of the Anabaptists and many other La. What Punishment had Arius Ph. At the first for refusing to Subscribe he was deprived and Banished but afterwards having satisfied the Emperor concerning his future Obedience for the Emperor caused his Confession to be made not for the regard of Truth of Doctrine but for the preserving of the Peace especially among his Christian Souldiers by whose valour he had gotten the Empire and by the same was to preserve it he was received again into Grace but dyed before he could repossess his Benefice But after the time of those Councils the Imperial Law made the Punishment for Heresie to be Capital though the manner of the Death was left to the Praefects in their several Jurisdictions and thus it continued till somewhat after the time of the Emperor Frederick Barbarossa and the Papacy having gotten the upper hand of the Emperor brought in the use of Burning both Hereticks and Apostates and the Popes from time to time made Heresie of many other points of Doctrine as they saw it conduce to the setting up of the Chair above the Throne besides those determined in the Nicene Creed and brought in the use of Burning and according to this Papal-Law there was an Apostate Burnt at Oxford in the time of William the Conqueror for turning Jew But of a Heretick Burnt in England there is no mention made till after the Statute of 2 Hen. 4. Whereby some followers of Wiclif called Lollards were afterwards Burned and that for such Doctrines as by the Church of England ever since the first year of Queen El. have been approved for Godly Doctrines and no doubt were Godly then and so you see how many have been Burnt for Godliness La. 'T was not well done but 't is no wonder we read of no Hereticks before the time of H. 4. For in the Preamble to that Statute it is intimated that before those Lollards there never was any Heresie in England Ph. I think so too for we have been the tamest Nation to the Pope of all the World But what Statutes concerning Heresie have there been made since La. The Statute of 2 H. 5. c. 7. which adds to the Burning the Forfeiture of Lands and Goods and then no more till the 25 H. 8. c. 14. which confirms the two former and giveth some new Rules concerning how they shall be Proceeded with But by the Statute of 1 Ed. 6. cap. 12. All Acts of Parliament formerly made to punish any manner of Doctrine concerning Religion are repeal'd For therein it is ordain'd after divers Acts specified that all and every other Act or Acts of Parliament concerning Doctrine or matters of Religion and all and every Branch Article Sentence and Matter Pains and Forfeitures contained mentioned or any wise declared in the same Acts of Parliament or Statutes shall be from henceforth Repealed utterly void and of none effect So that in the time of King Ed. 6. not only all Punishments of Heresie were taken away but also the Nature of it was changed to what Originally it was a Private Opinion Again in 12 Phil. and Ma. those former Statutes of 2 H. 4. cap. 15. 2 H. 5. Cap. 17. 25. H. 8. cap. 14. are Revived and the Branch of 1 Ed. 6. cap. 12. touching Doctrine though not specially named seemeth to be this that the same Statute confirmeth the Statute of 25 Ed. 3. concerning Treasons Lastly in the first year of Queen Eliz. cap. 1. the aforesaid Statutes of Queen Mary are taken away and thereby the Statute of 1 Ed. cap. 12. Revived so as there was no Statute left for the Punishment of Hereticks But Queen Eliz. by the Advice of her Parliament gave a Commission which was called the High-Commission to certain Persons amongst whom were very many of the Bishops to Declare what should be Heresie for the future but with a Restraint that they should Judge nothing to be Heresie but what had been so declared in the first four General Councils Ph. From this which you have shewed me I think we may proceed to the Examination of the Learned Sir Edw. Coke concerning Heresie In his Chapter of Heresie 3 Inst. p. 40. he himself confesseth that no Statute against Heresie stood then in force when in the 9th year of King James Bartholomew Legat was Burnt for Arianism and that from the Authority of the Act of 2 Hen. 4. cap. 15. and other Acts cited in the Margin it may be gather'd that the Diocesan hath the Jurisdiction of Heresie This I say is not true For as to Acts of Parliament it is manifest that from Acts Repealed that is to say from things that have no being there can be gathered nothing And as to the other Authorities in the Margin Fitzherbert and the Doctor and Student they say no more than what was Law in the time when they writ that is when the Popes Usurped Authority was here obeyed But if they had Written this in the time of King Ed. 6. or Queen Elizabeth Sir Edw. Coke might as well have cited his own Authority as theirs for their Opinions had no more the force of Laws than his Then he cites this Precedent of Legat and another of Hammond in the time of Queen Elizabeth but Precedents prove only what was done and not what was well done VVhat Jurisdiction could the Diocesan then have of Heresie when by the Statute of Ed. 6. cap. 12. then in force there was no Heresie and all Punishment for Opinions forbidden For Heresie is a Doctrine contrary to the Determination of the Church but then the Church had not Determined any thing at all concerning Heresie La. But seeing the High Commissioners had Power to Correct and Amend Heresies they must have Power to cite such as were Accused of Heresie to appear before them or else they could not execute their Commission Ph. If they had first made and published a Declaration of what Articles they made Heresie that when one Man heard another speak against their Declaration he might thereof inform the Commissioners then indeed they had had Power to cite and imprison the Person accus'd but before they had known what should be Heresie how was it possible that one Man should accuse another And before he be accused how can he be cited La. Perhaps it was taken for granted that whatsoever was contrary to any of the 4 first General Councils was to be judged Heresie Ph. That granted yet I see not how one Man might accuse another ' ere the better for those Councils For not one Man of ten thousand had ever read them nor were they ever Published in English that a Man might avoid Offending against them nor perhaps are they extant nor if those that we have Printed in Latin are the very Acts of the Councils which is yet much disputed amongst Divines do I think it fit they were put in the Vulgar Tongues But it is not likely that the makers of the Statutes had any purpose to make Heresie of
