A PLEA FOR THE Common-Laws OF England: OR, An Answer to a BOOK ENTITƲLED, A good work for a good Magistrate: Or, a short Cut to great quiet. (Published by Mr. Hugh Peters:) So far as concerns his Proposals touching the said Laws. By R. Vaughan of Grays-Inne.

—Tractent fabrilia fabri.
Ignorantia Juris litigiosa, non Scientia. Cicero.

London, Printed for Francis Tyton, and are to sold at his Shop, at the three Daggers in Fleetstreet, near the Inner Temple-gate. 1651.

To the Parliament OF ENGLAND, The SUPREAM Power of this Common-Wealth.

Right Honourable,

Mr. P. hath dedicated his Book to you; so doth the Author hereof his, wi­shing no better earthly Tribunal to be judged by. Mr. P. writes against the Law out of a Pre­judice, and I out of affection to it; we may be both byassed: you are the Judges of it. I wish no greater earthly [Page]Happiness to this Nation then the continuance of the antient Common Laws of it, (some exuberancies of it being lopt off, and some other parts of it, which by a non-use are buryed in oblivion being taken away) and the frequent supply of good and up­right Ministers of it; for our Law in it self is one of the most excellent humane Laws that any Nation in the World hath; The Common-Laws of this Land were never originally the Dictates of any Conquerours Sword, or the Placita or good will and pleasure of any King of this Nation, or to speak impartially and freely, the re­sults of any Parliament that ever sat in this Land, but it was a Lex non scripta, and a Jus (as the Civilian saith of his Law) quod usus approbavit; nam diuturni mores consensu utentium comprobati, legem imitantur: it is now a Lex scripta, and we say, That it consists of laudable and righteous Customs, iterated and multiplyed [Page]in their common use among the peo­ple of this Land time out of minde; and so to us carryed down through the successive Ages of many hun­dred years ago, upon the two wheels of Reason and Conveniency; so that what of it was approved at first, and hath since wanted these two helps to bring it down to us, hath by a tacit consent of the people (i.e.) by the neg­lect and non-use of it, lost the force of a Law: And the other part of it, which by long use, experience, and tryal, was found beneficial, and for common good, was deservedly baptized with the name of Common-Law, it being almost a comprehensive Rule and measure of all mens actions in this Land, how divers soever Actions and Accidents be, and how full soever of motion and mutations, which (I humbly submit to your wisdoms) whether Mr. Ps. new Law can reach. Besides, the Common-Law hath been so far honoured by se­veral [Page]Parliments in this Land, as to have several Statutes made in affir­mance of it; so that it like is gold (I will not say seven, but seven times seven) tried, I shall trouble you no longer. But take leave and re­main

Your faithful Servant R. Vaughan.

To M. Hugh Peters.


HAD not your Pen awaked the evil spirit of the Pasquillers of this Age, and also given Sail to the wishes of such that would have the Justice and Innocency of our Law to have no safe retreat for it self & its honest professors from their debase­ments: I should not have ventured up­on so early a Remedy against your Books getting esteem in the world: for I am told, that it is better and safer to meet a danger when it first moves to­wards us, then to encounter it in its nearer approaches; every step and pro­gress it makes, rendring it more invin­cible, and them more unsafe that with­stand it; especially if the danger be se­conded with the hurrying swindge of such men as will do a thing, because they will do it, and have not other rea­son for what they do: I am sorry you [Page]should open so wide a Casement for evil men to see the face and complexion of your spirit, as to our Law, which (you may assure your self) is not so clear and serene from the spots of mistakes and ir­regularities, as I could wish his were who hath done so much service to the Parliament as you have done: If I make a severer construction of your meaning then you intended, you may rather thank your own words, which made so false a report of your sense and meaning to my understanding, then blame me, who could not find out a better Index of the spirit and reason of what you proposed. Had I been to deal with an adversary to the Common Cause we both have adhered to, I assure you I should have treated and handled him in a rougher accent, if I had had the like advantage as I have against you: I hope therefore you will be satisfied, that this answer is not out of disrespect to you, but out of ne­cessity to justifie that which is good and innocent, against which you writ, [Page]because you have heard ill of it, and not because you know experimentally in it those mischiefs which you propose to be reformed. I am

Sir, Yours affectio­nately. R. Vaughan.

An Introduction.

