have suffered And those things wherein prosecution of Injury may be thought a love of contention CHAP. XIV Of those things which are necessary to be known for the Definition of Just and Unjust WHen the fact is evident the next Inquiry is whether it be Just or Vnjust For the Definition of Just and Vnjust we must know what Law is that is what the Law of Nature what the Law of Nations what the Law Civil what written Law and what unwritten Law is and what Persons that is what a publick Person or the City is and what a private Person or Citizen is Vnjust in the opinion of all men is that which is contrary to the Law of Nature Vnjust in the opinion of all men of those Nations which traffick and come together is that which is contrary to the Law common to those Nations Vnjust only in one Common-wealth is that which is contrary to the Law Civil or Law of that Common-wealth He that is accused to have done any thing against the Publick or a private Person is accused to do it either ignorantly or unwillingly or in anger or upon premeditation And because the Defendant does many times confess the fact but deny the unjustice as that he took but did not steal and did but not adultery it is necessary to know the Definitions of Theft Adultery and all other crimes What facts are contrary to the written Laws may be known by the Laws themselves Besides written Laws whatsoever is Just proceeds from Equity or Goodness From Goodness proceeds that which we are praised or honoured for From Equity proceed those actions which though the written Law command not yet being interpreted reasonably and supplyed seems to require at our hands Actions of Equity are such as these Not too rigorously to punish Errors Mischances or Injuries To pardon the faults that adhere to Mankind And not to consider the Law so much as the Law-makers mind and not the Words so much as the meaning of the Law And not to regard so much the Fact as the intention of the Doer nor part of the Fact but the Whole nor what the Doer is but what he has been always or for the most part And to remember better the Good received than the Ill. And to endure injuries patiently And to submit rather to the sentence of a Judge than of the Sword And to the sentence of an Arbitrator rather than of a Judge CHAP. XV. Of the Colours or Common Opinions concerning Injuries comparatively COmmon Opinions concerning Injuries comparatively are such as these Greater is the Injury which proceed from greater Iniquity And from which proceedeth greater dammage And of which there is no revenge And for which there is no remedy And by occasion of which he that hath received the Injury hath done some mischief to himself He does the greater Injury that does it first or alone or with few And he that does it often Greater Injury is that against which Laws and Penalties were first made And that which is more brutal or more approaching to the actions of beasts And that which is done upon more premeditation And by which more Laws are broken And which is done in the place of Execution And which is of greatest shame to him that receives the Injury And which is committed against well deservers And which is committed against the unwritten Law because good men should observe the Law for Justice and not for fear of punishment And which is committed against the written Law because he that will do Injury neglecting the penalty set down in the written Law is much more likely to transgress the unwritten Law where there is no penalty at all CHAP. XVI Of Proofs Inartificial OF Artificial Proofs we have already spoken Inartificial Proofs which we invent not but make use of are of five sorts 1. Laws And those are Civil or written Law the Law or Custom of Nations and the universal Law of Nature 2. Witness And those are such as concern Matter and such as concern Manners Also they be ancient or present 3. Evidences or Writings 4. Question or Torture 5. Oaths And those be either given or taken or both or neither For Laws we use them thus When the written Law makes against us we appeal to the Law of Nature alledging That to be greatest Justice which is greatest Equity That the Law of Nature is immutable the written Law mutable That the written Law is but seeming Justice the Law of Nature very Justice And Justice is among those things which are and not which seem to be That the Judge ought to discern between true and adulterate Justice That they are better men that obey unwritten than written Laws That the Law against us does contradict some other Law And when the Law has a double interpretation that is the true one which makes for us And that the cause of the Law being abolished the Law is no more of Validity But when the written Law makes for us and Equity for the Adversary we must alledge That a man may use Equity not as a liberty to judg against the Law but only as a security against being forsworn when he knows not the Law That men seek not Equity because 't is good simply but because good for them That it is the same thing not to make and not to use the Law That as in other Arts and namely in Physick Fallacies are pernitious so in a Common-wealth 't is pernitious to use pretexts against the Law And that in Common-wealths well instituted to seem wiser than the Laws is prohibited For Witnesses we must use them thus When we have them not we must stand for Presumptions and say That in Equity sentence ought to be given according to the most probability That Presumptions are the testimony of the things themselves and cannot be bribed That they cannot lye When we have witnesses against him that has them not we must say That Presumptions if they be false cannot be punished That if Presumptions were enough witnesses were superfluous For Writings when they favour us we must say That Writings are private and particular Laws and he that takes away the use of Evidences abolisheth the Law That since Contracts and Negotiations pass by Writings he that bars their use dissolves humane Society Against them if they favour the Adversary we may say That since Laws do not bind that are fraudulently made to pass much less Writings And that the Judge being to dispense Justice ought rather to consider what is just than what is in the Writing That Writings may be gotten by fraud or force but Justice by neither That the Writing is repugnant to some Law Civil or Natural or to Justice or to Honesty That 't is repugnant to some other writing before or after That it crosses some commodity of the Judge which must not be said directly but implyed cunningly For the Torture if the giving of it make for us we must say That 't is the only testimony
could be made after the doer therefore every such killing was called Murder before it could be known whether it could be by Felony or not For a Man may be found dead that kills himself or was Lawfully kill'd by another This name of Murder came to be the more horrid when it was secretly done for that it made every Man to consider of their own danger and him that saw the dead Body to boggle at it as a Horse will do at a dead Horse and to prevent the same they had Laws in force to Amerce the Hundred where it was done in a sum defined by Law to be the Price of his Life For in those dayes the lives of all sorts of Men were valued by Money and the value set down in their Written Laws And therefore Sir Edw. Coke was mistaken in that he thought that killing a Man by misfortune before the Statute of Marlebridge was adjudged Murder and those secret Murders were abominated by the People for that they were lyable to so great a Pecuniary Punishment for suffering the Malefactor to escape But this grievance was by Canutus when he Reign'd soon eased For he made a Law that the Countrey in this Case should not be Charged unless he were an English-man that was so slain but if he were a French-man under which name were comprehended all Forraigners and especially the Normans though the slayer escaped the County was not to be Amerced And this Law though it were very hard and Chargeable when an English-man was so slain for his Friend to prove he was an English-man and also unreasonable to deny the Justice to a stranger yet was it not Repealed till the 14th of King Ed. the 3d. By this you see that Murder is distinguished from Homicide by the statute-Statute-Laws and not by any Common-Law without the Statute and that it is comprehended under the general name of Felony La. And so also is Petit Treason and I think so is High Treason also for in the abovesaid Statute in the 25 Ed. 3d. Concerning Treasons there is this Clause And because that many other like Cases of Treason may happen in time to come which a Man cannot think or declare at the present time it is accorded that if any other Case supposed Treason which is not above specified doth happen before any the Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it be Treason or other Felony which thereby shews that the King and Parliament thought that Treason was one of the sorts of Felony Ph. And so think I. La. But Sir Edw. Coke denies it to be so at this day for 1 Inst. Sect. 745. at the word Felony he saith That in Antient time this word Felony was of so large an extent as that it included High Treason But afterwards it was resolved that in the Kings Pardon or Charter this word Felony should extend only to Common Felonies And at this day under the word Felony by Law is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit Larceny Ph. He says it was resolv'd but by whom La. By the Justices of Assize in the time of Hen. 4. as it seems in the Margin Ph. Have Justices of Assize any Power by their Commission to alter the Language of the Land and the received sence of words Or in the Question in what Case Felony shall be said it is referred to the Judges to Determine as in the Question in what Case Treason shall be said it is referred by the Statute of Edw. the 3d. to the Parliament I think not and yet perhaps they may be disobliged to disallow a Pardon of Treason when mentioning all Felonies it nameth not Treason nor specifies it by any description of the Fact La. Another kind of Homicide there is simply called so or by the name of Manslaughter and is not Murder and that is when a Man kills another Man upon suddain Quarrel during the heat of Blood Ph. If two meeting in the Street chance to strive who shall go nearest to the Wall and thereupon Fighting one of them kills the other I believe verily he that first drew his Sword did it of Malice forethought though not long forethought but whether it be Felony or no it may be doubted It is true that the harm done is the same as if it had been done by Felony but the wickedness of the Intention was nothing near so great And supposing it had been done by Felony then 't is manifest by the Statute of Marlebridge that it was very Murder And when a Man for a word or a trifle shall draw his Sword and kill another Man can any Man imagine that there was not some Precedent Malice La. 'T is very likely there was Malice more or less and therefore the Law hath Ordained for it a punishment equal to that of Murder saving that the Offender shall have the Benefit of his Clergy Ph. The Benefit of Clergy comes in upon another account and importeth not any extenuation of the Crime for it is but a Relick of the old usurped Papal priviledge which is now by many Statutes so pared off as to spread but to few Offences and is become a Legal kind of Conveying Mercy not only to the Clergy but also to the Laity La. The work of a Judge you see is very difficult and requires a Man that hath a faculty of well distinguishing of Dissimilitudes of such Cases as Common Judgments think to be the same A small Circumstance may make a great Alteration which a Man that cannot well discern ought not to take upon him the Office of a Judge Ph. You say very well for if Judges were to follow one anothers Judgments in Precedent Cases all the Justice in the World would at length depend upon the Sentence of a few Learned or Unlearned ignorant Men and have nothing at all to do with the Study of Reason La. A Third kind of Homicide is when a Man kills another either by misfortune or in a necessary defence of himself or of the King or of his Laws for such killing is neither Felony nor Crime saving as Sir Edw. Coke says 4. Inst. p. 56. that if the Act that a Man is a doing when he kills another Man be Unlawful then it is Murder As if A. meaneth to steal a Deer in the Park of B. Shooteth at the Deer and by the glance of the Arrow killeth a Boy that is hidden in a Bush this is Murder for that the Act was Unlawful but if the owner of the Park had done the like shooting at his own Deer it had been by Misadventure and no Felony Ph. This is not so distinguished by any Statute but is the Commonly only of Sir Ed. Coke I believe not a word of it If a Boy be Robbing an Apple-tree and falling thence upon a Man that stands under
that is of what is Good or Evil to each sort of Common-wealth in special The Government of a Common-wealth is either Democracy or Aristocracy or Oligarchy or Monarchy Democracy is that wherein all men with equal right are preferred to the highest Magistracy by Lot Aristocracy is that wherein the highest Magistrate is chosen out of those that had the best education according to what the Laws prescribe for best Oligarchy is that where the highest Magistrate is chosen for wealth Monarchy is that wherein one man hath the Government of all which Government if he limit it by Law is called Kingdom if by his own will Tyranny The end of Democracy or the Peoples Government is Liberty The end of Oligarchy is the Riches of those that Govern The end of Aristocracy is good Laws and good ordering of the City The end of Monarchy or Kings is the safety of the People and conservation of his own Authority Good therefore in each sort of Government is that which conduceth to these their ends And because belief is not gotten only by proofs but also from manners the manners of each sort of Commonwealth ought to be well understood by him that undertaketh to perswade or diswade in matter of State Their manners may be known by their designs and their designs by their ends and their ends by what we see them take pleasure in But of this more accurately in the Politicks CHAP. IX Of the Colours of Honourable and Dishonourable IN a Demonstrative Oration the subject whereof is Praise or Dispraise the proofs are to be drawn from the Elements of Honourable and Dishonourable In this place we anticipate the second way of getting belief which is from the manners of the Speaker For Praise whether it come in as the principal business or upon the by depends still upon the same Principles Which are these Honourable is that which we love for it self and is withal laudable And that Good which pleaseth us only because 't is Good And Vertue Vertue is the faculty of getting and preserving that which is Good and the faculty of doing many and great things well The kinds of it are these 1. Justice which is a Vertue whereby every man obtains what by Law is his 2. Fortitude which is a Vertue by which a man carries himself Honourably and according to the Laws in time of danger 3. Temperance which is a Vertue whereby a man Governs himself in matter of pleasure according to the Law 4. Liberality which is a Vertue by which we benefit others in matter of money 5. Magnanimity which is a Vertue by which a man is apt to do great benefits 6. Magnificence which is a Vertue by which a man is apt to be at great cost 7. Prudence which is an Intellectual Vertue by which a man is able to deliberate well concerning any Good leading to Felicity And Honourable are the Causes and effects of things Honourable And the Works of Vertue And the signs of Vertue And those actions the reward whereof is Honor. And the reward whereof is rather Honor than Money And that which we do not for our own sakes And what we do for our Countries good neglecting our own And those things are Honourable which good of themselves are not so to the Owner And those things which happen to the dead rather than to the living And what we do for other men especially for Benefactors And bestowing of Benefits And the contrary of those things we are ashamed of And those things which men strive for earnestly but without fear of Adversary And of the more Honourable and better men the Vertues are more Honourable And more Honourable are the vertues that tend to other mens benefit than those which tend to ones own And Honourable are those things which are Just. And Revenge is Honourable And Victory And Honour And Monuments And those things which happen not ot the living And things that excell And what none can do but we And Possessions we reap no profit by And those things which are had in honour particularly in several places And the signs of praise And to have nothing of the servile mercenary or