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-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
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
whatsoever was repugnant to those 4 General Councils For if they had I believe the Anabaptists of which there was great plenty in those times would one time or other have been question'd upon this Article of the Nicene Creed I believe one Baptism for the Remission of sins nor was the Commission it self for a long time after Registred that Men might in such uncertainty take heed and abstain for their better safety from speaking of Religion any thing at all But by what Law was this Heretick Legat burnt I grant he was an Arian and his Heresie contrary to the Determination of the Church of England in the Highest Points of Christianity but seeing there was no Statute-Law to burn him and no Penalty forbidden by what Law by what Authority was he burn't La. That this Legat was accused of Heresie was no fault of the High Commissioners but when he was accused it had been a fault in them not to have examin'd him or having examin'd him and found him an Arian not to have judged him so or not to have certified him so All this they did and this was all that belonged unto them they medled not with his Burning but left him to the Secular Power to do with him what they pleased Ph. Your Justification of the Commissioners is nothing to the Question the Question is by what Law he was burn't the Spiritual-Law gives no Sentence of Temporal Punishment and Sir Edw. Coke confesseth that he could not be burned and Burning forbidden by Statute-Law By what Law then was he burned La. By the Common-Law Ph. What 's that It is not Custom for before the time of Henry the 4th there was no such Custom in England for if there had yet those Laws that came after were but Confirmations of the Customs and therefore the Repealing of those Laws was a Repealing of the Custom For when King Ed. the 6th and Queen Eliz. abolished those Statutes they abolished all Pains and consequently Burning or else they had abolished nothing And if you will say he was burn't by the Law of Reason you must tell me how there can be Proportion between Doctrine and Burning there can be no Equality nor Majority nor Minority Assigned between them The Proportion that is between them is the Proportion of the Mischief which the Doctrine maketh to the Mischief to be Inflicted on the Doctor and this is to be measur'd only by him that hath the charge of Governing the People and consequently the Punishing of Offences can be determined by none but by the King and that if it extend to life or member with the Assent of Parliament La. He does not draw any Argument for it from Reason but alledgeth for it this Judgment executed upon Legat and a story out of Hollingshed and Stow But I know that neither History nor Precedent will pass with you for Law And though there be a Writ de haeretico comburendo in the Register as you may Read in Fitzherbert grounded upon the Statutes of 2 H. 4. cap. 15. and 2 H. 5. cap. 7. yet seeing those Statutes are void you will say the VVrit is also void Ph. Yes indeed will I. Besides this I understand not how that is true that he saith that the Diocesan hath Jurisdiction of Heresie and that so it was put in ure in all Queen Elizabeths Reign whereas by the Statute it is manifest that all Jurisdiction spiritual was given under the Queen to the High Commissioners how then could any one Diocesan have any part thereof without deputation from them which by their Letters Patents they could not grant nor was it reasonable they should For the Trust was not committed to the Bishops only but also to divers Lay-Persons who might have an Eye upon their Proceedings lest they should Incroach upon the power Temporal But at this day there is neither Statute nor any Law to Punish Doctrine but the ordinary Power Ecclesiastical and that according to the Canons of the Church of England only Authorized by the King the High Commission being long since abolished Therefore let us come now to such Causes Criminal as are not Capital Of Praemunire La. THe greatest Offence not Capital is that which is done against the Statute of Provisoes Ph. You have need to expound this La. This Crime is not unlike to that for which a Man is outlawed when he will not come in and submit himself to the Law saving that in Outlawries there is a long Process to precede it and he that is outlawed is put out of the Protection of the Law But for the Offence against the Statute of Provisors which is called Praemunire facias from the words in the Original VVrit if the Offender submit not himself to the Law within the space of 2 Months after notice he is presently an Outlaw And this Punishment if not Capital is equivalent to Capital For he lives secretly at the Mercy of those that know where he is and cannot without the like Peril to themselves but discover him And it has been much disputed before the time of Queen Elizabeth whether he might not be lawfully killed by any Man that would as one might kill a VVolf It is like the Punishment amongst the old Romans of being barred the use of Fire and VVater and like the great Excommunication in the Papacy when a Man might not eat or drink with the Offender without incurring the like Penalty Ph. Certainly the Offence for which this Punishment was first Ordained was some abominable Crime or of extraordinary Mischief La. So it was For the Pope you know from long before the Conquest incroached every day upon the Power Temporal VVhatsoever could be made to seem to be in ordine ad Spiritualia was in every Common-wealth claimed and haled to the Jurisdiction of the Pope And for that end in every Country he had his Court Ecclesiastical and there was scarce any cause Temporal which he could not by one shift or other hook into his Jurisdiction in such sort as to have it tryed in his own Courts at Rome or in France or in England it self By which means the Kings Laws were not regarded Judgments given in the Kings Courts were avoided and presentations to Bishopricks Abbies and other Benefices founded and endowed by the Kings and Nobility of England were bestowed by the Pope upon Strangers or such as with Money in their Purses could travel to Rome to provide themselves of such Benefices And suitably hereunto when there was a Question about a Tythe or a VVill though the point were meerly Temporal yet the Popes Court here would fetch them in or else one of the Parties would appeal to Rome Against these Injuries of the Roman Church and to maintain the Right and Dignity of the Crown of England Ed. 1. made a Statute concerning Provisors that is such as provide themselves with Benefices here from Rome for in the 25th year of his Reign he ordained in a full Parliament that the Right of Election of
Suit in the Spiritual Court here in a Temporal Cause there lay a Premunire and if perhaps some Judge or other hath since that time judged otherwise his Judgment was erroneous La. Nay but by the Statute of 16. Rich. 2. cap. 5. it appeareth to the contrary as Sir Edw. Coke here will shew you The effect saith he of the Statute of Rich. 2. is That if any Pursue or cause to be Pursued in the Court of Rome or elsewhere any thing which toucheth the King against him his Crown or Regality or his Realm they their Notaries c. shall be out of the Kings Protection Ph. I pray you let me know the very words of the Statutes as they ly La. Presently The words are if any Man Purchase or Pursue or cause to be Purchased or Pursued in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunication Bulls Instruments or any other things whatsoever which touch the King against him his Crown and his Regality or his Realm as is aforesaid c. Ph. If a Man bring a Plea of Common-Law into the Spiritual Court which is now the Kings Court and the Judge of this Spiritual Court hold Plea thereof By what Construction can you draw it within the compass of the words you have now read To sue for my Right in the Kings Court is no pursuing of Translations of Bishopricks made or procur'd in the Court of Rome or any place else but only in the Court of the King nor is this the suit against the King nor his Crown nor his Regality nor his Realm but the contrary Why then is it a Premunire No. He that brings in or setteth out a Writing in any place whatsoever wherein is contained that the King hath so given away his Jurisdiction as that if a Subject be condemned falsly his Submission to the Kings Judgment is of none effect or that the King upon no necessity whatsoever can out of Parliament time raise Money for the defence of the Kingdom is in my opinion much more within the Statute of Provisors than they which begin suit for a Temporal Matter in a Court Spiritual But what Argument has he for this Law of his since the Statute Law fails him from the Law of Reason La. He says they are called Courts either because they proceed by the Rules of other Laws as by the Canon or Civil Law or by other Tryals than the Common Law doth Warrant For the Tryals Warranted by the Law of England for matter of Fact is by verdict of 12 Men before the Judges of the Common Law in matters pertaining to the Common Law and not upon Examination of Witnesses as in the Court of Equity so that Alia Curia is either that which is govern'd per aliam Legem or which draweth the Party ad aliud Examen For if Ph. Stop there Let us consider of this you have read for the Tryal warranted by the Law of England is by Verdict of 12 Men. What means he here by the Law of England Does it not warrant the Tryals in Chancery and in the Court of Admiralty by Witnesses La. By the Law of England he means the Law used in the Kings Bench that is to say the Common-Law Ph. This is just as if he had said that these two Courts did warrant their own way of Tryal but other Courts not so but were