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queen’s University
at Kingston

Kingston Ontario Canada

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or, a
to the
An ACCOUNT of some Instances of the Practice
of Former Times, in Order to the Improvement of
Justice, and Safeguard of the Constitution.
_________ O Melebaee Deus nobis haec otia fecit.
Namque erit ille mihi Semper Deus illius aram,
Saepe tener Nostris ab ovilibus imbuet agnus.
Printed, in the YEAR MDCCXVI.

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( 5 )

or, a
to the

IN the Mirror of Justices, an ancien(t)
Law Book, Writ before the Conque(st)
and enlarg'd since by Andrew Hor(??)
Cap.4. Sect. 8 we find one of t(he)
Laws of King Alfred in these Word(s:)
     Of False Judges assigned, King A(l)
fred ordained such Judgment, That t(he)
Wrong they do to God, whose Vicere(gents)
they are, and to the King, who is p(ut)
into so noble a Place as is the Chair of God, and half giv(en)
them so great Dignity as to represent the Person of God, a(nd)
Conusans as to Judge Offenders, that first they be adjudged(to)
make Satisfaction to those they have hurt, and that the R(e)
mainder of their Goods should be to the King, saving all ot(her)
Rights; and that all their Possessions, with all their purcha(sed )
Land should be forfeited, in whose Hands soever they be co()
and that they be delivered over to false Lucifer, so low t(hat)

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(t)hey never return to them again, and their Bodies, that they be
Punish'd and Banish'd at the king's Pleasure: And for a Mor-
(t)al False Judgment, that they be Hang'd as other Murderers.
      In pursuance of this Law, King Alfred caused Forty four
Judges to be Hang'd in one Year, as appears by the same
Author a particular List of whole Names and Crimes I
have given hereafter.
      The Courts were not been settled at Westminster-Hall,
but Justice was Administered by the Prefecti Comitatus, call'd
Comites, and their Co-adjutors call'd Vice-Comites, not from
their Attendance upon the Person of the King, but from
their Office or Jurisdiction, which in their particular Di-
stricts bore some Resemblance to the Comes Palatij ,
who were eligible by the People , as I think I cou'd make
appear, if it were material , and which I mention on-
(l)y to account for the Hanging so many Judges in one
      And least this Exemplary Act of Justice shou'd be impu-
(t)ed to the Barbarity of the Times, I think it necessary to give
(so)me Account of this great Saxon Law-giver, that cer-
(ta)inly was equal to any of the Ancients, and except Moses.
(A)ll Antiquity rings of him both in Verse and Prose. I
(s)hall mention a few Lines out of a Modern Poet, Sir Win-
(sto)n Churchill, which are to be found in his Divi Britannici,
(?) British Worthies, in praise of him.

      To thee is due, great Alfred, double praise :
To thee we bring the Lawrel and the Bays.
Master of Arts and Arms : Apollo so
Sometimes did use his Harp, sometimes his Bow.
And from the other Gods got the Renown,
To reconcile the Gauntlet and the Gown.

( 7 )

But who did e'er, with the same Sword, like thee,
Execute Justice, and the Enemy?
Keep up at once the Law of Arms and Peace,
And from the Camp issue out Writs of Ease?

      I the rather have taken notice of this, because this inge-
nious Gentleman, whilst his great Soul was inspir'd with
the Glory of the British Worthies, and his Pen was transmit-
ting the noblest Ideas of them to future Ages, happen'd to
add to their Number, and to bestow upon his Country ano-
ther Hero, that seems to be the Epitome of them all, and to
whom all those of the Posterity of Alfred, that he himself
would own, where he now alive, are highly indebted, being
like the Father, as I take it, of His Grace the present Duke of
Marlborough; which wou'd make a Body think, that the
Representations and Images of Vertue being strongly im-
printed in the Mind of the Parent, may have the same In-
fluence in forming the Progeny that deform'd Objects are
often known to have in some cases.
      Asserius Menevensis and John Spelman, the son of Sir Henry,
have writ the Life of this Monarch, wherein they style him
Magnus and Fundator, being the Projector of our Constitu-
tion, and seems by this exemplary Severity upon the Guar-
dians or Conservators of it in its Infancy, to have pointed out
the only Way to Posterity, that he thought capable of preser-
ving it. His Fortune was exercis'd and ambiguous,which he
bore with a Constancy and Equality that contributed to his
Greatness : He was abandon'd after he was King, and forc'd
to abscond, which the Clergy of that time attributed to
some Sin that he was guilty of, and inflicted by God as a Pu-
nishment upon him in this World, that he might not suffer
in the next. His elder brother had injur'd him very much

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in his Patrimony left him by his Father; but however he
was intrusted by him in the Wars, and serv'd him faithfully
to his Death notwithstanding; and in return, his Brother
left him the Kingdom, having the Fee-simple thereof, as the
Alumni Alfredi in Oxford affirm in their Comment upon Spel-
man, tho’ in disherison of Kenred the Son of Wolfer his elder
Brother; so that he came in by the Donation of a Monarch
that was Absolute, not by a Divine Right, but that of Con-
quest, which he deriv'd from his Pagan Predecessors, that
had no knowledge of God, or any Privity or Communion
with him except in the ordinary Course of Providence. He
perform'd several great Atchievements, having brought the
Remains of the Saxon Heptarchy under his Obedience, and
likewise some part of the Welsh, call'd Ordivices, a stout
and warlike People ; but the greatest of his Actions was in
relaxing the Reins of Government, and granting large Im-
munities and Liberties to his People, and likewise Means to
preserve them, by instituting the Grand Inquest of the
Kingdom, call'd the Michael Gemot, or Parliament ; and the
smaller Inquests, called Judicium Duodecem virale, or Juries,
and by dividing the Country into Shires or Prefectures,
and ordaining Governors over them, that were Creatures
of the People.
      Says MALMSBURIENSIS, Volentes Angli in potesta-
tem Alfredi concesserant guadentes se talem virum edidisse qui
posseteos in libertatem evehere.
      This wise Prince did not think fit to leave a Despotic and
Arbitrary Power in his eldest Son over the Lives and Li-
berties of all the rest of his Children, who were equally
dear to him, and amongst whom he numbred his People ;
nor did he intend that anyone should wear his Crown that
wou'd not submit to his Laws and Ordinances, which he
left as a Charge or Condition upon their Estate.

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And he did not only protect his People by his Arms, and
amend them by his Laws, but likewise made use of all the
Arts of Peace to Polish and Adorn their Minds, thereby
to render them more Tractable to Government, and more
Capable of Discerning the Use and Excellency of it.
      He Modell'd and Enlarg'd both the Universities, and
his Alumni Translated Spelman into the Universal Language
in honor of him, and us'd to Drink to his Glorious Memo-
ry very Plentifully, till that great Light of the Gospel
the Bishop of Cork discover'd it to be a Sin, in his late Reve-
      He invited Learned and Ingenious Men to come and
Settle in his Dominions from all Parts, and gave them the
greatest Encouragement, particularly to one Johannes
Erigena a famous Irishman, that had been brightned by the
Eastern learning.
      Before the Conquest when the Judge or Prefectus Comita-
tus was Eligible by the People, it is to be remark'd that
the King was generally the Person that prosecuted the
Judges to Punishment, as King Alfred did, and several
others ; particularly King Edgar, who us'd frequently to
make a Progress for that purpose ; but after the appoint-
ment of the Judges fell into the Hands of the Crown the
People were Commonly the Complainants in Parliament.
      In the 17th Year of the Reign of Edward the first, whom
my Lord Coke calls the Wisest King that ever was, Twelve
Judges were punish'd very heavily, but in a Parliamenta-
ry Method. Sir Ralph de Hengam Chief Justice of the King’s
Bench was fin'd 7000 Marks. Sir Thomas Weyland Chief
Justice of the Common-Pleas, was Attained of Felony ;
and Sir Adam de Stratton Chief Baron of the Exchequer (an


