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
that is certain But if it make for the Adversary we may say That men inforced by Torture speak as well that which is false as that which is true That they who can endure conceal the truth and they who cannot say that which is false to be delivered from pain For Oaths he that will not put his Adversary to his Oath may alledge That he makes no scruple to be forsworn That by swearing he will carry the cause which not swearing he must lose That he had rather trust his cause in the hand of the Judge than of the Adversary He that refuseth to take the Oath may say That the matter is not worth so much That if he had been an evil man he had sworn and carryed his cause That to try it by swearing for a Religious man against an irreligious is as hard a match as to set a weak man against a strong in Combate He that is willing to take the Oath may pretend That he had rather trust himself than his Adversary and that 't is equal dealing for an irreligious man to give and for a Religious man to take the Oath That 't is his duty to take the Oath since he has required to have sworn Judges He that Offers the Oath may pretend That he does piously commit his cause to the Gods That he makes his Adversary himself Judge That 't were absurd for him not to swear that has required the Judges to be sworn And of these are to be compounded the Forms we are to use when we would give and not take the Oath or take and not give or both give and take or neither give nor take But if one have sworn contrary to a former Oath he may pretend That he was forced That he was deceived and that neither of these is Perjury since Perjury is voluntary But if the Adversary do so he may say That he that stands not to what he hath sworn subverteth humane society And turning to the Judge What reason have we to require that you should be sworn that judge our cause when we will not stand to that we swear our selves And so much for Proofs inartificial BOOK II. CHAP. I. The Introduction OF Belief proceeding from our Invention that part which consisteth in proof is already spoken of The other two parts follow whereof one ariseth from the manners of the Speaker the other from the passions of the Hearer The Principles Colours or Common Opinions upon which a mans belief is gronnded concerning the manners of him that speaks are to be had partly out of that which hath been said before concerning Vertue Book 1. Chap. 9. partly out of those things which shall be said by and by concerning the Passions For a man is believed either for his Prudence or for his Probity which are Vertues or for good will of which among the Passions The Principles concerning belief arising from the passion of the Hearer are to be gather'd from that which shall now be said of the several Passions in order In every one of which three things are to be considered 1. First how men are affected 2. Secondly Towards whom 3. Thirdly For what CHAP. II. Of Anger ANger is desire of Revenge joyned with grief for that he or some of his is or seems to be neglected The object of Anger is always some particular or individual thing In Anger there is also pleasure proceeding from the imagination of revenge to come To Neglect is to esteem little or nothing and of three kinds 1. Contempt 2. Crossing 3. Contumely Contempt is when a man thinks another of little worth in comparison to himself Crossing is the hinderance of another mans will without design to profit himself Contumely is the disgracing of another for his own pastime The common Opinions concerning Anger are therefore such as follow They are easily Angry that think they are neglected That think they excell others as the Rich with the Poor the Noble with the Obscure c. And such as think they deserve well And such as grieve to be hindered opposed or not assisted And therefore sick men poor men Lovers and generally all that desire and attain not are Angry with those that standing by are not moved with their wants And such as having expected good find evil Those that men are Angry with are Such as mock deride or jest at them And such as shew any kind of Contumely towards them And such as despise those things which we spend most labour and study upon and the more by how much we seem the less advanced therein And our friends rather than those that are not our friends And such as have honoured us if they continue not And such as requite not our courtesie And such as follow contrary courses iâ— they be our inferiors And our friends if they have said or done us evil or not good And such as give not eare to our intreaty And such as are joyful or calm in our distress And such as troubling us are not themselves troubled And such as willingly hear or see our disgraces And such as neglect us in the presence of our Competitors of those we admire of those we would have admire us of those we reverence and of those that reverence us And such as should help us and neglect it And such as are in jest when we are in earnest And such as forget us or our Names An Orator therefore must so frame his Judg or Auditor by his Oration as to make him apt to Anger and then make his Adversary appear such as men use to be Angry withal CHAP. III. Of Reconciling or Pacifying Anger REconciliation is the Appeasing of Anger Those to whom men are easily reconciled are Such as have not offended out of Neglect And such as have done it against their will And such as wish done the contrary of what they have done And such as have done as much to themselves And such as confess and repent And such as are humbled And such as do seriously the same things that they do seriously And such as have done them more good heretofore than now hurt And such as sue to them for any thing And such as are not insolent nor mockers nor slighters of others in their own disposition And generally such as are of a contrary disposition to those whom men are usually angry withal And such as they fear or reverence And such as reverence them And such as have offended their Anger Reconcilable are Such as are contrarily affected to those whom we have said before to be easily angry And such as play laugh make merry prosper live in plenty and in sum all that have no cause of grief And such as have given their anger time Men lay down their Anger for these causes Because they have gotten the Victory Because the Offender has suffered more than they meant to inflict Because they have been revenged of another Because they think they suffer justly And because they think the revenge will
