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The Jus Divinum OF GOVERNMENT; OR MAGISTRACY Proved to be God's Ordinance, AND Juſtice the MAGISTSRATES Duty.

In a plain SERMON Preached before the Judges of Aſſize at Eaſt-Grinſtead in the County of Suſsex.

By Zacheus Mountagu.

〈…〉〈 in non-Latin alphabet 〉.

LONDON, Printed by A. M. for Abel Roper at the Sign of the Sun over againſt St Dunſtans-Church in Fleetſtreet, 1652.

To the Right Reverend JOHN PULESTON AND PETER WARBURTON, Both Juſtices of the Common-pleas.


YOur importunate and joint deſires, which my civility taught me to look upon as Commands, are now ſa­tisfied, and that haſty Piece which when you firſt called for it, was ſcarce legible, now waits upon you in a fairer hand. I cannot promiſe you with fewer errours, for 'twas never ſince ſub ſpongia, but I am ſure in better Characters; I wiſh it may but ſo happily take your eye, as you were pleaſed to ſignifie it took your ear, and be recei­ved with the ſame candour and ſweetneſſe from the Preſſe as it was from the Pulpit: I confeſſe I am not without ſome fear, that croſſe to that of the Poet, the inſtructions in it will Segnius irritare animos, now they are, Occulis ſubjecta fidelibus, then when they were dimiſſa per Aures. But however this Diſcourſe, as others of this nature, muſt take its fate; Your Ho­nours called for it, and it being a Gueſt of your own invitation, I hope you will not deny to bid it welcome; as for its dreſſe of language, I cannot but judge it plain and without affectation; but yet, I hope, well enough accommodated to my Deſign, which was not to tickle the Ear, but in­form the Judgement. I know Truth is then beſt apparrelled, when ſhe ſhines in her own native Luſtre, and ſhe fears ſo much that of the wanton to be Ipſa pars minima ſui, that ſhe alwaies chooſeth ra­ther to affect the gravity and decent plain­neſſe of a Matron. I conſidered farther how that Vocum aucupes, they are uſu­ally Rerum proditores, and as the judi­cious Rawleigh obſerves, Nihil odioſius ſapientiae acumine nimio. Neither in­deed was my Topick ſo jejune and barren, as that I ſhould be forced onely to face it with words for want of matter to line it thorow with. All that I dare promiſe or hope in behalf of this plain-dealing Coun­trey-Sermon, is, that you will finde it, if not acute and Rhetorical, yet cloſe and ſubſtantial, having in it the beauty of a word ſpoken in ſeaſon, and being ſo ex­actly fitted to the buſineſſe of an Aſſize, That if your Honours pleaſe to take it as a Line and Rule in your hand when you are upon the Judgement-ſeat, it will help to render your judicial Proceedings level and regular. It begs nothing of you but the Patronage of Juſtice, and the pur­ſuing of that as the main end of your Of­fice; and that you would ſtand by your own Helena of the Law, and not ſuffer her to have a Rape committed on her by any of the ſons of violence, in whom the Levelling humour is too predominant: ſhould our Laws fail, we ſhould then quickly return to the bed of Nature, where like Beaſts the ſtouteſt took all, and the weak ſhould hold by no other Ti­tle or Tenure, but that of Indulgence and Diſpenſation from the ſtrong. I have no more at preſent, but only this good wiſh to leave with your Honours, that Justice may meet with a better Oratour, and juſt Government with a ſtouter Champion, and better Arms to ſhield and defend its right, then is the unſerviceable Pen and Tongue of him, who profeſſeth himſelf

In all his Capacities your Honours ready and real Servant Mountagu.


DEUT. 16.18. Judges and Officers ſhalt thou make thee in all thy Gates, which the Lord thy God giveth thee throughout thy Tribes: and they ſhall judge the People with juſt Judgment.

I Shall Preface all with a borrowed note or two from one now in eminen­cie. As the naturall body is diſtinguiſhed into ſupe­riour and inferiour, into Noble and ig­noble parts, ſo is the politicall; as that body is a monſter which is all head, or whoſe head is too big for the2 body, ſo is that which hath no head, or a head too little; where all govern there is no government, and where all are chief, there can be no Order: Ma­giſtrates are Rulers over the perſons of the people, but they are ſervants to the good of the people; as it is the duty of all to ſerve them, ſo tis their office to to ſerve all: 'tis no paradox to affirm, that Rulers are the greateſt Servants. I confeſſe God puts ſo much of his own work into the hands of Magiſtrates and Judges, that he therefore puts his own Name upon them, and he calls them Gods, they are god sindeed, but 'tis in a ſmaller letter neither muſt they for­get that they ſhall dye like men; deſer­vedly culpable was the Idolatrous Courtſhip of the pagan world, who becauſe truth her ſelf cals Rulers Gods, were content to aequivocate from the ſi­militude to the eſſence, and ſo ſhare among them not only the title but the adoration too, but ſuch pagan elogies are the worſt of flatteries, and 'tis better to be the Chriſtians man, then the Hea­vens deity. The Sons of Iſh they muſt not forget they are Sons of Adam, and,3 though they are gods of their ſubjects they are ſubject to God; Rule indeed is Gods ordinance, but 'twas primitively deſigned for the worlds ſafety, and not the Creatures vain glory. Rulers they are without a fiction, the true and reall Atlas of the world 'its weight and bur­then leans on them, and they are more for the peoples ſake, then the people for theirs: great things they are indeed, but God would not have great things to be great in vain; Great things are in deſign and order to ſerve and bene­fit the leſſe: The Sun the Prince of lights, and the Heart of Nature, ſerves as well for the eyes of a fly as the eyes of a Monarch, and the Sea within its double depth of waters and wonders, ſupports and feeds as well the ſmalleſt fiſh, as the great Leviathan it ſelf who is made to ſport and play therein. Now what Univerſall cauſes are in nature, that ſhould Governours be in policie, they ſhould impartially lay out them­ſelves for the Common good of all who have their intereſt in or dependances up­on them. The Jewiſh Targum tels us, how that it was the ancient mode, and4 ſolemn wont of the Hebrewes, at the birth of their Princes Children, to plant Trees, which they reputed ſacred, and dreſſed them with a carefull diligence, that of them they might one day make thrones for thoſe little Monarchs, when they ſhould be grown up to their inauguration. And what could be the morall of this practice, but to teach thei Rulers, that like fruitful and ſprea­ding Trees, they ought to yield both ſhade and ſhelter to the people, and feed them with their fruits, and ſecure them with their protections, and that leading quiet and peaceable lives in all godlineſſe and honeſty, they might be ſafe under their Covert? This is indeed that wherein conſiſts the preheminency of Magiſtrates and Judges, above the loweſt of the people, this is indeed that wherein eſpecially they have the advantage, and whereby they hold the title of gods, becauſe they have both capacity and opportunity to do more good then others, they have power to ſuccour the diſtreſſed, to relieve the the injured, and to help thoſe weak ones to their right, who have not pow­er5 to right themſelves. Thus much the Heathens were convinced of, when one of their owne Poets beſpeaks the Em­perour thus,

Hoc tecum Commune Deis,
Ovid. 2. de ponto.
quod utri­que rogati
Supplicibus veſtris ferre ſoletis opem.

And 'tis the ſaying of another of them,Hoc reges habent magnificum & ingens,Senec: in Med. prodeſſe miſeris, ſupplices fido lare prote­gere.