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Exquisite Rogue that had got a prodigious Estate) was
fin'd 34,000 marks, which amounted to 2266 l. 13 s. 4 p.
Sterling, and was Reckon'd an immense Sum in those
      Of this passage Walsingham says, fol. 54. Justitiarios omnes
de falsitate deprehensos a sao officio deposuit ipsos Juxta merita
gravi puniens multa.
      In the 24th Year of the Reign of Edward the Third,
who was Reckon'd a very Wise Prince too, Sir William
Thorpe, Chief Justice of the Kings-Bench for taking five
Bribes that came to no more than 100 was adjudg'd to
be Hang'd in Parliament.
      The Reason of the Judgment is Enter'd in the Roll
          in these words,
      Quie praedictus Willielmus Thorpe, qui Sacramentum domi-
ni Regis Erga populum suum habuit ad Custodiendum fregit mali-
tiose falso & re belliter quantum in se potuit.
      And ‘tis entered into the Roll that this Judgment shou'd
not be a Precedent in Respect of any other Oath, but that
of a Judge.
      This Judgment was question'd afterwards in Parliament
the 25th of Edward the 3d. numero 10, and was declared to
be Law, Nemine Contradicente ; and I take the same Law
to be in all Cases where a Judge breaks his Oath, falso &
malitiose (i.e.) wittingly. Thorpe’s Oath is entered in the
Roll, which is the same with the Judge’s Oath, the 18th
of Edward the 3d, which I suppose the Judges take here.
      And I do conceive the Judges fall under the same Penal-
ty where they give any Extrajudicial Opinions contrary
to Law, knowingly, being bound by their Oaths to Coun-
sel the King according to Law.

( 11 )

      In the 11th Year of Richard the 2d, Judgment of High
Treason was given against Eighteen several Persons of E-
minent Rank, for misadvising the King ; three of whom
were Archbishop of York, the Duke of Ireland, and the
Earl of Suffolk.
      Six Judges were among them, Locton the Kings Ser-
geant at Law, Blake the Kings Councel, and Usk the Sheriff
of Middlesex.
      The Archbishop, Duke and Earl fled for it. Sir Robert
Trifilian the Lord Chief Justice was hanged at Tyburn, and his
Throat Cut in Pursuance of his Sentence ; and likewise
Usk and Blake, and several others. Some got a Pardon of
Life but were Banished and their Estates Confiscated, and
tis observable that all this was done by Parliament.
      The Occasion was thus. Richard the 2d having Misgo-
vern'd during his Minority, a Commission was appointed
by Act of Parliament to Twelve Peers and others, to inspect
the Management of the Household, the Revenue, and the
Courts of Justice.
      The Archbishop, Duke and Earl, who are the Mini-
stry, and the Persons chiefly Aim'd at by this Commission,
perswaded the King that the Procurers of this Commission
were guilty of High Treason, as being against the Prero-
gative, tho' by Act of Parliament ; whereupon Blake the
King's Council was Commanded to draw an Indictment of
High Treason against the Commissioners, which he did
and stands Entered in the Roll to this Effect.
      That the said Commissioners and others had Traiterously
Conspir'd amongst themselves, to procure this Commission by Autho-
rity of Parliament, against the Royalty of the King to his Disherison
and in Derogation of the Crown; and that they forc'd the King’s
Consent, and Combined it to Maintain one another in so doing.

B 2

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      The Design was to try them that were not Peers by a
Middlesex Jury, and Usk the Sheriff of the County, ( which
it seems has been an Ancient Practice upon Life and Liberty)
was made a Tool to Pack a Jury that found the Indictment.
      But that was not sufficient to Screen themselves by the
Authority of the Judges, they procur'd them to Prostitute
that Sacred and Venerable Character to their Wicked de-
signs, whose Credit it has been always thought by Wise
and Honest Men to be the Common Interest of King
and People, to preseve as an indifferent Umpire and Mediator
between them, which has been useful to both in times of
greatest misunderstanding.
      The Question was put to them whether Urging and Per-
suading the King to Consent to this Commission in Parlia-
ment was High Treason or not? and they answer'd that it
was; for which they were Punish'd, as is before menti-
on'd, no Body excepted the Ministry, the Judge, the Sheriff,
or the Drawer of the Indictment. Upon which I observe
two Things.
      I. That in Treasons which concern the King and King-
dom, the Parliament is not ty'd to the strict Rules of the
Common Law, but that according to the Course of Parlia-
ments, they may declare Treasons, which is reserv'd to them
by the 25th of Edward the 3d.
      II. That Fear and Cowardice can be no Excuse to Judges,
(for it appears they were menaced by the Duke of Ireland,
and they made that part of their Defense.) who are intrust-
ed with the Rights of Mankind, and ought not only to lay
down their Posts, but their Lives with Constancy and Cou-
rage, rather than betray the Charge committed to them.
      In the beginning of the Reign of Henry the 8th, Two
Barons of the Exchequer, viz. Sir Henry Empson and Edmund
Dudly were Beheaded on Tower-hill.

( 13 )

      Their Case was, thus, Henry the 7th, in the 11th Year of his
Reign, had brought the Lords and Commons into an Act
under the specious Pretences of the Glory of God and the
Good of the People, as appears by the Preamble that put
it into the Power of the Justices of Peace and of other
Commissioners to determine Offenses against Penal Laws
in a summary Way at their Discretion without a Jury.
Note This
The ill consequences of this Statute are suffi-
cient Experiment to convince every free born
English Man of the Value of Juries, and justify
the Blood and Treasure that has been spent in
contending for every Letter of Magna Charta, the great
Foundation of our Liberties. My Lord Cook, who is al-
ways in a great Passion at every Invasion of the Funda-
mentals of the Common Law, is so free with this Statute,
as to call it sometimes most unjust and strange, and at
other times injurious, and he makes bold to give a Ca-
veat to Parliaments, to leave all Causes to be measured
by the golden and straight Metewand of the Law, and not to
the uncertain and crooked Cord of Discretion.
      I have mention'd his very Words for the Elegance of the
Metaphors, wherby he seems to compare a discretionary
Power in the Judge to a Cord or Rope in the Hands of the
      The Statute cou'd not bite without Teeth, Hands were
necessary to put it in execution, Empson and Dudly were
thought proper, so great a Trust; and how these Judges
behav'd themselves when they had power to act without a
Jury, which I take to be the same as when they have power
to influence the Jury by Fines or Rules of Court, I shall leave
to the Historians to relate, but it cost them their Lives.

( 14 )

      Speed and Bacon give an Account of them at large,
to which I refer the Reader, a Copy of an Indictement of
one of them follows here after for the Abuse of Justice.
      It is with much Concern that I must Remember that
this Bacon, who was Lord Hhigh Chancellor of England in
the reign of James the first, tho’ he gave Empson and Dudly
most opprobrious Names in his History, fell into as great an
Error himself.
      He happen'd to be detected in Parliament, for Selling
Interlocutory Orders, in his Court. Which indeed is as
great an Instance of Humane Frailty, as that of Peter in
Denying his Master.
      He had Censored this Crime with the utmost Abhor-
ance in several of his Writings, particularly in his Essay
upon the Office of a Judge, which is at large in the Appen-
      However led into Necessity and Want, into so great a
Piece of Wickedness,his Noble and Ingenious Nature wou'd
not let him make any Defense. He confess'd the Fact,
Condemn'd himself, and seemed to take a Pleasure in the
good, so great an Example of Justice wou'd do to Man-
kind as appears by his Letter to the Lords, of which you
have a copy hereafter.
      He was the Columbus of the Learned World, a continu-
al Benefactor to all Men; having given as great Light to
the World almost as the Sun itself, by his Discoveries, but
notwithstanding the Learning of this great Man, his Life
but narrowly escap'd, and though they wou'd not let such a
useful part of the Creation Dye ( the like of which had
scarce ever been known before ) yet he was depriv'd of his
Office, fin'd and reduc'd to Beggary.