Flattery To be unable to indure such labours as men indure that are elder tenderer greater in quality and of less strength than he signs of Effeminacy To be beholden often to another and to upbraid those that are beholding to him signs of Pusillanimity To speak and promise much of ones self more than his due signs of Arrogance To want those things which ones Equals all or most of them have attained to is also a thing to be ashamed of And to suffer things ignominious as to serve about anothers person or to be imployed in his base actions In Actions of Intemperance whether willingly or unwillingly committed there is shame in Actions of Force only when they are done unwillingly The men before whom we are ashamed are such as we respect namely Those that admire us And those whom we desire should admire us And those whom we admire Those that contend with us for Honour Those whose opinion we contemn not And therefore men are most ashamed in the presence Of old and well bred men Of those we are always to live with Of those that are not guilty of the same fault Of those that do not easily pardon And of those that are apt to reveal our faults such as are men injured Backbiters Scoffers Comick Poets And of those before whom we have had always good success And of those who never asked any thing of us before And of such as desire our Friendship And of our familiars that know none of our Crimes And of such as will reveal our faults to any of those that are named before But in the presence of such whose judgment most men despise men are not ashamed Therefore we are ashamed also in the presence Of those whom we reverence And of those who are concerned in our own or Ancestors or Kinsfolks actions or misfortunes if they be shameful And of their Rivals And of those that are to live with them that know their disgrace The Common Opinions concerning Impudence are taken from the contrary of these CHAP. IX Of Grace or Favour GRace is that Vertue by which a man is said to do a good turn or do service to a man in need not for his own but for his cause to whom he does it Great Grace is when the need is great or when they are hard or difficult things that are conferr'd or when the time is seasonable or when he that conferr's the favour is the only or first man that did it Need is a desire joyned with grief for the absence of the thing desired Grace therefore it is not if it be not done to one that needs Whosoever therefore would prove that he has done a Grace or Favour must shew that he needeth it to whom it was done Grace it is not Which is done by Chance Nor which is done by Necessity Nor which has been requited Nor that which is done to ones Enemy Nor that which is a trifle Nor that which is nought if the Giver know the fault And in this manner a man may go over the Praedicaments and examine a benefit whether it be a Grace for being This or for being so Much or for being Such or for being Now c. CHAP. X. Of Pity or Compassion PIty is a perturbation of the mind arising from the apprehension of hurt o◠trouble to another that doth not deserve it and which he thinks may happen to himself or his And because it appertains to Pity it think that he or his may fall into the misery he pities in others it follows that they be most compassionate Who have passed through Misery And old Men. And weak Men. And timorous Men. And learned Men. And such as have Parents Wife and Children And such as think there be honest Men. And that they are Iess Compassionate Who are in great despair Who are in great prosperity And they that are Angry for they consider not And they that are very confident for they also consider not And they that are in the Act of contumely for neither do these consider And they that are astonished with fear And they that think no Man honest The things to be pitied are Such as grieve and withal hurt Such as destroy And Calamities of fortune if they be great as none or few friends deformity weakness lameness c. And evil that arrives where good is expected And after extream Evil a little Good And through a Mans life to have no good offer it self or being offer'd not to have been able to enjoy it Men to be pitied are Such as are known to us unless they be so near to us as their hurt be our own And such as be of our own years Such as are like us in manners Such as are of the same or like stock And our Equals in dignity Those that have lately suffer'd or are shortly to suffer injury and those that have the marks of injury past And those that have the words or actions of them that be in present misery CHAP. XI Of Indignation OPposite in a manner to Pity in good Men is Indignation which is grief for the prosperity of a Man unworthy With Indignation there is always joyned a joy for the prosperity of a Man worthy as Pity is always with contentment in the adversity of them that deserve it In wicked Men the opposite of pity is Envy as also the companion thereof delight in the harm of others which the Greeks in one word have called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But of these in the next Chapter Men