Amongſt the many ceremonies that in elder times were wont to be uſed at the inſtallment or inauguration of Princes and Magiſtrates, this was a chief, they were lifted up upon buck­lers in the day of their Conſecration, and there is not the meaneſt Herald, but if he were asked the reaſon, Why Enſignes of diſtinction were firſt born upon ſhields, but he would aſſigne this, becauſe they who did firſt win them, and weare them, they interpoſed their own bodies as a ſhield to bear off thoſe fatall blowes that would otherwiſe have lighted upon the bodies of the People, and by this act of theirs pay­ed a valuable conſideration for all their6 titles and honours. Judges and Rulers they are called the ſhields of the Earth, Pſal. 47.9. Now what elſe is a ſhield, but a kinde of partition-wall between a man and ſomething that would hurt him? Valere ad nocendum, may well be the Tyrants motto, but ad tegendum & protegendum, the ſhields. Never was any Enſigne of Magiſtracy better inſcribed, then was that of E­lius Adrianus the noble Trajanes ſuc­ceſſour, who gave for his device that beſt of mottoes. Non mihi ſed populo, And the learned Navarrus and others tell us, that to be a Prince or Ruler 'tis to be the Peoples man. And ſo much ſeems imployed in the practice of Romulus, who when he firſt founded the Roman Monarchie which was in­tegrated and compoſed of divers peo­ple, which made a voluntarie tender and free ſubmiſſion of themſelves to him, He expreſſely enacted, that e­very one ſhould preſent him with ſome of the earth, and fruits of his own Country, which when he had amaſſed together, he interr'd it all in a great pit, which he called the (Word) In­tending7 by this ceremonie to let us know, that dominion or Royaltie is no­thing elſe but a heap of Wills, of Pow­ers, and Riches, united in one onely Power. Romulus indeed he took of the flowers of the people, but it was to make honie for them. Good Magiſtrates they gave more to the people, then they take from them, and the good of a good Go­vernour is ſo great, that to this day the ſubtileſt and the wiſeſt of the School­men have not been able to determine it, whether man be more obliged to God for his being, which conſiſts in his natur­all Conſtitution, or for his well being, which conſiſts in his politicall inſtituti­on. If you take Government out of the world, you take the Sun out of the Firmament, and leave it no more a〈…〉〈 in non-Latin alphabet 〉, a beautiful ſtructure, but a〈…〉〈 in non-Latin alphabet 〉, a ruinous heap of confuſion: Job ſpeaking of the territories of darkneſſe, and ſhadowes of death, he ſaies, 'Tis a Land, without order. And Ordo ſaith Scaliger, 'tis Anima mundi. Simmetry and harmony, they are the two ſuppor­ters of the univerſe. Unity is the ground of perfection and perpetuity, and what8 elſe is order, but unity, brancht out in­to all the parts of Conſociate bodies, to keep them intire and perfect. When Government failes in any Land, why then ſuch a Land becomes disjoynted and convulſed, and Common-Wealths become common miſeries, and Cities be­come Forreſts, and Forreſts everlaſting terrours, and States diſtated, and all things are put into the hands of might and force, and are acted according to the impulſes of diſordered affections, tumultuous paſſions and bruitiſh luſts, Religion, Reaſon, Law, Juſtice be­ing all Exiled and out-lawed. Not without good reaſon therefore do the great Maſters of policie, pitch it down for a Maxime, that Tyranny is rather to be indured then Anarchie, and that 'tis better to live under a Nero, then under a Nerva, where nothing is law­full, rather then where all things are lawfull. For commonly, Omnia cùm li­cent, non licet eſſe pium, an hour it were time much too ſhort, to ſpeak of the numerous evils of anarchie or State ataxies (were they my proper theam,) I muſt confeſſe, I never ſaw them more9 exactly lim'd, nor ſet out more to the life, by any pen or pencill, then by that Curious one of Cauſinus (the Chry­ſoſtom of France) who in his draught of Babylon, or the City of wicked po­licie, pourtrayes it thus; 'Tis built upon ruins in a land of quickſilver, wholly cemented with bloud, having frequent Earth-quakes, and the impetuous blaſts and guſts of furious tempeſts, rending and tearing all in pieces, the very wa­ter infected and the malignity of the air killing all that breathed in it, and the inhabitants ſuch men, as had little elſe of man in them, but only ſhape and skin, having no other neighbour­hood but Wolves, and Foxes, Panthers, and Tygers, Ravens on their houſes, Com­ets over their heads, Scorpious at their feet: and now ſurely he that ſhall but ſeriouſly view and contemplate this lively Picture of an anarchicall State, not only in theſe broken parts of it, I have now preſented you with, but in the intire piece and originall draught of it, he will have juſt cauſe to cry out, O the bleſſing of order! O, the im­menſe and unſpeakable good of a juſt10 government. Where ſuch a govern­ment once takes place, and becomes ſet­led, why there the earth is paradiſed, and the Heavens perpetually ſmiling, for the Sun is in Libra, and all things are tranſacted as the dayes and nights in the equinoctial, the waters are good, the ſeaſons temperate, the winds calm, the ground fertile, the abode delightful, and the contented inhabitants all la­bouring like Bees in a bright ſummers day; the temples many, and large, de­cent and glorious, the Altars loaden with pure oblations, and ſmoking with Clouds of acceptable incenſe, the Prieſts Solemn, diligent, and devout, The Senatours aged and Sacred, ſpeak­ing like Oracles, and living like An­gels, and being ſafe, ſine militis uſu, every thing keeping its order, propor­tion, weight, time, place, and meaſure, and being in the ſame tune and harmo­ny, which the infant and the innocent world was bleſt with, when firſt the great Architect ſet all things right, and wrote over them the motto of (good;) nothing altered by hereſie either in Doctrine or manners, nothing of com­plaint,11 murmure, quarrell, tumult, or war, but all's as huſht and peaceable as the Halcyons neſt which ſtills the tem­peſts and ſliks and calmes the brow of Heaven, where all the Citizens enter­taine one another like fingers on the hand, every one taking part with the good of his fellow, being all great in the obedience they render to the law, being all rich in the contenment of their deſires, and being all well pleaſed in the happineſſe one of another. In ſumme, for I have no more room for particulars, whatſoever the Luxuriant and free fancies of Poets, or the choice and delicate pens of antiquity, have ei­ther conceited or written, of the Ely­ſian fields, of the fortunate Iſlands, of the felicities of a golden age, of the vertues and ornaments of an Agathopo­lis, (which was dreſt as rich as the Ideaes of the divine Plato could make it) why all theſe do but help to piece out that traine of bleſſings that follow a good government. When any Land becomes bleſt with ſuch Magiſtrates and Judges, as are indeed the faithfull deputies of their Maker, and whoſe12 breaſts are the Oceans or ſewers, into which all the cares of private men em­pty themſelves, and whoſe vigilant eyes are the conſtant centinels of the peoples ſafety, and whoſe ſteady hands have learned to hold the ſeales of juſt­ice try and even, and to weigh right and wrong by their proper weights, and whoſe juſt breath is the peoples beſt and wholſomeſt aire, as being that that gives life and ſoul to all their proprie­ties rights and priviledges. In a word, when people have ſuch Judges, that neither turn Judgment into worm­wood, nor into vinegar, that neither imbitter it by injuſtice, nor ſowr it by delay, that ſuppreſſe as well fraud as force, that only hear cauſes ſpeake, and not perſons, that are Melchiſedeck-like, without father or mother, that hate to pay private wrongs with the advantage of their office, that have ſo well got the rule over themſelves, that their paſsions do not unfit them to rule over others, that look ſtraight forward in a right line upon equity, without glancing aſide upon revenge, diſplea­ſure, or recompence; that keep not only13 their hearts clean, but their hands too; & take heed of bos in lingua, that in that cauſe beſtow diligence in ſifting, where the right is difficult in finding, that love to have truth come naked to the bar without falſe bodies and diſguiſes, that neither make briars nor ſpringes of the laws to catch every thing they lay hold of, that neither crook nor bow the laws, by hard conſtructions and ſtrain­ed inferences, but ſtraiten them by juſt expoſitions, and if they ſeem to be antiquated, or obſolete, wipe off their duſt by a judicious clearing, that ne­ver browbeat a Witneſſe or look an Evidence damp, but with a gentle mid­wifery helpout the ſtammering tongue, that his proof may not miſcarry; that in their callings approve themſelves to be the dreadfull inſtruments of Di­vine revenge, and the miniſters of God for good to the people, and to be legum vindices, the guard of laws, and as was ſaid of Caſſius, reorum ſcopulos, the Rocks, or as one cals them, the comets of the guilty, the refuge of innocency, the paymaſters of good deſerts, the Cham­pions of right, the patrons of peace, the14 ſupporters of the Church, and the true Patres Patriae, or Fathers of their Country, being more learned then witty, more reverend then plauſible, and more adviſed then confident, hear­ing all things debated with patience, and then proceeding to ſentence in up­rightneſſe, and pronouncing nothing but juſt judgement. I ſay where Judg­es are ſuch, happy, yea thrice happy are ſuch a people, and bleſſed is the Land that is in ſuch a caſe; for then ſuch a Land becomes like the Iſrael of God, when her Officers are peace, and her Exactors righteouſneſſe; ſuch Magiſtrates God commands to be choſe, to be Commiſſion'd, and to be impow­red even over his own people: for ſo you ſee runs the Writ of election in my Text. Judges and Officers ſhalt thou make thee in all thy gates, which the Lord thy God giveth thee throughout thy Tribes: and they ſhall judge the people with juſt judgement.