( 15 )

      I must take an Occasion here to be so plain with Popery
as to own, that I take it to be a Creature of the Devil, who
has wrought all the Superstition of the old Heathen, who
worshiped Men and Women, and sometimes the Vices un-
der feigned Names, as that of Mercury and Venus, into the
Body of Christianity, and many other Stories, that must
appear fabulous to all Men that permit themselves to use
their Understandings. The Devil had one of his side a-
mongst the Apostles,and he has always had some of his Friends
in the Church of Christ, to put Lies into its Mouth, to
make it suspected. This has driven some good Natures and
great Wits into Atheism, until they recover'd, by the Matu-
rity of their Judgment, the Grace of God, and great Mor-
tifications, as it happen'd to Picus the Prince of Moradola and Concordia.
      It has likewise occasion'd some good Men to run into the
opposite Extreme, who had no Rule in their Judgment of
the Religion, but the Distance it bore from Popery, which
has unhappily broke the Unitary of our Holy Church, which
was establish'd by Law, according to the Spirit of God and
the true Principles of the Gospel.
      And I must tell all those Persons that profess the Ministry
of the Gospel in the Church of England, and endeavor to
establish any Falsehood or Imposture in its Doctrine,that they
are the Agents or Instruments of the devil, and acting the
same Part with their Predecessors, that disgrac'd the Chri-
stian Verity with Romish Superstition, which un-
doubtedly they are as capable of embracing as any other
      This Religion so contrary to Truth, and the Sense and
Reason of Mankind, cou'd never think of restoring it self
but by Force and Violence, wherefore it has always been a

( 16 )

Friend and Prostitute to Arbitrary power since the Refor-
mation, and has found Means to recommend itself to Prin-
ces that were cruel, proud, or vicious themselves, or govern'd
by them that were such,
      Far be it from me to reflect upon the Ashes of Majesty,
or to say, that good and pious King Charles I. whose Mur-
der is a Reproach to Mankind, was inclinable to Popery ;
but it certainly found Favour in his Reign, which was owing
to the Vices of his Ministers, and the Principles of his
Queen, who were united in Interest to destroy the English
Freedoms both of Body and Mind,
      For what sort of Doctrines were advanc'd by Laud, Sip-
thorp and Manwaring, as warranted by the Gospel, I refer
the Reader to Rushworth. One was, that the King was the
sole Proprietor of the Country, and accordingly Parliaments
were laid aside, and plausible Devices set on foot to raise
Money without them.
      One was founded upon an Ancient Writ that appears
in the Register to Command the Sea Ports to provide Ship-
ping, Men, Furniture and Apparel in Cases of Iminent
Danger, which is one of those Cases that Ingulfus calls
Trinoda necessitas. Noy was the Principal Projector. But
to screen themselves, it was thought expedient to
have the Judges of their side, whose Sacred Character
as I have observ'd before, has Commonly been Pro-
stituted to the designs of Villains that Plundered or Be-
tray'd their Country. The Poor King who was nothing but
goodness, but an utter Stranger to the World, and intire-
ly possess'd by them that were near him, was persuaded
when he heard the Opinion of his Judges, upon which he
depended, tho' form'd by the Ministry, to put the Project
in Execution.

( 17 )

      The opinion of the Judges una voce was Certified in
Obedience to a Privy Seal, very formally Directed to them
with the questions propounded.
      1. That these Writs were legal in Cases of Necessity,
which was true.
      2. That the King was the only Judge of that Necessity.
      Which left every Man’s Property and Liberty at the
Mercy of the prince, as often as he or his Ministry thought
themselves at any time in Danger, who had nothing to
fear at this time but Parliaments.
      Tho’ this in plain English was directly contrary to their
Oath, and any Effectual Surrender of all that ever had been
Purchased by the Vertue, Courage and Blood of our An-
cestors in several Contests with bad Princes; all but two
of the Judges persisted in their Opinion, when the Matter
came in a Judicial matter before them in the Exchequer in
Mr. Hamdens Case.
      My Lord Clarendon in his History has set an Immortal
Brand upon this infamous Judgment, says he, There was
scarce an Auditor so weak, but he cou'd take his Oath that he
believed the Judges forswore themselves.
      Hatton and Croke alter'd their Opinions, and made very
learned Arguments in favor of Mister Hamden, which are
Printed, wherein they Excuse themselves as if they Sign'd
the Certificate in Compliance to a Majority contrary to
their Judgments.
      Which in my humble opinion is so far from being an
Apology that it is an Aggravation of their Crime. They
were then upon their Oaths to Counsel the King according
to Law, and they confess'd they broke those Oaths by do-
ing the Contrary, knowingly.


( 18 )

      A Stout and great learned Judge has preserv'd a Nation
of which I have given an Instance here after ; and it may
be that the King trusted to their Judgment and Authority
more then all the rest, and therefore the Retracting their
opinions after they had probably engag'd the King in such
Measures that he cou'd not extricate himself from with
Honor or Safety, makes a double Charge upon them.
      Such may most properly be called the Executioners of the
Royal Martyr, for what ever his good and tender Inclinati-
ons for his Servants, and pretended Friends, might lead him
to, his Judgment was form'd by these Men, that he rely'd
upon as a Common Umpire between him and his People ;
and they undoubtedly have Accounted before God by this
time, for abusing the Princely Virtues of their Master,
whereby he was put at Enmity with his best Subjects ; and
afterwards fell into the Hands of the worst.
      The Judgment given in Mister Hamdens Case was after-
wards question'd in Parliament, the Record was Vacated,
the Roll crossed with a Pen in the House of Lords, and Sub-
scrib'd by the Clerk of the Parliament,the Chief Justice and
most of the rest of them were Impeach'd who absconded
sometime, but the Civil Wars soon afterwards came on.
      It is inherent in the Nature of all Propriety and Domi-
nion, whether Publick or Private, to be alienable, the
Parties interested concurring, for all Laws Abhor a Per-
petuity, because Circulation is as necessary in things Mo-
ral as Natural.
      To say, that the Kings of England and their People can’t
Transfer the Right of Government to whom they please, is
a manifest Absurdity ; and contrary to the Practice of
former Ages, as well as the Nature of the Thing; as may
appear by several Instances quoted by the Alumni Alfredi
in their Coment on Spelman.

( 19 )

      It is the same to say, that the Establishment of the Crown by
the Laws of Succession and Inheritance is indefeasible, and
can’t be alter'd by an express Renunciation of the next
Heir, or by an implied one, as where he is under any Natu
ral or Political Incapacity, or where he rejects the Terms
and Ordinances that were impos'd upon him by the Founder,
whether it be God or Man, and claims to act under the
Pretense of a greater Authority than he really has, which
was certainly a frequent and reasonable Condition impos'd
in several of the Saxon Constitutions, as when a Tenant for
Life makes Feosment in Fee.
      And I do in my Conscience believe every Papist to be dis-
qualified to wear the Crown, as much as a Pagan or an
Ideot, or a Person that actually renounces ; because the first
Act of his Reign, which is his Coronation Oath, he himself
must think to be a very great piece of Wickedness, for he
must either forswear himself, or support a Religion which
he believes to be odious to Cod, and in which no Man can
be saved, and which he is engaged to destroy it by a superior
      It cou'd never be the intention of Alfred, that’s such a de-
generate Branch of his Family, that was capable of so ill
a Thing as to take an Oath with a design to break it, and
was not only unfit for Government but even humane Soci-
ety, shou'd Rule over the rest of his Royal Posterity, nor
cou'd it be the Will of God, if we may presume to judge of
it by the Light of Natural Reason, without the Revela-
tion of his Prophets.
      Let them consider of what they do, that endeavor by their
Preaching to invest such Miscreants with the Reputation of
a divine and indefeasible Authority, to which they certain-
ly have not so good a Title as the Devil, to whom God did

