is repeated twenty or fourty times at one Goal-delivery if there be so many Prisoners arraigned God send thee a good deliverance (z) Perk. on the 2. Com. vol. 1. pag. 38. col 1. This formality or rather superstitious profaneness in Prayer wherein the Holy name of God is used so lightly and accustomarily being pattred over as the Papists patter over their Pater Nosters Ave Maries and such like upon their beads without either fear or wit In Imitation of whom we have this and all other forms of Prayer devised by man This is against the Holy Laws of God which forbid 1. Profane using the name of God 2. Superstition in so applying this form of Prayer 3. Vain Tantalogies as if the very repetition of it were effectual for some good purpose being used without reverence or devotion Matth. 6.7 Rom. 12.11 12. James 5.16 Jer. 12.2 Isa 29.13 14. 21. That Law accounted amongst the Laws of Merchants that Accounts made up between Merchants or other Tradesmen Barker against Nayler and Townsend in Chancery Anno 1654. and signed under their hands and allowed Errours Excepted as the form is should not again be examined although there be palpable or Errours wilful mistakes seems to be a hard Law It 's true that suits upon Trivial supposed mistakes are not to be incouraged but where Errours are of great concernment to mens estates and clearly proceeding from injustice such Accounts ought in Equity to be examined Although now in such case the wrong'd party hath no remedy either in Law or Equitâ— It were fit some honest able men were appointed to Determine Accounts in such cases to avoyd wrong and oppression amongst Merchants and Tradesmen Isa 58.6 Isa 1.17 Job 29.15 16. Lam. 3.35 36. That Golden Rule of our Saviour over-ruleth all things of this nature Whatsoever ye would that men should do unto you the same do ye to them Matth. 7.12 CHAP. XIII That the general Execution of the Law as it 's now seated and practised at Westminster is a Common oppression to the whole Nation First it is to be premised which cannot be denied that by the Ancient Law of the Land no Action could be brought at Westminster out of the proper County I do not mean in respect of the Ven. or place for triall but in respect of the beginning continuance and end of the suite all being done at home except the matter in question were of the value of forty shillings or more By the Statute of Gloucester (a) 6 Ed. 1. cap 8. anno 12â—8 Cook Inst 2. part p. 311. aâ—d 312. Ex. Briton c. 28. fol 61. which is taken for granted to be in affirmance of the Common-Law It is ordained that no man shall have a Writ of trespas for goods taken unlesse he swear that the goods taken away were worth forty shillings and all such causes where the (b) Powels Cou r Leet fol. 12. 13. matter in demand was under forty shillings were anciently determined in the County Court Hundred Court or Court Baron of the Mannour where the cause of Action grew then were not the Courts at Westminster stuffed with such a world of frivilous and triviall suites as they have been in this last Century especially the last fifty years for then I mean an hundred years since began those Courts to fill and ever since have swelled and the Courts of Record as well as those Court Barons above-named in the Counties and Cities have decayed and in many places grown out of use It 's written that in King Hen. 8. his Reign who died but 110. years since there were some dayes in the Terme when there was not one cause heard or so much as any motion in some one Court at Westminster And that about the tenth year of Queen Elizabeth there was but one Sarjeant namely Sarjeant Bendloes at the Common-Pleas Bar which is a strong presumption that the businesse was little or else there would surely have been more Sarjeants created before the residue had died 2. And if it be considered what proportion forty shillings in money in King Edw. 1. his time when the Statute of Gloucester was made bears with many in these dayes no one will wonder that there were few causes in Westminster Hall when all under that value were dispatched in the Country I take it to be clear that forty shillings then was as much in value in respect of the use and benefit of as forty pounds have been since and that forty shillings would then have bought as much Lands goods or Commodities of the growth of this Nation take one Commodity with another as forty pounds would have bought fourteen years ago which doth appeare thus (c) Cooke Compl. Copieholder Sect. 25. p. 36. twenty pounds by the year was in the dayes first above mentioned held (d) Cooke Com Littleton L. 2. Sect. 95. fol 69. Camdens Britan. p. 136. Westm 1. Compared with Fitz. N. B. fol. 6â— Lowes Case l. 9. fol. 123. sufficient to maintain a Knight and that is a Knights fee they that accompt it by the quantity say that it contains eight hundred Acâ—es all conclude it to be between six hundred and four-score and eight hundred Acres whose accompt is the least