In this great Patent and Divine Char­ter of Magiſtracy; or in this Theocratia or Government of Gods own ſetting up; There is conſiderable,15 Firſt, The Honour. Secondly, The Office. Firſt, The Dignity. Secondly, The Duty.

Or if theſe be too generall, take it in more particulars.

Firſt, Here is Gods mandamus from heaven for Government; here is the charge of the Almighty for the erecting of a Magiſtracy; and this is contained in the word (conſtituito) Thou ſhalt (make) or Make thou.

Secondly, As here is the charge, ſo here is the ſtile or the titles, Judices & Moderatores conſtituito] Judges and Of­ficers ſhalt thou make.

Thirdly, Here are the perſons inve­ſted with the right and power of elect­ing and conſtituting Officers, and they are the Collective body of the people, or the Community in whole; and theſe are included in the Pronown [tibi] Ju­dices & Moderatores conſtituito tibi] Judges and Officers thou ſhalt make thee.

Fourthly, Here is the Circuit of theſe Judges, or the Territories of theſe Ma­giſtrates; In ſingulis portis tuis, quas Jehovah Deus tuus, dat tibi, per tribus tuas] Judges and Officers ſhalt thou make thee in all thy gates, which the Lord thy16 God giveth thee throughout thy tribes. By Gates] we are to underſtand all the Judicatories in Iſrael, for Gates they were (Domus Judicii) the ſeats of Judgement: They were of old placed in the Gates, at the entrance of Cities, for many reaſons, as Tarnovius notes at large, upon Amos 5.10. but principally for this, To let us know, that Juſtice ſitting at the Gate, is a bet­ter ſafeguard for a City, then a Corps­du-gard, then either Bullwarks, Per­culliſes, draw-Bridges, or whatſoever elſe that hath moſt defence in it.

Fifthly and laſtly, Here is the duty of theſe Judges, in the concluding words of the text, Qui judicent populum ju­dicio juſto] Judges and Officers ſhalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy tribes: and they ſhall judge the people with just judgement.

And thus I have preſented you with the Logick of the Text, and ſhewed you how the parts lye in it. I ſhall endeavour to ſlide apace through them all, as intending only, ut Canis ad Ni­lum, to glance upon the former, but17 to ſtop, yea and to ſtay upon the la­ter.

Firſt then, I will begin with the (conſtituito) of the Text, Thou ſhalt make.] 'Tis Gods mandamus to his own Iſrael. Inde poteſtas, unde & ſpi­ritus,Tertul. Apol. ſo ſaies Tertullian. And an an­cienter then he, Cuius juſſu homines, ejus juſſu Reges, ſo Irenaeus. Iren. lib. 5. cap. 24. And an ancienter then either of them, The pow­ers that are are ordained of God, ſo Saint Paul, Rom. 13.1. Anarchy is the peo­ples phrenſie, but Magiſtracie the Or­dinance of the Almighty. I deny not but the primitive ſtate of the firſt cre­ated man, under God, was free and abſolute; 'twas his Prerogative and priviledge, that he was born to Com­mand and not to obey. But alas! How ſhort lived was this primitive ſtate? Plus quam veri-ſimile eſt, &c. ſaies the Learned Ʋſher, 'Tis more then proba­ble,Annal. p. 2. that the firſt day that Adam poſ­ſeſt his Paradiſe, he was forc't to quit it; And ſuch was the guilt and miſery of his firſt ſin, that it not only broke the peace between God and man, but alſo between man and beaſt, and be­tween18 man and man, and filled the crea­tion with an univerſal attaxie and diſor­der; & ſo Government became abſolute­ly neceſſary for the ſetting of us to rights again: So that what is ſaid of the ori­ginal of Laws, holds true of powers, Ex malis moribus, bonae leges naſcuntur, ſo Ex naturae vitiis bonae potestates, As good Laws have their original from bad manners, ſo good Government from corrupted natures; and therefore he that ſhall but trace Government to the ſpring-head, and firſt riſe of it, he ſhall finde it to be extracted from God, and to be as old as the firſt man; It hath not alwaies, I confeſſe, worn one and the ſame face, and kept one and the ſame form, but as the world hath altered, ſo hath the Government; at firſt the world was confined within one Family, and then it began to widen by little and lit­tle, and when the world was thus but in faſciis, the Government of it was Patriarchal, and the Governours of it were called Patriarchs or Father-Prin­ces, their compounded name ſpeaking their mixt Authority, and this kinde of Government continued after the death19 of Methuſelah, for we reade of him, that〈…〉〈 in non-Latin alphabet 〉,Joſeph. Antiq. l. 1. cap. 2. that he paſſed over his Principality to Lamech his ſonne. But now when this firſt me­thod of Government became diſcom­poſed and diſturbed through the nume­roſity of mankinde, and by their farre diſperſed habitation, why then other forms of Government ſucceeded, for men falling among themſelves to doe wrong and violence, they ſaw it neceſ­ſary to ſet up ſome Authority, that might reſtrain by force and puniſhment, what was committed againſt peace and common right, and this Authority and Power of ſelf-defence and preſervation, before devolved, being originally and naturally in every one of them, and uni­tedly in them all, they for eaſe, and for order, and that each man might not be his own partial Judge, agreed to tranſ­ferre and delegate it, either to one whom for eminence of wiſdom and in­tegrity, they preferred above the reſt, or elſe to more then one, whom they judged of equal merit; the firſt of theſe was called a King, the other Magiſtrates. Sometimes we read God did by his own20 immediate deſignation, appoint the perſon, make and declare the choice, and inveſt him with a right of Sove­raignty over his people, as Moſes, Da­vid and others; but ordinarily God cals mediately, by committing it to the people to elect; both the form of Go­vernment, and the Perſons that are to ſway it over them; and of this nature is the (Conſtituito) in the Text. And thus from the charge I ſhould have came in the next place, to the ſtile or title [Judices & Moderatores] and then to the Circuit or Territories; but theſe I ſhall skip over, as leſſe material, and come to the main of the Text, viz. The great and important Duty of all Judges and publick Truſtees of State, and that is, to execute judgement. Non tantùm poteſtas Judici conceſſa, ſed fides, ſaith Cicero pro Cluentio. Judges they have not only power, but a truſt repo­ſed in them, not only Dignity but Du­ty; and it is ſafer for mortals to hear of their duty then of their dignity. Give me leave therefore (my Lords) to diſ­courſe freely and plainly to you, con­cerning the great maſter-duty, concer­ning21 the Primum and the Ʋltimum, the Alpha and Omega of your calling, viz. The execution of juſt judgement. If the world be a Harp (as ſaith the elo­quent Sineſius) then Juſtice windeth up the ſprings, ſtirreth the fingers, toucheth the inſtrument, giveth life to the airs, and maketh all the excellent harmonies. If the world be a ring, Ju­ſtice is the diamond, if it be an eye, Ju­ſtice is the ſoul, if it be a Temple, Ju­ſtice is the Altar. In a word, that which the air is in the elementary world, the Sun in the celeſtial, and the ſoul in the intellectual, that is Juſtice in the civil. It is the air that all the afflicted deſire to breathe, the Sun that diſpels all clouds, the great principle that in a civil ſenſe gi­veth life to all; all yields to this virtue, it is inchaſed in all laudable actions, and all laudable actions are incorporated in it, according to that of Ariſtotle,〈…〉〈 in non-Latin alphabet 〉,Ariſt. Eth. lib. 5. tis incluſive of all other virtues, and they all run out from it as lines from their centre, and they all run into it, as rivers into the ocean. To be juſt is to be all that which an honeſt man may be, for Juſtice is Suum cuique22tribuere, to give every man his due, and in a large ſenſe tis every mans duty, as well as the Magiſtrates, but tis not to be conſidered in the Text in ſuch a latitude, but as tis properly the act of Judges and Officers. Juſtice and judgement, in the Scripture ſtile and phraſe, they are oft­en Synonima's, and are put for one and the ſame thing, but ſometimes they are diſtinct. I have read of a tripple acce­ption of (Judgement) intra Gramma­ticos, as alſo intra Theologos.