C 2

( 20 )

once give a special Commission to torment Job; but that
was no Argument that Job was bound to Passive Obedience,
or that he ought not to resist, as much as he cou'd, for his
own Preservation.
      In the Reign of Car. II. upon these Principles, some wise
Men, that were no Enemies to the Royal Family, but were
for preventing what happen'd afterwards, promoted the Bill
to exclude the Duke of York from succeeding to the Crown.
To obviate this, the Duke pretends himself to be a Prote-
stant, and every body that said or wrote anything to the
contrary, or otherwise to his Prejudice, was to be Punish'd
by the Course of Law ; but Truth was not to be suppress'd
without taking away the Freedom of Juries, that great In-
quisitor of Truth, the Light of the Constitution, and the Bul-
wark of Liberty, whose Word is called Veridictum, or Dictum
      One Method they took was thus, if the Juror took upon
him to give his Verdict contrary to what the Judge held to
be Evidence, he fin'd him as for a Contempt, which de-
stroy'd the Indifference and Impartiality of the Juries, and re-
solv'd all again into the Discretionary Power of the Judge,
who cou'd make the Juror say what he pleas'd upon pain of
being fin'd, which confounded the several Jurisdictions of
Law and Fact, and defeated the whole Intent and Policy of
the Institution.
      The Recorder of London, I think, was the first Beginner
of it ; but the Matter coming by a Habeus corpus into the
Common-Pleas in the Case of Busbel, the Fine was resolv'd to
be void. The Folly and Absurdity of it is fully expos'd in
Vaughn's Reports, to which I refer the Reader ; for the
Judges of the Common-Pleas happen'd to be Men of Integrity
and Fortune, that would not transmit Chains to their Poste-
rity, nor cut the Sinews of their own Inheritance, by weak-

( 21 )

ning its greatest Security, which wou'd not only impair the
Title, but likewise the Valuation.
      But they made other Judges that put all their Projects in
Execution, which Sidny, one of the Martyrs of Liberty in
his Dying Speech, calls Blemishes to the Bar. Some of them
were such poor hungry Wretches, that they would have been
suspected in the High-ways, and much more in the Courts of
Justice: They stuck at nothing, they were impeach'd, Bills
to exclude the Duke, and to create Judges for Life, were
urg'd but frustrated by the Court. Several honest Men
were murder'd and others remov'd, and King James mount-
ed the Throne. Then the Whore of Babylon threw off her
Mask, and shew'd her Nakedness ; he own'd his former Hy-
pocrisy, declar'd himself a Papist, took the Coronation Oath,
and broke it immediately, by trampling upon all Laws both
Humane and Divine. Certainly he took himself to be In-
defeasible, and out of the reach of mortal Men; and in-
deed the Priests and the rest of his Flatterers might have
easily persuaded him, that he was Comes Syderum & Frater
Lunae, as the Persian Emperors us'd to style themselves.
      And now in return for the Bill of Exclusion, he had found
a Way to settle the Crown upon a Popish Successor, and not-
withstanding the Jus Divinum, and the Heriditary inde-
feasible Right, to transfer it quite out of the Royal Line
without any Help or Assistance from Parliaments ; and that
was by one of the most shameful Impostures that ever was
upon the Face of the Earth : He own'd an Infant for his
Child that was not so, which was to be educated in the Ro-
mish Religion. What sort of a Religion must that be, that
cou'd dictate such a piece of Wickedness? ’Twas such a
Religion that made Lucretius to be an Atheist, and cry

( 22 )

------------ Tantum Religio potuit suadere Malorum.

      I think if I know my own Heart, I wou'd not wrong any
one willingly, not even the Pretender, nor wou'd I tell a
Lye, or commit an Act of Infidelity even by a Smile where
it was not due, for I love Truth and its Author, better then
all the Princes on Earth, and even my Life; and since I
am not an Eye Witness of this Fact, I will give an Account
of the Grounds of my Opinion, which I have weigh'd im-
      King James had been Married Eight Years to his Queen
without Issue, and under the Repute of some Natural Dis-
ability, Contracted by his Vices. The first Year of his
Reign it sounded like a Miracle, to hear that his Queen
was with Child ; all Sober Men profess'd their Scruples at
the thing, and the Rumor of an Imposture was Public ;
and it was the Interest of the Court, and likewise in their
Power, to give the World and the Presumptive Heir Sa-
tisfaction, if there had been Truth in it. It had been Easy
to have done it before the Birth, as upon a Writ deventre
inspiciendo in a private Case ; at the time of the Birth by an
Attestation of the most Credible persons ; and after the
Birth by the Marks and Signatures of Pregnancy, all which
was Eye Work Super visum corporis, which wou'd have stood
the severest Inquisition of Parliament, which they ought to
have promoted, to have remov'd the Censure.
      But on the contrary, the Princess of Orange was in Hol-
land, the Princess of Denmark sent to the bath, and Seven
Bishops to the Tower, and none present at the Birth but such
as were Interested and Engaged by their Principles or other-
wise, to promote the Fraud. Such was their Proof, which

( 23 )

was given only by Affidavits in a Clandestine manner. And
tis probable that they wou'd make as slight of an Oath,
as the King did at his Coronation, for the same Pious Ends.
      These Actions, the Parliament held amounted to an Ab-
dication of the Government, and produc'd the Revolution.
Jeffries Lord High Chancellor, a Principal Advisor, died in
the Tower, and thereby escap'd the Vengeance of the
      And that Sycophants and Time-servers may blush at
their own Cowardice and Iniquity, I will mention some
Instances of the heroick Courage, and unshaken Integrity
of some of the Sages of the Law.
      Sir William Gascain, in the Reign of Henry the 4th. commit-
ted the Prince and Heir Apparent of the Crown to a Tip-
staff, for a Contempt to the Court : the Prince submitted,
and the King applauded him for it.
      In the time of Queen Elizabeth, a Project was hatching
to raise Mony to without Parliament by the Courtiers, who
possess’d the Queen with the Notion of the Legality of it ;
the Method was by Letters from the Lords of the Council,
on pretense of the Wars of Ireland : Justice Walmfly had
a Letter amongst others directed to him, but he wou'd not
pay one Penny. The Queen hearing that a learned Judge,
that was dependent upon her for his Place, disputed Pay-
ment, began to suspect that she had been abus'd, and that
there was something in the Wind, and therefore caus'd him
to be conven'd before the Council, where she heard him
her self, and he inform'd her, that such a Method of levy-
ing Mony was contrary to her Coronation Oath, of which
he was one of the Conservators, and that by the virtue of
the Oath of a Judge, he was oblig'd to let her know it ;
whereupon she order'd the Mony to be restor'd that had
been Levy'd.

( 24 )

      If Walmfly had been a Sycophant, this glorious Queen
might have been led into Measures that wou'd have been
her Destruction ; but Walmfly's Integrity, Courage and
Learning, quench'd the Flame that was kindling, and for
ought I know, preserv'd the Queen and Kingdom.
      This Queen had erected a new Office in the Common Pleas
for making out Super sedeas, the Prothonotaries and Philizers
had it as a Branch of their Office Time imemorial. The Queen
granted the new Office to Cavendish, and requir'd the Judges
to put him in possession, who said they could not without
due Course of Law ; whereupon the Queen writ to them
very sharply for the same purpose : And for Answer, they
sent her Majesty a List of several of their Predecessors that
had been punish'd for the like Fault, being contrary to their
Oath; and then the Queen acquies'd.
      There is another famous Example in the Reign of King
William, in that Great and Reverend Judge Sir John Holt,
whose Learning, Courage and Integrity was like an Atlas
to the State, and fit to support the Globe, and all the Rights
of Mankind.
      ‘Twas in the case of Ashly and White, and ’twas to stem
the Torrent of a Popular Tyranny, which then was grow-
ing in the Commons ; as much as ever it had done in any
other part of the Legislature.
      I must observe the three Blessed Peacemakers Har-----t,
Harley and St. John, were then Ringleaders in the House of
Commons ; they and their Mates have been in all Parts
of the Constitution, the Church, the Parliament, the Mi-
nistry, and have appeared like Goblins or Sprites in every
Room of the Fabrick in several Shapes, but yet true to the
same Ends, Purposes and Designs, viz. To advance the

( 25 )