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
this the fault of his Councellor Nor when a Judge in the Common-Pleas hath given an Erroneous Sentence it is always likely that the Judge of the Kings-Bench will reverse the Judgment though there be no Question but as you may find in Bracton and other Learned Men he has power to do it because being Professors of the same Common-Law they are perswaded for the most part to give the same Judgments For Example if Sir Edw. Coke in the last Terme that he sate Lord-Chief-Justice in the Court of Common-Pleas had given an Erroneous Judgment that when he was removed and made Lord-Chief-Justice of the Kings-Bench would therefore have reversed the said Judgment it is possi he might but not very likely And therefore I do believe there is some other power by the King constituted to reverse Erroneous Judgments both in the Kings-Bench and in the Court of Common-Pleas La. I think not for there is a Statute to the contrary made 4 o Hen. 4. cap. 23. in these words Whereas as well in Plea Real as in Plea Personal after Judgment in the Court of our Lord the King the Parties be made to come upon grievous pain sometimes before the King himself sometimes before the Kings Council and sometimes to the Parliament to answer thereof anew to the great Impoverishing of the Parties aforesaid and to the subversion of the Common-Law of the Land it is ordained and established that after Judgment given in the Court of our Lord the King the Parties and their Heirs shall be there in Peace until the Judgment be undone by Attaint or by Error if there be Error as hath been used by the Laws in the times of the Kings Progenitors Ph. This Statute is so far from being repugnant to that I say as it seemeth to me to have been made expresly to confirm the same For the substance of the Statuâ—e is that there shall be no Suit made by either of the Parties for any thing adjudged either in the Kings-Bench or Court of Common-Pleas before the Judgment be undone by Error or Corruption prov'd and that this was the Common-Law before the making of this Statute which could not be except there were before this Statute some Courts authorised to examine and correct such Errors as by the Plaintiff should be assign'd The inconvenience which by this Statute was to be remedied was this that often Judgment given in the Kings Courts by which are meant in this place the Kings-Bench and Court of Common-Pleas the Party against whom the Judgment was given did begin a new Suit and cause his Adversary to come before the King himself here by the King himself must be understood the King in Person for though in a Writ by the words Coram nobis is understood the Kings-Bench yet in a Statute it is never so nor is it strange seeing in those days the King did usually sit in Court with his Council to hear as sometimes King James and sometimes the same Parties commenced their Suit before the Privy-Council though the King were absent and sometimes before the Parliament the former Judgment yet standing For remedy whereof it was ordained by this Statute that no Man should renew his Suit till the former Judgment was undone by Attaint or Error which Reversing of a Judgment had been impossible if there had been no Court besides the aforesaid two Courts wherein the Errors might be Assigned Examin'd and Judg'd for no Court can be esteemed in Law or Reason a Competent Judge of its own Errors There was therefore before this Statute some other Court existent for the hearing of Errors and Reversing of Erroneous Judgments What Court this was I enquire not yet but I am sure it could not be either the Parliament or the Privy-Council or the Court wherein the Erroneous Judgment was given La. The Doctor and Student discourses of this Statute cap. 18. much otherwise than you do For the Author of that Book saith that against an Erroneous Judgment all Remedy is by this Statute taken away And though neither Reason nor the Office of a King nor any Law positive can prohibit the remedying of any Injury much less of an unjust Sentence yet he shows many Statutes wherein a Mans Conscience ought to prevail above the Law Ph. Upon what ground can he pretend that all Remedy in this case is by this Statute prohibited La. He says it is thereby enacted that Judgment given by the Kings Courts shall not be examin'd in the Chancery Parliament nor elsewhere Ph. Is there any mention of Chancery in this Act It cannot be examin'd before the King and his Council nor before the Parliament but you see that before the Statute it was examin'd somewhere and that this Statute will have it examin'd there again And seeing the Chancery was altogether the highest Office of Judicature in the Kingdom for matter of Equity and that the Chancery is not here forbidden to examine the Judgments of all other Courts at least it is not taken from it by this Statute But what Cases are there in this Chapter of the Doctor and Student by which it can be made probable that when Law and Conscience or Law and Equity seem to oppugne one another the written Law should be preferr'd La. If the Defendant wage his Law in an Action of Debt brought upon a true Debt the Plaintiff hath no means to come to his Debt by way of Compulsion neither by Subpoena nor otherwise and yet the Defendant is bound in Conscience to pay him Ph. Here is no preferring that I see of the Law above Conscience or Equity for the Plaintiff in this case loseth not his Debt for want either of Law or Equity but for want of Proof for neither Law nor Equity can give a Man his Right unless he prove it La. Also if the Grand-Jury in Attaint affirm a false Verdict given by the Petty-Jury there is no farther Remedy but the Conscience of the party Ph. Here again the want of Proof is the want of Remedy for if he can prove that the Verdict given was false the King can give him remedy such way as himself shall think best and ought to do it in case the Party shall find surety if the same Verdict be again affirmed to satisfie his Adversary for the Dammage and Vexation he puts him to La. But there is a Statute made since viz. 27 Eliz. c. 8. by which that Statute of Hen. 4. 