cannot conceive I understand well enough that the knowledge of the Law is gotten by much study as all other Sciences are which when they are studyed and obtained it is still done by Natural and not by Artificial Reason I grant you that the knowledge of the Law is an Art but not that any Art of one Man or of many how wise soever they be or the work of one and more Artificers how perfect soever it be is Law It is not Wisdom but Authority that makes a Law Obscure also are the words Legal Reason there is no Reason in Earthly Creatures but Humane Reason but I suppose that he means that the Reason of a Judge or of all the Judges together without the King is that Summa Ratio and the very Law which I deny because none can make a Law but he that hath the Legislative Power That the Law hath been fined by Grave and Learned Men meaning the Professors of the Law is manifestly untrue for all the Laws of England have been made by the Kings of England consulting with the Nobility and Commons in Parliament of which not one of twenty was a Learned Lawyer Law You speak of the Statute Law and I speak of the Common Law Ph. I speak generally of Law La. Thus far I agree with you that Statute Law taken away there would not be left either here or any where any Law at all that would conduce to the Peace of a Nation yet Equity and Reason which Laws Divine and Eternal which oblige all Men at all times and in all places would still remain but be Obeyed by few and though the breach of them be not punished in this World yet they will be punished sufficiently in the World to come Sir Edw. Coke for drawing to the Men of his own Profession as much Authority as lawfully he might is not to be reprehended but to the gravity and Learning of the Judges they ought to have added in the making of Laws the Authority of the King which hath the Soveraignty for of these Laws of Reason every Subject that is in his Wits is bound to take notice at his Peril because Reason is part of his Nature which he continually carryes about with him and may read it if he will Ph. 'T is very true and upon this ground if I pretend within a Month or two to make my self able to perform the Office of a Judge you are not to think it Arrogance for you are to allow to me as well as to other Men my pretence to Reason which is the Common Law remember this that I may not need again to put you in mind that Reason is the Common Law and for Statute Law seeing it is Printed and that there be Indexes to point me to every matter contained in them I think a Man may profit in them very much in two Months Law But you will be but an ill Pleader Ph. A Pleader commonly thinks he ought to say all he can for the Benefit of his Client and therefore has need of a faculty to wrest the sense of words from their true meaning and the faculty of Rhetorick to seduce the Jury and sometimes the Judge also and many other Arts which I neither have nor intend to study La. But let the Judge how good soever he thinks his Reasoning take heed that he depart not too much from the Letter of the Statute for it is not without danger Ph. He may without danger recede from the Letter if he do not from the meaning and sense of the Law which may be by a Learned Man such as Judges commonly are easily found out by the Preamble the time when it was made and the Incommodities for which it was made but I pray tell me to what end were Statute-Laws ordained seeing the Law of Reason ought to be applyed to every Controversie that can arise La. You are not ignorant of the force of an irregular Appetite to Riches to Power and to sensual Pleasures how it Masters the strongest Reason and is the root of Disobedience Slaughter Fraud Hypocrisie and all manner of evil habits and that the Laws of Man though they can punish the fruits of them which are evil Actions yet they cannot pluck up the roots that are in the Heart How can a Man be Indicted of Avarice Envy Hypocrisie or other vitious Habit till it be declared by some Action which a Witness may take notice of the root remaining new fruit will come forth till you be weary of punishing and at last destroy all Power that shall oppose it Ph. What hope then is there of a constant Peace in any Nation or between one Nation and another La. You are not to expect such a Peace between two Nations because there is no Common Power in this World to punish their Injustice mutual fear may keep them quiet for a time but upon every visible advantage they will invade one another and the most visible advantage is then when the one Nation is obedient to their King and the other not but Peace at home may then be expected durable when the common people shall be made to see the benefit they shall receive by their Obedience and Adhaesion to their own Soveraign and the harm they must suffer by taking part with them who by promises of Reformation or change of Government deceive them And this is properly to be done by Divines and from Arguments not only from Reason but also from the Holy Scripture Ph. This that you say is true but not very much to that I aim at by your Conversation which is to inform my self concerning the Laws of England therefore I ask you again what is the end of Statute-Laws Of Soveraign Power La. I say then that the scope of all Humane Law is Peace and Justice in every Nation amongst themselves and defence against Forraign Enemies Ph. But what is Justice La. Justice is giving to every Man his own Ph. The Definition is good and yet 't is Aristotles what is the Definition agreed upon as a Principle in the Science of the Common Law La. The same with that of Aristotle Ph. See you Lawyers how much you are beholding to a Philosopher and 't is but reason for the more General and Noble Science and Law of all the World is true Philosophy of which the Common Law of England is a very little part La. 'T is so if you mean by Philosophy nothing but the Study of Reason as I think you do Ph. When you say that Justice gives to every Man his own what mean you by his own How can that be given me which is my own already or if it be not my own how can Justice make it mine La. Without Law every thing is in such sort every Mans as he may take possess and enjoy without wrong to any Man every thing Lands Beasts Fruits and even the bodies of other Men if his Reason tell him he cannot otherwise live securely for the dictates of Reason are