Interest of France, a Popish Pretender, and to make Peace
Abroad and War at Home.
      They always drove Privilege, Prerogative, and Religion
as they had the handling of them up to the Hilts, and
Stretch'd them till they were ready to burst their Orbs.
      At this time they were pleas'd to be Patriots and for the
Rights of the Commons. The Question in this Case depend-
ing in the Court of Kings-Bench was, whether a Free-Man
being refus'd his Vote in an Election for Parliament Men,
might not have an Action at Common-Law against the Of-
ficer to Repair the Injury in Damages ; the Right of Vo-
ting being a Benefit and Advantage arising from his Freedom,
as much as any other Fruit or Profit whatsoever, arising
from his Freehold. This Question did not interfere with
the Jurisdiction of the Commons which they exercise over
their own Members ; but depended upon a Rule of Pro-
perty, which was under the Direction of the Common-
Law, and the true measure of the Recompense to be
allow'd for it.
      The Judges were all Menac'd by the Commons, and the
very Council committed that Argued the Point. But Holt
singly and by himself notwithstanding, gave his Judgment
for the Plantiff, contrary to the Opinion of all the Rest of the
Judges of England, who when the Cause came by Writ
of Error into the House of Lords, being convinc'd by the Clear-
ness of his Reasons, chang'd their Minds all but two.
      How they got into the Ministry, and what they did
there is worth relating. Tho’ certainly there never were
greater Monsters or Prodigies of Vice and Lewdness, yet
they made a shift to recommend themselves to our late
Queen by their Religion, whose Piety and Regard for the

( 26 )

true Christian church, establish'd by Law, has been abus'd
in a most shameful manner.
      Far be it from me to reflect upon that Saint in Heaven
for Humane Weakness; Alcmena was debauch'd by one that
had the Art to turn himself into the Shape of her Hus-
band, and so might the most virtuous Woman in the World.
The first Step they took, was to get one of the Daughters
of the Philistines into her Majesty’s Bosom, who soon serv'd
her as Dalilah did Samson, by persuading him to cut off his
Hair, where in his Strength lay. The Duke of Marlborough
and the rest of the Ministry, probably the most prosperous
that had been at any time in England, are discharg'd , and
these Gentlemen and their Friends put in their Room for
their Christianity, which I must confess I never cou'd dis-
cern, unless it lay in the building of Fifty new Churches,
which were no more than the wooden Hands of a Pick-
pocket folded in a Posture of Devotion, to give him a bet-
ter Opportunity of using his real ones. They did some-
thing likewise in order to the Propagation of the Gospel in
foreign Parts, by sending Lefly over to convert the Preten-
der to his Religion, which he call'd the Church of England,
the first Article of which was Heriditary and Indefeasible
Right : The second, that such Heriditary and Indefeasible
Right was vested in the Pretender ; from which Proposi-
tions the Conclusion was to be made to the People in due
      These Ministers durst not own what they were about,
but acted steadily to their point under other Pretenses,
which were very transparent to a discerning Eye.
      The open Frankness and Generosity of an honest Heart,
will shew itself like the Beams of the Sun, and the Works
of the Prince of Darkness may be as easily discover'd by

( 27 )

their Shades and Colours. As the whole Project was for sup-
pressing Truth and Justice, and for promoting an Impo
sture, so they had the Cunning to employ Persons in all
Stations, that were qualify'd by great Endowments of
Wit, Eloquence and Learning, to set off a Lye, to which
they would make Truth it self, even the Word of God, to
be a Witness sometimes. The Pulpits rung of Heriditary
and Indefeasible Right and the holy Evangelists Vouch'd to
prove a Doctrine that wou'd have undone the Royal Line,
and would have given the Posterity of Kenred a much better Title
than those of Alfred.
      Moderation (which is no more than a wise Government
of our Passions, or a Restraint upon Envy, Hatred and Un-
charitableness toward our misguided Brethren) in which
all the old Philosophers have plac'd Virtue it self ; which
seems to be the Essence of Christian Morality, the very
Image of our excellent Constitution in Church and State,
and which its Adversaries have no occasion to speak well
of, was prov'd by Higgins to be a damnable Sin, and repre-
sented as Mediocrity and Indolence in Religion.
      There was one of their Fellow Laborers in this Vine-
yard, that I must take particular Notice of, Propter Exel-
lentiain. If his parts be not Supernatural is certainly one
of the greatest Wits of the Age. He is Master of the those
Figures and Tropes in Rhetorick, that can Disfigure Truth
or Corrupt the Opticks in order to misrepresent the Object.
      A Reverend Gentleman of my Acquaintance will under-
take to prove that he is actually the Devil, but I taken to
be but a Wizard at most. The Witch Circe was not better
Qualified to Transform Ulysses and his Mates into Swine.
Vide John Bull. He Hocus-pocus’d the Duke of Marlborough
into the Shape of an Attorney by his En-

D 2

( 28 )

      And   ’twas he as I have been informed, that Metamor-
Vide Aristides phos'd Sir Constantine Phipps into Aristides the
Just ; and bespattered in the most shameful
manner, those Glorious and never to be forgotten Patriots
that now so Worthily Preside over the Laws in this King-
dom ; which they lately Defended with the Hazard of their
Vide Tale
of a Tub.
He had serv'd the Christian Religion the same
way before, being capable of making every thing
that is Good appear vile, and every thing that
is Vile appear Laudable.
For these Talents he was made a Dignitary in the
Vide Essays
Writ by
Church of Christ, which is one of the best Rea-
sons he can give for not abolishing Christianity
at this present Conjuncture : How he has be-
hav'd himself since I shall leave it to his Con-
gregation to Relate ; and only save with Michael the Arch-
Angel, the Lord rebuke the Satan, without any Railing Ac-
cusation, for to be sure the Father of Lyes would have the
better of me at Reviling.
      At these things no Body durst to cry out Fire, but honest
Men wou'd shake their Heads, Drink to the Glorious Me-
mory of King William, and sometimes repeat a Copy of
Verses in his Praise, which the Ministers took to be calling
themselves Knaves ; and were Resolv'd to strain a Point to
suppress it. They got a Christian Bishop to write a Book
to prove, that Drinking to the Glorious Memory, was a
mortal Sin, and caused a worthy Gentleman, Brother to
the Lord Moor, to be prosecuted for repeating a Prologue
in the Playhouse that spoke well of King William, and I
think indeed ill of no Body in order to Pillor him.

( 29 )

      For this purpose they were determin'd to put out the
Eyes of Mankind, and to extinguish all the Lights of the
Law as well as the Gospel. Juries, the old Protection of
the Innocent, stood in their Way. To remove which, they had
advanc'd a Doctrine in the Corporation of Dublin, which
I must beg leave to call, as King Edgar did, Nobiliffuna Ci-
vilitas, that put it into the Power of the Mayor, (whom they
had corrupted, together with three of his Brethren; and
indeed all the rest had been tempted with very great Of-
fers ) to determine the Election of a Successor, by obliging
the Electors to choose One out of Three to be propos'd
by himself, which would have influenc'd the Election of
Sheriffs, and consequently of Juries and Parliament Men.
      To satisfy our late gracious Sovereign Queen Anne, who
wou'd not have countenanc'd them if she had thought they
had done amiss, they procur'd all the Judges in this King-
dom, except D_____n, to certify this Position to be Law.
      And least this Project shou'd fail, they establish'd another
Rule in the upper Bench, by a Solemn Judgment, that
made the Return of Juries intirely dependent upon the Di-
scretion of the Court or its Officers, which absolutely frustra-
ted the Intent of the Institution which was to protect the
younger Children of Alfred, from the Rage, Violence, or In-
justice of their elder Brother, or his Ministers, having suffer'd
himself before by the Arbitrary Power of his elder Brother.
      If this Judgment was given Falso & Malitioso, i.e. know-
ingly against the Law, which I have no greater Grounds to
presume, than that they had all the Information and Light
that Truth and Reason cou'd receive from the great Learning
and Eloquence of The Lord Brodrick, now Lord High Chan-
cellor of Ireland, the Lord Chief Justices Witshed and For-

