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
I hereby lay any Aspersion upon such Grants of the King and his Ancestors Those Statutes are in themselves very good for the King and People as creating some kind of Difficulty or such Kings as for the Glory of Conquest might spend one part of their Subjects Lives and Estates in Molesting other Nations and leave the rest to Destroy themselves at Home by Factions That which I here find fault with is the wresting of those and other such Statutes to a binding of our Kings from the use of their Armies in the necessary defence of themselves and their People The late long Parliament that in 1648 Murdered their King a King that sought no greater Glory upon Earth but to be indulgent to his People and a Pious defender of the Church of England no sooner took upon them the Soveraign Power then they Levyed Money upon the People at their own Discretion Did any of their Subjects Dispute their Power Did they not send Souldiers over the Sea to Subdue Ireland and others to Fight against the Dutch at Sea or made they any doubt but to be obeyed in all that they Commanded as a Right absolutely due to the Soveraign Power in whomsoever it resides I say not this as allowing their Actions but as a Testimony from the Mouths of those very Men that denyed the same Power to him whom they acknowledged to have been their Soveraign immediately before which is a sufficient Proof that the People of England never doubted of the Kings Right to Levy Money for the Maintenance of his Armies till they were abused in it by Seditious Teachers and other prating Men on purpose to turn the State and Church into Popular Government where the most ignorant and boldest Talkers do commonly obtain the best preferments again when their New Republick returned into Monarchy by Oliver who durst deny him Money upon any pretence of Magna Charta or of these other Acts of Parliament which you have Cited You may therefore think it good Law for all your Books that the King of England may at all times that he thinks in his Conscience it will be necessar for the defence of his People Levy as many Souldiers and as much Money as he please and that himself is Judge of the Necessity La. Is there no body harkning at the door Ph. What are you afraid of La. I mean to say the same that you say but there be very many yet that hold their former Principles whom neither the Calamities of the Civil Wars nor their former Pardon have throughly cur'd of their Madness Ph. The Common People never take notice of what they hear of this Nature but when they are set on by such as they think Wise that is by some sorts of Preachers or some that seem to be Learned in the Laws and withal speak evil of the Governors But what if the King upon the sight or apprehension of any great danger to his People as when their Neighbours are born down with the Current of a Conquering Enemy should think his own People might be involved in the same Misery may he not Levy Pay and Transport Souldiers to help those weak Neighbours by way of prevention to save his own People and himself from Servitude Is that a sin La. First If the War upon our Neighbour be Just it may be question'd whether it be Equity or no to Assist them against the Right Ph. For my part I make no Question of that at all unless the Invader will and can put me in security that neither he nor his Successors shall make any Advantage of the Conquest of my Neighbour to do the same to me in time to come but there is no Common Power to bind them to the Peace La. Secondly when such a thing shall happen the Parliament will not refuse to Contribute freely to the safety of themselves and the whole Nation Ph. It may be so and it may be not For if a Parliament then sit not it must be called that requires 6 Weeks time Debating and Collecting what is given requires as much and in this time the Opportunity perhaps is lost Besides how many wretched Souls have we heard to say in the late Troubles What matter is it who gets the Victory We can pay but what they please to Demand and so much we pay now and this they will Murmur as they have ever done whosoever shall Raign over them as long as their Coveteousness and Ignorance hold together which will be till Dooms-day if better order be not taken for their struction in their Duty both from Reason and Religion La. For all this I find it somewhat hard that a King should have Right to take from his Subjects upon the pretence of Necessity what he pleaseth Ph. I know what it is that troubles your Conscience in this Point All Men are troubled at the Crossing of their Wishes but it is our own fault First we wish Impossibilities we would have our Security against all the World upon Right of Property without Paying for it This is Impossible We may as well Expect that Fish and Fowl should Boil Rost and Dish themselves and come to the Table and that Grapes should squeeze themselves into our Mouths and have all other the Contentments and ease which some pleasant Men have Related of the Land of Cocquam Secondly There is no Nation in the World where he or they that have the Soveraignty do not take what Money they please for Defence of those respective Nations when they think it necessary for their safety The late long Parliament denyed this but why Because there was a Design amongst them to Depose the King Thirdly There is no Example of any King of England that I have Read of that ever pretended any such Necessity for Levying of Money against his Conscience The greatest sounds that ever were Levyed Comparing the value of Money as it was at that time with what now it is were Levied by King Edw. 3d. and King Henry the 5th Kings of whom we Glory now and think their Actions great Ornaments to the English History Lastly As to the enriching of now and then a Favourite it is neither sensible to the Kingdom nor is any Treasure thereby Conveyed out of the Realm but so spent as it falls down again upon the Common People To think that our Condition being Humane should be subject to no Incommodity were Injuriously to Quarrel with God Almighty for our own Faults for he hath done his part in annexing our own Industry and Obedience La. I know not what to say Ph. If you allow this that I have said then say that the People never were shall be or ought to be free from being Taxed at the will of one or other being hindred that if Civil War come they must Levy all they have and that Dearly from the one or from the other or from both sides Say that adhering to the King their Victory is an end of their Trouble that adhering to his
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-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-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-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-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
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-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-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-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
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-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-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-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-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
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-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-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
