Good Work for a Good Magistrate, Part 1
Here wee take leav to propoſe a ſhort Model for the Law, upon which Juſtice hang's, and which hath coſt ſo much trouble and expenſ.
1. REgiſters to bee ſetled in everie Pariſh, kept everie year by two men choſen to that work; and all Lands and houſes entred into that book diſtinctly; and the Copie thereof transferred to the Countie-Town▪ in caſe of fire, &c. and in theſe books all alienations &c. entred; and none authentick but ſuch, that ſo none might bee miſtaken in premorgages, or anie other waie; whereby everie one may cleerly bee ſatisfied, in what hee hath, or can claim as his own.
2. That all papers for all contracts, for monie or Lands, buying or ſelling by anie writing, have a ſmall Seal of the States on the top of it (for which three pence or ſix pence paid to the State, for which a Model is readie: ſuch papers will bee of great uſe for men's ſecuritie that deal; and an inſenſible incom to the State.
3. That in everie Countie, everie hundred yearly chooſ three men to bee Peace-makers, or friend-makers for that year, to hear and determine all common-controverſies between man and man; from whom they may not appeal; and the danger cannot bee much by theſe often elections; for certainly, the happineſs in Government will never lie upon Laws, but men; all good men carrying good Laws in their boſom: and therefore Venice, and other States have founded their welfare in Elections; To which Characters and qualifications muſt neceſſarilie bee given out by the ſupreme power: and the ballating▪ box never uſed but upon exigents, it being a Lot, and was wont to bee a part of Worſhip; it beeing uſed in Scripture, onelyonly in two caſes; Civilly, in the dividing Lands and inheritances; Divinely, in the choiſ of Matthias for an Apoſtle. And the Rule is, Where Providence doth no waie appear in the uſe of other means, then the Lot take's place.
But never do wee read of a Luſorie Lot, made common by Cards and Dice, and urged by a grave Preacher in a diſpute, betwixt him and learned Ames.
To add a word more.
In the choiſ of a Parlament▪man, if a thouſand meet to chooſ, let theſe chooſ an hundred out of that number to chooſ for them, and the reſt depart; the one hundred then out of themſelves chooſ twentie, to chooſ one for that ſervice: and theſe upon oath to bee faithful; if among theſe, two bee in competition, then to ballating. No man to have a voice that hath been an enemie ten years.
4. all entails may bee cut off for ever, and men have libertie to beſtow what they have to whom they pleaſ, the eldeſt having a double portion. What miſchiefs have com'n upon families by greatning the eldeſt, and abaſing the reſt, let Engliſhmen judg; yea, the high waies and gallows can witneſs, and forrein plantations can teſtifie. And if Daughters were ingenuous, and would work, they ought to have equal portions with ſons. It is an unpleaſing ſpectacle to ſee in the Cities ſo manie men, fit for nobler things, to ſell thoſe wares, which were properly the imploiment of women, and their daughters. I wiſh a ſerious remedie hereunto: and that men ſhould not bluſh to bee ſitting in ſhops, yea, the choice Gentrie of the Nation, I much wonder.
5. For a Bodie of Laws, I know none but ſuch as ſhould bee the reſult of ſound reaſon, nor do I know anie ſuch reaſon, but what the God of wiſdom hath appointed. Therefore the Moral Law (that ſhort Law called ten words) is doubtles beſt; to which Moſes's judicials added, with Solomon's Rules and experiments, will bee compleat. I wiſh our Lawyers would urge theſe for Law; and not thoſe obſolete preſidents, which will hardly prov, or make a Sea man's ſuit to fit our occaſions. Neceſsitie isthe mother, and ill manners together, of the beſt Laws.
I am fully ſatisfied with what the Supreme power ſhall give out daily; yea, though they daily alter ſomthing, if for the good of the whole.
If anie Lawyer bee continued, let them bee allowed, and paid by the State, and plead for juſtice, even for juſtice ſake. Why ſhould expenſes in Law bee thus bottomleſs? yea, ſuch, as would maintein an Armie, and the fountain and iſſues thereof generally malice, and rancor.
Why are not the Fees of Phyſitians ſtinted? and then help commanded upon a known price? I know they cannot ſuffer by it.
6. Wills and Teſtaments may bee acknowledged by the next two Juſtices, before whom they may bee proved without anie charge; and then entred into the former Regiſter of the Pariſh, or a Book kept in everie Pariſh to that purpoſe.
7. This beeing don, it is verie adviſable to burn all the old Records; yea, even thoſe in the Tower, the Monuments of tyrannie.
8. No Lawyer to plead at anie Committee.
9. And for Arreſts, that ſummons may bee left at men's houſes; and not ſuch a neſt of bailiefs mainteined, even an Armie of Caterpillers; the worſt of men imploied that waie.