( 30 )

ster, and the late Lord chief Baron Dean, 'Tis a Capital
Offense, but have an indefinite Species to be declared only in
Parliament, according to the Precidents mention'd, and so
is an Extrajudicial Opinion, if against Law, given by way of
Certificate. And indeed nothing can more properly be call'd
High Treason Laesa Majestas, or a mortal false Judgment,than
that which Misguids Kings, and brings their Royal Estate,
and even their Lives, sometimes in Danger. The Legi-
ides are truly the Regicides.
      I doubt not but all those Patriots that Preserve the Me-
mory of Alfred the Founder, and William the Restorer, will
be of the same Opinion.
      My Lord Coke in his Pleas of the Crown says, that King
Alfred's Law against false Judges was antiquated,but he was
then Antiquated himself,and in his Dotage, for it was one of
the first Principles in our Constitution, like that of self Pre
ervation In Natural Beings ; and has often inserted it self
since. Vid, Pryne upon Coke.
      Nothing is more Rational than that the Law shou'd have
a Power of Avenging it self upon its Murderers. 'Tis
Capital says Mr. Pim to Cut the Banks in Holland, which
lie under the Superficies of the Water. And Comines ob-
serves that are Stat.de Tellagio non concedendo, and other old
Laws, are as Walls and Banks against Arbitrary Power,
which is more dreadful to an English Man than all the Dan-
gers of the Sea, being like the Inundation of the Nile, which
confounds Property and Defaces all the Land-Marks ; and
to which we owe the Skill and Fame of the Egyptian Geo-
      If the ordinary Course of Justice wou'd not reach them,
'twould be justifiable for the Legislature to interpose, as has
been often done, where the King, Lords and Commons
have been agreed ; but I have omitted all Instances of that
Kind, as being unnecessary, and of which I do not approve
without the utmost Necessity.

( 31 )

      The Kings of England have granted all the Constitutions
of Alfred to the People of Ireland, but I don't find any Ex-
ample that has ever been made here for their Preservation,
which seems to be reserv'd for a Georgic, being the greatest
Improvement to Land, to adorn the glorious Reign of
King George, who is govern'd by God, the Rightful and
Lawful Heir of Alfred, and a religious observer of his Laws,
as Emanuel Commenus, was styled in respect of the Emperor

(Greek quotation omitted.)

I must own, that Justice unless it is mixed with Mercy,
which is another Attribute of God, whom we ought to
imitate, rather seems Vindictive than Exemplary, and a few
Examples will answer the true Ends of making them if
they are severe, which cannot be too great in the Case of
a false Judge, whole Punishment never was reckon'd an
Act of Cruelty, but rather of Popularity, for as Thucidides
observes, Mankind resent Injustice in a Magistrate from
whom they expect Protection more than open violence or
Robbery on the High-ways ; indeed the Doctors and
Teachers both of the Law of God and Man, that are ap-
pointed as Lights and Guides to Sovereigns and their Sub-
jects, are properer Objects of Vengeance then those that
have been abus'd or misled by them ; which to my Know-
ledge, has been the Case of many worthy and well mean-
ing Men, and no Body is so Infallible, but it may be his
own Case one time or another.
      There are a great many Instances of the Punishment of
Judges in foreign Countries, some of them seem to be wit-
tily Cruel : I will mention only one.

( 32 )

      Cambyses the King of Persia caus'd Sysamnes a Judge to be
Flead, and put to Death ; and a Cushion to be made
of his Skin ( which was Dressed with a great deal of Curio-
sity for the purpose) for the Bench where he Sat, and
that the Example might have a greater Influence upon the
Successor, and that the Father's Skin might be a perpetual
Monitor of Justice to him, he preferr'd Otanes his Son to his Place.

F  I  N  I  S



VEry speedily will be publish'd by the Author,
An Essay upon the Fall of Adam.
Transactions in the Exchequer, &c.


( 33 )


The  OFFICE  of  a  JUDGE

JUDGES ought to remember, that their Office is Jus
dicere, and not Jus Dare : To Interpret Law, and not to
make Law, or give Law. Else it will be like the Au-
thority claimed by the Church of Rome, which under
pretext of Exposition of Scripture, does not stick to add
and alter, and to pronounce that which they do not find;
and by shew of Antiquity to introduce Novelty. Judges ought
to be more Learned than Witty, more Reverend than\
Plausible, and more Advised than Competent. Above all
things Integrity their Portion and proper Vertue : Cursed
(saith the Law) is he, that removeth the Land Mark. The
Mislayer of a Meer-Stone is to blame ; but it is the unjust
Judge that is the Capital Remover of Land-Marks, when

( 34 )

he defigneth amiss of Lands and Property. One foul Sentence
doth more hurt than many foul Examples ; for these do but
corrupt the Stream, the other corrupted the Fountain. So
saith Solomon. Fons turbatus, & Vena corrupta, est Justus ca-
dens in causa sua corum Adversario. The Office of Judges may
have reference unto the Parties that sue, unto the Advo-
cates that plead, unto the Clerks and Ministers of Justice un-
derneath them, and to the Sovereign or State above them.
First, for the Causes or Parties that sue. There be ( saith
the Scripture) that turneth Judgment into Wormwood; and sure-
ly there be also that turn it into Vinegar ; for Injustice
maketh it bitter, and Delays make it sour. The Princi-
ple Duty of a Judge is to suppress force and fraud, whereof
force is the more pernicious when it is open, and fraud
when it is close and disguised. Add thereto contentious
Suits, which ought to be spewed out as the Surfeit of
Courts. a Judge ought to prepare his way to a Just Sen-
tence, as God useth to prepare his way by raising Valleys, and
taking down Hills : So when there appeareth on either side
an high Hand, violent Prosecution, cunning Advantages
taken, Combination, Power, Great Counsel, then it is the ver-
tue of a Judge seen, to make Inquality Equal, that he
may plant his Judgment as upon an even Ground. Qui
fortiter emungit, elicit sanguinem; and where the Wine-Press
is hard wrought, it yields a harsh Wine that tastes of the
Grape-Stone. Judges must beware of hard Constructions,
and strain'd Inferences; for there is no worse Torture than
the Torture of Laws, specially in case of Laws penal ; they
ought to have care, that, that which was meant for Terror,
be not turned into Rigor, and that they bring not upon
the People that Shower whereof the Scripture speaketh,
Pluet super eos Lanqueos: for penal Laws pressed are a

( 35 )

Shower of Snares upon the People. Therefore let Penal
Laws, if they have been Sleepers of long, or if they be
grown unfit for the present Time, be by wise Judges con-
fined in the Execution, Judicis Officium est, ut Rius ita Tempora
Rerum, &c. in Causes of Lyfe and Death, Judges ought ( as
far as the Law permitteth) in Justice to remember Mercy
and to cast a severe Eye upon the Example, that a merci-
ful Eye upon the Person.
      Secondly, For the Advocates and Counsel that plead ; Pa-
tience and Gravity of hearing is an essential part of Justice,
and an over-speaking Judge is no well-tuned Cymbol. It is
no grace to a Judge, first to find that which he might have
heard in due time from the Bar, or to shew quickness of
conceit in cutting off Evidence or Counsel too short, or to
prevent Informations by Questions though pertinent. The
parts of the Judge in hearing are four : To direct the Evi-
dence; to moderate length, repetition, or impertinency of
Speech. To Recapitulate, Select, and Collate the material
Points of that which hath been said ; and to give the Rule
or Sentence. Whatsoever is above these, is too much, and
proceedeth either of Glory and Willingness to Speak, or of
Impatience to Hear, or of Shortness of Memory, or of
want of a stayed and equal Attention. It is a strange
thing to see, that the boldness of Advocates should prevail
with Judges ; whereas they should imitate God in whose
Seat they sit, who represseth the Presumptuous, and giveth
Grace to the Modest. But is more strange that Judges
should have noted Favourites; which cannot but cause mul-
tiplication of Fees, and suspicion of By-ways. There is
due from the Judge to the Advocate some Commendation
and Gracing, where Causes are well handled, and fair Plead-
ed ; especially toward the side which obtain us not ; For