23. is in part taken away for by that Statute Erroneous Judgments given in the Kings-Bench are by a Writ of Error to be examin'd in the Exchequer-Chamber before the Justices of the Common-Bench and the Barons of the Exchequer and by the preamble of this Act it appears that Erroneous Judgments are only to be reform'd by the High Court of Parliament Ph. But here is no mention that the Judgments given in the Court of Common-Pleas should be brought in to be examin'd in the Exchequer-Chamber why therefore may not the Court of Chancery
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
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
Enemies there is no end for the War will continue by a perpetual Subdivision and when it ends they will be in the same Estate they were before That they are often Abused by Men who to them seem wise when then their Wisdom is nothing else but Envy to those that are in Grace and in profitable Employments and that those Men do but abuse the Common People to their own ends that set up a private Mans Propriety against the publick Safety But say withal that the King is Subject to the Laws of God both Written and Unwritten and to no other and so was William the Conqueror whose Right it all Descended to our present King La. As to the Law of Reason which is Equity 't is sure enough there is but one Legislator which is God Ph. It followeth then that which you call the Common-Law Distinct from Statute-Law is nothing else but the Law of God La. In some sense it is but it is not Gospel but Natural Reason and Natural Equity Ph. Would you have every Man to every other Man alledge for Law his own particular Reason There is not amongst Men an Universal Reason agreed upon in any Nation besides the Reason of him that hath the Soveraign Power yet though his Reason be but the Reason of one Man yet it is set up to supply the place of that Universal Reason which is expounded to us by our Saviour in the Gospel and consequently our King is to us the Legislator both of Statute-Law and of Common-Law La. Yes I know that the Laws Spiritual which have been Law in this Kingdom since the Abolishing of Popery are the Kings Laws and those also that were made before for the Canons of the Church of Rome were no Laws neither here nor any where else without the Popes Temporal Dominions farther than Kings and States in their several Dominions respectively did make them so Ph. I grant that But you must grant also that those Spiritual Laws Legislators of the Spiritual Law and yet not all Kings and States make Laws by Consent of the Lords and Commons but our King here is so far bound to their Assents as he shall Judge Conducing to the Good and safety of his People for Example if the Lords and Commons should Advise him to restore those Laws Spiritual which in Queen Maries time were in Force I think the King were by the Law of Reason obliged without the help of any other Law of God to neglect such Advice La. I Grant you that the King is sole Legislator but with this Restriction that if he will not Consult with the Lords of Parliament and hear the Complaints and Informations of the Commons that are best acquainted with their own wants he sinneth against God though he cannot be Compell'd to any thing by his Subjects by Arms and Force Ph. We are Agreed upon that already since therefore the King is sole Legislator I think it also Reason he should be sole Supream Judge La. There is no doubt of that for otherwise there would be no Congruity of Judgments with the Laws I Grant also that he is the Supream Judge over all Persons and in all Causes Civil and Ecclesiastical within his own Dominions not only by Act of Parliament at this time but that he has ever been so by the Common-Law For the Judges of both the Benches have their Offices by the Kings Letters Patents and so as to Judicature have the Bishops Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England and to say all at once there is no Magistrate or Commissioner for Publick Business neither of Judicature nor Execution in State or Church in Peace or War but he is made so by Authority from the King Ph. 'T is true But perhaps you may â—â—ink otherwise when you Read such Acts of Parliament as say that the King shall â—ave Power and Authority to do this or that by Virtue of that Act as Eliz. c. 1. That your Highness your Heirs and Successors Kings or Queens of this Realm shall have â—â—ll Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign c. Was it not this Parliament that gave this Authority to the Queen La. For the Statute in this Clause is no more than as Sir Edw. Coke useth to speak an Affirmance of the Common-Law For she being Head of the Church of England might make Commissioners for the deâ—iding of Matters Ecclesiastical as freely â—s if she had been Pope who did you know pretend his Right from the Law of God Ph. We have hitherto spoken of Laws without considering any thing of the Naâ—ure and Essence of a Law and now unless we define the word Law we can go no â—arther without Ambiguity and Fallacy which will be but loss of time whereas on the contrary the