Kings of those times had not means enough and to spare if God were not their Enemy to defend their People against Forreign Enemies and also to compell them to keep the Peace amongst themselves Ph. And so had had the succeeding Kings if they had never given their rights away and their Subjects always kept their Oaths and promises In what manner proceeded those Ancient Saxons and other Nations of Germany especially the Northern parts to the making of their Laws La. Sir Edw. Coke out of divers Saxon Laws gathered and published in Saxon and Latine by Mr. Lambert inferreth that the Saxon Kings for the making of their Laws called together the Lords and Commons in such manner as is used at this day in England But by those Laws of the Saxons published by Mr. Lambert it appeareth that the Kings called together the Bishops and a great part of the wisest and discreetest Men of the Realm and made Laws by their advice Ph. I think so for there is no King in the World being of ripe years and sound mind that made any Law otherwise for it concerns them in their own interest to make such Laws as the people can endure and may keep them without impatience and live in strength and courage to defend their King and Countrey against their potent neighbours But how was it discerned and by whom was it determined who were those wisest and discreetest Men It is a hard matter to know who is wisest in our times We know well enough who chooseth a Knight of the Shire and what Towns are to send Burgesses to the Parliament therefore if it were determined also in those dayes who those wise Men should be then I confess that the Parliaments of the old Saxons and the Parliaments of England since are the same thing and Sir Edw. Coke is in the right Tell me therefore if you can when those Towns which now send Burgesses to the Parliament began to do so and upon what cause one Town had this priviledge and another Town though much more populous had not La. At what time began this custom I cannot tell but I am sure it is more ancient than the City of Salisbury because there come two Burgesses to Parliament for a place near to it called Old Sarum which as I Rid in sight of it if I should tell a stranger that knew not what the word Burgess meant he would think were a couple of Rabbets the place looketh so like a long Cony-Borough And yet a good Argument may be drawn from thence that the Townsmen of every Town were the Electors of their own Burgesses and Judges of their discretion and that the Law whether they be discreet or not will suppose them to be discreet till the contrary be apparent Therefore where it is said that the King called together the more discreet Men of his Realm it must be understood of such Elections as are now in use By which it is manifest that those great and general Moots assembled by the old Saxon Kings were of the same nature with the Parliaments assembled since the Conquest Ph. I think your reason is good For I cannot conceive how the King or any other but the inhabitants of the Boroughs themselves can take notice of the discretion or sufficiency of those they were to send to the Parliament And for the Antiquity of the Burgess-Towns since it is not mentioned in any History or certain Record now extant it is free for any Man to propound his conjecture You know that this Land was invaded by the Saxons at several times and conquered by pieces in several Wars so that there were in England many Kings at once and every of them had his Parliament and therefore according as there were more or fewer walled Towns within each Kings Dominion his Parliament had the more or fewer Burgesses But when all these lesser Kingdoms were joyned into one then to that one Parliament came Burgesses from all the Burroughs of England And this perhaps may be the reason why there be so many more such Burroughs in the West than in any other part of the Kingdom the West being more populous and also more obnoxious to invaders and for that cause having greater store of Towns Fortified This I think may be the original of that priviledge which some Towns have to send Burgesses to the Parliament and others have not La. The Conjecture is not improbable and for want of greater certainty may be allowed But seeing it is commonly receiv'd that for the making of a Law there ought to be had the assent of the Lords Spiritual and Temporal whom do you account in the Parliaments of the old Saxons for Lords Temporal and whom for Lords Spiritual For the Book called The mode of holding Parliaments agreeth punctually with the manner of holding them at this day and was written as Sir Edw. Coke says in the time of the Saxons and before the Conquest Ph. Mr. Selden a greater Antiquary than Sir Edw. Coke in the last Edition of his Book of Titles of Honour says that that Book called the Mode c. was not written till about the time of Rich. 2. and seems to me to prove it But howsoever that be it is apparent by the Saxon Laws set forth by Mr. Lambert that there were always called to the Parliament certain great Persons called Aldermen alias Earls and so you have a House of Lords and a House of Commons Also you will find in the same place that after the Saxons had received the Faith of Christ those Bishops that were amongst them were always at the great Mootes in which they made their Laws Thus you have a perfect English Parliament saving that the name of Barons was not amongst them as being a French Title which came in with the Conqueror FINIS The King is the Supream Judge
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
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-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
God made Kings for the People and not People for Kings How shall I be defended from the domineering of Proud and Insolent Strangers that speak another Language that scorn us that seek to make us Slaves Or how shall I avoid the Destruction that may arise from the cruelty of Factions in a Civil War unless the King to whom alone you say belongeth the right of Levying and disposing of the Militia by which only it can be prevented have ready Money upon all Occasions to Arm and pay as many Souldiers as for the present defence or the Peace of the People shall be necessary Shall not I and you and every Man be undone Tell me not of a Parliament when there is no Parliament sitting or perhaps none in being which may often happen and when there is a Parliament if the speaking and leading Men should have a design to put down Monarchy as they had in the Parliament which began to sit Nov. 3. 1640. Shall the King who is to answer to God Almighty for the safety of the People and to that end is intrusted with the Power to Levy and dispose of the Souldiery be disabled to perform his Office by virtue of these Acts of Parliament which you have cited If this be reason 't is reason also that the People be Abandoned or left at liberty to kill one another even to the last Man if it be not Reason then you have granted it is not Law La. 'T is true if you mean Recta Ratio but Recta Ratio which I grant to be Law as Sir Edw. Coke says 1 Inst. Sect. 138. Is an Artificial perfection of Reason gotten by long Study Observation and Experience and not every Mans natural Reason for Nemo nascitur Artifex This Legal Reason is summa Ratio and therefore if all the Reason that is dispersed into so many several Heads were united into one yet could he not make such a Law as the Law of England is because by many Successions of Ages it hath been fined and refinâ—d by an infinite number of Grave and Learned Men. And this is it he calls the common-Common-Law Ph. Do you think this to be good Doctrine though it be true that no Man is born with the use of Reason yet all Men may grow up to it as well as Lawyers and when they have applyed their Reason to the Laws which were Laws before they Studyed them or else it was not Law they Studied may be as fit for and capable of Judicature as Sir Edw. Coke himself who whether he had more or less use of Reason was not thereby a Judge but because the King made him so And whereas he says that a Man who should have as much Reason as is dispersed in so many several Heads could not make such a Law as this Law of England is if one should ask him who made the Law of England Would he say a Succession of English Lawyers or Judges made it or rather a Succession of Kings and that upon their own Reason either solely or with the Advice of the Lords and Commons in Parliament without the Judges or other Professors of the Law You see therefore that the Kings Reason be it more or less is that Anima Legis that Summa Lex whereof Sir Edw. Coke speaketh and not the Reason Learning or Wisdom of the Judges but you may see that quite through his Institutes of Law he often takes occasion to Magnifie the Learning of the Lawyers whom he perpetually termeth the Sages of the Parliament or of the Kings Council therefore unless you say otherwise I say that the Kings Reason when it is publickly upon Advice and Deliberation declar'd is that Anima Legis