conceive Indignation against others not for their vertues as Justice c. For these make Men worthy and in Indignation we think Men unworthy But for those goods which men indued with vertue and noble Men and handsome Men are worthy of And for newly gotten power and riches rather than for antient and especially if by these he has gotten other goods as by Riches Command The reason why we conceive greater Indignation against new than antient Riches is that the former seem to possess that which is none of theirs But the antient seem to have but their own For with common people to have been so long is to be so by Right And for the bestowing of goods incongruously as when the arms of the most valiant Achilles were bestowed on the most eloquent Vlysses And for the comparison of the Inferiour in the same thing as when one Valiant is compared with a more Valiant or whether absolutely Superiour as when a good Scholer is compared with a good Man Apt to Indignation are They that think themselves worthy of the greatest goods and do possess them And they that are good And they that are ambitious And such as think themselves deserve better what another possesseth than he that hath it Least apt to Indignation are Such as are of a poor servile and not ambitious Nature Who they are that Rejoyce or Grieve not at the Adversity of him that suffers worthily and in what occasions may be gathered
be had than the time is now while our Fortune is entire And this is a Sentence of equal force to it Wise Men make peace while their Fortune is entire CHAP. XVII Of Interrogations Answers and Jests THe times wherein 't is fit to ask ones Adversary a question are chiefly four 1. The first is when of two Propositions that conclude an Absurdity he has already uttered one and we would by Interrogation draw him to confess the other 2. The Second when of two Propositions that conclude an Absurdity one is manifest of it self and the other likely to be fetch'd out by a question then the Interrogation will be seasonable and the absurd Conclusion is presently to be inferr'd without adding that Proposition which is manifest 3. The third when a Man would make appear that his Adversary does contradict himself 4. The Fourth when a Man would take from his Adversary such shifts as these In some sort 't is so In some sort 't is not so Out of these Cases 't is not fit to Interrogate For he whose question succeeds not is thought vanquished To equivocal questions a Man ought to answer fully and not to be too brief To Interrogations which we fore-see tend to draw from us an Answer contrary to our purpose we must together with our Answer presently give an Answer to the objection which is implyed in the question And where the question exacteth an answer that concludeth against us we must together with our answer presently distinguish Jests are dissolved by serious and grave discourse and grave discourse is deluded by Jests The several kinds of Jests are set down in the Art of Poetry Whereof one kind is Ironia and tends to please ones self The other is Scurrility and tends to please others The latter of these has in it a kind of baseness the former may become a Man of good breeding CHAP. XVIII Of the Epilogue THe Epilogue must consist of one of these four things Either of inclining the Judg to favour his own or disfavour the Adversaries side For then when all is said in the cause is the best season to praise or dispraise the Parties Or of Amplification or Diminution For when it appears what is good or evil then is the time to shew how great or how little that good or evil is Or in moving the Judge to Anger Love or other Passion For when 't is manifest of what kind and how great the good or evil is then it will be opportune to excite the Judge Or of Repetition that the Judge may remember what has been said Repetition consisteth in the matter and the manner For the Orator must shew that he has performed what he promised in the beginning of his Oration and how Namely by comparing his Arguments one by one with his Adversaries repeating them in the same order they were spoken FINIS THE ART OF Rhetorick Plainly set forth with Pertinent EXAMPLES For the more easie understanding and Practice of the same By Tho. Hobbes of Malmsbury LONDON Printed for W. Crook 1681. THE ART OF RHETORICK RHetorick is an Art of speaking finely It hath two parts 1. Garnishing of speech called Elocution 2. Garnishing of the manner of utterance called Pronunciation Garnishing of speech is the first part of Rhetorick whereby the speech it self is beautified and made fine It is either 1. The fine manner of words called a Trope or 2. The fine shape or frame of speech called a Figure The fine manner of words is a garnishing of Speech whereby one word is drawn from his first proper signification to another as in this sentence Sin lyeth at the door where Sin is put for the punishment of sin adjoyned unto it Lyeth at the door signifieth at hand as that which lyeth at the Door is ready to be brought in This changing of words was first found out by necessity for the want of words afterward confirmed by Delight because such words are pleasant and gracious to the ear Therefore this change of signification must be shamefac'd and as it were maidenly that it may seem rather to be led by the hand to another signification to be driven by force unto the same yet sometimes this fine manner of Speech swerveth from this perfection and then it is Either 1. The abuse of this fine Speech called Katachresis or 2. The excess of this fineness call'd Hyperbole Be not too just nor too wicked which speech although it seem very hard yet it doth not without some fineness of Speech utter thus much That one seek not a righteousness beyond the Law of God and that when none can live without all sin yet that they take heed that sin bear not Dominion over them As My Tears are my Meat day and night Those that hate me are mo in number than the Hairs of my Head Both which do utter by an express of Speech a great sorrow and a great number of Enemies The abuse of Speech is when the change of Speech is hard strange and unwonted as in the first example The excess of Speech is when the change of signification is very high and lofty as in the second Example and Ps. 6. 