so it hath been lately reputed within thirty miles of the middle of England where commonly Lands are valued at ten shillings the Acre by the year being neither Forrest Heath Waste nor course arrable ground and as much above that rate as under According to this accompt twenty pounds by the year at twenty years purchase comes to 400. l. and eight hundred Acres at ten shillings the Acre comes to 400. l. per annum which at twenty years purchase comes to 8000. l. which is for every twenty shillings twenty pounds then add to this that money it self is raised (e) Cooke Inst 2. part p. 311. from twenty pence to five shillings the ownce and above and the native Commodities of the Countrey are raised as much as Land It's Reported by Stowe (f) Stowe Annal. in the life of H. 2. pag. 154. in his Chronologie out of the black book in the Exchequer that Anno 1175. a measure of Wheat to make bread for one hundred men was valued at one shilling the carcase of a fat Oxe at one shilling a fat Sheep at four pence Provender for twenty Horses at four pence and I finde in an old Manuscript of good credit that Anno 1372. a quarter of Wheat was at two shillings and a fat Oxe at six shillings eight pence and if credit may be given to such as have died in this age such a beast as twenty years since was worth five pounds might have been within an hundred years (g) It s proved by many instances that within one hundred and seventy years past Lands have been raised in France and the Countreys adjacent twenty times dearer than they were and Fruits and Victuals raised near the same proportion Bodm Republ. l. 6. cap. 2.
without oath But all the witnesses who are to give evidence for the Common-wealth are sworne and if it fall out as somtimes it doth that a witness sworne speaks any thing material to clear the Prisoner especially if he do any whit contradict the Testimony of any other brought against the Prisoner then the Court useth to be in an (i) This I observed to be very usually practised by the Judges as a piece of high injustice but since the late Warrs the Judges are more just and indiffâ—rent and moderate in this point heat and great inquiry is made how such a witness came to be sworne and if it appear he was brought in by any Sollicitor or friend of the Prisoners then such a man is checked or threatned most commonly and the Prisoner must endure all this Injusâ—ice for it is no better nor can any man defend it in foro Conscientiae for every man ought to have as much favour means allowed him to clear himself as his Accuser hath to charge him and somewhat more according to the rules of Scripture The conâ—rary was used against our Lord Christ Mark 14.59 63. Luke 22.71 John 3.11 Job 29.16 14. The payment of fines upon Writs of (i) Sr Edward Coke saith that the reason of these fines was because the King lost the benefit of the Amerciaments which he should have had upon the judgment or nonsuite Coke Inst 2 part in Stat. mod Levand fines 18 Ed. 1. pag. 511. So that fines were then the Conclusion of suits but now they are used to prevent suits and to settle estates about which then was no controversie And for other original Writs they are the beginnings of suits and therefore ought to be had without fine there being no Amerciaments lost thereby The fine upon the Writ of Covenant prolicâ—ntia concordandi is said by Sir Edward Coke to be the Kings silver which is a grosse mistake for that is paid besides the fine and post-fine upon the same Writ Coke Inst 2 part pag. 511. Covenant as well as other fines upon Original Writs are an oppression and a late exaction and seem to be contrary to Magna Charta Doct. Stud. Chap. 8. fol. 18. 6. Fines ought to be paid for Offâ—nces as a Mulct or Punishment but it is in no sort any Offence to leavy or sue forth a Fine for Assurance of Lands purchased nor to seek for remedy against wrongs by Suit in Law These Fines were all taken away by a Law as I take it to be but Fines upon Writs of Entry and Writs of Covenant are since set up again upon a meer pretence That the Fines themselves may be erroneous for want of payment of the Money called The Kings Silver to which the Fine upon the Alienation hath no affinity or relation that Silver being anciently but Ten-pence but this is at least Six shillings eight pence if the Lands be above Forty shillings by the year and it may be twenty shillings or twenty pounds being regularly the Tenth part of the yearly value as the Lands Conveyed are rated by the Commissioners and the post-Fine is half as much more The like may be said of Damna Clericorum which is the Tenth part of the Damages clear recovered in any Action and was anciently paid to the Priests who were Clerks in all Courts but since was allowed to the Protonotors and their Clerks This being a kinde of Tything had a Superstitious beginning but is lately discharged as all other Fines are but those upon Writs of Entry and Covenant which yet remain as an oppression