Firſt, Amongſt Humaniſts and Philo­logers, Judgement is taken for the laſt act of the underſtanding, and a conclu­ſive reſolution, and thus it relates to contemplation.

Secondly, Tis ſometimes Synonimous to diſcretion, and then it relates to pra­ctice, when we conſider not ſo much the very bare act or thing that we are about, as the whole frame or machine of the buſineſſe, as it ſtands complexio­ned and circumſtanced with time, place and beholders.

Thirdly, (Judgement) it not onely relates to preſent practice, but it en­lightens and governs poſterity, and ſo23 it comprehends under it decrees and ſentences, and judgements in Courts; and thus you ſee the word in the Cri­ticks ſenſe. Now intra Theologos, Judg­ment paiſſes firſt for ſevere and meer Juſtice, for that which we call Summum Jus, which on Gods part is alwaies juſt, though to us it be a depth and unſear­chable.

Secondly, Tis uſed to ſignifie not onely meer juſtice, but as tis attemper­ed and ſweetned with mercy;Reuch. de Art. Cabal. lib. 1. The Ca­baliſts (as one which underſtood them well obſerves) have concluded that the word (Judgement) applied to God, hath every where a mixt and partici­pant nature, implies both judgement and mercy.

Thirdly, The word [Judgement] it is uſed to ſignifie not onely the judicial part of the Law, as the Talmudiſts would ſtraiten it, but the whole Law of God. Judgement it ſometimes im­plies that right which every man ſtands obliged at all times to practiſe, and ſometimes its put for the law or rule it ſelf according to which every man is to doe right. (Judgement) is ſometimes24 oppoſed to anger and ſeverity, and then it ſignifies mercy and moderation, and tis ſometimes oppoſed to folly and in­diſcretion, and then it implies an abili­ty to judg, and tis ſometimes oppoſed to injuſtice and wrong which is the vulgar and common import of it, and ſo tis-to be underſtood here in the Text; I have read Druſius and ſome others differen­cing and diſtinguiſhing Judgement and Juſtice, thus; Firſt (Judgement) they ſay, it ſignifies the due order in trying and finding out the ſtate of a Cauſe, and (Juſtice) the paſſing of Sentence or Verdict upon the trial; Secondly, Judgement they ſay is a clear knowledge of what ought to be done, and Juſtice is the doing of that which we know: Juſtice is an evenneſſe and uprightneſſe of conſcience, in paſ­ſing every thing according to received light and evidence; Thirdly, Judge­ment, ſay ſome, reſpects capital cauſes which are for life, but Juſtice reſpects civil cauſes which are for eſtate and liberty; Fourthly and laſtly, [Judge­ment] ſayes Druſius, Poenam reſpicit, tis in condemning thoſe that are guilty,25 but Juſtice that reſpects Compenſationem benefactorum, tis in acquitting the inno­cent, and in recompenſing them that do well. It is a Rule, That when Judge­ment and Juſtice are put together in Scripture, the latter is but an epithete to the former, and ſo tis in the Text, [They ſhall judge the people with juſt judgement] that is, they ſhall do judge­ment juſtly, exactly, and to a hair.

So then (my Lords) you ſee your duty, juſt you muſt be, and that upon this account.

Firſt,Arg. 1Becauſe God not onely expects it and commands it, but accepts of it. Pinguior mactari Deo victima non potest quam homo ſceleratus (ſaies one) We cannot preſent God with a more plea­ſing oblation then is that of the cutting off of a criminal perſon; Judgements juſt execution tis attended on with Gods approbation; See this in the caſe of Phineas, Pſal. 106.30, 31. yea with Gods remuneration, Levi had the Ʋrim and Thummim, the Covenant of God, and the honour of an infallible Prieſt­hood, becauſe he knew no relation, no intereſt, no engagement, when he ap­peared26 on Gods ſide, and fulfilled his command, Exod. 22.27.

Secondly,Arg. 2Juſt you muſt be (my Lords) your office binds you to it, the judiciary power is talented in your hands, you are entruſted with the Laws, they are the Charter and ſodder of all Society, the Sanctuary, the flaming Sword of right, to be brandiſhed againſt all violence and wrong, the Land-marks that bound out to every man his Propriety, the Bulwarks and Defences of a peoples Peace and Safety, the right and ſtrait rules by application whereunto all injuſtice is diſcerned and judged of; now this high and ſacred truſt is depoſited with you, though the ſanction or firſt enacting of Law be the act of an higher power, yet the reſolu­tion and declaration of what is Law, reſides in you, you have a right Jus or Legem dicere, though not Legem dare; Now without this Law is but a ruffled skain of ſilk, where no end is to be found, a Meander and Labyrinth with­out a clew, where men may ſooner loſe themſelves then finde any place to ſit down and reſt in; Nay farther, the exe­cution27 of Law is yours, now this every man knows is the life of Law, without this Law is at leaſt but Juſtices bare Scales without her Sword, a Piſtol that is charged only with powder that can at moſt but threaten and make an em­pty noiſe. Oh then let the Laws have life by your juſt execution of them; conſider I beſeech you, that the Laws are the Nations joints, whereby each part is tied to other, which once cut aſunder, muſt needs diſcontinue and unjoint the whole frame, to its moſt certain and unavoidable ruine. You are (my Lords) the ſubordinate Cuſto­des Libertatis Angliae, and ſhould you be unjuſt you would then Briareus-like doe evil with an hundred hands, and give us juſt cauſe to cry out with the Poet,Hei mihi cuſtodes quiſnam cuſtodiet ipſos?