Agreement upon our words will enlighten all we have to say â—hereafter La. I do not remember the Definition of Law in any Statute Ph. I think so For the Statutes were made by Authority and not drawn from any other Principles than the care of the safety of the People Statutes are not Philosophy as is the Common-Law and other disputable Arts but are Commands or Prohibitions which ought to be obeyed because Assented to by Submission made to the Conqueror here in England and to whosoever had the Soveraign Power in other Common wealths so that the Positive Laws of all Places are Statutes The Definition of Law was therefore unnecessary for the makers of Statutes though very necessary to them whose work it is to Teach the sence of the Law La. There is an Accurate Definition of a Law in Bracton Cited by Sir Edw. Coke Lex est sanctio justa jubens honesta prohibens contraria Ph. That is to say Law is a just Statute Commanding those things which are honest and Forbidding the contrary From whence it followeth that in all Cases it must be the Honesty or Dishonesty that makes the Command a Law whereas you know that but for the Law we could not as saith St. Paul have known what is sin therefore this Definition is no Ground at all for any farther Discourse of Law Besides you know the Rule of Honest and Dishonest refers to Honour and that it is Justice only and Injustice that the Law respecteth But that which I most except against in this Definition is that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust There may indeed in a Statute Law made by Men be found Iniquity but not Injustice La. This is somewhat subtil I pray deal plainly what is the difference between Injustice and Iniquity Ph. I pray you tell me first what is the difference between a Court of Justice and a Court of Equity La. A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land and a
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-Common-Law Seeing it is provided by an Act of parliament to avoid Vexation that Subpoenas shall not be granted till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences if so be the matter may not be made good which is contained in the Bill La. There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words Provided that no matter determinable by the Laws of the Realm shall be by the said Act determined in other Form then after the course of the same Law in the Kings Courts having the Determination of the same Law Ph. This Law was made but for Seven years and never continued by any other Parliament and the motive of this Law was the great Riots Extortions Oppressions c. used during the time of the Insurrection of John Cade and the Indictments and Condemnations wrongfully had by this usurped Authority and thereupon the Parliament Ordained that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal or should refuse to appear upon Proclamation before the Kings Council or in the Chancery to Answer to Riots Extortions c. For the first time he should lose c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery or any other Court but an extraordinary power given to the Chancery and to the Kings Privy-Council to Determine of those Crimes which were not before that time Tryable but only by the Kings-Bench or special Commission For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority to which Act the Proviso was added which is here mention'd that the Proceeds in those Courts of Chancery and of the Kings Council should be such as should be used in the Courts to which the said Courts before this Act was made do belong That is to say such causes as were Criminal should be after the order of the Kings-Bench and such Causes as were not Criminal but only against Equity should be Tryed after the manner of the Chancery or in some cases according to the Proceedings in the Exchequer I wonder why Sir Edw. Coke should cite a Statute as this is above two hundred years before expir'd and other two Petitions as if they were Statutes when they were not passed by the King unless he did it on purpose to diminish as he endeavours to do throughout his Institutes the Kings Authority or to insinuate his own opinions among the People for the Law of the Land For that also he endeavours by Inserting Latin Sentences both in his Text and in the Margin as if they were Principles of the Law of Reason without any Authority of Antient Lawyers or any certainty of Reason in themselves to make Men believe they are the very grounds of the Law of England Now as to the Authority you
Council the Judges La. The Council Inform the Judges Ph. Why may they not as well Inform the Chancellor Unless you will say that a Bishop understands not as well as a Lawyer what is sense when he hears it Read in English No no both the one and the other are able enough but to be able enough is not enough when not the difficulty of the Case only but also the Passion of the Judge is to be Conquer'd I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written or others contained in divers Statutes will come to the Chancery or any for him and thereof make his Complaint he shall presently there have Remedy by force of the said Articles and Statutes without elsewhere pursuing to have Remedy By the words of this Statute it is very apparent in my opinion that the Chancery may hold Plea upon the Complaint of the Party grieved in any Case Tryable at the common-Common-Law because the party shall have present Remedy in that Court by force of this Act without pursuing for Remedy elsewhere La. Yes but Sir Edw. Coke Answers this Objection 4 Inst. p. 82. in this manner These words says he He shall have Remedy signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law Ph. Very like Sir Edw. Coke thought as soon as the Party had his Writ he had his Remedy though he kept the Writ in his Pocket without pursuing his Complaint elsewhere or else he thought that in the Common-Bench was not elsewhere than in the Chancery La. Then