joseph the Double Portion and Levi the Priesthood Deut. 21.17 1 Chron. 5.1 2. Gen. 49.3 Gal. 4.1 Heb. 12.16 (r) Bodin Rep. l. 5. c. 2. p. 571 Bodinus in his Republique would have a double portion of Lands and Goods assigned to the elder and the rest an equal share 23. The like may be said of the Tenures in Borough (t) Cust Norm tit Tenure par Burgaye fol. 135. b. Kitch fo 132. English and Copyhold-Estates where the youngest Son shall inherit contrary to the Law of God and Nature which Custome grew as some pretending to know much of such Customes have said That these Lands or many of them being held in Villainage although now purchased by Free-men who are not nor can thereby be made Villains the Lord did usually lie with the Tenants wife the first night after the Marriage and therefore they obtained this Custome lest the Lords Bastard not being a Bastard in our Law should inherit as possibly it might be This I will not positively affirm to be the ground of the Custome though I have seen a very ancient authentick Evidence testifying such a power in the Lord And I dare say it 's easie to make appear That divers Mannors and Lands in England were anciently granted to hold upon such terms and upon other such-like wicked Covenants if not Customes not fit to be inserted in regard of the baseness and filthiness thereof Littleton saith The yongest Son should inherit in regard he is least able to (t) Littleton tit Villenage l. 2. sect 211. help himself which is no reason for if Littleton mean that he is less able in respect of ability of body to fight or defend himself or to work Experience shews That the younger is many times more able and the eldest less fit and more indisposed to labour in respect of his Primogeniture And if it be meant in respect of Estate if the Customary Tenant have two Sons and nothing else but the Land so holden and that go to the youngest Son what ability hath the elder to himself more then the younger would have had being in his condition (u) Poult Pax Reg. Regni tit Appeal fo 157. b. The youngest in this case shall not have an Appeal for the death of his Father This Custome is clearly against the Law of God and Nature Deut. 21.17 1 Kings 2.15 Weemse M.L. Com. 5. Exercit 7. p. 41. 24. (w) Stat. 51
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 entry accordingly of persons acting and things done but nothing really except the parties coming to the Bar to do they know not what This is meerly a device or fiction to deceive and scrue morny from the people the very fees come to almost four pounds besides the fine upon the Alienation which is according to the value of the Land taxed by the Commissioners if above 40 shillings by the year it may be from 6 shill 8 pence to 20 pounds lesse or more All which might be saved if all mens estates were made fee-simple and the Statute de Donis Conditionalibus replealed or that the making of a Feoffment which is done by livery or the Inrolment of a Deed might discontinue the intail and Bar the Remainders In the mean while this Common recovery in regard of the expence is an oppression and the formality or rather subject matter of it being nothing but lyes whether Jocosa officiosa or perniciosa is against the Law of God Col. 3.9 Levit. 19.11 Rev. 21.8 Rev. 22.15 2. That Errours in Judgments and proceedings in the Upper-bench the Action being brought by Original should not be heard and determined but before the (b) Wingat Law cap. 47. pag. 89. N. 10. King or Lord Protector and Lords in Parliament seems to be a hard Law and at best is a Tedious and expensive way and so an oppression to the people and against the Law of God Ezek. 18.8 1 Thes 4.6 Isai 33.15 Prov. 22.16 3. (c) Westm 2. c. 1. Stat. de Donis Condit 27 H. 8. c. 10. Statute of Vses Châ—dlyes Case Coke l. 1. fol. 121. Intails upon the heirs males of a mans body with remainders over to brothers and after to strangers of the name to the disinherising of ones own Daughter having no Son is sinful and against the Judgment of Almighty God immediately given in the case of Zelopheads Daughter declared with an emphatical addition That this shall be a Law of Judgment c. That if a man have no Son his inheritance shall go to his Daughter There is a Custome in Ireland that all Lands which have not come to the Kings hands by surrender escheate Attainder or forfeiture The eldest Son of the house shall enjoy the same during his Life and then the second and third if there be so many Brothers before the heir in Lineal descent This is called the Custome of Tanestrie and the same grew by reason of their Civill warrs not only the greatest against the greatest but even every Baron and Gentleman one against another Therefore they left their Successors of Age to defend their territories Davis Report case Tanest Ra. Histor lib. 2. cap. 4. S. 15. And the same is a Law of Common equity not one of those Judicials which only did binde the Jews in their own Land but dictated to every man by the Law of nature which teacheth that a mans own child being part of himself is more dear and near to him then a stranger and hitherto is that to be referred He that provides not for his own and those of his own House first his own Wife then his own Children and then his Servants as the rest of the househould such a one hath denyed the faith and is worse then an Infidel Then are many of the Nobility and Gentry worse then Infidels whose inheritances upon such an Atheistical or Heathenish opinion as the builders of Babel had to get them a name least they should be scattered are turned from their Daughters to strangers and little or nothing left for them upon consideration of which a wise and Religious Judge once said I would surely make such mine heir whom God makes mine heir the contrary practise is against the Law of God and nature Numb 27.7 8. 1 Tim. 5.8 4. In a Replevin no man living knoweth what is the general issue to be pleaded by vertue of the last Statute and in some cases there can be no (d) This is agreed by the Protonotaries of the Common-Pleas and the practise is accordingly Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 1. fol. 14. Judgment to have the Cattle returned and when such Judgment hath been given and the Cattle taken upon a reâ—urn habend he that took them and obtained the Judâ—ment can neither use them as his own nor sell them nor can the former owner have them again but either the Taker muâ—â— keep them at his own charge until the owner will redeem them or they must dye in the Pynfold and then the Avowant who first distreyned may distrayn again and go to suite afresh and so be put to a circuit of Action which the Law in other cases doth disallow This is a foolish and ridiculous Law and against Common right and so against the Law of God every one ought to have recompence in his suite where the Law passeth for him Lam. 3.36 59. Amos 5.24 1 Kings 10.9 Isai 59.14 5. The practise in real and mixt actions occasioning (e) Stat. 51. H. 3. concern dayâ—s in Real Act. and Stat. 51. H. 3. concerning dayes in Dower many Delayes by Essoynes Adjournments Veiw Counterpleading Colour and Dilatory pleas is a great oppression by reason of the delay and unreasonable expence besides the nicety and thereby uncertainty in the proceedings where by mistake of a word syllable or dash with a pen or coming to adjourn an hour too late the Cause may be lost this is an oppression and a meer Trap to catch men and an occasion of much injustice for who will yield to any man his right where he hath hope to foile his adversary by any such trick or weary him at Law Job 22.10 Luke 18.4 Isai 59.14 6. Trials by Nisi prius in personal Actions begun in the Courts at Westm where the plaintiffe to have amends for a trespass or battery for which five shilling would satisfie him This is Common in evâ—ry mans Practise and needs no Proof must spend before he can have Judgment neer eight pounds and the Defendent about half as much although to his ruine and he must pay the plaintiffs charges and damages which is all in nature of Damages or lye in Gaol this is a grievous Law and not to be suffered but rather such Courts of Record are to be Cherished where a cause may be tryed for 30 or 40 shillings this were more for ease of the people and more agreeable to the Law of God 1 Sam. 12.4 Isai 58.6 Isai 5.7 and 33.15 Zeph. 3.1 7. The like and much more may be said concerning tryalls at the Bar Common Experience shews this to be liue which cannot be tryed if the Jurors come but two dayes Journy under an hundred marks and commonly there is much more spent This is a horrible oppression and such courses make poor men affraid to sue for their right and great men to Trample upon the poor the same is a crying offence against God Psal 73.8 Ezek. 18.8 1 Thes 4.6 Prov. 22.16 Isai 33.15
a learnâ—d man who reports this saith that no merchandize is more base than the Sale of Offices Bodm Republ. l. 5. c. 4. p. 592. and l. 6. c. 2. p. 661. In the mean while here is great extortion and oppression done to the people by the greatnesse of these Offices which is the cause that men are put into them more for their wealth than for their wit learning or honesty and the businesse is done accordingly to the wrong and prejudice of the whole Nation 11. The proving of Will and granting Administrations being now onely done at London is likewise an oppression and so is it an oppression that all causes Testamentary and such as concern Administrations and Legacies of how little concernment soever are heard there and nothing determined in the Countrey This is worse than the course taken in the Bishops time when all mens Wills who had not bona notabilia viz. five pounds in goods out of the Diocesse might be proved in the Countrey for lesse than half the Fees which are now paid and all matters of instance touching such mens Estates were heard and determined there although the proceedings where there was any opposition were exceeding tedious and the Appeals intolerable the course now held ought neverthelesse to be amended 12. The matter of passing accounts in the Exchequer is an exceeding burden and the cause of much bribery and extortion in the Countrey The Romans had great Care to bridle the coveteousnesse of Offiâ—ers and â—â—â—â—â—ers of the publique Revenue Tacit. Annal. l. 13. cap. 12. p. 196. the account of a Sheriffe of any ordinary County will cost one hundred Marks to passe the same and of some Counties one two or three hundred pounds there being so many Offices to passe through and some of the Officers taking excessive Fees forty shillings for an Attornies Fee and the Secondary as much this causeth the under Sheriffe to take two shillings a name and in some Counties more for his Warrant where there is but four pence due and all the pretence is the great charge of passing their accounts There is no use of any more Offices in the Echequer but the Receiver to take the money the Auditor to make up the accounts and to see that the Receiver neither cozen the Lord Protector nor the Countrey and the Controller to see that no deceit be done by the Auditor this I conceive to have been the ancient course when (m) Stowe Annal. life oâ— King Edwd 1. p. 209. anno 1304. the Exchequer was at York in the time of Edw. 1. and after it was removed to London and was in effect the same which was appointed by the (n) Ordinance 21 Septemb. 1643. Anno 1556. Out of the Province of Langueduke Bodin Republ. l. 6. cap. 2. p. 685. The same learned Author reports it an excellent remedie of inequalitie that all the Territories of a Common-wealth were surveyed as he saith the Roman Territories were that every mans Land and Possession might be known and certain that the Taxes and Imposts might be equall Bodin l. 6. c. 1. p. 641. Ex Cassiodoro England was so surveyed in the Time of the Norman Conquerour This appears thy Doomsday Book which contains the very originall survay Cowel Interp. verb. Doomsday Ordinance of Parliament Anno 1643. for receiving of the Revenue of the late King Queen and Prince and might be so appointed again if that the State did see cause and the same would ease the Common-wealth of much bribery extortion besides this the publick treasure must needs decrease passing through so many hands It was proved in France that a third part of all Receipts went to Officers it were well if ours were compared with it The cure of all these miseries is that which the Ancients sought much after (o) Hawk Right Dominion l. 2. cap 1. pag. 21. and Doct. and stud lib. 1. c. 2. an Equality I do not mean the equal division of all the Subjects Lands or Goods for that in a manner would destroy (p) Bodin Republ. lib. 5. c. 2. pag. 569. property ownership of the things of this life which would both cut off the endeavours of men to increase their Estates by labour industry and trade in Lawfull callings which the Law of God enjoyneth And also prompt men to idlenesse and bring confusion in the end But I mean the ballasting the trade and businesse of the Nation that it may be divided into all the parts of the Lands for the good of the whole which might easily be effected if the Law were setled in the several Counties And the Rivers in the Mediterranean parts made Navigable which might be done as I suppose with the expence of one moneths Tax of 100000. l. upon the whole Nation This would be the Nurse of Peace of love betwixt Subjects The contrary The Wise Learned have accounted that amongst all the causes of some Seditions changes of Common-wealths there is none greater than the excessive vvealth of few Subjects and the extream poverty of the greatest part who readily use to imbrace any occasion to spoil the rich (q) Tit. Liv. l. 32. p. 832. L. M. p. 833. A. But it was an unjust and foolish Law published by Nabis the Macedonian Tyrant when Philip King of Macedon had trusted him with the Citie of Argos that after he had plundered and abused the Citizens he commanded all Debt Books and Bonds to be Cancelled And the Lands to be divided amongst the people by the poll Two fire-brands saith the Historian enough to set all the Nobles and Commons on fire And so to destroy one another CHAP. XIV That the body of the Law is wanting and defective there being neither Common-Law nor Statute-â—aw for remedy in many cases nor any punishment considerable for sundry great offences The Jewes governed by Felix by punishments being exasperated fell into Rebellion and wars Tacit. Annal. l. 11 c. 11. p. 17 a. THe first thing which shall here be insisted upon as being an universal sinfull defect and the cause of much persecution of the one side and impiety and prophanenesse of the other side is That it is not declared by the State nor any known Law how far the Civil Magistrate is Custos utriusque tabulae my meaning is that it 's not set down or determined that it may be known to the people (a) Weemse Expâ— M. L. Ex. â— 1. p. 8. how far the Civil power hath to do in matters appertaining to Religion and what those iniquities are which as (b) Jâ—b 31.11.28 Job saith are to be punished by the Judges and then wherein the consciences of men are free and not to be trampled upon by the Temporal power (c) Gâ—otius Pol. Max. par 1. cap. 2. pag. 12. and Carol. in fine Strifes about Religion are there most pernitious and destructive where provision it not made for dissentors (d) Princes must carefully distinguish their jurisdiction from that
