Examen Legum Angliae: OR, THE LAWS OF ENGLAND EXAMINED, By Scripture, Antiquity, and Reason.

Cujus Author Anagrammatῶs est, Ἀ νόμος βο̂ᾳ ὡς βαρύ.

MALACHI 4.4.

Remember ye the Law of Moses my Servant, which I com­manded unto him in Horeb, for all Israel, with the S [...]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 [Page] 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 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 Coke tit. Cawdreys case, l. 5. par. 1. fo. 1. Kings Laws, are (as the Town-Clerk told the Ephesians Acts 19.35. concerning their Idol Diana) the Image which fell down from Ju­piter, and of so 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 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 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, [Page] 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, See the several Titles given to the Supreme Magistrate of several Nations an­ciently and lately, p. 121. n. 18. [...]equ. Governour, or 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 i [...], King, as the Greeks called their Chief Justice at Athens; Dictator or 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 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 Ezra 7.25, 26. Rom. 13.1, 6, 7. submit themselves ther [...] unto for the Lord's sake; and not to dispute about Change of Government, [Page] which sometimes is both 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; 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 Common­wealths, and Nations; and these betook themselves to 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 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 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.

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 [Page] an affliction and Punishment to suffer Tyran­ny to be exercised in the 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.

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 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 Coke. l. 7. fo. 12. Cal­vins case. (the best and most an­cient Writer of Laws) in the Book of Exo­dus, which contains 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 [Page] in the Land of Canaan by wholesome and just laws, 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, Cock Engl. Law, p. 4. and most profitable for the people. And upon this ground it's to be maintained, That Lex vera, Lex bona est & aeterna, & mutationis prorsus nescia immò & ea­dem ubique si modò vera: nam que in­geniorum af­flatu subinde locis temporibs (que), 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 [Page] 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 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 [Page] DIANA, and to prefer these our laws, before the Laws of God; I'll say no more but this: 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, [Page] 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 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 Isa. 8.20. Law and to the Testimonie; and Christ sends us to 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 [Page] 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 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 [Page] 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 so far, as to [Page] 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 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. [Page] 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.

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, 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 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 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 Ass [...]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 4 th his Reign when Littleton wrote. And hence it is, that the Judges themselves (who are said to be the speaking Law) in many cases 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 [Page 3] of Law, and, The Propriety or Liberty of the Sub­ject.

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 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 G [...]otius Pol. Maximes, Part. 1. cap. 4. pag. 34, 35. Legem oportet esse brevem, quo facilius ab imperitis tene [...] ­tur velut [...]missa divinitus vox. Jubeat non disputet nihil frigi­dius, nil ineptius quam lex cum Prol [...]gomenis. Co [...]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. Cowels Instit. l 1. tit. 1. sect. 2. pag. 21. A learned Civilian hath this saying, which he citeth out of Bracton, Juris Pracepta [Page 4] 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.

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) is perfect; 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 [Page 5] 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 Finch [...], l. 1. p. 3. Ex August. l. 3. de Civit. Dei. Omnium Legum est inanis Censura, nisi Divinae Legis imaginem gerat. Conference about the Power Parliament. Speech 3. p. 64. A [...]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: Fournier Georgra. Orbis notitia, l. 5. pa. 1. c. 10. p. 220. There being neither Thieves nor Robbers to molest the People.

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 Judi [...]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, Willet in Exo. gen: obser. qu. 4. upon 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. 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 Exod. 21.12. Murther, and 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 Willet in Exod. c. 21. qu. 1. & 2. p. 458. principally grounded upon the 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 [Page 6] Law, which are not therein expressed. 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;

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 Coke l. 7. fo. 12. Calvins case first Reporter and Writer of Laws) in his Exhortation to the Jews, requi­reth them to observe 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, 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 Willet in Exod. gen: Observ. qu. 4. p. 3. be wiser then God, that onely wife James 4.12. Law-giver, who can save and destroy. 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, 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 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. Jer. 29.22, 23. Nebuchadnezzar, a heathenish Ido­later, [Page 7] had learned to punish Adultery with Death. And 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 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 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, 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 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, 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 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 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 [Page 8] 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. Bodin. Rep. l. 6. c. 6. p. 755. Justice is the right distribution or division of 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 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 Vis Magi­stratus est, ut praefit praescri­bat (que) 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 votandum (que), 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 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 H [...]abe [...]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 p [...]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, 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 Mic 6.16. 1 K [...]ng 22 26. 1 Kin. 16.25 27 Statutes of Omri and Ahab, according to that of the Psalmist, Psal. 74. [...]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 [Page 10] 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, 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 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 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 Coke l. 5. Part. 1. Caw­dreys case, f. 25. followers of John Wickliff, abusively called Lollards; and his 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 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 Rev. 14.9. Mark of the Beast, by taking Laws from Idolaters, that they ought to root out their Idols, and all 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 Psa. 94.20 of the Holy Ghost by the Pro­phet, Shall the Throne of Iniquity have fellowship with thee, which frameth mischief 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 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 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 2 Tim. 3.16, 17. Apostle to Timothy, herein before recited. And it is to be hoped upon very [Page 12] good grounds▪ That the neerer we come to perfect Reforma­tion, the more we shall taste of Justice and Righteousness in the 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. 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, 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 [Page 13] 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 Ac [...]s of Parliament (although they be so called:) That chiefly therein was intended, the adva [...]ce­ment of the Romish Power in a Tyra [...]nical Gover [...] ­ment.

FIrst, it is to be considered, That upon the Norman Con­quest by Duke William, 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; ( The Romans subdu [...]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 fo [...]bo [...]n: Tacit. in vita Jul. Agricolae, p. 188. as the Romans had done a thousand years before.)

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 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 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, [Page 14] 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 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, 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 [Page 15] the advancement of the Power of Antichrist, there is no­thing more evident, and needs no other proof, but what is therein contained.

Preface to Magna ChartaFirst, 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, 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 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.

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 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 5 th and 14 th 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 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 Char [...]ers, is, That they were 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 Successor [...]. And we may remember, how by colour of the said Charter of the [...]orest, the Justices in Eyre tyrannized over the P [...]ople living in or near the Forests (not long since, the most considerable part of the Nation, 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 exa [...]ed for Fines imposed, for building, hedging, incroaching, and other ad­van [...]ages taken against them in the said Forests; And what Wrongs and Oppressions have been done to the said Inhabi­tants, by the co [...]our of the said Laws, it's too well known: And 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 An ancient Manu [...]. 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 m [...]king thereof; both the said Charters be­ing called, The Grants of King Hen. 3. and the Confirmation of K. Edw. 1. 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.

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 [Page 18] 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.

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 Trespas [...] for Goods taken, unless he swear by his Faith, That the [...]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. [Page 19] Enacting, That he that takes away a Ward, and marrieth her (after years of consent) shall abjure the Realm, is a pro­fane Law, and a [...]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, P [...]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 di [...]annulled the Sta­tute of 18 Edw. 3. concerning the Arraignment of a Clerk; [Page 20] 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 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 su [...]h [...]s are said to be made in Affirmance of the Common Law, as o [...]rs Introductory of New Laws, co [...]tain i [...] them g [...]at Op­pressions and Wrongs to the People, a [...] o [...]ght to be amended.

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 s [...]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 [Page 21] to pay, he shall continue longer in Prison. 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. 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 pr [...]ss [...]re of the Common People.

The Statu [...]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 Ki [...]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 m [...]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. [Page 22] 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 Except [...]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 K [...]ng; [Page 23] 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 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.

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.

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 Superstitiou [...], 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 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. 28 H. 8. c. 13. That such Ministers may be absent from such [Page 26] 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 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 Sta [...]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 out of use, and ought to be Repealed.

The Act for Reforming of Disorders in Ministers, a super­stitious Law, 13 Eliz. 12.

The Statute of the 5 Eliz. 23. whereupon the Writ De Excommunicato Capiendo is grounded, is an impious wicked Law, as the Excommunication it self is a hor­rible Prophanation of the Ordinance of Christ in his Church.

The Statutes of 35 Eliz. 1, 2. appointing grievous punish­ments for not coming to hear Divine-Service (as it is cal­led) and for Meeting in Private-houses for to Pray or Wor­ship God: This is a wicked Law, and was an occasion of great Persecution for many years. Those Laws which create Apocryphal Saints, as Thomas Becket, called, Thomas the Mar­tyr, 2 H. 5. 4.

The Statute of 25 H. 6. Chap. 5. equalling superstitious and Idolatrous dayes with the Lords-day; Holy-Rood-day, called, Corpus Christi, Assumption of Mary, Good-Friday, All-Saints, put all together with the Lords-day, called there Sunday: These are profane Laws.

The S [...]atutes of 21 H. 8. 6. and 26 H. 8. 15. appointing the payment of Mortuaries, which are pretended to be given to God for the purging of the Souls guilt of the de­ceased, which he contracted by non-payment of Tythes: Thi is a superstitious Law, and a derogation from the All-sufficient Merits of Christs sufferings.

The Statute of the 3 Hen. 5. 4. contains in it Prayer for the Dead; a thing unlawful and superstitious.

There are divers Laws made against the Followers of John Wickliff, called Lollards, who in the Statutes are said to be Hereticks, who intended to subvert the Christian Faith, The Law of God, The Church, and the Realm, 2 H. 5. 7. and 5 Rich. 2. 5. 2 H. 4. 15. 25 H. 8. 14. These were the most sincere Professors of the Gospel. A Law was made 1 Edw. 6. 12. to Repeal the Laws against the Lollards: yet long after that, the High-Sheriffs were yearly sworn to ex­tirpate these Hereticks, as they were called; and that clause was continued in the Sheriffs Oath, until the late Wars. Sir Edward Coke calls them Hereticks: we may see what Times have been, and how the bent of the Lawes have been to root out the Gospel, and to Establish Po­pery.

The Statute of the 4 H. 4. 18. That an Attorney play­ing the Knave, shall forswear the Court; This is an abuse of an Oath, and profaning the Name of God.

These Laws are all of the same kinde with those be­fore-mentioned in the 5 th Chapter, where the Statute of Marlbridge, and other old Statutes, made in affirmance of the Common Law, are recited; and are Repugnant to those Laws of God contained in the Holy Scripture, which are there expressed; as further appeareth in this Trea­tise, where most of these Laws are more particularly handled.

CHAP. VIII. That the Common Law hath been altered and changed since Edw. 4. his time, when Littleton wrote, in an hun­dred particulars; most of them of great Importance.

BY the Statutes made since Littleton wrote, 37 H. 8. c. 9. 13 El c. 8. Coke Rep. l. 5. fo. 7. Assurances of Lands, and all Statutes and Obligations made upon Usu­rious Contracts against those Laws, are avoidable, and the Law therein altered since Littleton wrote.

2. By a Statute concerning the inrollment of Deeds, 27 H. 8. c. 16. Coke Rep. l. 2. fo. 36. l. 4. fo. 70. l. 5. fo. 1. l. 7. fo. 41. l. 8. fo. 93. the Purchaser hath many Priviledges, which he had not at the Common Law in force before that Statute; as, the Estate in Lease, or a Reversion, passeth without Attornment, and the Purchaser may distrain for Rent. And if it be the Inheritance of the Wife, the Husband having Issue by her, shall be Te­nant by Courtesie, and an Estate passeth without Livery.

3. There were several Statutes made since Littleton wrote, 32 H. 8. c. 2. 34 H. 8. c. 5. 27 H. 8. c. 10. enabling men to devise their Fee-simple-Lands by Will in writing; which regularly a man could not do by the Com­mon Law, unless by Custom; which was but in some Boroughs, and some few other places. If the Lands were holden in Knights Service, the Owner might devise two third parts; if in Soccage, he might devise all: And since of later times, the Tenures in Knight-Service and Capite are abolished.

4. At the Common Law, 13 Ed. 3. det. 135, 139. an Heir might have had an Acti­on of Debt upon an Obligation made payable to his Ance­stors and his Heirs: But the Law is now altered, and onely Executors and Administrators can recover upon such an Obli­gation. This is plain by the Probate of every Will, and is so in daily practice; for all the Goods and Chattels are As­sets, and shall pay Debts to the Creditors, their Executors or Administrators.

[Page 30] Coke Com. Littl. Dower, l. 1. c. 5. sect. 53. & 55.5. At the Common Law a Woman should have lost her Dower by the Felony of her Husband, that Dower which was Ex assensu patris ad ostium Ecclesiae, and her Dower by Custome: But now it's otherwise by several Statutes; and these two former sorts of Dower are now out of use.

27 H. 8. c. 9. Coke Rep. l. 5. fo. 27.6. By the Statute of 27 H. 8. Chap. 9. A Joynture before Marriage made to a woman, is a Bar to a Writ of Dower, to be brought by the woman for the Third part of the Lands, whereof her Husband was seised during the Coverture: which was otherwise at the Common Law when Littleton wrote.

Westm. 2. c. 1.7. By the Statute of Westm. 2. Chap. 1. If a man seised of Land in general Tail had taken a wife, and afterwards been attainted of Felony; 1 Ed. 6. c. Coke Com. Littleton, l. 1. c. 5. sect. 53. before the Statute of the 1 Edw. 6. the Issue should have inherited, although the wife should not have been endowed: But now she shall be endowed, and yet the Issue in such case shall not inherit the Lands which the Father had in Fee-simple.

32 H. 8. c. 28. 13 El. c. 10. 18 El. c. 20. Coke Rep. l. 6. fo. 37. l. 11. fo. 67.8. By vertue of several Statutes made since Littleton wrote, Bishops, Deans and Chapters, Halls and Colledges, Parsons, Vicars, and Governours of Hospitals, are disabled to make long Leases, or Conveyances of their Lands, belonging to them in right of their Corporations: And they may avoid such Leases as they shall make of such Lands, contrary to those Statutes; which they could not do when Littleton wrote: and the Law i [...] altered in those Points by the said Statutes; and they are now restrained.

13 El. c. 20. 3 Jac. c. 4. 32 H. 8. c. 28.9. Also by vertue of the same, and some other Statutes, Ec­clesiastical persons may make Leases of their Bene [...]ces, so they be not non-resident, or absent fourscore dayes: and Te­nant in Fee-simple in Right of his Church, Tenant in Tail, and a man and his wife seised in Fee or Fee-tail in Right of the wife, may make Leases of such Lands for three lives; which they could not do when Littleton wrote.

37 H. 8. c. 10.10. Before the Statute of the 27 H. 8. If Cesty que use had dyed, his Heir within age, the Lord sh [...]uld have had the Wardship of the Heir. 4 H. 7. c. 41. If the Feoffee had dyed, his Heir within age, the Lord should have had the Wardship of his Heir also; so there should have been two Wardships for the same Lands. But this is altered by the same Statute.

[Page 31]11. The Court of Wards, 33 H. 8. c. 22. 32 H. 8. c. 46. erected by vertue of the Sta­tutes made since Littleton wrote, altered very many things in the Law, as may be seen by the Statutes: And particu­larly, he that was poss [...]ssed of a term for 100 years or more, was judged to dye seised, Repugnant to the Com­mon Law.

12. 32 H. 8. c. 24. 27 H. 8. c. 27. 1 Ed. 6. c. 14. 31 H. 8. c. 13. 37 H. 8. c. 4. The whole Rabble of those Ecclesiastical persons (as they are called) Regular, and many of those called Secular, are dissolved by several Acts of Parliament; and so the ma­ny Laws concerning them, are thereupon out of use: And all the Priviledges granted to the Cestercians, Hospitallers, or Priors of S. John's of Jerusalem, and other Superstitious Houses, to be freed from Taxes, Toll, and other Secular Servi [...]es (except non-payment of Tythes) are altered and changed; and now those Lands are usually charged to all pay­ments, as others are.

13. The Statute appointing, 21 H. 8. c. 4. That such a man's Executors as prove his Will, and take upon them Administration there­of, may sell a man's Land devised to Executors for payment of Debts or Legacies, although others named Executors do refuse to intermeddle, or to joyn in the Sale, and the Sale is good: That Statu [...]e was made since Littleton wrote, which is contrary to the Common Law.

14. The Statute of the 21 H. 8. Chap. 19. 21 H. 8. c. 19. Coke Com. Lit. l. 3. s [...]ct 444 & 447. gives the Lord power to avow upon the Land for Rent, or Services, or Da­mage faisans, without naming his Tenant, because there are sometimes secret Conveyances made to strangers, to cousen the Lord of his Servi [...]es: and this an Alteration of the Common Law.

15. All the Laws and Customes concerning Villains, Cok. Com. Litt. T [...]t. Villenage, l. 2. c. 11. sect. 172, 175, 176, 177, 189, &c. mentioned by Littleton, That the Lord might kill them, sell them, or use them, are in a manner abrogated or worn out of use, by reason that most of the Villains, and such as held in Villainage, are Copy-holder [...], and by some act either in Deed or in Law, are Manumitted: which alters the Law in many particulars since Littleton wrote.

16. The Tryal of men for Treasons and Felony, 22 H 8. c. 1. 1 & 2 Phil. & Mar. c. 10. 33 H. 8. c. 20. & 23. and other Tryals between and Party and Party in Personal A­ctions, have been in several particulars altered by Acts of [Page 32] Parliament, 27 El. c. 6, & 7. 4 & 5 Ph. M. c. 7. and the Forms changed, and new Pleadings and Proceedings introduced since Littleton wrote.

17. There are several Acts of Parliament made since Little­ton wrote, 31 H. 8. c. 1. 32 H. 8. c. 32. Litt. l. 3. sect. 290. by vertue whereof partition may be made by Joynt-tenants, and Tenants in Common; which is otherwise at the Common Law, and is an alteration thereof.

18. There was an Act made in the 31 H. 8. That the Mannors, 31 H. 8. c. 3. Lands and Tenements of Thoma [...] Lord Cromwel, and many others (to the number of 34 persons) lying in Kent, & being Gavel-kind-lands, should descend as other Lands at Common Law: This an alteration since Littletons time.

19. There are, by Statutes since Littleton wrote, divers Conditions annexed to Offices, 5 & 6 Ed. 6. 16 which may forfeit the same; and were not so at the Common Law.

20. Before the Statute of the 32 H. 8. Chap. 34. no Grantee or Assignee of a Reversion, 32 H. 8. c. 34. by the Common Law, could take advantage of a re-entry by force of any Condi­tion: but by that Statute the Grantees or Assignees of any Reversion, &c. of any Lands, &c. shall have advantage by entry for Rent, or doing of waste, as the Lessors or Grantors themselves might have had.

21. There were at the Common Law two sorts of Di­vorces: 1. A Mensa, & Thoro: 2. A Vinculo Matrimonii; and many ridiculous causes of Divorce (of which Adultery is not reckoned to be one) against the Law of God; 32 H. 8. c. 38. 2 Ed. 6. 23. 1 El. c. 1. as, pre-contract without Consummation, Consanguinity, or Affinity in Cousin Germans, and so to the fourth Degree, The mar­rying or carnal knowledge of any person of Kin, to the se­cond Marriage-kindred within those Degrees: Divers of which are remedied by Acts since Littleton wrote, and the rest are antiquated, and for shame disused; and now all men may marry any person not prohibited by Gods Law; and regularly, nothing is a cause of Divorce, but Adultery: and yet Causa frigid [...]tatis sive Impotentia, hath been allowed by the Bawdy Bishops.

32 H. 8. c. 33. Coke Com Lit. l. 3. c. 6. sect. 385.22. At the Common Law, if a Disseissor, Abator or In­truder, had dyed seised, soon after the wrong done, the Dis­seissee and his Heirs had been barred of Entry, without any time limited by Law: But by a Statute made since Littleton [Page 33] wrote, such Disseisees nor their heirs are not barred, except the Disseisor hath been in quiet possession five years, without Entry or continual Claim.

23. So likewise if the Disseisor had been longer possessi­on, Littleton, l. 3. c. 6. sect. 385. by the Common Law the Disseisee could not have entred upon him; nor could the Disseisee have entred upon the Feoffee of the Disseisor, if he had continued a year and a day in quiet possession: But now the Law is altered, and onely a dying seised is a Bar in some cases.

24. By the Common Law, after a Fine levied, Littleton, l. 3. c. sect. 441. 4 H. 7. c. 24. 32 H. 8 c. 36. he that had right, had but a years time to enter, after which he was bar­red: But by the Statutes made since Littleton wrote, he that hath right hath five years allowed to him to enter, after the Fine perfected.

25. By several Statutes since Littleton wrote, 2 & 3 E. 6. c. 24 34 & 35 H. 8. c. 14. 3. H. 7. c. 1. 1 Ed 6. c. 7. 33 H 8. c. 9. Coke Com. Lit. l. 3. sect. 442. 27. H. 8. c. 10. Coke Com. Lit. l. 3. sect. 463, & 464. divers powers and authorities are given to Justices of Assize, which they had not at the Common Law, nor by any Statute, before those Statutes were made.

26. By the Common Law, if a mans Land had been gran­ted or setled to another, to the use of the Grantor, and to the Issue in Tail, the Land in Law had been the parties to whom it was conveyed; and (Cesty que use) he for whom the use was, had nothing but Equity to recover the Profits: But now since Littleton wrote, all possession is transferred to the use, and the Law changed, Plow. Com. 349. 6.

27. By a Statute made 2 H. 5. all such Jurors as were to be returned for Tryal of Issues joyned in any the Courts at Westminster, or before Justices of Assize, 2 H. 5. c. 3. se­cond Parliam. 11 H. 7. c. 21. were to have 40 s. by the year in Lands and Tenements, &c. By the Statute of the 27 Eliz. it is enacted, 27 El. c. 6. That such Jurors shall have 4 l. by the year at least, and so it is to be expressed in the Venire facias; which is an alteration since Littleton wrote.