10. None to diſtrein for taxes, or other debts; but the debtor's outward door taken away, and carried to the Town houſ, and as manie other new doors as are ſet in the place. The ſhame and danger hereof will urge ſudden payment.
Rules for Juſtice.
1. None can bee free of great injuſtice, who by perſecution for Religion take awaie libertie of conſcience from anie: whoſe Principles or practiſes are not dangerous to the Government, Peace, Proprietie, and good of the Common-wealth; if they otherwiſe live but civilly. For as God himſelf: ſo his Vicegerent the Magiſtrate muſt cauſ his Sun to ſhine, and his rain to fall both upon good and bad.Iſa. 59. ch. 11. to 15. v. Acts 5. 34. to 39. v. Acts 9. 4, 5.
2. And can it bee juſt to puniſh anie by lothſom priſons, before a hearing whether they bee guiltie or no: how manie innocent perſons have ſuffered this waie, and how manie have loſt their lives by ſickneſſes got there; put in for ſmall faults which are crying ſins, and muſt needs bee amended.Jer. 39. 6. 9. Joh. 7. 51. Gen. 40. 15.
3. Long laying in priſon before ſentence; or delaies in Juſtice is great crueltie to manie, and it mightily provoke's the Lord, as Iſaiah ſaith: and certainly it may bee remedied, if there were compaſſion enough to priſoners.Prov. 21. 3. Gen. 40. 15. Prov. 21. 7. Iſa. 59. 14. 15.
4. Delaies in ſutes in civil things, prove's great injuſtice, yea, an unjuſt Judgment would not bee ſo ill to manie, as are long delaie's before ſentence; And ſom bodie muſt one daie anſwer for peoples great loſs of time, and ruine to ſom, onelyonly by delaies.Jerem. 5. 28. Prov. 29. 4. Chap. 21. 7. Ch. 21. 3.
5. To attain to pure Juſtice is a verie great bleſſing of God, both to Governors and governed: Wherefore let a Committee bee ordained, one, or more to receiv requeſts, and adviſe from everie particular Town and Countie; how true Juſtice may beſt bee obtained, how all damages and hurts may beſt bee prevented, and all ſutes bee beſt hindered, but when begun, and committed: how ſooneſt and beſt ended, and remedied.Iſa. 61. 8. Prov. 21. 3. Prov. 2. 2. 3. Eccle. 1. 13.
6. And above all Laws whatever can bee thought of, no waie ſo good to attain good and ſpeedie Juſtice, as to put into all places of Judicature, men that fear God, and are lovers of Juſtice, preciſe in their promiſes and performances; for there are godlie men not verie juſt nor wiſe, and on the other ſide, there are Turks and Infidels verie juſt men, and abhor bribes, or to break their words, &c.Exod. 18. 21. Prov. 29. 2. Iſa. 32. 6. Prov. 20. 8. Prov. 21. 15.
7. Things muſt bee ſo ordered, that no man (nor Court of men alwaies) alwaies bee above Juſtice, or ſo powerful, but that hee may bee called to account, before a Court of Juſtice, and there cenſured if hee deſerv it; for if anie bee, the evils of it will bee verie great in time, as might bee well proved.Deut. 16. 19. 2 Chro. 25. 17. Iſa. 10. 1, 2.
8. Let no perſon, Citie, Court, or anie kinde of men have anie Privilege, that may bring dammage or hurt to the Common-wealth, or to anie particular men; for this is to eſtabliſh injuſtice by a Law, and great wrong is don to the Common-wealth by Privileges given to particular men, and companies (and oft under pretence of doing good to the Common-wealth) as might eaſily bee proved: and therefore men take ſuch pains, make ſuch ſuits, and give ſuch gifts, for to have ſuch privileges, out of ſelf-love.Iſa. 59. 8. Prov. 21. 7.
9. For Civil Controverſies, let there bee in everie Town, and place, (or Ward) appointed two or more Peace-makers; who may hear the differences between man and man, before anie may go to Law, and if it bee poſſible, let them end it: and fit men for ſuch buſineſs, will end moſt controverſies, and ſpare the Magiſtrate a great labor, and the Commonaltie, great trouble, and charge, and onelyonly by perſwading; yet theſe muſt bee well regulated, they muſt hear no man in private alone; and manie the like.Pſal. 34. 14. Matt. 5. 9. Prov. 12. 20.
10. That Juſtice may be neer to all men, let there bee in everie Citie, town, and hundred, appointed five, or ſeven able fit men, to determine all Controverſies for Debts, and ſtrifes; and anie three of them preſent, to have power to give ſentence; and well regulated with other Laws; in weightie caſes they may adviſe with learned men, both Advocates, and Divines, but the power to determine to bee in them; as in Holland.Exod. 18. 21, 22, 23. Deut. 1. 15. and 17. v. Deut. 16. 18.