discumbenti inserebatur nil praeter vitulum Anserem bibendi ad praescriptum lege juncta Augustus Caesar was a notable pattern of whom it 's reported that he used to make his supper of three dishes of meat and when he would fare most highly with invited Guests he had but six dishes at the most but as he entertained his friends in no exceeding sumptuous manner so he welcomed them with all the kindnesse and courtesie that might be This example may shame many professing themselves Christians who digge their graves with their teeths and bury their Lands in their bellies by their katering for the flesh to fulfill the lusts thereof contrary to the Apostes rule And for over-costlinesse in house-furniture that likewise was restrained by several Laws of the Roman Emperours who would not admit the people to have silver plate and costly furniture either of Bedding or other Houshold stuffe neither did the Emperours exceed themselves but some of them seemed to be too frugal and their lodgings too mean for such Princes and Emperours It were well there were a Law appointing a moderation in these things for punishment of the excesse (o) Sueton. in vita Augusti Caesar sect 34. Idem in vita Julii Caesaris sect 43. It was that wicked fool Nabal of whom it 's said that he made a feast like a King and that he was very drunken and it 's charged upon (p) Vita Tibetii Sect. 34. Tacit. Annal. lib. 2. cap. 8. pag. 43. and lib. 3. cap. 11. p. 80. and cap. 12. page 81. Belshazzar that to furnish his drunken feast he must needs have the vessels (q) 1 Sam. 25.36 37. (r) Dan. 5.1 2 3. of silver and gold which were taken out of the house of God but both he and Nabal suddenly ended their feasting and jollity and died for ought appears without repentance Heliogabalus that gluttonous Emperour was slain by the Souldiers Euseb l. 1. c. 21. Sâ—mpson châ—â—â—h Histo pag 31. and his body dragged through the Citie of Rome and cast into the River Tyber By the Laws of Geneva no man may have above twelve Dishes of meat at any feast besides fruits Laws of Geneva pag. 34. 39. There is no Law but what is * 24 H. 8. cap. 13. Rastâ—l Entr. Tit. Apparet obsolete and disused concerning apparel otherwise States have had sumptuary Laws of this kinde which were strictly observed I do not herein approve or comprehend those Superstitious significant Garments used by the Popish Clergy and heretofore used in England because we are now eased †Laws Geneva pag. 31. of that Superstition But I speak of the civil use of Apparel which ought to serve as well to distinguish men in their ranges and degrees as to difference the Sexes The (q) Psal 26.4 meaner sort of the Jews went in black or obscure Garments the (r) Gen 37.32 2 Sam. 13.18 Princes Children wore white or purely coloured (Å¿) Psa 45.13 the Queen wore imbroidered or wrought Garments (t) Luke 7.25 those in great houses wore silkes or soft raiment and also purple and scarlet and so did the Judges and their families Prov. 31.21 and 23. It was a laudable custom amongst our fore-fathers that servants were known by their Habits Liveries and Badges even from the Kings to the ordinary Gentlemans they usually wore Coats such colour as their Lords or Masters bore Gules Azure Sable or the like with their Masters Coat Armour or Crest or what Liveries their Masters pleased to give them This was a notable distinction and let not him that is a servant be ashamed of his Livery and imployment seeing he lives by it The six Clarks in Chancery attended the Master of the Rolles in a known habit The Judges servants did wear such habits I have seen Sir Edward Cooks followers in the Circuit in blew Coats and I could name a Knight who attended an Earl in the same habit The order or rather disorder now used the servant is not known and sometimes mistaken for the Master and that Jone is as good as my Lady is a thing intolerable and ought to be restrained Perkins vol. 1. p. 60. col 1. Cooke Essai pag. 176. as likewise the wearing of so much silver and gold by the ordinary sort of people and no Law against it therefore I account it a defect that there is no Law ordering matter of Attire and Apparel (u) Bodin Republ. l. 6. cap. p 770. we may see there what apparel was prohibited to the French Nation The Romans had the like Laws Tacit. Annal. l. 2. c. 8. p. 43. The French had a Law made in the reign of Charles the ninth concerning Apparel to which there was annexed a Fine of a thousand Crowns imposed upon every one who should much or lesse transgresse the same which Law is supposed to be too severe but yet it shews what care other States and people have had to bridle this exorbitance and excesse in Apparel and there are several Acts of Parliament in England touching this matter but they are all out of use and serve for nothing 39. It would be of great use if there were a bank of money in every County consisting of such mens money as are known to be well furnished to be lent out at such rate as the Law shall permit to such as could imploy it profitably And when the Coffers of the Common-wealth are well stored it might be convenient to be so imployed By this means all persons who are fit to be trusted might be furnished and that cursed trade of brokage and cheating amongst Scriveners cashiered This course hath been used anciently and is used at this day in many Common-wealths The Chamber of London was formerly of excellent use but now it 's reported by some of their own Members that since they parted with the last money to the late King I take it that it was 80000. l. they were never able to pay their debts unlesse they should pay them out of their own Estates (x) Tit. Livi. pag. 263. â— F. Those who had the Charge of this bank were called Mensarii Tiberius in time of want of mony lent forth great sumes out of the Publique Bank freely Tacit. Annal. l. 6. c. 4. p. 127. The Romans had such a course amongst them which was a great ease to the people 40. There wants a Law as I conceive for more effectual dispatch of payment of publick debts then yet it provided The debts upon publick faith especially although the promised interest were abated or moderated it would much repair the credit of the Common-wealth which is much broken by none-payment and would be an inestimable prejudice if ever there should be occasion to borrow again (y) Tit. Liv. l. 29. p. 720. M. and pag. 721. A. The state of Rome under the Counsels was once in a worse condition than England they had contracted a huge debt upon Loan to defray the charge of
Romans was chosen by the Emperour Tac. 1. Annal. l. 1. cap. 1. pag. 2. Civil Supream Magistrate who in this respect as well as others is (c) Rom. 13.4 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Minister of God and ought by good Laws to appoint the Ministers their imployment and see that they do their work for proof hereof I will not much insist upon the practice of (d) 2 Chro. 8.14 Solomon in building the Temple nor upon Solomon (e) 2 Chro. 20.21 Jehosaphat and (f) 2 Chro. 31.2 1 Kings 2.27 35. Hezechiah their facts in appointing the Levites their Offices and courses lest that should seem to comply over-much with the Levitical service although something by way of Analogy may be proved from thence and much more might be said of Solomon his putting the High-Priest from his Office and appointing another in his room 1 King 2.27.35 and of Asa (g) 2 Chro. 14.4 and converted (h) 2 Chro. 33.16 2 Chro. 17.7 8 9. Manasses their commanding Iuda to serve the Lord. But the fact of Iehosaphat 2 Chr. 17.7 8 9. seems to me a good Testimony in this matter and undeniable It 's said that he that is Iehosaphat (i) It 's said Nehem. 6.7 that Nehemiah appointed the Prophets to preach at Jerusalem in the thirteenth year of his reign sent to his Princes Benhail Obadiah c. to teach in the Cities of Iuda and with them he sent Levites Shemaiah Nathaniah c. and with them Elishama and Jehoram Priests And they taught in the Cities of Juda and had the Law of God with them and went about throughout all the Cities of Juda and taught the people Five things I conclude from this context 1. That these Princes Priests and Levites were appointed to the work of teaching by the King 2. That the Princes as well as the Priests Levites taught the people 3. (k) Laws of Geneva p. 2 3. 1. The Ministers are first approved of by the Council 2. Thâ—n received by common consent into the Company of the faithfull 3. Then sworn before the Signiorie to serve God faithfully in the worke of the Ministery This is called the Ministers Induction pag. 3. That the Kings command was the ground of their Commission to teach the people 4. That some Teachers are not tied to particular Congregations 5. That this reaching was no Ceremonial or Levitical service nor performed in the Temple this preaching was in the City out Juda out of Jerusalem they had the book of the Law of God with them out of this they taught the people This book of the Law was that which the King was commanded to read and contained the moral as well as the judicial and ceremonial Law which being read to Josiah melted his heart and that which with the Prophets as commentaries thereupon was read in the Synagogues of the Jews every Sabbath-day (l) Acts 15.21 Acts 13.15 If we should consult the Papists and rigid Presbyters in this matter The Papists tell us that all authority to teach or preach for it 's all one is to be derived from the head of the Church on earth that is the Pope and that the Bishop as the Popes Substitute with a Presbyter are to ordain the teaching Priests and so they did in England in the Bishops time The rigid Presbyters of this age tell us that the Presbytery are to ordain those who are to teach or preach and such as teach or preach without their ordination which is done by the imposition of hands of other Presbyters or Preachers do greatly sin against God but I think it will not be denied that whosoever may offer up publick prayer may also publickly teach or expound the holy Scriptures King Solomon did the one 1 Kings 8. And I see no reason but that he or any other in his condition may do th' other if he be apt to teach and able to divide the word of truth aright we cannot in the New Testament expect the civil Magistrares to put forth or execute such a power as Jehosaphat did for that was contrary to their principles to further the preaching of the Gospel or the religion of Christians which those Pagan Emperours and Kings accounted (m) Acts 25.19 Sueton. in vita Claudii Caesaris Sect. 16. Broughton in Daniel Conclus in fine a barbarous Superstition therefore the Lord of the Harvest sent forth labourers inâ—o his Harvest the Apostles and Evangelists with larger Commâ—ssion than to teach in the Cities of Juda. First to the lost sheeâ— of the house of Israel and the Apostle Paul was immediately sent to the Gentiles and then the Commission was to preach the Gospel to every Creature These were not tyed to any paâ—ticular Congregation But besides these there were Pastors and Teachers sent Regeâ—volsc Hist Eccleâ— Slavoni Provin l. 1. cap. 3. pag. 12. Pectus Valdus a rich Mercant of Lions was chosâ—n Pastor of the Church their Anno 1160. Act. 1.23 and 5 6. Calvin Instit lib 4. cap. 19. Sect. 31. and c. 14. Sect. 31. Fuller Holy state l. 2. c. 12. pag. 87. Mâ—gd Cent. 2. c. 7. Cent. cap. 7. and râ—ised up for edifying and building up the Church of God and untill Churches or particular Congregations were setled the preaching was at large but when the number of believers was increased and multiplied then were they divided into particular Congregations and had their Pastors and Officers by (n) Acts 9.30 Acts 11.22 26. and 13.8.15.2 3. suffrage or (o) Simpson Church Hist lib. 2. Cent. 12. pag. 429 430. Election and those Congregations of believers called also the Church as occasion was (p) The manner of the Election of Pastors in the Slavonian Churches Anno 1467. You may see at large in Regenvolscii Historia Eccl. Slavon Provin lib. 1. c. 1. p. 30 31 32. sent forth others to preach the Gospel to such places where there was need and where the Gospel was like to be received to gather men to Christ and this was done in defect of the work of the Supream Magistrate (q) Constâ—ntine the Great and Theodosius before the reign of Antichrist and afterwards Otho and Henry the fifth Emperours and others nominated and appointed Bishops and others nominated and appointed Bishops and others to preach Simpson Church Hist lib. 1. pag. 6. Whites way to the true Church Sect. 50. p. 389 390. Petrus Valdus and the Bretheren of that societie who were raised up about the year 1160. in that and the next century and afterwards John Wickliffe his followers by their publique preaching gathered more Churches and converted more souls to Christ than all the Bishops and Presbyters had done in 600. years before Many of which Churches remain to this day whose Office it is to appoint the Gospel to be preached to the world and the Lord did from time to time in every age as might easily be shewed when there wanted a Christian Magestrate and also during the
