it and breaks his Neck but by the same chance saveth his own Life Sir Edw. Coke it seems will have him Hanged for it as if he had fallen of prepensed Malice All that can be called Crime in this Business is but a simple Trespass to the dammage perhaps of sixpence or a shilling I confess the Trespass was an Offence against the Law but the falling was none nor was it by the Trespass but by the falling that the Man was slain and as he ought to be quit of the killing so he ought to make Restitution for the Trespass But I believe the Cause of Sir Edw. Coke's mistake was his not well understanding of Bracton whom he cites in the Margin For 1206 he saith thus Sed hic erit distinguendum utrum quis dederit operam rei licitae vel illicitae si illicitae ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere vel dum insequitur equum vel bovem aliquis ab equo vel a bove percussus fuerit hujusmodi hoc imputatur ei i. e. But here we are to distinguish whether a Man be upon a Lawful or Unlawful business if an unlawful as he that throws a stone into a place where Men use to pass or if he chase a Horse or an Ox and thereby the Man be stricken by the Horse or the Ox this shall be imputed to him And it is most reasonable For the doing of such an unlawful Act as is here meant is a sufficient Argument of a Felonious purpose or at least a hope to kill some body or other and he cared not whom which is worse than to design the death of a certain Adversary which nevertheless is Murder Also on the contrary though the business a Man is doing be Lawful and it chanceth sometimes that a Man be slain thereby yet may such killing be Felony For if a Car-man drive his Cart through Cheapside in a throng of People and thereby he kill a Man though he bare him no Malice yet because he saw there was very great danger it may reasonably be inferr'd that he meant to adventure the killing of some body or other though not of him that was kill'd La. He is a Felon also that killeth himself voluntarily and is called not only by Common Lawyers but also in divers Statute-Laws Felo de se. Ph. And 't is well so For names imposed by Statutes are equivalent to Definitions but I conceive not how any Man can bear Animum felleum or so much Malice towards himself as to hurt himself voluntarily much less to kill himself for naturally and necessarily the Intention of every Man aimeth at somewhat which is good to himself and tendeth to his preservation And therefore methinks if he kill himself it is to be presumed that he is not compos mentis but by some inward Torment or Apprehension of somewhat worse than Death Distracted La. Nay unless he be compos mentis he is not Felo de se as Sir Edw. Coke saith 4 Inst. p. 54. and therefore he cannot be Judged a Felo de se unless it be first proved he was compos mentis Ph. How can that be proved of a Man dead especially if it cannot be proved by any Witness that a little before his death he spake as other men used to do This is a hard place and before you take it for Common-Law it had need to be clear'd La. I 'le think on 't There 's a Statute of 3 Hen. 7. c. 14. which makes it Felony in any of the Kings Houshold-Servants under the degree of a Lord to Compass the Death of any of the Kings Privy-Council The words are these That from henceforth the Steward Treasurer and Controuler of the Kings House for that time being or one of them have full Authority and Power to inquire by 12 sad Men and discreet Persons of the Chequer-Roll of the King 's Honourable Houshold If any Servant admitted to his Servant Sworn and his name put into the Chequer-Roll whatsoever he be serving in any manner Office or Room reputed had or taken under the State of a Lord make any Confederacies Compassings Conspiracies or Imaginations with any Person to Destroy or Murder the King or any Lord of this Realm or any other Person sworn to the Kings Council Steward Treasurer or Controuler of the Kings House And if such Misdoers shall be found Guilty by Confession or otherwise that the said Offence shall be Judged Felony Ph. It appears by this Statute that not only the Compassing the Death as you say of a Privy-Councellor but also of any Lord of this Realm is Felony if it be done by Any of the Kings Houshold Servants that is not a Lord. La. No Sir Edw. Coke upon these words any Lord of this Realm or other Person Sworn of the Kings Council infers 4 Inst. p. 38. that is to be understood of such a Lord only as is a Privy-Councellor Ph. For barring of the Lords of Parliament from this Priviledge he strains this Statute a little farther in my Opinion than it reacheth of it self But how are such Felonies to be Tryed La. The Indictment is to be found before the Steward Treasurer and Controuler of the Kings House or one of them by 12 of the Kings Houshold Servants The Petit Jury for the Tryal must be 12 other of the Kings Servants and the Judges are again the Steward Treasurer and Controuler of the Kings House or 2 of them and yet I see that these Men are not usually great Students of the Law Ph. You may hereby be assur'd that either the King and Parliament were very much overseen in choosing such Officers perpetually for the time being to be Judges in a Tryal at the Common-Law or else that Sir Edw. Coke presumes too much to appropriate all the Judicature both in Law and Equity to the Common-Lawyers as if neither Lay-Persons Men of Honour nor any of the Lords Spiritual who are the most versed in the Examination of Equity and Cases of Conscience when they hear the Statutes Read and Pleaded were unfit to Judge of the intention and meaning of the same I know that neither such great Persons nor Bishops have ordinarily so much spare time from their ordinary Employment as to be so skilful as to Plead Causes at the Bar but certainly they are especially the Bishops the best able to Judge of matters of Reason that is to say by Sir Edw. Coke's Confession of matters except of Blood at the Common-Law La. Another sort of Felony though without Man-slaughter is Robbery and by Sir Edw. Coke 4 Inst. p. 68. defined thus Robbery by the Common-Law is a Felony committed by a violent Assault upon the Person of another by putting him in fear and taking away from him his Money or other Goods of any value whatsoever Ph. Robbery is not distinguished from Theft by any Statute Latrocinium comprehendeth them both and both are Felony and both
