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
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-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
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