Mechanick And that which seems Honourable Namely such as follow Vices confining upon Vertue And the extreams of Vertues And what the Auditors think Honourable And that which is in estimation And that which is done according to custom Besides in a Demonstrative Oration the Orator must shew that he whom he praiseth did what he praiseth unconstrainedly and willingly And he does so who does the same often Praise is speech declaring the magnitude of a Vertue Action or Work But to praise the Work from the Vertue of the Worker is a circular proof To Magnifie and to Praise differ in themselves as Felicity and Vertue For Praise declares a mans Vertue and Magnifying declares his Felicity Praise is a kind of inverted Precept For to say Do it because 't is good is a Precept But to say He is good because he did it is Praise An Orator in Praising must also use the forms of Amplification such as these He was the first that did it The only man that did it The special man that did it He did it with disadvantage of time He did it with little help He was the cause that the Law ordained Rewards and Honours for such Actions Further he that will praise a Man must compare him with others and his actions with the actions of others especially with such as are renowned And Amplification is more proper to a Demonstrative Oration than to any other For here the Actions are confess'd and the Orators part is only this to contribute unto them Magnitude and Luster CHAP. X. Of Accusation and Defence with the Definition of Injury IN a Judicial Oration which consists in Accusation and Defence the thing to be proved is that Injury has been done and the heads from whence the proofs are to be drawn are these three 1. The causes that move to Injury 2. The Persons apt to do Injury 3. The Persons obnoxious or apt to suffer Injury An Injury is a voluntary offending of another man contrary to the Law Voluntary is that which a man does with knowledg and without compulsion The causes of Voluntary Actions are Intemperance and a Vicious disposition concerning things Desirable As the Covetous man does against the Law out of an intemperate desire of Money All Actions proceed either from the doers disposition or not Those that proceed not from the Doers disposition are such as he does by Chance by Compulsion or by Natural necessity Those that proceed from the Doers disposition are such as he does by Custom or upon Premeditation or in Anger or out of Intemperance By Chance are said to be done those things whereof neither the Cause nor the Scope is evident and which are done neither orderly nor always nor most commonly after the same manner By Nature are said to be done those things the Causes whereof are in
the sustaining of his Soveraign power is to destroy the Propriety he pretends to The next thing I will ask you is how you distinguish between Law and Right or Lex and Jus. La. Sir Ed. Coke in divers places makes Lex and Jus to be the same and so Lex Communis and Jus Communis to be all one nor do I find that he does in any places distinguish them Ph. Then will I distinguish them and make you judge whether my distinction be not necessary to be known by every Author of the Common Law for Law obligeth me to do or forbear the doing of something and therefore it lies upon me an Obligation but my Right is a Liberty left me by the Law to do any thing which the Law forbids me not and to leave undone any thing which the Law commands me not Did Sir Ed. Coke see no difference between being bound and being free La. I know not what he was but he has not mention'd it though a man may dispense with his own Liberty that cannot do so with the Law Ph. But what are you better for your Right if a rebellious Company at home or an Enemy from abroad take away the Goods or dispossess you of the Lands you have a right to Can you be defended or repair'd but by the strength and authority of the King What reason therefore can be given by a man that endeavours to preserve his Propriety why he should deny or malignly contribute to the Strength that should defend him or repair him Let us see now what your Books say to this point and other points of the Right of Soveraignty Bracton the most authentick Author of the Common Law fol. 55. saith thus Ipse Dominus Rex habet omnia Jura in manu suâ est Dei Vicarius habet ea quae sunt Pacis habet etiam coercionem ut Delinquentes puniat habet in potestate suâ Leges nihil enim prodest Jura condere nisi sit qui Jura tueatur That is to say our Lord the King hath all Right in his own Hands is Gods Vicar he has all that concerns the Peace he has the power to punish Delinquents all the Laws are in his power To make Laws is to no purpose unless there be some-body to make them obeyed If Bracton's Law be Reason as I and you think it is what temporal power is there which the King hath not Seeing that at this day all the power Spiritual which Bracton allows the Pope is restored to the Crown what is there that the King cannot do excepting sin against the Law of God The same Bracton Lib. 21. c. 8. saith thus Si autem a Rege petitur cum Breve non curret contra ipsum locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ad poenam quod Dominum expectet Vltorem nemo quidem de factis ejus praesumat disputare multo fortius contra factum ejus venire That is to say if any thing be demanded of the King seeing a Writ lyeth not against him he is put to his Petition praying him to Correct and Amend his own Fact which if he will not do it is a sufficient Penalty for him that he is to expect a punishment from the Lord No Man may presume to dispute of what he does much less to resist him You see by this that this Doctrine concerning the Rights of Soveraignty so much Cryed down by the long Parliament is the Antient Common-Law and that the only Bridle of the Kings of England ought to be the fear of God And again Bracton c. 24. of the second Book sayes That the Rights of the Crown cannot be granted away Ea vero quae Jurisdictionis Pacis ea quae sunt Justitiae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona separari possunt nec a privata persona possideri That is to say those things which belong to Jurisdiction and Peace and those things that are annexed to Justice and Peace appertain to none but to the Crown and Dignity of the King nor can be separated from the Crown nor be possest by a private Person Again you 'l find in Fleta a Law-Book written in the time of Edw. 2. That Liberties though granted by the King if they tend to the hinderance of Justice or subversion of the Regal Power were not to be used nor allowed For in that Book c. 20. concerning Articles of the Crown which the Justices Itinerant are to enquire of the 54th Article is this you shall inquire De Libertatibus concessis quae impediunt Communem Jâ—stitiam Regiam Potestatem subvertunt Now what is a greater hindrance to Common Justice or a greater subversion of the Regal Power than a Liberty in Subjects to hinder the King from raising Money necessary to suppress or prevent Rebellions which doth destroy Justice and subvert the power of the Soveraignty Moreover when a Charter is granted by a King in these words Dedita coram pro me Haeredibus meis The grantor by the common-Common-Law as Sir Edw. Coke sayes in his Commentaries on Littleton is to warrant his Gift and I think it Reason especially if the Gift be upon Consideration of a price Paid Suppose a Forraign State should say claim to this Kingdom 't is no Matter as to the Question I am putting whether the Claim be unjust how would you have the King to warrant to every Free-holder in England the Lands they hold of him by such a Charter If he cannot Levy Money their Estates are lost and so is the Kings Estate and if the Kings Estate be gone how can he repair the Value due upon the Warranty I know that the Kings Charters are not so meerly Grants as that they are not also Laws but they are such Laws as speak not to all the Kings Subjects in general but only to his Officers implicitly forbidding them to Judge or Execute any thing contrary to the said Grants There be many Men that are able Judges of what is right Reason and what not when any of these shall know that a Man has no Superiour nor Peer in the Kingdom he will hardly be perswaded he can be bound by any Law of the Kingdom or that he who is Subject to none but God can make a Law upon himself which he cannot also as easily abrogate as he made it The main Argument and that which so much taketh with the throng of People proceedeth from a needless fear put into their minds by such Men as mean to make use of their Hands to their own ends for if say they the King may notwithstanding the Law do what he please and nothing to restrain him but the fear of punishment in the World to come then in case there come a King that fears no such punishment he may take away from us not only our Lands Goods and Liberties but our Lives
examinâ—â— Judgment given in the Court of Common-Pleas La. You deny not but by the Antient Law of England the Kings-Bench may examine the Judgment given in the Court of Common-Pleas Ph. 'T is true but why may not also the Court of Chancery do the same especially if the fault of the Judgment be against Equity and not against the Letter of the Law La. There is no necessity of that for the same Court may examine both the Letter and the Equity of the Statute Ph. You see by this that the Jurisdiction of Courts cannot easily be distinguished but by the King himself in his Parliament The Lawyers themselves cannot do it for you see what Contention there is between Courts as well as between particular Men. And whereas you say that Law of 4 Hen. 4. 23. is by that of 27 Eliz. cap. 8. taken away I do not find it so I find indeed a Diversity of opinion between the makers of the former and the latter Statute in the preamble of the latter and Conclusion of the former The Preamble of the latter is forasmuch as Erroneous Judgments given in the Court called the Kings-Bench are only to be reformed in the High Court of Parliament and the Conclusion of the former is that the contrary was Law in the times of the Kings Progenitors These are no parts of those Laws but Opinions only concerning the Antient Custom in that Case arising from the different Opinions of the Lawyers in those different times neither Commanding nor Forbidding any thing though of the Statutes themselves the one forbids that such Pleas be brought before the Parliament the other forbids it not But yet if after the Act of Hen. 4. such a Plea had been brought before the Parliament the Parliament might have Heard and Determin'd it For the Statute forbids not that nor can any Law have the force to hinder the Law of any Jurisdiction whatsoever they please to take upon them seeing it is a Court of the King and of all the People together both Lords and Commons La. Though it be yet seeing the King as Sir Edw. Coke affirms 4 Inst. p. 71. hath committed all his power Judicial some to one Court and some to another so as if any Man would render himself to the Judgment of the King in such case where the King hath committed all his power Judicial to others such a render should be to no effect And p. 73. he saith farther That in this Court the Kings of this Realm have sitten on the High Bench and the Judges of that Court on the Lower Bench at his feet but Judicature belongeth only to the Judges of that Court and in his presence they answer all Motions Ph. I cannot believe that Sir Edw. Coke how much soever he desir'd to advance the authority of himself and other Justices of the common-Common-Law could mean that the King in the Kings-Bench sate as a Spectator only and might not have answered all motions which his Judges answer'd if he had seen cause for it For he knew that the King was Supream Judge then in all causes Temporal and is now in all Causes both Temporal and Ecclesiastical and that there is an exceeding great penalty ordained by the Laws for them that shall deny it But Sir Edw. Coke as he had you see in many places before hath put a Fallacy upon himself by not distinguishing between Committing and Transferring He that Transferreth his power hath deprived himself of it but he that Committeth it to another to be Exercised in his name and under him is still in the Possession of the same power And therefore if a Man render himself that is to say Appealeth to the King from any Judge whatsoever the King may receive his Appeal and it shall be effectual La. Besides these 2 Courts the Kings-Bench for Pleas of the Crown and the Court of Common-Pleas for Causes Civil according to the Common-Law of England there is another Court of Justice that hath Jurisdiction in Causes both Civil and Criminal and is as Antient a Court at least as the Court of Common Pleas and this is the Court of the Lord Admiral but the proceedings therein are according to the Laws of the Roman Empire and the Causes to be determin'd there are such as arise upon the Marine Sea For so it is ordain'd by divers Statutes and confirm'd by many Precedents Ph. As for the Statutes they are always Law and Reason also for they are made by the Assent of all the Kingdom but Precedents are Judgments one contrary to another I mean divers Men in divers Ages upon the same case give divers Judgments Therefore I will ask your Opinion once more concerning any Judgments besides those of the King as to their validity in Law But what is the difference between the proceedings of the Court of Admiralty and the Court of Common-Law La. One is that the Court of Admiralty proceedeth by two Witnesses without any either Grand-Jury to Indict or Petty to Convict and the Judge giveth Sentence according to the Laws Imperial which of old time were in force in all this part of Europe and now are Laws not by the Will of any other Emperor or Forraign Power but by the Will of the Kings of England that have given them force in their own Dominions the reason whereof seems to be that the causes that arise at Sea are very often between us and People of other Nations such as are Governed for the most part by the self same laws Imperial Ph. How can it precisely enough be determin'd at Sea especially near the mouth of a very great River whether it be upon the Sea or within the Land For the Rivers also are as well as their Banks within or a part of one Country or other La. Truly the Question is difficult and there have been many Suits about it wherein the Question has been whose Jurisdiction it is in Ph. Nor do I see how it can be decided but by the King himself in case it be not declar'd in the Lord Admirals Letters Patents La. But though there be in the Letters Patents a power given to hold Plea in some certain cases to any of the Statutes concerning the Admiralty the Justices of the common-Common-Law may send a Prohibition to that Court to proceed in the Plea though it be with a non-obstante of any Statute Ph. Methinks that That should be against the Right of the Crown which cannot be taken from it by any Subject For that Argument of Sir Edw. Coke's that the King has given away all his Judicial Power is worth nothing because as I have said before he cannot give away the Essential Rights of his Crown and because by a non-obstante he declares he is not deceived in his Grant La. But you may see by the Precedents alledged by Sir Edw. Coke the contrary has been perpetually practised Ph. I see not that perpetually for who can tell but there may have been given other Judgments in such cases