that there is no competent or sufficient meanes of maintenance setled for a Gospel Ministry but onely that which was ordained and continued by that Antichrist of Rome and his Vassals and ought not to be upheld or made use of by the people of God but with the Leviticall and Ceremoniall worship and the Temple to be abolished CHAP. XVI A Corollarie or Conclusion IN this discourse is clearly evinced the manifold impieties superstitions prophanesse oppressions falshoods uncertainties ambiguities prolixities and other enormities as well in the Theory as in the Practick-part of the Laws of England as they are now in use and practice some few of which evills were sufficient cause to decry and abolish any humane Law under heaven Insomuch that the civilized Heathens and Pagans in many things appertaining to distributive Justice both in their Laws and in the practice and execution thereof have shewed more impartiality reason and judgment than many of our Laws can admit and therefore it 's to be hoped that the great Patrons thereof will bee silent whilst other men seek to God and supplicate the supream Magistrate and Legislative power of the Land for a more perfect pattern and foundation whereupon may be built a more glorious structure Know the world will say that this Law is a sacred spark some excellent guift from above as * Grotius Pol. Max. part 2. c. 8. p. 68 69. Corol. in fine Bodin Republ. lib. 1. p. 58. Tit. Liv. lib 3. p. 110. H. all the Heathen generally held their Laws to be the very Records having gained the name scrinia sacra and the professors and practicers of it having found it as profitable as Diana was to Demetrius and the rest of his craft and therefore that it needs no alteration and it may be others will say it s an easie matter to finde fault with the Law but it s not so easie to amend it to all these I shall say this which I formerly hinted That the written word of God contained in the Old and New Testaments manifesting the minde of God by (a) Exod. 20.8 12. commands (b) Exod. 20.4 13. prohibitions (c) Deut. 6.3 4 5. exhortations (d) Rom. 12.2 19. dehortations (e) Psa 41.1 2. promises (f) Rev. 22.18 19. threatnings (g) Jude 6.7 11. judgements (h) Mich. 6.9 13 afflictions (i) Acts 13.10 11. objurgations (k) Jerem. 13.23 27. expostulations * Gen. ◠2◠sarcasmes and l Amos 4.4 5. bitter taunts Ironical †Ezech. 28.3 4. affirmations and negations (m) Math. 23.15 16. reproofs (n) Math. 11.28 29. invitations (o) Hebr. 13.5 6. incouragements (p) Acts 12.7 11. signall deliverances (q) Isa 5.2 4 7. especial favours (r) 2 King 7.4 6 15. and leading providences commended to us in holy Scripture to teach us and sundry (ſ) Cant. 5.11 12 13 14 15 16. Gal. 4.14 Eph. 6.14 15 16 17. Tropical and (t) Apoc. 19.11 12 13. figurative expressions of his will to our capacities with necessary (u) Math. 22 31 32. Mal. 4.4 consequences from the word are sufficient to over-rule all cases instruct all Magistrates and Judges and to teach all duties towards God and man and that there need no other Laws but what are founded upon this ground and built upon the same foundation And by these were the Israelites happily governed without any other policy And this is all the Directory which the Lord by the Prophet Malachi left to his people to be their guide in that 400 years from his time untill John Baptist wherein there were to be no more Prophets Remember the Law of Moses my servant which I commanded unto him in Horeb for all Israel with the statutes and judgements Mal. 4.4 And where its commonly said that many sins are invented and faults found out since the Scriptures were written which cannot be obviated or comprehended in Scripture Laws It may be answered that there can be no offence new or old but it s (x) Psal 19.7 Psal 119.96 condemned in the word of God for example there are many Superstitions new Oaths and much false worship lately invented which no man will deny to be condemned by that word of God which forbids will-worship prophanesse and humane inventions in Gods worship that word which (y) This is agreed by Perkins Downam Dod Wolebius and generally all Protestants who have commented upon the Decalogue commands us to worship God according to his own will and appointment condemnes all newly invented false worship and that Law which commands us to reverence the holy Name of God or forbids the abuse of the same by prophane or vain swearing in one kinde forbids all other sins of the same kinde or nature And if it be so in respect of the first table much more is it to be granted that the Law of God is sufficient to teach all things concerning righteousnesse and sobriety being the duties of the second table whereabouts distributive Justice is chiefly conversant for that by one kinde of injustice all other injustice is forbidden as is herein before declared and might here be further insisted upon if it were requisite (z) Bodin Republ. lib. 4. cap. 3. p. 471. And it is to be considered that Law of man is so sacred as it s called but that upon urgent necessity it is to be changed And Solon that wise Law-giver after he had published his Laws caused the Athenians to swear to observe them onely for one hundred years Laws must be perused and some abroged and others established being but humane Laws For that there can be no setlement but upon the immutable Laws of God The Bactrians Egyptians Persians Carthaginians Athenians Scithians pretended their Laws to come from God And Mahomet affirmes his Law was delivered from God by Gabriel Plato that his Laws cam◠from Jupiter and Apollo Cael. Rhodigi l. 18. c. 19. p. 698. 2. The last thing which may be expected as to the answer of the objection before mentioned that those that finde fault with the Law do not shew how it should be amended I shall onely set forth what course hath been taken by wise States and Common-wealths both in respect of their Judicatures and proceedings and humbly offer it to the wisdom of such as it concerns in this Nation and the Dominions thereunto belonging To judge what is right and may be most agreeable to the constitution of the Government and most conducing to the support of the authority of the Civil Magistrate both supream and subordinate and to the good and happinesse of the people that we may lead a quiet and peaceable life in all (a) 1 Tim. 2.2 Tit. 2.11 12. godlinesse and honesty and this is the end of all Laws and Government First therefore we will a little consider what the Jews who were the people of God and in the best times of their government when their rulers had
a number as might be such a Survey might do well in the Courts in these dayes to the end that the trivial frivilous and vexatious Suites being spewed out as (p) Lord Bâ—kon Essayes the surfets of all Courts such as were of good use and concernment might have time to be determined (q) Sueton. Tranq in vita Claudii Nâ—ronis sect 17. It was a Law amongst the Romans that no Clark or Notary who was to draw or write any other mans Will should put down any Legacy for himself Also that impleading and deciding of controversies all those causes which aforetime were debated before the Masters of the Exchequer or Citie Chamber should be removed into the Common-Hall there to be tried and that appeals from the Judges should be made onely to the Senate (r) Bodin Republ. l. 4. c 6. p. 500. 502. The Historian commendeth this practise Sueton. Tranq in vita Augusti Caesaris sect 33. Idem in vita Tiberii sect 31. 33. Augustus Caesar used to sit daily in Judgement to hear Causes in the Tribunal or if he had not health then in his own house (Å¿) Idem in vita Flavii Domitiani sect 8. Flavius Domitianus used also to sit in Judgement upon the Tribunal and many times reversed such Judgements as were given for favour or obtained by flattery he warned the Judges not to give ear to perswasions and Rhetorical assertions and such Judges as were faulty he used to tax publickly and he was so carefull to chastize the Magistrates that the Historian saith they were never more temperate and just in their places than in his dayes (t) Bodin ut supra p. 415. Romulus left the ordinary Administration of Justice to the Judges but reserved the greatest matters to his own Judgement (u) Godw. Aâ—â—i Rom. l. 3. Sâ—ct 4. c. 6. The Romans had a Law that no Senator should use any Trade but those were utterly forbidden the use of trading for fear it should breed favour or corruption And another Law of the Romans was (x) Idem l. 3. Sect. 4. c. 17. Ex Cicerone de Senectuâ—e that no Advocate or Oratour should receive any gift or reward from his Client for pleading his Cause for that they were paid by the Common-wealth which was a very (y) Cook Essai pag. 185. indifferent way for all people Cock Essay pag. 185. (z) Rous Att. Ant. l. 3. c. 1. pag. 110. and pag. 111. 112. The Graecians proceedings in their Courts was like to the Romans and if the Defendant did not appear upon the Summons he was taken by default and if he would have any ease against the Judgement he must bring the Cause on to hearing against himself within six weeks or else the first Judgement to stand That Defendant which had not five of the Judges voyces for him was to be fined and the Plaintiffe that made not good his charge was to pay costs And if the Cause were Criminal before the Suit was allowed to proceed the Prosecutor took his Oath that his accusation should be just Cook English Law p. 103. To conculde good Laws are more securitie to the people than good Magistrates our Laws have sufficient in them to bring in the whole body of Popery except the Popes supremacy and to destroy all the faithfull people of the Land and therefore it 's to be wished that the Laws were (a) Lâ—chfords Newâ— pa. 26. In the great Câ—uâ—t at new England held twice in â—he yâ—ar like our Assizes the Matters of the Charge to be inquired of are reduced by the Governour who gives the Charge under the Heads of the Decalogue made agreeable to the Laws of God and then if the proceeding and execution of them were either like the Jews the Graecians or the Romans and that all ordinary matters might be decited and determined in the proper Counties it would be found I doubt not a great blessing and happinesse to the people And I cannot imagine what can be said against this but that which is called reason of State the very name whereof an honest Pope abhorred This (b) Grotius Pol. Max. par 1. c. 4. p. 31. 32. as one saith was anciently the same with Equitie but as now it s used in the world is nothing else but a device that carries the face of equitie supposing it Lawfull not onely to transgesse the Laws of men (c) Bodin Republ l. 1. pag. 104. accounts this a thing most absurd The three Temples belonged to the Templâ—rs untill Ed. 2. his time and thence to the Hospitallers untill the desolution in the time of H. 8. but even the Laws of God for Politicke ends And since Machiavel plaid Achitophel this for shame is called reason of good government 1. This policie will tell us that thee hange of the Laws the practice thereof will dishonour and demolish the most famous Universitie in all the world for our kinde of learning the Inns of Court and of Chancery 2. It will Eclipse the glory of Westminster and a great part of London whose inhabitants live by lodging and victualling 3. That tediousnesse of Law-suits and the great expences thereof are to be tolerated as a necessary evil or punishment which serves to keep men quiet and deterre them from many unnecessary Suites which otherwise would be commenced but that they fear the remedie may be worse than the disease 4. That the Law is a (d) Tyrants use to imploy their Tributaries in wars abroad or idle and needlesse Trophies that they might want leasure to think of other things Jun. Brut. Vind. Conâ—râ— Tyran p. 10â— Upon this ground stage-playes and Stewes are suffered in some Countreys necessary evill to keep men from contriving and practising Worse mischief in the Common-wealth which they have no leasure to do whil'st they are wrangling and jangling about Law-suits 5. That expence on Law-suits is a good means to keep such men who are of restlesse and unquiet spirits poor in the Common-wealth whereby they are disabled to make head against the Government These and such like props for upholding this frame of building appear upon the first view to be too weak and unsound to prop up the same being herein already answered and are all overthrown by that rule of Scripture (e) Rom. 3 8. We must not do evil no not the least that good may come thereof Now seeing it hath pleased the Lord our God to bring us not onely out of that iron furnance and darknesse of Egypt the hard service and ignorance of Popery but also to give an end to our wildernesse miseries and to settle us in peace after all our wars and distempers and so to put us into a condition as the Israelites to receive good and wholsom Lawes let us learn Gods end in this and know for our instruction what is recorded by the Holy Ghost Psal 105. v. 43.44.45 hee brought forth his people with joy and his chosen with gladnesse c. And
Creatures he prohibited under a severe penalty Prov. 12.10 Deut. 14.21 Exod. 23.19 66 That Men-stealers be punished by losse of life and as the greatest Felons in the World Exod. 21.16 Deut. 24.7 1 Cor. 6.6 67 That Marriage of children without Parents consent be disanulled and Marriages with Infidels prohibited Ezra 9.14 Gen. 27.46 Mal. 2.11 Hest 1.22 Numb 30.5 68 That strange fashions and Whorish attire be prohibited by Law and all persons ordered to wear Apparel fit for their degrees and callings Zeph. 1.8 Isa 3.18.19 Prov. 7.10 Gal. 5 9. Deut. 7.3 69 That the matter of divorce be setled in the Magistrate onely in case of Adultery that Marriage likewise be solemnized in the presence of some publick Magistrate in an open place after due publication Ruth 4.9 Math. 19.9 Mark 10.12 Luke 16.18 70 That unlawfull Magick and the Rudiments thereof Judicial Astrologie and all other such wicked Arts be prohibited under severe punishments Deut. 13.1.3 and 18.10.11 Ezech. 21.21.22.23 Dan. 2.2 Jer. 10.2 71 That Heirs may be bound to pay the Debts of their Ancestors after the Lands which descended be sold as well as before so far as the Land extends and that an Action of Accompt or Debt upon contract may lie against an Executor or Administrator for the Debt or duty of the Testator so far as he hath assets 2 Kings 4 7. Prov. 22.26.27 Rom. 13.8 72 That the Processe in all Cases of Suite be onely a Summons which being duely served if the Defendant refuse to appear or shew not sufficient cause to the contrary the Plaintiffe may proceed to his proof and so to hearing or trial as if the Defendant had appeared Numb 16.11.14.28.32 Deut. 25.8 Hest 1.10.11.19.21 73 That no man have final Judgement against him by default without proof in any Case be it never so small unlesse the party accused do at the time of the Judgement openly confesse the fact Numb 35.30 Deut. 17.6 1 Kings 8.31 74 That common lyars and Inventers of false news slaunders may be punished as disturbers of the peace Psal 101.7 Prov. 26.20 Levit 19 16 75 That the Superstitious and Paganish names of the moneths and dayes be changed and called by the names of first socond and third c. according to the Scriptures Levit. 20 23. Exod. 12.2 Deut. 12 3.4 Genes 7.11 Genes 1 5. Ezech. 32.1 Psal 16.4 Exod. 23.13 76 That the body of the Law may be collected into a volume that it may be known to the Supream Magistrate and to the Judges and the people 1 Sam. 10.25 Deut. 17.18.19 Exod. 20. from verse 3. to the 9. verse of Chap. 23. Hester 1.19 77 That all the Tythes and Gleab Lands with other things called Church dues may be sold and that a more fit and lawfull maintenance be provided for the Ministers of the Gospel Hebr. 7.9.12 1 Cor 9.7.8 9 12.14 Gal 6 8. 78 That no Monarch or Supream Magistrate may usurp that Impious priviledge to pardon murder if ever any such pardon should be granted in any age hereafter the same may be declared void Numb 35.31 Levit. 24.17 Exod. 21.12 Jam. 4 12. Prov. 28.17 79. That some course may be taken by a Law for ballasting the Trade of the Common-wealth and for relief of the Inland Cities and Towns of the Nation 2 Cor. 8.13.14.15 Exo 16 18 Josh 13.32 80 That Godly learned men may be incouraged to labour the conversion of the Iews and to that end to learne the Portugal's and Italian tongues that they may be able to preach to them for that in most part of the World they understand those Languages Rom. 11.25 26. Isa 43.6 and 59.20 and 60. whole Chap. Rev. 81 That interest of money be not suffered to run or be exacted upon poor people which borrow for their necessitie for food and cloathing or grow poor by the hand of God Neh. 5.10.11.12 Exod. 22 25 26 27. Levit. 25.35 36. 82 That all Laws which upon examination shal be found repugnant to the Laws of God or oppressive to the people may be repealed Mich. 6.16 Psal 94.20 Isa 10.1 2 3. 83 That Guards of Souldiers and Armes are necessary and to be used for safety of the Common-wealth and of the Princes person 1 King 1.38 2 Sam. 23.8 to the end 2 Sam. 20.23 2 Kings 11.8 2 Chro. 23.7 10. FINIS ERRATA IN the Epistle pag. 2. lin 5. add he before little lin 13. for of read and. pag. 13. and pag. 16. in the Margents for Cok. read Cock pag. 49. lin 19. for chuse read cheat and lin 20. for use read trust pag. 56. lin last save one for deductions read dedications pag. 61. lin 14. for habâ—ntes read habentis pag. 63. lin 21. add help pag. 87. lin 2. for fined read feigned pag. 106. lin 2. for maney read money and lin 6. add it pag. 108. no. 3. add been and for started read sterved pag. 109. lin 1. for excrementious read excremâ—ntitious pag. 114. lin 4. add on lin 6. put out some pag. 116. lin 18. for were read was pag. 117. lin 8. add of pag. 123. lin last for Judges read Indiâ—s pag. 121. lin 12. for Balington read Babington pag. 128. num 22. for seeing read seeming pag. 131. num 29. lin 9. add but. pag. 132. lin 1. add punished pag. 133. for in estate read intâ—statâ— â—ad lin 8. add nor ead num 35. lin 6. for some read come pag. 135. num 39. lin 10. for purâ—ly colouâ—ed read paâ—ty coloured pag. 139. num 40. lin 8. for counsels read Consuls pag. 140. lin 14. for Ciâ—y read Citiâ—s pag 145. lin 3. add l. pag. 146. lin 16. add noâ— pag. 148. num 1 fo Summe read Summons Scripture-Groun num 46. to be to be read before brought up