and that Summa Ratio and that Equity which all agree to be the Law of Reason is all that is or ever was Law in England since it became Christian besides the Bible La. Are not the Canons of the Church part of the Law of England as also the Imperial Law used in the Admiralty and the Customs of particular places and the by-by-Laws of Corporations and Courts of Judicature Ph. Why not for they were all Constituted by the Kings of England and though the Civil Law used in the Admiralty were at first the Statutes of the Roman Empire yet because they are in force by no other Authority than that of the King they are now the Kings Laws and the Kings Statutes The same we may say of the Canons such of them as we have retained made by the Church of Rome have been no Law nor of any force in England since the beginning of Queen Elizabeth's Raign but by Virtue of the Great Seal of England La. In the said Statutes that restrain the Levying of Money without consent of Parliament Is there any thing you can take exceptions to Ph. No I am satisfied that the Kings that grant such Liberties are bound to make them good so far as it may be done without sin But if a King find that by such a Grant he be disabled to protect his Subjects if he maintain his Grant he sins and therefore may and ought to take no Notice of the said Grant For such Grants as by Error or false Suggestion are gotten from him are as the Lawyers do Confess Void and of no Effect and ought to be recalled Also the King as is on all hands Confessed hath the Charge lying upon him to Protect his People against Forraign Enemies and to keep the Peace betwixt them within the Kingdom if he do not his utmost endeavour to discharge himself thereof he Committeth a Sin which neither King nor Parliament can Lawfully commit La. No Man I think will deny this For if Levying of Money be necessary it is a Sin in the Parliament to refuse if unnecessary it is a sin both in King and Parliament to Levy But for all that it may be and I think it is a Sin in any one that hath the Soveraign Power be he one Man or one Assembly being intrusted with the safety of a whole Nation if rashly and relying upon his own Natural sufficiency he make War or Peace without Consulting with such as by their Experience and Employment abroad and Intelligence by Letters or other means have gotten the Knowledge in some measure of the strength Advantages and Designs of the Enemy and the Manner and Degree of the Danger that may from thence arise In like manner in case of Rebellion at Home if he Consult not with of Military Condition which if he do then I think he may Lawfully proceed to Subdue all such Enemies and Rebels and that the Souldiers ought to go on without Inquiring whether they be within the Country or without For who shall suppress Rebellion but he that hath Right to Levy Command and Dispose of the Militia The last long Parliament denied this But why Because by the Major part of their Votes the Rebellion was raised with design to put down Monarchy and to that end Maintained Ph. Nor do
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
ascribe to Custome I deny that any Custome of its own Nature can amount to the Authority of a Law For if the Custom be unreasonable you must with all other Lawyers confess that it is no Law but ought to be abolished and if the Custom be reasonable it is not the Custom but the Equity that makes it Law For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal Besides you cannot find in any Statute though Lex Consuetudo be often mentioned as things to be followed by the Judges in their Judgments that Consuetudines that is to say Customs or Usages did imply any Long continuance of former time but that it signified such Use and Custom of proceeding as was then immediately in being before the making of such Statute Nor shall you find in any Statute the word Common-Law which may not be there well Interpreted for any of the Laws of England Temporal for it is not the singularity of Process used in any Court that can distinguish it so as to make it a different Law from the Law of the whole Nation La. If all Courts were as you think Courts of Equity would it not be incommodious to the Common-wealth Ph. I think not unless perhaps you may say that seeing the Judges whether they have many or few causes to be heard before them have but the same wages from the King they may be too much inclin'd to put off the Causes they use to hear for the easing of themselves to some other Court to the delay of Justice and dammage of the Parties suing La. You are very much deceiv'd in that for on contrary the Contention between the Courts for Jurisdiction is of who shall have most Causes brought before them Ph. I cry you Mercy I smelt not that La. Seeing also all Judges ought to give their Sentence according to Equity if it should chance that a Written Law should be against the Law of Reason which is Equity I cannot Imagine in that Case how any Judgment can be Righteous Ph. It cannot be that a Written Law should be against Reason For nothing is more reasonable than that every Man should obey the Law which he hath himself assented to but that is not always the Law which is signified by Grammatical Construction of the Letter but that which the Legislator thereby intended should be in Force which Intention I Confess is a very hard matter many times to pick out of the words of the Statute and requires great Ability of understanding and greater Meditations and Considerations of such Conjuncture of occasions and Incommodities as needed a new Law for a Remedy for there is scarce any thing so clearly written that when the Cause thereof is forgotten may not be wrested by an ignorant Grammarian or a Cavilling Logician to the Injury Oppression or perhaps Destruction of an honest Man And for this Reason the Judges deserve that Honour and Profit they enjoy since the Determination of what particular Causes every particular Court should have Cognizance is a thing not yet sufficiently explained and is in it self so difficult as that the Sages of the Law themselves the Reason Sir Edw. Coke will leave to Law it self are not yet agreed upon it how is it possible for a Man that is no professed or no profound Lawyer to take notice in what Court he may Lawfully begin his Suit or give Council in it to his Client La. I confess that no Man can be bound to take notice of the Jurisdiction of Courts till all the Courts be agreed upon it amongst themselves but what Rule to give Judgment by a Judge can have so as never to contradict the Law written nor displease his Legislator I understand not Ph. I think he may avoid both if he take care by his Sentence that he neither punish an Innocent nor deprive him of his â—ammages due from one that maliciously â—â—eth him without reasonable Cause which â—o the most of Rational Men and unbiassed â—s not in my Opinion very difficult And though a Judge should as all Men may do Erre in his Judgment yet there is always such power in the Laws of England as may content the Parties either in the Chancery or by Commissioners of their own choosing Authorized by the King for every Man â—s bound to acquiesce in the Sentence of the Judges he chooseth La. In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker Ph. Very many whereof Sir Edw. Coke nameth 3 Fraud Accident and Breach of Confidence but there be many more for there be a very great many reasonable Exceptions almost to every General Rule which the makers of the Rule could not foresee and very many words in every Statute especially long ones that are as to Grammar of Ambiguous signification and yet to them that know well to what end the Statute was made perspicuous enough and many Connections of doubtful reference which by a Grammarian may be Cavill'd at though the Intention of the Lawmaker be never so perspicuous And these are the difficulties which the Judges ought to Master and can do it in respect of their Ability for which they are chosen as well as can be hoped for and yet there are other Men can do the same or else the Judges places could not be from time to time supplyed The Bishops commonly are the most able and rational Men and obliged by their profession to Study Equity because it is the Law of God and are therefore capable