28. All those special pleadings discussed by occasion of Littletons Text, 23 H 8. c. 5. 7 Jac. c. 5. & 12 Act 23 Octob. 1650. 21 Jac. c. 14. l. 3. sect. 485. are taken away by several Acts of Parliament: And by the last Act of the 23 Octob. 1650. liberty is given in all cases to plead the general Issue; which is a great ease in most cases; although in a Replevin, the Law is rather worse then it was, as is shewed in its proper place.

[Page 34]29. By several Statutes since Littleton wrote, the times for commencing of real, and possessory, and personal Actions are limited: 32 H. 8. c. 2. 21 Jac. c. 16. First, by the Statute of the 32 H. 8. and after­wards by the Statute of 21 Jac. By which Statute (it's said) the Kings Right is concluded, as well as all other persons; and barred after twenty years in all real Actions: These are abridgements of the Law since Littletons time.

27 H. 8. c. 4. 1 Ed. 6. c. 14.30. All those Laws mentioned by Littleton, concerning Free Chappels and Chantries, and the cases thereupon depending, are at an end by those Statutes since Littleton wrote.

31. By several Statutes made since Littletons time, the petty Errors in Pleadings, 32 H. 8. c. 30. 18 El. c. 14. Mispleadings, and Jeofailes, are helped and amended, in real, mixt, and personal Actions; insomuch, as where at Common Law every mistake of a Letter, Word, want of Warrant of Attorney, or Misreturn of any Writ, or any other petty inconsiderable Error or Mistake, 21 Jac. c. 13. was suffi­cient to destroy any Action, or to arrest or reverse Judge­ment. Act 1652. Now no Error before Appearance, nor any Error but what is matter of Substance, and of the Essence of the Action, can prejudice the Suit: This is an amendment of the Common Law.

32. The Law concerning ordinary Jurisdiction, and Spi­ritual Law (as they called it) which is discussed by Littleton, Littleton, l. 3. sect. 648. Lib. 3. Sect. 648. hath been since altered by the Statute of the 25 H. 8. which restraineth the Ecclesiastical Laws, 25 H. 8. c. 19. that they be not repugnant to the Common Law, nor the Statutes and Customes of the Realm: and since, the same Law con­cerning ordinary Jurisdiction and Ecclesiastical Laws, are abolished with the Hierarchy of Bishops, &c. and their Courts.

33. Since Littleton wrote, there were two Statutes made to preserve Remainders and Reversions in Lands and Tene­ment expectant upon Estates for Life; 32 H. 8. c. 31. which (it seems) by the Common Law might be barred by a Common Recovery, or thereby the Entry of him in Reversion or Remainder ta­ken away: But by those Laws, such Recoveries by Tenant for life are void, and the Entry saved by the last Statute of the 14 Eliz. 14 El. c. 8. which is contrary to the Law in force when Lit­tleton [Page 35] lived, although the first Statute be Repealed by that last mentioned.

34. The like Law was concerning Tenant in Dower; Coke Com. Lit. l. 3. sect. 697. 11 H. 7. c. 20. If she had aliened in Fee with Warranty, and dyed, that Warranty had bound the Heir: But now, if Tenant for Life or in Dower alien, it is a forfeiture, and the heir may enter. This is a good amendment of the Common Law.

35. If Tenant in Tail be in possession, 26 H. 8. c. 13. 33 H. 8. c. 20. or that hath Right of Entry, be attainted of High-Treason, the Estate Tail is barred, and the Land forfeited: But this Attainder was no Barre at the Common Law, nor when Littleton wrote.

36. If Tenant in Tail levy a Fine, with Proclamations, 4 H. 7. c. 24. Coke Com. Lit. l. 3. sect. 708. ac­cording to the Statute; this a Barre to the Estate Tail, but not to him in Reversion or Remainder, if he maketh his Claim, or pursueth his Action within five years after the E­state Tail spent: But the Law was otherwise when Littleton wrote.

37. When Littleton wrote, if the Kings Donee in Tail, the Remainder in the King, had suffered a Common Recove­ry, the Estate Tail had been barred, but not the Reversion or Remainder in the King; and if such Donee had levied a Fine, with Proclamations, 4 H. 7. c. 24. 34 H. 8. c. 20. Coke Com. Lit. l. 3. sect. 708. after the Statute of the 4 H. 7. this had barred the Estate Tail, although the Reversion were in the King: But since, by the Statute of the 34 H. 8. a Com­mon Recovery had against the Tenant in Tail of the Kings Gift, or such a Fine levied by him, (the Reversion continu­ing in the King) is no Barre to the Estate Tail, wherein the Law hath been changed since Littleton wrote.

38. By several Statutes made since Littleton wrote, the wife of a man attainted of Misprision of Treason, 1 Ed. 6. c. 13. 5 Ed. 6. c. 11. 5 El. c. 1. & 11. 18 El. c. 1. Murther, or Felony, is Dowable; which was not so favoured at the Common Law.

39. By the Statute of Westm. 1. No Sheriff or Minister of the Kings, was to take any thing for execution of his Office, 23 H. 6. c. 10. 19 H 7. c. 8. 29 El. c. but what the King allowed to him; and is was so by the Com­mon Law. But by Statutes afterwards (of which two are since Littleton wrote) Fees are allowed to be taken by such Officers.

[Page 36] 32 H. 8. c 32.40. By the Common Law, no Executor or Administrator of Tenants in Fee-simple or Fee-tail, had any means to re­cover Arrerages of Rents and Services due in the life-time of such Tenant. Now the Law is altered, and such Execu­tors and Administrators are by Statute enabled to sue for, and recover the same.

27 H. 8. c. 10. Coke Com. Lit. l. 3. c. 5. sect. 384.41. By the Statute of 27 H. 8. If a man seised in Fee-Covenant, upon good Consideration, to stand seised to him­self for life, and to the use of his eldest Son in Tail, with the Remainder to his second Son in Tail, with Remainders o­ver, &c. and to 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 [Page 37] 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, Ʋpon 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 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 [Page 38] 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 L [...]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 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. Cock. Essay, p. 139. The 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 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. [...]05. Equity; and the same like­wise is called Righteousness. Now that Ju­stice and Equity are the same thing, there is [Page 40] nothing more clear: as Aequum & Justum, are Termini con­vertibilés; so are Justice and Equity. 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. 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 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: 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: 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 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: [...], 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 [Page 41] Right to every one: The very same words are used in oppositi­on of that Law of the Romans, called, Lex 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 Justitia le­galis stricte sumpta, quate­nus opponitur aequitati, est ini­quitas, &c. A­mesii, l. 5. de Conscient [...]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 [Page 42] 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 Writ of Execution of it, and obeys it: and this is the best that can be expected. And then the par­ties fall to cast up their Accompts; and it's found, That the Plaintiff at Law spent Eight pounds, and the Defendant four pounds: The Plaintiff in Chancery spent Twenty pounds, and the Defendant Twenty Marks: Lay all this together, and in conclusion, the Debtor hath spent 24 l. and paid 11 l. 6 s. 8 d. and the Creditor hath spent 21 l. 6 s. 8 d. and received for his Debt and Costs 11 l. 6 s. 8 d. So the Creditor loseth his Debt, and Ten pounds out of his purse; and the Debtor hath spent and paid 35 l. 6 s. 8 d. where the first Debt was but Ten pounds, and the Remainder was but thirty shillings. O famous Law and Equity! I could shew many of these Cases: And indeed, this hath been the common practice with most Judges, to send men to Equity: and they ought to do so, whilest the Law stands as it doth. Now apply this to the Rule and Argument above-mentioned: The Law could not relieve the Debtor, but Equity doth relieve him; Which of these two hath done him Right? The Law did him none; for if it had done him Right, then the Chancery ought not to have done the contrary; which it hath done: for, to charge a man, and to discharge him, are clean contrary. And the Chancery hath not relieved him; for in effect, he hath paid and spent more then treble the principal Debt and Interest: So upon the point, he is relieved no-where: And yet every man will say, He is no just man, who refuseth to deliver up a Bond when it's fully paid. How doth this Law (put all to­gether) give every man Right? and if it do not, then is it an unjust Law. I do confidently affirm, That no Nation pro­fessing the Gospel, ought to have or maintain any Law so se­vere or rigid, that it needs any Court of Equity to moderate it. If it were needful or convenient in any case, to have re­lief [Page 43] in Equity, it must needs be in case of Life and Death, which is a business of higher Concernment then a little Mo­ney, and more favoured in Law. But no man ever heard of a Bill preferred into any Court of Equity, to save one from the Gallows; and therefore it is to be presumed, there is no need of any such Court, if the Law were Just and E­qual.

But because it may be every man will not be satisfied, that in the Case above-mentioned, there was a direct Repugnancy in the Judgements of these two Courts; because, The Chan­cery did give relief in Tanto, though not in Toto: I'll onely put one short Case more, to put the matter out of que­stion.

A man indebted upon a single Bill, payes the Money upon the day in the Bill appointed, and hath Witness of the pay­ment; but the Bill cannot be found: This Bill comes after to be put in Suit; the Defendant cannot be admitted to plead payment at the day, nor hath he any other Plea sufficient in Law to discharge himself; nor can be relieved at Law, unless he have a Release, although he prove the Debt paid; but Judgement must needs pass against him, either by Default, or Confession, or upon a Verdict, after Issue joyned upon some false Plea, which the Defendant thinks most easie, and after which he shall have most colour of Equity. Well, Judge­ment is passed, and the Defendant must expect Execution, without relief at Law. But for fear of the worst, the De­fendant hath before Judgement his Bill preferred into the Chancery, to which the Defendant, Plaintiff at Law, answer­eth, and the Cause comes to hearing; where it appears, the Debt to be paid: thereupon, the Court decrees the Bill to be delivered up. Here is a just Contradiction, and diametri­cal Opposition: The Law condemns the Debtor, or at least will not relieve him; and the Chancery doth discharge him of the debt, and so relieves him. Upon this consideration, some honest Judges of late dayes, have used in some Cases, to order the Plaintiff (upon the Defendants payment of the principal Debt, with Interest, and Costs, or what shall appear to be unpaid) to deliver up the Specialty, and discontinue the Suit, or stay the same. This is a short and equal way (which is [Page 44] Justice, and no more) to give every one his Right, according to that of the wise Heathen, Plutarch in Laco. Apoph. Stob. ser. 7. Ex Agesil. Nihil praeter aequum faciendum esse, &c. Justitiam semper oportet esse Clementiam temperatam: Yet this is contrary to the Law, and no Record is made of any such Judgement. But other Judges have usually said in such Cases, The Defendant must seek relief in Equity; they must do Justice, that is, shew Extremity.

These two Courts can no more consist with Justice, then two Weights or Measures of different bigness or length. I use this familiar Comparison, because it pleaseth the Holy Ghost to make use thereof to this very purpose, Prov. 20.10. Prov. 20.10. Diverse weights and diverse measures, are both alike abomination to the Lord. These words, Diverse weights and diverse mea­sures, D. J. Burgis in hunc loc. word for word out of the Original, are, a stone and a stone, that is, different Weights and Measures, of several sizes, one bigger, another less: and this is expounded by that in Deut. 25.13, 14. Deut. 25.13, 14. Thou shalt not have in thy bagge diverse Weights, a great and a small: Thou shalt not have in thy house diverse Measures, a great and a small. These words by a Sy­necdoche speciei, Note, The difference between L. Chancellor Egerton, and L. Chief Justice Coke, about the Power of the Chancery after a Judgement at Law, Wilson Hist. Great Britain, pag. 95. Bodinus the learned Civilian observes, That Contention between great Magistrates or Courts, about their Power or Jurisdiction, is al­ways hurtful to the poor Subjects, Bodin. Repub. l. 3. c. 6. p. 356. forbid all unjust and unequal dealing and commerce amongst men, and all Injustice and Iniquity, and the instruments, tools, and means thereof: and implicitely, the same Law commands, all Justice and Equi­ty; and directly forbids two Courts, having contrary Powers and Jurisdictions, and exe­cuting things Repugnant and contrary one to another: If the one proceed justly, the other must needs be unjust. Neither do the Scri­ptures any-where mention Justice and Equity as two several things, to be distributed in one Case; as if that might be done by the one, which might not be done by the other; nor that ever any good Judges gave any such Judg­ments: but rather, when they are said to do Justice, it's in­tended, That they did justly and equally. It's true, that the Exod. 21.1 Judicial Laws are called Judgements, and the execu­tion of the Moral Law, is called Justice. And so 2 Sam. 8.15 David is said, to execute Judgement and Justice; that is, to judge justly and righteously, both in respect of the Moral and Judicial [Page 45] 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 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 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 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 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 on [...], why should it not be wrong in the o [...]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 [Page 46] 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 utrum (que). 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, [Page 47] there is no remedy at the Common Law, 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; 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, Rom. 13.7. Obj. 4. Legacies cannot be Sued for at Law, and there­fore of Necessity there needs a Court of Equity. This ought to be amended, that every one may have their due.

Ans. This Case grows remediless, partly by the dissolu­tion of the Bishops or Ecclesiastical Courts (as they are cal­led) and may easily be remedied, if the Law were a little al­tered: For what reason can be given, that an Action of Debt may not as well lie for a Legacy, as for any other Duty pay­able as Executor or Administrator? It's true, that at the Common Law, generally mens Personal Estates were at the mercy of the Bishops or Priests, to dispose the same for the health and salvation of mens Souls, as was pretended: but now we are freed from that thraldome, it were fit, that every mans Estate should perform his Will, according to the Execu­tors Oath, by paying Legacies (as well as Debts) in the se­cond place, as far as the Testators Estate will extend; and that an Action of Debt lay for it as aforesaid: for that if a man sue in Equity for a Legacy of Twenty pounds, or under, he shall spend it every peny in Suit, if he have not a very easie Adversary.

Obj. 4. The greatest questions are about performances of Neh. 5.11, 12, 13. 2 Cor. 8.11, 12. All honest Agree­ments where the party is not de­ceived, are to be performed, be­ing in our pow­er, Ames. l. 5. de Consc. Covenants and Agreements, and of Trusts: Concerning which, it's truly said of the first, That for breach of Cove­nants or Agreements, a man may in an Action of Covenant recover Damages for the Covenant broken; but there is no meanes at Law to enforce any man to perform his Covenant: and therefore there is need of a Court of E­quity.

Ans. This is a fault in the Law, that a man can have no means to enforce one to perform his Covenant: But this might easily be amended, either by putting the Covenant in Issue upon a Traverse, or by devising an Issue, as is usually done by Order of the Chancery; and if it be found, that the Defendant Covenanted or Agreed under his Hand and Seal, as the Plaintiff alledgeth, Why might not the Judgement be, That the Defendant shall perform his Agreement, and pay Damages, &c. as well as in a Replevin, that the Cattel shall be returned, &c. or in an Action of Debt, that a [Page 49] man shall pay Money, or render Corn, or the like.

And touching Agreements made nnder mens Hands, they amount but to Josh. 9.21. compared with 2 Sam. 21.1, 5 Just promises are to be per­formed, and the contrary punish­ed by the Magistrate, &c. Promises: upon which, at Law, the Plaintiff may recover Damages: but there is neither Law nor Equity to enforce a man to perform such an Agreement; which, I conccive, ought to be amended in the Law; for that sometimes such Agreements are made upon as valuable Considerations, and as solemnly, as those which are put un­der mens Hands and Seals.

Obj. 5. And concerning Trusts, especially concerning Lands and Tenements, the Common Law can afford no help against such as refuse to perform the Trusts. If a man be in­debted, but not upon Record, as Statutes or Judgements, &c. or in consideration of Marriage, conveyeth his Lands to some friends, and their Heirs, upon Trust and Confidence (either expr [...]ssed or implied) that the Trustees, &c. shall permit the Grantor, and the Heirs of his body, or his Wife or Children, to take the Profits, It is true of Trusts, as of Ʋses; Fear & Fraud were the Inventers of them. Fear, in time of Civil wars, to save Inheritances from forfeiture: Fraud, to defeat lawful Actions, due Debts, &c. Coke l. 1. sChudleys Case, fol. 121. a, b. The Judicial Law directs a remedy in case of trusts, Exod. 22.10, 11. The Trustees (having a minde to chuse him that haply intended to cozen others) re­fuse to let cesty que use, the parties for whom they are trust­ed to take the profits, &c. The Grantor hath no remedy at Law, but must sue in a Court of Equity.

Answ. This is true, as things now stand: but this might and ought to be amended, by putting cesty que trust into the condition of Cesty que use; and let the possession be trans­ferred to the trust, and then the Grantor and his Heirs and Assignes may recover the possession and profits without the help of a Court of Equity. And it might be wished that all such Trusts might be destroyed; serving generally for little else but to deceive Creditors and Purchasers. See a Case recited by Charles George Cock, Essay p. 123.

Object. 6. The last and main thing upholding these Courts of Equity, is, That commonly Frauds and Deceipts can never be discovered, nor Private Contracts proved, but by the Defendants Oaths; which are not elsewhere to be taken in such cases: and this enforceth so many Bills of Dis­covery to be exhibited into those Courts every Term.

Answ. This Objection doth in it self, in foro Conscientiae, clearly overthrow the practice of these Courts. For the very [Page 50] exacting this Oath is Ames. l. 4. de Consc. c. 22. f. 222. This question about exacting Oaths against a mans self, is handled, and the Obje­ctions and the Scriptures an­swered, which seem to counte­nance the sam [...]. See the Book called A Trea­tise of Oaths, written by the Nonconformists p. 13, 15, 52, 57. against the Law of Nature, whose dictates are the same with those of the Law of God written; from which are derived undenyable Maximes and Principles, whereof this is one: Nemo tenetur accusare seipsum: This Maxime is agreed by all men; and the Lawyers allow it. The reason of it is, (although it need none to confirm it; for it is also a Maxime, Contra Negantem Principia non est dispu­tandum) because every man is nearest to himself; and it's against Nature, for him to be a means of his own punishment: a man ought to preserve himself, although to the hurt of an­other: it were better to kill another, then to kill himself, or to suffer himself to be killed; if of necessity the one must needs be. Therefore, to exact this Inquisitory Oath against a mans ownself, is against the Law of Nature, and so against the Law of God. This is the very same Oath which was brought into England by Pope Martin the fifth, for extirpation of the followers of John Wickliff, called Lollards, about the Reign of King Hen. 4. and was taken up by the Ecclesiastical Courts (as they were called) I suppose, long before it was used in any English Court; and afterwards, it was most famously used in the Star-Chamber, and in the High-Commission, called The Oath Ex Officio; the Defendants being, besides their an­swer, examined upon Interrogatories; as sometimes they are in other Courts. And it's reported, (which I had from good hands) that one Mr. Fuller of Grays Inne having this Oath tendered to him, (as all Non-conformists had, who came in­to the High-Commission) refused to take it, saying, he was not bounden to accuse himself; but said, he would swear, and answer upon his Oath to what they should ask him, so far as he was bounden by Law. He was answered, There was no more desired of him. Thereupon, the honest Gentleman (although a Lawyer) was deluded and cozened with this word Law; which was equivocal, either referring to the Com­mon Law, or to their Popish Tyrannical Canon or Ecclesia­stical Law: and taking his Oath, had Questions demanded of him, of things which intrenched upon his Estate and Li­berty, (for which he might be fined and imprisoned) if not his life. To these he answered, That he was not bounden by Law to answer to them, being against himself; according to [Page 51] that Rule of Right Reason above mentioned: No man is bound to accuse himself. This they declared Perjury; and for that they fined him 300 l. What difference is there be­tween these proceedings, and the proceedings in Courts of Equity, especially when Answers are made to Exceptions, or when the party is examined upon Interrogatories against himself? The best that can be made of it, is, That it is a pro­faning the holy Name of God, and the abuse of an Oath; as being here, not Heb. 6.16. the end, but the beginning, or rather occa­sion of strife: and if this Oath were taken away, men would be sure to have Witnesses present to all their Contracts and Agreements. And it may be observed, that there is no man­ner of credit given to the Defendants Answer: for the Pra­ctisers in Chancery use to say, It's no matter if the Defendant swear the Crow is white, if the Plaintiff can prove she is black. And upon this ground all wise men proceed, in reference to Suits in Courts of Equity; not to prefer their Bill, unless they can prove it, or at least the material points thereof. I have observed, That in almost thirty years practice, I never found one Defendant, who wanted conscience to pay a just Debt, (where it could not be proved by Witnesses) that would ever confess it in an Answer upon his Oath; but rather use the help of some skilful man, to draw his Answer so equivocal, or cautelously, that it might not prejudice his Cause. This hath been, and is a heavie temptation and provocation to Perjury, and so a breach of the Law of God: which causeth the Land to mourn, and therefore ought to be abolished.