warranted by the King only the Courts of Common Law were VVarrants to themselves You see that alia Curia is this way ill expounded In the Courts of Common Law all Tryals are by 12 Men who are Judges of the Fact and the Fact known and prov'd the Judges are to pronounce the Law but in the Spiritual Court the Admiralty and in all the Courts of Equity there is but one Judge both of Fact and of Law this is all the difference If this difference be intended by the Statute by alia Curia there would be a Premunire for suing in a Court being not the Kings Court The Kings Bench and Court of Common Pleas may also be different kinds of Courts because the Process is different but 't is plain that this Statute doth not distinguish Courts otherwise than into the Courts of the King and into the Courts of the Forraign States and Princes And seeing you stand upon the name of a Jury for the distinguishing of Courts what difference do you find between the Tryals at the Common-Law and the Tryals in other Courts You know that in Tryals of Fact naturally and through all the World the Witnesses are Judges and it is impossible to be otherwise What then in England can a Jury judge of except it be of the sufficiency of the Testimony The Justices have nothing to judge of nor do but after the Fact is proved to declare the Law which is not Judgment but Jurisdiction Again though the Tryal be in Chancery or in the Court of Civil Law 1. The Witnesses are still Judges of the Fact and he that hath the Commission to hear the Cause hath both the parts that is to say of a Jury to judge of the Testimony and of a Justice to declare the Law In this I say lyes all the difference which is indeed enough to make a Dispute as the World goes about Jurisdiction But seeing it tends neither to the Disherison of the King nor of the People nor to the subversion of the Law of Reason i. e. of Common-Law nor to the subversion of Justice nor to any harm of the Realm without some of which these Statutes are not broken it cannot be a Premunire La. Let me read on For if the Freehold Inheritances Goods and Chattels Debts and Duties wherein the King and Subject have Right and Property by the Common-Law should be judged per aliam Legem or be drawn ad aliud Examen the 3 Mischiefs afore exprest would follow viz. the destruction of the King and his Crown the Disherison of his People and the undoing and destruction of the Common-Law always used Ph. That is to say of the Law of Reason From hence it follows that where there are no Juries and where there are different Laws from ours that is to say in all the World besides neither King nor People have any Inheritance nor Goods nor any Law of Reason I will examine his Doctrine concerning Cases Criminal no farther He no where defineth a Crime that we may know what it is An odious name sufficeth him to make a Crime of any thing He hath put Heresie among the most odious Crimes not knowing what it signifies and upon no other Cause but because the Church of Rome to make their usurped Power the more terrible had made it by long Preaching against it and Cruelty shown towards many Godly and learned Men of this and other Reformed Churches appear to common People a thing detestable He puts it in as a Plea of the Crown in the time of Queen Elizabeth whereas in her time there was no
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
have suffered And those things wherein prosecution of Injury may be thought a love of contention CHAP. XIV Of those things which are necessary to be known for the Definition of Just and Unjust WHen the fact is evident the next Inquiry is whether it be Just or Vnjust For the Definition of Just and Vnjust we must know what Law is that is what the Law of Nature what the Law of Nations what the Law Civil what written Law and what unwritten Law is and what Persons that is what a publick Person or the City is and what a private Person or Citizen is Vnjust in the opinion of all men is that which is contrary to the Law of Nature Vnjust in the opinion of all men of those Nations which traffick and come together is that which is contrary to the Law common to those Nations Vnjust only in one Common-wealth is that which is contrary to the Law Civil or Law of that Common-wealth He that is accused to have done any thing against the Publick or a private Person is accused to do it either ignorantly or unwillingly or in anger or upon premeditation And because the Defendant does many times confess the fact but deny the unjustice as that he took but did not steal and did but not adultery it is necessary to know the Definitions of Theft Adultery and all other crimes What facts are contrary to the written Laws may be known by the Laws themselves Besides written Laws whatsoever is Just proceeds from Equity or Goodness From Goodness proceeds that which we are praised or honoured for From Equity proceed those actions which though the written Law command not yet being interpreted reasonably and supplyed seems to require at our hands Actions of Equity are such as these Not too rigorously to punish Errors Mischances or Injuries To pardon the faults that adhere to Mankind And not to consider the Law so much as the Law-makers mind and not the Words so much as the meaning of the Law And not to regard so much the Fact as the intention of the Doer nor part of the Fact but the Whole nor what the Doer is but what he has been always or for the most part And to remember better the Good received than the Ill. And to endure injuries patiently And to submit rather to the sentence of a Judge than of the Sword And to the sentence of an Arbitrator rather than of a Judge CHAP. XV. Of the Colours or Common Opinions concerning Injuries comparatively COmmon Opinions concerning Injuries comparatively are such as these Greater is the Injury which proceed from greater Iniquity And from which proceedeth greater dammage And of which there is no revenge And for which there is no remedy And by occasion of which he that hath received the Injury hath done some mischief to himself He does the greater Injury that does it first or alone or with few And he that does it often Greater Injury is that against which Laws and Penalties were first made And that which is more brutal or more approaching to the actions of beasts And that which is done upon more premeditation And by which more Laws are broken And which is done in the place of Execution And which is of greatest shame to him that receives the Injury And which is committed against well deservers And which is committed against the unwritten Law because good men should observe the Law for Justice and not for fear of punishment And which is committed against the written Law because he that will do Injury neglecting the penalty set down in the written Law is much more likely to transgress the unwritten Law where there is no penalty at all CHAP. XVI Of Proofs Inartificial OF Artificial Proofs we have already spoken Inartificial Proofs which we invent not but make use of are of five sorts 1. Laws And those are Civil or written Law the Law or Custom of Nations and the universal Law of Nature 2. Witness And those are such as concern Matter and such as concern Manners Also they be ancient or present 3. Evidences or Writings 4. Question or Torture 5. Oaths And those be either given or taken or both or neither For Laws we use them thus When the written Law makes against us we appeal to the Law of Nature alledging That to be greatest Justice which is greatest Equity That the Law of Nature is immutable the written Law mutable That the written Law is but seeming Justice the Law of Nature very Justice And Justice is among those things which are and not which seem to be That the Judge ought to discern between true and adulterate Justice That they are better men that obey unwritten than written Laws That the Law against us does contradict some other Law And when the Law has a double interpretation that is the true one which makes for us And that the cause of the Law being abolished the Law is no more of Validity But when the written Law makes for us and Equity for the Adversary we must alledge That a man may use Equity not as a liberty to judg against the Law but only as a security against being forsworn when he knows not the Law That men seek not Equity because 't is good simply but because good for them That it is the same thing not to make and not to use the Law That as in other Arts and namely in Physick Fallacies are pernitious so in a Common-wealth 't is pernitious to use pretexts against the Law And that in Common-wealths well instituted to seem wiser than the Laws is prohibited For Witnesses we must use them thus When we have them not we must stand for Presumptions and say That in Equity sentence ought to be given according to the most probability That Presumptions are the testimony of the things themselves and cannot be bribed That they cannot lye When we have witnesses against him that has them not we must say That Presumptions if they be false cannot be punished That if Presumptions were enough witnesses were superfluous For Writings when they favour us we must say That Writings are private and particular Laws and he that takes away the use of Evidences abolisheth the Law That since Contracts and Negotiations pass by Writings he that bars their use dissolves humane Society Against them if they favour the Adversary we may say That since Laws do not bind that are fraudulently made to pass much less Writings And that the Judge being to dispense Justice ought rather to consider what is just than what is in the Writing That Writings may be gotten by fraud or force but Justice by neither That the Writing is repugnant to some Law Civil or Natural or to Justice or to Honesty That 't is repugnant to some other writing before or after That it crosses some commodity of the Judge which must not be said directly but implyed cunningly For the Torture if the giving of it make for us we must say That 't is the only testimony