of being Judges in a Court of Equity They are the Men that teach the People what is Sin that is to say they are the Doctors in Cases of Conscience What reason then can you shew me why it is unfit and hurtful to the Common-wealth that a Bishop should be a Chancellor as they were most often before the time of Hen. 8. and since that time once in the Raign of King James La. But Sir Ed. says that soon after that a Chancellor was made which was no Professor of the Law he finds in the Rolls of the Parliament a grievous Complaint by the whole Body of the Realm and a Petition that the most wise and able Men within the Realm might be chosen Chancellors Ph. That Petition was Reasonable but it does not say which are Abler Men the Judges of the Common Law or the Bishops La. That is not the great Question as to the Ability of a Judge both of one and the other there are Able Men in their own way but when a Judge of Equity has need almost in every Case to consider as well the Statute-Law as the Law of Reason he cannot perform his Office perfectly unless he be also ready in the Statutes Ph. I see no great need he has to be ready in the Statutes in the hearing of a Cause do the Judges of the Common-Law Inform the Council at the Bar what the Statute is or the
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
whatsoever was repugnant to those 4 General Councils For if they had I believe the Anabaptists of which there was great plenty in those times would one time or other have been question'd upon this Article of the Nicene Creed I believe one Baptism for the Remission of sins nor was the Commission it self for a long time after Registred that Men might in such uncertainty take heed and abstain for their better safety from speaking of Religion any thing at all But by what Law was this Heretick Legat burnt I grant he was an Arian and his Heresie contrary to the Determination of the Church of England in the Highest Points of Christianity but seeing there was no statute-Statute-Law to burn him and no Penalty forbidden by what Law by what Authority was he burn't La. That this Legat was accused of Heresie was no fault of the High Commissioners but when he was accused it had been a fault in them not to have examin'd him or having examin'd him and found him an Arian not to have judged him so or not to have certified him so All this they did and this was all that belonged unto them they medled not with his Burning but left him to the Secular Power to do with him what they pleased Ph. Your Justification of the Commissioners is nothing to the Question the Question is by what Law he was burn't the Spiritual-Law gives no Sentence of Temporal Punishment and Sir Edw. Coke confesseth that he could not be burned and Burning forbidden by Statute-Law By what Law then was he burned La. By the Common-Law Ph. What 's that It is not Custom for before the time of Henry the 4th there was no such Custom in England for if there had yet those Laws that came after were but Confirmations of the Customs and therefore the Repealing of those Laws was a Repealing of the Custom For when King Ed. the 6th and Queen Eliz. abolished those Statutes they abolished all Pains and consequently Burning or else they had abolished nothing And if you will say he was burn't by the Law of Reason you must tell me how there can be Proportion between Doctrine and Burning there can be no Equality nor Majority nor Minority Assigned between them The Proportion that is between them is the Proportion of the Mischief which the Doctrine maketh to the Mischief to be Inflicted on the Doctor and this is to be measur'd only by him that hath the charge of Governing the People and consequently the Punishing of Offences can be determined by none but by the King and that if it extend to life or member with the Assent of Parliament La. He does not draw any Argument for it from Reason but alledgeth for it this Judgment executed upon Legat and a story out of Hollingshed and Stow But I know that neither History nor Precedent will pass with you for Law And though there be a Writ de haeretico comburendo in the Register as you may Read in Fitzherbert grounded upon the Statutes of 2 H. 4. cap. 15. and 2 H. 5. cap. 7. yet seeing those Statutes are void you will say the VVrit is also void Ph. Yes indeed will I. Besides this I understand not how that is true that he saith that the Diocesan hath Jurisdiction of Heresie and that so it was put in ure in all Queen Elizabeths Reign whereas by the Statute it is manifest that all Jurisdiction spiritual was given under the Queen to the High Commissioners how then could any one Diocesan have any part thereof without deputation from them which by their Letters Patents they could not grant nor was it reasonable they should For the Trust was not committed to the Bishops only but also to divers Lay-Persons who might have an Eye upon their Proceedings lest they should Incroach upon the power Temporal But at this day there is neither Statute nor any Law to Punish Doctrine but the ordinary Power Ecclesiastical and that according to the Canons of the Church of England only Authorized by the King the High Commission being long since abolished Therefore let us come now to such Causes Criminal as are not Capital Of Praemunire La. THe greatest Offence not Capital is that which is done against the Statute of Provisoes Ph. You have need to expound this La. This Crime is not unlike to that for which a Man is outlawed when he will not come in and submit himself to the Law saving that in Outlawries there is a long Process to precede it and he that is outlawed is put out of the Protection of the Law But for the Offence against the Statute of Provisors which is called Praemunire facias from the words in the Original VVrit if the Offender submit not himself to the Law within the space of 2 Months after notice he is presently an Outlaw And this Punishment if not Capital is equivalent to Capital For he lives secretly at the Mercy of those that know where he is and cannot without the like Peril to themselves but discover him And it has been much disputed before the time of Queen Elizabeth whether he might not be lawfully killed by any Man that would as one might kill a VVolf It is like the Punishment amongst the old Romans of being barred the use of Fire and VVater and like the great Excommunication in the Papacy when a Man might not eat or drink with the Offender without incurring the like Penalty Ph. Certainly the Offence for which this Punishment was first Ordained was some abominable Crime or of extraordinary Mischief La. So it was For the Pope you know from long before the Conquest incroached every day upon the Power Temporal VVhatsoever could be made to seem to be in ordine ad Spiritualia was in every Common-wealth claimed and haled to the Jurisdiction of the Pope And for that end in every Country he had his Court Ecclesiastical and there was scarce any cause Temporal which he could not by one shift or other hook into his Jurisdiction in such sort as to have it tryed in his own Courts at Rome or in France or in England it self By which means the Kings Laws were not regarded Judgments given in the Kings Courts were avoided and presentations to Bishopricks Abbies and other Benefices founded and endowed by the Kings and Nobility of England were bestowed by the Pope upon Strangers or such as with Money in their Purses could travel to Rome to provide themselves of such Benefices And suitably hereunto when there was a Question about a Tythe or a VVill though the point were meerly Temporal yet the Popes Court here would fetch them in or else one of the Parties would appeal to Rome Against these Injuries of the Roman Church and to maintain the Right and Dignity of the Crown of England Ed. 1. made a Statute concerning Provisors that is such as provide themselves with Benefices here from Rome for in the 25th year of his Reign he ordained in a full Parliament that the Right of Election of