I Should never have trou­bled the Press with thi [...] answer to Mr. P. his Book did I not know the aptness of wel-disposed and cre­dulous people to adore the dictates of men of his Profession and conversation, and to take them up upon trust out of the respect they have of their persons (and of his more especially, whose indevors have been constant, and whose bent hath always been set for the publick good of this Commonwealth.) For I see not any thing in his Book as to the Law (& I will not meddle beyond the bounds of that profession, where­of [...] am a mean Professor, and shall be glad of any occasion to assert its justice and innocency) that can tempt a serious man to put Pen to [Page]Paper to give it answer; it being rudis in­digestaque moles, a throng or croud of un­marshalled expressions, full of contradictions, repetitions and incoherencies, like the Tohu vabohu in the beginning of the Creation; now I say, because the well-meaning or plain honest man, to whom his Book may come, may not exclaim against the present Laws (which they know not, and which yet are their birth­right, and one of the greatest earthly Privi­ [...]dges they have,) because Mr. P. is pleased [...] undervalue them, upon a very slender or [...]o knowledge of its foundations; I have thus ventured to be publike. I may safely affirm the Common-Law is not so bad as he thinks it: it is no such jus vagum & incertum, no such leaden Rule as gives neither security to mens persons, or certainty to their proprieties, but it doth consist ex Regulis de Jure fabricatis; it is the product of length of time, and varie­ty of occurrences suted and squared, (or (at the worst) not inconsistent) with the Rules of Scripture and Right Reason; and what­soever part of the Law doth not derive its Parentage hence, is contrary to, or inconsistent herewith, is by all Lawyers adjudged to be cashiered out of their approbation or counte­ [...]ance, as its refuse and excrescences, and [Page]esteemed an obsolete and useless thing: now that Mr. P. should be its adversary, and call it the monuments of Tyranny, and con­demn it to the Faggot, without just cause, is hard: I have therefore endeavoured in a can­did way to undeceive those, who may gain credulity with him, so far as concerns the Law in his Book, and (if it may be) to reconcile him to his wronged (though inno­cent) friend, and I lay these rude and sud [...] conceptions at the feet of the same trib [...] ­nal as he hath done, the Parliament of England.

