Youth of Greece but by Competition for such Employment they hated and reviled one another with all the bitter Terms they could invent and very often when upon Occasion they were in Civil Company fell first to Disputation and then to Blows to the great trouble of the Company and their own shame Yet amongst all their reproachful words the name of Heretick came never in because they were all equally Hereticks their Doctrine not being theirs but taken upon Trust from the aforesaid Authors So that though we find Heresie often mentioned in Lucian and other Heathen Authors yet we shall not find in any of them Haereticus for a Heretick And this Disorder among the Philosophers continued a long time in Greece and Infecting also the Romans was at the greatest in the times of the Apostles and in the Primitive Church till the time of the Nicene Council and somewhat after But at last the Authority of the Stoicks and Epicureans was not much Esteemed only Plato's and Aristotle's Philosophy were much in Credit Plato's with the better sort that founded their Doctrine upon the Conceptions and Ideas of things and Aristotle's with those that reasoned only from the names of Things according to the Scale of the Categories Nevertheless there were always though not New Sects of Philosophy yet New Opinions continually arising La. But how came the word Heretick to be a Reproach Ph. Stay a little After the Death of our Saviour his Apostles and his Disciples as you know dispersed themselves into several parts of the World to Preach the Gospel and converted much People especially in Asia the less in Greece and Italy where they Constituted many Churches and as they Travelled from place to place left Bishops to Teach and Direct those their Converts and to appoint Presbyters under them to Assist them therein and to Confirm them by setting forth the Life and Miracles of our Saviour as they had receiv'd it from the Writings of the Apostles and Evangelists whereby and not by the Authority of Plato or Aristotle or any other Philosopher they were to be Instructed Now you cannot doubt but that among so many Heathens converted in the time of the Apostles there were Men of all Professions and Dispositions and some that had never thought of Philosophy at all but were intent upon their Fortunes or their Pleasures and some that had a greater some a lesser use of Reason and some that had studied Philosophy but professed it not which were commonly the Men of the better Rank and some had Professed it only for their better Abstinence and had it not farther than readily to talk and wrangle and some were Christians in good earnest and others but Counterfeit intending to make use of the Charity of those that were sincere Christians which in those times was very great Tell me now of these sorts of Christians which was the most likely to afford the fittest Men to propagate the Faith by Preaching and Writing or Publick or private Disputation that is to say who were fittest to be made Presbyters and Bishops La. Certainly those who caeteris paribus could make the best use of Aristotle's Rhetorick and Logick Ph. And who were the most prone to Innovation La. They that were most confident of Aristotle's and Plato's their former Masters Natural Philosophy For they would be the aptest to wrest the Writings of the Apostles and all Scriptures to the Doctrine in which their Reputation was engag'd Ph. And from such Bishops and Priests and other Sectaries it was that Heresie amongst the Christians first came to be a Reproach For no sooner had one of them Preached or Published any Doctrine that displeased either the most or the most Leading Men of the rest but it became such a Quarrel as not to be decided but by a Council of the Bishops in the Province where they Lived wherein he that would not submit to the General Decree was called an Heretick as one that would not reliquish the Philosophy of his Sect the rest of the Council gave themselves the name of Catholicks and to their Church the name of Catholick Church And thus came up the opposite Terms of Catholick and Heretick La. I understand how it came to be a Reproach but not how it follows that every Opinion condemned by a Church that is or calls it self Catholick must needs be an Error or a Sin The Church of England denies that Consequence and that Doctrine as they hold cannot be proved to be Erroneous but by the Scripture which cannot Err but the Church being but men may both Err and Sin Ph. In this Case we must consider also that Error in it's own Nature is no Sin For it is Impossible for a Man to Err on purpose he cannot have an Intention to Err and nothing is Sin unless there be a sinful Intention much less are such Errors Sins as neither hurt the Common-wealth nor any private Man nor are against any Law Positive or Natural such Errors as were those for which Men were burnt in the time when the Pope