Bishops and Right of Advowsans and Presentations belonged to himself and to the Nobility that were the founders of such Bishopricks Abbies and other Benefices And he enacted farther that if any Clerk which he or any of his Subjects should present should be disturbed by any such Provisor that such Provisor or Disturber should be attached by his Body and if Convicted lye in Prison till he were Ransomed at the Kings Will and had satisfied the Party griev'd renouced his Title and sound sureties not to sue for it any farther and that if they could not be found then Exigents should go forth to Outlawrie and the Profits of the Benefice in the mean time be taken into the Kings hands And the same Statute is confirmed in the 27th year of King Ed. the 3d which Statute alloweth to these Provisors six weeks Day to appear but if they appear before they be outlaw'd they shall be received to make Answer but if they render not themselves they shall forfeit all their Lands Goods and Chattels besides that they stand outlaw'd The same Law is confirmed again by 16 Rich. 2d cap. 5. in which is added because these Provisors obtained sometimes from the Pope that such English Bishops as according to the Law were instituted and inducted by the Kings Presentees should be excommunicated that for this also both they and the Receivers and Publishers of such Papal Process and the Procurers should have the same Punishment Ph. Let me see the Statute it self of 27 Ed. 3. La. It lies there before you set down verbatim by Sir Edw. Coke himself both in English and French Ph. 'T is well we are now to consider what it means and whether it be well or ill interpreted by Sir Edw. Coke And first it appeareth by the Preamble which Sir Edw. Coke acknowledgeth to be the best Interpreter of the Statute that this Statute was made against the Incroachments only of the Church of Rome upon the Right of the King and other Patrons to collate Bishopricks and other Benefices within the Realm of England and against the power of the Courts Spiritual to hold Plea of Controversies determinable in any of the Courts of the King or to reverse any Judgment there given as being things that tend to the Disherison of the King and Destruction of the common-Common-Law of the Realm always used Put the case now that a Man had procur'd the Pope to reverse a Decree in Chancery had he been within the danger of Premunire La. Yes certainly or if the Judgment had been given in the Court of the Lord Admiral or in any other Kings Court whatsoever either of Law or Equity for Courts of Equity are most properly Courts of the common-Common-Law of England because Equity and common-Common-Law as Sir Ed. Coke says are all one Ph. Then the word Common-Law is not in this Preamble restrained to such Courts only where the Tryal is by Juries but comprehends all the Kings Temporal Courts if not also the Courts of those Subjects that are Lords of great Mannors La. 'T is very likely yet I think it will not by every Man be granted Ph. The Statute also says That they who draw Men out of the Realm in Plea whereof the Cognizance pertaineth to the Kings Court or of things whereof Judgment is given in the Kings Court are within the Cases of Premunire But what if one Man draw another to Lambeth in Plea whereof Judgment is already given at Westminster Is he by this Clause involv'd in a Premunire La. Yes For though it be not out of the Realm yet it is within the meaning of the Statute because the Popes Court not the Kings Court was then perhaps at Lambeth Ph. But in Sir Edw. Coke's time the Kings Court was at Lambeth and not the Popes La. You know well enough that the Spiritual-Court has no power to hold Pleas of Common-Law Ph. I do so but I know not for what cause any simple Man that mistakes his right Court should be out of the Kings Protection lose his Inheritance and all his Goods Personal and Real and if taken be kept in Prison all his Life This Statute cannot be by Sir Edw. Cokes Torture made to say it Besides such Men are ignorant in what Courts they are to seek their Remedy And it is a Custom confirmed by perpetual usage that such ignorant Men should be guided by their Council at Law It is manifest therefore that the makers of the Statute intended not to prohibit Men from their suing for their Right neither in the Chancery nor in the Admiralty nor in any other Court except the Ecclesiastical Courts which had their Jurisdiction from the Church of Rome Again where the Statute says which do sue in any other Court or defeat a Judgment in the Kings Court what is the meaning of another Court Another Court than what Is it here meant the Kings-Bench or Court of Common-Pleas Does a Premunire lye for every Man that sues in Chancery for that which might be remedied in the Court of Common-Pleas Or can a Premunire lye by this Statute against the Lord Chancellor The Statute lays it only on the Party that sueth not upon the Judge which holdeth the Plea Nor could it be laid neither by this Statute nor by the Statute of 16 Rich. 2. upon the Judges which were then punishable only by the Popes Authority Seeing then the Party Suing has a just excuse upon the Council of his Lawyer and the Temporal Judge and the Lawyer both are out of the Statute the punishment of the Premunire can light upon no body La. But Sir Edw. Coke in this same Chapter bringeth two Precedents to prove that though the Spiritual-Courts in England be now the Kings Courts yet whosoever sueth in them for any thing tryable by the common-Common-Law shall fall into a Premunire One is that whereas in the 22d of Hen. 8. all the Clergy of England in a Convocation by publick Instrument acknowledged the King to be Supream Head of the Church of England yet after this viz. 24 of H. 8. this Statute was in force Ph. Why not A Convocation of the Clergy could not alter the Right of Supremacie their Courts were still the Popes Courts The other Precedent in the 25th of Hen. 8. of the Bishop of Norwich may have the same Answer for the King was not declared Head of the Church by Act of Parliament till the 26th year of his Reign If he had not mistrusted his own Law he would not have laid hold on so weak a Proof as these Precedents And as to the Sentence of Premunire upon the Bishop of Norwich neither doth this Statute nor that other of R. 2. warrant it he was sentenced for threatning to excommunicate a Man which had sued another before the Mayor But this Statute forbids not that but forbids the bringing in or publishing of Excommunications or other Process from Rome or any other Place Before the 26 Hen. 8. there is no Question but that for a
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
are not necessarily knit together 〈◊〉 If Rome be one Fire the Popes Chair is burnâ— And hitherto of the first sort of Fallacie referred to judgment Now followeth the second And they be either those that are referâ—red to a Syllogisme or to Method And they again are General and Special General which are referred to the general properties of a Syllogisme It is either when all the parts are Denyed or are Particular All parts denyed As No Pope is a Devil No man is a Devil Therefore No man is a Pope And this must be answered that it is noâ— according to the definition of a Negativâ— syllogisme which must have always one Affirmative All particular As Some unlawful thing must be suffered 〈◊〉 namely that which cannot be taken away The Stews in some unlawful thing Therefore the Stews must be suffered This is answered by the definition of â— special syllogism which is that hath one part general The special are those which are Simple or Compound The Simple is of two sorts The first is more Plain The second less Plain More plain is when the assumption is denyed or the question is not particular As Every Apostle may Preach abroad Some Apostle is not a Pope Therefore Some Pope may not Preach abroad Also Every Pope is a Lord Some Pope may give an universal licence Therefore every Lord may give an universal licence Less plain hath one fallacy in common when the proposition is special As Some Player is a Rogue Every Vagabond is Rogue Therefore every Player is a Vagabond Also Some Player is a Rogue Every Vagabond is a Player Therefore every Player is a Rogue The fallacie of the first kind is when all the parts be affirmative As All Pauls Bishops were ordained for unity All Arch-Bishops be ordained for unity Therefore all Arch-Bishops are Pauls Bishops The fallacie of the second kind is when the assumption is denyed As Every Puritane is a Christian. No Lord Bishop is a Puritane