That in his Book he holds that, which with some men is a maxime, Legentem oportet credere, I will not make so severe a con­struction of his words as to affirm (be­cause I know him too well, to be so unchari­table towards him) yet I must say that he seems nothing less (as to the greatest part of what he writes touching the Law) then to impose upon mens intellects, that which carries very little hint of Scripture, and co­lour of reason along with it; we live now in a free Commonwealth, where we hope there will be allowed no such dictators: As our L [...] hath not any Principum placita for any of [...] foundations (which the Civil Law (that is [Page]much admired by Mr. P.) hath) so it will not admit of Clericorum placita, which his Book seems to impose upon us. There is no Law this day in the world, that doth secure a mans Rem & personam with more impregnable fences against wrong and incroachment, then the Common Law of England doth; and I will dare to say, gives speedier relief notwith­standing all the quick dispatches and decision [...]ens rights, that are pretended to be made by the Civil Laws, if those may be credited, that have had the experience of both; our Law may be truly said to be the result of soundest reason, and it is so; for it was sifted through the Sive of many successive Ages; and yet I dare not but say that it may have some chaff stil re­maining in it, (nay I know it hath) yet the pre­sent Authority are by little and little ventila­ting that chaff away; it cannot be done all at once, and it is not to be done without much consideration, least by plucking the Tares from amongst it, the Wheat be pluckt up also; and this Age doth afford many honest, able and wise Iudges and Professors of it, that will most willingly and impartially help to sever be­tween its Corruption and Constitutions; and Mr. P. who hath said much in his haste against it (were he better acquainted with its [Page] principles) I believe would unsay what he hath said upon a more deliberate review of what he hath written and published. He hath proposed in his Postscript of his Book, sect. 6. That no Book should be published, or come to publike view, which should not pass the approbation of some judicious men in every faculty. Had he observed this rule himself, I dare say, his Book had hardly, (if ever) seen the Press when he must have consulted some of most Professions about it, & had their consents. I do not marvel that he hath so much transgres­sed the Rules of Reason in this point, when I consider he so unadvisedly meddles beyond the line and limits of his own calling, and speaks against those things which he never had so narrow inspection into, as he ought to have, that will write of their defects or corrupti­ons. It is usual with God, in the course of his providence to permit men to lapse into strange and ridiculous absurdities, when they rush upon the reformation of those Profes­sions which they have but a weak knowledge of, and of which they have hardly taken the rudest view or prospect. The Harmony of the World lies in the diversity of Professions, bounded with their particular limits: and in the gra­dual subordination of the one unto the other; [Page]And herein is the infinite wisdom of God seen most excellently that he hath appointed every man his place, and made him Steward of some part of the Creation, and a distinct minister of his Providence, the beauty whereof doth much shine in mens keeping within the Circle of those Callings and pro­fessions to which God (by a wise steerage of their dispositions, and by diversifying the tendencies of their affections hath shaped and timber'd their Spirits. I would not be thought to speak this as a barr to any man from a rational and generous Inquirie into other Professions then his own (provided he be not more abroad then at home, where he should be,) but to advise men from a rash censure of what they know not, and from taking up against any Profession those faint Arguments of men, (viz.) clamours and calumnies, the common sanctuary and refuge of such who are either malitious, or (as to the things they speak or write against) blind in the colours of good and evil. Mr. P. in the Title Page of his Book, tels the Reader, that facile est inventis addere; I must confess, when I was going to read it, I expected some thing in the Reformation of the Law, that was a res inventa; but was so foyled in my ex­pectation, [Page]that I found nothing new offered, that is worthy a meaner consideration then that of them to whom he dedicates his Book; for either he hath proposed that which was many years before proposed, and is now under Consideration in Parliament to reform; or what is already provided by old Laws long since enacted, and want nothing but the power of the Parliament to enliven them, and to give them a Resurrection from under the nasty rubbish of neglect (where it hath been long interred) into a more vigorous actuation and liveliness; for what else Mr. P. hath in his Book, it is either (as I humbly conceive) perplext and obscure, impertinent, impos­ble, or but unseasonably proposed: but herein I will not be mine own Judge, because the dint of Mr. Ps. Book is against my own Profession; and now we will see what his Proposals to the Parliament hold forth, and submit it to the consideration of the best and wisest men. And whatsoever shall be the censure and judgment of good and wise men touching these sudden lines of mine, I shall quietly and without contradiction sit under the Majesty and Authority of their Sentence.

Having thus far made my introduction to Mr. P. his Proposals for a new method of Laws for this Commonwealth; I come now to answer his parti­cular Propositions.

THat Mr. P. hath published all and more then he knows touching the Law, I verily believe; but whe­ther he be willing to learn what he knows not, I can­not tell; had he known the good of it as well as exclaimed against what he conceives (or is told) is bad in it, I should not have doubted of more candid­ness then he expresses in his Book; but let us see what Proposal first appears.

Mr. P. first Proposes, pag. 28. of his Book, That Registers be setled in every Parish, kept [Page 2]every year by two men chosen to that work; and all Lands, Houses and Alienations entred therein and Copies transferred to the County Town. I suppose Mr. P. means, That a Registry be setled, &c. Else there can be no sence made of the first part of his Proposal; I know who writes it. And therefore I say once for all, I shall not cavil at those things in his Book which are ingramatical, and so near neighbors to nonsence; if by any means I may guess at his design and end. This Proposal might have been spared, it being already under the consideration of the Parliament, and modelled in a far better and less chargeable way, then this is; For what a number of Registers will the Nation be troubled with, if every Parish must have one, (when perhaps there will not be one Deed throughout the year, (at leastwise in some years) to be Recorded in some Parishes.) there must at least be 10000 Re­gisters, besides the County Register in the Commonwealth, for there are so many Pa­rishes or thereabouts in the Nation; and it will be hard to finde in every Parish so ma­ny able and honest men as can and will be faithful in the careful transcribing and trans­ferring those Records. To the second Pro­posal, [Page 3]touching the Seal with the States Arms, I shall say nothing.