which have either been not preserv'd in the Records or else by Sir Edw. Coke because they were against his opinion not alledged For this is possible though you will not grant it to be very likely therefore I insist only upon this that no Record of a Judgment is a Law save only to the party Pleading until he can by Law reverse the former Judgment And as to the proceeding without Juries by two sufficient Witnesses I do not see what harm can proceed from it to the Common-wealth nor consequently any just Quarrel that the Justice of the common-Common-Law can have against their proceedings in the Admiralty For the Proof of a Fact in both Courts lyeth meerly on the Witnesses and the difference is no more but that in the imperial-Imperial-Law the Judge of the Court Judgeth of the Testimony of the Witnesses and the Jury doth in a Court of Common-Law Besides if a Court of Common-Law should chance to Incroach upon the Jurisdiction of the Admiral may not he send a prohibition to the Court of Common-Law to forbid their proceeding I pray you tell me what Reason there is for the one more than for the other La. I know none but long Custom for I think it was never done Ph. The Highest ordinary Court in England is the Court of Chancery wherein the Lord Chancellour or otherwise Keeper of the Great Seal is the only Judge This Court is very Antient as appears by Sir Edw. Coke 4 Inst. p. 87. where he nameth the Chancellors of King Edgar King Etheldred King Edmund and King Edward the Confessor His Office is given to him without Letters Patents by the Kings delivery to him of the Great Seal of England and whosoever hath the keeping of the Great Seal of England hath the same and the whole Jurisdiction that the Lord Chancellour ever had by the Statute of 5 Eliz. cap. 18. wherein it is declar'd that such is and always has been the Common-Law And Sir Edw. Coke says he has his name of Chancellour from the highest point of his Jurisdiction viz. a Cancellando that is from Cancelling the Kings Letters Patents by drawing strokes through it like a Lattice Ph. Very pretty It is well enough known that Cancellarius was a great Officer under the Roman Empire whereof this Island was once a Member and that the Office came into this Kingdom either with or in Imitation of the Roman Government Also it was long after the time of the 12 Caesars that this Officer was created in the State of Rome For till after Septimius Severus his time the Emperors did diligently enough take cognizance of Causes and Complaints for Judgments given in the Courts of the Praetors which were in Rome the same that the Judges of the Common-Law are here but by the continual Civil Wars in after-times for the choosing of Emperors that diligence by little and little ceased and afterwards as I have Read in a very good Author of the Roman Civil Law the number of complaints being much increased and being more than the Emperor could dispatch he appointed an Officer as his Clerk to receive all such Petitions and that this Clerk caused a partition to be made in a Room convenient in which partition-Wall at the heighth of a Mans reach he placed at convenient distances certain Bars so that when a Suitor came to deliver his Petition to the Clerk who was sometimes absent he had no more to do but to throw in his Petition between those Bars which in Latin are called properly Cancelli not that any certain Form of those Bars or any Bars at all were necessary for they might have been thrown over though the whole space had been left open but because they were Cancelli the Clerk Attendant and keeping his Office there was called Cancellarius And any Court Bar may properly enough be called Cancelli which does not signifie a Lattice for that is but a meer Conjecture grounded upon no History nor Grammar but taken up at first as is likely by some Boy that could find no other word in the Dictionary for a Lattice but Cancelli The Office of this Chancellour was at first but to Breviate the matter of the Petitions for the easing of the Emperor but Complaints encreasing daily they were too many considering other Businesses more necessary for the Emperor to determine and this caused the Emperor to commit the Determination of them to the Chancellor again what Reason doth Sir Edw. Coke alledge to prove that the highest point of the Chancellors Jurisdiction is to Cancel his Masters Letters Patents after they were Sealed with his Masters Seal unless he hold Plea concerning the validity of them or of his Masters meaning in them or of the surreptitious getting of them or of the abusing of them which are all causes of Equity Also seeing the Chancellor hath his Office only by the delivery of the Great Seal without any Instruction or Limitation of the Process in his Court to be used it is manifest that in all Causes whereof he has the hearing he may proceed by such manner of hearing and examining of Witnesses with Jury or without Jury as he shall think fittest for the Exactness Expedition and Equity of the Decrees And therefore if he think the Custome of proceeding by Jury according to the Custome of England in Courts of Common-Law tend more to Equity which is the scope of all the Judges in the World or ought to be he ought to use that method or if he think better of another proceeding he may use it if it be not forbidden by a Statute La. As for this Reasoning of yours I think it well enough but there ought to be had also a reverend respect to Customs not unreasonable and therefore I think Sir Edw. Coke says not amiss that in such Cases where the Chancellor will proceed by the Rule of the Common-Law he ought to deliver the Record in the Kings-Bench and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by Statutes Ph. What are the Statutes by which his Jurisdiction is limited I know that by the 27 Eliz. cap. 8. He cannot Reverse a Judgment given in the Kings-Bench for Debt Detinue c. Nor before the Statute could he ever by virtue of his Office Reverse a Judgment in Pleas of the Crown given by the Kings-Bench that hath the Cognizance of such Pleas nor need he for the Judges themselves when they think there is need to relieve a Man opprest by ill Witnesses or power of great Men prevailing on the Jury or by Error of the Jury though it be in case of Felony may stay the Execution and Inform the King who will in Equity relieve him As to the regard we ought to have to Custome we will Consider of it afterward La. First in a Parliament holden the 13th of Rich. 2. the Commons Petitioned the King that neither the Chancellor nor other Chancellor do make any order against the Common-Law
open before them be Burglary Robbery Theft or other Felony for this is to give a leading Judgment to the Jury who ought not to consider any private Lawyers Institutes but the Statutes themselves pleaded before them for directions La. Burning as he defines it p. 66. is a Felony at the Common-Law committed by any that maliciously and voluntarily in the night or day burneth the House of another And hereupon infers if a Man sets Fire to the House and it takes not that then it is not within the Statute Ph. If a Man should secretly and maliciously lay a quantity of Gun-Powder under another Mans House sufficient to Blow it up and set a Train of Powder in it and set Fire to the Train and some Accident hinder the Effect is not this Burning or what is it What Crime It is neither Treason nor Murder nor Burglary nor Robbery nor Theft nor no dammage being made any Trespass nor contrary to any Statute And yet seeing the Common-Law is the Law of Reason it is a sin and such a sin as a Man may be Accused of and Convicted and consequently a Crime committed of Malice prepensed shall he not then be Punished for the Attempt I grant you that a Judge has no Warrant from any Statute-Law Common-Law or Commission to appoint the Punishment but surely the King has power to Punish him on this side of Life or Member as he please and with the Assent of Parliament if not without to make the Crime for the future Capital La. I know not Besides these Crimes there is Conjuration Witch-craft Sorcery and Inchantment which are Capital by the Statute 1 of King James cap. 12. Ph. But I desire not to discourse of that Subject for though without doubt there is some great Wickedness signified by those Crimes yet I have ever found my self too dull to conceive the nature of them or how the Devil hath power to do many things which Witches have been Accused of Let us now come to Crimes not Capital La. Shall we pass over the Crime of Heresie which Sir Edw. Coke ranketh before Murder but the consideration of it will be somewhat long Ph. Let us defer it till the Afternoon Of Heresie La. COncerning Heresie Sir Edw. Coke 4 Inst. p. 39. says that 5 things fall into consideration 1. Who be the Judges of Heresie 2. What shall be Judged Heresie 3. What is the Judgment upon a Man Convicted of Heresie 4. What the Law alloweth him to save his Life 5. What he shall forfeit by Judgment against him Ph. The principal thing to be considered which is the Heresie it self he leaveth out viz. What it is in what Fact or Words it consisteth what Law it violateth Statute-Law or the Law of Reason The Cause why he omitteth it may perhaps be this that it was not only out of his Profession but also out of his other Learning Murder Robbery Theft c. Every Man knoweth to be evil and are Crimes defined by the Statute-Law so that any Man may avoid them if he will But who can be sure to avoid Heresie if he but dare to give an Account of his Faith unless he know beforehand what it is La. In the Preamble of the Statute of the 2d Hen. 4. cap. 15. Heresie is laid down as a Preaching or Writing of such Doctrine as is contrary to the determination of Holy Church Ph. Then it is Heresie at this day to Preach or Write against Worshipping of Saints or the Infallibility of the Church of Rome or any other determination of the same Church For Holy-Church at that time was understood to be the Church of Rome and now with us the Holy-Church I understand to be the Church of England and the Opinions in that Statute are now and were then the true Christian Faith Also the same Statute of Hen. 4. Declareth by the same Preamble that the Church of England had never been troubled with Heresie La. But that Statute is Repeal'd Ph. Then also is that Declaration or Definition of Heresie repeal'd La. What say you is Heresie Ph. I say Heresie is a singularity of Doctrine or Opinion contrary to the Doctrine of another Man or Men and the word properly signifies the Doctrine of a Sect which Doctrine is taken upon Trust of some Man of Reputation for Wisdom that was the first Author of the same If you will understand the truth hereof you are to Read the Histories and other Writings of the Antient Greeks whose word it is which Writings are extant in these days and easie to be had Wherein you will find that in and a little before the time of Alexander the Great there lived in Greece many Excellent Wits that employed their time in search of the Truth in all manner of Sciences worthy of their Labour and which to their great Honour and Applause published their Writings some concerning Justice Laws and Government some concerning Good and Evil Manners some concerning the Causes of things Natural and of Events discernable by sense and some of all these Subjects And of the Authors of these the Principal were Pythagoras Plato Zeno Epicurus and Aristotle Men of deep and laborious Meditation and such as did not get their Bread by their Philosophy but were able to live of their own and were in Honour with Princes and other great Personages But these Men though above the rest in Wisdom yet their Doctrine in many points did disagree whereby it came to pass that such Men as studied their Writings inclined some to Pythagoras some to Plato some to Aristotle some to Zeno and some to Epicurus But Philosophy it self was then so much in Fashion as that every Rich Man endeavour'd to have his Children educated in the Doctrine of some or other of these Philosophers which were for their Wisdom so much renown'd Now those that followed Pythagoras were called Pythagoreans those that followed Plato Academicks those that followed Zeno Stoicks those that followed Epicurus Epicureans and those that followed Aristotle Peripateticks which are the names of Heresie in Greek which signifies no more but taking of an Opinion and the said Pythagoreans Academicks Stoicks Peripateticks c. were termed by the names of so many several Heresies All Men you know are subject to Error and the ways of Error very different and therefore 't is no wonder if these Wise and diligent searchers of the Truth did notwithstanding their Excellent parts differ in many points amongst themselves But this Laudable Custom of Great Wealthy Persons to have their Children at any price to learn Philosophy suggested to many idle and needy Fellows an easie and compendious way of Maintenance which was to Teach the Philosophy some of Plato some of Aristotle c. Whose Books to that end they Read over but without Capacity or much Endeavour to examine the Reasons of their Doctrines taking only the Conclusions as they lay and setting up with this they soon professed themselves Philosophers and got to be the School-Masters to the
Suit in the Spiritual Court here in a Temporal Cause there lay a Premunire and if perhaps some Judge or other hath since that time judged otherwise his Judgment was erroneous La. Nay but by the Statute of 16. Rich. 2. cap. 5. it appeareth to the contrary as Sir Edw. Coke here will shew you The effect saith he of the Statute of Rich. 2. is That if any Pursue or cause to be Pursued in the Court of Rome or elsewhere any thing which toucheth the King against him his Crown or Regality or his Realm they their Notaries c. shall be out of the Kings Protection Ph. I pray you let me know the very words of the Statutes as they ly La. Presently The words are if any Man Purchase or Pursue or cause to be Purchased or Pursued in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunication Bulls Instruments or any other things whatsoever which touch the King against him his Crown and his Regality or his Realm as is aforesaid c. Ph. If a Man bring a Plea of Common-Law into the Spiritual Court which is now the Kings Court and the Judge of this Spiritual Court hold Plea thereof By what Construction can you draw it within the compass of the words you have now read To sue for my Right in the Kings Court is no pursuing of Translations of Bishopricks made or procur'd in the Court of Rome or any place else but only in the Court of the King nor is this the suit against the King nor his Crown nor his Regality nor his Realm but the contrary Why then is it a Premunire No. He that brings in or setteth out a Writing in any place whatsoever wherein is contained that the King hath so given away his Jurisdiction as that if a Subject be condemned falsly his Submission to the Kings Judgment is of none effect or that the King upon no necessity whatsoever can out of Parliament time raise Money for the defence of the Kingdom is in my opinion much more within the Statute of Provisors than they which begin suit for a Temporal Matter in a Court Spiritual But what Argument has he for this Law of his since the Statute Law fails him from the Law of Reason La. He says they are called Courts either because they proceed by the Rules of other Laws as by the Canon or Civil Law or by other Tryals than the Common Law doth Warrant For the Tryals Warranted by the Law of England for matter of Fact is by verdict of 12 Men before the Judges of the Common Law in matters pertaining to the Common Law and not upon Examination of Witnesses as in the Court of Equity so that Alia Curia is either that which is govern'd per aliam Legem or which draweth the Party ad aliud Examen For if Ph. Stop there Let us consider of this you have read for the Tryal warranted by the Law of England is by Verdict of 12 Men. What means he here by the Law of England Does it not warrant the Tryals in Chancery and in the Court of Admiralty by Witnesses La. By the Law of England he means the Law used in the Kings Bench that is to say the Common-Law Ph. This is just as if he had said that these two Courts did warrant their own way of Tryal but other Courts not so but were warranted by the King only the Courts of Common Law were VVarrants to themselves You see that alia Curia is this way ill expounded In the Courts of Common Law all Tryals are by 12 Men who are Judges of the Fact and the Fact known and prov'd the Judges are to pronounce the Law but in the Spiritual Court the Admiralty and in all the Courts of Equity there is but one Judge both of Fact and of Law this is all the difference If this difference be intended by the Statute by alia Curia there would be a Premunire for suing in a Court being not the Kings Court The Kings Bench and Court of Common Pleas may also be different kinds of Courts because the Process is different but 't is plain that this Statute doth not distinguish Courts otherwise than into the Courts of the King and into the Courts of the Forraign States and Princes And seeing you stand upon the name of a Jury for the distinguishing of Courts what difference do you find between the Tryals at the Common-Law and the Tryals in other Courts You know that in Tryals of Fact naturally and through all the World the Witnesses are Judges and it is impossible to be otherwise What then in England can a Jury judge of except it be of the sufficiency of the Testimony The Justices have nothing to judge of nor do but after the Fact is proved to declare the Law which is not Judgment but Jurisdiction Again though the Tryal be in Chancery or in the Court of Civil Law 1. The Witnesses are still Judges of the Fact and he that hath the Commission to hear the Cause hath both the parts that is to say of a Jury to judge of the Testimony and of a Justice to declare the Law In this I say lyes all the difference which is indeed enough to make a Dispute as the World goes about Jurisdiction But seeing it tends neither to the Disherison of the King nor of the People nor to the subversion of the Law of Reason i. e. of Common-Law nor to the subversion of Justice nor to any harm of the Realm without some of which these Statutes are not broken it cannot be a Premunire La. Let me read on For if the Freehold Inheritances Goods and Chattels Debts and Duties wherein the King and Subject have Right and Property by the common-Common-Law should be judged per aliam Legem or be drawn ad aliud Examen the 3 Mischiefs afore exprest would follow viz. the destruction of the King and his Crown the Disherison of his People and the undoing and destruction of the Common-Law always used Ph. That is to say of the Law of Reason From hence it follows that where there are no Juries and where there are different Laws from ours that is to say in all the World besides neither King nor People have any Inheritance nor Goods nor any Law of Reason I will examine his Doctrine concerning Cases Criminal no farther He no where defineth a Crime that we may know what it is An odious name sufficeth him to make a Crime of any thing He hath put Heresie among the most odious Crimes not knowing what it signifies and upon no other Cause but because the Church of Rome to make their usurped Power the more terrible had made it by long Preaching against it and Cruelty shown towards many Godly and learned Men of this and other Reformed Churches appear to common People a thing detestable He puts it in as a Plea of the Crown in the time of Queen Elizabeth whereas in her time there was no