Object. 7. And where it is alleadged, That although in Criminal Causes, which are popular, men are rot bounden to accuse themselves; This is the abuse of an Oath, as before is proved. Heb. 6.16. and is a sin against the law of Nature, no man being bounden to ac­cuse himself. yet for discovery of Fraud and Deceit in Cases Personal, they are bounden by Law to declare the truth upon their Oaths in their Answers:

Answ. It may be answered, first, That all Frauds and De­ceipts are things criminal in foro Conscientiae, and for which in most Cases a man may be indicted at Common Law; and, in some Cases, by vertue of several Statutes; as, for fraudulent Conveyances, and for some deceipts in Bargaining, and for cozenage in selling of Wares, and in many other Cases. And if a man in any case were to be enforced to confess the truth [Page 52] against himself, there is most reason it should be done in Criminal Causes most capital; as, when Treason, Adultery, Murder, or some great Felony is committed, and several men accused, Were it not a fair pretence, that every man, to clear himself, and to the end to finde out the Truth, should be ex­amined upon his Oath? And yet this is not allowed in the Law, nor ought to be done, for the reason aforesaid; unless the Defendant will Exo. 22.11 voluntarily offer his Oath: which may be admitted by the Law of God, otherwise Joshua Josh. 7.19, 22. would not have done it in the case of Achan: although he exhorted him to confess the truth, and give glory to God; yet he did not enforce him to swear, but searched his tent for the wedge of gold and the Babylonish garment: neither did our Lord Jesus Christ urge the woman taken in adultery to accuse her self, but asked where her accusers were; Joh. 8.10, 11. and when he saw that no witnesses accused her, he said, No more do I; and bid her go her ways, and sin no more.

Now in those Cases which are not criminal, as about Trusts, and Estates in Land in Extent, and such-like, which may usually be proved by Witnesses, where men are forced to an­swer upon Oath; these do many times intrench more upon mens Liberty and Estates, in respect of consequence, then an hundred trivial Frauds or Thefts: and therefore this will not warrant their answering upon Oath. All the Argu­ments which have been brought a [...]ainst the Oath Ex Officio, (if I mistake not) make directly against this Oath; And it is no more lawful then that Popish Oath (with Compurgators) which was used to be administred in the Spiritual, or rather Bawdy Courts, to purge men of Incontinencie or Fornica­tion. And this is all which I shall say in this place, of these Courts of Equity.

CHAP. XI. That the Theory of the Common Law, and some of the Sta­tutes now in force, c [...]ntain matters repugnant to the Law of God.

TRrial by Plow. Com. fol 366. B. & 261 B. Assize 1 Ed. 3. f. 1. Coke l. 8. f. 46 & l. 9. f. 31 Rast. Entr. Ap. Mort. f. 50. B & Droit. f. 223. A. Cust. No [...]m. tit. Suit o [...] Murdre, f. 70, 71. Cow. Instit. Index Exposit. lit. P. Combate, in an Appeal of Death, or a Writ of Right, when men by themselves or their Champions decide matters in controversie by the death one of another, in a Duel: This is a wicked Law taken from the Heathen Lombards and Saxons, and directly against the Word of God, Num. 35.16, 17, 18. Matth. 19.18. Cock Essay, p. 178. Ro­taris, one of the Kings of the Lombards, had taken away this Law, protesting that it was inhumane and naught. Lewis 9. King of France, is commended for this Edict: Nous defendons battailles par tout en nostre Domaine, en toutes querelles: i. e. We forbid Combats in all Quarrels, thorowout all our Dominions.

2. Myr. Just. c. 3. [...]. 24, 25. Dyer, f. 301. n. 41, 42. Westm. 1. c. 40. Stamf. pl. Coro. l. 3. c. 14 The Combatants and Champions Oaths in an Ap­peal of Death or other Felony, or in a Writ of Right, is like­wise a profaning of the Name of God, an abuse of an Oath, (which is a part of Gods Worship) and a Bond of Iniquity. Jer. 4.2. Act. 23.21. Heb. 6.16.

3. Cowel [...]nst. l. 4. T. 18. [...]. 17. p 324. Westm. 1. c. 2. Stamf. pl. Coro l. 1. c. 9. Art. Cl [...]r. 9 E. 2 c. 16. The Law concerning Man-slaug [...]ter, at the Com­mon Law, when a man killeth another wilfully, (being done suddenly, or in hot blood) he shall not suffer death, if he can reade: This is likewise against the Law of God, Numb. 35.33. Lev. 24.21. Gen. 9.5, 6. Rev. 13.10. Bod. Rep. l. 4. c. 7. p. 542. To prevent Man-slaughter, some wise States have prohibited the wearing of Weapons in time of Peace, for that armed men are more insolent and ready to kill, then other men disarmed.

4. Doct. & St. c. 8. fol. 17. B. Fitz. Coro. 404, & 415. Poult. pax Reg. & Regni, Lar­ceny, f. 129. A. 18 Eliz. c. 4. The Romanes judged it a no­table example of publike cle­mencie, to spare life, where o­ther punish­ments are suf­ficient. Tac. Annal. l. 14. c. 13. p. 215. That a mans life should be in danger for any Theft, or trivial Felony, above the value of Twelvepence, is a Law against the Law of God, who hath ordained Restitution and other Compensations as the Case shall be, (where things [Page 54] stollen are living or dead.) It's a Rule without Exception, given by the Learned, That no humane Law can ju [...]tly take away the life of a man for any offence, without a general or particular warrant from God's Word; because mans life is onely at God's disposing. Willet Hex. in Exod. 22.1. Qu. 3. Exod. 22.1, 3, 4. 2 Sam. 12.6, 19. Luke 8. It may be observ­ed, That where the Laws are most severe against Stealing, as amongst the Arabs, there are most Thieves, through the just judgement of Almighty God.

5. Poult. pax Reg. & R [...]gni, Judgement, Treason. f. 244 6 El. Dyer, 230 Cowel inter verb Treason. Cowel Instit. Jur. Angl. l. 4. Tit. 18. S. 8. p. 317. Anciently a­mongst the Ro­manes, these facts were Treason: 1. Be­traying the Ar­my. 2. Stirring up the people to Rebellion. 3. Bad managing the affairs of the Commonwealth. 4. Impairing the Government and Majectie of the People of Rome. Tacit. Annal. l. 1. c. 15. p. 29. The Judgement in Treason is a barbarous and in­humane Judgement, viz. That the Offender shall be drawn upon an Hurdle to the place of Execution, there to be hanged by the neck; then cut down alive, his Intrails and Privie Members cut from his body, and burned in his sight; then his head struck off, and his body divided into four quarters, &c. This is an act of Cruelty, and too much insulting over a poor fellow-creature in misery. No such kinde of death was amongst the Jews, Greeks, or Romanes: the nearest, were those Torments devised by the Heathens for the Mac­chabees, and those used in the first Ten Persecutions after Christs time; which were devised rather by devils incarnate, then men. All such Cruelty is condemned, Amos 1.3, 4, 5, 11, 12, 13, 14. & Chap. 2.1. Jer. 6.23. Heb. 12.35, 36, 37. Jam. 2.13.

6. Magna Chart. cap. 1. Coke l 4. f. 46. a 9 Ed. 2. c. 16. 8 El. c. 4. 84 El. c. 5 Wingate Law, c. 46. p. 85. n. 11, 12. Cowel Inst. l. 4. Ti. 18. sect. 17. p. 325. The use of Clergie, as it was at the Common Law, is a great offence; when he that could reade, was not subject to be tryed for Murther, and other great Offen­ces; but being claimed by the Ordinary (for a Clerk) should be taken from Judgement. This is said to be the Priviledge of Holy Church, ( viz. of Rome) which is the exalting of the Romish Antichristian Power, above the Law and Word of God, who hath appointed Magistracy for the punishment of evil-doers, without respect of persons in Judgement, Rom. 13.4. All the Statutes made in affirmance or alteration of the Common Law in this Point of Clergie, are unlawful; as to save life in case of Manslaughter, if the Offender can reade; [Page 55] or to take away life for Theft above Twelve pence; and in other cases where men ought not to suffer death, Ezek. 13.19. Jam. 4.12.

7. Custom Norm. tit. For­feitures, f. 24. b. Exp. For. Laws a Manuse. f. 40. Coke Entr. p. 1. tit. Abjuration. Stamf. Pl. Cor. l. 2. c. 39. f. 119, 120. 35 El. c. 1. The Oath of Abjuration of such as took Sanctua­ry, and then abjure the Realm; the same used of late times to acquit Sorcerers and Conjurers, and to punish such as of­fend against Forest-Laws: This is a horrible prophanation of the holy Name of God, and the abuse of an Oath, which is a part of Gods solemn Worship, Exod. 20.7. Heb. 6.16. Jer. 4.2. The Heathen Romans appointed Sanctuaries, whi­ther every lewd fellow escaping, if he could but lay hold on Caesars Image, he was free both from Debts and Punish­ments. This was accounted a Grievance, and condemned by the Heathen Historian, Tacit. Annal. l. 3. c. p. 75. & c. 13. p. 83. & l. 4. c. 3. p. 94. &c. 10. p. 104.

8. Art. C [...]. 9 Edw. 2. 16. Chapters about these Supersti­tions. See the books of Canons, and of Consecrat. of Priests & Dea­cons. Shepherds office of Church Ministers, c. 8. n 2, 3, 4, 5, 6. & Office Church­wardens, c. 9. n. 1, 2, 3. Donus or Do­mus Bishop of Rome, about the year 661. first divided the Romish Clergie into Ranges and Orders of Bi­shops, Priests, &c. The whole Body of the Law, called, The Law of Holy Church, and the Canon Law, concerning Ecclesiastical Jurisdiction, in Bishops, Archbishops, Archdeacons, Deans, Chancellors, Commissaries, Officials, Suffragans, Canons, Spiritual Courts, or Court-Christian, Dispensations for Non-Residence, Restraint of Marriage at certain times, as Ember and Rogation-week, Oath Ex Officio, Compurgators, Sanctua­ries, Penance, Commutation of Penance, Excommunica­tions, Absolutions, Consecrations, Prayers for the Dead, Masses, Dirges, Pompous and Idolatrous Ceremonies; and in conclusion, the whole Body of Popery, upheld and set forth in the old Statutes and Law-books, which are said to be in affirmance of the Common Law, and in other Statutes, many of which are not Repealed: All these are unlawful, having no foundation in Gods Word, and were the Inven­tions of men, tending to corrupt the Worship of God, Psal. 19.7, 8. Exod. 40.16. Isa. 1.12. Mat. 15.6. Mar. 7.7, 9, 13. Tac. Annal. l. 3. c. 7. p. 75. & l. 3. c 15. p 86. Tit. Liv. l. 25. p. 5 [...]5. D. E. l. 43. p. 1163. f. l. 1. p. 32. G. l. 39. p. 1032. & p. 357. a. & l. 23. p. 495. a. & Tacit. Histor. l. 4. cap. 20. pag. 165. Many of these Superstitions w [...]re taken from the Hea­then Romans, onely called by other Names, and used by the Papists, as is proved in the particular places where these things are discussed.

[Page 56]9. Pault. Pax Reg. & Regni, stand Mute, fo. 222. Westm. 1. c. 12 Fitz. Cor. 233, 283, 359. Stams. Pl. Cor. l. 2. f. 149, 150. This Judgment is set down at large, Cowel Instit. l. 4. Tit. 18. sect. 35. p. 334. The Judgement of Paine fort & dure, (when a man charged with Felony, or other Capital Crime, either stands mute, or refuseth to plead to an Issue to be tryed by a Jury) it is, That the party Indicted or Arraigned upon an Inquisition, for his refusal to plead, shall be laid upon his back with a Stone under it, and 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, 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. 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: [Page 57] 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. 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 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) 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 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. 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, [Page 58] Those whom we call Vil­lains & Niess, th [...] 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 Chi [...]dren: And although he that is pretended to be a Villain, bring his Wri [...] to prove himself free, the Lord may seise him as his Vil [...]ain Appius Claud [...]us s [...]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 Appea [...] 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 If the Lo [...]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 above­mentioned 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 Common­wealths, then the discharging of Slaves and Villains; and such Common-wealths were free from Slaves ever since the year 1250, as a 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.

Rast. Entr. tit. Appeal, fo. 51. b. 27 H. 8. c. 24. Poul. Pax Reg. & Regni, tit. Pardon, f. 218. b. & 219. a. 2 Ed. 3. c. 2. 4 Ed. 3. c. 13.13. By the Common Law, the King had Power to Pardon Murther: and it hath been commonly used in former Ages, whereby the Land hath been defiled with Blood. This is an Impious Priviledge or Custome, and clearly against the holy Law of God; and seemeth likewise to be contrary to the Kings Oath, although by a Statute of Edw. 3. Chap. 2. it appears, such Pardons were very common, and ate available in Law against an Act of Parliament, being made with a Non obstante, &c. Prov. 28.17. Jam. 4.12. Exod. 21.12. Weems. M. L. Com. 6. Decal. Exercit. 9. p. 131. Sueton: Tranq. in vita Julii Caesaris, sect. 89. in fine. It's written, That of all the Senate who murthered Julius Caesar, there was scarce one that either survived him three years, or dyed a natural death. The Historian saith, They were all Condemned: and it doth not appear, that any one of them had a Pardon. Bodin. Rep. l. 1. p. 174. & p. 175. No Sove­raign Prince, or any Man living, can pardon the Punishment [Page 59] due to the Offence, which is death by the Law of God, no more then he can dispense with the Law of God, whereunto he is himself subject.

14. Custom Norm. tit. Te­nure par. Ho­mage, fo. 27. b. Kitchin Court-Baron. Cowel Inst. l. 2. tit. 3. f. 3. p. 115 S. 15. p. 119. Wingate Law, c. 7. p. 13. n. 29. The Oathes of Homage and Fealty to Lords of Mannors, are Snares upon mens Consciences, and savour of Tyranny and Oppression: The Oath of Homage (besides that which is mentioned in the old Books, the substance whereof was, That the Tenant would be the Lords True­man) hath many trivial additions to it, which are not of con­cernment enough to be the cause of an Oath, and other things not fit to be sworn unto; and all are against that Law, Thou shalt swear in Righteousness and Judgement, Jer. 4.2. Exod. 20.7. Jam. 5.12.

15. Finch [...], l. 2. f. 20. b. fo. 21. a. The Attributes of God in the Law given and ascribed to the Kings of England, are too high (if not Blas­phemous) viz. Majesty, Soveraignty, Most Sacred Majesty, Infinity, &c. Ubiquity, Immortality, Perfection, Verity, Absolute Justice, &c. Co. Tit. Pa. to his 5, 6, 7, 8, 9, 10, 11 Rep. Plowd. Com. fo. 234. a. & 177. a, b. And by Sir Edw. Coke, seven times King James is called, Le Fountain de tout Piety & Justice, & la vie de la ley, The Fountain of all Piety and Justice, and the life of the Law. O fearful Blasphemy! Although it must be conceived, that these Attributes are but Analogical Expressions, yet it may be observed, That such Arrogancy (especially when by this temptation it's taken to himself, of whom it's spoken) Such Emperors and Princes who have taken that Honour to themselves, which is due to God alone, as did Caligula, Domi­tian, Commodus, Antiochus, &c. have all and alwayes miserably perished, Jun. Brut. vind. contr. Tyrann. p. 14. is a certain signe of Ruine, as was seen in Herod; when the people cried, The voyce of God, and not of man, then was he smitten, &c. Acts 12.22, 23. He that said, Mine honour will I not give to another, will endure no such pride. Gualdo Priorato, Bell. Germ. p. 125. Battel Lu [...]z [...]n, p. 19, 20. Divers of the Roman Emperors would not suffer themselves to be called [...]o [...]l, Jun. Brut. vind. contra Tyrann. p. 51. That famous worthy Gustavus, King of Sweden, foretold his own death upon this very ground; and (although he protested against the impious Acclamations of the people) was slain within two dayes after they were given to him. We condemn such Hyperbolical Titles in the Turkish Emperour and the Pope; and by such means the Heathen Babylonians, Coel. Rhod. Lect. Antiq. l. 8. c. 2. p. 281. Persians, and R [...]mans, came to Deifie their KINGS and EMPEROURS. But [Page 60] Suet. Tran. in vita Augusti Caesaris, sect. 53 Augustus Caesar abhorred such Flattery, and refused so much as to be called Gracious Lord, Corn. Tacit. Prooem. l. 1. Annal. p. 1. & l. 2. c. 19. p. 61. but was called Prince; and it may be observed, That Almighty God, to prevent such arrogancy, when he saith, I have said, Ye are (Elohim) Gods; or, as the word signifies, Mighty Judges, presently addeth, that Ye shall dye like men. All must remember this, Psal. 89.6. 1 Sam. 2.30. Isa. 42.8. & 48.11. Dan. 4.30, 36. Acts 12.22. A very Learned man hath set it down, Bodin. Repub. l. p. 181. That for a Soveraign Prince to arrogate to himself the Titles of Most Excellent and Sacred Majesty, is absurd; the one being a point of Light­ness, and the other of Impiety: For (saith he) what more can we give to the most Mighty and Immortal God, if we take from him that which is proper to himself? And he censureth the Prin­ces of Germany, for that in a Letter to the King of France, there were V. S. M. which is Vestra Sacra Majestas, which he calls, An addition proper unto God.

16. That a Disseiser, taking a mans Land from him by Littleton, l. 3. c. 6. sec. 385. Coke Com. Lit. upon the same place, fo. 238. a, b. Coke l. 2. fo. 56. Doct. & Stud. c. 8. fo. 16. force, after a Discent, he that hath Right, and is the true Owner of the Land, cannot enter upon the Heir of the Dis­seiser: This is an unjust Law, and a ridiculous thing, That he that hath Right may not enter. This was a Custome used in favour of such whose Ancestors had entred upon other mens Lands in the time of Wars, and put out the Owners: Then the Conqueror or Prevailing Party allowed this Priviledge to such of his Party who had so entred. Here a man by do­ing Wrong gets a Right, and the Magistrate ought to reme­dy it, Isa. 58.6. Ezek. 45.9. Psal. 7.16. Luke 3.14. Mich. 2.2.

Charta Forestae cap. Manwood Fo­rest Laws, par. 2. n. 1. par. 1. p. 139. 21 Ed. 1. c. Cowel Instit. verbo Forest.17. The Laws concerning Chases, Parks, and Warrens, are a great Oppression to the Common-wealth, as now things stand, as it's partly declared before, where the Charter of the Forest is spoken of. It's true, King William the Conqueror had a Title which he got by his Sword and by his Bowe, and had the more reason to dispose of those Lands as he pleased, and of the Lands adjacent as men would hold of him: But now time, and (it may be) lawful Purchasees, have made men Owners of such Lands; and to make them subject to the Forest-Laws, is a great Oppression, and contrary to all those Laws of God which forbid Oppression. It is to be hoped, these [Page 61] waste grounds will be put to better use, 2 Chron. 16.10. Isa. 1.17. Prov. 22.16. Ezek. 18.7.

18. 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. 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 5 th and 6 th 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. Westm. 1. c. 4. Cok l. 6. f. 107. a. Cust. Norm. tit. [...] [...]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 [Page 62] 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 th [...] 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 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. 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 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. 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 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, [Page 63] 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 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? 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. Stat. 51 H. 3. Dayes in Real Actions: & 51 H. 3. Dayes in Dower. Preface to the book of Common-Prayer. 5 & 6 Ed. 6. cap. 3. 2 H. 5. cap 4. The Returns of Writs upon the Dayes dedicated to Saints, and Angels, and Apocryphal Saints; and upon Popish Holy-dayes, such as S. The true Michael is Christ, who is like God, as the Name signifieth, Dan. 12.1. But this is some counterf [...]it Michael. Michael, S. Hilary. S. Mar­tin, All Souls, All Saints, The Purification, at the best are Superstitious: and it's determi­ned by the Learned, That the Dedication of Dayes to Saints, is part of the Idolatry of the last times: much worse are some of those Dayes mentioned in the Statutes, dedicated to Idols; as the Rood, Corpus Christi, the day when the Idol, or false Christ, was carried in Procession, and worshipped, being the third of May; S. Thomas the Martyr, that is, Thomas a Becket, mentioned [Page 64] in the Statute, who was adored and worshipped blasphe­mously, thus: Tu per Thomae sanguinem, quem pro te effudit, fac nos Christe scandere quo Thomas ascendit. Verst. Rest. decayed, Intel. p. 54, 55, to 64. The dayes of the Week dedicated to the Sun, Moon, Tuysco, Waden, Thor, Friga, and Seater, being old Saxon Idols. The like may be said of the Moneths dedicated to Janus, Mars, Maia, Suet. Tran. Sup. Jul. Caes. p. 2. & in vita August. Caesar. sect. 31. Syms. Church-History, in the Life of Com­modus, p. 27. Ex Euscb. Ju­lius Caesar, Augustus Caesar, &c. These are taken notice of, and used in the Law upon all occasions, and cannot be chan­ged, without change of the Law; but they ought all to be abolished, according to those Laws, Psal. 16.4. Deut. 12.3, 4. Exod. 22.20. & 23.13. Perk. Idol last Times, 1 Vol. p. 683. Col. 1. August. de Civit. Dei, l. 12. cap. 10. 1 Corin. 10.12. The Tit. Liv. l. 29. p. 719. f. Tac. Annal. l. 2. c. 7. p. 42. Heathen had such Holy-dayes, dedicated to Idols; in imitation of whom, the Papists appointed such dayes as are first mentioned.