Thirdly, You muſt be juſt,Arg. 3the Land requires it, without this it can never be exalted, tis not all the depths of carnal policy, tis not Jeroboams Calves in Dan and Bethel, tis not Jehu's pompous zeal that would fain be lookt upon, tis not28 all the mountains of Samaria, nor mines of India, tis neither Magazines, nor Arſenals, nor gold piled up to hea­ven, nor ſilver as plenty as duſt and ſtones, nor numerous Armies, nor for­midable Fleets, nor impregnable Forts, tis none of all theſe that can exalt a Na­tion, tis only Juſtice that can do that, Prov. 14.34. juſt Judges they are the beſt Saviours, and the beſt builders in any Land, for they and only they make a Land a habitation of righteouſneſſe: on the other hand injuſtice and publick impunities they procure publick and popular judgements, the not doing Ju­ſtice upon criminals, when publickly complained of and demanded, eſpecial­ly when the perſons intereſſed call for Juſtice, and the execution of good Laws, and the Magiſtrates arm is at li­berty, and in full ſtrength, this engages a Land deep in ruine; See this in the caſe of the Benjamites, they refuſed to do juſtice upon the men that had for­ced and killed the Levites Concubine, and they loſt twenty five thouſand in battel, their Cities were deſtroyed, and the whole Tribe almoſt extinguiſhed,29 and therefore tis obſervable in Scri­pture, how that the puniſhing of great and publick acts of injuſtice, tis called, A putting away of evil from a Land. Not to puniſh an evil is a voluntary retenti­on of it, and makes that ſinne by for­bearing become National, which was in the acting but perſonal; And where impunities are, tis no thank to the pub­lick if the beſt men be not as bad as the worſt.

Fourthly,Arg. 4Juſt you muſt be in reſpect of the innocent, tis a debt you owe to them, Qui malis parcit piis nocet, to ſpare the bad, tis cruelty and hard­heartedneſſe to the good, to let the Wolves and Bears alone, tis to wrong the Sheep and Lambs; If you will pity Cataline (ſayes one) pity Rome much more, let the whole have a ſhare in your pity, rather then a part, Pereat unus, magis quam unitas, Better have one injurious perſon ſit mourning, then a whole Nation languiſhing.

Fifthly and laſtly, You muſt be juſt,Arg. 5becauſe the malefactors themſelves call for it; the end of Law and Magiſtracy is to be a terrour both to evil works, and30 to evil workers; Impunity oft times proves the malefactours encourage­ment, and by accident hardens him, whereas the acts of Juſtice being Gods appointments, though they be pathe­mata corrections, yet they ſometimes prove mathemata inſtructions, and be­ing bleſſed and ſanctified by God, be­come wholeſome, ſpiritual diſcipline, and tend to the awakening of the ſecure conſcience, and to the bringing of it, both to a ſight and ſenſe of its crime and guilt; God ſuffers penalties to fall ſometimes upon the bodies of offenders, in mercy to their ſouls; but however if Juſtice ſhould not work to the ſaving of their ſouls, yet it will be ſure to work to the reſtraining of their ſinne, making the meaſure of it the leſſe, which is in­deed a mercy. Grave is the ſpeech of Seneca, Ʋt nemo pereat, niſi quem perire etiam pereuntis interſit, That none pe­riſh, but thoſe to whom tis an advan­tage to periſh. And thus much by way of Argument, Why you muſt be juſt. I come next of all to diſcourſe of the Modification, How you muſt be juſt.

31Firſt, My Lords, You muſt be reli­giouſly juſt, it is indeed the firſt requi­red qualification, in all Judges and Ma­giſtrates, That they ſhould be men fearing God, there is ſo near an affinity between Juſtice and Religion, that as Prieſts are called Judices Sacrorum, ſo Ʋlpian ſtiles Judges Sacerdotes Juſtitiae; Judges muſt not be like Cardinal Caraffa, of whom it was ſaid, That he was Securus de nu­mine, out of all fear of Gods venge­ance: without Religion Judges will be but prophane, and where the fear of God is not, there the fear of man will be in too great a meaſure; Alvarez re­ports it to be a cuſtom of the Aethiopi­ans, to place twelve empty Chairs about the Judges ſeat, and this not out of ſtate, but out of Religion, ſuppoſing that their gods ſit there with their Judges; And the Rabbins have a ſaying, That the Angels attend in all Judicatories, how concerns it all Judges then to be religiouſly juſt, having ſuch attendants, and ſuch aſſeſſors!

Secondly, You muſt be zealouſly juſt, for you judge not for man but for God; Now he that doth the work of the32 Lord negligently, a curſe waits on him; the righteous they are compared to Palm-trees, now they love hot regions, and a warm ſoil, and ſo doth Juſtice zealous hearts, tis St Bernards Note, Adami voluntas non habuit fortitudinem, quia non habuit fervorem, You muſt exe­cute Juſtice magnanimiter, there muſt be an ardent zeal for the maintenance of Laws, and there muſt be an actuall application of all your endeavours, and of all the forces of your minde and cou­rage, to authorize Juſtice, to ſtrength­en your arms againſt the torrents of in­iquity, and to put all your particular intereſts under the diſcharge of your imploiments: where there is like to be great oppoſition, there had need to be a great ſpirit, and great reſolution, Odia qui nimium timet, regnare neſcit. To reſiſt friends, and to over look enemies will be no eaſie work, to be juſt under all the croſſe cenſures of the world, where ſome will cry out, that you are too mercifull, and others that you are too ſevere, ſome that you do nothing, and ſome that you do too much; now ſurely it muſt be a zeal for Juſtice that33 muſt make you ſtruggle thorow all dif­ficulties. Moſes he grindes to powder the golden Calf,Exod. 32.20. Num. 25.13. and it was his zeal con­ſtrained him. Phineas he runs Zimri and Cosbi thorow with his Javelin, and twas his zeal that fired him;Joh. 2.17. And Chriſt he whips the buiers & ſellers out of the Temple; and twas the zeal of his fathers houſe that eat him up; but here you muſt be ſure that this holy fervour be of the right ſtamp, it muſt be pure & elementary not baſe and culinary, not feeding upon carnal reſpects, it muſt be zeal for juſtice as an act of juſtice, yea and it muſt be out of love too, or elſe whileſt it is Juſtice in the Law, it may be murther in the Judg.

Thirdly, You muſt be impartially juſt, like God in this, he accepts no mans perſon, he accepts not the rich becauſe he is rich, nor the poor becauſe of his poverty,〈…〉〈 in non-Latin alphabet 〉is the bane of Juſtice, Perit omne judicium ubi res tranſit in affectum. Judges they are as the noble Spartan ſaid of himſelf, Patriae & le­gibus dati, they have beſtowed themſelvs upon their Country, and upon the Law, and therfore muſt know neither parents nor kindred in the cauſe of Juſtice. The34 Statues of the Thebane Judges they were, they were without hands and without eyes, that is, without corrup­tion & without partiality; The Athenians they were wont to judge in the dark, that ſo they might know no mans face; Judges they muſt be ſwayed neither with fooliſh pity on the one hand, nor with reſpect to might, power, friend­ſhip, or greatneſſe on the other; uſu­ally theſe are the two prejudices againſt the execution of juſtice, either car­nall pity, ſayes he, is a poor man, or elſe carnall fear, ſayes he, is a great man, and ſo outward accidents come in the Scale rather then the merits of the Cauſe, when judgment is miſted or blinded, by any externall glory and appearance, ſo that Judges cannot diſcerne truth or right, when they ſuffer any cauſe to be overballanc'd by ſuch forraigne circumſtances as have no affinity with it: this is a vicious partiality in them: all corruption is not in bribes: the Judges who abſolved the beautifull ſtrumpet Phryne, they had their hands cleane but their eyes foule: it was a gallant return which35 the noble Rutilius made his friend, re­queſting of him an unlawfull favour in ſuch language as this, Quid tua mihi opus eſt amicitia, ſi non impetro quod rogo? I had as good be without ſuch a friend as with him, who will not let me ſpeed in what I ask: to whom he replied, Imò, quid mihi tua, ſi tua cauſa aliquid inhonèſte facturus ſum? I can want ſuch a friend as you, if for your ſake I muſt do that which is not honeſt. Memorable is the act of juſtice,Helmodi. Chrone performed by Canutus King of Den­marke, who after he had examined the proceſſe of twelve Theeves, and con­demned them, he found one, who ſaid he was extracted of Royal bloud: it is reaſon (ſaith the King) ſome favour ſhould be done to this man, therefore give him the higheſt Gibbet. We read in the twelfth Novell of Juſtinian, of an oath impoſed upon Magiſtrates a­gainſt inclining or addicting to either partie, yea they put themſelves under a deep and bitter execration and curſe in caſe of partiality, imploring God in ſuch language as this, Let me have my part with Judas, and let the leproſie of36 Gehezi cleave to me, and the trembling of Cain come upon me, and whatſo­ever elſe may aſtoniſh, and diſmay a man.