there is the Court of Ph. Let us stop here for this which you have said satisfies me that seek no more than to distinguish between Justice and Equity and from it I Conclude that Justice fulfils the Law and Equity Interprets the Law and amends the Judgments given upon the same Law Wherein I depart not much from the Definition of Equity cited in Sir Edw. Coke 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth and Amendeth the Law Written though I Construe it a little otherwise than he would have done for no one can mend a Law but he that can make it and therefore I say not it amends the Law but the Judgments only when they are Erroneous And now let us Consider of Crimes in particular the Pleas whereof are commonly called the Pleas of the Crown and of the punishments belonging to them and first of the Highest Crime of all which is High Treason Tell me what is High Treason Of Crimes Capital La. THe first Statute that declareth what is High Treason is the Statute of the 25 Edw. 3. in these words Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not the King at the Request of the Lords and of the Commons hath made Declaration in the manner as hereafter follows That is to say when a Man doth Compass or Imagine the Death of our Lord the King of our Lady the Queen or of their Eldest Son and Heir or if a Man doth violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir or if a Man do Levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted by open Deed by People of their Condition And if a Man Counterfeit the Kings Great or Privy-Seal or his Money And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandize and make payment in deceit of our said Lord the King and of his People And if a Man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assises and all other Justices Assigned to Hear and Determine being in their Places and doing their Offices And is to be understood in the Cases above rehearsed that That ought to be adjudged Treason which extends to our Royal Lord the King and his Royal Majesty and of such Treason the Forfeiture of the Escheats pertains to our Lord the King as well the Lands and Tenements holden of others as himself And moreover there is another manner of Treason that is to say when a Servant Slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience and of such Treason the Escheats ought to pertain to every Lord of his own Fee And because many other like Cases of Treason may happen in time to come which a Man cannot think nor declare at this present time it is accorded that if any Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Ph. I desir'd to understand what Treason is wherein no Enumeration of Facts can give me satisfaction Treason is a Crime of it self Malum in se and therefore a Crime at the Common-Law and High Treason the Highest Crime at the Common-Law that can be And therefore not the Statute only but Reason without a Statute makes it a Crime And this appears by the Preamble where it is intimated that all Men though of divers Opinions did Condemn it by the name of Treason though they knew not what Treason meant but were forced to request the King to determine it That which I desire to know is how Treason might have been defined without the Statute by a Man that has no other faculty to make a Definition of it than by meer Natural Reason La. When none of the Lawyers have done it you are not to expect that I should undertake it on such a sudden Ph. You know that Salus Populi is Suprema Lex that is to say the safety of the People is the highest Law and that the safety of the People of a Kingdom consisteth in the safety of the King and of the strength necessary to defend his People both against Forraign Enemies and Rebellious Subjects And from this I infer that to Compass that is to design the Death of the then present King was High Treason before the making of this Statute as being a Designing of a Civil War and the Destruction of the People 2. That the Design to Kill the Kings Wife or to violate her Chastity as also to violate the Chastity of the Kings Heir apparent or of his Eldest Daughter unmarryed as tending to the Destruction of the certainty of
the Kings Issue and by Consequence by raising of Contentions about the Crown and Destruction of the People in Succeeding time by Civil War was therefore High Treason before this Statute 3. That to Levy war against the King within the Realm and Aiding the Kings Enemies either within or without the Realm are tending to the Kings Destruction or Disherison and was High Treason before this Statute by the Common-Law 4. That Counterfeiting the principal Seals of the Kingdom by which the King Governeth his People tendeth to the Confusion of Government and Consequently to the Destruction of the People and was therefore Treason before the Statute 5. If a Souldier design the Killing of his General or other Officer in time of Battel or a Captain Hover doubtfully with his Troops with intention to gain the Favour of him that shall chance to get the Victory it tendeth to the Destruction both of King and People whether the King be present or absent and was High Treason before the Statute 6. If any Man had Imprisoned the Kings Person he had made him incapable of Defending his People and was therefore High Treason before the Statute 7. If any Man had with design to raise Rebellion against the King Written or by words advisedly uttered denyed the King Regnant to be their Lawful King he that wrought Preached or spoke such words living then under the Protection of the Kings Laws it had been High Treason before the Statute for the Reasons aforesaid And perhaps there may be some other Cases upon this Statute which I cannot presently think upon but the Killing of a Justice or other Officer as is determin'd by the Statute is not otherwise High Treason but by the Statute And to distinguish that which is Treason by the Common-Law from all other Inferior Crimes we are to Consider