that is of what is Good or Evil to each sort of Common-wealth in special The Government of a Common-wealth is either Democracy or Aristocracy or Oligarchy or Monarchy Democracy is that wherein all men with equal right are preferred to the highest Magistracy by Lot Aristocracy is that wherein the highest Magistrate is chosen out of those that had the best education according to what the Laws prescribe for best Oligarchy is that where the highest Magistrate is chosen for wealth Monarchy is that wherein one man hath the Government of all which Government if he limit it by Law is called Kingdom if by his own will Tyranny The end of Democracy or the Peoples Government is Liberty The end of Oligarchy is the Riches of those that Govern The end of Aristocracy is good Laws and good ordering of the City The end of Monarchy or Kings is the safety of the People and conservation of his own Authority Good therefore in each sort of Government is that which conduceth to these their ends And because belief is not gotten only by proofs but also from manners the manners of each sort of Commonwealth ought to be well understood by him that undertaketh to perswade or diswade in matter of State Their manners may be known by their designs and their designs by their ends and their ends by what we see them take pleasure in But of this more accurately in the Politicks CHAP. IX Of the Colours of Honourable and Dishonourable IN a Demonstrative Oration the subject whereof is Praise or Dispraise the proofs are to be drawn from the Elements of Honourable and Dishonourable In this place we anticipate the second way of getting belief which is from the manners of the Speaker For Praise whether it come in as the principal business or upon the by depends still upon the same Principles Which are these Honourable is that which we love for it self and is withal laudable And that Good which pleaseth us only because 't is Good And Vertue Vertue is the faculty of getting and preserving that which is Good and the faculty of doing many and great things well The kinds of it are these 1. Justice which is a Vertue whereby every man obtains what by Law is his 2. Fortitude which is a Vertue by which a man carries himself Honourably and according to the Laws in time of danger 3. Temperance which is a Vertue whereby a man Governs himself in matter of pleasure according to the Law 4. Liberality which is a Vertue by which we benefit others in matter of money 5. Magnanimity which is a Vertue by which a man is apt to do great benefits 6. Magnificence which is a Vertue by which a man is apt to be at great cost 7. Prudence which is an Intellectual Vertue by which a man is able to deliberate well concerning any Good leading to Felicity And Honourable are the Causes and effects of things Honourable And the Works of Vertue And the signs of Vertue And those actions the reward whereof is Honor. And the reward whereof is rather Honor than Money And that which we do not for our own sakes And what we do for our Countries good neglecting our own And those things are Honourable which good of themselves are not so to the Owner And those things which happen to the dead rather than to the living And what we do for other men especially for Benefactors And bestowing of Benefits And the contrary of those things we are ashamed of And those things which men strive for earnestly but without fear of Adversary And of the more Honourable and better men the Vertues are more Honourable And more Honourable are the vertues that tend to other mens benefit than those which tend to ones own And Honourable are those things which are Just. And Revenge is Honourable And Victory And Honour And Monuments And those things which happen not ot the living And things that excell And what none can do but we And Possessions we reap no profit by And those things which are had in honour particularly in several places And the signs of praise And to have nothing of the servile mercenary or Mechanick And that which seems Honourable Namely such as follow Vices confining upon Vertue And the extreams of Vertues And what the Auditors think Honourable And that which is in estimation And that which is done according to custom Besides in a Demonstrative Oration the Orator must shew that he whom he praiseth did what he praiseth unconstrainedly and willingly And he does so who does the same often Praise is speech declaring the magnitude of a Vertue Action or Work But to praise the Work from the Vertue of the Worker is a circular proof To Magnifie and to Praise differ in themselves as Felicity and Vertue For Praise declares a mans Vertue and Magnifying declares his Felicity Praise is a kind of inverted Precept For to say Do it because 't is good is a Precept But to say He is good because he did it is Praise An Orator in Praising must also use the forms of Amplification such as these He was the first that did it The only man that did it The