Fourthly, you muſt be ſincerely juſt,〈…〉〈 in non-Latin alphabet 〉, incorruptneſſe and integri­ty, 'tis the proper portion of Judges, Judges ſhould be known by giving, not by receiving; 'twas Claudians elogium of Honorius, Non hic privatis creſcunt aera­ria damnis, foul hands will breed trou­bled conſciences, you muſt take heed of being takers, he that opens his hand to catch after a reward, cannot chooſe but let fall his rule out of it; Men have a touchſtone (ſays one) to try gold, but gold is a touchſtone to try men. I have read of one Ichis a Polonian Judge, that having long ſtood up for a poor plaintiff againſt a rich defendant, he at laſt re­ceived from the defendant a great ſum of mony ſtamped with the uſual ſtamp of that Country, which is a man in com­pleat armour, and at the next Seſſions he in open Court adjudged the cauſe in favour of the defendant, and being ſharply blamed by his friends, he ſhew­ed them his large fee, and demanded of them, Quis poſſet tot armatis reſi­ſtere? 37Who could ſtand out againſt ſo many in compleat armour? witty was the reply was that returned Demoſthenes, who having been well feed by the ad­verſe party to be ſilent in a cauſe, being called to plead pretended the Squinſie, his Client came hanſomly over him, ſay­ing〈…〉〈 in non-Latin alphabet 〉, non eſt iſta angina, ſed argentumgina, 'tis the ſil­ver Squinſie; Mazarinus complaineth of forraign Iudges, that they too much reſembled the Haimatites or bloud­ſtone, which hath a ſpecial property to ſtanch bloud, but as Jewellers obſerve, it puts not forth this virtue unleſſe it be let in, or covered over with ſilver, and ſo applyed to the vein; whereas Judges they ſhould be men hating covetuouſ­neſſe, if they be not they will be apt cunningly to divert the ſtrait current of the Law, to bring water to their own Mill: ſome Judges there have been who for the cleanlineſſe of the conveyance would like mendicant friers touch no mony themſelves, but have a boy with a bag to receive it for them, but O let all ſuch corrupt Judges, who it may be buy juſtice by whole-ſale & ſell it by retale,38 let them conſider ſeriouſly what is ſaid Iob 15.34. Fire ſhall conſume the Taber­nacle of Bribery, the Septuagint reads it,〈…〉〈 in non-Latin alphabet 〉, of men that take guifts, a gift transforms the Judge into a par­ty, and as Buxtorf upon the Hebrew word here notes, makes the Judge and pary to be but one perſon, there is much gotten, but nothing gained by injuſtice, men give bribes to undo others, and they that receive them un­do themſelves; I have read of a Tra­vellour, who coming to Rome, and ſee­ing many curious piles and goodly ſtructures, he was inquiſitive to know who built them: it was told him that they were peccata Germanorum, the ſins of Germany, meaning thereby that the mony brought for pardons out of Germany, built thoſe houſes: and may not we make the ſame anſwer, when we look upon the Stately houſes and Magnificent palaces of corrupt Judges? may not we call them peccata Judicum, and ſay that bribes and op­preſſions, bought ſuch Seats, and built ſuch and ſuch houſes? but alas if the actor of Juſtice lives not to ſee the39 melting of ſuch gettings, and the ſpen­ding of ſuch earnings, yet the heir finds a fire in the foundation, he hears the ſtones in the wall to cry out, that the morter in which they were layed, was tempered with the tears of wid­dowes and Orphans, and the blood of innocents, and the beam out of the timber anſwers it, that that was ſet up by pulling down the poor, and there­fore it cannot ſtand: in Gods Court there is no man can buy off a hell not a year or a day, for millions of worlds (my Lords) it ſhould be ſo in yours. I beſeech you let nothing ſtick to your fingers, that ſhould make your faces to gather paleneſſe in the day of the Lord Jeſus.

Fifthly, you muſt be deliberately juſt, Truth is the daughter of time, dies diem docet, Juſtice hath not a giddy running haſt, but a ſober grave pace, it was an ancient decree of the Areopagites,Orat. de Coron. as Demoſthenes relates it,〈…〉〈 in non-Latin alphabet 〉, that Judges ſhould hear both par­ties, with equall indifferency, and attention, their full time. And 'twas the cuſtom of Philip of Macedon to ſtop40 one of his ears whilſt the accuſer was ſpeaking, that he might reſerve it for the defendant: never was any Romane Emperor ſo much taxed of injuſtice and folly, as Claudius Caeſar, and the rea­ſon of his ſo frequent miſtakes was, becauſe he often ſentenced cauſes upon the bare hearing of one ſide only, and ſometimes upon the full hearing of nei­ther. True is that of Seneca,Sweton in claud. Qui ali­quid ſtatuit parte inaudita altera, aequum licet ſtatuerit haud aequus eſt. The eare is not only the ſenſe of diſcipline and learning according to the Philoſopher, and of faith according the Apoſtle, but alſo of truth and Juſtice. He that pro­ceeds on halfe-evidence, he will not do quarter-Juſtice. Judges they muſt be attentive, harkning with juſt and pa­tient ears, to the pleadings of both ſides: witneſſes ſhould be heard out (though tedious) Judges ſhould not meet evi­dences half way, but ſtay till they come at them, ſome perſons muſt be impertinent, before they can be per­tinent, and as (one ſayes) if they tell the ſtory of a hen, you muſt give them leave to begin at the egg; it is no grace41 to a Judge firſt to find that, which he might have heard in due time from the Bar; or to ſhew quickneſſe off conceit in cutting of evidence or counſel too ſhort, for ſometimes a man of a dreaming ut­terance may give a waking teſtimony: Judges they ſhould not prevent infor­mations, by queſtions though pertinent, In this ſenſe, an over-ſpeaking Judge is no well tuned Cymbal. It is related of Theodoſius, that when he had killed many men raſhly, which did much trou­ble him, it was afterwards enacted by him that thirty dayes ſhould uſe to inter­vene between the ſentence and the ex­ecution; for poteſt dilata paena exigi, exacta revocari non potest, puniſhment deferred may be executed at pleaſure, but if once executed cannot be recalled; we may read how God himſelf, though he needs no intelligence from his crea­tures, yet in his two great acts of juſtice when he confounded the builders of Babel, and deſtroyed Sodom, he would not only hear, but he would go and ſee; and Chriſt he preſcribeth a rule to all Judges, Sicut audio, ſic Judico. John 5.30.

Sixthly, You muſt be ſpeedily juſt, ſee42 Ezra 7.26. you muſt execute Judgment in the morning, Jer. 21.12. Noon juſtice and evening juſtice, 'tis not ſo ſeaſon­able, 'tis not ſo acceptable to God as morning juſtice; delays break the ſpi­rits of the innocent, and harden the hearts, and ſtrengthen the hands of the guilty. Lewes the twelfth of France, he was wont to taxe the delayes, reve­rences, and neglects, of Judges, and to ſay, that he did not love this ſtretching of leather with the teeth. A man ſhall come into few of our Courts, but he ſhall hear thoſe that wait on them, cry­ing out with him in the Poet, Quem das finem Rex magne laborum?