25. The Oath, as it's administred in all Courts, smelleth of Stamf. Pl. Coro. tit. Trial per Battel, l. 3. c. 14. f. 177. Idolatry. Willet in Exo. Hex. in Com. 3. Decal. The Jews swear upon their Thorah, which is the Pentateuch, or five Books of Moses. This Custome is condemned as Superstitious: our Laying the Right-hand upon the Gospel or New-Testament, and kissing the same, is no better. Although some Superstitious persons account these very profitable and significant Ceremonies; They ought the rather to be rejected, for that such a kinde of Oath hath no resemblance to any Oath in holy Scripture: But ra­ther the lifting up of the Hand Laws Ge­neva, pag. 12. These Ceremo­nies of Laying the hand upon, and kissing the Book, are con­demned by the most Learned. See the Trea­tise of Oathes, p. 57. written by the Nonconformists. Horn. Mirror Justice, c. 3. sec. 24, 25. Expos. Forest-Laws, fo. 40. an Old Manuscript. is to be approved, and the significancy of the Ceremonies abovesaid (an Oath being a Solemn part of Gods Worship) makes them utterly un­lawful; for that it is the Office of Christ in his Word, to ap­point Teaching Ceremonies in his Worship. And the truth is, by the Common Law, the party Swearing makes Idols of the Saints, and sometimes of the Book; the words are, So help me God, and all Idem Cowel Instit. l. 2. Tit. 3. sect. 8. p. 115. & sect. 15. p. 119. & p. 287. Saints; and sometimes, The Contents of this Book, Gen. 14.22. Deut. 32.40. Rev. 10.6. Deut. 6.13. Mat. 5.34, 35. Some Lawyers hold, and amongst the Civi­lians it hath been constantly used, That the Guardian may swear upon the Soul of his Minor or Pupil: The very words of the Law are these, which I finde in a Cowel Inst. Jur. Angl. l. 1. Tit. 21. sect. 4. p. 70. Ex Fitz. N. B. f. 118. Body of the Law, [Page 65] set forth by the late Kings Professor of Law in Cambridge, Custos in Animam minoris Jurare potest: and so the Proctor or Attorney may swear upon the Soul of his Master. This is the same with Jurare in verba Magistri.

26. Kitch. Felo. fo. 26. 23 H. 8. c. 1. 1 Ed. 6. c. 12. 5 Ed. 6. c. 9. 10. 8 El. c. 4. 39 El. c. 15. Doct. & Stud. c. 8. fo. 17. b. The Law against Felonies in many Cases, as the Stealing of Goods worth five shillings out of a house, or from a Stall in a Fair or Market, or any small sum of Money from a Mans Person secretly, and some greater Felonies, for which the party convicted shall have Judgement of Death, without any mercy or moderation of Justice, as it's called; when more heinous Offenders have favour shewed them, by means of that foolish Usage, The Clergie: This severity is clearly against the Law of God. Willet Hex. in Exo. Gen. Observ. p. 4. Rawl. Hist. l. 2. c. 4. sect. 16. for the Magistrate to shew more ri­gour then Mo­ses, becometh not the Gospel. It's a Rule amongst the best Learned, That it is not lawful for any Magistrate, to in­flict a greater Punishment for any Offence, then is appointed by Moses Judicials, (although it's held, there may be a miti­gation, Circumstances being considered, in some cases not Capital) nor to adjudge any man to death, where the Sen­tence of Death is not given by Moses. Willet Hex. in Exo. General Observat. p. 4. Godw. Ant. Rom. l. 3. sect. 3. c. 9. Cock Essay, p. 166. This severity may better be turned to servitude and labour (where Restitution cannot be had) in the House of Correction, like the Romans Pistri­num, or Metallum, or Mine-works; or the Greeks [...]. This would be a greater terror to the Atheists of this Age, then Death it self; (it being a professed Maxime amongst such, That a short life and sweet, is better then a long life and sorrowful) and the same is more agreeable to Gods Law, Eph. 4.28. Exod. 22.1, 3, 4, 7. 2 Sam. 12.6. Tac. Annal. l. 14. c. 13. p. 215. Where other Punishments are by Laws inflicted (without note of Severi­ty) for Crimes not Capital, which make mens lives mise­rable, There is no use of the Executioner or Halter.

27. 15 H. 7. c. 8. Finch [...], f. 145. b Rast. Entr. tit. Quare Impedit, fo. 473. a, b. 474. a. 465. b. Coke Entr. tit. Quare Impedit, fo. 469. a. 489. a That Law, That he that hath the perpetual Ad­vowson of a Church (as it's called) may sell the next Presen­tation when the Church is full, so the Incumbent be not Lan­guidus in Extremis; it being a Lay-Hereditament: This is an Impious Law, and the Merchandize of Rome; whose Mer­chandizes are (amongst other things) said to be the souls and [...] bodies of men (not Slaves, as it's usually read; for that properly appertains to the Turk.) And this Prophe­sie [Page 66] 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 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 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, 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 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, 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 [Page 67] in 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 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 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. 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. 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 Wing. Law, c 19. p. 30. 1 [...] 27. Deodands, which is by Law [Page 68] declared to be something given (or as it were forfeited) to God, for 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: 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; if one cast out the other by force, and so keep him out by force, he cannot be restored to the possession, by the Statute 5 R. 2. So if a Disseissor or Abator of the Ancestor, be in possession before the Heir (his Ancestor being dead) and holding him out by force, he cannot have restitution, Mic. 2.2. Exod. 20.17. & 21.28. Rom. 7.7.

33. The Common Law establisheth an Idolatrous Service to be done by Popish Priests (in stead of the true Service of God, Coke Com. Lit. l. 2. c. 6. sect. 134, 135. Found. Colleg. Wigorn' by H. 8. Can. 14. & 58. performed by a lawful Ministery) whose chief work was the Offering up the unbloody Sacrifice of the Mass; which with their Blasphemous Prayers to Saints, and foolish Peti­tions for the Dead; their Crossings, and pompous Ceremo­nies, and such-like bodily Exercises, is called Officiating the Cure (a word still retained:) they are also to see Holy-days observed. Sheph. Office of Ch. Minist. p. 262, 272, 273. 5 & 6 E. 6. c, 3. Now at the best, the Statutes favour a read­ing-Ministery to do Divine-Service, as it's called, and to [Page 69] reade Homilies; and I know no ancient Law, to enforce any man to do more. And accordingly, most of the Parsons and Vicars of the last Edition, do after this manner; for they have no gift of Preaching, nor are they in any sort apt to teach, but can onely reade a written Sermon out of a book, which is but a Childe's work, and therefore are not to be accounted any Ministers of the Gospel. This will never be amended, so long as the Parishes stand as they do: some of these Parsons or Vicars have said, They have not Curam Animarum; there is the Land to pay them their Tythes, they will do what they are bounden to do, and no more. However, this is a great Profaneness and Impiety, and contrary to the Duty of a faithful Minister, Neh. 8.4, 8. 2 Tim. 4.2. Acts 13.16. 1 Tim. 4.13.

34. The Garments of the Serjeants and Judges, especially at the Serjeants being called to that Degree, when they come to the Chancery-Bar to have their Charge, are Superstitious, inasmuch as they are accom [...]ted significant Ceremonies. The Robe, the Coyf, the Hood, and all the rest, all very Lord Finch his speech in Chancery to the Serjean [...]s call'd when he was Lord Keeper. It is said, that the Ensigns be­longing to the Doctors lately created in Ire­land, were by the Dr. of the Chair all Expounded and made significant, &c. Theologically, or rather Superstitiously expounded by my Lord Finch, when he was Lord Keeper, which I heard with my own ears. These things were never ordained to teach mens duty to God; but, such Garments serve for Civil Or­naments, and distinction of the Degrees of Men; as the Sword, the Cap, and the Mace, &c. are Ensigns of Magistra­cy fit to be used: But we must not learn our duties to God, by the Traditions of Men; we are sent To the Law, and to the Testimonie: Christ is the Teacher of his Church, Mat. 17.5. Isa. 8.20. Joh. 14.26.

35. That Canon 67, 68. Marriage, Canon 72. Burying the Dead, Funer [...]l Orations used a­mongst the Heathen Romans, Tac. Annal. l. 3. c. 15. p 88. So Marriage was used with Con­farreation with a Cake of Wheat, as a R [...]ligious Ceremony. Godwin Antiq. l. 4. c. 5. pag, 94, 95. and Funeral-Orations or Sermons, are by the Law belonging to the Ministerial Function: Whereas Marriage is a Civil thing, common to all Nations, and is to be Celebra­ted by the Magistrate, Cock Essay, p. 152. and it was never used otherwise, until the Church of Rome thought it profitable to be made a [Page 70] Sacrament. At New-England Marriages are solemnized and done by the Magistrates, and not by the Mini­sters, Lechford News, p. 39. At Burials nothing is read, nor any Funeral-Sermon or Oration, Idem ut supra. And for Burying the Dead, it's no more then a work of Civility and Charity: Devout men carried Steven to his Burial, and made lamentation for him, as Israel did for good Josiah, and the Egyptians and Joseph did for Ja­cob; and, The dead may bury their dead. And for their Funeral-Sermons, or rather Orations, they were used by the Heathen, and taken up by the Papists; the first Praised the Dead, the last Pray for the Dead. But I do not finde, that anciently the Minister had any more to do in these things, then any private man; and the use of them is Super­stitious, and contrary to the practice of Scripture-Saints; and the last tends much to harden men in a course of sin, generally all men being praised when they are dead, although they were never so wicked, if but any thing of good, either in word or action, was wringed from them in their sickness, or in their life-time: as Fuller holy State, l. 2. p. 104 who is so bad, but something which is good may be gotten from, or observed in him? Deut. 25.9. Ruth 4.2, 8, 9. Joh. 2. Gen. 50.7, 10. Acts 8.2. Marriage is inrolled as a Civil Contract by the Magistrate at Ge­neva Laws Ge­neva, p. 27..

36. The Law enforcing all persons of age of discretion, how profane soever, Bishop Neals Injunctions in Lich. Dio: grounded upon the Canons. to communicate at the holy Table of the Lord three times in the year; whereof one to be at Easter. And although sometime Ministers have seemed to purge their Parishes, by calling them to a kinde of Auricular Confession, (which is a way of Antichrist) yet is there no restraint, nor is it any offence against our Law, to admit all to the Ta­ble; contrary to the Word of God, 1 Cor. 11.28. Heb. 10.29.

37. 7 H. 4. c. 15 8 H. 6. c. 4. Plowd. Com. fo. 126. a. Rast. Entr. tit. Parliam. f. 410. The Chusing of Knights of the Shire in such a Po­pular way, the Voyces being made alwayes by Imbracery, Terrour, or Friendship, is a Wrong and Oppression. The course used in Chusing Officers amongst the Romans and Grae­cians, and the choyce of the Duke of Venice by Billets, is a more excellent way, where no exception can be taken: but most impartial and agreeable to the Word of God, is casting of Lots, Godw. Ant. l. 3. c. 2. p. 135. used at Geneva: See the Laws of Geneva, p. 12. At Genoa, Bodin. l. 2. p. 232. At [Page 71] Venice: So the Senate is Chosen at Bern, Basil, Zurich, and generally in all Common-wealths.

38. 1 El. c. 2. 35 El. c. 1. Coke Entr. In­dictment, 352, 353. A Form of Prayer for Publick Worship, the Book of Common-Prayer, and since the Directory for Worship, in this respect the same, are unlawful; for that a certain number of men, as if they were the Representative Body of the Church, conceive a Form, and all men are enjoyned to use the same, or the like in effect. This is a Humane Invention put upon the Ministers and People, without warrant from the Word: and (as a wise 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: 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. 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: 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 [Page 72] 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. 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 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 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 such­like: 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 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 [Page 73] 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 Pe [...]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. 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: 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 onely be imprisoned as Jeremy was, but may be hanged: Therefore such Laws as these had need to be Expounded, or Declared void, 2. Thess. 3.1, 2. Isa. 29.21. Jer. 26.6, 7, 11. & 18.19. 2 Sam. 12.7, 13.

43. That an Heir, having Lands Descending in Fee-simple, shall not be subject to the Debt of his Ance­stor, from whom the Lands descend, if he sell the Land [Page 74] Custom. Norm. tit. querel. de debt. fol. 87. Cook Entr. a. fol. 126. b. before the Action brought. This is an unjust Law; for that there is as much (nay more) reason to charge such an heir after the Alienation as before, for then it is ascertained what the value is, as well as in case of an Executor, and what benefit it is to him without hazard, 2 Kings 4.1, 7. Rom. 13.8.

44. That Lands taken in extent, or seized upon an Utlawry at the suite of a private man for debt, the issues and profits thereof should go to the King, and so to the Lord Protector, is a senseless and unjust Law, seeing the Creditor sues for his just debt, and is at all the charge. New Term. Law. verb. Ʋtlaw [...]y. Coke l 6. fol. 80. & l. 7. f. 3. & l. 3. f. 2, 3, 4, 35. 22 Ed. 3. l. Ass. Pl. 33. 29 Ed. 3. l. Ass. Cowel Inter. verb. Ʋtlawry. Wing at Law, cap. 37. pa. 59. N. 19. The like may be said of all Utlawries, where men are utlawed in forren Counties, and seldome or never hear of the suite; the Proclamation grounded upon the satute of 31 Eliz. being never duly proclaimed, but returned of course; yet the party utlawed, by the Common Law forfeits all his goods and Chattels, and likewise the profit of his Lands, until the Utlawry be reversed: this is a harsh Law, and used to insnare men, and might well be amended, Jer. 5.26. Levit. 25.43, 46, 53. Isai. 58.6. Job 35.9.

45. Clerks Pro­posals, second Paper, 1650. N. 9. Justice Hutton in a cause heard before him. C. B. That a man indebted upon a single bill without a penalty, payeth the mony at the day, and can prove it by wit­nesses, but hath not the bill delivered up, as it falls out many times, nor any release from the Creditor under his hand and seal: An Action is brought upon this bill by the Creditor, or his Executor, or Administrator: The Defendant cannot be admitted to plead that he paid the mony at the day, nor can make any defence at Law, unlesse he have a release: this is an unjust Law, and a wrong to the Debtor, and so unlawfull, Job 16.17. Jer. 21.12. Ezek. 18.7. Prov. 22.22.

46. 26 Ed. 3. l. Ass. Pl. 41. 12 Ed. 3. l. Ass. Pl. 20. 29 Ed. 3. l. Ass. Pl. 68. 40 Ed. 3. l. Ass. Pl. 22. Kitchin. fol. 162. a. That a Wife having right to be endowed, and no­thing to be said against it, shortly after her Husbands death shall be a trespasser to her own Child, or any other, who is heir to her Husband, and shall have nothing untill shee have recovered it by a writ of Dower, which is a tedious way, and the proceeding and Execution thereof chargeable: This is an uncharitable Law, and contrary to that Law of Equity, that a Wife should partake in all her Husbands estate, accor­ding to his degree and ability; and Dower is one of those [Page 75] three things which are said to be favoured in Law; but this is small favour, 1 Sam. 1.5. Exod. 2110. Mal. 2.14. Eph. 5.33. 1 Tim. 5.4.

47. Custom. Norm. tit. Murder. f. 75. a Rast. Entr. Imp. 1574. Barn. in Ap­pel 8. fol. 43. & in mort. fol. 46. 47, 48, 52. a. That in an Appeal of Murder, the Wife or heir of him that is slain, bringing an Appeal against the Murderer, may compound for mony, and give a release of the suite, and so consequently of the death of the party slain: this is an impi­ous Law, against the Law of God, Gen. 9.6. Exod. 21.12, 14. Numb. 35.30, 31. Rev. 16.6.

48. That a Priest, or one in holy orders (as he is said to be) should have Coke Inst. 2 part, pag. 4. Orig. Reg. fol. 147. Capias si Laicus, sur stat. de Acton, Burnet. See the statute, 23 H. 8. c. 6. & 37 H. 8. c. 9. Cons. Norm. tit. Cler. fol. 146. a. Cowel Instit. lib. 3. Tit. 2. Sect. 5. pag. 225. an Exemption and freedom from arrest upon a Capias si Laicus, upon a statute-Mer­chant; and that all other men called Laicks should be charged, although the Priest were the princi­pall Debtor, and never was any Preacher, but some Chorister or such like fellow: this Law is both unjust and superstitious, as being one of the priviledges of the Romish Church, Prov. 20.16. and 27.13. and 22.26, 27.

49. That a poor man taken in Execution for debt, and having nothing to pay, by Law cannot be discharged, nor Coke Entr. Audita Querela, fol. 85, 86, 87. Coke l. 3. fol. 44. enlarged for an hour (without losse of the debt for ever,) but must starve and dye in prison; whereas in some Countries, Rous Att. Ant. l. 3. c. 1. pag. 96. Tit. Liv. l. 8. p. 301. D, F. This Historian saith, that the Law was, 1. That none should be kept in fetters, but he that was to suffer for some heynous offence. 2. That for lent mony, the goods of the debtor should be obliged. 3. That no man should be imprisoned for debt. the goods of the Debtor go to pay his debt, and his body not to be Imprisoned: but if you will keep a man in prison that hath nothing to pay, you must main­tain him; or else let him go out, and by that means men going to the Indies, or following their profitable imployments, many times become able to pay their debts, and leave estates for po­sterity. The Law hath been lately moderated by several dispensations or pardons; but there is yet no certain Law in force in the point, providing equal Justice and equity both for Creditor and Debtor, Matth. 18.26, 29, 33. Isa. 58.3. Luk. 7.42. Coke estay, pag. 166. Tacit. An­nal. l. 11. c 4. pag. 145. Pompo­nius made a Law to restrain the cruelty of Creditors, and for­bidding them to lend mony at Interest to young men, to be paid after their parents death, lest they should be deceived or ruined by such borrowing.

[Page 76]50. 5 Eliz. 23. Regist. f. 65, 66 67, 70. Cowel Interp. verb. Excom. Capiendo. N. Term Law, verb. Excom. Wingat Law, c. 38. p. 62. n. 19, 20. The Writ de Excommunicato capiendo, being in nature of an Execution against him that is Accursed, that is, Excommunicated fourty days; from which no Money will redeem a man, nor any thing else, but the sacrificing of his Conscience, in doing what the Ordinary will have him do; which is called, being justified by his Ordinary: This is a wicked Law; and many have been Imprisoned, and others enforced to leave their Country, for fear of this Execution; this being the worst thing the 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, 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. 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 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 Chi [...]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 [Page 77] 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. 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 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 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 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-con [...]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. 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 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 [Page 78] 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, 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 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.

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 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,) 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 [Page 79] 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. 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 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 plow­shares blindfold. That by hot water, was by thrusting the par­ties Armes a [...]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 plow­shares (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 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. Its 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 que [...]ioned for their lives; they ought to be tryed by the testimony of wit­nesses, Deut. 17.6. Numb. 35.30. Heb. 10.28.

56. 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. 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 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 [Page 81] 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 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 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 whereof S r Edw. Cook accounts He­reticks: these are likewise uncapable to make any will, to be Executours, or receive any legacy. The best of the people of God in England are of this Religion, holding the same faith with the followers of John Wickliff, who were a busively called White way to the true Church. Sect. 50. pag. 393. Lollards. By this we may see, what lets, but that the faith­full servants of God might be wasted and destroyed as in for­mer times? not our Laws, but our Magistrates, for whom we are to blesse God: in the mean while, this is a wicked and cruel Law, both against Religion and Common right, 1 Sam. 25.2, 8, 11. Rom. 13.7. Gen. 14.23. Numb. 22.30, 32. Rom. 13.7.

59. Tenure in Plow. com. Sharringtons Case, f. 305. b. 7 & 8 Eliz. Littleton Fran. Almoig. fol. 30, 32. Wingat. Law, cap. 7. pa. 13. N. 18. free Almes, when Lands are granted to men for to say prayers, Masses, and other Divine Services (as Littleton calls them,) for the Souls of the Donors, and for the Souls of their Fathers Children, or Ancestors: these grants usually were made to Monasteries and Hospitalls, and also to Deanes and Chapters, and to the parsons of Churches. But this Tenure is Impious and Superstitious; and yet the same is both favourably spoken of, Coke com. Littleton. l. 2. cap. 6. Sect. 134, 135. A learned Civilian saith of such Tenants, who hold in free Almes, that pro donatoris & suorum, tam vivorum quam mortuorum Animis apud Deum orationibus, & Divinis Officiis Intercedant. The King might, and the Lord Protector may make such a grant at this time. Westm. 3. Cowel Inst. l. 2. T. 2. S. 24. p. 125. Impr. 1630. and commended by the [Page 82] Lawyers in our Law-books, since Queen Maryes time, that Popery was abolished in some measure. It ought to be taken away as Idolatrous and Superstitious; the rather, for that the mindes of men are too prone and ready to be led aside to such Superstitious Vanities, and Will-wor­ship, repugnant to the Law of God. Sir Edward Coke in countenance of such Superstitious Grants, hath this passage: Nu [...] quam res humanae prospere succedunt, ubi Divinae negli­guntur: But this poysoned Divinity ought to be con­demned, and some Law provided against such Supersti­tions, Isaiah. 1.12. Rom. 14.23. & 10.8. Matth. 15.3, 6. Coloss. 2.8.

60. That where Lands come to the Lord of the Fee, by Attainder of a Traytor or Felon, the King hath Coke Comment. Littleton, Relief, l. 3. sect. 514. fol. 294. Wingate Law, c. 19. p. 30. n. 13. Cowel Instit. l. 4. Tit. 18. sect. 10. pag. 319. Idem Index Expos. Litera a, u. & l. 4. Tit. 18. sect. 45. p. 341. Annum diem & vastum: The Law in this case is, That the King shall utterly waste the Inheritance, by plucking down Houses, cutting down Trees, Ploughing up Meadows, &c. and at Common Law, such was the Judgement in an Attaint up­on a false Verdict. This is ridiculous Law, and a preju­dice to the Common-wealth; contrary to that frugality which our Saviour enjoyned, touching the very Fragments which remained, after he had fed four thousand, and five thousand persons with meat which cost nothing, and yet he would have nothing lost or spoiled, Joh. 6.10, 11, 12. Mar. 8.8, 9. Mat. 15.37, 38.