King after the report of the Judge heard give the Sheriff command to do it Fourthly that the general verdict of the King hinders not the King but that he may Judge of it upon the special matter for it often happens that an ill-disposed Person provokes a Man with words or otherwise on purpose to make him draw his Sword that he may kill him and pretend it done in his own defence which appearing the King may without any offence to God punish him as the cause shall require Lastly contrary to the Doctrine of Sir Edw. Coke he may in his own Person be Judge in the case and annul the Verdict of the Jury which a deputed Judge cannot do La. There be some cases wherein a Man though by the Jury he be found not Guilty shall nevertheless forfeit his Goods and Chattells to the King For example a Man is slain and one A. hating B. giveth out that it was B. that slew him B. hearing thereof fearing if he be tryed for it that through the great power of A. and others that seek his hurt he should be condemned flieth and afterwards is taken and tryed and upon sufficient evidence is by the Jury found Not Guilty yet because he fled he shall forfeit his Goods and Chattels notwithstanding there be no such Judgment given by the Judge nor appointed by any Statute but the Law it self authoriseth the Sheriff to seize them to the use of the King Ph. I see no reason which is Common-Law for it and am sure it is grounded upon no Statute La. See Sir Edw. Coke Inst. 1. Sect. 709. and read Ph. If a Man that is Innocent be accus'd of Felony and for fear flieth for the same albeit that he be judicially acquitted of the Felony yet if it be found that he fled for the same he shall notwithstanding his Innocence forfeit all his Goods and Chattells Debts and Duties O unchristian and abominable Doctrine which also he in his own words following contradicteth For saith he as to the forfeiture of them the Law will admit no proof against the presumption of the Law grounded upon his flight and so it is in many other cases But that the general Rule is Quod stabitur praesumptioni donec probetur in contrarium but you see it hath many exceptions This general Rule contradicts what he said before for there can be no exceptions to a general Rule in Law that is not expresly made an exception by some Statute and to a general Rule of equity there can be no exception at all From the power of Punishing let us proceed to the power of Pardoning La. Touching the power of Pardoning Sir Edw. Coke says 3 Inst. p. 236. That no Man shall obtain Charter of pardon out of Parliament and cites for it the Statute of 2 Ed. 3. cap. 2. and says farther that accordingly in a Parliament Roll it is said that for the peace of the Land it would help that no pardon were granted but by Parliament Ph. What lawful power would he have left to the King that thus disableth him to practice Mercy In the Statute which he citeth to prove that the King ought not to grant Charters of Pardon but in Parliament there are no such words as any Man may see for that Statute is in Print and that which he says is in the Parliament Roll is but a wish of he tells not whom and not a Law and 't is strange that a private wish should be inroll'd amongst Acts of Parliament If a Man do you an injury to whom think you belongeth the Right of pardoning it La. Doubtless to me alone if to me alone be done that injury and to the King alone if to him alone be done the injury and to both together if the injury be done to both Ph. What part then has any Man in the granting of a pardon but the King and the party wrong'd if you offend no Member of either House why should you ask their pardon It is possible that a Man may deserve a pardon or he may be such a one sometimes as the defence of the Kingdom hath need of may not the King pardon him though there be no Parliament then sitting Sir Edw. Coke's Law is too general in this point and I believe if he had thought on 't he would have excepted some Persons if not all the Kings Children and his Heir apparent and yet they are all his Subjects and subject to the Law as other Men. La. But if the King shall grant pardons of Murder and Felony of his own head there would be very little safety for any Man either out of his House or in it either by Night or by Day And for that very cause there have been many good Statutes provided which forbid the Justices to allow of such pardons as do not specially name the Crime Ph. Those Statutes I confess are reasonable and very profitable which forbid the Judge to pardon Murders but what Statute is there that forbids the King to do it There is a Statute of 13 Rich. 2. c. 1. wherein the King promiseth not to pardon Murder but there is in it a clause for the saving of the Kings Regality From which may be inferr'd that the King did not grant away that power when he thought good to use it for the Common-wealth Such Statutes are not Laws to the King but to his Judges and though the Judges be commanded by the King not to allow pardons in many cases yet if the King by writing command the Judges to allow them they ought to do it I think if the King think in his conscience it be for the good of the Common-wealth he sinneth not in it but I hold not that the King may pardon him without sin if any other Man be damnified by the Crime committed unless he cause reparation to be made as far as the party offending can do it And howsoever be it sin or not sin there is no power in England that may resist him or speak evil of him lawfully La. Sir Edw. Coke denies not that and upon that ground it is that the King he says may pardon high Treason for there can be no high Treason but against the King Ph. That 's well therefore he confesseth that whatsoever the offence be the King may pardon so much of it as is an injury to himself and that by his own right without breach of any Law positive or natural or of any grant if his Conscience tell him that it be not to the dammage of the Common-wealth and you know that to judge of what is good or evil to the Common-wealth belongeth to the King only Now tell me what it is which is said to be pardoned La. What can it be but only the offence If a Man hath done a Murder and be pardoned for the same is it not the Murder that is pardoned Ph. Nay by your favour if a Man be pardoned for Murder or any other offence it is the Man that is
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-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
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