special man that did it He did it with disadvantage of time He did it with little help He was the cause that the Law ordained Rewards and Honours for such Actions Further he that will praise a Man must compare him with others and his actions with the actions of others especially with such as are renowned And Amplification is more proper to a Demonstrative Oration than to any other For here the Actions are confess'd and the Orators part is only this to contribute unto them Magnitude and Luster CHAP. X. Of Accusation and Defence with the Definition of Injury IN a Judicial Oration which consists in Accusation and Defence the thing to be proved is that Injury has been done and the heads from whence the proofs are to be drawn are these three 1. The causes that move to Injury 2. The Persons apt to do Injury 3. The Persons obnoxious or apt to suffer Injury An Injury is a voluntary offending of another man contrary to the Law Voluntary is that which a man does with knowledg and without compulsion The causes of Voluntary Actions are Intemperance and a Vicious disposition concerning things Desirable As the Covetous man does against the Law out of an intemperate desire of Money All Actions proceed either from the doers disposition or not Those that proceed not from the Doers disposition are such as he does by Chance by Compulsion or by Natural necessity Those that proceed from the Doers disposition are such as he does by Custom or upon Premeditation or in Anger or out of Intemperance By Chance are said to be done those things whereof neither the Cause nor the Scope is evident and which are done neither orderly nor always nor most commonly after the same manner By Nature are said to be done those things the Causes whereof are in
God made Kings for the People and not People for Kings How shall I be defended from the domineering of Proud and Insolent Strangers that speak another Language that scorn us that seek to make us Slaves Or how shall I avoid the Destruction that may arise from the cruelty of Factions in a Civil War unless the King to whom alone you say belongeth the right of Levying and disposing of the Militia by which only it can be prevented have ready Money upon all Occasions to Arm and pay as many Souldiers as for the present defence or the Peace of the People shall be necessary Shall not I and you and every Man be undone Tell me not of a Parliament when there is no Parliament sitting or perhaps none in being which may often happen and when there is a Parliament if the speaking and leading Men should have a design to put down Monarchy as they had in the Parliament which began to sit Nov. 3. 1640. Shall the King who is to answer to God Almighty for the safety of the People and to that end is intrusted with the Power to Levy and dispose of the Souldiery be disabled to perform his Office by virtue of these Acts of Parliament which you have cited If this be reason 't is reason also that the People be Abandoned or left at liberty to kill one another even to the last Man if it be not Reason then you have granted it is not Law La. 'T is true if you mean Recta Ratio but Recta Ratio which I grant to be Law as Sir Edw. Coke says 1 Inst. Sect. 138. Is an Artificial perfection of Reason gotten by long Study Observation and Experience and not every Mans natural Reason for Nemo nascitur Artifex This Legal Reason is summa Ratio and therefore if all the Reason that is dispersed into so many several Heads were united into one yet could he not make such a Law as the Law of England is because by many Successions of Ages it hath been fined and refinâ—d by an infinite number of Grave and Learned Men. And this is it he calls the Common-Law Ph. Do you think this to be good Doctrine though it be true that no Man is born with the use of Reason yet all Men may grow up to it as well as Lawyers and when they have applyed their Reason to the Laws which were Laws before they Studyed them or else it was not Law they Studied may be as fit for and capable of Judicature as Sir Edw. Coke himself who whether he had more or less use of Reason was not thereby a Judge but because the King made him so And whereas he says that a Man who should have as much Reason as is dispersed in so many several Heads could not make such a Law as this Law of England is if one should ask him who made the Law of England Would he say a Succession of English Lawyers or Judges made it or rather a Succession of Kings and that upon their own Reason either solely or with the Advice of the Lords and Commons in Parliament without the Judges or other Professors of the Law You see therefore that the Kings Reason be it more or less is that Anima Legis that Summa Lex whereof Sir Edw. Coke speaketh and not the Reason Learning or Wisdom of the Judges but you may see that quite through his Institutes of Law he often takes occasion to Magnifie the Learning of the Lawyers whom he perpetually termeth the Sages of the Parliament or of the Kings Council therefore unless you say otherwise I say that the Kings Reason when it is publickly upon Advice and Deliberation declar'd is that Anima Legis and that Summa Ratio and that Equity which all agree to be the Law of Reason is all that is or ever was Law in England since it became Christian besides the Bible La. Are not the Canons of the Church part of the Law of England as also the Imperial Law used in the Admiralty and the Customs of particular places and the by-by-Laws of Corporations and Courts of Judicature Ph. Why not for they were all Constituted by the Kings of England and though the Civil Law used in the Admiralty were at first the Statutes of the Roman