61. That there should be no Littleton, l. 3. c. 12. sect. 691. Coke Com. Littleton, Remitter, fol. 362. b. Wingate Law, c. 22. p. 33. n. 11. Cowel Instit. Jur. Angl. Index Expos. litera R. Recordum. Averment against a Record, is a hard Law, and may at some times prove unjust; considering what men of mean Credit, & less Conscience, many times have the keeping of them. It is neces­sary general Credit should be given to Re­cords; but yet where just causes of Suspition and Cor­ruption may appear, it's necessary the validity of such Re­cords be put to Tryal: The contrary is a means to coun­tenance Perjury and Forgery; and therefore this Rule of Law would be Expounded and Amended, for Preserva­tion of Truth and Justice, Isaiah 8.1, 2. 2 Cor, 13.1. Ezra [Page 83] 4.15, 16. compared with Ezra 6.1, 2, 3. Exod. 23.7.

62. That the Widow of the Kings Tenant of Lands, to which the King is intitled by Office held of him in Chief, before she could have her Dower assigned by a Writ de Dote assignanda, should take her Oath in Chancery, Not to Wingate Law, c. 38. p. 60. n. 4. n. 6. Marry without the Kings License: This is an Unreasonable Law, and was one of those Badges of Slavery attending Knight Service-Tenure, which was brought in by William the Conqueror; and is contrary to that Law of God which gives liberty to all persons to marry (onely in the Lord) at their own will and pleasure, 1 Cor. 7.2, 9, 28, 29. Gen. 2.24. 1 Tim. 4.1, 3.

63. The Heathen Romans ordain­ed Sanctuaries, and were a grie­vance to the State, Tac. Annal. l. 3. c. 7. p. 75. The King might (notwithstanding the Statute taking away Sanctuaries) appoint any place to be Wingate Law, c. 48. p. 68. n. 48. &c. 40. p. 70. n. 69. n. 70. a Sanctuary or Safeguard for any Offenders flying thither, (although they had committed Murther) and such Offenders once getting to such a Sanctuary, shall not be enforced to answer any Indictment or Accusation for the fact, but may confess the fault to the Coroner, and abjure the Realm. This is an impious Priviledge, and the Oath un­lawful, as hath been before said, and ought to be altered, for that all men ought to be punished for great Offences, 1 Kings 20.42. Prov. 28.17. Numb. 35.16, 19, 31. Rom. 13.4. Symson Church-Hist. Cen. 7. p. 364. These Sanctuaries were ordained by Pope Boniface the Fifth, Res Sacrae sunt, quae rite & per Pontifices Deo consecratae sunt, veluti aedes sacrae, dona, quae administerium Dei dedicatae sunt; ut Cali­ces, Cruces & thuribula: Item loca sacra sunt Ecclesiae, Capello, coemiteria, &c. Cowel Inst. l. 2. Tit. 1. sect. 8. p. 81. Impr. Anno 1630. and are still available, if the Lord Protector please; and in our Law, things made Holy or Sacred, are not to be violated.

64. That an Utlawry should be Wingate Law, c. 46. p. 86. n. 21. Judgement in it self for Felony, is a hard and unjust Law, because a man may be Indicted and Utlawed, and never hear of it. It is a worse Law then the Heathen Romans had, which was, That no man was to be Condemned nor Judged, until the Accuser and Accused came face to face: and it is contrary to those Laws of God, which require all persons accused to be [Page 84] judged upon the Testimony of Witnesses, 2 Cor. 13.1. Acts 25.16. Numb. 35.30. Deut. 17.6, 7. Joh. 7.51.

65. The like may be said of that Law, where a man may be judged to be branded, dismembred, and his life in danger, for a few unadvised or rash words; 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: 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 R [...] ­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. 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, [Page 85] in folio. The Laws of Athens were no more then might be read over in one day: and every year upon the [...], 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. 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; 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 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. 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 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, oppressi [...]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 Ecclesias [...]ical Orders, made (as it were) another Common-wealth, free [Page 86] 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 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 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 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 [Page 88] 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.

Westm. 2. c. 1. Stat. de Donis Condit. 27 H. 8. c. 10. Statute of Ʋses, Ch [...]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 [Page 89] some cases there can be no 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 re [...]urn habend. he that took them, and obtained the Jud [...]ment, can neither use them as his own, nor sell them; nor can the former owner have them again, but either the Taker mu [...] 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 Stat. 51. H. 3. concern. day [...]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 ev [...]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 [Page 90] 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. Psal. 12.3.

8.

That a man being after some sleight manner assaulted with a small stick, (which it may be the party assaulted, wayting for such an advantage by provocation, did procure) falls upon him that assaulted him, and beats him so sore, that he puts him in danger of death: the party so beaten brings an Action of assault and battery, &c. the Defendant either pleadeth Son assault Demesne, or pleads the general issue, and by power of the last Act gives this special Justification in Evidence. Then the only Coke Entr. fol. 644. a. question is, who began the affray: and if it be proved that the plaintiffe who was so grievously beaten, gave the first assault, then he loseth his suite, and must pay the Defendants Costs. In point of Conscience, it ought to be considered, aswell who had the hurt and losse, as who began. This is an incouragement of private re­venge, Lord Bacon Essayes, Title Revenge. which is term'd by that learned S t. Francis Bacon, a kind of wild Justice, which is to be weeded up, Rom. 12.19. Prov. 2O.22.

9.

The same may be said of that Law, (as it is now in practice. This is likewise the Common Practise.) If upon a slight occasion first offer'd, one man kill another; The Jury usually find such a man guilty of Man­slaughter in his own defence. I confesse the Ancient Law [Page 91] hath been, that no man could be said to kill another in his own defence, i [...] he could have escaped from the party: and in [...]ances of [...]uch ine [...]itable necessity are shewed, where a man is pursued to a River or a Wall, or as far as he can go, and then must eith [...]r defend himself by offending his adver­sary, or yei [...]d to be slain: In such a case it's better to kill then be killed, and Justifiable by all just Laws whatsoever; but the practise is after another fashion, as above said, and against the Law of God: there is a difference to be put be­tween him qui infert Injuriam, and him qui propulsat Injuriam. Weemse, M. L. Com. 6. Exercit 7. pag. 115. 2 Kings 6.23. Rom. 12.19.

10.

The practise of suing a man to the Exigent, This is every Terms Practise, and observed both by the offi­cers and practi­sers. where there are four Writs, viz. the Original, Capias, Ali­as, and Pluries; which should every of them have fifteen dayes at the least, between the Teste and Return, and were anciently return'd by the Sheriff, from whom regularly the Defendant might hear of the suite. But now as the practise is, in the first week of a Term, these four Writs may all be sued forth, filed, and the Exigent and Proclamation taken out in a day, or an hour: And in this case, if a poor man be sued for a debt of forty shillings, or any petty trespass, he shall never hear of it until the plaintiffe hath spent 15. shil­lings 7 pence: and if so soon as the Defendant hears of it, he pay the debt; or agree the trespass, it must cost him that 15 shillings and 5 pence, and 5 shillings more to withdraw the suite. But if the Defendant never hear of the suite, (as it oftentimes falls out) until he be Utlawed, the Reversal of the Utlawry costs him above thirty shillings: and if he be taken (upon the new Orders) he must procure a Supersedeas, and reverse the Utlawry by a writ of Errour, which will cost him above 40 shillings: and all this is said to be for the be­nefit of the Court, that is, the inriching of the Offi [...]ers. A Summons with a penalty in Terrorem, like a Subpoena, were a more equal just way; for that experience shews, that where one of forty fails to appear upon a Subpoena, there is not one of five, who appears upon common Processe. This [Page 92] ought to be amended, as an oppression of the people, Isai. 33.15. 1 Thes. 4.6.

11.

The Law imposing the forfeiture of a mans goods and Chattles, for flying for felony, Every Jury which passeth upon a felon, hath this in ch [...]rg [...]: al [...]hough they finde him not guilty, yet they are to enquire and pres [...]nt, whe­ther the f [...]lon did flie for it; and then what goods and chat­tels he had, &c. as it's now in use, is an unjust Law. Suppose a simple man being questioned, or suspected of felony; or if such a thing be pretended, and the poor man unwilling to fall into his Enemies hands, fear­ing their power or malice, or being fearful of Imprisonment, foolishly runs away and absents himself; some short time afterwards yeilds himself (being better advised) and upon his tryal is acquitted; but upon the evidence he is found to fly for it: in this case he loseth all his goods. There is no reason that a poor man in such a case should lose all his goods and Chattles, if he be not guilty of the felony: his flight was but to save himself; and every creature naturally seeks its own preservation: if the poor man had resisted the Officer, or those who pursued, there had been some colour to punish him; and so if he had been guilty of the felony, he must have suffer'd the Law: But the losse of all a mans goods and Chattles, (if he had five-fold as much as was stollen) might be too great a punishment, if he should be found guilty; much lesse should he lose all for flying, when he is not guilty, 2 Sam. 15.11. Rom. 15.1.

12.

This is likewise admitted in all Courts. If the Jury will be­lieve the wit­ness, a single witness is suffi­cient. Cons. Norm. Tit. Privil. Crucis. fol. 139. a.That any person charged with any offence touching his life or member, should be convict upon the Testimony of a single witness, is an offence against the Law of God, and contrary to all Rules of Scripture. The civil Law is in this point more agreeable to the Law of God, and so likewise was the Law of Normandy, which determine the Testimony of one single witness insufficient to charge any man in the cases aforesaid. And the like may be said of a single evidence in personal Actions, (where there are not other circumstan­tial proofs, evidencing the matter in question,) that no Judgment is to be grounded thereupon, Deut. 17.6. 2 Cor. 13.1. John 8.17. Matth. 18.16. Heb. 10.28. Numb. 35.30.

13.

The like may be said of the tryal of men charged with felony or other such like Crimes: the Prisoner hath not liberty either to have witnesses sworn for his defence, to clear him; nor admitted to have any Counsel, Wingat Law, cap. 40. p. 70. N. 64. if he deny the fact, although there be a Lawyer as Eloquent as Tertullus against him; unlesse he come in upon his traverse, that is, if after the Bi l found, and presented by the Grand-Jury, the Prisoner can provide three pounds or more, to pay the fees of the traverse, he shall be allowed Counsel for his mony; but if he be a poor Thief, and hath no mony, he shall have no Counsel; however, the Judge will hear his wit­nesses 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 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 in­diff [...]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 Injus [...]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 con [...]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 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, prolic [...]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 [Page 94] 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 Off [...]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 Tit. Liv. l. 39. p. 1051. f. & 1052. G. Those taxes are most necessary, which are im­posed upon cu­riosities and dainties; as rich Perfumes, clo [...]h of gold and silver, Silks, Cyp [...]ess, Laces, rich Colours, Pea [...]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, 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; Ki [...]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 have his Body at Westminster, at the day of the Return of the [Page 96] Writ, without danger of death. So if a Prisoner be bailed, and a Bond given for Appearance; if the Bond be [...]uffi [...]ient, the Sheriff will return, That he hath taken the Body of the Defendant, and hath it ready at the day: and sometimes when the Defendant is Arrested, and at liberty, the Sheriff will return, That he hath the Defendants body in Prison, and that he languisheth; when he goes abroad, but is not minded to appear to answer the Suit. The Common Barre, and the story about Black-acre and White-acre, and such things as are invented, when men give to others colour of Title, as an inducement to some other matter: All which things are repugnant to Honesty and Simplicity. The like may be said of Proceedings in Courts of Equity: If a man sue for Lands, to which he pretends an Equitable Right, as a ground of Equity; to make his Bill hold, he usually al­ledgeth, That the Plaintiff hath lost his Evidences; That they are come to the Defendants hands; That the Plaintiff can maintain no Action at Law for them, because he knows not the Dates nor Contents of them, nor whether they be in Boxes, Bags, or Chests; and divers other such other false surmises: when the Plaintiff hath the Evidences in his own Custody. In a Bi [...]l, where a man sues to have an Agreement performed, it's usually alledged, That the Witnesses to prove the Agreement, are dead, beyond the Seas, or in re­mote places unknown; or so impotent, that they cannot be produced at any Tryal: West. Symb. 2 part. Tit. Fines, sec. 112. Old Natura Brevium, fo. 20 and many such-like. So like­wise, in a Commission to take the Cognizance of a Fine, it's alledged, That the Cognizors are so impotent, that they cannot travel to a Westminster, without danger of death; when they are in perfect health. These, and many more lyes and falshoods, are made, and entred of Record every Term, which are clearly sinful, and ought to be reformed, Job 13.4. Acts 5.3, 4. Coloss. 3.9. Revel. 21.27. & 22.15. Luke 19.8.

16.

The uncertainty of the Law for want of a standing Rule, (the Law it self being but meer Opinion, is a matter of great prejudice, and causeth an excessive charge many times [Page 97] to the Suitors: The Judges (being Bodin. Repub. l. 3. c. 5. p. 325. The Magistrate is a living or breathing Law. There hath been a Judgement upon a Writ of Error in the Ex­chequer Chamber, given by all the Judges, That no Information will lie in any Court at Westminster, but in the proper County, before the Justices; and yet such Infor­mations are constantly brought and prosecuted every Term, contrary to that Judgement grounded upon the Statute of 21 Jac. c. 4. called the Speaking Law) very frequently differing in their Opinions; and sometimes the same Judges, when Lawyers have given that under their hands for Law, which when they have come to be Judges, upon second thoughts they have judged otherwise: although such Judges have been known and reputed to be men of Integrity and clear Judgement. And this uncertainty is not onely about the high­est Apexes of the Law, but in things of ordi­nary concernment: As about Waste; abun­dance of Money hath been spent, to know what power is given to a Termer by these words, To hold, &c. Coke lib. 4. fol. 62, 63. Herlackendens Case, compared with Iewes Boles his Case. Coke lib. 11. fol. 81, 82, 83. See the many Cases there cited. without Impeachment of Waste: whether he be onely discharged of unvoluntary Waste; or whether the Termer may take down fixed Wainscot, or such-like, which he set up; or whether he may not cut down Timber-Trees, and pluck down houses: and further, whether he may not take all the Materials to his own use. If I mistake not, all these things have been judged Negatively and Affirmatively: And the last Solemn Judgement was, That in such a case, a Termer might commit wilful Waste, and take all the Mate­rials to his own use; which is Repugnant to all former. Judge­ments: and yet all the Judges are not now of the same O­pinion in some of the Cases above-mentioned. It were an easie matter to set down twenty such Cases, where the Judges have been divided; and in divers Cases, where one Court hath agreed, the other Judges (upon a Writ of Error) being the greater number, in the Exchequer Cham­ber, have reversed their Judgements. The like uncer­tainty is found in every mans practice in There are many Contro­versies concer­ning Actions upon the Case for words; and many times, words of high concernment are adjudged not to bear Action; and for others of less concernment, judgement hath been given. Corn. Ta­citus observes, That the Romans Laws were swayed hither and thither by Might, Ambi­tion, and Corruption; and all was for want of a standing Rule. Tacit. Annal. lib. 1. cap. 1. pag. 2. ordinary things; as, whether in an Indebitatus Assumpsit for Wares and Mer­chandize, [Page 98] upon a Non assumpsit pleaded, the Plaintiff shall not be put to prove, That the Money demanded grew due for such things as are mentioned in the Declaration; or whether he may give in Evidence, That it grew due for Rent, or other things not mentioned: Whether upon a Lease by Paroll, an Action upon the Case will lie for Ar­rears of Rent: Whether a man to an Action of Trespass, o [...] Assault, Battery, and Wounding, may plead to the wounding, Son assault Demesne. Within Thirty years it was commonly held for Law, That if a man strike me with a Stick, I might not cut him with a Sword: but now of late, the common use is, to justifie the whole Battery, both Beat­ing and Wounding. If a man were minded, he might fill a Book with such Uncertainties. And this is that which caused King James to tell Wilson Histor. Great Brit. p. 96. Sir Edward Coke, That he had inserted into his Books, many extravagant Opini­ons for good Law, which were not Law; and therefore commanded him, To Review and Correct them, and bring them to him to be perused. And the same Judge is also charged, That he could turn the Edge of the Law any way, and strike with that weapon whom he pleased; That Law, which like the Lesbian Rule, is so pliant, that it may be turned every way, loseth the force of a Law, and becomes like a Nose of Wax; and so the Judge, who is but the Minister of the Law, becomes the Master of the Law, Bodin. lib. 6. cap. 6. pag. 760. answerable to what a Learned Chan­cellour said once upon the Bench, Such a Lord Chancellor was of that Opinion, and I am of this Opinion. If there were nothing in the Law faulty besides this, it were worthy to be perused and amended: for, the Judges being the Speaking Law, the Law is nothing but th [...]ir Cock Essay, p. 111. (Opinions; con­trary to that Truth which ought to be in all Laws: But the Judicial Law of Moses shall never be found defective, Matthew 5.27, 28, 38, 39. Daniel 7.25. Nehem. 9.13, 14. Esth. 1.19. Ezek. 20.24, 25. Esth. 3.8.

17.

The matter concerning special Verdicts is a business need­less, Every mans purse, who hath a special ver­dict, witnesseth this. I have known two hunderd pounds spent, to know▪ wh [...]n a lease should Commence: which seems plain to every Ordinary Ca­pacity; but the wits of men made the mat­ter doubtful & uncertain. Special vedict between Sow­tham and Clerk in the upper-Bench & now in the Common pleas. Let all who have contra­ct [...]d at these places, say whe­ther this be not true: and if they deny it, the Au­thor will either by Instances prove the truth of it, or put it out of the next Impression, and acknowledge his offence. and of unsuff [...]rab [...]e charge; which might be prevented, if the Jud [...]e in his [...]irc [...]it, where he took the verdict, would but report the matter in a few words to his fellows; or if all the [...]u [...]ges at the Bench would determine what the Law is, when they hear the tryal; for that their Judgment then would be as effectual, as when it is given upon a special verdict; for that, if either party dislike the Judgment, he may bring a Writ of Error as well in one case, as in the other, where a verdict is given by the Jury. There are few of these ver­dicts, if they be upon Titles, but they cost an hundred marks one both sides, Drawing, Ingrossing, Copying and Entring, somtimes much more; and generally serve for no­thing, but the oppressi [...]n of the people, and inriching of some few Officers, contrary to the directions of the Holy Scriptures, Job 29.16. Amos 5.7. Isa. 2.6.

18.

To these oppressions and evills in the practise of the Law, I may well adde the practise of new Law, at Drury-house, Worcester-house, Gurney-house, and other places, for sale and Contracts of Lands confiscated. These Cloyster up them­selves, and usually a man may wait a week before he can have an an [...]wer, and spend four times as much upon Door­keepers as the Fees o the order come to: and he that hath the best skill to do his own business, is enforced to enter­tain one of their Offi [...]ers to do it; because another cannot be admitted. The p [...]ssing of an assurance here costs three times as much as the passing of a Grant under the Great-Seal: there you shall have a Clerk get more mony in three years, then an honest man can u [...]ua [...]ly save in thirty years practise of the Law. This Cloystering up themselves, is against the Lau [...]able Customes of the Jews, and other Nations, recor­ded in the book of God; whose Judges sate in the Gates: and the same is the cause of much bribery, extortion, and oppression. If they consulted ab ut State-aff [...]irs, it were fit they should be private; but Matters of Contract and pur­chases, [Page 100] and other things of that nature, ought to be open and publique, Job 31.21. Prov. 21.23. Esth. 2.19. and 3.1, 2. and 5.13. Dan. 2.4. Jer. 38.7. and 39.3.

19.

The constant practise of retaining Counsel or Advocates This is so common, that he is many times made to pay Costs, that hath no Counsel, as if he did it for delay. Holt against Mat­thew in Chancery. in all causes, (as it's now used) is Exod. 23.2. Deut. 27.19, 11. a high provocation of Almighty God, and without Gods great mercy, a ruine to the Souls of the practisers. These men for fees must stretch their Consciences, and set Truth upon the Tenters, or Imprison it in un­righteousness, (which is a marke of a Reprobate-minde) in as much as there is not one cause of a thousand, which is pleaded, but one side or other endeavours to suppresse the truth: and he that with an Impudent Face, and the strength of his Wits, (being blinded with the gift) cannot set a fair Colour upon a bad cause, is accounted but a simple fellow, and not to deserve his fee: this is to call evil good, and good evil; and the practise like that of Tertullus his rayling against Paul; and the fee, or reward, is no better then Balaam's wages of Iniquity, and against all Scripture-practise: The only remedy hereof is, that the Lawyers or Advocates, should be (r) sworne as Amici Curiae, At New England, the parties in all causes speak themselves, and if need be, the Magistrates, where the cause requires [...], do the parts of Advocates, with [...]u [...] fee or reward. Lechford News, pag. 28. or assistants to the Judges, to endeavour to dis­cover the truth without partiality; and for this to have their reward from the State, Acts 24.5. Exod. 23.2. Lam. 3.35, 36. Num. 22.7, 17. 2 Pet. 2.15. Judges 19.30. and 20.7, 8. Rom. 1.18. We read in the Church-Historie, that Euseb. l. 6. c. 21. Bassianus the Emperour (Son of Severus) having stain Geta his Brother, would have had Papinianus a Lawyer to have pleaded his defence of that Fact before the people of Rome; But the Lawyer Refused therein to be an Advocate for the Em­perour, saying, Sin might more easily be comm [...]tted then de­fended. Symson Church Histor. life of Bassia­nus, pag. 31. And for this worthy fact he suffered death: but God suffered not this murder to go unpunished, for this Bassianus was shortly after murdered by Macrinus his Suc­cessor in the Empire. Let this Lawyer be an Example to all [Page 101] Lawyers, lest he rise up in Judgment against them at the last day, and Condemn them, for being more blind and un­just then the heathen.