Therefore no Lord Bishop is a Christian. Hitherto of the fallacies referred to a simple Syllogism Now follow those which are referred to a compound which are those which are referred either to the Connexive or to the disjoyned Of the first sort one is when the first part or antecedent is denyed that the second or consequent may be so likewise As If any Man have two Benefices he may escape unpunished at the Bishops hands But he may not have two Benefices Therefore He may not escape unpunished at the Bishops hands The second part is affirmed that the first may be so also As If every ignorant Minister were put out of the Church and a Preacher in his place we should have good order But we have good order Therefore Every ignorant Minister is put out of the Church and a Preacher in his place Of those referred to the disjoyned the first is when all the parts of the Disjunction or Proposition are not affirmed As Every ignorant Minister is to be allowed or not But he is not Therefore he is The second kind is when the second part of the copulative negative Axiome is denyed that the first may be so As A Non-Resident is either a faithful or unfaithful Minister But he is unfaithful Ergo c. And thus much of the fallacies in a Syllogism The fallacie in Method is when to deceive withal the end is set in the beginning the special before the general good order be gone confounded And finally when darkness length and hardness is laboured after PINIS A DIALOGUE Between A PHYLOSOPHER AND A STVDENT OF The Common-Laws of England Of the Law of Reason Law WHat makes you say that the Study of the Law is less Rational than the study of the Mathematicks Phylosoph I say not that for all study is Rational or nothing worth but I say that the great Masters of the Mathematicks do not so often err as the great Professors of the Law Law If you had applyed your reason to the Law perhaps you would have been of another mind Ph. In whatsoever Study I examine whether my Inference be rational and have look't over the Titles of the Statutes from Magna Charta downward to this present time I left not one unread which I thought might concern my self which was enough for me that meant not to plead for any but my self But I did not much examine which of them was more or less rational because I read them not to dispute but to obey them and saw in all of them sufficient reason for my obedience and that the same reason though the Statutes themselves were chang'd remained constant I have also diligently read over Littleton's Book of Tenures with the Commentaries thereupon of the Renowned Lawyer Sir Ed. Coke in which I confess I found great subtility not of the Law but of Inference from Law and especially from the Law of Humane Nature which is the Law of reason and I confess that it is truth which he sayes in the Epilogue to his Book that by Arguments and Reason in the Law a Man shall sooner come to the certainty and knowledge of the Law and I agree with Sir Edw. Coke who upon that Text farther That Reason is the Soul of the Law and upon sect 138. Nihil quod est Rationi contrarium est licitum that is to say nothing is Law that is against Reason and that Reason is the life of the Law nay the Common Law it self is nothing else but Reason And upon Sect. 21. Aequitas est perfecta quaedam Ratio quae Jus scriptum interpretatur emendat nulla scriptura comprehensa sed solus in vera Ratione consistens i. e. Equity is a certain perfect Reason that interpreteth and amendeth the Law written it self being unwritten and consisting in nothing else but right Reason When I consider this and find it to be true and so evident as not to be denyed by any Man of right sense I find my own reason at a stand for it frustrates all the Laws in the World for upon this ground any Man of any Law whatsoever may say it is against Reason and thereupon make a pretence for his disobedience I pray you clear this passage that we may proceed La. I clear it thus out of Sir Edw. Coke I Inst. Sect. 138. that this is to be understood of an artificial perfection of Reason gotten by long Study Observation and Experience and not of every Mans natural Reason for Nemo nascitur Artifex This Legal Reason is summa Ratio and therefore if all the Reason that is dispersed into so many several heads were united into one yet could he not make such a Law as the Law of England is because by so many successions of Ages it hath been fined and refined by an infinite number of Grave and Learned Men. Ph. This does not clear the place as being partly obscure and partly untrue that the Reason which is the Life of the Law should be not Natural but Artificial I
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-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-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-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-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
Treason or the Judge to pronounce Sentence upon it La. I cannot tell Sir Edw. Coke seems to think it a false Record for hereupon he saith by way of Admonition to the Reader that hereby it appeareth how dangerous it is to Report a Case by the Ear. Ph. True but he does not make it apparent that this Case was untruly Reported but on the contrary confesseth that he had perused the same Record and a Man may if it may be done without Proof of the Falsity make the same Objection to any Record whatsoever For my part seeing this Crime produced the same mischief that ariseth from Counterfeiting I think it reason to understand it as within the Statute And for the Difference between the Punishments which are both of them Capital I thing it is not worthy to be stood upon seeing Death which is Vltimum supplicium is a satisfaction to the Law as Sir Edw. Coke himself hath in another place affirm'd But let us now proceed to other Crimes La. Appendent to this is another Crime called Misprision of Treason which is the Concealing of it by any Man that knows it and it is called Misprision from the French Mespriser which signifies to contemn or undervalue for it is no small Crime in any Subject so little to take to Heart a known danger to the Kings Person and Consequently to the whole Kingdom as not to discover not only what he knows but also what he suspecteth of the same that the Truth therefore may be Examin'd But for such Discovery tho the thing prove false the Discoverer shall not as I think be taken for a false Accuser if for what he directly affirms he produce a reasonable Proof and some probability for his Suspition for else the Concealment will seem justifiable by the Interest which is to every Man allowed in the preservation of himself from pain and dammage Ph. This I consent to La. All other Crimes meerly Temporal are comprehended under Felony or Trespass Ph. What is the meaning of the word Felony Does it signifie any thing that is in its own Nature a Crime or that only which is made a Crime by some Statute for I remember some Statutes that make it Felony to Transport Horses and some other things out of the Kingdom which Transportation before such Statutes made and after the Repealing of the same was no greater Crime than any other usual Traffick of a Merchant La. Sir Edw. Coke derives the word Felony from the Latin word Fel the Gall of a living Creature and accordingly defines Felony to be an Act done Animo Felleo that is to say a Bitter a Cruel Act. Ph. Etymologies are no Definitions and yet when they are true they give much light towards the finding out of a Definition but this of Sir Edw. Coke's carries with it very little of Probability for there be many things made Felony by the Statute-Law that proceed not from any bitterness of mind at all and many that proceed from the contrary La. This is matter for a Critick to be pickt out of the knowledge of History and Forraign Languages and you may perhaps know more of it than I do Ph. All that I or I think any other can say in this matter will amount to no more than a reasonable Conjecture insufficient to sustain any point of Controversie in Law The word is not to be found in any of the old Saxon Laws set forth by Mr. Lambert nor in any Statute Printed before that of Magna Charta there it is found Now Magna Charta was made in the time of Hen. the 3d Grand-Child