Empire yet because they are in force by no other Authority than that of the King they are now the Kings Laws and the Kings Statutes The same we may say of the Canons such of them as we have retained made by the Church of Rome have been no Law nor of any force in England since the beginning of Queen Elizabeth's Raign but by Virtue of the Great Seal of England La. In the said Statutes that restrain the Levying of Money without consent of Parliament Is there any thing you can take exceptions to Ph. No I am satisfied that the Kings that grant such Liberties are bound to make them good so far as it may be done without sin But if a King find that by such a Grant he be disabled to protect his Subjects if he maintain his Grant he sins and therefore may and ought to take no Notice of the said Grant For such Grants as by Error or false Suggestion are gotten from him are as the Lawyers do Confess Void and of no Effect and ought to be recalled Also the King as is on all hands Confessed hath the Charge lying upon him to Protect his People against Forraign Enemies and to keep the Peace betwixt them within the Kingdom if he do not his utmost endeavour to discharge himself thereof he Committeth a Sin which neither King nor Parliament can Lawfully commit La. No Man I think will deny this For if Levying of Money be necessary it is a Sin in the Parliament to refuse if unnecessary it is a sin both in King and Parliament to Levy But for all that it may be and I think it is a Sin in any one that hath the Soveraign Power be he one Man or one Assembly being intrusted with the safety of a whole Nation if rashly and relying upon his own Natural sufficiency he make War or Peace without Consulting with such as by their Experience and Employment abroad and Intelligence by Letters or other means have gotten the Knowledge in some measure of the strength Advantages and Designs of the Enemy and the Manner and Degree of the Danger that may from thence arise In like manner in case of Rebellion at Home if he Consult not with of Military Condition which if he do then I think he may Lawfully proceed to Subdue all such Enemies and Rebels and that the Souldiers ought to go on without Inquiring whether they be within the Country or without For who shall suppress Rebellion but he that hath Right to Levy Command and Dispose of the Militia The last long Parliament denied this But why Because by the Major part of their Votes the Rebellion was raised with design to put down Monarchy and to that end Maintained Ph. Nor do
nor that any Judgment be given without due Process of Law Ph. This is no unreasonable Petition for the Common-Law is nothing else but Equity And by this Statute it appears that the Chancellors before that Statute made bolder with the Courts of Common Law than they did afterward but it does not appear that Common-Law in this Statute signifies any thing else but generally the Law Temporal of the Realm nor was this Statute ever Printed that such as I might take notice of it but whether it be a Statute or not I know not till you tell me what the Parliament Answer'd to this Petition La. The Kings Answer was the Wages heretofore shall stand so as the Kings Royalty be saved Ph. This is slatly against Sir Edw. Coke concerning the Chancery La. In another Parliament 17 Rich. 2. It is Enacted at the Petition of the Commons That forasmuch as People were Compelled to come before the Kings Council or in Chancery by Writs grounded upon untrue Suggestions that the Chancellor for the time being presently after such Suggestions be duly found and proved untrue shall have power to Ordain and Award Dammages according to his discretion to him which is so Travelled unduly as is aforesaid Ph. By this Statute it appears that when a Complaint is made in Chancery upon undue Suggestions the Chancellor shall have the Examination of the said Suggestions and as he may avoid Dammages when the Suggestions are untrue so he may also proceed by Process to the detemining of the Cause whether it be Real or Personal so it be not Criminal La. Also the Commons Petitioned in a Parliament of 2 Hen. 4. not Printed That no Writs nor Privy-Seals be sued out of Chancery Exchequer or other places to any Man to appear at a day upon a pain either before the King and his Council or in any other place contrary to the ordinary Course of Common-Law Ph. What Answer was given to this Petition by the King La. That such Writs should not be granted without necessity Ph. Here again you see the King may deny or Grant any Petitions in Parliament either as he thinks it necessary as in this place or as he thinks it prejudicial or not prejudicial to his Royalty as in the Answer of the former Petition which is a sufficient proof that no part of his Legislative Power or any other Essential part of Royalty can be taken from him by a Statute Now seeing it is granted that Equity is the same thing with the Law of Reason and seeing Sir Edw. Coke 1 Inst. Sect. 21. Defines Equity to be a certain Reason comprehended in no Writing but consisting only in right Reason which interpreteth and amendeth the Written-Law I would fain know to what end there should be any other Court of Equity at all either before the Chancellor or any other Person besides the Judges of the Civil or Common-Pleas Nay I am sure you can alledge none but this that there was a necessity of a Higher Court of Equity than the Courts of Common-Law to remedy the Errors in Judgment given by the Justices of Inferior Courts and the Errors in Chancery were irrevocable except by Parliament or by special Commission appointed thereunto by the King La. But Sir Edw. Coke says that