Wall. on 1 Corin. 2.2. Intit. None but Christ. The Ro­mans allowed no mony or gift to pleaders. Piso the Roman Prae­tor, condemned this kinde of pleading, calling it cruelly in Advo­cates. Tacit Annal. lib. 2. cap. 8. pag. 43. & l. 11. c. 1. p. 142. Plato esteemed these hyred Orators, but as Calumniators and Sycophants (hinc inno­cens ut nocens damnatur, & contra) making the Guiltless Guilty, and the Guilty Guilt­less. Cato refused to allow such pleading, quia orationis facundiâ facilè possent aequa & iniqua persuadere; Because by Eloquence of words they could easily perswade to right or wrong. Demosthenes boasted that he could change the Sentences of the Judges at his pleasure. And Cicero was called Rex, ora­tione sua omnia regens: Playing R [...]x with his Oratory, there­by ruled all things at his pleasure. This is both an offence against God, and a wrong to the people, especially to the poorer sort.

20.

That Ridiculous, or rather Profane form of Prayer used by the Clerk upon the arraignment of a Prisoner, upon his Trial, when the Prisoner being demanded, whether he be Guilty or not Guilty? answereth, Not Guilty, Then the Clerk to make up the Issue, Replyes, Cul. Prist: That is, Thou art Guilty, and I am ready to prove it. Then is the Issue joyned: Such forms in all cases, are accounted as the Common Law, and sometimes the procee­dings are nought without such for­malities, the Common Law being chiefly old customes, and nothing else, besides the Judges opini­ons. Now comes out that Common Prayer or Conjuration, which is repeated twenty or fourty times at one Goal-delivery, if there be so many Prisoners arraigned; God send thee a good deliverance.

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 [Page 102] 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 Equit [...]. 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 6 Ed. 1. cap 8. anno 12 [...]8. Cook Inst. 2. part. p. 311. a [...]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 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 [Page 106] 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: Cooke Compl. Co­pieholder. Sect. 25. p. 36. twenty pounds by the year was in the dayes first above mentioned held Cooke Com Little­ton. L. 2. Sect. 95. fol 69. Camdens Britan. p. 136. Westm. 1. Compared with Fitz. N. B. fol. 6 [...]. 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 Ac [...]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 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 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 Its 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. pag 666, 667. before) bought for thirteen shillings four pence. Some­thing [Page 107] 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.

[Page 108]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 lets 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. 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 [Page 109] 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 a great abatement in the Countrey of what is spent and paid in Lon­don.

7. The last thing which shall be mentioned touching this mat­ter, and which is most suitable to the propounded end of the dis­course in hand, is, that this carrying of all causes to Westminster makes in a manner all the Courts of Record, in all other Cities & Towns Corporate, with the County Courts, Hundred Courts, and the Courts of the Mannours, and all other Court Barons to be disused and in a manner destroyed, to the prejudice both of Lords and Tenants, who are much impoverished with Suites at [Page 110] Westminster upon every trivial occasion, and in the mean while there is much disorder at home for want of Courts to redresse petty wrongs, and so to keep and preserve quietnesse.

8. These things are enumerated as evils occasioned by the ge­neral Residence of the Laws at Westminster, without reference to the particular Courts; now something shall be spoken of in rela­tion to the several Courts, which are necessitously oppressive to the Suiters, in regard of the multitudes of Suites: The chief grie­vance in this kinde is, the crowding of all causes of Equity into Court of Chancery (except a very few in some cases in the Ex­chequer) in which Court there have been said to be ten thou­sand causes entred into the six Clarks books, some of which are seven, eight, or ten years old, and without doubt there are as many more upon Sub-poena's, and Bills not fil'd, of all these there cannot be lesse than one thousand alwayes ready for hearing (be­sides such as stand to be heard upon Reviews, Pleas, Demurrers, Exceptions and Reports.) And in one Term there is not time usually to determine one third part of them (besides hearing of motions, which necessarily arise in most cases) the rest being put [...]ff, insomuch that many times you shall finde above twenty cau­ [...]s in the paper for one day, whereas within thirty years last past ere were usually appointed not above four, or five causes to be [...]eard every day in Court, and not many more at the Rolles: But since the abolishing and disuse of the Court of Wards, Court of Requests, high Commission, Star-Chamber, Ecclesiastical Courts (as they were called) Queens Court, and Dutchy Court, every of which (as might be easily shewed) especially the Court of Re­quests, poured something into this Ocean the Chancery, the same is grown so full that it's impossible that the causes there should be dispatched without an excessive charge and long attendance. Cooke Eng­lish Law. pag. 45, 46. And this Court as it now stands is the next great oppression of the Nation, and tends chiefly to the inriching some few Officers and Practicers, and the impoverishing of the Common-wealth, where, in most causes (unlesse they be agreed by Compromise) the remedy is worse than the disease.

9. The next thing (to which I take exception) occasioned by the general practice of the Laws at Westminster, which may be accounted a grievance is; That almost all the Suites in Law, of the whole Nation, are brought in the Courts of the Upper Bench, [Page 111] and Common-Pleas, which are more tedious and chargeable than they need to be▪ for whereas a man arraigned for his life, hath but a day; nay, it may be, but an hours warning, to make his de­fence, onely he knows before hand when the Goal-delivery will be, here regularly a man cannot begin and end his Suit, be it never so trivial, under three Terms, (unlesse the Defendant will confesse the Action) especially in the upper Bench, where after the Arrest, or appearance, which sometinies is hard to get done, the first Term the Plaintiff declares, and the Defendant imparles, the second Term the Defendant pleads to issue, and the Plaintiffe carries down the cause to tryal to the Assizes, where if the cause be tryed, Judgement is given thereupon in the next Term follow­ing, and this takes up about At new England the Defendant hath warning a covenient time before the Causse be heard, and most Causes are ended upon the hearing at the same Court. Lechfords News pag. 29. seven moneths time, but if the De­fendant be wilfull and liberal, he may keep the Plaintiffe in Suit a far longer Term, whereas in some Courts of Record in the Countrey, such a cause may be ended in six weeks, and might be done in half the time if the Law were amended, and made like the proceedings in Wales, which are better and shorter than at West­minster.

10. To these may be added, as an evil growing out of the gene­ral Execution of the Laws at Westminster, the greatnesse of Offi­ces, both in respect of work and revenue, which for the most part are executed by Clarks and Deputies, and nothing done by the Master of the Office, but onely to take the Accounts, and receive the Fees, at the end of the Term, allowing little or nothing to such as do the work, but what comes by sharking, & the late-born Miscreant, called Expedition, and indeed the great Officer (who stands like an Andiron in a great Room, onely to make a shew) sets the Clarks to all the labour, and to abide the heat of the bu­sinesse. And this must needs be so, for these Officers formerly used to pay seven years purchase for their Offices; Is it not a shame that one man should pay for an Office, first and lust, forty thou­sand pounds, as it's generally said one paid for the Upper Bench Office? That a Prothonotor of the Common-Pleas should pay nine thousand pounds for his Office: That a six Clark in Chancery should pay seven thousand pounds for his Office: [Page 112] And not Aphilozers, The Romans used not to s [...]ll Offices, the Q [...]sto [...]ship was granted according to the worth of the Suiters, unt [...]ll by Dolabella's advice it was put to Salt, which is blamed by the Heathen Histo­rian as a fault. Tacit. Annal. lib. 11. cap 7. pag 148. The Senators were chosen by voices, and if they proved in­famous, they gave up their places to save their Credits. Idem l. 11. c. 8. p. 150. Exigenters, Clark of the Warrants, Es­soines, Curciters, or hardly any other Office to the very Cryer and Bag-bearer, but all exposed to Sale in this last Age, and many times sold to such, as were onely fit to be entertained, be­cause they gave the most money for them: And then as a neces­sary consequence, he that bought dear must sell dear, insomuch that I have heard it credibly reported, that a Souldier becoming a Courtier, was by King James made a Master of the Chancery, (the man I knew well) this Master being taxed, that he expected too much money in some businesses before him, in an angry man­ner said, that the King promised him that the place should be worth five hundred pounds by the year to him and he would make it so, if he could; Alexander Se­verus at his coming to the Empire after that pro [...]use beast Heliogacalus; although he found th [...] State much in debt, refused to make Sale of any Offi [...]e, saying Non Pa [...]i [...]r mercatores Potestatum, and a learn [...]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 [Page 113] the Countrey, The Romans had great Care to bridle the coveteousnesse of Offi [...]ers and [...] [...]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 Stowe Annal. life o [...] 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 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 Common­wealth 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, 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 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. [Page 114] 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: 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- [...]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) Weemse. Exp [...]. M. L. Ex. [...] 1. p. 8. how far the Civil power hath to do in matters appertaining to Religion, and what those iniquities are, which (as J [...]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: G [...]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 [Page 115] dissentors: Princes must carefully distinguish their juris­diction from that of Gods. Those which Confesse that they hold their lives and soules of God, ought to ac­knowledge, they have no right to impose any Tribute upon soules. God princi­pally exacts his right from the Soule. Jun. Brut. Vind. contra Tyran. p. 12. Confer. between W. P. late Chaplain to K. C. And A. B. The Emperours Trajan Adrian, Anto­nine, finished their dayes in Peace, for that although they knew not the True God: yet they permitted the Christians the exercise of their Religion. Jun. Brut. ut supra. p. 14. Faith and Re­ligion cannot be enforced, God hath onely power over mens hearts and consciences. Hawk. Right Dom. l. 3. cap. 2. pag. 125, 126, 127. and cap 3. pag. 129, 130. It was an Impious opinion of the Court Parasites of this last age, that the Laws of men in indifferent things, did simply binde the conscience, and that every breach of such Law leaves a stain in the Soul. This I found to be a Common princi­ple amongst such as were very learned, serving to uphold the Bishops Tyrannical Cannons, and Injunctions, and likewise pretended as necessary to uphold the Supream power in Magi­stracy: But this Doctrine clearly makes the Laws of men heavier than the Laws of God, because the Laws of men are more in num­ber, uncertain, and sometimes repugnant, and then men were bounden to study them as much as the Laws of God, because the ignorance thereof was sin: This opinion was endeavoured to be upheld, or rather sweetned with another, as Ridiculous, viz. that where an offence is committed, if the pecuniary mulct, or Fyne imposed by such Law be paid, this is a satisfaction for the breach of the Law, and takes away the guilt. If this be true, then may the conscience be purged by something else, ( viz. by money) be­sides the bloud of Christ, which is as Impious an opinion as the former: It is therefore I conceive safe to hold that the Laws of men do not simply binde the conscience, but in reference to the Laws of God, and in case of scandal and contempt, and yet that the powers set over men by the Almighty God are to be obeyed for conscience sake, Cock. Essay. pag. 141. but that the spiritual power, should be helped out by the Civil sword, is a grosse vanity.

A Bodin. Republ. l. 4. cap. pag. 537. Religionem imperare non possu­mus, quia nemo cogitur ut credat invitus. Ex Epistola. Theodorici. Reg. Gotho. p. 539. great Learned man, and wise Polititian hath observed, that force is not to be used for reducing of Subjects from Sects and factions, because punishments make the mindes of men more stubburn and froward, and the greatest punishments do the least good, the way to reduce straying Subjects is the devout professi­on of the true Religion. Theodosius Thelder (although he ab­horred the opinion of the Arrians) by his toleration of them drew them from their errour more than if he had persecuted them.

2 That there is not a strict Law for true printing the holy Scriptures, and to punish the abuse of false printing of them is a [Page 116] sinfull defect, there are some Editions, which I believe have near one thousand faults in them, and the Parliament once had it in hand to do something in reformation thereof, and some Godly men were imployed to observe the mistakes, about such time as John Bill was the then Kings Printer, at which time amongst other great faults, this was observed to be one, that where it was read the Lord will deliver his people, it was printed the Lord will destroy his people, and many other great mistakes I could instance: the Parliament did nothing then to amend it, and since the Translation is grown far worse: Insomuch that there is not any Play book, See the Guilt Bibles com­monly fould, and the little Bilbles. Romance, or idle story printed so falsly as the holy Bible: if the Jews had dealt with us, as we deal with the Ages to come, we had not been certain of a foundation for our faith, nor could have cleared the Text from corruption, and if corrupted in one place, it may as well be corrupted in an hundred and a thou­sand, which had stroke at the very foundation of our faith, but through the good providence of God, the Jews in the time of Ezra: Weemse Ex po. M. L. Ex. 12. p. 110. Hayn view Scripture. pag. 71. 165. Ex Hugone Broughton. August. de Civitate dei Trea. Of the Hebrew Text. Bellar. l. 2. c. 2. De verbo dei. (who were reputed the Chief of the Masorites, and after­wards even since Christ, had so much care of the Oracles of God, that they numbred all the words; yea, Syllables and Letters of the Old Testament, and observed how many times every Letter was repeated, and by this they examined every written Copy, and if a Copy had but a word, or one Letter mistaken, it was never al­lowed as an Authentick Copy to be read in their Synagogues, but was onely allowed for children to learn by. O admirable provi­dence of Almighty God! this care of the Jews is to be imitated by Christians.

The holy Scriptures had need to be review'd, and the Transla­tion amended, especially where they are observed by the Learned to be falsly translated, Gen. 44.5. 2 Kings 5.18. Judg. 11.40. Act. 14.23. Phil. 1.21.

Gen. 44.5, 15.That place of Genesis, where it's spoken of Josephs Cup, the Learned observe that it should not be Translated whereby he Divineth, for this were to make Joseph a Sorcerer, or little better then a Conjurer: but the words are to be read B [...]oughton on this place Ground of holy Storie. pag 10. so M. E. upon the place. for which he would make search. And then the sense is. That Joseph using to drink in that Cup, when he went to meat would search (or en­quire) for it, and so would presently misse it. And this is agree­able to the Scope of the Context. The intent being to convince [Page 117] Josephs brethren of their supposed indiscretion in stealing that Cup, but the true cause was: That there might be occasion to bring them back again, that Joseph might make himself known to them.

That place in the second of Kings, 2 Kings. 5.18. concerning Naaman the Syrian being rendred in the sense of the future tence: When my Master goeth (or shall go) into the house of Rimmon, &c. And I bowe my self in the house Rimmon: The Lord Pardon thy ser­vant in this thing, &c. It is observed that the sense of the future & Preterperfect Tenses, Ven. on these words. among the Hebrews are sometimes used one for the other, and so Translated, and so it is in this place: And then the sense in the Preterperfect tence, is, when my Master went (or hath gone) into the house of Rimmon, and I bowed my self in the house of Rimmon: The Lord Pardon thy servant in this thing.

This Translation is observed to be justified by that in the Ti­tles of the 51 and 52 Psalms. And well agrees with the Scope of the story: which was to shew that Naaman, by the Miracle of healing with the word applied by the Prophet, was converted from Paganisme to vvorship the true God, and the same well suits with the Prophets answer to Naamans Petition, go in peace. Calvin. Institut. l. 3. cap. 2. f. 32. Calvin considers Naaman as a new Convert, and one that had some knowledge of Christ. The common reading makes Naaman a grosse Hypocrite, praying to be dispenced with in his beloved sin: and it seems to charge the Prophet with unfaithful­nesse, in not reproving Naaman for this reservation (which could not have stood with true repentance) but rather incouraging him: Saying, go in peace: which inconveniences are all taken away by rendring the words in the sence of the Preterperfect tence.

That in Judges 11. concerning Jephthah his vow, Judges 11.30.39.40. and concern­ing his daughter. The last Translation seems to countenance such horrible Murder as was committed by the Heathen Gentiles, and sometimes by the Idolatrous Israelites in sacrificing their Children to Devils. The word in the last verse Translated la­ment the daughter of Jephthah, being rendred according to the Marginal reading; To confer, or talk with the daughter of Jeph­thah, sufficiently clears the matter: Piscator. on the Place. And lets us know that she was not murdered, or offered for a burnt-offering: But that she was [Page 118] redeemed as God had appointed in the Lev. 27.2, 3. Num. 18.15. Exod. 34.20. Law, but was dedi­cated to be a servant in the house of God, as Samuel was. This reading agrees with that vers. 38. she bewayled her Virginity, not her death. This Act of Jephthah is judged to be an Act of his faith, for which he is commended, Heb. 11.32. If he had mur­dered his daughter he would have been reproved for it, which he is not. Therefore we must conceive that Jephthah's vow was Conditonal, Vers 31. that if that which had met him coming out of the doors of his house, had been a thing which might have been of­fered (for a Dog, or a Swine might have met him, which might not be offered in Sacrifice) he would have offered it to the Lord: If otherwise, it were a thing not to be offered, and might be re­deemed, he would redeem it, and offer something in lieu thereof. As Abraham did the Lambe, instead of his Son.

There are divers things in the New Testament, which ought to be cleared in point of Translation. That Acts 14.23. Acts 14.23. Trans­lated when they had ordained them Elders in every Church. The Text being [...], is Pasor Lex. pag. 609. A. Quun que ipsis per suf­fragia creas­sent Presbyte­ros. 2 Corint. 8.19 truely read, they Created them Elders by suffrages, which in the Geneva Translation is rendred, they ordained them Elders by Election. But this word Election, signified by extending, or lifting up the hands of the people, the late Translators Holyoke, Belcanqual, and their fellows, (being Episcopal men) made shift to thrust out of the Text: That they might preserve the Bishops power of ordination, as our Presbyters do now, who tell us that the Church, Math. 18.17. is but the Presbytery, or representative Church: which exposition is justified by no Scripture, for the word Church is either taken for the Acts 15.3, 4, 22, 23. and 13.1. Members (without the Officers) called brethren, or else for the Officers and Members together.

That in Phil. 1.21. Phil. 1.21. [...]. The new Translation reads Grammatically out of the Vulgar La­tine: For to me to live is Christ, & to dye is gain; which is perfect non-sence. The two infinitive Moods without wronging the Text may be either translated substantively, or as participles, and then the sence is: for Christ is to me in life and death (or living and dying gain (or advantage) which is according to the Geneva Translation, and suits with the sence of the fore-going verse. Christ shall be magnified in my body whether it be by life, or by death.

For these and many other causes, which might be shewed, it were fit, a more perfect Translation of the holy Scriptures were had and published.

3 In the next place I set it down as a sinfull defect, that there is no Law against swearing by Creatures, as the Sun, Light, Jerem. 5.7. Perk. on the Decal. Com. 3. vol. 1. pag. 42. col. 2. the Bread, the Drink, the Money, and such like, which Oathes are very common amongst the prophane and ignorant multitude, and are as bad, if not worse, than prophane swearing by the holy name of God, Math. 5.34, 35. Exod. 23.13. Isa. 65.16. Amos 8.14.

4. The like may be said of swearing by Idols, as the Crosse, the Masse, the Rood, or by Saints, as Saint Mary, by our Lady, That place Matth. 23.22. Condemneth such swearing Perk. on the Decal. Com. 3. vol. 1. pag. 42. col. 2. by Imaginary Saints, as Saint George, by Faith, and Troth, &c. the like may be said of wicked cursing against our selves, or others, as Pox, Plague, the Devil rot thee, and the like, &c. these are all unlawfull, & yet we have no Law against them, their unlawfulnes appears by these Scriptures, Ier. 4.2. and 5.7. Psal. 109.17. and Psal. 115 8. Deut. 6.13. Willet. Hex. in Exod. chap. 20. pag. 347.

5. The use of Lots in sport is a sinfull thing (and no Law against it) as The use of Cardes dice and the very Sale of them are prohibited by the Lawes of Geneva. Lawes Gene­va. pag. 30. 36. Carding, Dicing, Playing at such Games, as wherein is no use, or exercise of skill, or memory,) but meer chance (as it's called) these are a sporting with the Divine pro­vidence of God, which is not to be meddled with, but with great reverence, and Lots are to be used onely in weighty matters, for that therein Almighty God is immediately appealed unto, as Judge and determiner of the controversie: So they may be used in chusing of Officers, or Governours (where God hath not declared his will) or in division of inheritances, and such like. The use of these Lots in other cases is unwarrantable, Prov. 16.16.33. Levit. 16.9. Perkins on the third commandment, vol. 1. pag. 43. Acts 13.19.

6. The like may be said of Gaming and playing for great sums of money, the same is a horrible sin, and the cause of many other sins, there is unlawfull getting, and unlawfull spending, with un­necessary expence of precious time, every Lawfull means of get­ting is sanctified by the word of God and prayer, Gaming for money is not sanctified by the word of God and prayer: Ergo, Gaming for money is no Lawfull means of getting. The Major of this Proposition is the Scripture it self, all things, i. e. all Law­full [Page 120] things are sanctified by the word of God and prayer, the Minor is undeniable, there being no word of God to vvarrant such a course of getting, and what man upon any ground of Scripture, or word of faith, can, or dare 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, [Page 121] 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 8 th. Com. Perkins on the 8 th. Com. 1. vol. pag. 62. 63. By 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 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 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. 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▪ 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. 2 Sam. 15.1. Absolon is said to have 50 men to run before him, as a prae­ludium to his Rebellion, 1 Kings 1.5. and in like manner Adoniah; Princes [Page 122] 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 This was used in Rome, as the Histo­rian saith, so appeasing the heavenly Ire in time of Plague, which the same Historian, b [...]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 Play­house. 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. 10 [...]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 Aristotle, Seneca, and Solon, disallowed of Sta [...]-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. 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.