Justice La. The Judgment for Felony is Ph. Heresie is before Felony in the Catalogue of the Pleas of the Crown La. He has omitted the Judgment against a Heretick because I think no Jury confin'd Heresie nor no Judge Temporal did ever pronounce Judgment upon it For the Statute of 2 H. 5. c. 7. was that the Bishop having convicted any Man of Heresie should deliver him to the Sheriff and that the Sheriff should believe the Bishop The Sheriff therefore was bound by the Statute of 2 H. 4. after he was delivered to him to burn him but that Statute being repeal'd the Sheriff could not burn him without a Writ de Heretico comburendo and therefore the Sheriff burnt Legat 9. king James by that Writ which was granted by the Judges of the Common-Law at that time and in that Writ the Judgment is expressed Ph. This is strange reasoning when Sir Edw. Coke knew and confessed that the Statutes upon which the Writ de Heretico comburendo was grounded were all repeal'd how could he think the Writ it self could be in force Or that the Statute which repealeth the Statutes for burning Hereticks was not made with an intent to forbid such burning It is manifest he understood not his Books of Common-Law For in the time of Hen. 4. and Hen. 5. the word of the Bishop was the Sheriff's warrant and there was need of no such Writ nor could he till the 25 Hen. 8. when those Statutes were repeal'd and a Writ made for that purpose and put into the Register which Writ Fitzherbert cites in the end of his natura brevium Again in the later end of the Reign of Queen Elizabeth was published a correct Register of Original and Judicial Writs and the Writ de Haeretico comburendo left out because that Statute of 25 H. 8. and all Statutes against Hereticks were repeal'd and burning forbidden And whereas he citeth for the granting of this Writ 9. Jac. the Lord Chief Justice the Lord Chief Baron and two Justices of the Common-pleas it is as to all but the Lord Chief against the Law for neither the Judges of Common-Pleas nor of the Exchequer can hold Pleas of the Crown without special Commission and if they cannot hold Plea they cannot condemn La. The Punishment for Felony is that the Felon be hang'd by the Neck till he be dead And to prove that it ought to be so he cites a Sentence from whence I know not Quod non licet Felonem pro Felonia decollare Ph. It is not indeed lawful for the Sheriff of his own Head to do it or to do otherwise than is commanded in the Judgment nor for the Judge to give any other Judgment than according to Statute-Law or the usage consented to by the King but this hinders not the King from altering his Law concerning Judgments if he see good cause La. The King may do so if he please And Sir Edw. Coke tells you how he altered particular Judgments in case of Felony and sheweth that Judgment being given upon a Lord in Parliament that he should be hang'd he was nevertheless beheaded and that another Lord had the like Judgment for another Felony and was not hang'd but beheaded and withal he shews you the inconveniency of such proceeding because saith he if hanging might be altered to beheading by the same reason it might be altered to burning stoning to Death c. Ph. Perhaps there might be inconveniency in it but 't is more than I see or he shews nor did there happen any inconveniency from the execution he citeth Besides he granteth that death being ultimum supplicium is a satisfaction to the Law But what is all this to the purpose when it belongeth not to consider such inconveniencies of Government but to the King and Parliament Or who from the authority of a deputed Judge can derive a power to censure the actions of a King that hath deputed him La. For the death of a Man by misfortune there is he saith no express Judgment nor for killing a Man in ones own defence but he saith that the Law hath in both Cases given judgment that he that so killeth a Man shall forfeit all his Goods and Chattels Debts and Duties Ph. If we consider what Sir Edw. Coke saith 1 Inst. Sect. 745. at the word Felony these Judgments are very favourable For there he saith that killing of a Man by Chance-medley or se defendendo is Felony His words are wherefore by the Law at this day under the word Felony in Commissions c. is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley and se defendendo But if we consider only the intent of him that killeth a Man by misfortune or in his own defence the same judgments will be thought both cruel and sinful Judgments And how they can be Felony at this day cannot be understood unless there be a Statute to make them so For the Statute of 25 H. 3. cap. 25. The words whereof Murder from henceforth shall not be judged before our Justices where it is found Misfortune only but it shall take place in such as are slain by Felony and not otherwise make it manifest if they be Felonies they must also be Murders unless they have been made Felonies by some latter Statute La. There is no such latter Statute nor is it to say in Commission nor can a Commission or any thing but another Statute make a thing Felony that was not so before Ph. See what it is for a Man to distinguish Felony into several sorts before he understands the general name of Felony what it meaneth but that a Man for killing another Man by misfortune only without any evil purpose should forfeit all his Goods and Chartels Debts and Duties is a very hard Judgment unless perhaps they were to be given to the Kindred of the Man slain by way of amends for dammage But the Law is not that Is it the Common-Law which is the Law of Reason that justifies this Judgment or the Statute-Law It cannot be the Law of Reason if the Case be meer misfortune If a Man be upon his Apple-tree to gather his Apples and by ill fortune fall down and lighting on the Head of another Man kill him and by good fortune saves himself shall he for this mischance be punished with the forfeiture of his Goods to the King Does the Law of Reason warrant this He should you 'l say have look'd to his Feet that 's true but so should he that was under have look'd up to the Tree Therefore in this Case the Law of Reason as I think dictates that they ought each of them to bear his own misfortune La. In this Case I agree with you Ph. But this Case is the true Case of meer misfortune and a sufficient reprehension of the Opinion of Sir Edw. Coke La. But what if this had hapned to be done by one that had been stealing Apples upon the Tree
of another Man Then as Sir Edw. Coke says 3 Inst. p 56. it had been Murder Ph. There is indeed great need of good distinction in a Case of killing by misfortune but in this Case the unlawfulness of stealing Apples cannot make it Murder unless the falling it self be unlawful It must be a voluntary unlawful Act that causeth the death or else it is no Murder by the Law of Reason Now the death of the Man that was under the Tree proceeded not from that that the Apples were not his that fell but from the fall But if a Man shoot with a Bow or a Gun at another Man's Deer and by misfortune kill a Man such shooting being both voluntary and unlawful and also the immediate Cause of the Mans death may be drawn perhaps well enough sometimes to Murder by a Judge of the Common-Law So likewise if a Man shoot an Arrow over a House and by chance kill a Man in the Street there is no doubt but by the Law of Reason it is Murder for though he meant no malice to the Man slain yet it is manifest that he cared not whom he slew In this difficulty of finding out what it is that the Law of Reason dictates who is it that must decide the Question La. In the Case of misfortune I think it belongs to the Jury for it is matter of Fact only But when it is doubtful whether the action from which the misfortune came were Lawful or Unlawful it is to be judged by the Judge Ph. But if the unlawfulness of the action as the stealing of the Apples did not cause the death of the Man then the stealing be it Trespass or Felony ought to be punished alone as the Law requireth La. But for killing of a Man se defendendo the Jury as Sir Edw. Coke here says shall not in their Verdict say it was se defendendo but shall declare the manner of the Fact in special and clear it to the Judge to consider how it is to be called whether se defendendo Manslaughter or Murder Ph. One would think so for it is not often within the capacity of a Jury to distinguish the signification of the different and hard names which are given by Lawyers to the killing of a Man as Murder and Felony which neither the Laws nor the makers of the Laws have yet defined The Witnesses say that thus and thus the Person did but not that it was Murder or Felony no more can the Jury say who ought to say nothing but what they hear from the Witnesses or from the Prisoner Nor ought the Judge to ground his Sentence upon any thing else besides the special matter found which according as it is contrary or not contrary to the Statute ought to be pronounced La. But I have told you that when the Jury has found misfortune or se defendendo there is no judgment at all to be given and the Party is to be pardoned of course saving that he shall forfeit his Goods and Chattells Debts and Duties to the King Ph. But I understand not how there can be a Crime for which there is no Judgment nor how any Punishment can be inflicted without a precedent Judgment nor upon what ground the Sheriff can seize the Goods of any Man till it be judged that they be forfeited I know that Sir Edw. Coke saith that in the Judgment of hanging the Judgment of forfeiture is implyed which I understand not though I understand well enough that the Sheriff by his Office may seize the Goods of a Felon convicted much less do I conceive how the forfeiture of Goods can be implyed in a no-judgment nor do I conceive that when the Jury has found the special manner of the Fact to be such as is really no other than se defendendo and consequently no fault at all why he should have any Punishment at all Can you shew me any Reason for it La. The Reason lies in the Custom Ph. You know that unreasonable Customs are not Law but ought to be abolished and what Custom is there more unreasonable than that a Man should be punished without a fault La. Then see the Statute of 24 Hen. 8. cap. 5. Ph. I find here that at the making of this Statute there was a Question amongst the Lawyers in case one Man should kill another that attempted feloniously to Rob or Murder him in or near any Common High-way Court-way Horse-way or Foot-way or in his Mansion Messuage or Dwelling-place whether for the death of such a Man one shall forfeit his Goods and Chattells as a Man should do for killing another by Chance-medley or in his own defence This is the Preamble and penned as well as Sir Edw. Coke could have wished but this Statute does not determine that a Man should forfeit his Goods for killing a Man se defendendo or for killing him by misfortune but supposeth it only upon the opinion of the Lawyers that then were The body of the Statute is that if a Man be indicted or appealed for the death of such Person so attempting as aforesaid and the same by verdict be so found and tryed he shall not forfeit any thing but shall be discharged as if he had been found not Guilty You see the Statute now consider thereby in the case of killing se defendendo Frst if a Man kill another in his own defence it is manifest that the Man slain did either attempt to Rob or to Kill or to Wound him for else it was not done in his own defence If then it were done in the Street or near the Street as in a Tavern he forfeits nothing because the Street is a High-way So likewise it is to be said of all other Common-ways In what place therefore can a Man kill another in his own defence but that this Statute will discharge him of the forfeiture La. But the Statute says the attempt must be felonious Ph. When a Man assaults me with a Knife Sword Club or other mortal Weapon does any Law forbid me to defend my self or command me to stay so long as to know whether he have a felonious intent or no Therefore by this Statute in case it be found se defendendo the forfeiture is discharged if it be found otherwise it is Capital If we read the Statute of Glocester cap. 9. I think it will take away the difficulty For by that Statute in case it be found by the Countrey that he did it in his own defence or by misfortune then by the report of the Justices to the King the King shall take him to his Grace if it please him From whence it followeth first that it was then thought Law that the Jury may give the general verdict of se defendendo which Sir Edw. Coke denies Secondly that the Judge ought to report especial matter to the King Thirdly that the King may take him to his Grace if he please and consequently that his Goods are not to be seiz'd till the
contraries of these CHAP. VI. Of the Colours or common opinions concerning Good and Evil. IN Deliberatives the Principles or Elements from whence we draw our Proofs are common Opinions concerning Good and Evil. And these Principles are either Absolute or Comparative And those that are Absolute are either Disputable or Indisputable The Indisputable Principles are such as these Good is that which we love for it self And that for which we love somewhat else And that which all things desire And that to every man which his reason dictates And that which when we have we are well or satisfied And that which satisfies And the Cause or Effect of any of these And that which preserves any of these And that which keeps off or destroys the contrary of any of these Also to take the Good and reject the Evil is Good And to take the greater Good rather than the less and the lesser Evil rather than the greater Further all Vertues are Good And Pleasure And all things Beautiful And Justice Valour Temperance Magnanimity Magnificence and other like habits And Health Beauty Strength c. And Riches And Friends And Honour and Glory And Ability to say or do also Towardliness Will and the like And Whatsoever Art or Science And Life And whatsoever is Just. The Disputable Principles are such as follow That is Good whose contrary is Evil And whose contrary is Good for our Enemies And whose contrary our Enemies are glad of And of which there cannot be too much And upon which much labour and cost hath been bestowed And that which many desire And that which is praised And that which even our Enemies and evil men praise And what good we prefer And what we do advise And that which is possible is Good to undertake And that which is Easie. And that which depends on our own Will And that which is proper for us to do And what no man else can do And whatsoever is Extraordinary And what is suitable And that which wants a little of being at an end And what we hope to master And what we are fit for And what evil men do not And what we love to do CHAP. VII Of the Colours or common Opinions concerning Good and Evil comparatively THE Colours of Good comparatively depend partly upon the following Definitions of Comparatives 1. More is so much and somewhat besides 2. Less is that which and somewhat else is so much 3. Greater and more in number are said only Comparatively to Less and Fewer in number 4. Great and Little Many and Few are taken Comparatively to the Most of the same kind So that Great and Many is that which exceeds Little and Few is that which is exceeded by the Most of the same kind Partly from the precedent Definitions of Good absolutely Common