to Hen. the 2d Duke of Anjou a French-man born and bred in the Heart of France whose Language might very well retain many words of his Ancestors the German-Franks as ours doth of the German-Saxons as also many words of the Language of the Gaules as the Gaules did retain many words of the Greek Colonie planted at Marseilles But certain it is the French Lawyers at this day use the word Felon just as our Lawyers use the same whereas the Common People of France use the word Filou in the same sence but Filou signifieth not the Man that hath committed such an Act as they call Felony but the Man that maketh it his Trade to maintain himself by the breaking and contemning of all Laws generally and comprehendeth all those unruly People called Cheaters Cut-purses Pick-locks Catch-Cloaks Coyners of false Money Forgers Thieves Robbers Murderers and whosoever make use of Iniquity on Land or Sea as a Trading or Living The Greeks upon the Coast of Asia where Homer liv'd were they that Planted the Colony of Marseilles they had a word that signified the same with Felon which was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Filetes and this Filetes of Homer signifies properly the same that a Felon signifies with us And therefore Homer makes Apollo to call Mercury 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Fileteen and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I insist not upon the truth of this Etymologie but it is certainly more rational than the Animus Felleus of Sir Edw. Coke And for the matter it self it is manifest enough that which we now call Murder Robbery Theft and other practices of Felons are the same that we call Felony and Crimes in their own nature without the help of Statute Nor is it the manner of punishment that distinguisheth the nature of one Crime from another but the mind of the Offender and the Mischief he intendeth considered together with the Circumstances of Person Time and Place La. Of Felonies the Crime is Murder Ph. And what is Murder La. Murder is the Killing of a Man upon Malice forethought as by a Weapon or by Poyson or any way if it be done upon Antecedent Meditation or thus Murder is the Killing of a Man in cold Blood Ph. I think there is a good definition of Murder set down by Statute 52 Hen. 3. cap. 25. in these words 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 Sir Edw. Coke Interpreting this Statute 2 Inst. p. 148. saith That the mischief before this Statute was that he that Killed a Man by misfortune as by doing any Act that was not against Law and yet against his Intent if the Death of a Man ensued this was adjudged Murder But I find no Proof that he alledgeth nor find I any such Law amongst the Laws of the Saxons set forth by Mr. Lambert For the word it is as Sir Edw. Coke noteth old Saxon and amongst them it signified no more than a Man slain in the Field or other place the Author of his death not known And according hereunto Bracton who lived in the time of Magna Charta defineth it fol. 134 thus Murder is the secret killing of a Man when none besides the killer and his Companions saw or knew it so that it was not known who did it nor fresh-suit
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-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
so nor do I see any reason to the contrary For the Subjects whether they come into the Family have no title at all to demand any part of the Land or any thing else but security to which also they are bound to contribute their whole strength and if need be their whole fortunes For it cannot be supposed that any one Man can protect all the rest with his own single strength And for the Practice it is manifest in all Conquests the Land of the vanquished is in the sole power of the Victor and at his disposal Did not Joshua and the high-Priest divide the Land of Canaan in such sort among the Tribes of Israel as they pleased Did not the Roman and Graecian Princes and States according to their own discretion send out the Colonies to inhabit such Provinces as they had Conquered Is there at this day among the Turks any inheritor of Land besides the Sultan And was not all the Land in England once in the hands of William the Conqueror Sir Edw. Coke himself confesses it therefore it is an universal truth that all Conquer'd Lands presently after Victory are the Lands of him that Conquer'd them La. But you know that all Soveraigns are said to have a double Capacity viz. a natural Capacity as he is a Man and a a politick Capacity as a King In his politick Capacity I grant you that King William the Conqueror was the proper and only owner once of all the Land in England but not in his natural Capacity Ph. If he had them in his politick Capacity then they were so his own as not to dispose of any part thereof but only to the benefit of his People and that must be either by his own or by the Peoples discretion that is by Act of Parliament But where do you find that the Conqueror disposed of his Lands as he did some to English-men some to French-men and some to Normans to be holden by divers Tenures as Knight-service Soccage c. by Act of Parliament Or that he ever called a Parliament to have the assent of the Lords and Commons of England in disposing of those Lands he had taken from them Or for retaining of such and such Lands in his own hands by the name of Forrests for his own Recreation or Magnificence You have heard perhaps that some Lawyers or other Men reputed wise and good Patriots have given out that all the Lands which the Kings of England have possessed have been given them by the People to the end that they should therewith defray the Charges of their Wars and pay the wages of their Ministers and that those Lands were gained by the Peoples Money for that was pretended in the late Civil War when they took from the King his Town of Kingston upon Hull but I know you do not think that the pretence was just It cannot therefore be denyed but that Land which King William the Conqueror gave away to English-men and others and which they now hold by his Letters Patents and other conveyances were properly and really his own or else the Titles of them that now hold them must be invalid La. I assent As you have shewed me the beginning of Monarchies so let me hear your opinion concerning their growth Ph. Great Monarchies have proceeded from small Families First by War wherein the Victor not only enlarged his Territory but also the number and riches of his Subjects As for other forms of Common-wealths they have been enlarged otherways First by a voluntary conjunction of many Lords of Families into one great Aristocracie Secondly by Rebellion proceeded first Anarchy and from Anarchy proceeded any form that the Calamities of them that lived therein did prompt them to whether it were that they chose an Hereditary King or an elective King for life or that they agreed upon a Council of certain Persons which is Aristocracy or a Council of the whole People to have the Soveraign Power which is Democracy After the first manner which is by War grew up all the greatest Kingdoms in the World viz. the Aegyptian Assyrian Persian and the Macedonian Monarchy and so did the great Kingdoms of England France and Spain The second manner was the original of the Venetian Aristocracy by the third way which is Rebellion grew up in divers great Monarchies perpetually changing from one form to another as in Rome rebellion against Kings produced Democracy upon which the Senate usurped under Sylla and the People again upon the Senate under Marius and the Emperor usurped upon the People under Caesar and his Successors La. Do you think the distinction between natural and politick Capacity is insignificant Ph. No If the Soveraign power be in an assembly of Men that Assembly whether it be Aristocratical or Democratical may possess Lands but it is in their politick Capacity because no natural Man has any right to those Lands or any part of them in the same manner they can command an Act by plurality of Commands but the Command of any one of them is of no effect But when the Soveraign power is in one Man the Natural and Politick Capacity are in the same Person and as to possession of Lands undistinguishable But as to the Acts and Commands they may be