[Page 123]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 [Page 124] 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 coll [...]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 th [...]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: S r. 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 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 [Page 125] 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. there are no wise men appointed to take up controversies to prevent Suites, before men begin to destroy, and undo one another: By the rules of Scripture we should seek peace, and pursue it, reconcile our selves to our adversaries, much more to our brethren; the contrary practice of many men in these dayes (who when they are offered satisfaction for debts forgotton, or unknown, or unvo­luntary trespasses after the Suit began, if they would declare what they demand, will be ready to answer, Weemse Expo. Iudit. laws. Exer. 43. p. 166. you shall know my demand when you see my Declaration) is And Weemse. Exp. M. L. Com. 3. Exer. 8. de Jur. Mic into p. 172, 173. worse than God would have his people deal with the Canaanites, to whom they are com­manded to offer peace: Godw. Att. Ant. l. 3. c. 3. Sect. 4. The Grecians Drachma was 1. s. ob. the Ro­mans. 7. s. ob. Tac. Expli­cat. Polib. p. 224. Now the Grecians at Athens had cer­tain Citizens, who where designed to compromit differences, and to take up matters in controversie, and there was no cause came into any Court, exceeding the value of ten Drachmes, which had not first past these mens hands, Godw. Rom. Ant. l. 3. sect. 1. c. 9. and the Romanes had an Of­ficer, whose Office was to over-see mens demands, and to allow of their Bills, (as is now used and practised at Venice) that men might not by exactions devour, and eat upon another, or bring themselves into Suites, and trouble without cause, Law should be the last refuge, and used as Phisicians use desperate Me­dicines, in case of necessitie. Perk. vol. 1: pag. 66. on the 8. Com. col. 1. the rules for ordering this matter are clearly set down in holy Scripture, 1 Cor. 6.5, 6. Math. 5.25. Deut. 20.10, Numb. 21.22.

15. There is no considerable Law against a rebellious son, a son of Belial, or Willet Hexa, in Exo. 21.15. Moral Obser. Gouge. on the 6. Ephes. Treat. 5. pag. 251. Col. 2. Tit. 1.6. without Yoke, who despiseth, curseth, or revileth his Parents, and will live in no order, or calling, such a one can hardly by the Law be bound to his good behaviour, be­cause it is not a publick offence, but besides that, we have no Law, to punish him, whereas such a one should be put to death, Levit. 20.9. Mar. 7.10. Prov. 15.20. Exo. 21.17. 1 Pet. 1.14. Deut. 21.20, 21. Disobedient Children are reckoned amongst the worst of sinners and wicked men; 2 Tim. 3.2.

[Page 126] Cowel. Instit. l. 1. tit. 10. sect. 3: p. 43.16. Neither is there any Law against The Heathen ob­served this, to have consent of Parents in Ma [...]riages. Shechem. Gen. 34.3. Marriage without Parents consent, nor against Marriage of young Children, unlesse the parties be Heirs, or Inheritrixes, nor against Calvin. Inst. l. 4. c. 19. s [...]ct. 37. Gouge. on Ephes. 6. Treat. 5. p. 254. Col 2. and p. 252. Col. 2. and 255. Col. 1. Erasm. Collo. de Matrimo. chusing cal­lings without Parents consent, which things (being meerly civil) ought to be provided for by the Civil Magistrate; to the end, that Parents may, not lose their Authority in their own houses, Gen. 27.46. Hest. 1.22. 1 Sam. 16.11, 19. 1 Sam. 17.17. Jer. 35.6, 7. Deut. 7.3. The learned have determined that Marriage without, or against Parents consent, (unlesse it be for exceeding weighty rea­sons) to be of no force.

17. There is no Law against Marriage with 2 Corint. 6.14. Gouge on Ephes. 6. Treat. 2. p. 112. col. 1. Chrisost. M. 1 Corint. 7. hom. 19. Idiota à na­tivitate non re­cipitur, vel ad agendum, vel ad defenden­dum in aliqua causa, per cu­stodem vel proximum pro­pinquum sed sequentur, quod ipse semper praesens sit in propria per­sona. Cowel. Instit. l. 1. tit. 23. sect. 6. p. 74. By this Law, more is required of an Idoit, or Fool, than of a wise man, and so the Law is fit for none but Fools. Consuet. Norm. Tit. de furiousis. 14.17. Infidels, or Idola­ters, which is against the Law of God, & the old vvorld are taxed for it, and the off-spring of these Marriages were these Gyants, and Monsters of men, who filled the vvorld with oppression and violence, and were an especial procuring cause of the general de­luge, Gen. 6.1. Mal. 2.11. Ezra 9.14. 1 Kings 11.1, 2.

18. There is no considerable Law, nor certain rule for ordering the Estates of Lunaticks, Mad-men, and Idiots, the late dispo­sing of them by the Court of Wards was a costly way, & some­what uncertain, & inconvenient, because the Committees of such men, (being not known to the Court) did many times oppresse and abuse such as were committed to them, and rather endea­voured to keep them mad and foolish that they might have their Estates, than to take any care to cure them: there was an ancient Law found, and recorded among the (i) Normans Laws, for or­dering the Estates of such as they termed furiosi, or Mad-men, but it is out of use. There ought to be some certain rules, and dire­ctions given to godly men to supply this defect, and it were best if it were so done in every County, Cook Essay. pag. 170. the Supream Magistrate is as the father of the Common-wealth, and therefore to care for all the Members thereof, Isa. 49.23.

Homer call's Agamemnon David was the Pastor, or Feeder of Gods people, and he did it skilfully and carefully, Psal. 78.71, 72. The King of England called Sponsus Regni. Cook. Hawk. R. Dominion. p. 102. [...] the Pastor of the peo­ple. [Page 127] Abimel [...]ch is Pater Meus. The Roman Emperours, Patres Patriae. Seneca calls Kings, Tutores status Publici. The Graecians [...], quod sint Balis Populus: These names shew the duty of the Supream Magistrate.

19. Amongst the ranges of Mad-men and Idiots, I presume to place notorious unthrifts (as Godw. Ant. Rom l. 3. sect. 4. c 24. Erasmus Colloq. [...]. p. 383. Equis sive [...]q [...]o. the Romans did) of which there are many in this age, such Knights & Esquires of whom Erasmus speaks to one scoffingly; Nisis bonus Aleator, probus Chartarius Scortator improbus, Potator strenuus, Profusor audax, Decoctor & Conflator aeris alieni, Scabiae Galico denique ornatus, vix quisquam te credet equitem, such mens Estates ought to be Prodigals estates are by Authoritie of Justice to be committed to suffer their estates to be ordered and disposed of by others. Jun. Brut. vind. contra Tyrann. p 88. The Romans punished such Revelling, cal­ling them Con­venticles. Tit. Liv. l. 39. Augustus Caesar, was a pattern of sobrietie and temperance. Sueton. in August. Perk. on the Decal. Com. 7. vol. 1. p. 61. col. 2. committed to wiser men, & to be preserved for posterity, & to the end their vvives & children may be provided for, and that such as cannot tell how to govern themselves, may 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 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 [Page 128] 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 its cited out of Plato. l. 9. de legi­bus, that the Adulterer was to suffer death, and might have b [...]en slain by the Husband of the woman, if he escaped the Law, Coel. Rhodig. L [...]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 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 D [...]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, 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 [Page 129] 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 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, 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 Rous A [...]. 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. 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 together, yet sometimes it cometh to passe, that they slash, cut, and wound one another in a fear­full manner, this is a wicked custome taken from the Hea­then, and against Gods Law, and some Law ought to be provided against it. Some of the Godw. Ant. Rom. l. 2. sect. 3. c. 10. p. 9 [...], 99, 100. Heathen have restrained this wickednesse, and Sympson. Chu. Historie Life of Con­stantine. p. 61. Constantine the first Christian Empe­rour utterly put down, and prohibited the same. It was Abner, the General of that wicked rebellious Absolom, who first, set [Page 130] up this cruelty under the pretence of play, or sport, 2 Sam. 2.14.16.

26. There is no Law against Idolatrous Pictures and Images, of which the Picture of Christ (as is pretended) is the most com­mon, this and such like Pictures are unlawfull, as being teach­ers of lyes. Willet, in Exod. 20. 2 Com contr. Ex Uysino. Ʋrsinus condemnes them upon this ground, be­cause Christ being both God and man, the Image must needs be a lying Image, because it cannot represent the God head, whom no man hath seen nor can see, 1 Iohn 4.12. Deut. 4.15.

Li. Assisse. 19. pl. 2. 32. H. 8. cap. 38. 2 Ed. 6. 23.27. Neither is there any course setled about divorce, which is to be done by the Magistrate, nor is it declared for what cause there may be a divorce, at the Common-Law there were many ridiculous causes of divorce, which were taken away by the Statute of 32. H. 8. formerly spoken of; Cook. Comm. Little­ton. Li. 3. Sect. 380. p. 235. Cook. l. 6. fol. 66. and li. 5. fo [...]. 98. b. and divers unjust causes of divorce yet remains since that Statute. The power of divorce was then left in the Bishops, and their Courts: Wison. Histor. Britan. pag. 68, 69. Adultery by our Law doth not dissolve Ma [...]iage, A vinculo Ma [...]rimonii, but only à Mensa & Thoro. but these de causa. 1. Praecontractus. 2. Metus. 3. Impotentiae sive frigiditatis. 4. Affinitatis seu consanguinitatis, are still causes of divorce and dissolve the v [...]ry bond of Mariage. Cook. Ut sup. Junius. in Deutr. 24.1, 3. Matth. 19.9. Amesius. l. 5. de conscientia. cap. 38. fol. 371. The baudy Bishops allowed causam frigiditatis, to be a sufficient cause of divorce, in the case of the Noble Earle of Essex, and declared his Marriage a nullity upon that ground. There ought to be some other settlement, that place seeming to give liberty for di­vorces, Deut. 24.1, 2, 3. is not to be read positively, let him give her a Bill of divorce, but hypothetically. If he give her a Bill of divorce, that is cleared by our Lord Christ, Math. 5.32. Luke 16.18.

28. That there is no Law against lying, except it be for telling false news of Counsellours of State, and great men: Insomuch that I have known when a fellow hath been the onely material witnesse in a cause, and by his means the Suite hath been prose­cuted, having affirmed, he would testifie thus, and thus, when the cause came to Tryal, this witnesse swears the clean contrary, The Law of the Ro­mans, called Talio, (that such a witnesse should pay what the Plaintiff by means of his falshood, is adjuged to pay) might justly be inflicted upon su [...]h a witnesse, and the same is agree­able to the Law of God, Exod. 21.24. Lev. 24.20. Bodin. Republ. l. 40. p. 470. and being asked at the Bar, if he did not say such and such [Page 131] words, contrary to that he swears; he hath impudently answered, or the Counsel hath answered for him, that he did formerly but discourse with the party to please him, because he was earnest with him, but now he is upon his Oath, he must, and doth speak the truth: And yet no punishment was ever inflicted upon such a knave for his lies, Levit. 19.16. Prov. 18.21. Iam. 3.8. Rai­sing of lyes, and false rumours are prohibited by the Laws of Ge­neva, pag. 32, 37.

29. There wants a Law to suppr [...]sse the Rudiments of unlaw­full Perkins 1. vol. com. p 43. Deut. 13.1, 3. a [...]d 18.10.11. Magick, and Tit. Li­vius. l. 8. pag. 294. and lib. 39. p. 1033. C. Wizards and fortune tellers sev [...]rall times banished by the Romans, and th [...]ir bookes burned, se [...] the place last above mentioned. Tac. Annal. l. 2. c. 8. p. 43. and H [...]st. Tac. lib. 1. c. 4. p. 16. observation of Heathenish customes, and for surppressing of books of Magick, Conjuring, & Judicial Astro­logy, and many other Devilish Arts, and usages, now very common in England, which prepare men for consultation with the Devil, and bring them within the compasse of Wich-craft before they be aware, I could name many of these Tricks and De­vices, and tell the Authors who discover them, some to good ends and some to bad ends, that I suppose they are too well known al­ready, and it were well such things were wholly concealed, and the books burned, as the same kinde were by the converts, Acts 19.19. Although they were prized at 50000. pieces of silver, which is of our money, at least eight hundred pounds; and surely they would never have been burned if they had been of any use, or might have been lawfully kept. It sufficeth to know that they are against the Law of God, and invented by the Devil and his Agents, to drive a man from belief of Moses and the Prophets, and to turn men from God: Now Astrology Judicial is in great credit, almost as much as it was amongst the Heathen Babylo­nians, Graecians, and Romans, but in many things hath neither The Hea­t [...]en Romans had then good dayes and dismall dayes, as the Astro­logers have, without any ground, or rea­son at all, two of the most fa­mous dayes were the 16. and 18. of July. Tit. Liv. l. 6. p. 217. A. B. foundation in nature, or reason, much lesse in the Law of God, but these Astrologers judgements are meer conjectures, grounded upon the opinions and sayings of Sorcerers, Conjurers, and other men like themselves, the whole Judicial part of Astro­logy being condemned by the Learned as the K. Ja. Daemonol. l. 1. c. 4. p. 13, 14. Perkins ut sup. p. 44. Furius Scribonianus was banished for consulting which wizards and Calculators of Nativities. Tac. Annal. l. 12. cap. 11. pag. 171. Root of many Devilish Arts, and hath been prohibited by some of the Sue­ton. Trang. in vita Augusti. Caesaris. Sect. 31. Idem in vita Tiberii. Sect. 56. & in vita Auli Vitelii Sect. 14. Hea­then Roman Emperours, and their books likewise burned, and [Page 132] Astrologers: And these Astrologers are reckoned with the South­sayers, and Conjurers in the holy Scripture, Dan. 2.2. Jer. 10.2. Isa. 8.19, 20. 1 Jam. 4.14. Wall. on 1 Corint. 2.2. Ex. Pico. Mi­rand. The Astrologers attribute those things to the Stars, which belongs to God alone. To Conjecture of mens fortunes, ends, vertues, vices, &c. by the Stars, is im­pious; and who seeth not but that these deceivers are ignorant of what shall befall themselves every day, Bodin. Republ. l. 4. c [...]p. 2. p. 441. all their Conjectures are uncertain.

30. Perjury in an answer in Chancery, or Exchequer, is not punishable by any penal Law, The ordinance for Reforma­tion of the Court of Chan­cery, appoints Legacies to be sued for at Law; and excludes them the Chancery, but doth not dir [...]ct what ac­count shall be brought. 5 Eliz. c. 15. or Act of Parliament, onely it's said that it may be punished upon a Bill for Perjury in the Court where it was committed, this is a long way further than a man will be willing to go at his own charge, and I never yet knew any man punished there for any such Perjury, and it was punishable in some cases, in the Star-Chamber, however it's sinfull perjury before God, Iohn 8.44. Zach. 5.4. Ier. 5.2.

31. There was no Law to recover Legacies, but in a Court of Equity (before the last Ordinance) and there is yet no Law set­led for recovery thereof, if the Legacy exceed not twenty pounds, the charge of the Suit in Equity, if it come to a Decree, will be as much as the Legacy, it may be much more, if the Defendant be wilfull, or liberal, nor is there any Law to acquit executors upon payment of Legacies to Infants, although it be done to their great preferment, this is a defect, Rom. 13.7. Heb. 9.17.

32. There wants a Law for punishment of Witch-craft, where murder is not committed, setting a Witch upon the Pillory, and imprisonment for exercising her Devilish malice upon Cattle, The defect of this Law was com­plained of by S t. George Crooke, upon the triall of a Wit [...]h convict­ed of Witch­craft, but not of Murder, about the year 1627. at Coventry. or men, when death follows not, is not sufficient, such Witches as likewise Magicians ought to be put to death, Exod. 22.18. K. Iam. Daemonol. lib. 3. cap. 6. pag. 76. An Action upon the Case will not lye for calling one Witch, and this reason is given in the book, because Witch-craft is but Art, and the word doth not imply any Act, or exercise of it. But Gods word teacheth us not to consult with the Devil, or his evil instruments; Tacit. Annal. l. 2. cap. 8. p. 43. Pituanius a Magician was cast down headlong from the T [...]pe [...]u Rock. The Romans banished such as consulted with Wizards, and sometimes put the Magicians and Wizards to death, according to Gods law. Thou shalt not suffer a witch to live.

[Page 133]33. There wants a Law directing, how mens personal Estates shall be divided by Administrators, when a man dieth in Estate; Magna-charta. c. 18. Fitz. N. [...]. 122. l. Wingat Law cap. 11. p. 19. numb. 13. It was anciently at the discretion of the ordinary, who used to dispose of part of mens Estates, or what he pleased, in pias cau­sas, or for the health of the Soul of the deceased (as it was said) but now the Superstition is removed, it's necessary it should be declared what proportion the Wife and Children, or Kindred should have, it seems anciently a Wife was to have a third part of her Husbands clear personal Estate, and Children unprefer­red another third part, Cook, English Law, pag. 47. but this is not observed. All men who have any estate ought to make Wills to pre­serve peace after their deaths, and to divide their estates a­mongest their Children. Gouge. on Epes. 6. Tract. 6 pag. 321. The remedie of th [...]s is to have all mens estates inrolled in the Counties where they are; As the Jews had their estates with their Pedegrees in­roll [...]d, Ezra. 2.6 [...]. Jer. 32.11. John. 14. and 15. and 16.

34. The like want is found, where a man seized in Fee-simple of Lands, having no personal Estate, and many Children, dyeth in Estate, the Land descends to his Heir, and the younger Chil­dren can claim nothing, this is a hard case. And far worse is it, where a man hath an Estate in Tail, and nothing else to preferre younger Children: In the first case he may by Will in vvriting charge his Lands, in this he cannot dispose of his Lands by Will, charge them with any thing to raise portions for younger Chil­dren, this would be amended by some profitable Law, and Lands for this cause would be made Fee-simple, Gen. 25.6. Luke 15.12. Iosh. cap. 14. and 15.16, 17.

35. There wants a Law to secure purchasers from being cheated by old Intails, sleeping Morgages, Judgements, & Statutes; In so­much, as I heard a Learned man say once, there is no fence against a Knave, some publick Register in every County should be set­led, and a Law made that whatsoever Estate should not be there entred, should be void, as against purchasers, and such as some in for valuable considerations, there are many men cozened, and undone in such cases, and no remedy, if the Incumbrances were for any valuable consideration at the first, although of long con­tinuance. This ought to be amended, see this case recited by Charles, Geo. Cook. Essay, pag. 123.

36. That Copy-houlders of Inheritance should not have liber­ty to set, or let their Lands, Bodin. de Republica. Tit. 1 p. 39. Cook. com­pleat Copie-houlder. sect. 9. p. 8. sect. 12. pag. 14, 15. unlesse for a year, or three years is a hard Custome, and to Fine at the Will of the Lord is worse, the pretence of Ease in Chancery, or Exchequer is a meer gulle­ry, the first ought to be amended, and the last assertained by some good Law, Cook English Law, pag. 48, 49.

[Page 134]37. That there should be no means to recover Debts upon It's made a note of a wicked man to borrow and not to repay, Psal. 37.21. Therefore there those should be a Law to en­force men to pay just debts, and not to suf­f [...]r men to cheat men by such niceties. Gouge. on Ephes. 6. Tract. 5. pag. 271. col. a. b. simple contracts against Executors, nor to recover from the Executor of him that was Bayliffe, or receiver of monies, as it falls out in some cases, is a great defect, the reason of it is, be­cause the Testator might in his life-time have waged his Law. But in some cases it is impossible, that he should in reason by such gager discharge himself, as when the money is an Infants, and when there are witnesses to prove the contract: This ought to be amended, being but a Law of common right to enforce a mans Estate to pay Debts, which are justly due, 2 Kings 4.7. Exod. 22.26, 27. Luke 6.35. and 7.42.

38. There wants a Law for restraint of excesse, and over­sumptuousnesse in diet and house-furniture, the excesse wherein doth ordinarily undoe, and cause to goe to ruine, the Estates of very many, especially Coel. Rhodig. Lect. Antiq. lib. 9. c. 13. p. 330. Citizens, and is the worst Thief in the Common-wealth, (except gaming and suretyship) the Romans had Laws for restraint in this kinde, and therein In villati­cis pastionibus sunt, qui pro guloso acci­piunt. Aegyptio Regi 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. 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 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 1 Sam. 25.36, 37. Dan. 5.1, 2, 3. [Page 135] 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. S [...]mpson ch [...]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. Rast [...]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 Psal. 26.4. meaner sort of the Jews went in black, or obscure Garments, the Gen 37.32. 2 Sam. 13.18. Princes Children wore white, or purely coloured, Psa. 45.13. the Queen wore imbroidered, or wrought Garments, 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. [Page 136] 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. Tit. Livi. pag. 263. [...]. 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: 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 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 [Page 137] 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 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 call [...]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, [Page 138] 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 [Page 139] 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 an [...] setled, Kings and [...]mperours had the ordering of the affaires of the Church as­well as the Common­wealth, 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 About Ann. 320. Constantine the Great, the first Christian Emperour sent forth preachers of the Gospel, Sympson. Hist. of the Church, lib. 1. pag. 6 [...]. ex Sozom. l. 2. cap. 6. great part of the work lies upon the hands of the [...]he Ponti­sex maximus or chiefe Preist amongst the 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, 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 2 Chro. 8.14. Solomon in building the Temple, nor upon Solomon, 2 Chro. 20.21. Jehosaphat, and 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 2 Chro. 14.4. and converted 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) It's said Nehem. 6.7. that Nehemiah appointed the Prophets to preach at Jerusalem. in the thirteenth [Page 140] 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. Laws of Geneva, p. 2, 3. 1. The Mini­sters are first approved of by the Council. 2. Th [...]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: 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 Acts 25.19. Sueton. in vita Claudii Caesaris. Sect. 16. Broughton in Daniel. Con­clus. in fine. a bar­barous [Page 141] Superstition; therefore the Lord of the Harvest sent forth labourers in [...]o his Harvest, the Apostles and Evangelists, with larger Comm [...]ssion than to teach in the Cities of Juda. First to the lost shee [...] 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 pa [...]ticular Congregation.