he shall displease Men If he speak falsely he shall displease God Here is to be noted that sometimes this argument may be retorted as thus If you speak truth you shall please God if you speak untruth you shall please Men therefore by all means be an Orator A Fourteenth from the quality that Men have to praise one thing and approve another as We ought not to War against the Athenians upon no precedent injury for all Men discommend injustice Again We ought to War against the Athenians for otherwise our Liberty is at their mercy that is is no Liberty but the preservation of Liberty is a thing that all Men will approve A Fifteenth from Proportion as seeing we naturalize strangers for their virtues why should we not Banish this stranger for his vices A Sixteenth from the similitude of Consequents as He that denies the immortality of the Gods is no worse than he that has Written the generation of the Gods For the same Consequence follows of both that sometimes there are none A Seventeenth from that that Men change their mind as If when we were in Banishment we fought to recover our Countrey why should we not fight now to retain it An Eighteenth from a fained end as that Diomedes chose Ulysses to go with him not as more Valiant than another but as one that would partake less of the Glory A Nineteenth from the Cause as if he would infer he did it from this that he had cause to do it A Twentieth from that which is Incredible but True as that Laws may need a Law to mend them as well as Fish Bred in the salt Water may need salting CHAP. XXV Of the Places of Enthymemes that lead to Iâ—possibility LEt the first Place be from inspection 〈◊〉 Times Actions or Words either of the Adversary or of the Speaker or Both. Oâ— the Adversary as He says he loves the People and yet he was in the conspiracy of the Thirty Of the Speaker as He says I am contentious and yet I never began Suit Of Both as He never conferr'd any thing to the benefit of the Commonwealth whereas I have ransomed divers Citizens with mine own Money A Second from shewing the cause of that which seemed amiss and serves for Men of good reputation that are accused as The Mother that was accused of Incest for being seen Imbracing her Son was absolved as soon as she made appear that she imbraced him upon his arrival from far by way of Salutation A Third from rendring of the cause as Leodamas to whom it was objected that he had under the Thirty Tyrants defaced the Inscription which the People had set up in a Pillar of his Ignominy answered He had not done it because it would have been more to his commodity to let it stand thereby to indear himself to the Tyrants by the Testimony of the Peoples hatred A Fourth from better Counsel as He might have done better for himself therefore he did not this But this Place deceives when the better Counsel comes to mind after the Fact A Fifth from the Incompatibility of the things to be done as They that did deliberate whether they should both Mourn and Sacrifice at the Funeral of Leucothea were told that if they thought her a Goddess they ought not to Mourn and if they thought her a Mortal they ought not to Sacrifice A Sixth which is proper to Judicial Orations from an Inference of Errour as If he did it not he was not wise therefore he did it Enthymemes that lead to Impossibility please more than Ostensive for they compare and put contraries together whereby they are the better set off and more conspicuous to the Auditor Of all Enthymemes they be best which we assent to as soon as hear For such consent pleaseth us and makes us favourable to the speaker CHAP. XXVI Of the Places of seeming Enthymemes OF seeming Enthymemes one Place may be from the Form of speaking as when a Man has repeated divers Sentences he brings in his Conclusion as if it follow'd necessarily though it do not A Second from an ambiguous word A Third from that which is true divided to that which is false joyned as that of Orestes It was justice that I should Revenge my Fathers death and it was justice my Mother should die for killing my Father therefore I justly killed my Mother Or from that which is true joyned to that which is false divided as one cup of Wine and one cup of Wine are hurtful therefore one cup of Wine is hurtful A Fourth from Amplification of the Crime For neither is the Defendant likely to have committed the Crime he amplifies nor does the Accuser seem when he is Passionate to want ground for his Accusation A Fifth from signs as when a Man concludes the doing of the Fact from the manner of his life A Sixth from that which comes by chance as if from this that the Tyranny of Hipparthus came to be overthrown from the love of Aristogeiton to Harmodius a Man should conclude that in a free Commonwealth loving of Boyes were profitable A Seventh from the Consequence as Banishment is to be desired because a Banish'd Man has choice of places to dwell in An Eighth from making that the cause which is not as In Demosthenes his Government the War began therefore Demosthenes Governed well With the Peloponnesian War began the Plague therefore Pericles that perswaded that War did ill A Ninth from the Omission of some circumstance as Helen did what was Lawful when she ran away with Paris because she had her Fathers consent to choose her own Husband which was true only during the time that she had not chosen A Tenth from that which is probable in some case to that mhich is probable simply as 'T is probable he fore-saw that if he did it he should be suspected therefore 't is probable he did it not From this Place one may infer both ways that he did it not For if he be not likely to do it it may be thought he did it not again if he were likely to do it it may be thought he did it not for this that he knew he should be suspected Upon this Place was grounded the Art which was so much detested in Protagorâ—â— of making the better cause seem the worse and the worse the better CHAP. XXVII Of the wayes to answer the Arguments of the Adversary AN Argument is answered by an opposite Syllogisme or by an Objection The Places of opposite Syllogismes are the same with the Places of Syllogismes or Enthymemes for a Rhetorical Syllogisme is an Enthymeme The Places of Objections are four First from the same as To the Adversary that proves Love to be good by an Enthymeme may be objected that no want is good and yet Love is want or particularly thus The Love of Myrrha to her Father was not good The Second from Contraries as if the Adversary say A good Man does good to his friends an
little worth if they tended not to the preservation and improvement of Mens Lives seeing then without Humane Law all things would be Common and this Community a cause of Incroachment Envy Slaughter and continual War of one upon another the same Law of Reason Dictates to Mankind for their own preservation a distribution of Lands and Goods that each Man may know what is proper to him so as none other might pretend a right thereunto or disturb him in the use of the same This distribution is Justice and this properly is the same which we say is one owns by which you may see the great Necessity there was of Statute Laws for preservation of all Mankind It is also a Dictate of the Law of Reason that Statute Laws are a necessary means of the safety and well being of Man in the present World and are to be Obeyed by all Subjects as the Law of Reason ought to be Obeyed both by King and Subjects because it is the Law of God Ph. All this is very Rational but how can any Laws secure one Man from another When the greatest part of Men are so unreasonable and so partial to themselves as they are and the Laws of themselves are but a dead Letter which of it self is not able to compel a Man to do otherwise than himself pleaseth nor punish or hurt him when he hath done a mischief La. By the Laws I mean Laws living and Armed for you must suppose that a Nation that is subdued by War to an absolute submission of a Conqueror it may by the same Arm that compelled it to Submission be compelled to Obey his Laws Also if a Nation choose a Man or an Assembly of Men to Govern them by Laws it must furnish him also with Armed Men and Money and all things necessary to his Office or else his Laws will be of no force and the Nation remains as before it was in Confusion 'T is not therefore the word of the Law but the Power of a Man that has the strength of a Nation that makes the Laws effectual It was not Solon that made Athenian Laws though he devised them but the Supream Court of the People nor the Lawyers of Rome that made the Imperial Law in Justinian's time but Justinian himself Ph. We agree then in this that in England it is the King that makes the Laws whosoever Pens them and in this that the King cannot make his Laws effectual nor defend his People against their Enemies without a Power to Leavy Souldiers and consequently that he may Lawfully as oft as he shall really think it necessary to raise an Army which in some occasions be very great I say raise it and Money to Maintain it I doubt not but you will allow this to be according to the Law at least of Reason La. For my part I allow it But you have heard how in and before the late Troubles the People were of another mind Shall the King said they take from us what he please upon pretence of a necessity whereof he makes himself the Judg What worse Condition can we be in from an Enemy What can they take from us more than what they list Ph. The People Reason ill they do not know in what Condition we were in the time of the Conqueror when it was a shame to be an English-Man who if he grumbled at the base Offices he was put to by his Norman Masters received no other Answer but this Thou art but an