If it be said That this is necessary as part of the Lord Protectors Revenue It is to be considered That the want of that is to be supplied by payment of (k) Tit. Liv. l. 39. p. 1051. f. 1052. G. Those taxes are most necessary which are imposed upon curiosities and dainties as rich Perfumes cloâ—h of gold and silver Silks Cypâ—ess Laces rich Colours Peaâ—ls Diamonds and other Precious Stones all kinde of works of Gold silver and enamell'd Coaches and Chariots c. Bodin Repub. l. 6. c. 2. p. 670 671. Hawk Dom. l. 2. p 111. Taxes Toll (l) Rom. 13.6 Taxes are as proper for upholding of Soveraignty as the Law it self Bod. Rep l. 1. c. 10. p. 177. Jun. Brut. vind cont Tyra p. 85 86. Tribute or Custome allovved by our Saviour and the Apostle to be paid to the Roman Heathen Emperors Mat. 22.21 Rom. 13.6 7. Luke 20.25 that is an indifferent payment by just proportion of Taxing But this now used by way of such Fines is a meer Oppression or Punishment of particular men for no Offence Ezek. 45.8 Amos 4.1 5.12 Jam. 2.6 Isa 52.45 15. All manner of Pleadings and Proceedings both in Law and Equity are stuffed with falshood and lyes This is evident in every mans practise and needs no proof and of necessity must be so whilest the Law continues as it now is In the Upper Bench all the Pleadings are said to be before the Lord Protector himself and so were said to be before the King himself although he never came into the Court. The Defendant is alwayes said to be in the Custody of the Marshal of the Marshalsey although he never came there but John Doo and Richard Roo were in conceit his Manucaptors In an Action at Law of Trespass for Assault and Battery brought for a box on the Ear the Plaintiff declares That the Defendant with Force and Arms viz. with Swords Staves and Knives did make an assault upon him and did him beat wound and evilly intreat so that it was despaired of his life In an Action of Trespass for driving Sheep over a plowed Land the Plaintiff declares That the Defendant with Force and Arms his Close c. did break and his Grass to the value of Forty shillings there late growing with his feet in walking did tread down and consume And his other Grass there late growing to the value of Forty shillings with his Cattel that is to say Horses Oxen Cowes Hogs and Sheep then and there lately feeding did eat up tread down and consume In all cases where the Plaintiffs by Law were to put in Pledges and where the Defendant put in Common Bayle or where the Defendant is to be summoned John Doo and Richard Roo John Den and Richard Fen and the like devised Names are said to be the men The Returns of most Writs are false That the Defendant is not found when he was never looked for nor the Writ in the County whither it is directed but purposely so returned that the Plaintiff may have an Alias and so a Pluries to the Exigent Upon a Habeas Corpus to remove a Prisoner being in the Goale Kiâ—th Return Brev. fo 259. if the Plaintiff will not pay the Sheriff for removing the Prisoner what he demands the Sheriff returns That the Writ came too late or that the Defendant languisheth in Prison so that he cannot
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
pag 666 667. before bought for thirteen shillings four pence Something may be also gathered by the computation of the Rent-Corn reserved upon the Colledge-lease made in pursuit of the Statute of the 18th of Eliz. where the third part reserved in Corn if I mistake not doth much exceed the other two thirds in money Lay all this together and it must needs be granted that forty shillings when the Statute of Gloucester was made was as much in value as forty pounds was fourteen years since I do not speak of the values as things now are because Corn and Cattle are fallen half in half from their usual prices but Almighty God can alter those things in an ordinary course of providence when he pleaseth in the mean while we are to blesse God for our plenty which never was conceived to be a Plague or a Judgement but a token of great prosperity and must needs be so at this day if Money and Lands were rated answerably Now then if all Actions under forty pounds were determined in the Counties and Cities where the Actions grew there would hardly be ten of an hundred commenced at Westminster which would be an exceeding benefit and advantage to the whole Nation 3. The contrary practice now in use that every trivial All Nations except the Commm-wealth have their Laws executed in every City See Corollarie p. 142. The Romans observed this course to have Justice done in every City Tac. Annal. l. 1. c. 3. pag. 5. idle impertinent suit of three pence value should be brought at Westminster whereby all sorts of men from Michaels-Mount in Cornwall to Berwick in the North and other places far and near should be hurried up to London and Westminster the poor although they beg as it 's usual because no one will follow their Suites without money and the rich the