had the Government of this Church La. Since you have told me how Herefie came to be a name tell me also how it came to be a Crime And what were the Heresies that first were made Crimes Ph. Since the Christian Church could declare and none else what Doctrine were Heresies but had no power to make Statutes for the punishment of Hereticks before they had a Christian King it is manifest that Heresie could not be made a Crime before the first Christian Emperor which was Constantine the Great In his time one Arius a Priest of Alexandria in Dispute with his Bishop Publickly denyed the Divinity of Christ and Maintained it afterwards in the Pulpit which was the Cause of a Sedition and much Blood shed both of Citizens and Souldiers in that City For the preventing of the like for the time to come the Emperor called a General Council of Bishops to the City of Nice who being met he exhorted them to agree upon a Confession of the Christian Faith promising whatsoever they agreed on he would cause to be observed La. By the way the Emperor I think was here a little too Indifferent Ph. In this Council was Established so much of the Creed we now use and call the Nicene Creed as reacheth to the words I believe in the Holy Ghost The rest was Established by the 3 General Councils next succeeding By the words of which Creed almost all the Heresies then in being and especially the Doctrine of Arius were Condemn'd So that now all Doctrines Published by Writing or by Word and repugnant to this Confession of the first four General Councils and contained in the Nicene Creed were by the Imperial Law forbidding them made Crimes such as are that of Arius denying the Divinity of Christ that of Eutiches denying the 2 Natures of Christ that of the Nestorians denying the Divinity of the Holy Ghost that of the Anthropomorphites that of the Manichees that
ascribe to Custome I deny that any Custome of its own Nature can amount to the Authority of a Law For if the Custom be unreasonable you must with all other Lawyers confess that it is no Law but ought to be abolished and if the Custom be reasonable it is not the Custom but the Equity that makes it Law For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal Besides you cannot find in any Statute though Lex Consuetudo be often mentioned as things to be followed by the Judges in their Judgments that Consuetudines that is to say Customs or Usages did imply any Long continuance of former time but that it signified such Use and Custom of proceeding as was then immediately in being before the making of such Statute Nor shall you find in any Statute the word Common-Law which may not be there well Interpreted for any of the Laws of England Temporal for it is not the singularity of Process used in any Court that can distinguish it so as to make it a different Law from the Law of the whole Nation La. If all Courts were as you think Courts of Equity would it not be incommodious to the Common-wealth Ph. I think not unless perhaps you may say that seeing the Judges whether they have many or few causes to be heard before them have but the same wages from the King they may be too much inclin'd to put off the Causes they use to hear for the easing of themselves to some other Court to the delay of Justice and dammage of the Parties suing La. You are very much deceiv'd in that for on contrary the Contention between the Courts for Jurisdiction is of who shall have most Causes brought before them Ph. I cry you Mercy I smelt not that La. Seeing also all Judges ought to give their Sentence according to Equity if it should chance that a Written Law should be against the Law of Reason which is Equity I cannot Imagine in that Case how any Judgment can be Righteous Ph. It cannot be that a Written Law should be against Reason For nothing is more reasonable than that every Man should obey the Law which he hath himself assented to but that is not always the Law which is signified by Grammatical Construction of the Letter but that which the Legislator thereby intended should be in Force which Intention I Confess is a very hard matter many times to pick out of the words of the Statute and requires great Ability of understanding and greater Meditations and Considerations of such Conjuncture of occasions and Incommodities as needed a new Law for a Remedy for there is scarce any thing so clearly written that when the Cause thereof is forgotten may not be wrested by an ignorant Grammarian or a Cavilling Logician to the Injury Oppression or perhaps Destruction of an honest Man And for this Reason the Judges deserve that Honour and Profit they enjoy since the Determination of what particular Causes every particular Court should have Cognizance is a thing not yet sufficiently explained and is in it self so difficult as that the Sages of the Law themselves the Reason Sir Edw. Coke will leave to Law it self are