English-Man nor can the People nor any Man that humors them in their Disobedience produce any Example of a King that ever rais'd any excessive Summ's either by himself or by the Consent of his Parliament but when they had great need thereof nor can shew any reason that might move any of them so to do The greatest Complaint by them made against the unthriftiness of their Kings was for the inriching now and then a Favourite which to the Wealth of the Kingdom was inconsiderable and the Complaint but Envy But in this point of raising Souldiers what is I pray you the Statute Law La. The last Statute concerning it is 13 Car. 2. c. 6. By which the Supream Government Command and disposing of the Militia of England is delivered to be and always to have been the Antient Right of the Kings of England But there is also in the same Act a Proviso that this shall not be Construed for a Declaration that the King may Transport his Subjects or compel them to march out of the Kingdom nor is it on the contrary declared to be unlawful Ph. Why is not that also determined La. I can imagine cause enough for it though I may be deceiv'd We love to have our King amongst us and not be Govern'd by Deputies either of our own or another Nation But this I verily believe that if a Forraign Enemy should either invade us or put himself in t a readiness to invade either England Ireland or Scotland no Parliament then sitting and the King send English Souldiers thither the Parliament would give him thanks for it The Subjects of those Kings who affect the Glory and imitate the Actions of Alexander the Great have not always the most comfortable lives nor do such Kings usually very long enjoy their Conquests They March to and fro perpetually as upon a Plank sustained only in the midst and when one end rises down goes the other Ph. 'T is well But where Souldiers in the Judgment of the Kings Conscience are indeed necessary as in an insurrection or Rebellion at home how shall the Kingdom be preserved without a considerable Army ready and in pay How shall Money be rais'd for this Army especially when the want of publick Treasure inviteth Neighbour Kings to incroach and unruly Subjects to Rebel La I cannot tell It is matter of Polity not of Law but I know that there be Statutes express whereby the King hath obliged himself never to Levy Money upon his Subjects without the consent of his Parliament One of which Statutes is 25 Ed. 1. c. 6. in these words We have granted for us and our Heirs as well to Arch-Bishops Bishops Abbots and other Folk of the Holy Church as also Earls Barons and to all the Commonalty of the Land that for no Business from henceforth we shall take such Aids Taxes or Prizes but by the common Consent of the Realm There is also another Statute of Ed. 1. in these words No Taxes or Aid shall be taken or Leveyed by us or our Heirs in our Realm without the good will and assent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land which Statutes have been since that time Confirmed by divers other Kings and lastly by the King that now Reigneth Ph. All this I know and am not satisfied I am one of the Common People and one of that almost infinite number of Men for whose welfare Kings and other Soveraigns were by God Ordain'd For
Enemies there is no end for the War will continue by a perpetual Subdivision and when it ends they will be in the same Estate they were before That they are often Abused by Men who to them seem wise when then their Wisdom is nothing else but Envy to those that are in Grace and in profitable Employments and that those Men do but abuse the Common People to their own ends that set up a private Mans Propriety against the publick Safety But say withal that the King is Subject to the Laws of God both Written and Unwritten and to no other and so was William the Conqueror whose Right it all Descended to our present King La. As to the Law of Reason which is Equity 't is sure enough there is but one Legislator which is God Ph. It followeth then that which you call the Common-Law Distinct from Statute-Law is nothing else but the Law of God La. In some sense it is but it is not Gospel but Natural Reason and Natural Equity Ph. Would you have every Man to every other Man alledge for Law his own particular Reason There is not amongst Men an Universal Reason agreed upon in any Nation besides the Reason of him that hath the Soveraign Power yet though his Reason be but the Reason of one Man yet it is set up to supply the place of that Universal Reason which is expounded to us by our Saviour in the Gospel and consequently our King is to us the Legislator both of Statute-Law and of Common-Law La. Yes I know that the Laws Spiritual which have been Law in this Kingdom since the Abolishing of Popery are the Kings Laws and those also that were made before for the Canons of the Church of Rome were no Laws neither here nor any where else without the Popes Temporal Dominions farther than Kings and States in their several Dominions respectively did make them so Ph. I grant that But you must grant also that those Spiritual Laws Legislators of the Spiritual Law and yet not all Kings and States make Laws by Consent of the Lords and Commons but our King here is so far bound to their Assents as he shall Judge Conducing to the Good and safety of his People for Example if the Lords and Commons should Advise him to restore those Laws Spiritual which in Queen Maries time were in Force I think the King were by the Law of Reason obliged without the help of any other Law of God to neglect such Advice La. I Grant you that the King is sole Legislator but with this Restriction that if he will not Consult with the Lords of Parliament and hear the Complaints and Informations of the Commons that are best acquainted with their own wants he sinneth against God though he cannot be Compell'd to any thing by his Subjects by Arms and Force Ph. We are Agreed upon that already since therefore the King is sole Legislator I think it also Reason he should be sole Supream Judge La. There is no doubt of that for otherwise there would be no Congruity of Judgments with the Laws I Grant also that he is the Supream Judge over all Persons and in all Causes Civil and Ecclesiastical within his own Dominions not only by Act of Parliament at this time but that he has ever been so by the common-Common-Law For the Judges of both the Benches have their Offices by the Kings Letters Patents and so as to Judicature have the Bishops Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England and to say all at once there is no Magistrate or Commissioner for Publick Business neither of Judicature nor Execution in State or Church in Peace or War but he is made so by Authority from the King Ph. 'T is true But perhaps you may â—â—ink otherwise when you Read such Acts of Parliament as say that the King shall â—ave Power and Authority to do this or that by Virtue of that Act as Eliz. c. 1. That your Highness your Heirs and Successors Kings or Queens of this Realm shall have â—â—ll Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign c. Was it not this Parliament that gave this Authority to the Queen La. For the Statute in this Clause is no more than as Sir Edw. Coke useth to speak an Affirmance of the Common-Law For she being Head of the Church of England might make Commissioners for the deâ—iding of Matters Ecclesiastical as freely â—s if she had been Pope who did you know pretend his Right from the Law of God Ph. We have hitherto spoken of Laws without considering any thing of the Naâ—ure and Essence of a Law and now unless we define the word Law we can go no â—arther without Ambiguity and Fallacy which will be but loss of time whereas on the contrary the Agreement upon our words will enlighten all we have to say â—hereafter La. I do not remember the Definition of Law in any Statute Ph. I think so For the Statutes were made by Authority and not drawn from any other Principles than the care of the safety of the People Statutes are not Philosophy as is the Common-Law and other disputable Arts but are Commands or Prohibitions which ought to be obeyed because Assented to by Submission made to the Conqueror here in England and to whosoever had the Soveraign Power in other Common wealths so that the Positive Laws of all Places are Statutes The Definition of Law was therefore unnecessary for the makers of Statutes though very necessary to them whose work it is to Teach the sence of the Law La. There is an Accurate Definition of a Law in Bracton Cited by Sir Edw. Coke Lex est sanctio justa jubens honesta prohibens contraria Ph. That is to say Law is a just Statute Commanding those things which are honest and Forbidding the contrary From whence it followeth that in all Cases it must be the Honesty or Dishonesty that makes the Command a Law whereas you know that but for the Law we could not as saith St. Paul have known what is sin therefore this Definition is no Ground at all for any farther Discourse of Law Besides you know the Rule of Honest and Dishonest refers to Honour and that it is Justice only and Injustice that the Law respecteth But that which I most except against in this Definition is that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust There may indeed in a Statute Law made by Men be found Iniquity but not Injustice La. This is somewhat subtil I pray deal plainly what is the difference between Injustice and Iniquity Ph. I pray you tell me first what is the difference between a Court of Justice and a Court of Equity La. A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land and a
Court of Equity in that to which belong such Causes as are to be determined by Equity that is to say by the Law of Reason Ph. You see then that the difference between Injustice and Iniquity is this that Injustice is the Transgression of a Statute-Law and Iniquity the Transgression of the Law of Reason was nothing else but the Law of Reason and that the Judges of that Law are Courts of Justice because the breach of the Statute-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