seeing matters of Fact by the Common-Law are Tryable by a Jury of 12 Men this Court should not draw the matter ad aliud Examen i. e. to another kind of Examination viz. by Deposition of Witnesses which should be but evidence to a Jury Ph. To the Deposition of Witnesses any more or less then to evidence to the Lord-Chancellor 'T is not therefore another kind of Examination nor is a Jury more capable of duly examining Witnesses than a Lord-Chancellor Besides seeing all Courts are bound to Judge according to Equity and that all Judges in a Case of Equity may sometimes be deceiv'd what harm is there to any Man or to the State if there be a subordination of Judges in Equity as well as of Judges in Common-Law Seeing it is provided by an Act of parliament to avoid Vexation that Subpoenas shall not be granted till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences if so be the matter may not be made good which is contained in the Bill La. There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words Provided that no matter determinable by the Laws of the Realm shall be by the said Act determined in other Form then after the course of the same Law in the Kings Courts having the Determination of the same Law Ph. This Law was made but for Seven years and never continued by any other Parliament and the motive of this Law was the great Riots Extortions Oppressions c. used during the time of the Insurrection of John Cade and the Indictments and Condemnations wrongfully had by this usurped Authority and thereupon the Parliament Ordained that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal or should refuse to appear upon Proclamation before the Kings Council or in the Chancery to Answer to Riots Extortions c. For the first time he should lose c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery or any other Court but an extraordinary power given to the Chancery and to the Kings Privy-Council to Determine of those Crimes which were not before that time Tryable but only by the Kings-Bench or special Commission For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority to which Act the Proviso was added which is here mention'd that the Proceeds in those Courts of Chancery and of the Kings Council should be such as should be used in the Courts to which the said Courts before this Act was made do belong That is to say such causes as were Criminal should be after the order of the Kings-Bench and such Causes as were not Criminal but only against Equity should be Tryed after the manner of the Chancery or in some cases according to the Proceedings in the Exchequer I wonder why Sir Edw. Coke should cite a Statute as this is above two hundred years before expir'd and other two Petitions as if they were Statutes when they were not passed by the King unless he did it on purpose to diminish as he endeavours to do throughout his Institutes the Kings Authority or to insinuate his own opinions among the People for the Law of the Land For that also he endeavours by Inserting Latin Sentences both in his Text and in the Margin as if they were Principles of the Law of Reason without any Authority of Antient Lawyers or any certainty of Reason in themselves to make Men believe they are the very grounds of the Law of England Now as to the Authority you
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
Doctrine Heresie but Justice Stamford leaves it out because when Heresie was a Crime it was a Plea of the Mitre I see also in this Catalogue of Causes Criminal he inserteth costly Feeding costly Apparel and costly Building though they were contrary to no Statute 'T is true that by evil Circumstances they become sins but these sins belong to the Judgment of the Pastors Spiritual A Justice of the Temporal Law seeing the Intention only makes them sins cannot judge whether they be sins or no unless he have power to take Confessions Also he makes flattery of the King to be a Crime How could he know when one Man had flattered another He meant therefore that it was a Crime to please the King And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned some banished and some put to death by the same Rebels that imprisoned banished and put to death the same King upon no better ground than the Earl of Strafford the Arch-Bishop of Canterbury and King Charles the first by the Rebels of that time Empson and Dudley were no Favourites of Hen. the 7th but Spunges which King Hen. the 8th did well Squeeze Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th but fell into disgrace not for flattering the King but for not flattering him in the business of Divorce from Queen Katharine You see his Reasoning here see also his Passion in the words following We will for some Causes descend no lower Qui eorum vestigiis insistunt eorum exitus perhorrescant this is put in for the Favourite that then was of King James But let us give over this and speak of the legal Punishments to these Crimes belonging Of Punishments ANd in the first place I desire to know who it is that hath the power for an Offence committed to define and appoint the special manner of Punishment for suppose you are not of the Opinion of the Stoicks in old time that all faults are equal and that there ought to be the same Punishment for killing a Man and for killing a Hen. La. The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law That is to say if it be a Statute that determins it then the Judgment must be according to the Statute if it be not specified by the Statute then the Custome in such Cases is to be followed But if the Case be new I know not why the Judge may not determine it according to Reason