not yet agreed upon it how is it possible for a Man that is no professed or no profound Lawyer to take notice in what Court he may Lawfully begin his Suit or give Council in it to his Client La. I confess that no Man can be bound to take notice of the Jurisdiction of Courts till all the Courts be agreed upon it amongst themselves but what Rule to give Judgment by a Judge can have so as never to contradict the Law written nor displease his Legislator I understand not Ph. I think he may avoid both if he take care by his Sentence that he neither punish an Innocent nor deprive him of his â—ammages due from one that maliciously â—â—eth him without reasonable Cause which â—o the most of Rational Men and unbiassed â—s not in my Opinion very difficult And though a Judge should as all Men may do Erre in his Judgment yet there is always such power in the Laws of England as may content the Parties either in the Chancery or by Commissioners of their own choosing Authorized by the King for every Man â—s bound to acquiesce in the Sentence of the Judges he chooseth La. In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker Ph. Very many whereof Sir Edw. Coke nameth 3 Fraud Accident and Breach of Confidence but there be many more for there be a very great many reasonable Exceptions almost to every General Rule which the makers of the Rule could not foresee and very many words in every Statute especially long ones that are as to Grammar of Ambiguous signification and yet to them that know well to what end the Statute was made perspicuous enough and many Connections of doubtful reference which by a Grammarian may be Cavill'd at though the Intention of the Lawmaker be never so perspicuous And these are the difficulties which the Judges ought to Master and can do it in respect of their Ability for which they are chosen as well as can be hoped for and yet there are other Men can do the same or else the Judges places could not be from time to time supplyed The Bishops commonly are the most able and rational Men and obliged by their profession to Study Equity because it is the Law of God and are therefore capable of being Judges in a Court of Equity They are the Men that teach the People what is Sin that is to say they are the Doctors in Cases of Conscience What reason then can you shew me why it is unfit and hurtful to the Common-wealth that a Bishop should be a Chancellor as they were most often before the time of Hen. 8. and since that time once in the Raign of King James La. But Sir Ed. says that soon after that a Chancellor was made which was no Professor of the Law he finds in the Rolls of the Parliament a grievous Complaint by the whole Body of the Realm and a Petition that the most wise and able Men within the Realm might be chosen Chancellors Ph. That Petition was Reasonable but it does not say which are Abler Men the Judges of the Common Law or the Bishops La. That is not the great Question as to the Ability of a Judge both of one and the other there are Able Men in their own way but when a Judge of Equity has need almost in every Case to consider as well the Statute-Law as the Law of Reason he cannot perform his Office perfectly unless he be also ready in the Statutes Ph. I see no great need he has to be ready in the Statutes in the hearing of a Cause do the Judges of the Common-Law Inform the Council at the Bar what the Statute is or the
it and breaks his Neck but by the same chance saveth his own Life Sir Edw. Coke it seems will have him Hanged for it as if he had fallen of prepensed Malice All that can be called Crime in this Business is but a simple Trespass to the dammage perhaps of sixpence or a shilling I confess the Trespass was an Offence against the Law but the falling was none nor was it by the Trespass but by the falling that the Man was slain and as he ought to be quit of the killing so he ought to make Restitution for the Trespass But I believe the Cause of Sir Edw. Coke's mistake was his not well understanding of Bracton whom he cites in the Margin For 1206 he saith thus Sed hic erit distinguendum utrum quis dederit operam rei licitae vel illicitae si illicitae ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere vel dum insequitur equum vel bovem aliquis ab equo vel a bove percussus fuerit hujusmodi hoc imputatur ei i. e. But here we are to distinguish whether a Man be upon a Lawful or Unlawful business if an unlawful as he that throws a stone into a place where Men use to pass or if he chase a Horse or an Ox and thereby the Man be stricken by the Horse or the Ox this shall be imputed to him And it is most reasonable For the doing of such an unlawful Act as is here meant is a sufficient Argument of a Felonious purpose or at least a hope to kill some body or other and he cared not whom which is worse than to design the death of a certain Adversary which nevertheless is Murder