Opinions concerning Good Comparatively then are these Greater Good is Many than fewer or one of those many And Greater is the kind in which the greatest is greater than the greatest of another kind And greater is that Good than another good whose kind is greater than another's kind And Greater is that from which another Good follows then the Good which follows And of two which exceed a third Greater is that which exceeds it most And that which causes the greater Good And that which proceeds from a greater Good And Greater is that which is chosen for it self than that which is chosen from somwhat else And the end greater than that which is not the end And that which less needs other things than that which more And that which is independent than that which is dependent of another And the Beginning than not the Beginning Seeing the Beginning is a greater Good or Evil than that which is not the Beginning and the End than that which is not the End One may argue from this Colour both ways as Leodamas against Chabrias would have the Actor more to blame than the Advisor and against Callistratus the Advisor more than the Actor And the Cause than not the Cause And that which hath a greater Beginning or Cause And the Beginning or Cause of a greater Good or Evil. And that which is scarce greater than that which is Plentiful because harder to get And that which is Plentiful than that which is scarce because oftner in Use. And that which is easie than that which is Hard. And that whose Contrary is greater And that whose Want is greater And Vertue than not Vertue a greater Good Vice than not Vice a greater Evil. And greater Good or Evil is that the effects whereof are more Honourable or more Shameful And the effects of greater Vertues or Vices And the Excess whereof is more tolerable a greater Good And those things which may with more honour be desir'd And the desire of better things And those things whereof the Knowledg is better And the Knowledge of better things And that which wise men prefer And that which is in better men And that which better men chuse And that which is more than that which is less delightful And that which is more than that which is less Honourable And that which we would have for our selves and Friends a greater Good and the contrary a greater Evil. And that which is Lasting than that which is not Lasting And that which is Firm than that which is not Firm. And what many desire than what few And what the Adversary or Judg confesseth to be greater is greater And Common than not Common And not Common than Common And what is more Laudable And that which is more Honour'd a greater Good And that which is more Punish'd a greater Evil. And both Good and Evil divided than undivided appear greater And Compounded than Simple appear greater And that which is done with Opportunity Age Place Time Means disadvantagious greater than otherwise And that which is natural than that which is attained unto And the same part of that which is great than of that which is less And that which is nearest to the end designed And that which is Good or Evil to ones self than that which is simply so And Possible than not possible And that which comes toward the end of our Life And that which we do really than that which we do for shew And that which we would be rather than what we would seem to be And that which is good for more purposes is the greater Good And that which serves us in great necessity And that which is joyned with less trouble And that which is joyned with more delight And of the two that which added to a third makes the whole the greater And that which having we are more sensible of And in every thing that which we most esteem CHAP. VIII Of the several kinds of Governments BEcause Hortation and Dehortation concern the Common-wealth and are drawn from the Elements of Good and Evil as we have spoken of them already in the Abstract so we must speak of them also in the Concrete
cannot conceive I understand well enough that the knowledge of the Law is gotten by much study as all other Sciences are which when they are studyed and obtained it is still done by Natural and not by Artificial Reason I grant you that the knowledge of the Law is an Art but not that any Art of one Man or of many how wise soever they be or the work of one and more Artificers how perfect soever it be is Law It is not Wisdom but Authority that makes a Law Obscure also are the words Legal Reason there is no Reason in Earthly Creatures but Humane Reason but I suppose that he means that the Reason of a Judge or of all the Judges together without the King is that Summa Ratio and the very Law which I deny because none can make a Law but he that hath the Legislative Power That the Law hath been fined by Grave and Learned Men meaning the Professors of the Law is manifestly untrue for all the Laws of England have been made by the Kings of England consulting with the Nobility and Commons in Parliament of which not one of twenty was a Learned Lawyer Law You speak of the Statute Law and I speak of the Common Law Ph. I speak generally of Law La. Thus far I agree with you that Statute Law taken away there would not be left either here or any where any Law at all that would conduce to the Peace of a Nation yet Equity and Reason which Laws Divine and Eternal which oblige all Men at all times and in all places would still remain but be Obeyed by few and though the breach of them be not punished in this World yet they will be punished sufficiently in the World to come Sir Edw. Coke for drawing to the Men of his own Profession as much Authority as lawfully he might is not to be reprehended but to the gravity and Learning of the Judges they ought to have added in the making of Laws the Authority of the King which hath the Soveraignty for of these Laws of Reason every Subject that is in his Wits is bound to take notice at his Peril because Reason is part of his Nature which he continually carryes about with him and may read it if he will Ph. 'T is very true and upon this ground if I pretend within a Month or two to make my self able to perform the Office of a Judge you are not to think it Arrogance for you are to allow to me as well as to other Men my pretence to Reason which is the Common Law remember this that I may not need again to put you in mind that Reason is the Common Law and for Statute Law seeing it is Printed and that there be Indexes to point me to every matter contained in them I think a Man may profit in them very much in two Months Law But you will be but an ill Pleader Ph. A Pleader commonly thinks he ought to say all he can for the Benefit of his Client and therefore has need of a faculty to wrest the sense of words from their true meaning and the faculty of Rhetorick to seduce the Jury and sometimes the Judge also and many other Arts which I neither have nor intend to study La. But let the Judge how good soever he thinks his Reasoning take heed that he depart not too much from the Letter of the Statute for it is not without danger Ph. He may without danger recede from the Letter if he do not from the meaning and sense of the Law which may be by a Learned Man such as Judges commonly are easily found out by the Preamble the time when it was made and the Incommodities for which it was made but I pray tell me to what end were Statute-Laws ordained seeing the Law of Reason ought to be applyed to every Controversie that can arise La. You are not ignorant of the force of an irregular Appetite to Riches to Power and to sensual Pleasures how it Masters the strongest Reason and is the root of Disobedience Slaughter Fraud Hypocrisie and all manner of evil habits and that the Laws of Man though they can punish the fruits of them which are evil Actions yet they cannot pluck up the roots that are in the Heart How can a Man be Indicted of Avarice Envy Hypocrisie or other vitious Habit till it be declared by some Action which a Witness may take notice of the root remaining new fruit will come forth till you be weary of punishing and at last destroy all Power that shall oppose it Ph. What hope then is there of a constant Peace in any Nation or between one Nation and another La. You are not to expect such a Peace between two Nations because there is no Common Power in this World to punish their Injustice mutual fear may keep them quiet for a time but upon every visible advantage they will invade one another and the most visible advantage is then when the one Nation is obedient to their King and the other not but Peace at home may then be expected durable when the common people shall be made to see the benefit they shall receive by their Obedience and Adhaesion to their own Soveraign and the harm they must suffer by taking part with them who by promises of Reformation or change of Government deceive them And this is properly to be done by Divines and from Arguments not only from Reason but also from the Holy Scripture Ph. This that you say is true but not very much to that I aim at by your Conversation which is to inform my self concerning the Laws of England therefore I ask you again what is the end of Statute-Laws Of Soveraign Power La. I say then that the scope of all Humane Law is Peace and Justice in every Nation amongst themselves and defence against Forraign Enemies Ph. But what is Justice La. Justice is giving to every Man his own Ph. The Definition is good and yet 't is Aristotles what is the Definition agreed upon as a Principle in the Science of the Common Law La. The same with that of Aristotle Ph. See you Lawyers how much you are beholding to a Philosopher and 't is but reason for the more General and Noble Science and Law of all the World is true Philosophy of which the Common Law of England is a very little part La. 'T is so if you mean by Philosophy nothing but the Study of Reason as I think you do Ph. When you say that Justice gives to every Man his own what mean you by his own How can that be given me which is my own already or if it be not my own how can Justice make it mine La. Without Law every thing is in such sort every Mans as he may take possess and enjoy without wrong to any Man every thing Lands Beasts Fruits and even the bodies of other Men if his Reason tell him he cannot otherwise live securely for the dictates of Reason are
little worth if they tended not to the preservation and improvement of Mens Lives seeing then without Humane Law all things would be Common and this Community a cause of Incroachment Envy Slaughter and continual War of one upon another the same Law of Reason Dictates to Mankind for their own preservation a distribution of Lands and Goods that each Man may know what is proper to him so as none other might pretend a right thereunto or disturb him in the use of the same This distribution is Justice and this properly is the same which we say is one owns by which you may see the great Necessity there was of Statute Laws for preservation of all Mankind It is also a Dictate of the Law of Reason that Statute Laws are a necessary means of the safety and well being of Man in the present World and are to be Obeyed by all Subjects as the Law of Reason ought to be Obeyed both by King and Subjects because it is the Law of God Ph. All this is very Rational but how can any Laws secure one Man from another When the greatest part of Men are so unreasonable and so partial to themselves as they are and the Laws of themselves are but a dead Letter which of it self is not able to compel a Man to do otherwise than himself pleaseth nor punish or hurt him when he hath done a mischief La. By the Laws I mean Laws living and Armed for you must suppose that a Nation that is subdued by War to an absolute submission of a Conqueror it may by the same Arm that compelled it to Submission be compelled to Obey his Laws Also if a Nation choose a Man or an Assembly of Men to Govern them by Laws it must furnish him also with Armed Men and Money and all things necessary to his Office or else his Laws will be of no force and the Nation remains as before it was in Confusion 'T is not therefore the word of the Law but the Power of a Man that has the strength of a Nation that makes the Laws effectual It was not Solon that made Athenian Laws though he devised them but the Supream Court of the People nor the Lawyers of Rome that made the Imperial Law in Justinian's time but Justinian himself Ph. We agree then in this that in England it is the King that makes the Laws whosoever Pens them and in this that the King cannot make his Laws effectual nor defend his People against their Enemies without a Power to Leavy Souldiers and consequently that he may Lawfully as oft as he shall really think it necessary to raise an Army which in some occasions be very great I say raise it and Money to Maintain it I doubt not but you will allow this to be according to the Law at least of Reason La. For my part I allow it But you have heard how in and before the late Troubles the People were of another mind Shall the King said they take from us what he please upon pretence of a necessity whereof he makes himself the Judg What worse Condition can we be in from an Enemy What can they take from us more than what they list Ph. The People Reason ill they do not know in what Condition we were in the time of the Conqueror when it was a shame to be an English-Man who if he grumbled at the base Offices he was put to by his Norman Masters received no other Answer but this Thou art but an English-Man nor can the People nor any Man that humors them in their Disobedience produce any Example of a King that ever rais'd any excessive Summ's either by himself or by the Consent of his Parliament but when they had great need thereof nor can shew any reason that might move any of them so to do The greatest Complaint by them made against the unthriftiness of their Kings was for the inriching now and then a Favourite which to the Wealth of the Kingdom was inconsiderable and the Complaint but Envy But in this point of raising Souldiers what is I pray you the Statute Law La. The last Statute concerning it is 13 Car. 2. c. 6. By which the Supream Government Command and disposing of the Militia of England is delivered to be and always to have been the Antient Right of the Kings of England But there is also in the same Act a Proviso that this shall not be Construed for a Declaration that the King may Transport his Subjects or compel them to march out of the Kingdom nor is it on the contrary declared to be unlawful Ph. Why is not that also determined La. I can imagine cause enough for it though I may be deceiv'd We love to have our King amongst us and not be Govern'd by Deputies either of our own or another Nation But this I verily believe that if a Forraign Enemy should either invade us or put himself in t a readiness to invade either England Ireland or Scotland no Parliament then sitting and the King send English Souldiers thither the Parliament would give him thanks for it The Subjects of those Kings who affect the Glory and imitate the Actions of Alexander the Great have not always the most comfortable lives nor do such Kings usually very long enjoy their Conquests They March to and fro perpetually as upon a Plank sustained only in the midst and when one end rises down goes the other Ph. 'T is well But where Souldiers in the Judgment of the Kings Conscience are indeed necessary as in an insurrection or Rebellion at home how shall the Kingdom be preserved without a considerable Army ready and in pay How shall Money be rais'd for this Army especially when the want of publick Treasure inviteth Neighbour Kings to incroach and unruly Subjects to Rebel La I cannot tell It is matter of Polity not of Law but I know that there be Statutes express whereby the King hath obliged himself never to Levy Money upon his Subjects without the consent of his Parliament One of which Statutes is 25 Ed. 1. c. 6. in these words We have granted for us and our Heirs as well to Arch-Bishops Bishops Abbots and other Folk of the Holy Church as also Earls Barons and to all the Commonalty of the Land that for no Business from henceforth we shall take such Aids Taxes or Prizes but by the common Consent of the Realm There is also another Statute of Ed. 1. in these words No Taxes or Aid shall be taken or Leveyed by us or our Heirs in our Realm without the good will and assent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land which Statutes have been since that time Confirmed by divers other Kings and lastly by the King that now Reigneth Ph. All this I know and am not satisfied I am one of the Common People and one of that almost infinite number of Men for whose welfare Kings and other Soveraigns were by God Ordain'd For