p. 4. and most profitable for the people And upon this ground it 's to be maintained That b Lex vera Lex bona est aeterna mutationis prorsus nescia immò eadem ubique si modò vera nam que ingeniorum afflatu subinde locis temporibsque interpolatu distinguitur Protei modo formam evariat neutique Lex dicenda est Veteres legum latores earum inventiones esse divini muneris Arbitrati Coel. Rhod. Lect. Antiq. l. 18. c. 19. p. 697. all laws by whomsoever instituted repugnant to those holy laws of Almighty God are to be rejected although they bear the Image of reverend Antiquity because they have not the stamp of the chief Law-giver upon them The second sort of men from whom I expect a Censorious Vote are the greatest number of Officers Clerks and Practisers of the Law who indeed by their superstructures alterations innovations additions and other devices have subverted the practice of the Law and set another face upon it These will tell me That by this Craft we have our wealth as Demetrius told his fellows when DIANA as he thought was in danger They are come into the rooms and places of the Popish Clergie as they were called who anciently were the Clerks and Officers in the Courts at Westminster c These Clerks used to make all Conveyances and wrote the Legice-books 14 H. 8. 8. And in such sacred Orders that the chief of them the six Clerks in Chancery had no liberty to marry until they had license by the Statute of 14 Hen. 8. cap. 8. And these are sworn and resolved to all their old courses tending to their profit And therefore if they consult about this matter they will conclude That many things may be amended as they found at their last Meeting in Staple-Inne-hall but heed must be taken that nothing be excepted against which tends to the Practisers or Clerks profit And I shall very likely hear them say of me as I heard some of them speak of one of the most considerable of the late Reformers of the Law that he was like the Fox in the Fable which would have all other Foxes Tails cut off because he had none of his own But to such of these as are resolved still to make silver-shrines for DIANA and to prefer these our laws before the Laws of God I 'll say no more but this d Rev. 22.11 He that is unjust let him be unjust and He that is filthy let him be filthy To the rest of them of whom I have more hope that they have something of the knowledge of God and Religion I shall onely commend that Motto which I once saw set up in a Lawyers Study Non quid sed Quomodo If this were well considered that a little well gotten with the Blessing of God upon it would be better then great treasures of Iniquity and that the good of the Nation is to be preferred before private profit This I say would make men willing to have a happy reformation which cannot be had until we be fit for it For that which may be cast upon my self I do aver Most men are like Tiberius the Roman Emperor who said that his time was no time for Reformation Tac. Annal. l. 2. c. 8. p. 43 That I have had my share of advantage by the laws equal to most of my condition in the Countrey where I live But I do profess that now after almost thirty years practice I finde the laws in divers particulars of Common Right and Punishment of some Offences more uncertain unequal perplexed and repugnant to the Laws of God and burthensome to the people then any Laws either of Heathens or Christians that ever I read or heard of and these make these Laws cry out for Amendment The third sort whose Censure I must look to undergo are the great Props and Supporters of this Law who will tell the world with Sir Edward Coke That no one yet ever censured or controlled Littleton the Common Law but he that understood him not To this I answer That I do not censure Littleton more then Gods Word censures him There is one that accuseth him and you even d Joh. 5.45 Moses for that ye are departed from the Law of God and have followed Littleton and other Papists and heathenish Politicians The holy Ghost sends us to the e Isa 8.20 Law and to the Testimonie and Christ sends us to f Luk. 16.29 Moses and the Prophets If Littleton or any other Oracle speak not according to these whether their Laws concern faith or manners it is because there is no light in them But I have much hope of many of the Judges and great men of the land that they will lay their hands to the Work of Reformation to the honour of God who hath honoured them and for the good and benefit of the people forasmuch as they cannot but be very sensible of the great evils which attend the Laws as now they stand being repugnant to the Laws of God as many Judges g Sir George Crook Serjeant Parker Justice Ask about Manslaughter at W. and Co. Sir George Crook about Witchcraft exercised where death followed not at Cov. have hinted upon the Bench in several Cases And this is all I shall say in answer to mine accusers One thing more I do affirm That to my knowledge I have not in this Treatise willingly charged any thing as a fault upon the Law either in the excess or defect in the Theory or Practise but what I have found therein and proved the same to be repugnant to the Rules and Consequences of the holy Scriptures contained in the Old and New Testament And for such things as are any whit questionable whether the law be so or no I have usually there quoted the Authorities of the law for proof thereof and put down the Scriptures as their Opposites for their correction and in confirmation of mine own Assertions But where in matters of daily practise every Clerk or Attorney can be my witness I have alledged any thing as about suing to the Exigent Tryal of Prisoners Returns of Writs and the like and have not cited any Books or Rolls for proof thereof I did it purposely because I held it needless being constantly and commonly done every Term. Now to draw to an end lest the Gate should prove too big for the Building I do profess that I am not so confidently ignorant as to imagine that all that I have herein written ought to pass for currant without controll having to deal upon such an uncertain subject as the law wherein Sir Edward Coke himself is censured for gross Mistakes but rather that through ignorance and other infirmities I may erre and wander in many things having gone an untrodden way without a Guide or any one to go before me there being not one Book to my knowledge extant of this kinde If what I have done shall but prevail
the whole book p. 3. as the punishment of him that touched a dead body Others concerned the Jews Common-wealth in their own Land as that concerning the year of Jubilee c. (i) And in c. 22. qu. 3. Com. 8. p. 492. The rest are Laws of Common Justice and Equity belonging to the Moral Law as Expositions thereof as the punishment of (k) Exod. 21.12 Murther and (l) Lev. 20.10 Adultery c. with death These and many others which shall be touched in their proper places were given to the Jews as men and did not onely binde the Consciences of the Jews but also of the Gentiles And as the Morall Law is (m) Willet in Exod. c. 21. qu. 1. 2. p. 458. principally grounded upon the (n) Bodin de Rep. l. 1. p. 46. Reason and the Law of God should always take place every where not being shut up within the bounds of Palestine Law of Nature so these Judicial Laws called by Moses Judgements flowed from the same Fountain and necessarily declared the punishments for the breach of the Moral Law which are not therein expressed (o) Mat. 15.4 Mark 7.10 comapred with Exod. 21.17 And this use our Lord Jesus makes of the Judicial Laws Now a Judicial Law may be known to be a Law of Common Equity from other Judicial Laws which did onely binde the Jews in the Land of Canaan (p) Perkins 1 Vol Treatise of Conscience p. 320 321. First if wise men of other Nations as well the Jews judged it to be equal and just by Natural Reason and Conscience Secondly if such Law did serve to confirm any of the Ten Precepts of the Decalogue or to uphold any of the three Estates of Men viz. Family Common-wealth or Church and upon this ground is it that Moses the (q) Coke l. 7. fo 12. Calvins case first Reporter and Writer of Laws in his Exhortation to the Jews requireth them to observe (r) Deut. 4.6 7 8. the Statutes and Judgements which he had taught them from God which Judgements are the Judicial Laws And this he tells them should be their wisdome and understanding in the sight of the Nations saying What Nation hath God so nigh unto them and that hath Statutes and Judgements so righteous And for this cause it is that the Godly Learned (ſ) Bodin Rep. l. 1. p. 104. What apparent reason can there be devised for which we ought to break the Laws of God That it may be done in any case the same Author there concludes most absurd and wise Statesmen have judged That for the Civil Magistrate to alter this Law at his pleasure as shall be thought fit for the time or manner of the Countrey is to make himself to be thought to (t) Willet in Exod. gen Observ qu. 4. p. 3. be wiser then God that onely wife (u) James 4.12 Law-giver who can save and destroy (w) 1 Cor. 1.25 The foolishness of God is wiser then men The Heathen Gentiles had a high esteem of Moses for a wise Law-giver Let one speak for many Longinus of whom Moses is named (x) Longinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pa. Philo Judeus calls Moses A most wise Law-giver Brod. Rep. l. 2. p. 211. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Glorious Law-giver of the Jews And although the Heathen were Idolaters and regarded not the First Table of the Decalogue accompting the Divine Worship of God a (y) Acts 25.19 Broughton in Daniel Conclus Suet. Tranq vita Claud. Caesaris sect 16. Tac. Annal. l. 2. c. 19. pag. 61. Barbarous and Mischievous Superstition yet they received those Judicial Laws which were Laws of Common Equity (z) Jer. 29.22 23. Nebuchadnezzar a heathenish Idolater had learned to punish Adultery with Death And (a) Perkin 1 Vol. Treatise of Conscience p. 320. Suet. Tranq in vita Jul. Caesaris sect 48. in vita August Caesaris sect 34. Anotat b. other wise Law-givers of the Heathen Gentiles as some of the Aegyptians Graecians as Draco Numa and Romans as Julius Caesar Augustus c. made Laws to punish (b) Tit. Liv. l. 39. p. 1032 p. 1034. K. l. 33. p. 804. R. 841. B. Murther and Adultery and Sodomy with death according to those Judicial Laws Exod. 21.12 and Deut. 22.22 Levit. 20.13 It may be observed That all Dominions except Impious Machiavel's have confessed That Humane Prudence hath not power sufficient to foresee good and evil so as to prevent the evil and therefore did all Nations fly to God some by a straight others by a crooked way and hence their (c) Grot. Pol. Maxims Par. 2. c. 8. p. 68 69. Cor. in fine Bodin de Rep. l. 1. p. 58. Tit. Livius l. 3. p. 110. H. Laws were pretended to come from God Upon all which I conclude That all the Laws of England ought to have their Foundation upon the Laws of God and yet this is no Judaizing or departing from the Gospel as some have vainly imagined for that it appears clearly (d) Deut. 6.5 6. Exod. 20.2 Luk. 10 27 28 Matth. 22. 37 38 39. Gal. 3.19 That Moses Law was given upon Gospel grounds and that the New Testament especially the Doctrinal part thereof as well as the Prophet's is a plain (e) Mat. 5.21 27 33 38. James 2.11 Heb. 4 2 6 7. Commentary upon Moses and to this purpose it is not improper to apply that of our Saviour (f) Mat. 6.17 18 I came not to destroy the Law but to fulfil it And as to the matter in hand that of the Apostle Paul (g) 1 Tim. 5.9 10 11. to Timothy puts it out of all doubt the Law namely the Moral and Judicial is made for the lawless and disobedient for the ungodly and for sinners for unholy adnd profane for Murtherers of fathers and Murtherer of mothers for man-slayers for Whoremongers and them that defile themselves with Mankinde for Men-stealers for Lyars for Perjured persons and if there be any other thing that is contrary to sound Doctrine according to the glorious Gospel of the blessed God The (h) The Law and the Gospel agree in substance and end differing in circumstance of time place persons dignity and effects The end of the Judicial Law is to teach Natural Equity Ral. Hist l. 2. c. 4 sect 9 10 11. Law was made for the good to guide them and for the evil to correct and punish them And that these Laws were not punctually put in execution under the Gospel in the Primitive times was not because they were not in force against evil-doers but because the Magistrates were Heathens and received them not as the Laws of God although they observed many of the Judicials as before is said Now the chief end and scope of all Laws ought to be Justice and Righteousness (i) Bodin Rep. l. 6. c. 6. p. 755. Justice is the right distribution or division of
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