Also on the contrary though the business a Man is doing be Lawful and it chanceth sometimes that a Man be slain thereby yet may such killing be Felony For if a Car-man drive his Cart through Cheapside in a throng of People and thereby he kill a Man though he bare him no Malice yet because he saw there was very great danger it may reasonably be inferr'd that he meant to adventure the killing of some body or other though not of him that was kill'd La. He is a Felon also that killeth himself voluntarily and is called not only by Common Lawyers but also in divers Statute-Laws Felo de se. Ph. And 't is well so For names imposed by Statutes are equivalent to Definitions but I conceive not how any Man can bear Animum felleum or so much Malice towards himself as to hurt himself voluntarily much less to kill himself for naturally and necessarily the Intention of every Man aimeth at somewhat which is good to himself and tendeth to his preservation And therefore methinks if he kill himself it is to be presumed that he is not compos mentis but by some inward Torment or Apprehension of somewhat worse than Death Distracted La. Nay unless he be compos mentis he is not Felo de se as Sir Edw. Coke saith 4 Inst. p. 54. and therefore he cannot be Judged a Felo de se unless it be first proved he was compos mentis Ph. How can that be proved of a Man dead especially if it cannot be proved by any Witness that a little before his death he spake as other men used to do This is a hard place and before you take it for Common-Law it had need to be clear'd La. I 'le think on 't There 's a Statute of 3 Hen. 7. c. 14. which makes it Felony in any of the Kings Houshold-Servants under the degree of a Lord to Compass the Death of any of the Kings Privy-Council The words are these That from henceforth the Steward Treasurer and Controuler of the Kings House for that time being or one of them have full Authority and Power to inquire by 12 sad Men and discreet Persons of the Chequer-Roll of the King 's Honourable Houshold If any Servant admitted to his Servant Sworn and his name put into the Chequer-Roll whatsoever he be serving in any manner Office or Room reputed had or taken under the State of a Lord make any Confederacies Compassings Conspiracies or Imaginations with any Person to Destroy or Murder the King or any Lord of this Realm or any other Person sworn to the Kings Council Steward Treasurer or Controuler of the Kings House And if such Misdoers shall be found Guilty by Confession or otherwise that the said Offence shall be Judged Felony Ph. It appears by this Statute that not only the Compassing the Death as you say of a Privy-Councellor but also of any Lord of this Realm is Felony if it be done by Any of the Kings Houshold Servants that is not a Lord. La. No Sir Edw. Coke upon these words any Lord of this Realm or other Person Sworn of the Kings Council infers 4 Inst. p. 38. that is to be understood of such a Lord only as is a Privy-Councellor Ph. For barring of the Lords of Parliament from this Priviledge he strains this Statute a little farther in my Opinion than it reacheth of it self But how are such Felonies to be Tryed La. The Indictment is to be found before the Steward Treasurer and Controuler of the Kings House or one of them by 12 of the Kings Houshold Servants The Petit Jury for the Tryal must be 12 other of the Kings Servants and the Judges are again the Steward Treasurer and Controuler of the Kings House or 2 of them and yet I see that these Men are not usually great Students of the Law Ph. You may hereby be assur'd that either the King and Parliament were very much overseen in choosing such Officers perpetually for the time being to be Judges in a Tryal at the Common-Law or else that Sir Edw. Coke presumes too much to appropriate all the Judicature both in Law and Equity to the Common-Lawyers as if neither Lay-Persons Men of Honour nor any of the Lords Spiritual who are the most versed in the Examination of Equity and Cases of Conscience when they hear the Statutes Read and Pleaded were unfit to Judge of the intention and meaning of the same I know that neither such great Persons nor Bishops have ordinarily so much spare time from their ordinary Employment as to be so skilful as to Plead Causes at the Bar but certainly they are especially the Bishops the best able to Judge of matters of Reason that is to say by Sir Edw. Coke's Confession of matters except of Blood at the Common-Law La. Another sort of Felony though without Man-slaughter is Robbery and by Sir Edw. Coke 4 Inst. p. 68. defined thus Robbery by the Common-Law is a Felony committed by a violent Assault upon the Person of another by putting him in fear and taking away from him his Money or other Goods of any value whatsoever Ph. Robbery is not distinguished from Theft by any Statute Latrocinium comprehendeth them both and both are Felony and both