words in their Letters Patents Constituimus vos Justitiarium nostrum Capitalem ad Placita coram nobis tenenda durante beneplacito nostro That is to say we have made you our Chief-Justice to hold Pleas before our self during our pleasure But this Writ though it be shorter does not at all abridge the power they had by the former And for the Letters Patents for the Chief-Justice of the Common-Pleas they go thus Constituimus dilectum Fidelem c. Capitalem Justitiarium de Communi Banco Habendum c. quamdiu nobis placuerit cum vadiis foedis ab antiquo debitis consuetis Id est We have Constituted our Beloved and Faithful c. Chief-Justice of the Common-Bench To have c. during our pleasure with the ways and Fees thereunto heretofore due and usual Ph. I find in History that there have been in England always a Chancellour and a Chief-Justice of England but of a Court of Common-Pleas there is no mention before Magna Charta Common-Pleas there were ever both here and I think in all Nations for Common-Pleas and Civil-Pleas I take to be the same La. Before the Statute of Magna Charta Common-Pleas as Sir Edw. Coke granteth 2 Inst. p. 21. might have been holden in the Kings-Bench and that Court being removeable at the Kings will the Returns of Writs were Coram Nobis ubicunque fuerimus in Anglia whereby great trouble of Jurors ensued and great charges of the parties and delay of Justice and that for these causes it was Ordain'd that the Common-Pleas should not follow the King but be held in a place certain Ph. Here Sir Edw. Coke declares his Opinion that no Common-Plea can be holden in the Kings-Bench in that he says they might have been holden then And yet this doth not amount to any probable proof that there was any Court of Common-Pleas in England before Magna Charta For this Statute being to ease the Jurors and lessen the Charges of Parties and for the Expedition of Justice had been in Vain if there had been a Court of Common-Pleas then standing for such a Court was not necessarily to follow the King as was the Chancery and the Kings-Bench Besides unless the Kings-Bench wheresoever it was held Plea of civil Causes the Subject had not at all been eased by this Statute For supposing the King at York had not the Kings Subjects about London Jurors and parties as much trouble and charge to go to York as the People about York had before to go to London Therefore I can by no means believe otherwise then that the Erection of the Court of Common-Pleas was the effect of that Statute of Magna Charta Cap. 11. And before that time not existent though I think that for the multiplicity of Suits in a great Kingdom there was need of it La. Perhaps there was not so much need of it as you think For in those times the Laws for the most part were in setling rather than setled and the old Saxon Laws concerning Inheritances were then practised by which Laws speedy Justice was Executed by the Kings Writs in the Courts of Barons which were Landlords to the rest of the Freeholders and Suits of Barons in County-Courts and but few Suits in the Kings Courts but when Justice could not be had in those Inferior Courts but at this day there be more Suits in the Kings Courts than any one Court can dispatch Ph. Why should there be more Suits now than formerly For I believe this Kingdom was as well Peopled then as now La. Sir Edw. Coke 4 Inst. p. 76. assigneth for it six Causes 1. Peace 2. Plenty 3. The Dissolution of Religious Houses and dispersing of their Lands among so many several persons 4. The multitude of Informers 5. The number of Concealers 6. The multitude of Attorneys Ph. I see Sir Edw. Coke has no mind to lay any fault upon the Men of his own Profession and that he Assigns for Causes of the Mischiefs such things as would be Mischief and Wickedness to amend for if Peace and Plenty be the cause of this Evil it cannot be removed but by War and Beggery and the Quarrels arising about the Lands of Religious Persons cannot arise from the Lands but from the doubtfulness of the Laws And for Informers they were Authorised by Statutes to the Execution of which Statutes they are so necessary as that their number cannot be too great and if it be too great the fault is in the Law it self The number of Concealers are indeed a number of Couseners which the Law may easily Correct And lastly for the multitude of Attorneys it is the fault of them that have the power to admit or refuse them For my part I believe that Men at this day have better learn't the Art of Caviling against the words of a Statute than heretofore they had and thereby encourage themselves and others to undertake Suits upon little reason Also the variety and repugnancy of Judgments of Common-Law do oftentimes put Men to hope for Victory in causes whereof in reason they had no ground at all Also the ignorance of what is Equity in their own causes which Equity not one Man in a thousand ever Studied and the Lawyers themselves seek not for their Judgments in their own Breasts but in the precedents of former Judges as the Antient Judges sought the same not in their own Reason but in the Laws of the Empire Another and perhaps the greatest cause of multitude of Suits is this that for want of Registring of conveyances of Land which might easily be done in the Townships where the Lands ly a Purchase cannot easily be had which will not be litigious Lastly I believe the Coveteousness of Lawyers was not so great in Antient time which was full of trouble as they have been since in time of Peace wherein Men have leisure to study fraud and get employment from such Men as can encourage to Contention And how ample a Field they have to exercise this Mystery in is manifest from this that they have a power to Scan and Construe every word in a Statute Charter Feofment Lease or other Deed Evidence or Testimony But to return to the Jurisdiction of this Court of the Kings-Bench where as you say it hath power to correct and amend the Errors of all other Judges both in Process and in Judgments cannot the Judges of the Common-Pleas correct Error in Process in their own Courts without a Writ of Error from another Court La. Yes and there be many Statutes which Command them so to do Ph. When a Writ of Error is brought out of the Kings-Bench be it either Error in Process or in Law at whose Charge is it to be done La. At the Charge of the Clyent Ph. I see no reason for that for the Clyent is not in fault who never begins a Suit but by the advice of his Council Learned in the Law whom he pays for his Council given Is not
which have either been not preserv'd in the Records or else by Sir Edw. Coke because they were against his opinion not alledged For this is possible though you will not grant it to be very likely therefore I insist only upon this that no Record of a Judgment is a Law save only to the party Pleading until he can by Law reverse the former Judgment And as to the proceeding without Juries by two sufficient Witnesses I do not see what harm can proceed from it to the Common-wealth nor consequently any just Quarrel that the Justice of the Common-Law can have against their proceedings in the Admiralty For the Proof of a Fact in both Courts lyeth meerly on the Witnesses and the difference is no more but that in the Imperial-Law the Judge of the Court Judgeth of the Testimony of the Witnesses and the Jury doth in a Court of Common-Law Besides if a Court of Common-Law should chance to Incroach upon the Jurisdiction of the Admiral may not he send a prohibition to the Court of Common-Law to forbid their proceeding I pray you tell me what Reason there is for the one more than for the other La. I know none but long Custom for I think it was never done Ph. The Highest ordinary Court in England is the Court of Chancery wherein the Lord Chancellour or otherwise Keeper of the Great Seal is the only Judge This Court is very Antient as appears by Sir Edw. Coke 4 Inst. p. 87. where he nameth the Chancellors of King Edgar King Etheldred King Edmund and King Edward the Confessor His Office is given to him without Letters Patents by the Kings delivery to him of the Great Seal of England and whosoever hath the keeping of the Great Seal of England hath the same and the whole Jurisdiction that the Lord Chancellour ever had by the Statute of 5 Eliz. cap. 18. wherein it is declar'd that such is and always has been the Common-Law And Sir Edw. Coke says he has his name of Chancellour from the highest point of his Jurisdiction viz. a Cancellando that is from Cancelling the Kings Letters Patents by drawing strokes through it like a Lattice Ph. Very pretty It is well enough known that Cancellarius was a great Officer under the Roman Empire whereof this Island was once a Member and that the Office came into this Kingdom either with or in Imitation of the Roman Government Also it was long after the time of the 12 Caesars that this Officer was created in the State of Rome For till after Septimius Severus his time the Emperors did diligently enough take cognizance of Causes and Complaints for Judgments given in the Courts of the Praetors which were in Rome the same that the Judges of the common-Common-Law are here but by the continual Civil Wars in after-times for the choosing of Emperors that diligence by little and little ceased and afterwards as I have Read in a very good Author of the Roman Civil Law the number of complaints being much increased and being more than the Emperor could dispatch he appointed an Officer as his Clerk to receive all such Petitions and that this Clerk caused a partition to be made in a Room convenient in which partition-Wall at the heighth of a Mans