Law of the 12 Tables is said to be the end of Law and Equity Tac. 1. Annal. l 3 c. 5. p. 71. Nature holds forth but one Light to men and God gives but one Law to Christians This is the end of Magistracy The Execution of Justice which in their hands whether Supreme or Subordinate is that Vertue which is commonly called Distributive Justice and comprehends in it (c) Equity is the Law of Nature to which all men are bound That is honest which is agreeable to the Equity of Nature Bod. Rep. l. 1. p. â—05 Equity and the same likewise is called Righteousness Now that Justice and Equity are the same thing there is nothing more clear as Aequum Justum are Termini convertibilés so are Justice and Equity (d) Weems M. L. Com. 8. Exerc 8. p. 225 230. Godw. Antiq. Rom. l. 3. sect 4. c. 1. Isa 59.13 14 15 Prov. 17.26 And these are indifferently taken one for the other in the Holy Scriptures Isa 59.14 Justice standeth afar off and Equity cannot enter By these two words is elegantly set forth the Injustice of the Magistrates who had to do in execution of Justice and Judgement as is there expressed The same appears in that place of the Proverbs To punish the just is not good nor to strike Princes for Equity It is an evil and wicked thing to punish men for doing that which is just or to abuse Magistrates for executing Justice Coloss 4.1 Col. 4.1 Masters give unto your Servants that which is just and equal The two words there used are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are indifferently taken one for the other and either of them signifie just or equal Phil. 1.7 Phil. 1.7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montanus translates it Sicut est justum (e) Pasor Lex p. 187. a. 2 Cor. 8.14 Pasor in his Lexicon renders it Prout aequitas postulat 2 Cor. 8.14 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this is Englished That there may be equality The same word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is translated by the (f) Pasor Lex p. 343. a. Learned Aequalitas aequitas justitia and so it 's indifferently used for either Equity or Justce which are the same thing being referred to the act of the Magistrate in distribution of Law or Right (g) Psal 98.9 1 John 3.7 And Almighty God is said to Judge the World with Righteousness and the People with Equity The like appeareth in many other Texts of Scripture And in the same sense these words Justice and Equity are indifferently used by Profane Authors to signifie the same thing and they are onely distinguished thus (h) Franc. Sylvii Com. Orat. Cicero pro Murena Tom. 1. p. 771. Aequitas est ratio Legis Jus vero sententia ipsa so that Equity and Right are not administred as several things (i) The Law without Equity is as the Body without the Soul The least Judges have power to judge and give sentence according to the equity of the cause Bodin Repub. l. 6. c. 6. p 763 764. but the one is in the minde of the Judge the other more perspicuous and both made up the act of Justice And the same Author chargeth it as a fault that Usu saepè venit ut inter se pugnent Juus Aequitas In this sense the Lawyers themselves have used Lex for Jus and Aequitas or the one for the other (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Finch c. 1. f. 1. Consuet Norm tit de Jure fo 125. tit de Justit cod Cust Norm tit Justice pag. 7. B. Arist Eth. l. 5. c. 41. Lex dicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à distribuendo que ceo distribute droit a Chesc ' Because it gives Right to every one The very same words are used in opposition of that Law of the Romans called Lex (l) Eubul Din. Scho. in Orat. Cicer. de Lege Agraria tom 1. p. 710. This Law was for Division of Lands amongst the poor Commons being sound in the possession of private persons Tit. Liv. l. 2. p. 71. c. Agraria where the Commmentator in his Scholia's upon Cicero's Oration against that Law saith Lex suum cuique tribuit and thence reasons and concludes Logically thus Maj. The Law gives to every one Right Min. This Law doth not give to every one Right Concl. Ergo haec Lex Justitia non est Let our Law and Equity be laid to this Rule and see how any man living can defend both A poor man for Example is bounden in a Bond of Twenty pounds conditioned for payment of Ten pounds with Interest which Bond is forfeited because the Money was not paid at the day although it was paid two or three years after and nothing unpaid but Interest The Creditor puts this Bond in Suit it may be either out of meer covetousness or to hook in some other pretended Debt or Duty The Defendant pleads Condition performed or upon the general Issue gives in Evidence the payment of the Principal three years after the day limited in the Condition The Judge in such case must give direction for Law That the Jury must finde for the Plaintiff for that the Defendant (m) Justitia legalis stricte sumpta quatenus opponitur aequitati est iniquitas c. Amesii l. 5. de Conscientâ—â c. 2. p. 269. Finis Legis est Justitia Coed Rhod. l. 13. c. 19. p. 697. must have his Remedy in Equity and accordingly a Verdict is given for the Plaintiff And the Defendant preferreth his Bill into the Chancery and therein alledgeth all that is true and somewhat more to make his Bill hold and if the Plaintiff at Law get Judgement entred before the Bill come in which may be had the first week in the next Term after the Tryal there is an end of the Suit the poor man hath had Justice Summum Jus that is the extremity of the Law which is Summa Injuria and his Adversary hath Execution against him for the Twenty pounds Penalty and Eight pounds for Costs which is given in nature of damages This he Defendant must pay or lie in Goal and the Law as it is Justice in conceit cannot relieve him Well the poor man hath it may be got a Reprive upon preferring his Bill the Plaintiff at Law is either in Contempt or prayes a Dedimus Potestatem to answer in the Countrey or it may be in his Answer confesseth part of the Money paid or else that the Bond is ancient Hereupon the Complaint in Chancery obtaineth an Injunction and in short goes to Commission and brings the Cause to Hearing and hath a Decree That the Plaintiff paying the Interest which may be some thirty shillings and Costs which may be five Marks besides the aforesaid Eight pounds the Defendant who was Plaintiff at Law shall acknowledge satisfaction of the Judgement and deliver up the Bond. The Decree is inrolled and the Defendant served with a
of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in onâ— why should it not be wrong in the oâ—her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery
have weight laid upon him as much as he can bear and shall have one day three bits of Bread the next day Gutter-water given to him and so every day until he dye with pain The practice is somewhat altered in the execution for the Condemned is Pressed to death presently and every one that will is his Executioner This is a wicked Law and contains three Offences 1. The Punishment is barbarous for that there is no Offence in this world against men but a man's life taken away is a sufficient satisfaction without any such lingring death 2. The party being Guilty is not bounden to accuse himself upon his Tryal much less ought he to be enforced to tell a Lye and say he is Not guilty 3. The great Offence is That he is Condemned without Proof 2 Cor. 13 1. Heb. 10.28 Deut. 17.6 Numb 35.30 Joh. 7.51 To this may be added Setting men upon the Rack (m) In sime of Popery this was frequent and hath been since used for discovery of Treason Examining them by Torture a Devillish Invention not long since practised and warranted by our Law 10. The Laws concerning Parishes Parsons Vicars Curates Deacons Churchwardens Advowsons Presentations to Churches Jure Patronatus Non Admisit Quare Impedit Quare Incumbravit Darrein Presentment Restitutione Temporalium Conge Desleir Admittances Institutions Inductions Ne Admittas Vi Laica Removenda Excom Deliberando cautione Admittenda Dedimus Potestatem ad Elegendum Abbatum Lincences to Preach Suspensions Ecclesiastical Censures in Ecclesiastical Courts These all are unlawful as being the Inventions of men to thrust out the Officers and Order which Christ hath left in his Church (n) Godw. Ant. Rom. l. 3. c. 2. p. 135. c. 3. p. 142 143. Fuller Holy State l. 2. c. 12. p. 87. Ex Conc. Toled 589. can 9. An. Coke Rep. l. 5. Cawdreyes Case c. 3. p. 48 49. c. 4. p. 72 73. c. 7. p. 169. thence to p. 356. The Parishes are the Hearch which keep in all these Superstitions and they were taken up by the Church of Rome from the Heathen Romans as likewise were their Pope or Fontifex Maximus their Orders of Priests Deductions Consecrations and many other Paganish and Idolatrous Superstitions And from Rome were hither sent and continued here all along by the Popes Power until the Reign of King Hen. 8. when he took upon him the Popes Office 25 H. 8. c. 20. Wingate Law c. 38. p. 62. n. 20 21 28. to be the pretended Head of his pretended Church of England Lev. 20 23. Ezek. 11.12 Hos 14.8 2 Cor. 6.16 Deut. 12.3 Cock English Law p. 16 22. 11. (o) Fitz. N. B. 269. b. Coke l. 5. fo 25. 2 H. 4. c. 5 15. 2 H. 5. c. 7. The Law for Tryal and Conviction of Hereticks delivering them to the Secular Power to be burned the Writ Haeretico Comburendo put in execution against the faithful Servants of God called by a Nick-name Lollards about the time of Rich. 2. and Hen. 5. and afterwards whom the Lord Chief Justice Coke concludes to be Hereticks and deriving their Name from Lolium as the Papists did rehearseth that impertinent Verse of Virgil Infoelix Lolium steriles dominantur avenae They were the followers of (p) Rast Entr. Haeres 1. White Way true Church sect 50. p. 393. Fox Acts and Mon. Vol. 1. p. 608 657 659 846. John Wickliff whose Opinions we may finde in Fox his Acts and Monuments and Symson his Church-History These and those afterwards by vertue of the Statute of the Six Articles were put to death onely for matters of Faith and Opinion without any disturbance to the State (q) Dalt offic Vice Juram Vice fo 4. All High-Sheriffs were Sworn even to the time of the beginning of these late Wars to extirpate these Servants of God and the Anabaptists which onely (r) Swinb Treat Willes par 2. sect 14. par 5. sec 2. deny Infant-Bapitism are reckoned amongst Hereticks By this we may judge what our Law-givers were and what was a principal end of the Law viz. The destroying of the true Faith and the rooting out of the sincere Professors of the Gospel which is a principal Mark of Antichrists Power These are Impious Laws and the execution most abominable Rev. 16.6 17.6 18.24 12.13 Gen. 4.10 Luke 11.50 51. Gal. 4.29 These Customs taken from the Romans Tac. Annal. l. 12. c. 11. p. 171. 12. (s) Litt. l. 2. tit Villenage sect 172 Coke Com. Litt. l. 2. sect 177. sect 189. Wingate Law c. 9. p. 17. n. 3. n. 5. Poulton Pax Reg. Regni tit Appeal fo 159. a b. Littleton tit Villenage l. 2. sect 190. The Laws and Customes concerning Villains and Villainage mentioned by Littleton and others observed by Coke in his Comment upon Littleton and plentifully discoursed of in the Old Books are Heathenish and wicked Customes That the Villain is as the Lords Goods and at the Lords absolute Disposal and so are his Wife and Children (t) Those whom we call Villains Niess thâ— Romans called Adscriprivos Glebae they plowed laboured and might be sold as the Romans Slaves That the Lord may enter upon him and take his Lands Tenements Rents and Chiâ—dren And although he that is pretended to be a Villain bring his Wriâ— to prove himself free the Lord may seise him as his Vilâ—ain (u) Appius Claudâ—us sâ—ised Virginia upon this pretence Tit. Liv. l. 3. p. 117. b. Pendente Lite and if the Lord rob the Villain he shall have no Appeaâ— against him And it hat been said That if the Lord ravish his Nief that is his She-Villain she could at Common Law have no Appeal of Rape against him but Littleton saith the contrary (w) If the Loâ—d marry his Nief or she villain and die seised of Land in Fee this wife shall not be endowed because she was his Villain Jo Perk. tit Dower sect 314. These Laws above-mentioned are too bad for Turks much more to be abhorred and rejected of Christians as being against all those Laws of God which condemn unmercifulness and injustice towards inferiours Exod. 1.13 14. Lev. 25.42 43 46 53. Eph. 6.9 Col. 4.1 Prov. 12.10 Luke 6.36 1 Kin. 9.22 There was nothing more regarded in the foundation of Christian Common-wealths then the discharging of Slaves and Villains and such Common-wealths were free from Slaves ever since the year 1250 as a (x) Bod. Rep. l. 1. c. 5. p. 39 40. p. 45. Those Slaves are at large described as above is said Cowel Instit lib. 1. Ti. 3. sect 3 4 5. Learned Lawyer hath observed who taxeth England and Scotland for continuing such Customs and Services upon their Tenants And likewise saith the Law of the Twelve Tables still in force in West-Indies and Africk as too rigorous towards Debtors and Servants (y) Rast Entr. tit Appeal fo 51. b. 27 H. 8. c. 24. Poul
read for that properly appertains to the Turk And this Prophesie can be no other way fulfilled but by selling the souls and bodies of men in this manner Rev. 18.13 Mal. 3.11 2 Cor. 2. last ver Paraeus upon Rev. 14.16 17. 28. The Law concerning payment of (m) 21 H. 8. c. 6 13 Ed. 1. Stat. dict Circumspecte agatis New Terms Law verb. Mortuary Cowels Interp. verb. Mortuary Mortuaries that is the best good as a Heiriot is to the Lord or Money as the Custome hath been or rather a certain Rate setled by the Statute of King Hen. 8. It was originally a thing given to God to purge the guilt of the party deceased which he contracted by omission or non-payment of Tythes but hath been alwayes claimed and received by the Priests in Time of Popery and since by their Successors the Parsons and Vicars The Law is Superstitious and the payment unlawful being a Conformity to Idolaters and a derogation from the All-sufficient Merit of Christs Sufferings 1 Cor. 6.14 Levit. 20.23 Isa 1.12 Ezek. 43.8 29. The Laws concerning payment of Tythes is taken (n) Heb. 7. 5 12. Furius Camillus upon the taking of Vij gave the Tenth of the spoil to Apollo at Delphos Tit. Liv. l. 5. from the Levitical Service where the payment was a meer Ceremony and imployed for the Maintenance of that Levitical Service and was by the Law of God disposed of to the Levites the Priests and the Poor c. and afterwards this payment of Tythes was taken up by the Heathen (o) Rous Attic. Ant. l. 2. c. 9. p. 59 96. Godw. Antiq. Rom. l. 3. sect 4. c. 11. both Greeks and Romans who paid their Tythes in a manner as the Jews did The Greeks first used it and then (p) Godw. Ant. Jud. M. A. l. 6. c. 3. p. 250 251 253. Fox Act. Mon. Vol. 1. p 336. Col. 1. the Romans who took many of their Laws and Customes from the Graecians as the Law of the Twelve Tables and other Laws of Athens also received this Custome Then when the State of Rome under the Papacy was advanced at the breaking of the Roman Empire were those things received and by little and little a Body of Religion falsly so called was patched up together consisting partly of Jewish and partly of Heathenish Customes imposed upon England as well as other Countreys as may be shewed at large It onely sufficeth for the matter in hand to know That these Tythes were Levitical and Ceremonial (q) Pareaus in Apoc. c. 13 16. Weemse Cer. Law Com. 1. Exercit. 1. p. 3. Com. 2. Exercit. 