Enemies there is no end for the War will continue by a perpetual Subdivision and when it ends they will be in the same Estate they were before That they are often Abused by Men who to them seem wise when then their Wisdom is nothing else but Envy to those that are in Grace and in profitable Employments and that those Men do but abuse the Common People to their own ends that set up a private Mans Propriety against the publick Safety But say withal that the King is Subject to the Laws of God both Written and Unwritten and to no other and so was William the Conqueror whose Right it all Descended to our present King La. As to the Law of Reason which is Equity 't is sure enough there is but one Legislator which is God Ph. It followeth then that which you call the Common-Law Distinct from Statute-Law is nothing else but the Law of God La. In some sense it is but it is not Gospel but Natural Reason and Natural Equity Ph. Would you have every Man to every other Man alledge for Law his own particular Reason There is not amongst Men an Universal Reason agreed upon in any Nation besides the Reason of him that hath the Soveraign Power yet though his Reason be but the Reason of one Man yet it is set up to supply the place of that Universal Reason which is expounded to us by our Saviour in the Gospel and consequently our King is to us the Legislator both of Statute-Law and of Common-Law La. Yes I know that the Laws Spiritual which have been Law in this Kingdom since the Abolishing of Popery are the Kings Laws and those also that were made before for the Canons of the Church of Rome were no Laws neither here nor any where else without the Popes Temporal Dominions farther than Kings and States in their several Dominions respectively did make them so Ph. I grant that But you must grant also that those Spiritual Laws Legislators of the Spiritual Law and yet not all Kings and States make Laws by Consent of the Lords and Commons but our King here is so far bound to their Assents as he shall Judge Conducing to the Good and safety of his People for Example if the Lords and Commons should Advise him to restore those Laws Spiritual which in Queen Maries time were in Force I think the King were by the Law of Reason obliged without the help of any other Law of God to neglect such Advice La. I Grant you that the King is sole Legislator but with this Restriction that if he will not Consult with the Lords of Parliament and hear the Complaints and Informations of the Commons that are best acquainted with their own wants he sinneth against God though he cannot be Compell'd to any thing by his Subjects by Arms and Force Ph. We are Agreed upon that already since therefore the King is sole Legislator I think it also Reason he should be sole Supream Judge La. There is no doubt of that for otherwise there would be no Congruity of Judgments with the Laws I Grant also that he is the Supream Judge over all Persons and in all Causes Civil and Ecclesiastical within his own Dominions not only by Act of Parliament at this time but that he has ever been so by the Common-Law For the Judges of both the Benches have their Offices by the Kings Letters Patents and so as to Judicature have the Bishops Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England and to say all at once there is no Magistrate or Commissioner for Publick Business neither of Judicature nor Execution in State or Church in Peace or War but he is made so by Authority from the King Ph. 'T is true But perhaps you may â—â—ink otherwise when you Read such Acts of Parliament as say that the King shall â—ave Power and Authority to do this or that by Virtue of that Act as Eliz. c. 1. That your Highness your Heirs and Successors Kings or Queens of this Realm shall have â—â—ll Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign c. Was it not this Parliament that gave this Authority to the Queen La. For the Statute in this Clause is no more than as Sir Edw. Coke useth to speak an Affirmance of the Common-Law For she being Head of the Church of England might make Commissioners for the deâ—iding of Matters Ecclesiastical as freely â—s if she had been Pope who did you know pretend his Right from the Law of God Ph. We have hitherto spoken of Laws without considering any thing of the Naâ—ure and Essence of a Law and now unless we define the word Law we can go no â—arther without Ambiguity and Fallacy which will be but loss of time whereas on the contrary the Agreement upon our words will enlighten all we have to say â—hereafter La. I do not remember the Definition of Law in any Statute Ph. I think so For the Statutes were made by Authority and not drawn from any other Principles than the care of the safety of the People Statutes are not Philosophy as is the Common-Law and other disputable Arts but are Commands or Prohibitions which ought to be obeyed because Assented to by Submission made to the Conqueror here in England and to whosoever had the Soveraign Power in other Common wealths so that the Positive Laws of all Places are Statutes The Definition of Law was therefore unnecessary for the makers of Statutes though very necessary to them whose work it is to Teach the sence of the Law La. There is an Accurate Definition of a Law in Bracton Cited by Sir Edw. Coke Lex est sanctio justa jubens honesta prohibens contraria Ph. That is to say Law is a just Statute Commanding those things which are honest and Forbidding the contrary From whence it followeth that in all Cases it must be the Honesty or Dishonesty that makes the Command a Law whereas you know that but for the Law we could not as saith St. Paul have known what is sin therefore this Definition is no Ground at all for any farther Discourse of Law Besides you know the Rule of Honest and Dishonest refers to Honour and that it is Justice only and Injustice that the Law respecteth But that which I most except against in this Definition is that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust There may indeed in a Statute Law made by Men be found Iniquity but not Injustice La. This is somewhat subtil I pray deal plainly what is the difference between Injustice and Iniquity Ph. I pray you tell me first what is the difference between a Court of Justice and a Court of Equity La. A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land and a
Court of Equity in that to which belong such Causes as are to be determined by Equity that is to say by the Law of Reason Ph. You see then that the difference between Injustice and Iniquity is this that Injustice is the Transgression of a Statute-Law and Iniquity the Transgression of the Law of Reason was nothing else but the Law of Reason and that the Judges of that Law are Courts of Justice because the breach of the statute-Statute-Law is Iniquity and Injustice also But perhaps you mean by Common-Law not the Law it self but the manner of proceeding in the Law as to matter of Fact by 12 Men Freeholders though those 12 Men are no Court of Equity nor of Justice because they determine not what is Just or Unjust but only whether it be done or not done and their Judgment is nothing else but a Confirmation of that which is properly the Judgment of the Witnesses for to speak exactly there cannot possibly be any Judge of Fact besides the Witnesses La. How would you have a Law defâ—n'd Ph. Thus A Law is the Command of him or them that have the Soveraign Power given to those that be his or their Subjects declaring Publickly and plainly what every of them may do and what they must forbear to do La. Seeing all Judges in all Courts ought to Judge according to Equity which is the Law of Reason a distinct Court of Equity seemeth to me to be unnecessary and but a Burthen to the People since Common-Law and Equity are the same Law Ph. It were so indeed If Judges could not err but since they may err and that the King is not Bound to any other Law but that of Equity it belongs to him alone to give Remedy to them that by the Ignorance or Corruption of a Judge shall suffer dammage La. By your Definition of a Law the Kings Proclamation under the Great Seal of England is a Law for it is a Command and Publick and of the Soveraign to his Subjects Ph. Why not If he think it necessary for the good of his Subjects For this is a Maxim at the Common-Law Alledged by Sir Edward Coke himself 1 Inst. Sect. 306. Quando Lex aliquid concedit concedere videtur id per quod devenitur ad illud And you know out of the same Author that divers Kings of â—ngland have often to the Petitions in Parliament which they granted annexed such exceptions as these unless there be necessity saving our Regality which I think should be always understood though they be not expressed and are understood so by Common Lawyers who agree that the King may recall any Grant wherein he was deceiv'd La. Again whereas you make it of the Essence of a Law to be Publickly and plainly declar'd to the People I see no necessity for that Are not all Subjects Bound to take notice of all Acts of Parliament when no Act can pass without their Consent Ph. If you had said that no Act could pass without their knowledge then indeed they had been bound to take notice of them but none can have knowledge of them but the Members of the Houses of Parliament therefore the rest of the People are excus'd or else the Knights of the Shires should be bound to furnish People with a sufficient Number of Copies at the Peoples Charge of the Acts of Parliament at their return into the Country that every man may resort to them and by themselves or Friends take notice of what they are obliged to for otherwise it were Impossible they should be obeyed And that no Man is bound to do a thing Impossible is one of Sir Edw. Cokes Maxims at the Common-Law I know that most of the Statutes are Printed but it does not appear that every Man is bound to Buy the Book of Statutes nor to search for them at Westminster or at the Tower nor to understand the Language wherein they are for the most part Written La. I grant it proceeds from their own Faults but no Man can be excused by the Ignorance of the Law of Reason that is to say by Ignorance of the Common-Law except Children Mad-men and Idiots But you exact such a notice of the Statute-Law as is almost Impossible Is it not enough that they in all Places have a sufficient Number of the Poenal Statutes Ph. Yes If they have those Poenal Statutes near them but what Reason can you give me why there should not be as many Copies abroad of the Statutes as there be of the Bible La. I think it were well that every Man that can Read had a Statute-Book for certainly no knowledge of those Laws by which Mens Lives and Fortunes can be brought into danger can be too much I find a great Fault in your Definition of Law which is that every Law either forbiddeth or Commandeth something 'T is true that the Moral-Law is always a Command or a Prohibition or at least Implieth it but in the Levitical-Law where it is said that he that Stealeth a Sheep shall Restore four Fold what Command or Prohibition lyeth in these words Ph. Such Sentences as that are not in themselves General but Judgments nevertheless there is in those words Implied a Commandment to the Judge to cause to be made a Four-fold Restitution La. That 's Right Ph. Now Define what Justice is and what Actions and Men are to be called Just. La. Justice is the constant will of giving to every Man his own that is to say of giving to every Man that which is his Right in such manner as to Exclude the Right of all men else to the same thing A Just Action is that which is not against the Law A Just Man is he that hath a constant Will to live Justly if you require more I doubt there will no Man living be Comprehended within the Definition Ph. Seeing then that a Just Action according to your Definition is that which is not against the Law it is Manifest that before there was a Law there could be no Injustice and therefore Laws are in their Nature Antecedent to Justice and Injustice and you cannot deny but there must be Law-makers before there was any Laws and Consequently before there was any Justice I speak of Humane Justice and that Law-makers were before that which you call Own or property of Goods or Lands distinguished by Meum Tuum Alienum La. That must be Granted for without statute-Statute-Laws all Men have Right to all things and we have had Experience when our Laws were silenced by Civil War there was not a Man that of any Goods could say assuredly they were his own Ph. You see then that no private Man can claim a Propriety in any Lands or other Goods from any Title from any Man but the King or them that have the Soveraign Power because it is in virtue of the Soveraignty that every Man may not enter into and Possess what he pleaseth and consequently to deny the Soveraign any thing necessary to
words in their Letters Patents Constituimus vos Justitiarium nostrum Capitalem ad Placita coram nobis tenenda durante beneplacito nostro That is to say we have made you our Chief-Justice to hold Pleas before our self during our pleasure But this Writ though it be shorter does not at all abridge the power they had by the former And for the Letters Patents for the Chief-Justice of the Common-Pleas they go thus Constituimus dilectum Fidelem c. Capitalem Justitiarium de Communi Banco Habendum c. quamdiu nobis placuerit cum vadiis foedis ab antiquo debitis consuetis Id est We have Constituted our Beloved and Faithful c. Chief-Justice of the Common-Bench To have c. during our pleasure with the ways and Fees thereunto heretofore due and usual Ph. I find in History that there have been in England always a Chancellour and a Chief-Justice of England but of a Court of Common-Pleas there is no mention before Magna Charta Common-Pleas there were ever both here and I think in all Nations for Common-Pleas and Civil-Pleas I take to be the same La. Before the Statute of Magna Charta Common-Pleas as Sir Edw. Coke granteth 2 Inst. p. 21. might have been holden in the Kings-Bench and that Court being removeable at the Kings will the Returns of Writs were Coram Nobis ubicunque fuerimus in Anglia whereby great trouble of Jurors ensued and great charges of the parties and delay of Justice and that for these causes it was Ordain'd that the Common-Pleas should not follow the King but be held in a place certain Ph. Here Sir Edw. Coke declares his Opinion that no Common-Plea can be holden in the Kings-Bench in that he says they might have been holden then And yet this doth not amount to any probable proof that there was any Court of Common-Pleas in England before Magna Charta For this Statute being to ease the Jurors and lessen the Charges of Parties and for the Expedition of Justice had been in Vain if there had been a Court of Common-Pleas then standing for such a Court was not necessarily to follow the King as was the Chancery and the Kings-Bench Besides unless the Kings-Bench wheresoever it was held Plea of civil Causes the Subject had not at all been eased by this Statute For supposing the King at York had not the Kings Subjects about London Jurors and parties as much trouble and charge to go to York as the People about York had before to go to London Therefore I can by no means believe otherwise then that the Erection of the Court of Common-Pleas was the effect of that Statute of Magna Charta Cap. 11. And before that time not existent though I think that for the multiplicity of Suits in a great Kingdom there was need of it La. Perhaps there was not so much need of it as you think For in those times the Laws for the most part were in setling rather than setled and the old Saxon Laws concerning Inheritances were then practised by which Laws speedy Justice was Executed by the Kings Writs in the Courts of Barons which were Landlords to the rest of the Freeholders and Suits of Barons in County-Courts and but few Suits in the Kings Courts but when Justice could not be had in those Inferior Courts but at this day there be more Suits in the Kings Courts than any one Court can dispatch Ph. Why should there be more Suits now than formerly For I believe this Kingdom was as well Peopled then as now La. Sir Edw. Coke 4 Inst. p. 76. assigneth for it six Causes 1. Peace 2. Plenty 3. The Dissolution of Religious Houses and dispersing of their Lands among so many several persons 4. The multitude of Informers 5. The number of Concealers 6. The multitude of Attorneys Ph. I see Sir Edw. Coke has no mind to lay any fault upon the Men of his own Profession and that he Assigns for Causes of the Mischiefs such things as would be Mischief and Wickedness to amend for if Peace and Plenty be the cause of this Evil it cannot be removed but by War and Beggery and the Quarrels arising about the Lands of Religious Persons cannot arise from the Lands but from the doubtfulness of the Laws And for Informers they were Authorised by Statutes to the Execution of which Statutes they are so necessary as that their number cannot be too great and if it be too great the fault is in the Law it self The number of Concealers are indeed a number of Couseners which the Law may easily Correct And lastly for the multitude of Attorneys it is the fault of them that have the power to admit or refuse them For my part I believe that Men at this day have better learn't the Art of Caviling against the words of a Statute than heretofore they had and thereby encourage themselves and others to undertake Suits upon little reason Also the variety and repugnancy of Judgments of Common-Law do oftentimes put Men to hope for Victory in causes whereof in reason they had no ground at all Also the ignorance of what is Equity in their own causes which Equity not one Man in a thousand ever Studied and the Lawyers themselves seek not for their Judgments in their own Breasts but in the precedents of former Judges as the Antient Judges sought the same not in their own Reason but in the Laws of the Empire Another and perhaps the greatest cause of multitude of Suits is this that for want of Registring of conveyances of Land which might easily be done in the Townships where the Lands ly a Purchase cannot easily be had which will not be litigious Lastly I believe the Coveteousness of Lawyers was not so great in Antient time which was full of trouble as they have been since in time of Peace wherein Men have leisure to study fraud and get employment from such Men as can encourage to Contention And how ample a Field they have to exercise this Mystery in is manifest from this that they have a power to Scan and Construe every word in a Statute Charter Feofment Lease or other Deed Evidence or Testimony But to return to the Jurisdiction of this Court of the Kings-Bench where as you say it hath power to correct and amend the Errors of all other Judges both in Process and in Judgments cannot the Judges of the Common-Pleas correct Error in Process in their own Courts without a Writ of Error from another Court La. Yes and there be many Statutes which Command them so to do Ph. When a Writ of Error is brought out of the Kings-Bench be it either Error in Process or in Law at whose Charge is it to be done La. At the Charge of the Clyent Ph. I see no reason for that for the Clyent is not in fault who never begins a Suit but by the advice of his Council Learned in the Law whom he pays for his Council given Is not