Ph. But according to whose reason If you mean the natural Reason of this or that Judge authorized by the King to have cognisance of the Cause there being as many several Reasons as there are several Men the punishment of all Crimes will be uncertain and none of them ever grow up to make a Custome Therefore a Punishment certain can never be assigned if it have its beginning from the natural Reasons of deputed Judges no nor from the natural of the Supream Judge For if the Law of Reason did determine Punishments then for the same Offences there should be through all the World and in all times the same Punishments because the Law of Reason is Immutable and Eternal La. If the natural Reason neither of the King nor of any else be able to prescribe a Punishment how can there be any lawful Punishment at all Ph. Why not For I think that in this very difference between the rational Faculties of particular Men lyeth the true and perfect reason that maketh every Punishment certain For but give the authority of defining punishments to any Man whatsoever and let that Man define them and right Reason has defin'd them Suppose the Definition be both made and made known before the Offence committed For such authority is to trump in Card-playing save that in matter of Government when nothing else is turn'd up Clubs are Trump Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason and knoweth what Punishments are by this authority for every evil action ordained it is manifest Reason that for breaking the known Laws he should suffer the known Punishments Now the person to whom this authority of defining Punishments is given can be no other in any place of the World but the same Person that hath the Soveraign Power be it one Man or one assembly of Men For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed for no less power can do it when many Offenders be united and combin'd to defend one another There was a Case put to King David by Nathan of a rich Man that had many Sheep and of a poor Man that had but one which was a tame Lamb The rich Man had a stranger in his House for whose entertainment to spare his own Sheep he took away the poor Mans Lamb. Upon this Case the King gave Judgment surely the Man that hath done this shall die What think you of this Was it a Royal or Tyrannical Judgment La. I will not contradict the Canons of the Church of England which acknowledgeth the King of England within his own Dominions hath the same Rights which the good Kings of Israel had in theirs nor deny King David to have been one of those good Kings But to punish with death without a precedent Law will seem but a harsh proceeding with us who unwillingly hear of Arbitrary Laws much less of Arbitrary Punishments unless we were sure that all our Kings would be as good as David I will only ask you by what Authority the Clergy may take upon them to determine or make a Canon concerning the power of their own King or to distinguish between the Right of a good and an evil King Ph. It is not the Clergy that maketh their Canons to be Law but it is the King that doth it by the Great Seal of England and it is the King that giveth them power to teach their Doctrines in that that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles according to the Scriptures wherein this Doctrine is perspicuously contained But if they had derogated from the Royal Power in any of their Doctrines published then certainly they had been too blame nay I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law I cite not this Precedent of King David as approving the breach of the great Charter or justifying the Punishment with loss of Life or Member of every Man that shall offend the King but to shew you that before the Charter was granted in all Cases where the Punishments were not prescribed it was the King only that could prescribe them
and that no deputed Judge could punish an Offender but by force of some Statute or by the words of some Commission and not ex officio They might for a contempt of their Courts because it is a contempt of the King imprison a Man during the Kings pleasure or fine him to the King according to the greatness of the Offence But all this amounteth to no more than to leave him to the Kings Judgment As for cutting off of Ears and for the Pillory and the like corporal Punishments usually inflicted heretofore in the Star-Chamber they were warranted by the Statute of Hen. 7. that giveth them power to punish sometimes by discretion And generally it is a rule of Reason that every Judge of Crimes in case the positive Law appoint no Punishment and he have no other Command from the King then to consult the King before he pronounce Sentence of any irreparable dammage on the Offender For otherwise he doth not pronounce the Law which is his Office to do but makes the Law which is the Office of the King And from this you may collect that the Custome of punishing such and such a Crime in such and such a manner hath not the force of Law in it self but from an assured presumption that the Original of the Custome was the Judgment of some former King And for this Cause the Judges ought not to run up for the Customs by which they are warranted to the time of the Saxon Kings nor to the time of the Conquest For the most immediate antecedent precedents are the fairest warrants of their Judgments as the most recent Laws have commonly the greatest vigor as being fresh in the memory of all Men and tacitly confirmed because not disapprov'd by the Soveraign Legislator What can be said against this La. Sir Edw. Coke 3 Inst. p. 210. in the Chapter of Judgments and Executions saith that of Judgments