E 2

( 36 )

that upholds in the Client the Reputation of his Counsel, and
beats down in him the conceit of his Cause. There is like-
wise due to the publick a civil Reprehension of Advocates,
where there appeareth cunning Counsel, gross Neglect,
slight Information, indiscret Pressing, or an over-bold De-
fense. And let not the Council at the Bar chop with the
Judge, nor of wind himself into the handling of the Cause anew
after the Judge hath declar'd his Sentence : But on the o-
ther side, let not the Judge meet the Cause halfway, nor
give occasion to the Party to say, his Counsel or Proofs were
not heard.
      Thirdly, for that that concerns Clerks and Ministers. The
place of Justice is an Hallowed Place; and therefore not
only the Bench, but the Foot-pace and Precincts and Pur
prise thereof ought to be preserved without Scandal and Cor
ruption. For certainly Grapes (as the Scripture saith) will
not be gathered of Thorns or Thistles; neither can Justice
yield her Fruit with Sweetness amongst the Briars and Bram-
bles of Catching and Poling Clerks and Ministers. The At
tendance of Courts is subject to for bad Instruments : First,
Certain Persons that are sowers of Suits which make the
Courts swell, and the Country pine. The second sort is, Of
those that engage Courts in Quarrels of Jurisdiction, and are
not truly Amici Curiae but Parasiti Curiae, in puffing a Court
up beyond her bounds, for their own Scraps and Advantage.
The third sort is, Of those that may be accounted the Left
Hands of Courts ; Persons that are full of nimble and sini-
ster tricks and shifts whereby they pervert the plain and di-
rect Courses of Courts, and bring Justice into oblique Lines
and Labyrinths. And the fourth is, The Poller and Exacter

( 37 )

of Fees, Which justifies the common resemblance of the
Courts of Justice to the 'Bush, whereunto while the sheep flies
for Defense in Weather, he is sure to lose part of his Fleecc.
On the other side, an Ancient Clerk, skillful in Precedents,
wary in proceeding, and understanding in the Business of
the Court, is an excellent Finger of a Court, and doth ma-
ny times point the way to the Judge himself.
      Fourthly, For that which may concern the Sovereign
and Estate. Judges ought above all to remember the con-
clusion of the Roman Twelve Tables, Salus Populi Suprema Lex ;
and to know, That Laws, except they be in order to that
end, are but things Captious, and Oracles not well Inspired.
Therefore it is an happy thing in a State, when Kings and
States do often consult with Judges ; and again, when Judges
do often consult with the King and State : The one, when
there is a matter of Law intervenient in business of State ;
The other when there is some consideration of State inter-
venient in matter of Law. For many times the things
deduced to Judgment may be Meum and Tuum, when the
reason and consequence thereof may Trench to point of
Estate. I call matter of Estate not only the parts of Sove-
reignty, but whatsoever introduceth any great Alteration, or
dangerous Precedent, or concerneth manifestly any great
Portion of People. And let no Man weakly conceive that
Just Laws and true Policy have any Antipathy : For they are
like Spirits and Sinews, that one moves with the other. Let
Judges also remember, that Solomons Throne was supported
by Lions on both sides : Let them be Lions, but yet Lions
under the Throne ; being circumspect, that they do not check
or oppose any Points of Sovereignty. Let not Judges also

( 38 )

be so ignorant of their own right, as to think there is not
left to them, as a Principal part of their Office, a wise Use
and Application of Laws ; for they may remember what
the Apostle saith of a greater Law than theirs, Nos scimus
quia Lex bona est, modo quis ea utatur legitime.

( 39 )

J U D G E.

In dorse Claus. de Anno Edw. 3. Part Primo

YE shall swear, That well and truly ye shall serve
our Sovereign Lord the King, and his People in
the Office of Justice ; and that ye shall Counsel our
Lord the King in his Needs ; and that ye shall not
give any Counsel or Assent to any thing, the which might turn
to hurt or disheriting of the King by any Way or Colour ; and
that ye shall not know any hurt or disheriting of the King ;
that ye shall make it to him known by you or by some other
Person ; and that ye shall do equal Law and Execution of Right
to all the Kings Subjects, Rich and Poor, without having re-
gard to any Person ; and that ye shall not take by you or by

( 40 )

any other, privily no apart, any Gift or Reward of Gold or of
Silver, nor of any other Thing, the which might turn you to
Profit, unless it be Meat or Drink, and that of little Value of any
Man that shall have any Plea or Process hanging before you,
as long as the same before yourself such Pleas and Processes
shall be hanging, nor after for that Cause ; and that ye shall
take no Fees as long as ye be Justice, nor Robe of any Person
great or small in any Case, but of the King himself ; and that
ye shall not give Counsel or Advice to any Person, great or
small, in any Case where the King is party ; and in case that
any Persons of what ever Estate they be of, come before you in
Sessions with Force and Arms, or otherwise, against the Peace,
or against the Form of the Statute thereof made to disturb the
Execution of the Common Law, or for to Menace the People,
that they may not do the Law, that you shall arrest their Bo-
dies, and put them in Prison ; and in case that they be such
as ye may not arrest, then ye shall certify the King of their Names,
and their Misdoings hastily, to that end, that he may thereof or-
dain Remedy ; and that ye shall not maintain by your self, nor
by none other, privily nor openly, any Plea or Quarrel hanging in
the King's Courts, or elsewhere in the Country ; and that ye shall
not delay any Persons of Common Right for the Letters of the
King, or of any other Person, nor for any other Cause ; and
in case that any Letters come to you contrary to the Law, that
ye shall certify the King, and ye shall proceed to do the Law, that
same Letter notwithstanding, and ye shall do and procure the
Profit of the King and his Crown and all things, where ye them
reasonably may do ; and in case that ye be found in default here-
after in any of the Points aforesaid, ye shall be at the King's
Will of Bodies, Lands, and of Honour, to do there of that that
shall please the King.

( 41 )

For the Abuse of His OFFICE.

Translated into English

THE Jurors present, That Richard Empson, late of
London, Knight, late Counselor of the most excel-
lent Prince, Henry the Seventh, late of England, on
the Tenth of May, in the Twentieth Year of the
said late King, and divers times before and after at London,
and not having God before his Eyes, but as a Son of the
Devil, imagining the Honor, Dignity, and Prosperity of
the said late King,and the Prosperity of his Kingdom of
England not at all to value or regard ; but to the End, that
he might obtain to be a more singular Favourite of the
said late King, whereby he himself might be made a Noble
or Great Man, and Govern the whole Kingdom of England
at his Pleasure, Falsely, Deceitfully and Treasonably sub-


( 42 )

verting the Law of England, Did (amongst other Things)
the Day and Year aforesaid, at London, in the Parish and
Ward aforesaid, procure, and cause to be found, diverse
false Inquisitions, Offices of Intrusions and Alienations of
diverse Leige Subjects Mannors, Lands and Tenements
that they held, the Mannors, Lands and Tenements in
those Inquisitions specified of our Lord the King in Capite,
or otherwise, when i truth it was not so : And afterwards
when the said Liege Subjects of our Lord the late King
would have tendred and alleged Traverses to the said In-
quisitions, in the Court of him the said late King, according
to the Law of England, they could not be admitted to those
Traverses, but he, the said Richard Empson, debar'd and de-
lay'd them from the same, till they had agreed with him to
Pay divers great and unsupportable Fines and Redemptions ;
as well for the Profit of the said late King, as for the proper,
private Advantages of him this said Richard, to the great
impoverishment of the said Subjects ; and that the said Ri-
chard, the Day and Year aforesaid, in the Parish and Ward
aforesaid, and several times before and after, diverse Liege
Subjects of the said late King, holding of our said Lord
the King diverse Mannors, Lands and Tenements, by
Knights Service, and themselves being by the Death of their
Ancestors under Age and so in the wardship of the King,
by reason of their Tenure, when they came to lawful Age,
and ought to have had the liberty of their Mannors, Lands
and Tenements, according to the Custom and Law of En-
gland, and would have prosecuted the same accordingly to
the Course of Chancery, did refuse so to do, and totally
deny and exclude until they had made with him, the said
Richard, diverse great Fines and Redemptions more than
they could bear, as well for the Gain of the said late King,

( 43 )

as for the private Benefit of him the said Richard, whereby
many of the said late King's People were by such Grievan-
ces and unjust Extortions many ways vexed, insomuch that
the Subjects of the said late King did manifoldly murmur
and bear ill Will against the said late King, to the great
Peril of him to said late King, his Kingdom of England
and the Subversion of the Laws and Customs of this Realm.