11. Let no appeals bee from theſe men (five or ſeven) that are yearly new choſen) but in verie weightie Matters; firſt, let there bee once in a monethmonth, or at ſom ſet times, a Court for appeals; of all theſe ſeven men (not one to bee wanting upon a certain pecuniarie mulct) for reviſion of the ſentence of ſuch as finde themſelvs aggrieved at a former ſentence, by three or four of theſe men, and if his caſe bee found bad by them all, let him paie three, five, or ten percent, to the charges of the Court, for his preſumption: and if hee will yet appeal to a higher Court, let him firſt laie down the ſumme hee is condemned in, into the Towns hands: which the demander may take out upon good ſecuritie; And laſtly, let there bee no appeal, out of that Countie or ſhire, in which the partie dwell's; for manie weightie Reaſons; and that, if the ſumme bee but above ſuch or ſuch a value, as the Towns are in which the ſentence is given: for if men bee willing to give a juſt ſentence, few caſes are ſo difficult, but they may finde the right; and if they doubt, they can take two or three daies time for conſideration, praier to God, and adviſe with other men, &c.Exod. 8. 22, 23. Deut. 1. 17.
Much might bee ſaid for proof, and orders here-abouts, if it would not bee too tedious.
12. Beſides the conſtant, ſet good men at firſt ſpoken of; there are manie good men muſt bee made uſe of, as occaſion ſerve's; as manie controverſies about the goodneſs of Commodities cannot bee ended preſently by the Judges, till good men that have skill in ſuch commodities, do view the ſame, and value things, &c. and if then they cannot make the parties agree, to make their report to the Judges, how they finde things, and they to give ſentence accordingly; ſo for accounts, not poſſible to end mens differences juſtly, till accounts bee well looked over, and both parties are heard in private by good men, and divers the like: ſo that the Judges muſt know manie honeſt, able men's skill in ſuch and ſuch things, unto whom they may preſently refer each controverſie, according to the nature of it, whereby they ſhall decide things more juſtly, and eaſ themſelvs of a verie great burden: with better content to both parties, that have the difference.1 Cor. 6. 5. Mat. 5. 9.
13. Let everie man plead his own cauſ, and if hee think's his adverſarie too ſtrong, or himſelf too weak, hee ſhall have libertie to take a friend, or Neighbor to plead for him, whom hee judge's able; But not to let anie Advocates, Attornies, Scriveners, nor anie for ſalaries to plead for anie man, for manie weightie Reaſons, unleſs the difference bee about a great ſumme, as ſixtie, eightie, one hundred pounds or more; then to admit Lawyers to plead, if one, or both parties deſire it; yet ſo, that after they have don, the parties themſelvs may have libertie to ſpeak, if one or both deſire the ſame.Acts 23. 1. 35. ver. Acts 24. 10.
14. Let all mens Teſtimonies bee taken by notarial writings under oath: or in the writing to offer an oath: if deſired to verifie what is therein atteſted, (yet ſo, that parties may bee ſent for, and examined by word of mouth, each apart, if anie fraud bee doubted in the teſtimonie) which will prevent incredible loſs, trouble, and vexation to manie.Ier. 36. 4.
15. Let all Judges, Advocates, Attornies, Scriveners, Sergeants, Jailors, and all whatever belong ro Courts of Juſtice, have their pay, or ſalaries out of ſom publick ſtock of the Common▪wealth; and to defraie all charges herein; let everie one that is condemned in his ſute, or that ſue's, and implead's another unjuſtly, or doth another wrong, and thereby forceth another to ſue for his right, paie one, two, three, &c. per Cent. for a mulct or fine, to this publick ſtock, and let them that ſue, or wrong another moſt baſely, and apparently unjuſtly, and out of plain deceit, and wrong paie half, or the whole ſum that hee would have deteined another of: the half whereof give to him that was wronged, or ſued unjuſtly, and the other half to this publick ſtock, ſo ſhall men fear to wrong, and ſue another unjuſtly, and prevent abundance of ſuites, and quarrels, and prevent charges to him that is, or might bee wronged; and the unwillingneſs of theſe Offices to do their office, when they have nothing of them that ſet them awork, may bee prevented by other means.Exod. 21. 24, 25.