But besides these, there were Pastors and Teachers sent, Rege [...]volsc. Hist. Eccle [...]. Slavoni. Pro­vin. l. 1. cap. 3. pag. 12. Pectus Valdus a rich Mer­cant of Lions, was chos [...]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. M [...]gd. Cent. 2. c. 7. Cent. cap. 7. and r [...]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 Acts 9.30. Acts 11.22, 26. and 13.8.15.2, 3. suf­frage, or Simpson Church. Hist. lib. 2. Cent. 12. pag. 429, 430. Election, and those Congregations of believers, called also the Church, as occasion was 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, Const [...]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 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 [Page 142] 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, Calvin. Institut. l. 4. cap. 19. pag. 72 [...], 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 Regenvolsc. Hist. Eccl. Slavon. l. 1. cap 3. p. 12. 30, 31, 32. Sympson Chu [...]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: 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 [Page 143] 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 handl [...] 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, [Page 144] scandalous, and prophane, may be kept out of this service, for that, although the Luke 4.34. Devil, and wicked men may preach Christ in some sort 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 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. D r. Brian. in Mal. 3. D r. 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, 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 [Page 145] 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, its an easie matter to finde fault with the Law, but its 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 Exod. 20.8, 12. commands, Exod. 20.4, 13. prohibitions, Deut. 6.3, 4, 5. exhortations, Rom. 12.2, 19. dehorta­tions, Psa. 41.1, 2. promises, Rev. 22.18, 19. threatnings, Jude 6.7, 11. judgements, Mich. 6.9, 13 afflictions, Acts 13.10, 11. objurgations, Jerem. 13.23, 27. expostulations, Gen. [...].2 [...]. sarcasmes, and Amos 4.4, 5. bit­ter taunts, Ironical, Ezech. 28.3, 4. affirmations and negations, Math. 23.15, 16. reproofs, Math. 11.28, 29. invitations, Hebr. 13.5, 6. incouragements, Acts 12.7, 11. signall deliverances, Isa. 5.2, 4, 7. especial favours, 2 King. 7.4, 6, 15. and leading providences, commended to us in holy Scripture to teach us, and sundry Cant. 5.11, 12, 13, 14, 15, 16. Gal. 4.14. Eph. 6.14, 15, 16, 17. Tropical and Apoc. 19.11, 12, 13. figurative expressions of his will to our capacities, with ne­cessary 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 its Psal. 19.7. Psal. 119.96. condemned in the word of God, for example there are many Superstitions, new Oaths, [Page 146] 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 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. Bodin. Republ. lib. 4. cap. 3. p. 471. And it is to be considered that Law of man is so sacred (as its 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 1 Tim. 2.2. Tit. 2.11, 12. godlinesse and honesty, and this is the end of all Laws and Government: First therefore we [Page 147] 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 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 Exod. 18.21, 22. first Judges and Rulers of all sorts were instituted, and afterwards the Court of Numb. 11.16, 17. W [...]ll [...]t Hexe. in Exod. c. 18. ver. 21, 22. qu [...]. 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 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 Exod. 18.22. hard for them, by reason of the want of a particular positive Law, 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, 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 [Page 148] Court every 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, 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 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, 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. 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 Idem. l. 3. cap. 3. Sect. 4. Th [...]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 [Page 149] 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. Sueton. Tra [...]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 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 Lord B [...] ­kon Essayes. the surfets of all Courts) such as were of good use and concernment might have time to be determined.

Sueton. Tranq. in vita Claudii N [...] ­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.

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.

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.

Bodin. ut supra. p. 415. Romulus left the ordinary Administration of Justice to the Judges, but reserved the greatest matters to his own Judge­ment.

Godw. A [...]i. Rom. l. 3. S [...]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 [Page 150] the Romans was, Idem. l. 3. Sect. 4. c. 17. Ex Cicerone de Senectu [...]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 Cook. Essai. pag. 185. indifferent way for all people, Cock Essay, pag. 185.

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 L [...]chfords New [...] pa. 26. In the great C [...]u [...]t at new England, held twice in [...]he y [...]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, Grotius Pol. Max. par. 1. c. 4. p. 31. 32. as one saith, was anciently the same with Equitie, but as now its 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, Bodin. Re­publ. l. 1. pag. 104. ac­counts this a thing most absurd. The three Temples belonged to the Templ [...]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.

[Page 151]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 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. Con [...]r [...] Tyran. p. 10 [...] 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, 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 gave them the Lands of the Heathen, and they inherited the labour of the people, that they might observe his Statutes, and keep his Laws.

A POST-SCRIPT. Containing sundry Positions, founded upon the holy Scriptures, serving for principal grounds of Laws amongst Christians.

1 FIrst that the holy Scriptures are of Divine Authority, the rule of life and good manners, Isa. 8.20. Gal. 6.16. Eccles. 12.10. Luke 16.29, 31. 2 Tim. 3.16, 17.

2 That Christian religion reformed, contained in the holy Scri­ptures, is to be held forth as the general, and publick profession of the Nation, Math. 10.32. Luke 12.8. Rom. 10.9, 10.

3 The holy Scriptures are to be publickly, and constantly read in the Congregations, Act. 13.15. and 15.21. Deut. 31.11, 12. Neh. 8.18.

4 The worshipers of idols, or false Gods, and such as draw others to idolatry, are not to be tolerated, but to be punished severely, Exod. 22.20. Deut. 13, 5.8, 9, 15. Job 31.26.27, 28. Exo. 32.27, 28.

5 Blasphemous cursing, and speaking reproachfully against God, is to be punished with death, but not every errour, or reputed Here­tical opinion, or which is accounted blasphemy, Lev. 24.11.14.15.16. 1 Sam. 17.43, 45. Job 2.9. Dan. 3.29.

6 The conscience of the weak is to be perswaded, not to be en­forced contrary to the light thereof, especially in case of things in­different, Rom. 14.3.13, 23. Act, 15.24, 28. Gal. 5.1.

7 That the publick worship of God is to be commanded, and pro­vided for by the Supream Civil Magistrate, 2 Chron, 14.3, 4. and 30.6. and 31.2. 1 Kings 8.1.5, 15.

8 The Supream Magistrate (if not known by evident Demon­stration, that he is designed of God to Government by conquest, or spe­cial deliverance wrought by him) is to be chosen by the people, 2 Sam. 5.1, 3. 1 Chr. 11.1, 3. Psal. 78.70. Deut. 17.14, 15.

9 That there ought to be Government of several sorts and degrees, subordinate from the Monarch, or Chief Magistrate, unto the num­ber of ten in every Village, and these to be appointed by the Supream Magistrate, Exod. 18.21, 22. Numb. 11.16, 17. Rom. 13.4.

[Page] 10 That all matters of controversie wherein one man wrongs an­other are to be judged by the Civil power in the hands of Magistrates and Judges, 1 Sam. 2.25. Exod. 18.21, 22. 1 Peter. 2.13, 14.

11 That the Supream Magistrate is Judge of all great and weighty Causes, and the word of God ought to be his rule, Exo. 18.22, 26. Num. 27.5, 8. Deutr. 1.17. Lev. 24.11.

12 Many thing are to be Judged according to the discretion of the Judges with reference to the Law of God, and such Judgments not to be accounted Arbitrary, much lesse to savour of tyrannical Govern­ment, Exod. 21.22, 30, 35. Numb. 27.8. 1 Kings 2.44. and 3.16 25, 27.

13 No man ought to be a Judge or Magistrate, but he that hath abilities of nature & grace, that feareth God and hateth covetous­nesse, ordinary Jurors not to be allowed as competent Judges of mat­ters of fact for want of qualifications, Exo. 18 22, 26. Numb. 11.16.17. and 27, 18, 20 Acts 13, 22. 2 Sam. 23.3.

14 Magistracy is to be reverenced and the contempt thereof punished according to the offence, Exo. 22.28. Acts 23.5. 2 Sam. 16.5, 6, 7. 1 Kings 2.44.

15 The power and Authoritie of the Supream Magistrate is to be upheld and maintained, and the Common-wealth defended, by the Estates and strength of the people, Mark. 12.17. Math. 17.27. Rom. 13.6, 7.

16 Disobedient Children sons of Belial, without Yoke, given up to drunkennesse, and excesse of Riot, such as curse, strike, and abuse their parents, are to be severely punished, and being found incor­rigiable are to suffer death, Deut. 21.20, 21. Exod. 21.15, 17. Math. 15.4.

17 Every man ought to rule in his own house, the Magistrate upon complaint to rectifie abuses therein, Deutr. 21.19, 20. Hester. 1.20, 22. 1 Tim. 3.4. Exod. 20.10.

18 He that wilfully killeth any person (although in hot bloud, and upon some petty provocation) ought to suffer death, Exod. 21.12. Rev. 13.10. Lev. 24.17, 21, 22.

19 He that hurteth or striketh another, is to be punished ac­cording to the hurt, to pay for the cure, and recompence the party hurt for his damage and losse of his time, and if the hurt were done malitiously and presumptuously, he is to pay eye for eye, tooth for tooth, 21. Exod. 18.19. Levit. 24.19, 20. Deutr. 19.21.

[Page] 20. Such as make uproares in the Common-wealth where death follows, or is occasioned by such uproares, are to suffer death, Luke 23 19. 2 Chr. 23.14.15. 2 Sam. 20.21.22.

21. a All Adulterers, a Buggerers, • Witches, b Sodomit [...]s, b Ra­vishers, and prof [...]ssed, or common • Whores, are to be put to death, and so are all such as commit a Incest in the nearest degrees, truly so called, a John 8.5. Levit. 20.10. Jer. 29.22.23. a Exod. 22.19. Levit. 20.15.16, a Exod. 22.18. Levit. 20.6. b Levit. 20.13. and Lev. 18.22. b Deut. 22.25. 2 Sam. 13.14.29. a Gen. 38.15.24. b Levit. 20.11.12. and 18.6.7.

22. Fornicators are to be punished severely, and to make satisfa­ction to the parties wronged by such uncleanesse, Exod. 22.16.17. Deut. 22.28.29. Jude 7.

23. All wantonnesse, laciviousnesse, and filthy acts of unclean­nesse, are to be severely punished by the Civil Magistrate, Prov. 6.29. Jude 7. Deut. 25.11.12.

24. That for felonies of Goods, or Cattle stollen, the Thief not to suffer death, but to make restitution, according to Gods Law, as the case shall be, and be bounden to serve in case he cannot satisfie, Prov. 6.30.31. Exo. 22 1.7.4 7. Job 20.15.18. 2 Sam. 12.6. Luk. 19.8.

25. That for publick, and presumptuous theft, to the great pre­judice of the Common wealth, or where murder followeth, the Thief shall suffer death, Josh. 7.11.25. 2 Sam. 12.5. Exod. 22.2.

26. That no man to be convicted in any case Capital, but by the Testimony of two witnesses at least, Deut. 17.6. 2 Cor. 13.1. Heb. 10.28. Numb. 35.30.

27. That a single witnesse shall convict no man, in any case without other proof, or evincing circumstances, Deut. 19.15.18. John 8.17. and 5.31. Math. 18.16. 1 Cor. 13.1.

28. That a perjured, or malitious false witnesse, shall suffer the same punishment, or losse, which his false Testimony regularly should cause another to suffer, and the suborner, of Perjury in like manner, Dan. 6.24. Deut. 19.18.19.21. Prov. 19.5.

29 That for all trespasses by ones self, or any other by his ap­pointment, the wrong-doer shall make satisfaction, both for damages losses, Gen. 31.39. Deut. 22.19. Exod. 21.28. Exo. 22.5.6.9.

30. That for all losses by breach of covenant, or promise, satis­faction to be made by the wrong-doer, both damages and losses, Gen. 31.39.28. Exod. 22.10.12. Levit. 19.13.

[Page] 31. Where a man is over-wrought and deceived, in any con­tract, or covenant, the deceived i [...] to be relieved, and not to be bound by such agreement, 1 Thes. 4.6. Levit. 19.13. Isa. 1.17. and 58.6.

32. That where a man at liberty, and of aged discretion, swears to perform any lawfull contract, or agreement, he is to be enforced to perform it, although he were deceived, 1 Kings 2.42.44.46. Josh. 9.14.15.18. Psal. 15.4. Eccles. 8.2. Heb. 6.16.

33. Such as curse, or abuse the Chief Magistrate, or Judges are to be severely punished, Exo. 22.28. 1 Kings 2.44.46. 2 Sam. 16.5.6.7. Acts 23.5.

34. That tale-bearers contentious persons, and breakers of the publick peace, are to be suppressed, 1 Tim. 2.2.3. Cant. 2.15. Prov. 26.20. Hab. 1.3. Levit. 19 16.

35. That no man is to be his own Judge, or Avenger, and there­fore all such as enter forcibly, or take mens possessions from them without their consent, to be punished, and the oppressed relieved, 1 Kings 21.19. Mich. 2.2. Rom. 12.19.

36. That excesse of riot in feasting and drunkennesse, ought to be punished and restrained, Hos. 7.5. 1 Tim. 1.9. Dan. 5.1.5.30. 1 Sam. 25 36.37. Isai 22.13.14.

37. All Estates of inheritance, are to be Estates in Fee-simple, and no Intails upon the Heirs Males, Numb. 27.7.8. 1 Tim. 5.8. Gen. 23 11.17.20.

38. All Estates with the Owners Pedegree, are to be Inrolled in some convenient known place, for avoiding strife and contention, Jer. 32.11.12. Josh. 14.14.15. Josh. 15.89.19.20. Ezra 2.62.

39. All mens Estates to be disposed of, according to their Wills, whether by writing, or word of mouth, Gal. 3.15. Gen. 48.22. Gen. 49.29. and 50.13. Heb. 9.16.17.

40. The eldest Son not being guilty of any Notorious offence, ought to have a double portion, Deut. 21.17. 1 Kings 2.15. Gen. 25.33. and 48.22.

41. All younger children to have parts of their Parents Estates, according to their deserts, and as the Estate will bear, Gen. 25.6. Luke 15.12. Josh. 14.15. and 16.17.

42. The Preachers of the Gospel are to have liberal mainte­nance, that they may not be encumbred with the world, 1 Cor. 9.7.8.9.11.12.14. Gal. 6.8. Luke 10.7. 1 Tim. 5.17.18.

[Page] 43 Schooles of learning are to be maintained, and godly learned men to be countenanced and encouraged, Acts 19.9. 1 Kings 18.4. 1 Sam. 19.20.

44 Lunaticks, Mad-men, Idiots, and Infants, are to be cared for by their friends and overseen by the Magistrates, and the Estates of unthrifts to be managed, and preserved by others for their Wives and Children, Isa. 49.23. Psal. 78.71, 72. 1 Tim. 5.8.

45 That such as run in Debt, shall have their estates sold, to pay their Debts, he that hath nothing to pay, not to be imprisoned for Debt, 2 Kings 4.7. Exo. 22.26, 27. Luke 6.35. and 7.42. Math. 18.25, 27, 33, 34.

46 Every man is to be enforced brought to be up & to live in some lawfull calling, and he that refuseth to labour, not having other suffi­cient maintenance, to be kept to work in some work-house like Bride­well, Jonah 1.8. 2 Thes. 3.10, 11. Gen. 3.17. 1 Cor. 7.20.

47 That all mens Demands and Complaints, concerning Estates, Debts, Duties, or Trespasses, shall be made in plain Terms, as the truth of the Case is, Neh. 5.2, 3, 4, 6, 12. Numb. 27.1, 2, 3, 4, 8, 9. Acts 24.5, 11, 12, 13. Josh. 7.19.

48 That the Defendants answer be plain and true, without nice­ty of pleading, or obscuring the truth. Acts 26.4, 5, 6, 7. Acts 7. the whole Chapter, Joshua 7.19, 20, 21.

49 That all differences, and Demands be heard in the prehence of the parties accusing, and accused, ad Judgemen [...] given before their faces, if the parties be able to appear, unlesse they wilfully refuse, Acts 23.35. & 24.8. & 25.16. 1 Kings 21.10. 1 Kings 3.17.22.27.

50 That no Counsel be retained for any Suters, but that the Pleaders be rewarded by the State, and be sworn as assistants to the Judges, as indifferent men to endeavour to finde out the truth, and not to obscure, or overthrow it, Exo. 23.2 Lam. 3.35, 36. Judges 19.30 and Judges 20.7, 8. Numb 22.7, 17. 2 Pet. 2.15. Acts 24.5.

51 That no man be admitted to be a Judge, or Justice, who takes any Fees, or useth any Trade, or dealing, whereby he may be engaged to any party, Exo. 23.8. Pro. 29.4. & 15.27. Isa. 1.23. Deut. 16.19.

52 That in taking of Oaths, the holy name of God be invocated, with lifting up of the hand without kissing the book, Genes. 14.22. Rev. 10.6. Jer. 4.2.

53 That the matter of Clergie be exploded, and instead thereof Judgement be given according to the merits of the Cause, with re­ference to the Law of God, Exo. 23.3, 6, 7, Mich. 6.8 Deut. 1.17.

[Page] 54 That the circumstances and equity of every Cause be weighed, together with the Justice, and matter of fact, and Judgement to be given accordingly, Isa. 59.13.14, 15. 2 Sam. 8.15. Josh. 7.11, 25.

55 That the poor be cared and provided for, according to their necessities, and such as want houses, to be suffered to dwell by their rich Neighbours, if they be able to provide for themselves, or other­wise to be provided for by the inhabitants where they live, Amos 8.4, 6. Isa. 5.8. Psal. 41.1, 2. Levit. 25.35.

56 That there be a Clark, or officer, who may constantly attend at every Market and Fair, to see that there be no deceit in weights, measures, or other deceits in Trading, or Manufactures, Pro. 20.10. Deut. 25.13, 14. Amos 8.5, 7. Isa. 1.17.

57 That the Oaths of two, or more witnesses may be a sufficient conviction in Law, without any Indictment, Deut. 17.6. and 19.15. Math. 18.16. 2 Cor. 13.1.

58 That no by-Laws, or Orders be made, or suffered in the Com­mon-wealth, to the oppression of the younger, or poorer sort of Trades­men and others▪ as is usually done in every Corporation, Amos 4.1, 2. Isa. 10.1, 2, 3. Zeph. 3.13.

59 That all Suits and controversies, although popular, or Crimi­nal, be determined, upon hearing witnesses sworn, and giving evi­dence on both parts as well as for the party accused, as the Common­wealth, and in cases where there are no witnesses, that the accused's own voluntary Oath be taken for his discharge, Exod. 22.9.10, 11. 1 Kings 8.31. Job 29.16. Acts 26.5. Isa. 43.9, 10.

60 That there be Judicatories, and Courts established in every Citie and County, where the Judges may sit constantly in open places to hear, and determine all controversies, Exod. 18.13, 25, 26. Deut. 21.19. Prov. 31.23. and 25.7. Ruth. 4.1, 2, 9.

61 That before any Cause be entred in any Court, or come before the Judges, peace be offered by the Plaintiff, and that wise-men be ap­pointed to take up controversies, 1 Cor. 6.5, 6. Math. 5.25. Deut. 20.10. Psal. 34.15.

62 That he that misprints the holy Scriptures, or bindes them up false, be punished according to the greatnesse of the offence, especially where the Text, or translation is falsified, or corrupted, Exo. 39.43. Gal. 3.15. Deut. 4.2. Rev. 22.18, 19.

63 That such as swear by Idols, or Creatures, or prophanely swear, or un-reverently use the holy Name, attributes, or word of God, be se­verely punished, Math. 5.34, 35. Jer. 4.2. and 5.7. Exod. 20.7. Amos 8.14.

[Page] 64 That such as use Lots lightly, or prophanely in sporting, or gaming be punished, and also such as game for money, or money worth be prohibited and restrained, Prov. 16.33. Levit. 16.9.

65 That Bull-baiting, Bear-baiting, Cock-fighting, and Hors­races, and all other abuses, and cruelty towards the 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.

[Page] 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 shalbe 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 hab [...]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 excrem [...]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 Indi [...]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 int [...]stat [...]. [...]ad. lin. 8. add nor. ead. num. 35. lin 6. for some, read come. pag. 135. num. 39. lin. 10. for pur [...]ly colou [...]ed, read pa [...]ty coloured. pag. 139. num. 40. lin. 8. for counsels, read Consuls. pag. 140. lin. 14. for Ci [...]y, read Citi [...]s. pag 145. lin. 3. add l. pag. 146. lin. 16. add no [...]. pag. 148. num 1 fo. Summe, read Summons Scripture-Groun. num. 46. to be, to be read before brought up.

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