16. p. Bellarm. Contr. lib. de Cler. p. 316 317 318. and so are reckoned by the Learned and are abolished with the Temple and were not received into the Christian Churches in (r) The Money called Smokepeny was granted to the Pope by Ine King of England An. 740. and augmented by Etelpe which they called Peter-pence Bodin Repub. l. 1. p. 116. some places until (s) Fox Acts Mon. Vol. 1. p. 336. Col. 1. Ex Chrysost Augustino Bellar. Contr. l. 8. de Cler. p. 315. many Hundred years after Christ and the Ministers may as well fall to Circumcising and Sacrificing as to Demand Tythes as due by any Divine Law But it may very well be conceived That the Devil endeavors to keep up these Tythes on purpose to hinder the efficacious progress of the Gospel which seldome doth any good where there is jangling and wrangling about payment of Tythes as there is commonly in every Parish where they are held to be due Jure Divino Levit. 29.30 32. Deut. 18.4 Numb 18.24 26. Nehem. 10.37 38. Cock Engl. Law p. 22. The Priesthood which received Tythes is changed then must there of necessity be a change of the Law Heb. 7.5 12. 30. The like may be said of the Laws concerning payment of First-fruits and Tenths whether those which were paid to the King or such as were paid to the Pope being all one The First-fruits are one years Profits the Tenths are a Tythe anciently paid to the (t) Cowel Int. verb. Tenths Pope until in the time of King Edw. 2. Pope Urban granted them to that King to have his assistance against the French The Pope received them in Imitation of the High-Priest as Head of the Church and Chief of the Clergie and sometimes the Kings of England had them after Edw. 2. and sometimes the Pope received them (u) 26 H. 8. c. 3. 1 Eliz. cap. 4. These payments ceased to be paid to the Pope when King H. 8. revolted from the Pope Ann. 1534. until then England was the Popes Vassal Bod. Repub. l. p. 116. But King Hen. 8. when he Cashiered the Pope declared Himself Supreme Head of the Church of England And from that time he received thele First-fruits and Tenths and Erected a Court called The Court of First-fruits being now part of the Exchequer where the same were received and there they are paid until this day (w) Rous Attic. Ant. lib. 2. cap. 9. These are likewise in the same condition with Tythes and were paid towards the upholding of the Levitical Service and therefore with the Temple are Abolished Exod. 22.29 Deut. 18.4 Lev. 2.12 27.30 32. Exod. 23.19 Heb. 7.12 31. The Law concerning (x) Wing Law c 19. p. 30. 1â— 27. Deodands which is by Law declared to be something given or as it were forfeited to God for (y) Coke comp Copyholder sect 27. p. 9. Stamf. Pl. Cor. l. 1. c. 2. Cowel Interp. verb Deodand Si equus c. hominem occiderit quasi sacrum fit nisi ad Regem spectet nescio an veteri consuetudine comburi soleat Cowel Instit l. 4. Tit. 8. s 1. pacification of his wrath in case of misadventure where any Christian Soul cometh to a violent end without the fault of any reasonable Creature These are the words of the Book It is that which moveth to the death of any man is a Deodand Quicquid movet ad mortem hominis Deodandum est This is a Superstitious Imitation of the Papists and derogatory to the All-sufficient Satisfaction of Christ Heb. 9.22 Psal 49.7 Mic. 6.7 32. That a man pretending Right to a house next to him watcheth an opportunity Stat. 5 R. 2. c. and finding no one in the house gets in peaceably mures up the door and layes it to his own house and so holds it without force This is said by some to be no forcible Entry against any Law and I have heard it so delivered upon the Bench (z) Poult Pax Reg. Regni tit Forcible Entry fo 39. neither can the party put out have restitution of possession or any way get in again but by an Action at Law although he lie out of doors in the mean while This is a Law whereby Hundreds of poor men may be made destitute of houses The same is said of Tenants in Common or Joynt-Tenants
(k) Viscount Say his speech in Parliament concerning form of Prayer Statesman once said Because some men who want Legs must use Crutches therefore all men must use Crutches although they have Legs Isa 1.12 Col. 3.22 23. Exo. 40.23 25 27 29. It 's said That the Version of the Psalms in Meeter lately set out by _____ Barton is endeavored to be enforced by a Law upon the Congregations This will make them unlawful to be used in the Worship of God being a Humane Ordinance and a Will-worship 39. If a man of weak capacity and yet not mad nor out of his wits being abused by some subtile or cunning fellow who taking advantage of some distempered passion or necessity of such weak man or by affirming things that are false be drawn to agree under his Hand and Seal to give away all he hath to be kept during his life as I know several persons did of late and others for some small inconsiderable consideration to grant away their Estates of good value as I could instance in many particulars (l) This was at Coton in Warwickshire which was proved before the Justice one of which sold and conveyed an Estate of Inheritance in a Tenement worth 40 l. for two shillings and six pence and a few fair words (m) Case of Hoo and Hoo in Chancery Another being troubled in Conscience for sin and in deep despair was perswaded by his Brother to trust him with his Estate worth about 700 l. lest the Owner should make away himself and so forfeit it which he did pass away to his Brother without any Declaration or Witness of the Trust These people coming to themselves upon better consideration finding themselves over-wrought desire to undo what they have done but there is no remedy (n) Finc◠〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 3. f. 8. A man shall not be admitted to stultifie himself And the Answer of the Judges in this case hath been They sit not to remedy foolish Bargains but if a man will give his Bond to pay money for Egge-shels or sell all he hath for nothing it 's nothing to them the Law affords no help But Judges must know That their Office is chiefly to ease the oppressed and the contrary practise above-mentioned is against the Royal Law of God the onely Law-giver 1 Thess 4.6 Weemse M.L. Com. 8. Exercit. 4. p. 202 203. Ezek. 45.20 Rom. 16.17 18. Cock Essay p. 177. 40. (o) Coke Instit 2 par pag. 617. Cust Norm de Testib f. 142. a. Doct. Stud. c. 6. fo 11. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 3. fo 8. Wingate Law c. 40. p. 66. n. 19 20. Excommunication such as was pronounced by the Bishop Chancellor or Official cum Soc ' is at Common Law a sufficient matter to plead in Abatement or in Bar of any Action in Disability of a mans person This is a Popish and Superstitious Law the Scots have such a kind of Curb upon a man if he disobey the Presbytery he shall have no Proceedings in Suits But this is contrary to that Law which requires Justice to be done alike to all men Exod. 23.3 6. Jer. 5.28 Prov. 20.10 Sir (p) Coke Instit 2 par pag. 617. Cust Norm de Testib f. 142. a. Doct. Stud. c. 6. fo 11. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 3. fo 8. Wingate Law c. 40. p. 66. n. 19 20. Edw. Coke would have this Popish Curse used to enforce men to Obedience as in Times of Popery 41. That Law prohibiting Conventicles or Unlawful (q) 35 El. c. 1. Doct. Stud. c. 6. f. 11. a b. Poul Pax Reg. Regni Cowel Instit Index Exp. lit A. Assemblata illicita Assemblies as it hath been expounded in this last Age is a wicked Law It seems it was intended chiefly against the Papists and the Common Law prohibites men to assemble together to pluck down a House or the Head of a Pool or to claim Common by cutting down the Fences or such-like But the edge of this Law was turned against the People of God who if they had met together in a private house to seek God by Prayer or to hear a Non-conformist Preach or Repeat a Sermon This was a (r) The Romanes called the Night-meetings of the Bacchanale which from Superstition grew to all manner of filthiness by the Name of Conventicles more properly then the term hath been used in this last Age Tit. Liv. l. 39. p. 1032. p. 1034. k. Conventicle or Unlawful Assembly for this they were hurried to Prison Fined Excommunicated and enjoyned Popish Penance and sometimes starved in Prison And the wicked Judges and Justices of the Peace were but the Bishops Beadles receiving the Canons which they made for Law and it may be so again with the People of God though thanks be to God it be not to be feared at the present if wicked men shall hereafter get Power and Authority into their hands Therefore such Laws as this ought either to be abrogated or amended and expounded Acts 18.29 2.46 5.42 Acts 20.7 8 9. Joh. 20.19 42. The like may be said of that Law whereupon John Peâ—ry was Indicted Arraigned Condemned and put to Death What Law it was no man living can tell it 's said in the Book That the Indictments are grounded upon the Statute of 1 Eliz. Chap. 2. (s) Coke Entr. tit Indictment f. 352 353. 1 Eliz. c. 2. And the Title of the first is An Indictment for Felony in publishing Scandalous Writings against the Orders of the Church But they are no more like the Statute then an Egge is like an Oyster his Offence was That he dealt too plainly with the Queen in a Book which he had written wherein he blamed her That her Subjects were not admitted to serve God according to the Dictates of their Consciences informed by the Word of God and that they were inthralled by Humane Presumptions and tyrannized over by the Bishops The honest man was a Non-conformist for which that Hierarchy became his Enemies and procured these Indictments and never rested till they had his Blood and the Judges were their Beadles and Executioners (t) Rous Attic. Ant. l. 3. c. 3. p. 120. He had no more Justice then Socrates had when the Judges at Athens condemned him to be poysoned Because that he maintained There is but one God against their Polytheism They would not hear Plato argue on his behalf Their blood as likewise the blood of many others cries to Heaven for Vengeance In the mean while it is to be considered That if Sir Edw. Coke who Reports the Indictments were alive or any like him come in place such things would be judged Offences at Common Law for the Indictments charge Penry That he published his Book with an intent to raise Sedition and Rebellion c. And upon that point any faithful Preacher who speaks but half as much as Jeremy or Nathan did may not
The Romans punished words very slightly Tacit. Annal lib. 1. cap. 15. pag. 29. And capital Punishment for words is charged as a fault Tacit. Annal. lib. 2. cap. 12. pag. 50. as he that said merrily He would make his Son Heir of the Crown meaning his House which had that Sign The like rash words used by one Burdet a great Gentleman of Warwickshire were said to be the cause of his Death This Severity is against Gods Word 66. The greatness of the body and bulk of the Law in force in the next place is a great Grievance to the Common-wealth p Grotius Pol. Max. par 1. c. p. 34 35. The Laws ought to be short easie and few This I touched in the first Chapter where is recited wherein Sir Ed Coke saith the Text of the Common Law is contained whereunto I refer the Reader desiring it may be further considered what an uncertain thing it is to know the extent thereof I set it down positively That no man by reading those Statutes and Books which Sir Edward Coke speaks of as containing the Text of the Law can tell what the Law is in an hundred particulars wherein there have been Judgements and Opinions given for Law of which hardly any thing can be found in those old Statutes and Books That this is so there needs no other proof but the Statutes made within the last 120 years and Sir Edward Coke's own Râ—ports Insomuch that it 's certainly believed That a man may know more of the Law by reading the Statutes and Reports of this last Age then by reading all the old Books which comprehend many Volumes 67. (q) The more Laws there be the more suits there are about the Interpretation thereof France was said to have more Laws and Customes then all the Neighbor-Nations and so also more Suits then all Europe besides which grew through the heaps of written Laws Bodin Rep. l 6. c. 6. p. 766. See the Book called Consuerud Normand The whole Law I mean the Statutes Old Books Entries Registers and Year-books cannot be read over under three or four years with any deliberation the Books being so many that they at an ordinary rate come to above twenty pounds price whereas the Text of the Laws of Normandy are contained in about forty leaves of Paper in folio The Laws of Athens were no more then might be read over in one day and every year upon the (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rous Att. Ant. l 3. c. 1. p. 101. Eleventh day of their Moneth called Hecatombaeon which is July their Laws were read over in the publick Assembly which being done Proclamation was made and then it was demanded If those were Laws enough for the Senate and the Common-wealth and no new Law was easily received by the Senate or the People (s) Amongst the Romans ten men were appointed to Collect the best out of their own and the Laws of other Countries and out of them they composed the 12 Tables The Historian condemns the multitude of Laws and chargeth it as a corruption that Laws upon Laws were multiplied and saith That persons were chosen to salve the intricate Quirks of the Laws Tac. Annal. l. 3. c. 5. p. 71 72. The Romans Laws were likewise but few (t) Tit. Liv. l. 3. p. 108. g. 109. a. 112. h. Raleigh Hist l. 2. c. 4. sect 15. the chief was the Law of the Twelve Tables which they had from Greece and their proceedings in promulgation of Laws were much like theirs of Athens And to mention no more the (u) Willet Hex in Exo. whole Body of the Jews Laws both Moral and Judicial which onely concerned Distributive Justice are comprehended in three Chapters and eight Verses of the Book of Exodus except a very few dispersed in the three last Books of Moses which were added upon special occasions (w) Cock Essay p. 111 134 136 These Laws the Jews knew most exactly but we know not our Laws as one hath lately written by reason they are not set down in a Body nor determined plainly but left doubtfull and inshrined in the breasts of the Judges and few but they may take upon them to expound them This I account a great Oppression Exod. 20. 21. 22. 23. to the 9 verse The Laws of Geneva are contained in about five sheets of Paper See the Book printed in English 68. The (x) Magna Charta c. 1. Coke Instit par 2. in Westm 2 c. 33. p. 431 432. See the Grants to the Templers Cestercians and Hospitallers Concil Vienna dissolved the Templers Anno 1311 and their Lands given to the Hospitallers 17 Ed. 2. Coke ut supra The Clergie as they are called still claim to be free from payment of Constables Levies and some of the Judges and Justices allow it At W. Sess Mich. 1655. great distinction between the Clergie and the Layty as they are called in Conformity to the Popes Laws and Constitutions is a thing superstition oppressiâ—e to the Nation and tends to the advancement of the Roman Power meerly Antichristian Hence the Archbishops and Bishops being set above the Dukes Earls Baron c. with their Attendants inferiour Priests and Deacons and other Ecclesiasâ—ical Orders made as it were another Common-wealth free from Secular Services The Priviledges granted to the four great Orders of Monks in England are largely discoursed of and their particular Charters and Immunities rehearsed in the new book called Monasticon Anglicanum which is to be sent to Rome by J. A. and cannot but be there highly esteemed It is a famous Monument of Idolatry Taxes and Payments and served chiefly to maintain a Faction against the Common-wealth of the Layty by upholding the State of Antichrist against the Temporal Power Now under the Gospel all men are in one condition and the Lords Lot Clergie are his People in every calling without respect of persons Isa 61.6 1 Pet. 2.9 Rev. 5.10 William Laud late Cardinal of Canterbury had a design on foot to make a perfect distinction between these two Common-wealths and to the better strengthning of his Party he had an improbable Project to erect again the Old Monasteries at least such as there could be any colourable pretence to seize into the Kings hands And several persons whom I could name were employed to finde out and report the Foundations and Priviledges of these Monasteries But blessed be God who hath prevented these Superstitions The Law had need to be changed in this point of Distinction CHAP. XII That the Practick part of the Law as it 's now in use is in many particulars sinful and repugnant to the Law of God and an oppression to the people 1. COmmon Recoveries for assurance of Lands being truely called (a) Doct. Stud. c. 32. dial 1. fol. 56. a. Cowel Inter. verb. Recovery Cowel Instit Index Expositor Litera R. Fined recoveries are nothing else but a pack of lyes And a colloquie at the Bar and