better to over-see their Suites or taking such an occasion it may be for curiosity to learn and see fashions or for more vicious and wicked ends many times to the ruine of them and their families all occasioned by the Laws residence at Westminster whether they must go this I set down to be one of the greatest oppressions and burdens which the Nation groans under and not to be parallel'd in any Kingdom or Common-wealth in the whole world most like to the Turks travelling to Mecca to visite Mahomets Tomb this in general Now out of this grand mischief many other evils grow and are nourished thereby 1. Expences occasioned by Suites at Westminster are six times more than they need be whereof the greater part is usually spent in Hors-meat and Mans-meat 2. Travelling to London constantly occasioned by these Suites from Term to Term much weareth out mens spirits and weakneth their bodies especially if the journey be long and tedious besides the losse of time which might be spent more profitably at home 3. The destruction of Horses which have pined started spoiled in and about London is by estimation as much losse and charge yearly to the Common-wealth as the payment of a Subsidy in former times which was above one hundred thousand pounds that is above ten pounds for every Parish one with another 4. The concourse of people of all sorts from all parts to London causeth a great increase of wickednesse and is the Nurse of all Rebellion and Commotion by reason that London being as a Wood to shelter all men as well such as having run out of their Estates live there unknown as all others who live by their wits or have committed any villanies or have any design to plot or contrive mischief usually resort thither where by reason of the multitude and so many strangers unknown no account can be taken of their Actions or manner of living the common pretence being their attendance upon one Court or other which occasioneth Impunity and le ts loose the Rains to all Iniquity 5. This hurrying up to London especially by the Nobility and Gentry causeth nothing but profusenesse and ill husbandry where for the most part they learn nothing but drinking drabbing and fantastical fashions and in the mean while their houses in the Countreys stand vacant as a Lodge whom none inhabits but a single keeper and their poor Tenants want work and relief 6. Upon this occasion the whole considerable trade of the Nation except of some few Sea-Towns is carried up to London generally all other Cities and Towns are decayed and almost ruined and impoverished (h) This causeth those two plagues of a Common-wealth Riches and Povertie when some have too much and others too ltitle which makes the Rich tyranize over the poor and more to regard their pleasure and excesse in dyet and Apparell than vertue and godlinesse And the poor because they see themselves miserable and troden under foot to envy the rich and become desperate Bodm Republ. l. 5. cap. 2. pag. 569. Ex Platone And this must needs be that Generatio unius est Corruptio alterius as when the head is nourished to an unusual greatnesse as in case of the Rickets then all the body grows lean although the over-growing of the head is but a corrupt or excrementions increase And it is to be believed that the ballasting of the trade of the Nation would much tend to the health and good of the whole For if London which now furnisheth all the Nobility Gentry and people of Estates and quality through all England and a great part of Scotland and Ireland with their Apparel Linens Spices and all necessaries and curiosities sold the same to the Trades-men and Chapmen in the Countreys this would inrich the whole Nation and London for the better part of it would rather get than lose by it for then they would have a certain trade with such as having trading in the Countrey answerable to the stock they keep in Trade would grow rich and be able to pay their Credidors at London whereas now hardly one Trades-man in a Market-Town and very few in Cities and great places get any Estates and many when they dye leave not sufficient to pay their debts And on the other side the most part of the Retaylers in London deal in the Countreys with the Gentry and others and the Taylors who commonly run the greatest hazard because he that will gain greatly must adventure desperately by reason of long payment and losse of debts become ruined and destroyed in their Estates by trusting of strangers far and near whereas if the Trade were more mediate and went through the hands of the Tradesmen in the Countrey as it would be more certain to the Londoner so the Countrey Tradesman would be better able to furnish himself and by this means lesse losse would be in debts when the Countrey-man trusts his neighbours with that he knows men are able to pay and the Commodity sold might be afforded at the second hand as cheap as it 's sold in London in regard of the Charge Rent and house-keeping which admits