16. In greater Cities (eſpecially in London) where fall's manie differences, there muſt bee ſo manie Courts of Juſtice, that all ſuites may bee ended in a week, or if there bee too manie writings to peruſe, and difficulties to hear; then to bee put to good men to peruſe, and hear them, and they for to bring in their report, how they finde things, if they cannot comprimiſe it; and all ordinarie ſuites to bee ended at the firſt hearing, or next daie at a ſecond hearing; if ſom paper, or circumſtance of proof bee wanting, in the ſame Citie may bee two or three Courts of the ſame kinde: onelyonly one for a greater, another for aleſſer ſumme.Ex. 18. 18. 22.
Beſides, there may bee one two, or three Courts for Sea matters, at London; if one bee not enough to end all things quickly; one for quarrels; one for monies, and one for agreements in writing, in which fall anie differences; another there may bee for quarrels, between Maſters and men, Miſtreſſes and maids, &c. and other Courts there may bee, if there bee need: and better the Judges ſit, though they ſomtimes have little or nothing to do, then hundreds daily wait on them, and know not when they ſhall bee heard, &c.
17. Let not one man have power of anie Iudgment alone, by anie means; for beſides, one is more capable to bee bribed then manie, that are changed yearly (onelyonly one in a Court, ſtaie's on for the year after, and hee to bee the firſt preſident for that year:) one man cannot think of all things needful at that time, ſo well as manie men can do; and oft divers men, or one amongſt them finde's a deceit better, and ſooner then one man alone can do.Deut. 1. 16. Prov. 21. 14. Ioſh. 20. 4. Deut. 21. 2.
18. Let order bee taken, that no man may bee put in priſon, and have his libertie taken away for debt, before ſentence bee paſt, and that hee bee condemned: and when anie bee put in priſon, let their cauſ bee heard, and preſently determined; and if they bee in debt, and cannot pay their debts, nor anie friends for them; then let them bee ſet to work, that in time hee may paie his debts, or if poſſible ſom part of it; for that is juſt, and will make others take heed how they com into debt; and do much other good.Ezra 7. 26.
19. All living men are ſo partial, that I doubt, there is not one alive hath ſo much grace, or truth, that at all times would impartially give ſentence; and though ſom would not take monie, or preſents, directly and by compact; yet manie will take ſom kindneſs, at leſt indirectly, eſpecially, from friends or kinred; and though ſom would abhor all this, eſpecially for the moſt part, yet are there anie living men, that dwell in houſes of clay, and ſee through fleſh, that would not at ſom times bee partial to their neer friends and acquaintance, and give ſuch a ſentence for them, as they would not do, if it were for an enemie, &c.Rom. 3. 10, 11, 12.
Wherefore, it is of verie great concernment, that ſom courſ bee taken, to prevent, as much as can poſſible bee, all partialitie; for which manie things might bee don, and manie brave orders made, if men were willing to do all that might bee.Exod. 23. 8. Deut. 16. 19. Prov. 15. 27.
Great puniſhments on them that take gifts, * or pervert Judgments upon anie pretence, is one good means, and manie other helps there are.Prov. 17. 8. 23. Deut. 17. 4. 29. 4.
20. Sore puniſhment againſt falſ witneſſes; is of great conducement to Iuſtice, and few men there are that fear an oath, indeed much leſs a lie, or falſ Teſtimonie, when it may advantage themſelvs, or friends; and moſt men in words, do abhor a falſ oath; yet verie few in a temptation, that make true conſcience of it: but finde a thouſand waies to abſolv themſelvs, and blinde their own conſciences, that they may not think themſelvs forſworn, or to have born falſ witneſs: wherefore againſt the ſubtletie and deceitfulneſs of man's heart, in this and the former article eſpecially, all diligence of the depth of wiſdom muſt bee ſet on work, by means whereof, good Laws, and order, and right antidotes may bee found to prevent all the miſchief of theſe evils.Exod. 20. 16. Prov. 19. 5. 9. Prov. 6. 19. Prov. 21. 8.
And where anie doubt is, each of the witneſſes muſt bee examined alone, in a room apart; by which means great diſcoveries of untruth will bee found out, to wonderment.Acts 12. 19. Ezra 10. 16. Acts 25. 26. Luke 23. 14.
21. Let ſom able men bee appointed (but ſo as they bee not known to bee ſuch) continually to ride up and down, and bee preſent at Courts of Iudicature, ſomtimes in one town and Countie, ſomtimes in another; and when they finde anie Court to do apparent injuſtice, let them diſcover it to the State, for them to take a courſ, that ſuch Judges may bee puniſhed, as they finde each in that Court to have been guiltie thereof; ſo ſhall all Courts of Juſtice fear to do wrong, leſt ſom of theſe men bee there preſent to diſcloſe their injuſtice.Ier. 8. 6. and 23. 18.
Yea doubtleſs, it would bee of admirable uſe, to have either Sheriffs, or ſom other, to give an account of the obedience given to all Acts of Parlament, yea, to ſee them obeied in the Counties.