When ſhall we leave turning Ix­ions Wheel? and rowling Siſyphus his ſtone? I would have all demurring Judges conſider ſeriouſly, the admirable paſſage of Theodorick King of the Ro­mans, as it ſtands related at large in the Chronicle of Alexandria; There was one Juvenalis a Widow, who came to him with a ſad complaint, that ſhe had had a ſuit depending in the Court three years, which might have been ended in a few dayes: the King demands43 of her the Judges names: ſhe tels him: there iſſues out an eſpeciall command from the King to them, to give all the ſpeedy diſpatch that was poſſible to this Widowes cauſe, which they did, and in two dayes determi­ned it to her very good liking; which being done Theodorick cals for theſe Judges, and they ſuppoſing it had been to receive their applauſe and reward, for their quick deciſion, and excellent juſtice, haſtned to him full of joy, but the King having firſt interrogated with them, about the cauſe of their former delay, and having ſharply re­prehended them, he commanded both their heads to be ſtruck off, becauſe they had ſpun out that cauſe to a three yeares length, which two dayes would have ended.

Seventhly, You muſt be ſtedfaſtly juſt, a Judge ſhould be ſuch an one qui nec fallitur, nec flectitur, lenity becomes not a Judge, levitas eſt mo­bilitas animi, qua homines levi de cau­ſa mentes vel ſermones facile mutant, Judges muſt not be like the vulgar Jews, who would this day deifie, and44 to morrow crucify the ſame man, nor yet like Pilate who commanded Chriſt to the Croſſe with thoſe very lips, with which a little before he pro­counced him innocent. A Judge he muſt be propoſiti tenax, though not pecuniarum petax; he muſt be like the needle toucht with the Loadſtone of conſtancy, ever looking one way like the unſhaken rock, that in the midſt of the angrie foaming brine and raging billowes, appears that apt emblem of ſtabilitie, with this motto on it, Immota triumphans, or elſe like the Egyptian pyramis, wearing this in­ſcription Nec flatu, Nec fluctu.

Eightly, You muſt be mercifully juſt, there muſt be〈…〉〈 in non-Latin alphabet 〉an ordinate rule of all affections: a Judge muſt not come under that character, that Joſephus gives Herod, that he was Legis dominus, but irae ſervus, Lord of the Law, but yet Lorded over by his own luſts; a Judg muſt not be too much affianced to his own will:Vel. pater lib. 1. Hiſt. not like Brutus and Caſſius, of whom Velleius Paterculus hath this note, quic­quid voluit Brutus valdè voluit, ni­mium45 Caſſius; but he muſt plant his Judgement upon an even ground, and as much as in him lies make inequality equal, conſidering that merciful Apho­riſme of Solomon, Qui fortiter emungit, elicit ſanguinem, the wringing of the noſe bringeth forth bloud, where the winepreſſe is hard wrought, it yields a harſh wine, that taſtes of the grape­ſtone; a butcher they ſay may not be of the Jury, much leſſe may he be a Judge. There is juſt cauſe of relenting whether we conſider our ſelves or o­thers, as being of the ſame mould, and ſubject to the ſame temptations with others; Though we may and muſt de­light in juſtice, yet ſay, Divines, to be glad of it, as 'tis the evill and grief of an other, is very ſinfull; for a Judge upon the Bench, to put the poor ma­lefactor out of countenance, whom he may put of life, what triumph is it? To jeſt at man in miſery, 'tis the worſt uſe a man can put his wit to, and will come home to him, nay 'tis worſe then brutiſh and beneath a beaſt, the Lion ſcornes it, ſo ſayes the Poet, Corpore magnanimo ſatis eſt proſtraſſe leoni; O46 then my Lords be mercifull even as your Heavenly Father is mercifull; and to whomſoever you think God himſelf if he were upon the Bench, and in your place, would ſhew mer­cy, why to all ſuch let your mercy extend; I have read of three caſes, that ſeem to be out of the reach of civill mercy. Firſt wilfull murder, pre­pared and projected murder, here your eye is not to pitie: in the time of the Law, and by Gods own order, ſuch a murderer, no Aſylum, no City of refuge,Deut. 19.11, 12, 13. no Sanctuary, no Altar could protect, but he might be ſnatcht thence. A ſecond caſe is, when acceſſaries ſuffer then the principall muſt not be ſpared, this the voice of God,Numb. 24 4, 5. of nature, and of the Law, all give aſſent to. A third and laſt caſe is, when the quarrel is laid in princi­ples of irreconcileable enmity againſt true Religion, and the government of Chriſt: and yet even in all theſe three grand Caſes,Luk. 19.27. though mercy muſt not degenerate into a ſoftneſſe pre­judiciall to Juſtice, thoſe Juſt ſenten­ces are beſt pronounced that are deep­eſt47 drenched, and moſt ſteeped in the Judges tears.

Ninthly and laſtly, You muſt be univerſally juſt; You are called Scuta terrae, the ſhields of the earth; and the Law with us tis called Lex terrae, to note the univerſal Benignity thereof, and the equal intereſt that every per­ſon is to have therein; to weigh one mans cauſe by the rule of Law, and anothers by the rule of favour, this is like divers weights and meaſures, which the Lord abhorres; This is not to be Scutum a ſhield, but rather Galea a helmet, to protect onely the heads of the people; You muſt be like the Sunne whoſe beams ſhed themſelves, with as ſweet an influence on a Garden of Cu­cumbers, as on the Foreſt of Lebanon; Your Juſtice muſt extend it ſelf like the wiſdom of Solomon, from the Ce­dar to the Hyſop; The Apoſtles rule is〈…〉〈 in non-Latin alphabet 〉, the ſmall as well as the great muſt be heard. Deu. 1.17Laws muſt neither be like Nets, to let out little Fiſhes, and catch onely great ones; nor yet like Cobwebs to be broken by great offenders, and to catch only Flies. Uni­verſal48 Juſtice is that which reſpects all, rewarding the meaneſt in well-doing, and puniſhing the greateſt in evil-doing, if juſtice be thus univerſal, 'twill caſhier, 1. 〈…〉〈 in non-Latin alphabet 〉. 2. 〈…〉〈 in non-Latin alphabet 〉. 3. 〈…〉〈 in non-Latin alphabet 〉, all Partiality, all Bribe­ry, and all Timidity; now Timiditas ju­dicis; eſt calamit as innocentis.

And thus, my Lords, I have ſhewed you why you muſt be juſt, and how you muſt be juſt; I had thought in the next place to have reacht the〈…〉〈 in non-Latin alphabet 〉, the obſtructers of Juſtice, but I ſee that cannot be, without intrenching too farre upon that patience, which I would not abuſe, or borrowing too much of that time which is allotted your other affairs; I ſhall only therefore beg your pardon, whileſt in words as few as may be, I take leave particularly to apply this great duty of the Text to thoſe that ſhall be more immediately concerned in the Tranſactions of this ſeaſon. Juſtice you ſee is the great buſineſſe of the Text, and tis the great buſineſſe of ſuch a time as this; And that the people may the better follow, let me beſeech you (my Lords) to49 lead them the way in this great duty; I confeſſe I have been long ſpeaking to you, and therefore I ſhall onely adde theſe laſt words;

Firſt, Be juſt to your ſelves, by ſub­jecting within you your bodies to your ſouls, and your ſouls to God: the firſt great acts of injuſtice, are to place Paſſions upon Altars, Reaſon in Fet­ters, and to ſearch for the Kingdom of Heaven in the ſway of our own private intereſts.

Secondly, My Lords, Be juſt to the people, which you can never be, un­leſſe you be religious in devotion, fear­ing God, moderate in your paſſions, impartial in your affections, mortified in your luſts, learned in the Laws, in­corrupt in your Courts, deliberate in your Counſels, patient in hearing, di­ligent in ſifting, expedite in proceed­ing, grave and ſolemn in ſentencing, and concluding onely according to evi­dence; For Illud tantum judex novit, quod novit judicialiter.