go to God and pray that he may win Now whatsoever is not of faith is sin therefore the cons quence is clear that such Gaming for money is unlawfull 2. Secondly besides every Lawfull means of getting may be made a trade or profession to live by but no man will be so impudent as to say that Gaming may be made a trade to live by all that can be said is that it is but recreation and no man living can justifie to spend all his life in play recreation for God hath ordained that men should have Lawfull callings and continue in them and therein exercise themselves with pains and diligence that every man should eat his bread in the sweat of his face which by a Metonymis of the Adjunct or rather of the effect signifieth that he should labour in some Lawfull calling Adam in Paradise was not exempted from this and upon this ground the lives of all Vagrants and such as follow no Lawfull calling are condemned 3. And further God never ordained Gaming to be a means to transfer Estates from one to another but hath ordained buying selling giving exchanging earning by labour merchandize searching into the secrets of nature for improving of the Creatures and such like to and for that use and end to the upholding of humane society and commerce that men in a Common-wealth might be helpfull one to another But where men either get or loose by such unwarrantable courses which God never ordained they may expect the curse of God and not his blessing 4. Lastly there are as many mischiefs and abominations follow this course of Gaming and the issue is commonly as accursed as of any wickednesse which men commit what cursing swearing quarreling fighting cheating thieving and murders are occasioned by this practice especially when men loose their monies The conclusion and Catastrophe for the most part to all great Gamesters is beggery the Goal or the Gallowes their Wives Children and Families ruined and destroyed by this means and yet no Law against it being used in private houses And if one of a thousand get an Estate by this course of life being a kinde of theft I will not say as it 's of affirmd King James said in this case he that wins wins Hell and he that loseth loseth Heaven but this I 'le say that usually that which is gotten by play is but Aurum Tholosanum such Gold as corrupts and eats out all the rest of a mans Estate and procureth that curse which is spoken of in the Prophesie of Zacharie which utterly destroyeth consumeth mens houses with all their increase and without repentance and restitution where there is ability the Estates of mens Souls are thereby endangered There ought to be a provision made against this Canker of the Common-wealth by some just and severe Law Gen. 3.19 2 Thes 3.11 Boltons Direct pag. 155. Balington upon the 8th Com. Perkins on the 8th Com. 1. vol. pag. 62. 63. By (n) Laws Geneva pag. 30. the Laws of Geneva no man may play at any Game for Gold Silver Money or money-worth upon pain of three dayes imprisonment 7. Next unto Gaming as things unlawfull before God and yet not condemned by our Law are Bear-bating Bull-bating Cock-fighting Hors-racing and (o) Bolton Direct pag. 154 155 156. the like cruel abuses of the Creatures the three first being nothing else but meer jesting and sporting in sin and the cursed effect of sin viz. the Antipathy of the Creatures which grew through the fall of man and at the best such as use and delight in these cruel sports as they are termed shew themselves to be (p) Pro. 12.10 unrighteous men of hard hearts bloudy and cruel mindes having no mercy nor sence of sin or the effects or evils which attend and follow this unlawfull abuse of the Creatures (q) Exo. 23.19 Deut. 14.21 and 22.6 7. Math. 5.7 Luke 6.36 The Jews had many Laws prohibiting cruelty to the Creatures and instructing them in mercy and compassion towards them (r) Rous At. Ante. l. 3. c. pag. 129. Quintilian reports that the Athenians condemned a Boy to death for putting out the eyes of Quailes because it was a sign of a cruel minde and that he was like to prove a pernicious instrument to this may be added the Horselike racing laqueing of boyes and men after their Masters being too great an oppression to be used towards our fellow creatures There ought to be a Law to restrain such Barbarous cruelty and to preserve the poor innocent sensitive Creatures which Almighty God hath made and given for better use and likewise to guard and save rationall men from such slavery (Å¿) 2 Sam. 15.1 Absolon is said to have 50 men to run before him as a praeludium to his Rebellion (t) 1 Kings 1.5 and in like manner Adoniah Princes and great men may and must have their attendance both for necessity and state but it 's against the Law of God and reason to enforce men to run as fast as horses 8. The like may be said of all that Rabble or scum of the people who besides the Gentry which for the most part are the occasion of such meetings as fit attendants upon those wicked sports are (u) This was used in Rome as the Historian saith so appeasing the heavenly Ire in time of Plague which the same Historian bâ—ing a Heathen calls superstition Hence we have our mad sports much like the Romans Bacchanalia Tit. Livius l. 7. p. 250. K. Tac. 1. Annal. l. 1. cap. 16. pag. 31. Seneca declaims against these Cael. Rhod l. 8. c 7. pag. 289. A Senatour might not enter into a Play-house Tit. Liv. l. 9. pag. 335. E. The wandring Quakers may be reckoned among the number of idle persons and are also like the Bacchanales at Rome whose Religion was to hold lawfull all manner of filthinesse yet they had a Chappel and Priests They used to shake and wagg their bodies as if they were distracted and then to divine and pretend to fore tell things to come as the Quakers do Tit. Liv. lib. 30. pag. 10â—1 A. they ought to be restained Stage-players Jesters a Company of these idle fellows being fled from Rome to Tibur the Tiburtines finding them all drunk lodged them in several Carts as in Beds and so conveyed them to Rome again before they knew where they were a fair riddance of them Fidlers Rymers Bag-pipers Juglers Tumblers Vaunters Dancers upon the Rope Bear-wards Ape-carriers Puppet-players Ballad-singers and such like idle fellows who live in no (x) Aristotle Seneca and Solon disallowed of Staâ—-playes lawfull calling these unlesse they be taken wandring abroad out of their Parishes as Rogues are not punishable there is no Law against them simply for living by such unlawfull means without any profitable labour of being of any use in the Common-wealth These serve chiefly as experience shewed in the last vvars to do what mischief they can in the Common-wealth
as occasion is offered And although these Miscreants do wander abroad and so justly incurre the danger of the Laws made against Rogues and Vagrants yet their sports are so sutable to the lusts of men that hardly any man will or dare apprehend them There ought to be a Law to inforce these to work and labour and leave their idle courses Hosea 7.3 Eph. 4.28 1 Thes 3.10 2 Thes 3.9 At Geneva there is a Law that idle persons losing their time shall be punished and so enforced to work and follow some Lawfull calling Laws Geneva pag. 30.37 (y) Bodinus thus censures Stage-players and Comoedians Bodin Republ. l. 6. cap. 1. pag. 645. Stage-players were prohibited by the civilized Heathen and the Comoedians stage is concluded by the vvisest Politicians to be the Apprentiship of all impudence loosenesse vvhoredom cozenage deceit and wickednesse 9. In the next place as adjuncts also of these meetings I set down as unlawfull and against which we have no humane Law singing of baudy songs Ribaldry and rotten Communication which tend to the corrupting of good manners and ought to be obviated by some wholesom Law Eph. 4.29 1. Cor. 15. All this filthinesse is prohibited by Law at Geneva upon pain of three dayes imprisonment with bread and water Laws Geneva pag. 32. 36 37. Geneva hath a Law against this prophaness Laws Genes p. 32. 36 37. 10. The like may be said of railing mocking reviling opprobrious language taunting and such like abuses The late ordinance for prohibiting of Duells and Provocations there unto doth extend onely to provoking words and carriage tending to Challenges King James in his book of Libertie prefers the Papists before the Puritans This is Charged as a great wickednesse in the Heathen That when they abused the Christians in the Primitive times upon complaint to the Emperour he answered them with this scoffe you are to suffer injuries patiently for so they are commanded by your God Perk. on the 3. Com. vol. 1 pag. 44. col 2. Ex Tripart Hist cap. 39. l. 6. against which there is no Law except it be for womens scoulding and where the words are actionable although there abuses are prohibited by Laws in other Countreys Laws Geneva pag. 32. 37. And the same are condemned by the Law of God 1 Cor. 6.10 2 Sam. 16.7 and 6.20 Isa 58.22 Gen. 37.19 Neh. 4.3 In all Nations generally they that are most zealous imminent in the profession of that Religion used and professed amongst them are alwayes most honoured and esteemed And yet in England heretofore nothing hath been more in disgrace than to be accounted a Zealot or forward in Religion 11. No more is there any Law against prophane jesting with the holy Scriptures unlesse it be in Playes and Interludes nor for speaking contemptuously or vilifying the same holy word of God or the Divine Authority thereof this ought the more to be cared for for in regard the Devil hath sent abroad so many in this age to cast aspertions and contempt upon the word of God contained in the holy Scriptures which God hath magnified above all his Name or whatsoever he is made known by Exod. 20.7 Deut. 5.11 Psal 111.9 Isa 66.2 12. There is no competent Law against Men-stealers They were amongst the Romans such as like the Banditi in Naples the Tories in Ireland and the Mosse-Troopers in the North snapt'd up Travellers such as they could catch they either kept them to work as slaves or made them away These were severely punished who were found guilty of such vilanies as Tit. Liv. Suetonius both report which are now more common in England than in former times when the Judges were undiscovered these wretched Creatures are called spirits and are either men or women well known to such as entertain them or set them on work the men intice and steal away Men or Boys upon pretence of profitable imployment or service under men of quality the Women steal away Children with Apples and such like toyes or bigger vvenches or Boyes upon other false pretences and when they have gotten them into houses near the water-side they keep them there untill they can have opportunity to ship them away to the Indies against their wills This is an horrible offence against God and such Thieves should be punished with death and their confederates by some severe punishment made examples Exod. 21.16 Deut. 24.7 1 Cor. 6.6 The Laws of New England are collâ—cted into a body and endeavoured to be made agreable to the Jews Law morall and juditiall Lechford News pag. 26 27. The Romans Collected thâ—ir Laws into a body which they accounted the end of Law and equitie Tac. Annal. cap. 5. pag. 71. 13. That there is not a body of Law extant declaring in short what the Law is and how men should obey it is to be accounted a great defect and ought to be supplied with some Treatise to be agreed upon by the Legislative power comprehending the heads to which all cases are to be referred which are to be agreeble to Scripture rules Sr. Henry Finch hath writ a book wherein he intended such a thing which is lately abridged by E. W. Esq and may be perused This (z) K. Edward the Confessor out of an indigested Raphodii of the Laws of the Romans English Danes selected the best compiled them into a compendious systeme Hawk right of Domi. l. 2. pag. 67. Ex Cook 3. Rep. Ep. ad Lect. course hath been held I suppose by all States and Nations which are civilized most precisely by the Grecians and * The Godly Emperour Theodosius the second Collected the Laws of Kings and Princes into a short volume hee was invited by Justiman whose book is famous amongst the Civilians and is much in conformitie with Moses Juditials sympson Chu Histor. Life Theo. 2. pag. 81. See the Laws of Geneva printed Rawleighs Hist l. 2. cap. 4. §. 15. Bodin Republ. l. 6. c. 6. pag. 766. Romans and likewise the Custome of Normandy seems to be the body of their Law It 's said to be agreeable to the Laws of England but comprehends as ours do the whole body of Popery in a manner and many other sinfull Customes The whole body of the Jews Political and Moral Laws are all recorded in the holy Scriptures as before is said are comprehended in a very little Compasse The Laws of Geneva may be read over in two or three hours The want of such a body of Law in France makes their proceedings over-tedious and uncertain and is the cause of many Suits following partly the course of the Civil Law and partly the Laws of Normandy and other Customes Insomuch that John Bodin that famous Lawyer and States man complained that there were more Suites in France than in all Europe besides 14. In the next place I presume to set it down as a most material want and sinfull defect in the Law that (*) Cooke Essa pag. 172.