The third Proposal, is, That in every Coun­ty, every hundred yearly chuse three men to be Peace makers, to hear and determine all common Controversies between man and man, from whom they may not Appeal. That Peace­makers or Dayes-men should be is certainly a good thing, agreeable to the minde and will of the great Law-giver of the World, and Awards and Arbitrements are part of that Common Law which Mr. P. is so much against; but in a different way then he would have it; for we say, that an Arbi­trator or Peace-maker (as he terms him) in our Law, Is a Judge indifferently chosen by both parties to end that thing which is in con­troversies between them, and which they sub­mit or refer to his determination ad Arbitriū. An Arbitrator hath an Arbitrary Power, while he keeps close to the thing submitted, and so far there is no appeal from him, his sentence being absolutely conclusive, and not controulable by any Judge. But here the Peace-makers are to be chosen by the Hun­dred in every County, and they shall hear and determine every Common controversie, whe­ther the parties submit their Cases to them [Page 4]or no; and that without any appeal from them, which in effect, is but thus much; Three men (be they wise or unwise, honest or dishonest, fools or knaves, or both) shall be chosen by the plain and generally ignorant Countrey men of every Hundred, out of them­selves, to hear all common Controversies be­tween man and man, and to judge and deter­mine them Arbitrarily: And let them judge for fear or favor, right or wrong, their Decree or Sentence shall be like the Medes and Per­sians, it shall be the ne-plus ultra to every man in every Hundred. Whether this will not be of the most dangerous consequence to the Commonwealth that can be, let him that hath but half an eye be the judge.

In the 38. pag. of his Book, Mr. P. would have two or more Peace makers appointed in every Town, or Place or Ward to hear the dif­ferences and Civil Controversies between man and man, before any go to Law, and if possible let them end it; and he would have that done only by perswading: Surely, Mr. P. did not warily peruse his Book after he set down his conceptions: This and the prece­dent proposition are direct contradictions.

In the 28. pag. he would have no appeal from the Peace makers, but their Sentence [Page 5]to de definitive; and pag. 38. he would have them onely to hear it before any go to Law, and labor to determine by perswa­sion if they can; I have a far better opinion of his last Proposal then his first.

Mr. P. further saith, The happiness in Go­vernment will never lie in Laws but men: But he must not deny but good Laws and good men together may make it more happy. And further he saith, That all good men carry good Laws in their bosoms: And do they out carry bad also? have they not a Law of Sin and Death, as well as a Law of the Spirit of life? a Law in their members as wel a Law in their mnide? We know good men err day­ly, and the best of men sometimes; there is no infallibility in their judgements, and no impossibility but a good man may be wrongfully byassed.

In the 36. pag. of your Book, the sixth head, you verifie what is said next before, That there are godly men not very wise nor just: We could wish they all were both godly, just, and wise, that should have the Judicatory Seat of decision and determination of mens in­terest and proprieties, according to the good Laws made and ordained by Parliaments, and not by Peace-makers.

In Page 31. Section four, He tells us; All Entayls may be cut off for ever, and men have liberty to bestow what they have, to whom they please, the Eldest son ha­ving a double portion. Observe the mis­chief and ambiguitie of this propositi­on. The mischief of it, because it de­signs the unsettlement of most estates in this Nation, though conveyed upon never so valuable a consideration, and setled forty, fifty, nay a hundred years ago, yea, though (if it should be cut off) the prodigal Father, or other Ancestor have never so many holes in the bottom of his purse, and be worse then the Infidel that takes not care for his own Family; is this good councel, M.P. That poor and helpless children should without any respect had to them, be deprived of a livelyhood intended and provided for them, when none was wronged, no creditor in being; and when the name of an estate, and not the reality of it, shall make the simple Creditor to trust be­yond discretion? for my part I think Ca­veat Creditor, as well as Emptor, if he trust.

Secondly, The ambiguity of it. First, Cut of Entayls for ever, then bestow as [Page 7]you please, (That is,) Entayl your estate again; what signifies this? you must explain your self to the world, to whose censure you have submitted your book. I and some others may conjecture what you mean. And you say, the Eldest son shall have his double por­tion, as it is reasonable he should; but he will be deprived, if you will have Estates tayl to be cut off, and the Creditor let loose a gainst him as well as others without respect; or else your proposition will be partial, which a Law for publique advantage should not be.