And thus from you (my Lords) that are commiſſioned for the Seat of Judgement, I turn to thoſe Gentle­men50 that are in Commiſſion for this County; And as you at ſuch a time as this, when the Judges themſelves are preſent, have leaſt to doe, ſo I have leaſt to ſay, onely let me leave this Exhortation with you, Let me beſeech you to be like Jethro's Juſtices of peace, Exod. 18.21, 22, 23. Or like Plato's Commonwealths-men for the Com­monwealth; Study your Oath more then your Commiſſion, and think of your Duty more then your Dignity, and doe not decline the burdens that cleave to your Honours; and if the calling come upon you before you are grown up to it, let double diligence make you old, and experienced in the Law, though you be tender and green in years, and conſider that whatſoever ſwervings or ſtumblings any part of the Body politick makes, within your verge, or under your eye, the blame will be ſure to light upon you.

And thus from you the Juſtices let me addreſſe my ſelf to thoſe that ſhall be Counſellours, and Pleaders, and Advocates at this Aſſize. And let me beſeech you to be juſt, and never to51 plead that cauſe wherein your tongue muſt needs be confuted by your con­ſcience, nor again to ſet the neck of the Suit that hath once been broken by a definitive ſentence. Remember what anſwer Papian the Oratour made to Caracalla the Emperour, when he was requeſted by him to defend the fratri­cide of his brother Geta, Non tam faci­le est excuſare fratricidium quàm facere, It is more eaſie to commit it then to de­fend it. Take heed you doe not, Per verborum aucupia, & tendicula, as Tul­ly ſpeaks, by cunning conſtruction ei­ther of Laws or Actions, protect inju­rie, and wrong innocence. When any Client comes to you, be ſure you not onely hear but examine, and pinch his cauſe there moſt, where you fear tis foundred; if the cauſe be doubtfull, warrant no more then your own dili­gence, and whatſoever privacies have paſt between your Clients and you, let them ſleep between you, and not take air at your tongue. Take heed of te­diouſneſſe, and (as one ſaies) doe not make a Trojan Siege of a Suit, but what you doe, doe it ſeriò, and doe it ſu­bitò;52 Be not like to thoſe fickle and unſtable Lawyers that Saluſt ſo bitter­ly inveigheth againſt, condemn­ing them for their floating and uncer­tainty, Qui fluctuantes huc & illuc agi­tantur; who deny that to be Law this Term, which they pleaded to be Law the laſt. And be ſure to look to your hearts, and to look to your hands, and keep them both cleane; Be not like Ayat the Jew, who could Ʋtrâque ma­nu tanquam dextrâ uti, Take bribes on both ſides, and doe Juſtice on neither; Remember what Aegardus adviſeth you to, Magis apud vos valeat amor veri quam lucri, Love Juſtice above your fee.

Laſtly, Be faithfull to the ſide that firſt retains you, and not like Demoſt­henes, who, as Plutarch tels us, ſecret­ly wrote one Oration to Phormio, and another in the ſame matter for Apollido­rus his adverſary. And thus from the Councellours and Pleaders, I come to the Jurors. It were well if they would learn too, not to goe like Sheep one after another (Qua itur non qua eundum) but to be lead by the ſacred­neſſe53 of their Oath, and the light of their Evidence, and to proceed Secun­dum allegata & probata, and not ſuffer themſelves to be blindely overruled by another mans prejudice; It many times fals out that a tame Jury by the craft of ſome one cunning fellow in the company, who happily comes poſſeſt with prejudice to the cauſe, or ill will to the perſon, are made to ſwallow any thing, and to give in a Verdict to the Oppreſſion of innocence, whereas their ſinne is never the leſſe becauſe they ſinne with company: Let me be­ſeech all thoſe therefore that ſhall be of the Jury at this Aſſize, to doe no otherwiſe then as God ſhall put into their hearts, and the Evidence ſhall lead them; If crafty Fore-men, or ſub­til and wily After-men, will doe that that is not juſt, and to make quick work of it, conclude of a Verdict be­fore they hear the Evidence; Let the honeſt Jury man keep pace with the Evidence and his own conſcience, and think it not pride but Juſtice, to be ho­neſter (if not wiſer) then his Lead­ers.

54I have now onely one word more to them that are to be Witneſſes, and then I am at an end. Let me beſeech all ſuch to be juſt, let them conſider how that upon their Teſtimony depends the iſſue of every Cauſe; if the Judges ſentence, or the Juries Verdict, point at a falſe hour, the fault may not be in the hand or gnomon, either in the Judge or the Jury, but onely in theſe wheels of the Clock, the Witneſſes; it con­cerns you therefore to be juſt, you muſt not dare to think your Oath, Vo­laticum jusjurandum, a ſlip-knot; neither muſt you dare out of ill will, or fear, or any baſe end to forge a Teſtimonie, as Gaſhmu did;Nehem. 6.6, 7. nor yet to ſtretch a tender truth beyond meaſure, on pur­poſe to do miſchief,Pſa. 52.3, 4. as Doeg did. Great is the ſin of a falſe Witneſs. Firſt, He ſins againſt God, Cujus veritatem annihilat. Secondly, He ſins againſt the Judge, Cu­jus judicium perturbat. Thirdly, He ſins againſt the party accuſed, Quem ſuo teſtimonio condemnat. Laſtly, He ſins againſt himſelf; firſt, againſt his fame and credit, for what more infamous then for a man to be Punica, or Graecafide, to55 be ſuch an one whom neither word nor wax can binde? and which is worſt of all, he ſins againſt his own ſoul, for a falſe Witneſſe ſhall not be unpuniſhed, and he that ſpeaketh lies ſhall not eſcape, ſo ſaies Solomon, Prov. 19.5. Let every Witneſſe therefore be juſt and ſpeak the truth, and the whole truth, As God ſhall help him.

And thus I have diſcharg'd all my Task in the Pulpit, ſave onely putting up my hearty praier to God for you all, that from the higheſt to the loweſt, from the Judge to the Witneſſe, you may all diſcharge yours in the Court, which I ſhall next proceed to.


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TextThe jus divinum of government; or Magistracy proved to be God's ordinance, and justice the magistrates duty. In a plain sermon preached before the judges of assize at East-Grinstead in the County of Sussex. By Zacheus Mountagu.
Author[Mountagu, Zacheus]..
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Bibliographic informationThe jus divinum of government; or Magistracy proved to be God's ordinance, and justice the magistrates duty. In a plain sermon preached before the judges of assize at East-Grinstead in the County of Sussex. By Zacheus Mountagu. [Mountagu, Zacheus].. [6], 55, [1] p. Printed by A.M. for Abel Roper at the sign of the Sun over against St Dunstans-Church in Fleetstreet,London :1652.. (Annotation on Thomason copy: "Nou. 24".) (Reproduction of the original in the British Library.)
  • Sermons, English -- 17th century.
  • Kings and rulers -- Religious aspects -- Early works to 1800.
  • Justice, Administration of -- England -- Early works to 1800.
  • Great Britain -- History -- Commonwealth and Protectorate, 1649-1660 -- Early works to 1800.
  • Great Britain -- Politics and government -- 1642-1660 -- Early works to 1800.

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The texts were encoded and linked to page images in accordance with level 4 of the TEI in Libraries guidelines.

Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements).

Keying and markup guidelines are available at the Text Creation Partnership web site.

Publication information

  • Text Creation Partnership,
ImprintAnn Arbor, MI ; Oxford (UK) : 2011-12 (EEBO-TCP Phase 2).
  • DLPS A89237
  • STC Wing M2478
  • STC Thomason E1286_2
  • STC ESTC R208950
  • EEBO-CITATION 99867866
  • PROQUEST 99867866
  • VID 169714

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online 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.