nor that any Judgment be given without due Process of Law Ph. This is no unreasonable Petition for the Common-Law is nothing else but Equity And by this Statute it appears that the Chancellors before that Statute made bolder with the Courts of Common Law than they did afterward but it does not appear that Common-Law in this Statute signifies any thing else but generally the Law Temporal of the Realm nor was this Statute ever Printed that such as I might take notice of it but whether it be a Statute or not I know not till you tell me what the Parliament Answer'd to this Petition La. The Kings Answer was the Wages heretofore shall stand so as the Kings Royalty be saved Ph. This is slatly against Sir Edw. Coke concerning the Chancery La. In another Parliament 17 Rich. 2. It is Enacted at the Petition of the Commons That forasmuch as People were Compelled to come before the Kings Council or in Chancery by Writs grounded upon untrue Suggestions that the Chancellor for the time being presently after such Suggestions be duly found and proved untrue shall have power to Ordain and Award Dammages according to his discretion to him which is so Travelled unduly as is aforesaid Ph. By this Statute it appears that when a Complaint is made in Chancery upon undue Suggestions the Chancellor shall have the Examination of the said Suggestions and as he may avoid Dammages when the Suggestions are untrue so he may also proceed by Process to the detemining of the Cause whether it be Real or Personal so it be not Criminal La. Also the Commons Petitioned in a Parliament of 2 Hen. 4. not Printed That no Writs nor Privy-Seals be sued out of Chancery Exchequer or other places to any Man to appear at a day upon a pain either before the King and his Council or in any other place contrary to the ordinary Course of Common-Law Ph. What Answer was given to this Petition by the King La. That such Writs should not be granted without necessity Ph. Here again you see the King may deny or Grant any Petitions in Parliament either as he thinks it necessary as in this place or as he thinks it prejudicial or not prejudicial to his Royalty as in the Answer of the former Petition which is a sufficient proof that no part of his Legislative Power or any other Essential part of Royalty can be taken from him by a Statute Now seeing it is granted that Equity is the same thing with the Law of Reason and seeing Sir Edw. Coke 1 Inst. Sect. 21. Defines Equity to be a certain Reason comprehended in no Writing but consisting only in right Reason which interpreteth and amendeth the Written-Law I would fain know to what end there should be any other Court of Equity at all either before the Chancellor or any other Person besides the Judges of the Civil or Common-Pleas Nay I am sure you can alledge none but this that there was a necessity of a Higher Court of Equity than the Courts of Common-Law to remedy the Errors in Judgment given by the Justices of Inferior Courts and the Errors in Chancery were irrevocable except by Parliament or by special Commission appointed thereunto by the King La. But Sir Edw. Coke says that seeing matters of Fact by the common-Common-Law are Tryable by a Jury of 12 Men this Court should not draw the matter ad aliud Examen i. e. to another kind of Examination viz. by Deposition of Witnesses which should be but evidence to a Jury Ph. To the Deposition of Witnesses any more or less then to evidence to the Lord-Chancellor 'T is not therefore another kind of Examination nor is a Jury more capable of duly examining Witnesses than a Lord-Chancellor Besides seeing all Courts are bound to Judge according to Equity and that all Judges in a Case of Equity may sometimes be deceiv'd what harm is there to any Man or to the State if there be a subordination of Judges in Equity as well as of Judges in Common-Law Seeing it is provided by an Act of parliament to avoid Vexation that Subpoenas shall not be granted till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences if so be the matter may not be made good which is contained in the Bill La. There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words Provided that no matter determinable by the Laws of the Realm shall be by the said Act determined in other Form then after the course of the same Law in the Kings Courts having the Determination of the same Law Ph. This Law was made but for Seven years and never continued by any other Parliament and the motive of this Law was the great Riots Extortions Oppressions c. used during the time of the Insurrection of John Cade and the Indictments and Condemnations wrongfully had by this usurped Authority and thereupon the Parliament Ordained that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal or should refuse to appear upon Proclamation before the Kings Council or in the Chancery to Answer to Riots Extortions c. For the first time he should lose c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery or any other Court but an extraordinary power given to the Chancery and to the Kings Privy-Council to Determine of those Crimes which were not before that time Tryable but only by the Kings-Bench or special Commission For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority to which Act the Proviso was added which is here mention'd that the Proceeds in those Courts of Chancery and of the Kings Council should be such as should be used in the Courts to which the said Courts before this Act was made do belong That is to say such causes as were Criminal should be after the order of the Kings-Bench and such Causes as were not Criminal but only against Equity should be Tryed after the manner of the Chancery or in some cases according to the Proceedings in the Exchequer I wonder why Sir Edw. Coke should cite a Statute as this is above two hundred years before expir'd and other two Petitions as if they were Statutes when they were not passed by the King unless he did it on purpose to diminish as he endeavours to do throughout his Institutes the Kings Authority or to insinuate his own opinions among the People for the Law of the Land For that also he endeavours by Inserting Latin Sentences both in his Text and in the Margin as if they were Principles of the Law of Reason without any Authority of Antient Lawyers or any certainty of Reason in themselves to make Men believe they are the very grounds of the Law of England Now as to the Authority you
Council the Judges La. The Council Inform the Judges Ph. Why may they not as well Inform the Chancellor Unless you will say that a Bishop understands not as well as a Lawyer what is sense when he hears it Read in English No no both the one and the other are able enough but to be able enough is not enough when not the difficulty of the Case only but also the Passion of the Judge is to be Conquer'd I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written or others contained in divers Statutes will come to the Chancery or any for him and thereof make his Complaint he shall presently there have Remedy by force of the said Articles and Statutes without elsewhere pursuing to have Remedy By the words of this Statute it is very apparent in my opinion that the Chancery may hold Plea upon the Complaint of the Party grieved in any Case Tryable at the Common-Law because the party shall have present Remedy in that Court by force of this Act without pursuing for Remedy elsewhere La. Yes but Sir Edw. Coke Answers this Objection 4 Inst. p. 82. in this manner These words says he He shall have Remedy signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law Ph. Very like Sir Edw. Coke thought as soon as the Party had his Writ he had his Remedy though he kept the Writ in his Pocket without pursuing his Complaint elsewhere or else he thought that in the Common-Bench was not elsewhere than in the Chancery La. Then there is the Court of Ph. Let us stop here for this which you have said satisfies me that seek no more than to distinguish between Justice and Equity and from it I Conclude that Justice fulfils the Law and Equity Interprets the Law and amends the Judgments given upon the same Law Wherein I depart not much from the Definition of Equity cited in Sir Edw. Coke 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth and Amendeth the Law Written though I Construe it a little otherwise than he would have done for no one can mend a Law but he that can make it and therefore I say not it amends the Law but the Judgments only when they are Erroneous And now let us Consider of Crimes in particular the Pleas whereof are commonly called the Pleas of the Crown and of the punishments belonging to them and first of the Highest Crime of all which is High Treason Tell me what is High Treason Of Crimes Capital La. THe first Statute that declareth what is High Treason is the Statute of the 25 Edw. 3. in these words Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not the King at the Request of the Lords and of the Commons hath made Declaration in the manner as hereafter follows That is to say when a Man doth Compass or Imagine the Death of our Lord the King of our Lady the Queen or of their Eldest Son and Heir or if a Man doth violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir or if a Man do Levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted by open Deed by People of their Condition And if a Man Counterfeit the Kings Great or Privy-Seal or his Money And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandize and make payment in deceit of our said Lord the King and of his People And if a Man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assises and all other Justices Assigned to Hear and Determine being in their Places and doing their Offices And is to be understood in the Cases above rehearsed that That ought to be adjudged Treason which extends to our Royal Lord the King and his Royal Majesty and of such Treason the Forfeiture of the Escheats pertains to our Lord the King as well the Lands and Tenements holden of others as himself And moreover there is another manner of Treason that is to say when a Servant Slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience and of such Treason the Escheats ought to pertain to every Lord of his own Fee And because many other like Cases of Treason may happen in time to come which a Man cannot think nor declare at this present time it is accorded that if any Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Ph. I desir'd to understand what Treason is wherein no Enumeration of Facts can give me satisfaction Treason is a Crime of it self Malum in se and therefore a Crime at the Common-Law and High Treason the Highest Crime at the Common-Law that can be And therefore not the Statute only but Reason without a Statute makes it a Crime And this appears by the Preamble where it is intimated that all Men though of divers Opinions did Condemn it by the name of Treason though they knew not what Treason meant but were forced to request the King to determine it That which I desire to know is how Treason might have been defined without the Statute by a Man that has no other faculty to make a Definition of it than by meer Natural Reason La. When none of the Lawyers have done it you are not to expect that I should undertake it on such a sudden Ph. You know that Salus Populi is Suprema Lex that is to say the safety of the People is the highest Law and that the safety of the People of a Kingdom consisteth in the safety of the King and of the strength necessary to defend his People both against Forraign Enemies and Rebellious Subjects And from this I infer that to Compass that is to design the Death of the then present King was High Treason before the making of this Statute as being a Designing of a Civil War and the Destruction of the People 2. That the Design to Kill the Kings Wife or to violate her Chastity as also to violate the Chastity of the Kings Heir apparent or of his Eldest Daughter unmarryed as tending to the Destruction of the certainty of