In the 32. page and the head, M. P. sayes; For a Body of Laws he knows none, but what should be the result of sound reason; nor any such reason, but what the God of wis­dom hath appointed; therefore the moral Law (called them ten words) is best, and the Judi­cials of Moses and Solomons rules and expe­ments added thereto. All honest and just law­yers will concurr with you; but Mr. P. you know there is not in all these, an express rule to judge every particular occurring, and contingent case that happens by; why then may there not be Regulae ex illis juribus sumptae, to decide contingent cases, (that fall not within the letter, though they fall [Page 8]within the meaning and generall provision of those rules) as experience and occasion shall require; I hope you will not deny but that this ought to be; then what is in our Law contrary to these Laws? Let that fall to the dust, and I hope there will be none that will offer to support them from falling: and Mr. P. must know that there is a Christi­an Law of Policy, that doth many times limit the law of nature and right reason, as I need make no other explanation to him then this that there is a law of God, that thou shalt not kill; And there is a Law of the same God, that thou shalt judicially take away mans life, where his offence is commensurate to life. Here is natural reason, and the Law of God, that I should not kill; and here is politick reason, and a Law of God, that I should not withhold my hand from blood in a judicial way. M. P. doth further wish the Lawyers to urge these for Law; And not those old obsolete Presidents, which will hardly prove or make a Seamans sute, to fit our occasion: We urge nothing for Law that is against these, or incoherent with them; if we do, we desire M.P. to tell us where, and prove it, and we shall follow his Coun­cel else his Ipse dixit will not drive us out of [Page 9]our Reason, or good opinion of the Com­mon Laws of this Land. What he means by our Presidents (which for the most part will be justified to be the result of sound reason, if he will venture a calm and Chri­stian like argument about it) not proving a Seamans sute to fit our occasion. I know not it is intended for a Proverb; but a very poor and perplext one, and nothing to the purpose to prove any thing against our law; if it be (I am sure) it will hardly sute with my understanding, upon this occasion either to comprehend or Answer it.

He saith next in Page 33. If any lawyer be continued, let him be allowed; and so page 43. Pro. 15. and let him plead for Justice sake; but why not con­tinued? is the profession unlawful? sure I am, you cannot prove it; or is it from the corruption of some of the professors of it, that you argue against it? then let them be found out that are corrupt: and when they are found and Adjudged so, let them be sus­pended from practice, and otherwise pu­nished according to demerit; nigro car­bone notentur. But that there should be no Lawyers, because Fees are bottomless, is no Argument; and if you would have fewer [Page 10]Lawyers, be instant with God that the peo­ples manners may be amended and that the Gospel may have a more influence upon them, and that men would do as they would be done unto; and then (if you and we suc­ceed in our Addresses to God in this re­spect,) there will be very little need of Law or Lawyers; but while Crescit in orbe dolus, there will be need of Law, and honest, and wise Lawyers. And we may bless God that provided us such remedies. As for their Fees, let them be regulated, as shall be thought fit by the State. You are angry with them, and therefore no competent Judge over them.

Page 33. Sect. 6. Mr. P. saith, Wills and Testaments may be Acknowledged by the next two Justices of the peace; be­fore whom they may be proved without any charge, and then entered into the former Register.

But what then? when they are acknow­ledged, Do you suppose all Wills to be good then? and must the Justices be Judges and Interpreters of the Wills and Testaments of such as devise estates? are they all through­out the Nation so quicksighted, as to discern the Intentions of Testators in their Wills? [Page 11]and Judges fit to decide whether men make Wills with disposing memories and under­standings, or no? can they with ease recon­cile the seeming contradictions that often happen in diyng mens Wills, by reason of those ignorant persons that many times they are necessitated to imploy to write down their Wills? are they so able Judges, where several Wills arise in competition one with the other to decide the controversie aright, which should take place? and do they know how to determine, whether, and when a Nuncupative, or a Verbal Will shall avoid a written Will or no? If so, then let the design of your proposal prosper; if not, you may blush to propose a thing that will prove an apparent mischief to the Land.

Pag. 33. Proposition 7. Mr. P. advises, That all the old Records in the Tower may be burnt as the Monuments of Tyrannie. But he proves them no such thing; there may be there many useless and antiquated Records; but shall all be burnt for their sakes; are there not many Records there which may give much light to this and the successive Ages, to see the spirit and temper of many former Ages past. My Lord Bacon, who [Page 12]I am sure hath the esteem of a wise man where his Books were known, gives a con­trary advice, That the ancient Volumes of the Laws should not be quite extinguished, but at least remain in Liberaries, that in cases of weighty consequence, we might consult the mutations of Laws past, & sprinkle modern mat­ters with Antiquity: Bacon Ad­vanc. of Learning. pag. 452. Aph. 63. what reason Mr. P. hath not to be of the same mind, I know not. I should have been very glad he would have offered some thing to make the world believe he knew it himself.