that if such High Treason should take effect it would destroy all Laws at once and being done by a Subject 't is a return to Hostility by Treachery and consequently such as are Traytors may by the Law of Reason be dealt withal as Ignoble and Treacherous Enemies but the greatest of other Crimes for the most part are breaches of one only or at least of very few Laws La. Whether this you say be true or false the Law is now unquestionable by a Statute made in 1 and 2 of Queen Mary whereby there is nothing to be esteemed Treason besides those few Offences specially mentioned in the Act of 25 Ed. 3. Ph. Amongst these great Crimes the greatest is that which is Committed by one that has been trusted and loved by him whose Death he so designeth For a Man cannot well take heed of those whom he thinks he hath obliged whereas an open Enemy gives a Man warning before he Acteth And this it is for which the Statute hath declared that it is another kind of Treason when a Servant killeth his Master or Mistress or a Wife killeth her Husband or a Clerk killeth his Prelate and I should think it petty Treason also though it be not within the words of the Statute when a Tenant in Fee that holdeth by Homage and Fealty shall kill the Lord of his Fee for Fealty is an Oath of Allegiance to the Lord of the Fee saving he may not keep his Oath in any thing Sworn to if it be against the King For Homage as it is expressed in a Statute of 17 Edw. 2. is the greatest submission that is possible to be made to one Man by another for the Tenant shall hold his Hands together between the Hands of his Landlord and shall say thus I become your Man from this day forth for Life for Member and for Worldly Honour and shall owe that my Faith for the Lands that I shall hold of you saving the Faith that I owe unto our Soveraign Lord the King and to many other Lords Which Homage if made to the King is Equivalent to a promise of simple obedience and if made to another Lord there is nothing excepted but the Allegiance to the King and that which is called Fealty is but the same Confirmed by an Oath La. But Sir Edw. Coke 4 Inst. p. 11. denies that a Traytor is in Legal understanding the Kings Enemy for Enemies saith he be those that be out of the Allegiance of the King and his Reason is because if a Subject joyn with a Forraign Enemy and come into England with him and be taken Prisoner here he shall not be Ransomed or proceeded with as an Enemy shall but he shall be taken as a Traytor to the King Whereas an Enemy coming in open Hostility and taken shall either be Executed by Martial-Law or Ransomed for he cannot be Indicted of Treason for that he never was in the Protection and Ligeance of the King and the Indictment of the Treason saith Contra Ligeantiam suam debitam Ph. This is not an Argument worthy of the meanest Lawyer Did Sir Edw. Coke think it is possible for a King Lawfully to kill a Man by what Death soever without an Indictment when it is manifestly proved he was his open Enemy Indictment is a form of Accusation peculiar to England by the Command of some King of England and retained still and therefore a Law to this Country of England but if it were not Lawful to put a Man to Death otherwise than by an Indictment no Enemy could be put to Death at all in other Nations because they proceed not as we do by Indictment Again when an open Enemy is taken and put to Death by Judgment of Martial-Law it is not the Law of the General or Council of War that an Enemy shall be thus proceeded with but the Law of the King contained in their Commissions such as from time to time the Kings have thought fit in whose Will it always resteth whether an open Enemy when he is taken shall be put to Death or no and by what Death and whether he shall be Ransomed or no and at what price Then for the Nature of Treason by Rebellion is it not a return to Hostility What else does Rebellion signifie William the Conqueror Subdued this Kingdom some he Killed some upon promise of future obedience he took to Mercy and they became his Subjects and swore Allegiance to him if therefore they renew the War against him are they not again open Enemies or if any of them lurking under his Laws seek occasion thereby to kill him secretly and come to be known may he not be proceeded against as an Enemy who though he had not Committed what he Design'd yet had certainly a Hostile Design Did not the long Parliament declare all those for Enemies to the State that opposed their Proceedings against the late King But Sir Edw. Coke does seldom well distinguish when there are two divers Names for one and the same thing though one contain the other he makes them always different as if it could not be that one and the same Man should be both an Enemy
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
Punished with Death And therefore to distinguish them aright is the work of Reason only And the first difference which is obvious to all Men is that Robbery is committed by Force or Terror of which neither is in Theft for Theft is a secret Act and that which is taken by violence or Terror either from his Person or in his Presence is still Robbery but if it be taken secretly whether it be by day or night from his Person or from his Fold or from his Pasture then it is called Theft 'T is Force and Fraud only that distinguisheth between Theft and Robbery both which are by the Pravity only of the Intention Felony in their Nature But there be so many Evasions of the Law found out by evil Men that I know not in this Predicament of Felony how to place them For suppose I go secretly by day or night into another Mans Field of Wheat Ripe and standing and Loading my Cart with it I carry it away Is it Theft or Robbery La. Neither it is but Trespass But if you first lay down the Wheat you have cut and then throw it into your Cart and carry it away then it is Felony Ph. Why so La. Sir Edw. Coke tells you the Reason of it 4 Inst. p. 107. for he defineth Theft