the Kings Issue and by Consequence by raising of Contentions about the Crown and Destruction of the People in Succeeding time by Civil War was therefore High Treason before this Statute 3. That to Levy war against the King within the Realm and Aiding the Kings Enemies either within or without the Realm are tending to the Kings Destruction or Disherison and was High Treason before this Statute by the Common-Law 4. That Counterfeiting the principal Seals of the Kingdom by which the King Governeth his People tendeth to the Confusion of Government and Consequently to the Destruction of the People and was therefore Treason before the Statute 5. If a Souldier design the Killing of his General or other Officer in time of Battel or a Captain Hover doubtfully with his Troops with intention to gain the Favour of him that shall chance to get the Victory it tendeth to the Destruction both of King and People whether the King be present or absent and was High Treason before the Statute 6. If any Man had Imprisoned the Kings Person he had made him incapable of Defending his People and was therefore High Treason before the Statute 7. If any Man had with design to raise Rebellion against the King Written or by words advisedly uttered denyed the King Regnant to be their Lawful King he that wrought Preached or spoke such words living then under the Protection of the Kings Laws it had been High Treason before the Statute for the Reasons aforesaid And perhaps there may be some other Cases upon this Statute which I cannot presently think upon but the Killing of a Justice or other Officer as is determin'd by the Statute is not otherwise High Treason but by the Statute And to distinguish that which is Treason by the common-Common-Law from all other Inferior Crimes we are to Consider that if such High Treason should take effect it would destroy all Laws at once and being done by a Subject 't is a return to Hostility by Treachery and consequently such as are Traytors may by the Law of Reason be dealt withal as Ignoble and Treacherous Enemies but the greatest of other Crimes for the most part are breaches of one only or at least of very few Laws La. Whether this you say be true or false the Law is now unquestionable by a Statute made in 1 and 2 of Queen Mary whereby there is nothing to be esteemed Treason besides those few Offences specially mentioned in the Act of 25 Ed. 3. Ph. Amongst these great Crimes the greatest is that which is Committed by one that has been trusted and loved by him whose Death he so designeth For a Man cannot well take heed of those whom he thinks he hath obliged whereas an open Enemy gives a Man warning before he Acteth And this it is for which the Statute hath declared that it is another kind of Treason when a Servant killeth his Master or Mistress or a Wife killeth her Husband or a Clerk killeth his Prelate and I should think it petty Treason also though it be not within the words of the Statute when a Tenant in Fee that holdeth by Homage and Fealty shall kill the Lord of his Fee for Fealty is an Oath of Allegiance to the Lord of the Fee saving he may not keep his Oath in any thing Sworn to if it be against the King For Homage as it is expressed in a Statute of 17 Edw. 2. is the greatest submission that is possible to be made to one Man by another for the Tenant shall hold his Hands together between the Hands of his Landlord and shall say thus I become your Man from this day forth for Life for Member and for Worldly Honour and shall owe that my Faith for the Lands that I shall hold of you saving the Faith that I owe unto our Soveraign Lord the King and to many other Lords Which Homage if made to the King is Equivalent to a promise of simple obedience and if made to another Lord there is nothing excepted but the Allegiance to the King and that which is called Fealty is but the same Confirmed by an Oath La. But Sir Edw. Coke 4 Inst. p. 11. denies that a Traytor is in Legal understanding the Kings Enemy for Enemies saith he be those that be out of the Allegiance of the King and his Reason is because if a Subject joyn with a Forraign Enemy and come into England with him and be taken Prisoner here he shall not be Ransomed or proceeded with as an Enemy shall but he shall be taken as a Traytor to the King Whereas an Enemy coming in open Hostility and taken shall either be Executed by Martial-Law or Ransomed for he cannot be Indicted of Treason for that he never was in the Protection and Ligeance of the King and the Indictment of the Treason saith Contra Ligeantiam suam debitam Ph. This is not an Argument worthy of the meanest Lawyer Did Sir Edw. Coke think it is possible for a King Lawfully to kill a Man by what Death soever without an Indictment when it is manifestly proved he was his open Enemy Indictment is a form of Accusation peculiar to England by the Command of some King of England and retained still and therefore a Law to this Country of England but if it were not Lawful to put a Man to Death otherwise than by an Indictment no Enemy could be put to Death at all in other Nations because they proceed not as we do by Indictment Again when an open Enemy is taken and put to Death by Judgment of Martial-Law it is not the Law of the General or Council of War that an Enemy shall be thus proceeded with but the Law of the King contained in their Commissions such as from time to time the Kings have thought fit in whose Will it always resteth whether an open Enemy when he is taken shall be put to Death or no and by what Death and whether he shall be Ransomed or no and at what price Then for the Nature of Treason by Rebellion is it not a return to Hostility What else does Rebellion signifie William the Conqueror Subdued this Kingdom some he Killed some upon promise of future obedience he took to Mercy and they became his Subjects and swore Allegiance to him if therefore they renew the War against him are they not again open Enemies or if any of them lurking under his Laws seek occasion thereby to kill him secretly and come to be known may he not be proceeded against as an Enemy who though he had not Committed what he Design'd yet had certainly a Hostile Design Did not the long Parliament declare all those for Enemies to the State that opposed their Proceedings against the late King But Sir Edw. Coke does seldom well distinguish when there are two divers Names for one and the same thing though one contain the other he makes them always different as if it could not be that one and the same Man should be both an Enemy
Doctrine Heresie but Justice Stamford leaves it out because when Heresie was a Crime it was a Plea of the Mitre I see also in this Catalogue of Causes Criminal he inserteth costly Feeding costly Apparel and costly Building though they were contrary to no Statute 'T is true that by evil Circumstances they become sins but these sins belong to the Judgment of the Pastors Spiritual A Justice of the Temporal Law seeing the Intention only makes them sins cannot judge whether they be sins or no unless he have power to take Confessions Also he makes flattery of the King to be a Crime How could he know when one Man had flattered another He meant therefore that it was a Crime to please the King And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned some banished and some put to death by the same Rebels that imprisoned banished and put to death the same King upon no better ground than the Earl of Strafford the Arch-Bishop of Canterbury and King Charles the first by the Rebels of that time Empson and Dudley were no Favourites of Hen. the 7th but Spunges which King Hen. the 8th did well Squeeze Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th but fell into disgrace not for flattering the King but for not flattering him in the business of Divorce from Queen Katharine You see his Reasoning here see also his Passion in the words following We will for some Causes descend no lower Qui eorum vestigiis insistunt eorum exitus perhorrescant this is put in for the Favourite that then was of King James But let us give over this and speak of the legal Punishments to these Crimes belonging Of Punishments ANd in the first place I desire to know who it is that hath the power for an Offence committed to define and appoint the special manner of Punishment for suppose you are not of the Opinion of the Stoicks in old time that all faults are equal and that there ought to be the same Punishment for killing a Man and for killing a Hen. La. The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law That is to say if it be a Statute that determins it then the Judgment must be according to the Statute if it be not specified by the Statute then the Custome in such Cases is to be followed But if the Case be new I know not why the Judge may not determine it according to Reason Ph. But according to whose reason If you mean the natural Reason of this or that Judge authorized by the King to have cognisance of the Cause there being as many several Reasons as there are several Men the punishment of all Crimes will be uncertain and none of them ever grow up to make a Custome Therefore a Punishment certain can never be assigned if it have its beginning from the natural Reasons of deputed Judges no nor from the natural of the Supream Judge For if the Law of Reason did determine Punishments then for the same Offences there should be through all the World and in all times the same Punishments because the Law of Reason is Immutable and Eternal La. If the natural Reason neither of the King nor of any else be able to prescribe a Punishment how can there be any lawful Punishment at all Ph. Why not For I think that in this very difference between the rational Faculties of particular Men lyeth the true and perfect reason that maketh every Punishment certain For but give the authority of defining punishments to any Man whatsoever and let that Man define them and right Reason has defin'd them Suppose the Definition be both made and made known before the Offence committed For such authority is to trump in Card-playing save that in matter of Government when nothing else is turn'd up Clubs are Trump Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason and knoweth what Punishments are by this authority for every evil action ordained it is manifest Reason that for breaking the known Laws he should suffer the known Punishments Now the person to whom this authority of defining Punishments is given can be no other in any place of the World but the same Person that hath the Soveraign Power be it one Man or one assembly of Men For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed for no less power can do it when many Offenders be united and combin'd to defend one another There was a Case put to King David by Nathan of a rich Man that had many Sheep and of a poor Man that had but one which was a tame Lamb The rich Man had a stranger in his House for whose entertainment to spare his own Sheep he took away the poor Mans Lamb. Upon this Case the King gave Judgment surely the Man that hath done this shall die What think you of this Was it a Royal or Tyrannical Judgment La. I will not contradict the Canons of the Church of England which acknowledgeth the King of England within his own Dominions hath the same Rights which the good Kings of Israel had in theirs nor deny King David to have been one of those good Kings But to punish with death without a precedent Law will seem but a harsh proceeding with us who unwillingly hear of Arbitrary Laws much less of Arbitrary Punishments unless we were sure that all our Kings would be as good as David I will only ask you by what Authority the Clergy may take upon them to determine or make a Canon concerning the power of their own King or to distinguish between the Right of a good and an evil King Ph. It is not the Clergy that maketh their Canons to be Law but it is the King that doth it by the Great Seal of England and it is the King that giveth them power to teach their Doctrines in that that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles according to the Scriptures wherein this Doctrine is perspicuously contained But if they had derogated from the Royal Power in any of their Doctrines published then certainly they had been too blame nay I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law I cite not this Precedent of King David as approving the breach of the great Charter or justifying the Punishment with loss of Life or Member of every Man that shall offend the King but to shew you that before the Charter was granted in all Cases where the Punishments were not prescribed it was the King only that could prescribe them
citing of Aristotle and of Homer and of other Books which are commonly read to Gown-men do in my opinion but weaken his Authority for any Man may do it by a Servant but seeing the whole scene of that time is gone and past let us proceed to somewhat else Wherein doth an Act of Oblivion differ from a Parliament-pardon La. This word Act of Oblivion was never in our Law-Books before the 12 Car. 2. c. 11. and I wish it may never come again but from whence it came you may better know perhaps than I. Ph. The first and only Act of Oblivion that ever passed into a Law in any State that I have read of was that Amnestia or Oblivion of all Quarrels between any of the Citizens of Athens at any time before that Act without all exception of Crime or Person The occasion whereof was this The Lacedemonians having totally subdued the Athenians entred into the City of Athens and ordained that the People should choose thirty Men of their own City to have the Soveraign Power over them These being chosen behav'd themselves so outragiously as caused a Sedition in which the Citizens on both sides were daily slain There was then a discreet Person that propounded to each of the parties this proposition that every Man should return to his own and forget all that was past which proposition was made by consent on both sides into a publick Act which for that cause was called an Oblivion Upon the like disorder hapning in Rome by the Murder of Julius Caesar the like Act was propounded by Cicero and indeed passed but was within few days after broken again by Marcus Antonius In imitation of this Act was made the Act of 12 Car. 2. c. 11. La. By this it seems that the Act of Oblivion made by King Charles was no other than a Parliament-pardon because it containeth a great number of exceptions as the other Parliament-pardons do and the Act of Athens did not Ph. But yet there is a difference between the late Act of Oblivion made here and an ordinary Parliament-pardon For concerning a fault pardoned in Parliament by a general word a suit in Law may arise about this whether the offender be signified by the word or not as whether the pardon of all Felonies be a pardon of Piracy or not For you see by Sir Edw. Coke's reports that notwithstanding a pardon of Felony a Sea Felony when he was Attourney General was not pardoned But by the late Act of Oblivion which pardoned all manner of offences committed in the late Civil War no question could arise concerning Crimes excepted First because no Man can by Law accuse another Man of a Fact which by Law is to be forgotten Secondly because all Crimes may be alledged as proceeding from the Licentiousness of the time and from the silence of the Law occasion'd by the Civil War and consequently unless the offenders Person also were excepted or unless the Crime were committed before the War began are within the Pardon La. Truly I think you say right For if nothing had been pardoned but what was done by occasion of the War the raising of the War it self had not been pardoned Ph. I have done with Crimes and Punishments let us come now to the Laws of Meum and Tuum La. We must then examine the Statutes Ph. We must so what they command and forbid but not dispute of their Justice For the Law of Reason commands that every one observe the Law which he hath assented to and obey the Person to whom he hath promised obedience and fidelity Then let us consider next the Commentaries of Sir Edw. Coke upon Magna Charta and other Statutes Ph. For the understanding of Magna Charta it will be very necessary to run up into Antient times as far as History will give us leave and consider not only the Customs of our Ancestors the Saxons but also the Law of nature the most Antient of all Laws concerning the original of Government and acquisition of Property and concerning Courts of Judicature And first it is evident that Dominion Government and Laws are far more Antient than History or any other writing and that the beginning of all Dominion amongst Men was in Families in which first the Father of the Family by the Law of nature was absolute Lord of his Wife and Children Secondly made what Laws amongst them he pleased Thirdly was Judge of all their Controversies Fourthly was not obliged by any Law of Man to follow any Counsel but his own Fifthly What Land soever the Lord sat down upon and made use of for his own and his Families benefit was his Propriety by the Law of First-Possession in case it was void of Inhabitants before or by the Law of War in case they conquer'd it In this Conquest what Enemies they took and saved were their Servants Also such Men as wanting Possessions of Lands but furnished with Arts necessary for Mans life came to dwell in the Family for Protection became their Subjects and submitted themselves to the Laws of the Family And all this is consonant not only to the Law of nature but also to the practice of Mankind set forth in History Sacred and Praphane La. Do you think it lawful for a Lord that is the Soveraign Ruler of his Family to make War upon another like Soveraign Lord and dispossess him of his Lands Ph. It is Lawful or not Lawful according to the intention of him that does it For First being a Soveraign Ruler he is not subject to any Law of Man and as to the Law of God where the intention is justifiable the action is so also The intention may be Lawful in divers Cases by the right of nature one of those Cases is when he is constrained to it by the necessity of subsisting So the Children of Israel besides that their leaders Moses and Joshua had an immediate command from God to dispossess the Canaanites had also a just pretence to do what they did from the right of nature which they had to preserve their lives being unable otherwise to subsist And as their preservation so also is their security a just pretence of invading those whom they have just cause to fear unless sufficient caution be given to take away their fear which Caution for any thing I can yet conceive is utterly impossible Necessity and Security are the principal justifications before God of beginning War Injuries receiv'd justifie a War defensive but for reparable injuries if Reparation be tendred all invasion upon that Title is Iniquity If you need examples either from Scripture or other History concerning this right of nature in making War you are able enough from your own reading to find them out at your leisure La. Whereas you say that the Lands so won by the Soveraign Lord of a Family are his in propriety you deny methinks all property to the Subjects how much soever any of them hath contributed to the Victory Ph. I do