Pag. 34. Proposition 8. Mr. P. proposes, That no Lawyer might plead at any Com­mittee: but why Mr. P? nothing but a sic volo. I will suppose it must be one or all of these three Reasons he would give; when he will not set down his own reasons. 1. That every Committee is so wise, that it is impossible for them to receive any satisfa­ction or information in any case that shall come before them, or in any circumstance of any case, more then they of themselves can find out. Or 2ly. That every Committee is so weak as to be hurried to and fro, and unsetled in their judgements by the fal­lacies of Lawyers (and not otherwise, for [Page 13]by offering Truth, their judgements are set­led and fixt;) Or 3ly. Mr. P. must intend, That every man is able to manage his own Cause to the best advantage of Truth and himself; which I will not affirm, though he do so in Pag. 42. Pro. 13. But Mr. P. you will find Lawyers to be necessary at many Committees to plead, & to help them to o­vercome many difficult cases that may lie be­fore them; and you may assure your self (if you please) it is very safe, many times, that for the honor of the Parliament it should be so, if the roving and tedious Oratory of some Lawyers could be bounded within the due confines of the Truth of those particular Cases they handle, as they are truly circum­stantiated.

The 9. Proposition in the same page, and the 18. in page 46. and the 2. in p. 35. are against arrests, and imprisonments, and for Summons to be left at mens houses; this is already answered by the Philizers, who have offered very strong and plausible rea­sons for the process of Arrest, and against Summons; which they have published in Print, and submitted to the Parliament; under whose consideration it now stands. And I must tell Mr. P. That some of them, that have published these reasons, are neither [Page 14]of mean parts, Piety, or fidelity to the Pre­sent Government. Mr. P. would not have any put in Prison, or punisht with a loath­some Prison, as his words are, before hearing whether he be guilty or no. i. e. before he say, Guilty or not Guilty: but, Sir, how many men when they are summoned in order to be heard, will come? especially as you set your words, Any put in Prison; and when they appear and are heard, how many, or rather how few will confess any thing against Themselves, and to their own prejudice? as indeed they may not be urged to do: But in page 51. Proposition 2. Mr. P. Seems to allow of Prisons for criminal causes, though before he would not have any put in Prison.

The 9th Prop. in the 34. Page, is, That none shall distrain for Taxes or other Debt; but the Debtors outward door to be carryed to the Town house; and as many other new doors as shall be set up the shame and danger hereof will urge payment. Why not a distress for Taxes? is not the doors taking away a kinde of distress? But should that be admitted, which you propose touching Taxes (because it is a novelty, and may tickle the fancy of people that affect changing, and are never [Page 15]well, while they are fixed, but always so when they can toss and tumble themselves in the element of Mutation) yet how can your remedy be adequate to the case of other Debts, can 10000 l. or 20000 l. debt, be speedily got in by plucking off from a Debtors house the outward door? I am not able to understand it, and I doubt the Reader neither.

Page 35. Prop. 3. Lying long in Prison before Sentence, and delay of Justice, is cruel­ty: It is so, and I could wish from my soul it were not so, and that herein you would be more earnest, and that Committees were not as much in fault as the execution of the Law in this point; and that Prisons were kept by honester and more conscionable men; such being indeed generally the very scum and refuse of mankind; and for delay of Justice to men, our Law saith, Nulli negabi­mus, nulli deferemus justiciam; and for the execution of our Law, and expedition of Justice and Right to every man, there was never greater care than our now Judges of the Law do and have undergone.

Page 36. Prop. 5, 6, 7, 8. Are in substance thus much, that you would have one or more Committees of good, Wise and just men, [Page 16]to receive the request and advice of every particular Town and County for the obtaining of true Justice, and hindring of Suits; and that no man or Court of men be always above Justice. Sir, may not there rather be a view taken of the present Law, and what is good in it countenanced, and its exube­rances and gray-headed errors expunged, with the advice of them that have throughly studyed it, and a disgest made thereof; and what it wants, supplyed by such new Laws as it needs, it having already almost a salve for every soar, which is one of the most excellent fruits of the Age of our Law, that by running its course through so many Ages past, and meeting with suc­cessive contigencies, it hath brought down Rules to us framed from experience of the former Ages: so that there is scarce a Case that wants a Rule of justice and reason to guide it by. I may presume the Parliament, and most of the best of men in this Common­wealth, see less need of your Committee, then what is here proposed for the refor­mation of the Law.