reach he placed at convenient distances certain Bars so that when a Suitor came to deliver his Petition to the Clerk who was sometimes absent he had no more to do but to throw in his Petition between those Bars which in Latin are called properly Cancelli not that any certain Form of those Bars or any Bars at all were necessary for they might have been thrown over though the whole space had been left open but because they were Cancelli the Clerk Attendant and keeping his Office there was called Cancellarius And any Court Bar may properly enough be called Cancelli which does not signifie a Lattice for that is but a meer Conjecture grounded upon no History nor Grammar but taken up at first as is likely by some Boy that could find no other word in the Dictionary for a Lattice but Cancelli The Office of this Chancellour was at first but to Breviate the matter of the Petitions for the easing of the Emperor but Complaints encreasing daily they were too many considering other Businesses more necessary for the Emperor to determine and this caused the Emperor to commit the Determination of them to the Chancellor again what Reason doth Sir Edw. Coke alledge to prove that the highest point of the Chancellors Jurisdiction is to Cancel his Masters Letters Patents after they were Sealed with his Masters Seal unless he hold Plea concerning the validity of them or of his Masters meaning in them or of the surreptitious getting of them or of the abusing of them which are all causes of Equity Also seeing the Chancellor hath his Office only by the delivery of the Great Seal without any Instruction or Limitation of the Process in his Court to be used it is manifest that in all Causes whereof he has the hearing he may proceed by such manner of hearing and examining of Witnesses with Jury or without Jury as he shall think fittest for the Exactness Expedition and Equity of the Decrees And therefore if he think the Custome of proceeding by Jury according to the Custome of England in Courts of Common-Law tend more to Equity which is the scope of all the Judges in the World or ought to be he ought to use that method or if he think better of another proceeding he may use it if it be not forbidden by a Statute La. As for this Reasoning of yours I think it well enough but there ought to be had also a reverend respect to Customs not unreasonable and therefore I think Sir Edw. Coke says not amiss that in such Cases where the Chancellor will proceed by the Rule of the Common-Law he ought to deliver the Record in the Kings-Bench and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by Statutes Ph. What are the Statutes by which his Jurisdiction is limited I know that by the 27 Eliz. cap. 8. He cannot Reverse a Judgment given in the Kings-Bench for Debt Detinue c. Nor before the Statute could he ever by virtue of his Office Reverse a Judgment in Pleas of the Crown given by the Kings-Bench that hath the Cognizance of such Pleas nor need he for the Judges themselves when they think there is need to relieve a Man opprest by ill Witnesses or power of great Men prevailing on the Jury or by Error of the Jury though it be in case of Felony may stay the Execution and Inform the King who will in Equity relieve him As to the regard we ought to have to Custome we will Consider of it afterward La. First in a Parliament holden the 13th of Rich. 2. the Commons Petitioned the King that neither the Chancellor nor other Chancellor do make any order against the Common-Law
ascribe to Custome I deny that any Custome of its own Nature can amount to the Authority of a Law For if the Custom be unreasonable you must with all other Lawyers confess that it is no Law but ought to be abolished and if the Custom be reasonable it is not the Custom but the Equity that makes it Law For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal Besides you cannot find in any Statute though Lex Consuetudo be often mentioned as things to be followed by the Judges in their Judgments that Consuetudines that is to say Customs or Usages did imply any Long continuance of former time but that it signified such Use and Custom of proceeding as was then immediately in being before the making of such Statute Nor shall you find in any Statute the word Common-Law which may not be there well Interpreted for any of the Laws of England Temporal for it is not the singularity of Process used in any Court that can distinguish it so as to make it a different Law from the Law of the whole Nation La. If all Courts were as you think Courts of Equity would it not be incommodious to the Common-wealth Ph. I think not unless perhaps you may say that seeing the Judges whether they have many or few causes to be heard before them have but the same wages from the King they may be too much inclin'd to put off the Causes they use to hear for the easing of themselves to some other Court to the delay of Justice and dammage of the Parties suing La. You are very much deceiv'd in that for on contrary the Contention between the Courts for Jurisdiction is of who shall have most Causes brought before them Ph. I cry you Mercy I smelt not that La. Seeing also all Judges ought to give their Sentence according to Equity if it should chance that a Written Law should be against the Law of Reason which is Equity I cannot Imagine in that Case how any Judgment can be Righteous Ph. It cannot be that a Written Law should be against Reason For nothing is more reasonable than that every Man should obey the Law which he hath himself assented to but that is not always the Law which is signified by Grammatical Construction of the Letter but that which the Legislator thereby intended should be in Force which Intention I Confess is a very hard matter many times to pick out of the words of the Statute and requires great Ability of understanding and greater Meditations and Considerations of such Conjuncture of occasions and Incommodities as needed a new Law for a Remedy for there is scarce any thing so clearly written that when the Cause thereof is forgotten may not be wrested by an ignorant Grammarian or a Cavilling Logician to the Injury Oppression or perhaps Destruction of an honest Man And for this Reason the Judges deserve that Honour and Profit they enjoy since the Determination of what particular Causes every particular Court should have Cognizance is a thing not yet sufficiently explained and is in it self so difficult as that the Sages of the Law themselves the Reason Sir Edw. Coke will leave to Law it self are not yet agreed upon it how is it possible for a Man that is no professed or no profound Lawyer to take notice in what Court he may Lawfully begin his Suit or give Council in it to his Client La. I confess that no Man can be bound to take notice of the Jurisdiction of Courts till all the Courts be agreed upon it amongst themselves but what Rule to give Judgment by a Judge can have so as never to contradict the Law written nor displease his Legislator I understand not Ph. I think he may avoid both if he take care by his Sentence that he neither punish an Innocent nor deprive him of his â—ammages due from one that maliciously â—â—eth him without reasonable Cause which â—o the most of Rational Men and unbiassed â—s not in my Opinion very difficult And though a Judge should as all Men may do Erre in his Judgment yet there is always such power in the Laws of England as may content the Parties either in the Chancery or by Commissioners of their own choosing Authorized by the King for every Man â—s bound to acquiesce in the Sentence of the Judges he chooseth La. In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker Ph. Very many whereof Sir Edw. Coke nameth 3 Fraud Accident and Breach of Confidence but there be many more for there be a very great many reasonable Exceptions almost to every General Rule which the makers of the Rule could not foresee and very many words in every Statute especially long ones that are as to Grammar of Ambiguous signification and yet to them that know well to what end the Statute was made perspicuous enough and many Connections of doubtful reference which by a Grammarian may be Cavill'd at though the Intention of the Lawmaker be never so perspicuous And these are the difficulties which the Judges ought to Master and can do it in respect of their Ability for which they are chosen as well as can be hoped for and yet there are other Men can do the same or else the Judges places could not be from time to time supplyed The Bishops commonly are the most able and rational Men and obliged by their profession to Study Equity because it is the Law of God and are therefore capable of being Judges in a Court of Equity They are the Men that teach the People what is Sin that is to say they are the Doctors in Cases of Conscience What reason then can you shew me why it is unfit and hurtful to the Common-wealth that a Bishop should be a Chancellor as they were most often before the time of Hen. 8. and since that time once in the Raign of King James La. But Sir Ed. says that soon after that a Chancellor was made which was no Professor of the Law he finds in the Rolls of the Parliament a grievous Complaint by the whole Body of the Realm and a Petition that the most wise and able Men within the Realm might be chosen Chancellors Ph. That Petition was Reasonable but it does not say which are Abler Men the Judges of the Common Law or the Bishops La. That is not the great Question as to the Ability of a Judge both of one and the other there are Able Men in their own way but when a Judge of Equity has need almost in every Case to consider as well the Statute-Law as the Law of Reason he cannot perform his Office perfectly unless he be also ready in the Statutes Ph. I see no great need he has to be ready in the Statutes in the hearing of a Cause do the Judges of the common-Common-Law Inform the Council at the Bar what the Statute is or the