some are by the Common-Law some by Statute-Law and some by Custome wherein he distinguisheth Common-Law both from Statute-Law and from Custome Ph. But you know that in other places he makes the Common-Law and the Law of Reason to be all one as indeed they are when by it is meant the Kings Reason and then his meaning in this distinction must be that there be Judgments by Reason without Statute-Law and Judgments neither by Statute-Law nor by Reason but by Custome without Reason for if a Custome be Reasonable then both he and other Learned Lawyers say it is Common-Law and if unreasonable no Law at all La. I believe Sir Edw. Coke's meaning was no other than yours in this point but that he inserted the word Custom because there be not many that can distinguish between Customs reasonable and unreasonable Ph. But Custom so far forth as it hath the force of a Law hath more of the nature of a Statute than of the Law of Reason especially where the question is not of Lands and Goods but of Punishments which are to be defined only by authority Now to come to particulars What Punishment is due by Law for High Treason La. To be drawn upon a Hurdle from the Prison to the Gallows and there to be hanged by the Neck and laid upon the ground alive and have his Bowels taken out and burnt whilst he is yet living to have his Head cut off his Body to be divided into four parts and his Head and Quarters to be placed as the King shall assign Ph. Seeing a Judge ought to give Judgment according to the Law and that this Judgment is not appointed by any Statute how does Sir Edw. Coke warrant it by Reason or how by Custom La. Only thus Reason it is that his Body Lands Goods Posterity c. should be torn pulled asunder and destroy'd that intended to destroy the Majesty of Government Ph. See how he avoids the saying the Majesty of the King But does not this Reason make as much for punishing a Traytor as Metius Suffetius in old time was executed by Tullus Hostilius King of Rome or as Ravillac not many years ago in France who were torn in pieces by four Horses as it does for Drawing Hanging and Quartering La. I think it does But he confirms it also in the same Chapter by holy Scripture Thus Joab for Treason 1 Kings 2. 28. was drawn from the horns of the Altar that 's proof for drawing upon a Hurdle Esth. 2. 22. Bithan for Treason was Hang'd there 's for hanging Acts. 1. 18. Judas hanged himself and his Bowels were poured out there 's for hanging and embowelling alive 2 Sam. 18. 14. Joab pierced Absalom's heart that 's proof for pulling out a Traytors heart 2 Sam. 20. 22. Sheba the Son of Bichri had his Head cut off which is proof that a Traytors Head ought to be cut off 2 Sam. 4. 12. They slew Baanah and Rechab and hung up their Heads over the Pool of Hebron this is for setting up of Quarters And Lastly for forfeiture of Lands and Goods Psal. 109. v. 9. 10. c. Let their Children be driven out and beg and other Men make spoil of their labours and let their Memory be blotted out of the Land Ph. learnedly said and no Record is to be kept of the Judgment Also the Punishments divided between those Traytors must be joyn'd in one Judgment for a Traytor here La. He meant none of this but intended his Hand being in to shew his Reading or his Chaplains in the Bible Ph. Seeing then for the specifying of the Punishment in Case of Treason he brings no argument from natural Reason that is to say from the Common Law and that it is manifest that it is not the general Custom of the Land the same being rarely or never executed upon any Peer of the Realm and that the King may remit the whole Penalty if he will it follows that the specifying of the Punishment depends meerly upon the authority of the King But this is certain that no Judge ought to give other Judgment than has been usually given and approv'd either by a Statute or by Consent express or implyed of the Soveraign Power for otherwise it is not the Judgment of the Law but of a Man subject to the Law La. In Petit Treason the Judgment is to be drawn to the place of execution and hang'd by the Neck or if it be a Woman to be drawn and burnt Ph. Can you imagine that this so nice a distinction can have any other foundation than the wit of a private Man La. Sir Edw. Coke upon this place says that she ought not to be beheaded or hanged Ph. No not by the Judge who ought to give no other Judgment than the Statute or the King appoints nor the Sheriff to make other execution than the Judge pronounceth unless he have a special warrant from the King And this I should have thought he had meant had he not said before that the King had given away all his Right of Judicature to his Courts of
Justice La. The Judgment for Felony is Ph. Heresie is before Felony in the Catalogue of the Pleas of the Crown La. He has omitted the Judgment against a Heretick because I think no Jury confin'd Heresie nor no Judge Temporal did ever pronounce Judgment upon it For the Statute of 2 H. 5. c. 7. was that the Bishop having convicted any Man of Heresie should deliver him to the Sheriff and that the Sheriff should believe the Bishop The Sheriff therefore was bound by the Statute of 2 H. 4. after he was delivered to him to burn him but that Statute being repeal'd the Sheriff could not burn him without a Writ de Heretico comburendo and therefore the Sheriff burnt Legat 9. king James by that Writ which was granted by the Judges of the Common-Law at that time and in that Writ the Judgment is expressed Ph. This is strange reasoning when Sir Edw. Coke knew and confessed that the Statutes upon which the Writ de Heretico comburendo was grounded were all repeal'd how