And Mr. P. saith, no man or Court of men are to be always above Justice. AIWAIES! No, not as much as ONCE above it; and yet [Page 17]if you would have no Appeal from your Peacemakers. or your 5. or 7. men, in Page 39. pro. 11. They must in all likelihood be above justice, and be gratified with the priviledge of Impunity. 37. page, pro. 8. M. P. urges, That Priviledges should be taken away, that bring damage or hurt to the Com­mon wealth. This is very good; provided it be apparent that the State is prejudiced thereby; otherwise the priviledges of the City of London, and other great Cities and places may be impeached in that which is an apparent good to them; but until M. P. doth come out of his subterfuge of Gene­rals, into the plain field of particulars; as we are disabled, so we are not willing to give him any further answer in this point.

Page 39 pro. 10. M. P. proposes that to the end That Justice may be near to all men, that there be in every City, Town, or Hundred five or seven able men appointed to determine all controversies for Debts, and Strifes, and any three of them present to have power to give sentence: And afterwards he proposes, That in weighty cases, they may consult with learned Advocates, and Divines. That Justice may run in clear streams by every [Page 18]mans door, it is already provided by our Law: The learned Judges, (being bred up with much expence of mony and time, and wading through a Toylsom study; and therefore knowing better to decide aright all controversies for Debt, &c. then any private Countrey Gentlemen, whom he would have to be a Committee) do ride Circuit throughout all the parts of the land to hear and determine (not arbitrarily, but by just rules known to the people, whereof they have had long experience,) all causes of what nature soever they be, whether Criminal or Civil. Then I pray tell us what need is there of such a Committee, as you speak of, and of such a number of Committee men as your proposal would have? seven in every City; seven in every Town; and seven in every Hundred: Many Counties in the Nation have thirty or forty Towns; besides Cities, and Hundreds; what a number of Committee men must there be then in some Counties? at least 200. and who must pay them Salary? must not the State? or will they serve for nought? No sure. Sir, I must tell you, that you have not well considered what you proposed; do you think that your proposal can tempt men [Page 19]out of their reasons, and conveniences to embrace such a dangerous trifle of novelty? No Sir. Frustra fit per plur a quod fieri potest per pauciora.

And for their consultation in weighty matters with learned Advocates and Di­vines, the Judges in all weighty cases do consult again and again with learned Advo­cates and Councellors; but with Divines they do not, except in cases of conscience; And I could wish Ministers would forbear proposing for themselves, and to labour to enlarge their priviledge, to meddle beyond their own calling, which is work enough of it self for them to do; this would be more profitable to their Flocks, and more honorable to themselvs.

Page ibid. pro. 11. He would have no Appeal from the sentence of these five, or seven men, but in weighty matters; and that appeal is to be from themselves to themselves; seven of them shall have power to reverse or confirm the Judgement of seven, or a less number; or if yet an Appeal must be, it shall not reach out of the County, for many weighty reasons: Thus much I understand of this proposition; The greatest part of the rest of it is a riddle to me; but why no Appeal? and if an Appeal to [Page 20]the seven men, or if from the seven men, not from the Counnty? the reason given is: For many weighty reasons; what a Chimera is this? I am sorry the world should be troubled (I say no more of it) with such impertinencies.

Page 43. pro. 14. Let all mens testimo­nies be taken on oath, by notorial writings; yet so as witnesses may be examined by word of mouth, each apart; The testimonies of wit­nesses on oath are put in writing in some Courts, and examined apart; and some other Courts by experience find it not fit so to do, but to examine them coram populo: where Judges, Jury, and Councel pro and con watch the halting of false witnesses, if they should swear falsly; and before so many observers of their Testimonies false wit­nesses very rarely escape undiscovered.

Page 47. and 48. pro. 9. Mr. P. would have partiality prevented; then let him not speak against the present Law, and its judges; for we know none more impartial, neither do we believe any can be, that shall come in their stead.

Page 48. He would have great punish­ments inflicted on them that take gifts, or pervert Judgement: Charge any of the present Ministers of the Law therewith, [Page 21]and prove it, and you shall find the Law it self hath provided them pu­nishments severe enough, Mag. Ch. is that nulli ven­den us justic. &c. and more commensurate to those offences then we suppose you can offer.