and a Traytor But now let us come to his Comment upon this Statute The Statute says as it is Printed in English when a Man doth Compass or Imagine the Death of our Lord the King c. What is the meaning of the word Compassing or Imagining La. On this place Sir Edw. Coke says that before the making of this Act Voluntas reputabatur pro facto the Will was taken for the Deed. And so saith Bracton Spectatur Voluntas non Exitus nihil interest utrum quis occidat aut causam praebeat That is to say the Cause of the killing Now Sir Edw. Coke says this was the Law before the Statute and that to be a Cause of the killing is to declare the same by some open Deed tending to the Execution of his Intent or which might be Cause of Death Ph. Is there any English-man can understand that to Cause the Death of a Man and to declare the same is all one thing And if this were so and that such was the common-Common-Law before the Statute by what words in the Statute is it taken away La. It is not taken away but the manner how it must be prov'd is thus Determin'd that it must be prov'd by some open Deed as providing of Weapons Powder Poyson Assaying of Armour sending of Letters c. Ph. But what is the Crime it self which this Statute maketh Treason For as I understand the words To Compass or Imagine the Kings Death c. The Compassing as it is in the English is the only thing which is made High Treason so that not only the killing but the Design is made High Treason or as it is in the French Record Fait Compasser That is to say the causing of others to Compass or Design the Kings Death is High Treason and the words par overt fait are not added as a specification of any Treason or other Crime but only of the Proof that is requir'd by the Law Seeing then the Crime is the Design and Purpose to kill the King or cause him to be killed and lyeth hidden in the Breast of him that is Accused what other Proof can there be had of it than words Spoken or Written And therefore if there be sufficient Witness that he by words Declared that he had such a Design there can be no Question but that he is Comprehended within this Statute Sir Edw. Coke doth not deny but that if he Confess this Design either by Word or Writing but that he is within the Statute As for that Common saying that bare words may make a Heretick but not a Traytor which Sir Edw. Coke on this occasion maketh use of they are to little purpose seeing that this Statute maketh not the words High Treason but the Intention whereof the words are but a Testimony and that Common-saying is false as it is generally Pronounced for there were divers Statutes made afterwards though now expir'd which made bare words to be Treason without any other Deed As 1 El. cap. 6. 13. El. cap. 1. If a Man should Publickly Preach that the King were an Usurper or that the Right of the Crown belonged to any other than the King that Reigned there is no doubt but it were Treason not only within this Statute of E. 3. but also within the Statute of 1 Ed. 6. c. 12. which are both still in Force La. Not only so but if a Subject should counsel any other Man to kill the King Queen or Heir apparent to the Crown it would at this day be Judged High Treason and yet it is no more than bare words In the third year of King James Henry Garnet a Jesuit-Priest to whom some of the Gun-Powder Traytors had Revealed their design by way of Confession gave them Absolution without any Caution taken for their desisting from their purpose or other provision against the danger was therefore Condemned and Executed as a Traytor though such Absolution were nothing else but bare words Also I find in the Reports of Sir John Davis Attorney-General for Ireland that in the time of King Henry the 6th a Man was Condemned of Treason for saying the King was a Natural Fool and unfit to Govern but yet this Clause in the Statute of Edw. 3. viz. That the Compassing there mentioned ought to be proved by some Overt Act was by the Framers of the Statute not without great Wisdom and Providence inserted For as Sir Edw. Coke very well observeth when Witnesses are Examin'd concerning words only they never or very rarely agree precisely about the words they Swear to Ph. I deny not but that it was wisely enough done But the Question is not here of the Treason which is either Fact or design but of the Proof which when it is doubtful is to be Judged by a Jury of 12 Lawful Men Now whether think you is it a better Proof of a Mans Intention to kill that he declares that same with his own Mouth so as it may be Witnessed or that he provide Weapons Powder Poyson or Assay Arms If he utter his Design by words the Jury has no more to do than to consider the Legallity of the VVitnesses the Harmony of their Testimonies or whether the words were spoken advisedly For they might have been uttered in a Disputation for Exercise only or when he that spake them had not the use of Reason nor perhaps any Design or wish at all towards the Execution of what he talked of But how a Jury from providing or buying of Armour or buying of Gun-Powder or from any other overt Act not Treason in it self can infer a Design of Murdering the King unless there appear some words also signifying to what end he made such Provision I cannot easily conceive Therefore as the Jury on the whole matter VVords and Deeds shall ground their Judgment concerning Design or not Design so in Reason they ought to give Verdict But to come to the Treason of Counterfeiting the Great or Privy-Seal seeing there are so many ways for a Cheating Fellow to make use of these Seals to the Cousening of the King and his People why are not all such abuses High-Treason as well as the making of a false Seal La. So they are For Sir Edw. Coke produceth a Record of one that was Drawn and Hang'd for taking the Great Seal from an expir'd Patent and fastning it to a Counterfeit Commission to gather Money But he approveth not the Judgment because it is the Judgment for Petty Treason also because the Jury did not find him Guilty of the Offence laid in the Indictment which was the Counterfeiting of the Great-Seal but found the special matter for which the Offender was Drawn and Hang'd Ph. Seeing this Crime of taking the Great Seal from one VVriting and fastning it to another was not found High Treason by the Jury nor could be found upon special matter to be the other kind of Treason mentioned in the same Statute what ground had either the Jury to find it
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-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
open before them be Burglary Robbery Theft or other Felony for this is to give a leading Judgment to the Jury who ought not to consider any private Lawyers Institutes but the Statutes themselves pleaded before them for directions La. Burning as he defines it p. 66. is a Felony at the Common-Law committed by any that maliciously and voluntarily in the night or day burneth the House of another And hereupon infers if a Man sets Fire to the House and it takes not that then it is not within the Statute Ph. If a Man should secretly and maliciously lay a quantity of Gun-Powder under another Mans House sufficient to Blow it up and set a Train of Powder in it and set Fire to the Train and some Accident hinder the Effect is not this Burning or what is it What Crime It is neither Treason nor Murder nor Burglary nor Robbery nor Theft nor no dammage being made any Trespass nor contrary to any Statute And yet seeing the Common-Law is the Law of Reason it is a sin and such a sin as a Man may be Accused of and Convicted and consequently a Crime committed of Malice prepensed shall he not then be Punished for the Attempt I grant you that a Judge has no Warrant from any Statute-Law Common-Law or Commission to appoint the Punishment but surely the King has power to Punish him on this side of Life or Member as he please and with the Assent of Parliament if not without to make the Crime for the future Capital La. I know not Besides these Crimes there is Conjuration Witch-craft Sorcery and Inchantment which are Capital by the Statute 1 of King James cap. 12. Ph. But I desire not to discourse of that Subject for though without doubt there is some great Wickedness signified by those Crimes yet I have ever found my self too dull to conceive the nature of them or how the Devil hath power to do many things which Witches have been Accused of Let us now come to Crimes not Capital La. Shall we pass over the Crime of Heresie which Sir Edw. Coke ranketh before Murder but the consideration of it will be somewhat long Ph. Let us defer it till the Afternoon Of Heresie La. COncerning Heresie Sir Edw. Coke 4 Inst. p. 39. says that 5 things fall into consideration 1. Who be the Judges of Heresie 2. What shall be Judged Heresie 3. What is the Judgment upon a Man Convicted of Heresie 4. What the Law alloweth him to save his Life 5. What he shall forfeit by Judgment against him Ph. The principal thing to be considered which is the Heresie it self he leaveth out viz. What it is in what Fact or Words it consisteth what Law it violateth Statute-Law or the Law of Reason The Cause why he omitteth it may perhaps be this that it was not only out of his Profession but also out of his other Learning Murder Robbery Theft c. Every Man knoweth to be evil and are Crimes defined by the statute-Statute-Law so that any Man may avoid them if he will But who can be sure to avoid Heresie if he but dare to give an Account of his Faith unless he know beforehand what it is La. In the Preamble of the Statute of the 2d Hen. 4. cap. 15. Heresie is laid down as a Preaching or Writing of such Doctrine as is contrary to the determination of Holy Church Ph. Then it is Heresie at this day to Preach or Write against Worshipping of Saints or the