to be by the Common-Law a Felonious and fraudulent taking and carrying away by any Man or Woman of the meer Personal Goods of another not from the Person nor by night in the House of the owner From this Definition he Argues thus p. 109. Any kind of Corn or Grain growing upon the ground is a Personal Chattel and the Executors of the owner shall have them though they be not severed but yet no Larceny can be Committed of them because they are annexed to the Realty So it is of Grass standing on the Ground or of Apples or of any Fruit upon the Trees c. So it is of a Box or Chest of Charters no Larceny can be committed of them because the Charters concern the Realty and the Box or Chest though it be of great value yet shall it be of the same nature the Charters are of Omne magis dignum trahit ad se minus Ph. Is this Definition drawn out of any Statute or is it in Bracton or Littleton or any other Writer upon the Science of the Laws La. No it is his own and you may observe by the Logick-Sentences dispersed through his Works that he was a Logician sufficient enough to make a Definition Ph. But if his Definitions must be the Rule of Law what is there that he may not make Felony or not Felony at his Pleasure But seeing it is not Statute-Law that he says it must be very perfect Reason or else no Law at all and to me it seems so far from Reason as I think it ridiculous But let us Examine it There can says he be no Larceny of Corn Grass or Fruits that are growing that is to say they cannot be stolen but why Because they concern the Realty that is because they concern the Land 'T is true that the Land cannot be stolen nor the right of a Mans Tenure but Corn and Trees and Fruit though growing may be cut down and carryed away secretly and Feloniously in Contempt and Despight of the Law And are they not then stolen And is there any Act which is Feloniously committed that is not more than Trespass Can any Man doubt of it that understands the English Tongue 'T is true that if a Man pretend a right to the Land and on that pretence take the Fruits thereof by way of taking Possession of his own it is no more than a Trespass unless he conceal the taking of them for in that one Case he but puts the Man that was in Possession before to exhibit his complaint which purpose is not Felonious but Lawful for nothing makes a distinction between Felony and not Felony but the purpose I have heard that if a Man slander another with stealing of a Tree standing there lies no Action for it and that upon this ground To steal a standing Tree is impossible and that the Cause of the Impossibility is that a Man's Free-hold cannot be stolen which is a very obvious Fallacy for Free-hold signifieth not only the Tenement but also the Tenure and though it be true that a Tenure cannot be stolen yet every man sees the standing Trees and Corn may easily be stolen and so far forth as Trees c. are part of the Freehold so far forth also they are Personal Goods for whatsoever is Freehold is Inheritance and descendeth to the Heir and nothing can descend to the Executors but what is meerly Personal And though a Box or Case of Evidences are to descend to the Heir yet unless you can shew me positive Law to the contrary they shall be taken into the Executors hands to be delivered to the Heir Besides how unconscionable a thing is it that he that steals a shillings worth of Wood which the Wind hath blown down or which lyeth Rotten on the ground should be Hang'd for it and he that takes a Tree worth 20 or 40 shillings should Answer only for the Dammage La. 'T is somewhat hard but it has been so practised time out of mind Then follows Sodomy and Rape both of them Felonies Ph. I know that and that of the former he justly says it is detestable being in a manner an Apostacie from Humane Nature But in neither of them is there any thing of Animus Felleus The Statutes which make them Felony are exposed to all Mens reading but because Sir Edw. Coke's Commentaries upon them are more diligent and Accurate than to be free from all uncleanness let us leap over them both observing only by the way that he leaves an Evasion for an impotent Offender though his design be the same and pursued to the utmost of his Power La. Two other great Felonies are breaking and Burning of Houses neither of which are defin'd by any Statute The former of them is by Sir Edw. Coke 4 Inst. p. 63. Defined thus Burglary is by the Common-Law the Breaking and Entring into the Mansion-house of another in the night with intent to kill some reasonable Creature or to commit some other Felony within the same whether his intent be executed or not and defineth Night to be then when one Man cannot know anothers Face by day-light And for the parts of a Mansion-house he reckoneth all Houses that belong to Housekeeping as Barns Stables Dary-Houses Buttery Kitchin Chambers c. But breaking of a House by day though Felony and Punished as Burglary is not within the Statute Ph. I have nothing to say against his Interpretations here but I like not that any private Man should presume to determine whether such or such a Fact done be within the words of a Statute or not where it belongs only to a Jury of 12 Men to declare in their Verdict whether the Fact laid