Page 48. pro. 20. M. P. would propose That sore punishment be inflicted upon false witnesses. The Law of England hath provid­ed punishment sore enough for this also.

Page 49. pro. 21. Some able men must be apppointed, to be ambulatory or Itinerant from Court to Court to observe the injustice of these several Courts that Mr. P. would have set up. And to inform the State of those, that they may be punished Mr. P. Would have set up in e­very City, Town, and Hundred, five or seven able men, which in each of those will (as I told the Reader) amount (in some Coun­ties) to 200. men and upwards: And there must be one in every City, Town, and Hun­dred to observe the Irregularities of these particular Committees (for I cannot see how it can be otherwise) which in the several Committees of a County (by Mr P. his rule) will amount to 30. or 40. men; for fewer cannot well observe the injustice of these several Committees that will constantly sit. Will not this make a leane State? that it should maintain all these officers in every [Page 22]County of the Common-wealth? there being 73. Counties in the Nation, and by Mr. P. proposal there being near 230. or 240. officers in most of the said Counties, ex­cept those which are Counties of Cities; I think the Nation will not have much cause to rejoyce in such a Multiplicity of officers.

Page 51. Mr. P. would have no malefectors against the light of nature and Civil society escape unpunished, &c. No more will the Laws already established in the land, nor its pro­fessors; they will all approve of this pro­posal.

Page 53. pro. 4. Mr. P. would have no man or Court of men to pardon any offenders; what? not any ANY offenders, let the Circumstances or his case be what it will, nor no Court of men to pardon? not the Par­liament? this is the very spirit and Quintes­sence of Cruelty (though I think Mr. P. means it not) not warranted either by the Law of God or man, and though the next line under this proposal be Quotations of Scripture; yet to warrant this proposition in the latter of it by these Scriptures, is Humano Capiti cervicem jungere equinam; and indeed most of the Places of Scripture that are cited to justifie Mr. P. propositions, are extreamly misapplied. And many times contrary to the [Page 23]very Tenor of what he proposes, as if they were annexed at adventure.

Page 53. pro. 5. Let no difference be made be­tween Jew or Gentile, Bond or Free, stranger or Native in Criminal or Civil things, &c.

There is no difference between them made by our Law in point of right between man and man; onely our Law favours a Native more then a Stranger in some respects; as if a Stranger or A­lien from beyond Sea come over into this Nation, to live here and bring his children with him, and then purchase Lands here, those children that were born beyond Sea (Ireland and some small other Ilands where the Laws of this Common­wealth are currant excepted) shall not in­herit these Lands; but if he hath children born here in England, they shall Inherit, because our Laws favor Natives more then Strangers, in this respect; and if such an Alien die without any issue born in this Nation, his Lands so purchased, come to the Common-wealth; but in most other cases, they have equal Justice with other: I conceive this is not contradictory to any Law of God: e­specially the Alien knowing the danger of pur­chasing Lands before hand; the other cases in which he hath not a like priviledge with a Na­tive (though they are but few) yet are too te­dious, and indeed needless to insert here.

Page 54. pro. 6. He proposes that the children [Page 24]and heirs of malefactors may not be punished for their Fathers offences in the loss of their estates that might descend or otherwise become unto them; I acknowledge it is hard, and I could wish with Mr. P. That the Fathers having eaten sour grapes, the childrens Teeth may not be set on edge.

Page 56. Mr. P. proposes that theevs for ordinary stealths, (I mean not Robbers upon high wayes, or Burglers) may not be so commonly hāged as they are. This I could wish also, (though in this there is not now such strictness observed as the Law prescribes,) but that they be made Gally-slaves, or that some other such course be taken with them, as not to take away their lives, and con­sequently all hopes of making of them better. And I shall fully concur with Mr. P. herein; I have ended as to Mr. P. his proposals touching the Law, wishing him to consult a little more be­fore he writes so rashly again; That which con­cerns other professions and callings, they best can tell how to answer, that are Professors. I will not be, as Mr. P. is, Sutor ultra crepidam. And I have done what is here done, more hastily then the merit and honor of the Common Law deserves; yet I hope its professors will excuse my faults (for I conceive no other is a proper Judge of them) they being errors of love to that which is good and just.

Major haereditas venit unjcui (que) nostcum. a jure & legibus, quam a parentibus.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.