well distinguished in this manner Whatsoever a Monarch does Command or do by consent of the People of his Kingdom may properly be said to be done in his politick Capacity and whatsoever he Commands by word of Mouth only or by Letters Signed with his hand or Sealed with any of his private Seals is done in his natural Capacity Nevertheless his publick Commands though they be made in his politick Capacity have their original from his natural Capacity For in the making of Laws which necessarily requires his assent his assent is natural Also those Acts which are done by the King previously to the passing of them under the Great Seal of England either by word of Mouth or warrant under his Signet or privy Seal are done in his natural Capacity but when they have past the Seal of England they are to be taken as done in his politick Capacity La. I think verily your distinction is good For natural Capacity and politick Capacity signifie no more than private and publick right Therefore leaving this argument let us consider in the next place as far as History will permit what were the Laws and Customs of our Ancestors Ph. The Saxons as also all the rest of Germany not Conquer'd by the Roman Emperors nor compelled to use the imperial Laws were a Savage and Heathen People living only by War and Rapine and as some learned Men in the Roman Antiquities affirm had their name of Germans from that their ancient trade of life as if Germans and Hommes de guerre were all one Their rule over their Family Servants and Subjects was absolute their Laws no other than natural Equity written Law they had little or none and very few there were in the time
also if he will And they say true but they have no reason to think he will unless it be for his own profit which cannot be for he loves his own Power and what becomes of his power when his Subjects are destroyed or weakned by whose multitude and strength he enjoyes his power and every one of his Subjects his Fortune And lastly whereas they sometimes say the King is bound not only to cause his Laws to be observ'd but also to observe them himself I think the King causing them to be observ'd is the same thing as observing them himself For I never heard it taken for good Law that the King may be Indicted or Appealed or served with a Writ till the long Parliament practised the contrary upon the good King Charles for which divers of them were Executed and the rest by this our present King pardoned La. Pardoned by the King and Parliament Ph. By the King in Parliament if you will but not by the King and Parliament you cannot deny but that the pardoning of Injury to the Person that is Injur'd Treason and other Offences against the Peace and against the Right of the Soveraign are Injuries done to the King and therefore whosoever is pardoned any such Offence ought to acknowledge he ows his Pardon to the King alone But as to such Murders Felonies and other Injuries as are done to any Subject how mean soever I think it great reason that the parties endammaged ought to have satisfaction before such pardon be allow'd And in the death of a Man where restitution of Life is Impossible what can any Friend Heir or other party that may appeal require more than reasonable satisfaction some other way Perhaps he will be content with nothing but Life for Life but that is Revenge and belongs to God and under God to the King and none else therefore if there be reasonable satisfaction tendred the King without sin I think may pardon him I am sure if the pardoning him be a sin that neither King nor Parliament nor any earthly Power can do it La. You see by this your own Argument that the Act of Oblivion without a Parliament could not have passed because not only the King but also most of the Lords and abundance of Common People had received Injuries which not being pardonable but by their own Assent it was absolutely necessary that it should be done in Parliament and by the assent of the Lords and Commons Ph. I grant it but I pray you tell me now what is the difference between a general Pardon and an Act of Oblivion La. The word Act of Oblivion was never in our Books before but I believe it is in yours Ph. In the State of Athens long ago for the Abolishing of the Civil War there was an Act agreed on that from that time forward no Man should be molested for any thing before that Act done whatsoever without exception which Act the makers of it called an Act of Oblivion not that all Injuries should be forgotten for then we could never have had the story but that they should not rise up in Judgment against any Man And in imitation of this Act the like was propounded though it took no effect upon the death of Julius Caesar in the Senate of Rome By such an Act you may easily conceive that all Accusations for offences past were absolutely dead and buried and yet we have no great reason to think that the objecting one to another of the Injuries pardoned was any violation of those Acts except the same were so expressed in the Act it self La. It seems then that the Act of Oblivion was here no more nor of other nature than a General Pardon Of Courts Ph. SInce you acknowledge that in all controversies the Judicature originally belongeth to the King and seeing that no Man is able in his own person to execute an Office of so much business what order is taken for deciding of so many and so various Controversies La. There be divers sorts of Controversies some of which are concerning Mens Titles to Lands and Goods and some Goods are Corporeal and Lands Money Cattel Corn and the like which may be handled or seen and some Incorporeal as Priviledges Liberties Dignities Offices and many other good things meer Creatures of the Law and cannot be handled or seen And both of these kinds are concerning Meum and Tuum Others there are concerning Crimes punishable divers wayes and amongst some of these part of the punishment is some Fine or Forfeiture to the King and then it is called a Plea of the Crown in case the King sue the party otherwise it is but a private Plea which they call an Appeal And though upon Judgment in an Appeal the King shall have his Forfeiture yet it cannot be called a Plea of the Crown but when the Crown pleadeth for it There be also other Controversies concerning the Government of the Church in order to Religion and virtuous Life The offences both against the Crown and against the Laws of the Church are Crimes but the offences of one Subject against another if they be not against the Crown the King pretendeth nothing in those Pleas but the Reparation of his Subjects injur'd Ph. A Crime is an offence of any kind whatsoever for which a penalty is Ordain'd by the Law of the Land But you must understand that dammages awarded to the party injur'd has nothing common with the nature of a penalty but is meerly a Restitution or satisfaction due to the party griev'd by the Law of Reason and consequently is no more a punishment than is the paying of a Debt La. It seems by this Definition of a Crime you make no difference between a Crime and a sin Ph. All Crimes are indeed Sins but not all Sins Crimes A Sin may be in the thought or secret purpose of a Man of which neither a Judge nor a Witness nor any Man take notice but a Crime is such a Sin as consists in an Action against the Law of which Action he can be Accused and Tryed by a Judge and be Convinced or Cleared by Witnesses Farther that which is no Sin in it self but indifferent may be made Sin by a positive Law As when the Statute was in force that no Man should wear Silk in his Hat after the Statute such wearing of Silk was a Sin which was not so before Nay sometimes an Action that 's good in it self by the Statute Law may be made a Sin as if a Statute should be made to forbid the giving of Alms to a strong and sturdy Beggar such Alms after that Law would be a Sin but not before For then it was Charity the Object whereof is not the strength or other Quality of the poor Man but his Poverty Again he that should have said in Queen Maries time that the Pope had no Authority in England should have been Burnt at a Stake but for saying the same in the time of Queen Elizabeth
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-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