F 2

( 44 )

Of the Names and Crimes of the
Justices Hang'd by King Alfred

      1. He Hanged Darling, because he Judged Sidulf to Death, for
the Retreat of Idolph his Son, who afterwards acquitted him of the Fact.
      2. He Hanged Segner, who judg'd Ulf to Death after sufficient
      3. He Hanged Cadwyn, because he judged Hackwy to Death,
without the Consent of all the Jurors ; for whereas he had put him-
self upon a Jury of Twelve Men ; and because that Three would
have saved Him against the Nine : Cadwyn removed the Three and put
others upon the Jury, upon whom Hackwy put not himself.
      4. He Hanged Cole, because he judged Ive when he was a Mad-
      5. He Hanged Malmes, because he judged Prat to Death upon a
false Suggestion that he committed the Felony.
      6. He Hanged Athulf, because he caus'd Copping to be Hanged be-
fore the Age of one and 20 Years [ it was against Law then, but
now nequita supplet Aetatem ].
      7. He Hanged Markes, because he judged During to Death by
Twelve Men that were not Sworn.
      8. He Hanged Ostline, because he judged to Seaman to Death by a
false Warrant, grounded upon false Suggestions, which supposed Sea-
man to be a Person in the Warrant, which he was not.
      9. He Hanged Billing, because he judged Leston to Death by fraud
in this manner, he said to the People, sit all ye here but he who kil'd

( 45 )

the Man, and because that Leston did not sit with the others, he
commanded him to be Hanged and said that he did assist, where he
knew he did not assist to kill the Party.
      10. He Hanged Seafowl, because he judged Ording to Death as not
       11. He Hanged Thurston because he judged Thugner to Death by
a Verdict of Inquest, taken ex Officio, with out Issue joyned
      12. he Hanged Athelston, because he judged Herbert to Death,
for an Offense not Mortal.
      13. He Hanged Rambold, because he judged Leschild in a Case
not notorious, without Appeal, and without Indictment.
      14. He Hanged Ralf, because he judged Dunston to die for an
escape out of Prison.
      15. He Hanged Frebern, because he judged Harbin to die, where-
as the Jury was in doubt of their Verdict ; for in doubtful cases one
ought rather to save than to condemn.
      16. He Hanged Seabright, who judged Athebrus to Death because
he had discharg'd one that had given a false Judgment in a Case
      17. He Hanged Hale, because he saved Tristrame the Sheriff from
Death, who took the Kings use from a nother goods against his Will,
for as much as any such taking from another against his Will, and
Robbery hath no Difference.
      18. He Hanged Arnold, because he saved Bailifs, who Robbed
the People by colour of Distresses ; some by selling Distresses, such
and others by Extortion of Fines ; because between such Tortious
Acts and Robbery there was no Difference.
      19. He Hanged Erkinweld, because he Hanged Franklin, for
naught else, but because he taught to him who vanquished him by
Battle-mortal, to say the word Cravent.
      20. He Hanged Bermond, because he caused Gerbot to be Be-
headed by his Judgment in England, for that, for which he was Out-
law'd in Ireland.
      21. He Hanged Alkman, because he saved Caterman by a colour
of Disseism, who was Attainted of Burglary.

( 46 )

      22. He Hanged Saxmond, because he Hanged Barold in England,
where the Kings Writ Runneth for a Fact, which he did in the same
Land where the Kings Writ did not run.
      23. He Hanged Alflet, because he judged a Clerk to Death, over
whom he had no Cognizance.
      24. He Hanged Piron, because he judged Huntiny to Death, be-
cause he gave Judgment in appeal before the Forty Days Pendant,
the appeal by a Writ of false Judgment before the King.
      25. He Hanged Delaney, because he caused Eldons to be Hanged
who kill'd a Man by Misfortune.
      26. He Hanged Oswin because he judged Fulcher to death out
of Court.
      27. He Hanged Muedin, because he Hanged Halgrave by War-
rant of Indictment not Special.
      28. He Hanged Horn, because he Hanged Simin at days forbid-
      29. He Hanged Wolmer, because he judged Grant to Death by co-
lour of a Larceny, of a thing which he had received by Title of
      30. He Hanged Therburne, because he judged Osgot to death, for
a fact where of he was acquitted before against the same Plaintif, which
Acquittance he tendred to averre by Oath, and because he would not
averre it by Record, Therburn would not allow of the Acquittal
which he tendred him.
      31. He Hanged Wolfton because he adjudged Howbert to Death
at the suit of the King, for a fact which Howbert confest, and of
which the King gave him his Pardon, but he had no Charter there-
of ; Nevertheless he vouched the King to warrant it, and further
tendred to averre it by inrolment of the Chancery.
      32. He Hanged Oskitell, because he judged Cutling to Death, by
the Record of the Coroner, whereby Replication allowable the Plea
did not hold ; and the Case was such,Cutling was taken and Tortured
so much, as he confessed he had Mortally Offended, only to be quit-
ted of the pain ; and Oskitell adjudged him to death upon such his
Confession which he had made to the Coroner, without Trial of the
truth of the Torture or the Fact, and further the said King caused
the Coroner and Officers Accessories to be apprehended who hanged

( 47 )

the People, and all those that might have hindred the false Judgment,
and did not hinder the same in all Cases : For he Hanged all the
Judges who had falsely saved any Man guilty of Death, or had falsely
hanged any Man against Law, or any Reasonable Persuations.
      He Hanged the Suiters of Calvelot because they had adjudged a
Man to Death in a Case not notorious, altho' he were guilty thereof.
      He Hanged the Suiters of Dorchester because they judged a Man
to Death by Jurors in their liberty, for a Felony done out of it ;
and whereof they had not the Cognizance by reason of Foreignty.
      He Hanged the Suiters of Cirencester because they kept a Man
so long in Prison that he died, who wou'd have acquitted himself by
Foreigners, that he offended not Feloniously.
      I suppose these Suiters made up the number of 44 Judges.


The Lord BACON's Letter to the
House of Lords

MAY it please your Lordships, I shall humbly crave at your
Hands, a benign Interpretation of that which I shall now
write for words, that come from wasted Spirits, and of pressed
Minds ; are more safe in being deposited to a Noble Construction,
then being Circled with any reserv'd Caution, this being moved
and as I hope, obtain'd of Your Lordships as a Protection to all
that I shall say. I shall go on but with a very strange Entrance
as may seem to Your Lordships ; as first, for in the midst of a State
of as great Affliction as I think an mortal Man can Endure, Ho-
nor being above Life : I shall begin with the professing of Glad-
ness in some things. The first is that hereafter the greatness of a
Judge, or Magistrate, shall be no Protection to him against

( 48 )

Guiltiness, which is the beginning of a Golden Work : The next
that after this Example, 'tis like that Judges will fly from any thing
in the likeness of Corruption, tho' it were at a great Distance, as
from a Serpent which tends to the Purgeing of the Courts of
Justice ; and reducing them to their true Honor and Splendor.
And in these two Points, God is my Witness, tho' it be my for-
tune to be the Anvil upon which these two Effects are broken and
wrought, I take no final Comfort. But to pass from the Motions
of my Heart, wehreof God is my Judge to the meanest of my Cause :
Whereof your Lordships are Judges under God and his Lieutenant.
I do understand there hath heretofore been expected from me some
Justification. And thereof I have chosen only one Justification
for all others ; out of the Justification of Job for after the clear
Submission and Confession which I shall now make them to Your Lord-
ships, I hope I may say, and justfy with Job in these words. I
have not hid my sins with Adam, nor concealed my faults in my
Bosom : This is the only Justification I will use &c. And then
he proceeds and confesses the Fact.