be put to their allowance If this course were taken it would secure inheritances far better than those unjust Intails upon the Heirs Male and would prevent abundance of sinfull expence and other transgression and therefore I think it an offence that there is no Law in this kind 1 Tim. 5.8 Isa 49.23 20. The Law hath not put any restraint upon such as keep Riotous houses and account it a point of honour and great house keeping which they think tends much to their credit to spend their vvine and Beer that their servants and attendants may make men drunk who come to their houses and that is accounted free and bountifull entertainment In the mean while this is a great offence against God and ought to be prevented by some good Law Isa 5.11 22. 2 Sam. 11.13 1 Kings 16.9 Luke 21.34 Prov. 23.19 21 There is no (m) Cowel Inst Jur. Angl. l. 4. tit ult sect 53. p. 346. Adulteri maxima pro parte poenitentia Canonica purgatur considerable Law in force against Adultery or Fornication except the Act of the 10. of May Anno 1650. The former Statutes provided that the Adulterer or Fornicator should keep the Bastard and nothing else considerable imposed upon him The last Act is so penned that few or none will ever be convicted upon it Insomuch that it hath been thought that that Statute was made onely or chiefly for guarding of womens credits that lewd persons might not dare to boast of their own filthinesse The Romans punished Adultery with death and so they did Sodomie and murder Tit. Liv. l. 39. p 1032. p. 1. 34. K. And it s cited out of Plato l. 9. de legibus that the Adulterer was to suffer death and might have bâ—en slain by the Husband of the woman if he escaped the Law Coel. Rhodig Lâ—ct Antiqu. l. 29. c. 18. p. 1131. to the discredit of womens persons whether clear or guilty whereby it 's come to passe that this horrible sin of whoredom is much increased since that Act was made as may be seen in many places which Act is so cautiously penned that a man shall not be in strictnesse of Law in danger of death unlesse it appear there was Res in Re and that the Adulterer knew the vvhore to be a Married vvoman which none can tell but such as were present at the Marriage and besides one of the parties cannot be a vvitnesse against the other as being particeps Criminis This Law ought to be amended for that by the Law of God and (n) Florus in l. 14. Tit. Liv. p. 389. E. most wise Law-givers the Adulterer and Adulteresse ought to suffer death Deut. 22.12 23 24. Jer. 29.22 23. Lev. 20.10 * M. L. 20. p. 391. E. Tacit. Annal. l. 11. c 1. p 141. and c. 2. p. 142. and c. 11. p. 153. The Priests daughter among the Jews was to suffer death for Fornication committed in her fathers house Lev. 21.9 So the Romans punished their vestal Nuns with death if they were sound to play the vvhore in imitation of the Jews and according to the Judicial Law above mentioned Such filthiness condemned as formication Perk. on the Dâ—cal vol. 1. p. 59. col 2. p. 60. col 1. Tacit. Annal. l. 2. c. 9. p. 74. 22. No more is there any Law against lascivious Gestures wanton and filthy dalliance and familiarity insomuch as if two lewd persons be found in bed together they can be but Carted that not being sufficient to convict them upon the last Statute unlesse they confesse the very filthy Act Gal. 5.19 Prov. 6.29 Ephes 5.3 4. The Heathen Romans had Laws against Lasciviousnesse and in Tyberus his Reign women who were observed to live soberly and chastly with one husband were had in great Honour and it was ordained that the Captains and Governours of Provinces should have their wives with them This accounted a breach of the 7th Commandement Perk. on the Decal vol. 1. p. 60. col 1. 23. Next to this I add that there is no law against whorish attire whereof the Scripture takes notice and the Learned have observ'd some parts of that Attire amongst which may be accounted strange fashions naked breasts bare shoulders powdering spotting painting the face curling and shering of womens hair the place of the Canticles seeing to countenance such Locks is translated thus by learned Iunius (o) Cant. 4.1 Weemse Exp. M. Law Exer. 6. com 7. p. 161. thy hair is bound up as the modest matrons these with lascivious mixt dancings and other such like bellows of lust Pandora of filthinesse are condemned by the word of God as occasions of Adultery and Declarations of the Vanity of the mind contrary to Christian sobriety Zeph. 1.8 Pro 7.10 Gal. 5 9. 1 Pet. 3.3 1 Tim. 2.9 1 Cor. 11.6 Isa 3.18 20. Iunius upon Cant. 4.1 The (p) Tacit. Hist Discript Germa c. 2. p. 263. German women when they were Heathens used to wear their Cloaths little differing from mens Apparel and they used to go naked or bare with their arms and their breasts uncovered as it 's now used 24. There is no Law to enforce a man to live in any calling Idlenesse destroyes all people the French did thereby make shipwrack of manhood and libertie if he will but pretend he hath an Estate or means to maintain himself then he may live as he list especially about London and that is the cause there are so many Thieves and Robbers and so many Villanies committed because men live idlely without a calling wherewith to maintain them (q) Tacit. vita Agric. l. p. 188. Laws Geneva p. 30. 37. Grotius Pol. Max. par 1. c. 3. p. 24 25. all Nations have judged it reasonable that every one should have some calling or occupation and this the Court at Athens called (r) Rous Aâ—â— Ant. l. 3. c. 1. 95 96. and l 2. p. 125. The Romans likewise had Laws for incoragement to labour and for suppressing of idlenesse Tacit. Annal. l. 2. cap. 10. p. 49. Areopagus diligently inquired after and he that was found to live by unjust gain fell into danger of his life by their Law Ionah 1.8 2 Thes 3.10.11 1. Cor. 7.20 (Å¿) Bodin Republ. l. 3. cap. 8. p. 401. and l. 6. cap 2. pag. 678. Solon inflicted great punishments upon idle persons A wise Statesman saith that there are many idle persons in every Citie whom it's needfull either to banish or to keep them in publick works because they can be placed amongst no degrees of men And saith that Amasis King of Egypt used to put such kinde of men to death who had no callings as Thieves and Robbers commending the custome at Paris enforcing the strong and lusty to work and feeding and curing the sick and aged 25. Neither is there any Law against Sword-players players of Prizes although it may be a device to cheat the people and this is the chief end to get company
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
most communion with God and were best instructed did in matters of Law and Justice in these respects 2. And then we will consider what the Gentiles did by the light of nature and reason or rather what they had gathered from the Laws of Moses not so much because they were the Laws of God as because they were the Laws of a wise Law-giver and of a wise people for that the wise of the Heathen Gentiles and the Philosophers Poets who were accounted their Prophets had knowledge of Moses his writings there is nothing more clear by many passages in their books and the very Laws of the Heathen themselves in many particulers suit with the Judicial Laws of Moses Concerning the Jews I have set it down before in this Treatise that upon occasion of Jethro his wise Counsel their (b) Exod. 18.21 22. first Judges and Rulers of all sorts were instituted and afterwards the Court of (c) Numb 11.16 17. Wâ—llâ—t Hexe in Exod. c. 18. ver 21 22. quâ— 19.20 21. Deut. 1.15 16 17. seventy which was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Senate of the Jews was appointed by Almighty God This was the great Court or Judicatory of the Jews and consisted of three-score and (d) Bodin de Republ. lib. 1. pag. 57. ten persons most eminent in their Tribes and the President which was Moses or as others say three-score and twelve that was six out of every Tribe however they were called the seventy as were the Interpreters of the Old Testament who translated it into Greek bearing the name of the Septuagint although they were seventy two This Counsel of the Jews heard and determined generally all controversies according to the Laws of God and if a cause were too (e) Exod. 18.22 hard for them by reason of the want of a particular positive Law (f) Numb 27.1 2 5 7 8. Godw. M. A. l. 5. c. p. 209. Willet Hexa in Exod. 18. ver 22. qu. 21 22. as the Case of Zelopheads daughters then they came unto Moses (g) Alfonsus the tenth K. of Spain commanded his Judges to come unto the Prince himself as often as there was nothing written in the Laws of their own Countrey concerning the Matter in question Bodin Republ. l. 1. c. 8. p. 108. who enquired of the Lord and received direction from him and according to the minde of God the Case was Judged instead whereof we have now the written word of God compleat Besides this the Jews had another Court which dealt in Criminal and pecuniary causes consisting of three and twenty Judges and this Court was subordinate to the Sanhedrim And thirdly they had another Court which consisted of three Judges which was subordinate to the other two Courts The Sanhedrim sate commonly at Jerusalem and was sometimes divided into five parts and sate in five several Cities The Court of three and twenty sate in the several Cities and were a standing Court every (h) The Romans had such a Court in every Citie Tac. Annal. li. 1. c. 3. p. 5. Citie having such a Court these the Jews called Councils and of these our Saviour speaks when he saith (i) Math. 10.17 They will deliver you up to the Councils The third Court or Court of three was in every Town or Village and dealt in ordinary and smaller matters And by this we see that the Jews were not forced to go far for Justice but had it near them at all times and (k) Mercat Atlas descript Holy Land pag 839. Jerusalem it self was not above fifty miles from the Confines of the Land of Canaan in the length of it and not above twenty miles from the Confines in the breadth thereof and yet the Jews had not all that in possession And in the next place in imitation of the Jews (l) Rous. Att. Ant. l. 3. c. 1. p. 108. Bodin Republ l. 3. pag. 263. the Grecians at Athens had a Senate consisting of four or as some write five hundred persons which was the great Council of the Citie and Common-wealth and upon weighty occasions all these or as many as would sate in judgement (m) Idem Att. Anti. l. 3. c. 1. p. 125 126. There was another Court called Ariopagus consisting of the number of three-score of the wisest and most grave Citizens of which the President or Chief Justice was called Basileus that is King and they had cognizance of matters of life and death and Criminal causes and other things of great concernment Then they had also another Court which heard and determined matters by way of (n) Idem l. 3. cap. 3. Sect. 4. Thâ—se were like the Jews Courts Godw. M.A. lib. 6. c. 10. pag. 294. Willet Hexa in Exod. c. 18. v. 25. q. 26 27. Compromise and there was not any cause if it exceeded in value ten Drachma's which is but fifteen pence of our money the Attick Drachma being but one penny half penny but it past these mens hands before it might be admitted into any Superiour Court. In like manner the Romans and likewise the Lacedemonians agreed with the Athenians for the most part in respect of their Courts and Judicatories The Romans had three Courts †Sueton. Tranq in vita Julii Caesaris Sect. 41. untill the third was put down by Julius Caesar and afterwards Augustus other Emperours appointed a privy Counsel of twenty of the chief of the Senate to treat of great affairs of State in private like the privy Council of England which at first were but 15 Persons instituted 450 years since 1. * Bodin Republ l. 3. pag. 262. and 267. Godw. Ant. lib. 3. sect 4. cap. 20. The Romans in their Suits proceeded in this manner 1. They obtained a summe of course 2. They asked leave to enter their Plaint or Action 3. Then the Action was entred if it were allowed of by the Court. 4. Which done both parties put in pledges either in money or gave security the one to prosecute the Suite and the other to abide the Judgement The proceeding at Geneva is much like the Romans one Court or other sits almost every day and the causes judged in three weeks or a moneth usually Laws Geneva p. 17 18 19 20. The third Court day regularly the Cause was heard and Judged if the Cause were Criminal the Praetor would not suffer the same to be entred untill the Prosecutor had sworn that he did not accuse the Defendant falsly or maliciously And when any man had killed another the Chief Justice and the whole Bench of Judges sate upon the life and death of the Man-slayer o Sueton. Traâ—q in vita Flavii Vespasian August Sect. 10. And when in the time of Flavius Vespatianus Augustus the Courts were too full of Causes that whil'st the old Actions hung still undecided new quarrels arose to increase them he chose certain Commissioners by Lot to Judge between party and party and to reduce the Causes to as small
Tyranny of Antichrist stir up men whom we may well say were sent of God to preach the Gospel although they were not ordained by any Presbytery unlesse it were by the Presbytery or priest-hood of the Church of Rome which upon their conversion they utterly renounced and I doubt not to say but that those who are apt to teach and able to divide the word of truth aright and are willing for conscience sake and the glorie of God in the conversion of Souls to spend themselves in teaching the word of God to the world may have a sufficient call and Warrant thereunto from God without the laying on of the hands of any Presbytery which ceremony I take to have been annexed to miraculous and extraordinary gifts of the Holy Ghost bestowed on men in the first setting out of the Gospel and not to be used where such extraordinary gifts of tongues Prophesie and miracles are ceased no more than that ceremony of anointing the sick with Oyl being also used in those dayes and accompanying the gift of healing they are now used with us (r) Calvin Institut l. 4. cap. 19. pag. 72â— 724. as they have been and are used in the Church of Rome the one called the Sacrament of Orders and th' other of extream Unction and both these ceremonies of imposition of hands and anointing were used likewise by the Papists in their Sacrament of confirmation and I doubt not but all of them are promoted by the Jesuits and Romish Priests at this day amongst us It cannot be shewed that either Petrus Valdus or his followers called Waldenses and Albigenses of whom there (Å¿) Regenvolsc Hist Eccl. Slavon l. 1. cap 3. p. 12. 30 31 32. Sympson Chuâ—ch Hist lib. 2. cent 12. p. 429 430. pag. 321. Whites way true Church sect 44. numb 1. Ex Ramerio in Biblioth Patr. Tom. 4. Par. 2. 1 Corint 9.7 9.11 12.14 Gall. 6.6 Luke 10.7 were fourty Churches Anno 1254. received these ceremonies where it also appears that the brethren for so the Church Members were called did send out many of the Members to preach the Gospel in other places in Greece and Thracia c. and they were incouraged by the Kings Letters Patents pag. 35. 36. Now for the maintenance of the Ministers of the Gospel according to their several functions or rather difference of imployments generally they are to have t liberal maintenance according to that of the Apostle God hath ordained that he that preacheth the Gospel should live of the Gospel The first sort that is those that preach to the world are to be maintained by the world and because the wicked world having weak eyes think nothing a greater torment than the light the Civil Magistrate is to see to the maintenance of these Ministers and may lawfully raise it upon the world although against their wills as the Magistrate doth provide for such mad men and Idiots as cannot guide their own Estates and dispose thereof for their necessary use and benefit (a) Tim. 5.17 18. Math. 10.9 10. And for th' other sort of Ministers they ought to be provided for by the Churches according to their abilities and none of these to be maintained by Tythes for the reasons herein before alledged Now although I affirm that the work to appoint Pastors and Teachers lieth chiefly in the power of the temporal Magistrates yet I conceive it necessary that godly learned men be consulted with who may satisfie the Magistrate touching the learning and ability of such who are to preach the Gospel as is used in some reformed Churches where Tythes are abolished But that which will be said against this kinde of maintenance of Ministers not by Tythes is that which is usually objected viz. That no way can be found out so certain equal and indifferent for maintenance of the Ministry as by Tythes which are setled by so many Laws For answer hereunto I will not at large handlâ— that controversie which requires a volume larger than what this Treatise can permit having writ something elsewhere touching the same I shall onely propound a clear remedy for cure of the many junglings and wranglings which are daily between the Ministers and people about payment of Tythes which both hinder the study of the one and discourage the labour of the other and continually disquiet them both hindring the preaching of the word of God and obstructing the good effect thereof The remedy I humbly propound is this Provision for Ministers of the Gospel without Payment of Tythes Let there be a survey of all spiritual promotions as they are called such as that in Edw. 2. his time and then let all gleab Lands Tythes Oblations Obventions and other profits claimed and by Law belonging to the Parsonages Donatives Vicars be sold to the owners of the Land and estates out of which they arise or to others if they refuse to buy the same at sixteen years and two thirds of one years purchase and that will raise just so much money being disposed of at six in the hundred as is now due or payable to the Persons and Vicars For example that Parsonage which is found to be threescore pound by the year Communibus annis shall at this rate be sold for 1000. l. which yields threescore pounds by the year and if this rate be a little too dear for the tythes the Gleab-lands will make amends which for the most part are the best Lands in every Town and without doubt the Owners of the Lands charged with Tythes were better to give twenty years purchase for the Tythes than to pay them constantly being an exceeding curb and oppression both to the Tenant and Owner of the Land and this is the remedie I propound And if the same were done then might the money raised thereby be allowed to such as are able faithfull and willing to preach the Gospell and then such as are ignorant insufficient scandalous and prophane may be kept out of this service for that although the (x) Luke 4.34 Devil and wicked men may preach Christ in some sort (y) Math. 10.4 5 7. as some say Judas did yet it doth not appear not is to be believed there being no word of faith to warrant it that ever any man not walking in the wayes of God or not being converted ever (z) Jerem. 23 21 22. Luke 22.32 Daniel 12.3 Mal. 2.6 7 8. turned any one from his unrightousnesse that being one of the most glorious workes of God which he doth not use to act by wicked men which appears clearly by many Testimonies of holy Scripture * Dr. Brian in Mal. 3. Dr. Grew in Ephes 2.1 2. Acts 9.4 5 6.15 16. It is a point commonly insisted upon that God doth no great work by any man but he first humbleth him And this is all I shall say touching this matter being so long a digression onely as appertaining to the matter in hand I set it down as a defect in our Law