Infallibility of the Church of Rome or any other determination of the same Church For Holy-Church at that time was understood to be the Church of Rome and now with us the Holy-Church I understand to be the Church of England and the Opinions in that Statute are now and were then the true Christian Faith Also the same Statute of Hen. 4. Declareth by the same Preamble that the Church of England had never been troubled with Heresie La. But that Statute is Repeal'd Ph. Then also is that Declaration or Definition of Heresie repeal'd La. What say you is Heresie Ph. I say Heresie is a singularity of Doctrine or Opinion contrary to the Doctrine of another Man or Men and the word properly signifies the Doctrine of a Sect which Doctrine is taken upon Trust of some Man of Reputation for Wisdom that was the first Author of the same If you will understand the truth hereof you are to Read the Histories and other Writings of the Antient Greeks whose word it is which Writings are extant in these days and easie to be had Wherein you will find that in and a little before the time of Alexander the Great there lived in Greece many Excellent Wits that employed their time in search of the Truth in all manner of Sciences worthy of their Labour and which to their great Honour and Applause published their Writings some concerning Justice Laws and Government some concerning Good and Evil Manners some concerning the Causes of things Natural and of Events discernable by sense and some of all these Subjects And of the Authors of these the Principal were Pythagoras Plato Zeno Epicurus and Aristotle Men of deep and laborious Meditation and such as did not get their Bread by their Philosophy but were able to live of their own and were in Honour with Princes and other great Personages But these Men though above the rest in Wisdom yet their Doctrine in many points did disagree whereby it came to pass that such Men as studied their Writings inclined some to Pythagoras some to Plato some to Aristotle some to Zeno and some to Epicurus But Philosophy it self was then so much in Fashion as that every Rich Man endeavour'd to have his Children educated in the Doctrine of some or other of these Philosophers which were for their Wisdom so much renown'd Now those that followed Pythagoras were called Pythagoreans those that followed Plato Academicks those that followed Zeno Stoicks those that followed Epicurus Epicureans and those that followed Aristotle Peripateticks which are the names of Heresie in Greek which signifies no more but taking of an Opinion and the said Pythagoreans Academicks Stoicks Peripateticks c. were termed by the names of so many several Heresies All Men you know are subject to Error and the ways of Error very different and therefore 't is no wonder if these Wise and diligent searchers of the Truth did notwithstanding their Excellent parts differ in many points amongst themselves But this Laudable Custom of Great Wealthy Persons to have their Children at any price to learn Philosophy suggested to many idle and needy Fellows an easie and compendious way of Maintenance which was to Teach the Philosophy some of Plato some of Aristotle c. Whose Books to that end they Read over but without Capacity or much Endeavour to examine the Reasons of their Doctrines taking only the Conclusions as they lay and setting up with this they soon professed themselves Philosophers and got to be the School-Masters to the
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
of another Man Then as Sir Edw. Coke says 3 Inst. p 56. it had been Murder Ph. There is indeed great need of good distinction in a Case of killing by misfortune but in this Case the unlawfulness of stealing Apples cannot make it Murder unless the falling it self be unlawful It must be a voluntary unlawful Act that causeth the death or else it is no Murder by the Law of Reason Now the death of the Man that was under the Tree proceeded not from that that the Apples were not his that fell but from the fall But if a Man shoot with a Bow or a Gun at another Man's Deer and by misfortune kill a Man such shooting being both voluntary and unlawful and also the immediate Cause of the Mans death may be drawn perhaps well enough sometimes to Murder by a Judge of the common-Common-Law So likewise if a Man shoot an Arrow over a House and by chance kill a Man in the Street there is no doubt but by the Law of Reason it is Murder for though he meant no malice to the Man slain yet it is manifest that he cared not whom he slew In this difficulty of finding out what it is that the Law of Reason dictates who is it that must decide the Question La. In the Case of misfortune I think it belongs to the Jury for it is matter of Fact only But when it is doubtful whether the action from which the misfortune came were Lawful or Unlawful it is to be judged by the Judge Ph. But if the unlawfulness of the action as the stealing of the Apples did not cause the death of the Man then the stealing be it Trespass or Felony ought to be punished alone as the Law requireth La. But for killing of a Man se defendendo the Jury as Sir Edw. Coke here says shall not in their Verdict say it was se defendendo but shall declare the manner of the Fact in special and clear it to the Judge to consider how it is to be called whether se defendendo Manslaughter or Murder Ph. One would think so for it is not often within the capacity of a Jury to distinguish the signification of the different and hard names which are given by Lawyers to the killing of a Man as Murder and Felony which neither the Laws nor the makers of the Laws have yet defined The Witnesses say that thus and thus the Person did but not that it was Murder or Felony no more can the Jury say who ought to say nothing but what they hear from the Witnesses or from the Prisoner Nor ought the Judge to ground his Sentence upon any thing else besides the special matter found which according as it is contrary or not contrary to the Statute ought to be pronounced La. But I have told you that when the Jury has found misfortune or se defendendo there is no judgment at all to be given and the Party is to be pardoned of course saving that he shall forfeit his Goods and Chattells Debts and Duties to the King Ph. But I understand not how there can be a Crime for which there is no Judgment nor how any Punishment can be inflicted without a precedent Judgment nor upon what ground the Sheriff can seize the Goods of any Man till it be judged that they be forfeited I know that Sir Edw. Coke saith that in the Judgment of hanging the Judgment of forfeiture is implyed which I understand not though I understand well enough that the Sheriff by his Office may seize the Goods of a Felon convicted much less do I conceive how the forfeiture of Goods can be implyed in a no-judgment nor do I conceive that when the Jury has found the special manner of the Fact to be such as is really no other than se defendendo and consequently no fault at all why he should have any Punishment at all Can you shew me any Reason for it La. The Reason lies in the Custom Ph. You know that unreasonable Customs are not Law but ought to be abolished and what Custom is there more unreasonable than that a Man should be punished without a fault La. Then see the Statute of 24 Hen. 8. cap. 5. Ph. I find here that at the making of this Statute there was a Question amongst the Lawyers in case one Man should kill another that attempted feloniously to Rob or Murder him in or near any Common High-way Court-way Horse-way or Foot-way or in his Mansion Messuage or Dwelling-place whether for the death of such a Man one shall forfeit his Goods and Chattells as a Man should do for killing another by Chance-medley or in his own defence This is the Preamble and penned as well as Sir Edw. Coke could have wished but this Statute does not determine that a Man should forfeit his Goods for killing a Man se defendendo or for killing him by misfortune but supposeth it only upon the opinion of the Lawyers that then were The body of the Statute is that if a Man be indicted or appealed for the death of such Person so attempting as aforesaid and the same by verdict be so found and tryed he shall not forfeit any thing but shall be discharged as if he had been found not Guilty You see the Statute now consider thereby in the case of killing se defendendo Frst if a Man kill another in his own defence it is manifest that the Man slain did either attempt to Rob or to Kill or to Wound him for else it was not done in his own defence If then it were done in the Street or near the Street as in a Tavern he forfeits nothing because the Street is a High-way So likewise it is to be said of all other Common-ways In what place therefore can a Man kill another in his own defence but that this Statute will discharge him of the forfeiture La. But the Statute says the attempt must be felonious Ph. When a Man assaults me with a Knife Sword Club or other mortal Weapon does any Law forbid me to defend my self or command me to stay so long as to know whether he have a felonious intent or no Therefore by this Statute in case it be found se defendendo the forfeiture is discharged if it be found otherwise it is Capital If we read the Statute of Glocester cap. 9. I think it will take away the difficulty For by that Statute in case it be found by the Countrey that he did it in his own defence or by misfortune then by the report of the Justices to the King the King shall take him to his Grace if it please him From whence it followeth first that it was then thought Law that the Jury may give the general verdict of se defendendo which Sir Edw. Coke denies Secondly that the Judge ought to report especial matter to the King Thirdly that the King may take him to his Grace if he please and consequently that his Goods are not to be seiz'd till the