could he think the Writ it self could be in force Or that the Statute which repealeth the Statutes for burning Hereticks was not made with an intent to forbid such burning It is manifest he understood not his Books of Common-Law For in the time of Hen. 4. and Hen. 5. the word of the Bishop was the Sheriff's warrant and there was need of no such Writ nor could he till the 25 Hen. 8. when those Statutes were repeal'd and a Writ made for that purpose and put into the Register which Writ Fitzherbert cites in the end of his natura brevium Again in the later end of the Reign of Queen Elizabeth was published a correct Register of Original and Judicial Writs and the Writ de Haeretico comburendo left out because that Statute of 25 H. 8. and all Statutes against Hereticks were repeal'd and burning forbidden And whereas he citeth for the granting of this Writ 9. Jac. the Lord Chief Justice the Lord Chief Baron and two Justices of the Common-pleas it is as to all but the Lord Chief against the Law for neither the Judges of Common-Pleas nor of the Exchequer can hold Pleas of the Crown without special Commission and if they cannot hold Plea they cannot condemn La. The Punishment for Felony is that the Felon be hang'd by the Neck till he be dead And to prove that it ought to be so he cites a Sentence from whence I know not Quod non licet Felonem pro Felonia decollare Ph. It is not indeed lawful for the Sheriff of his own Head to do it or to do otherwise than is commanded in the Judgment nor for the Judge to give any other Judgment than according to Statute-Law or the usage consented to by the King but this hinders not the King from altering his Law concerning Judgments if he see good cause La. The King may do so if he please And Sir Edw. Coke tells you how he altered particular Judgments in case of Felony and sheweth that Judgment being given upon a Lord in Parliament that he should be hang'd he was nevertheless beheaded and that another Lord had the like Judgment for another Felony and was not hang'd but beheaded and withal he shews you the inconveniency of such proceeding because saith he if hanging might be altered to beheading by the same reason it might be altered to burning stoning to Death c. Ph. Perhaps there might be inconveniency in it but 't is more than I see or he shews nor did there happen any inconveniency from the execution he citeth Besides he granteth that death being ultimum supplicium is a satisfaction to the Law But what is all this to the purpose when it belongeth not to consider such inconveniencies of Government but to the King and Parliament Or who from the authority of a deputed Judge can derive a power to censure the actions of a King that hath deputed him La. For the death of a Man by misfortune there is he saith no express Judgment nor for killing a Man in ones own defence but he saith that the Law hath in both Cases given judgment that he that so killeth a Man shall forfeit all his Goods and Chattels Debts and Duties Ph. If we consider what Sir Edw. Coke saith 1 Inst. Sect. 745. at the word Felony these Judgments are very favourable For there he saith that killing of a Man by Chance-medley or se defendendo is Felony His words are wherefore by the Law at this day under the word Felony in Commissions c. is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley and se defendendo But if we consider only the intent of him that killeth a Man by misfortune or in his own defence the same judgments will be thought both cruel and sinful Judgments And how they can be Felony at this day cannot be understood unless there be a Statute to make them so For the Statute of 25 H. 3. cap. 25. The words whereof Murder from henceforth shall not be judged before our Justices where it is found Misfortune only but it shall take place in such as are slain by Felony and not otherwise make it manifest if they be Felonies they must also be Murders unless they have been made Felonies by some latter Statute La. There is no such latter Statute nor is it to say in Commission nor can a Commission or any thing but another Statute make a thing Felony that was not so before Ph. See what it is for a Man to distinguish Felony into several sorts before he understands the general name of Felony what it meaneth but that a Man for killing another Man by misfortune only without any evil purpose should forfeit all his Goods and Chartels Debts and Duties is a very hard Judgment unless perhaps they were to be given to the Kindred of the Man slain by way of amends for dammage But the Law is not that Is it the Common-Law which is the Law of Reason that justifies this Judgment or the Statute-Law It cannot be the Law of Reason if the Case be meer misfortune If a Man be upon his Apple-tree to gather his Apples and by ill fortune fall down and lighting on the Head of another Man kill him and by good fortune saves himself shall he for this mischance be punished with the forfeiture of his Goods to the King Does the Law of Reason warrant this He should you 'l say have look'd to his Feet that 's true but so should he that was under have look'd up to the Tree Therefore in this Case the Law of Reason as I think dictates that they ought each of them to bear his own misfortune La. In this Case I agree with you Ph. But this Case is the true Case of meer misfortune and a sufficient reprehension of the Opinion of Sir Edw. Coke La. But what if this had hapned to be done by one that had been stealing Apples upon the Tree
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
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
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