citing of Aristotle and of Homer and of other Books which are commonly read to Gown-men do in my opinion but weaken his Authority for any Man may do it by a Servant but seeing the whole scene of that time is gone and past let us proceed to somewhat else Wherein doth an Act of Oblivion differ from a Parliament-pardon La. This word Act of Oblivion was never in our Law-Books before the 12 Car. 2. c. 11. and I wish it may never come again but from whence it came you may better know perhaps than I. Ph. The first and only Act of Oblivion that ever passed into a Law in any State that I have read of was that Amnestia or Oblivion of all Quarrels between any of the Citizens of Athens at any time before that Act without all exception of Crime or Person The occasion whereof was this The Lacedemonians having totally subdued the Athenians entred into the City of Athens and ordained that the People should choose thirty Men of their own City to have the Soveraign Power over them These being chosen behav'd themselves so outragiously as caused a Sedition in which the Citizens on both sides were daily slain There was then a discreet Person that propounded to each of the parties this proposition that every Man should return to his own and forget all that was past which proposition was made by consent on both sides into a publick Act which for that cause was called an Oblivion Upon the like disorder hapning in Rome by the Murder of Julius Caesar the like Act was propounded by Cicero and indeed passed but was within few days after broken again by Marcus Antonius In imitation of this Act was made the Act of 12 Car. 2. c. 11. La. By this it seems that the Act of Oblivion made by King Charles was no other than a Parliament-pardon because it containeth a great number of exceptions as the other Parliament-pardons do and the Act of Athens did not Ph. But yet there is a difference between the late Act of Oblivion made here and an ordinary Parliament-pardon For concerning a fault pardoned in Parliament by a general word a suit in Law may arise about this whether the offender be signified by the word or not as whether the pardon of all Felonies be a pardon of Piracy or not For you see by Sir Edw. Coke's reports that notwithstanding a pardon of Felony a Sea Felony when he was Attourney General was not pardoned But by the late Act of Oblivion which pardoned all manner of offences committed in the late Civil War no question could arise concerning Crimes excepted First because no Man can by Law accuse another Man of a Fact which by Law is to be forgotten Secondly because all Crimes may be alledged as proceeding from the Licentiousness of the time and from the silence of the Law occasion'd by the Civil War and consequently unless the offenders Person also were excepted or unless the Crime were committed before the War began are within the Pardon La. Truly I think you say right For if nothing had been pardoned but what was done by occasion of the War the raising of the War it self had not been pardoned Ph. I have done with Crimes and Punishments let us come now to the Laws of Meum and Tuum La. We must then examine the Statutes Ph. We must so what they command and forbid but not dispute of their Justice For the Law of Reason commands that every one observe the Law which he hath assented to and obey the Person to whom he hath promised obedience and fidelity Then let us consider next the Commentaries of Sir Edw. Coke upon Magna Charta and other Statutes Ph. For the understanding of Magna Charta it will be very necessary to run up into Antient times as far as History will give us leave and consider not only the Customs of our Ancestors the Saxons but also the Law of nature the most Antient of all Laws concerning the original of Government and acquisition of Property and concerning Courts of Judicature And first it is evident that Dominion Government and Laws are far more Antient than History or any other writing and that the beginning of all Dominion amongst Men was in Families in which first the Father of the Family by the Law of nature was absolute Lord of his Wife and Children Secondly made what Laws amongst them he pleased Thirdly was Judge of all their Controversies Fourthly was not obliged by any Law of Man to follow any Counsel but his own Fifthly What Land soever the Lord sat down upon and made use of for his own and his Families benefit was his Propriety by the Law of First-Possession in case it was void of Inhabitants before or by the Law of War in case they conquer'd it In this Conquest what Enemies they took and saved were their Servants Also such Men as wanting Possessions of Lands but furnished with Arts necessary for Mans life came to dwell in the Family for Protection became their Subjects and submitted themselves to the Laws of the Family And all this is consonant not only to the Law of nature but also to the practice of Mankind set forth in History Sacred and Praphane La. Do you think it lawful for a Lord that is the Soveraign Ruler of his Family to make War upon another like Soveraign Lord and dispossess him of his Lands Ph. It is Lawful or not Lawful according to the intention of him that does it For First being a Soveraign Ruler he is not subject to any Law of Man and as to the Law of God where the intention is justifiable the action is so also The intention may be Lawful in divers Cases by the right of nature one of those Cases is when he is constrained to it by the necessity of subsisting So the Children of Israel besides that their leaders Moses and Joshua had an immediate command from God to dispossess the Canaanites had also a just pretence to do what they did from the right of nature which they had to preserve their lives being unable otherwise to subsist And as their preservation so also is their security a just pretence of invading those whom they have just cause to fear unless sufficient caution be given to take away their fear which Caution for any thing I can yet conceive is utterly impossible Necessity and Security are the principal justifications before God of beginning War Injuries receiv'd justifie a War defensive but for reparable injuries if Reparation be tendred all invasion upon that Title is Iniquity If you need examples either from Scripture or other History concerning this right of nature in making War you are able enough from your own reading to find them out at your leisure La. Whereas you say that the Lands so won by the Soveraign Lord of a Family are his in propriety you deny methinks all property to the Subjects how much soever any of them hath contributed to the Victory Ph. I do
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