7. But the excellency or fineness of Words or Tropes is most excellent when divers are Shut up in one or Continued in many An Example of the first sort is in the 2 Kings I pray thee let me have a double portion of thy Spirit where by Spirit is meant the gift of the Spirit and by thy Spirit the gift of the Spirit like to thine The continuance of Tropes called an Allegorie is when one kind of Trope is so continued as look with what kind of matter it be begun with the same it be ended So in the 23 Psal. The care of God towards his Church is set forth in the words proper to a Shepherd So in the whole Book of Canticles the sweet conference of Christ and his Church is set down by the words proper to the Husband and the Wife So old Age is set down by this garnishing of Speech Eccles. 12. 5 6. Hitherto of the properties of a fine manner of words called a Trope Now the divers sorts do follow They are those which note out 1. No Comparison and are with some Comparison or 2. No respect of Division or some respect The first is double 1. The change of name called a Metonymie 2. The mocking speech called an Ironie The change of name is where the name of a thing is put for the name of a thing agreeing with it It is double 1. When the cause is put for the thing caused and contrariwise 2. When the thing to which any thing is adjoyned is put for the thing adjoyned and contrariwise The change of name of the cause is when Either the name of the Maker or the name of the Matter is put for the thing made Of the Maker when the finder out or the Author of the thing or the instrument whereby the thing is done is
Enemies there is no end for the War will continue by a perpetual Subdivision and when it ends they will be in the same Estate they were before That they are often Abused by Men who to them seem wise when then their Wisdom is nothing else but Envy to those that are in Grace and in profitable Employments and that those Men do but abuse the Common People to their own ends that set up a private Mans Propriety against the publick Safety But say withal that the King is Subject to the Laws of God both Written and Unwritten and to no other and so was William the Conqueror whose Right it all Descended to our present King La. As to the Law of Reason which is Equity 't is sure enough there is but one Legislator which is God Ph. It followeth then that which you call the Common-Law Distinct from Statute-Law is nothing else but the Law of God La. In some sense it is but it is not Gospel but Natural Reason and Natural Equity Ph. Would you have every Man to every other Man alledge for Law his own particular Reason There is not amongst Men an Universal Reason agreed upon in any Nation besides the Reason of him that hath the Soveraign Power yet though his Reason be but the Reason of one Man yet it is set up to supply the place of that Universal Reason which is expounded to us by our Saviour in the Gospel and consequently our King is to us the Legislator both of Statute-Law and of Common-Law La. Yes I know that the Laws Spiritual which have been Law in this Kingdom since the Abolishing of Popery are the Kings Laws and those also that were made before for the Canons of the Church of Rome were no Laws neither here nor any where else without the Popes Temporal Dominions farther than Kings and States in their several Dominions respectively did make them so Ph. I grant that But you must grant also that those Spiritual Laws Legislators of the Spiritual Law and yet not all Kings and States make Laws by Consent of the Lords and Commons but our King here is so far bound to their Assents as he shall Judge Conducing to the Good and safety of his People for Example if the Lords and Commons should Advise him to restore those Laws Spiritual which in Queen Maries time were in Force I think the King were by the Law of Reason obliged without the help of any other Law of God to neglect such Advice La. I Grant you that the King is sole Legislator but with this Restriction that if he will not Consult with the Lords of Parliament and hear the Complaints and Informations of the Commons that are best acquainted with their own wants he sinneth against God though he cannot be Compell'd to any thing by his Subjects by Arms and Force Ph. We are Agreed upon that already since therefore the King is sole Legislator I think it also Reason he should be sole Supream Judge La. There is no doubt of that for otherwise there would be no Congruity of Judgments with the Laws I Grant also that he is the Supream Judge over all Persons and in all Causes Civil and Ecclesiastical within his own Dominions not only by Act of Parliament at this time but that he has ever been so by the Common-Law For the Judges of both the Benches have their Offices by the Kings Letters Patents and so as to Judicature have the Bishops Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England and to say all at once there is no Magistrate or Commissioner for Publick Business neither of Judicature nor Execution in State or Church in Peace or War but he is made so by Authority from the King Ph. 'T is true But perhaps you may â—â—ink otherwise when you Read such Acts of Parliament as say that the King shall â—ave Power and Authority to do this or that by Virtue of that Act as Eliz. c. 1. That your Highness your Heirs and Successors Kings or Queens of this Realm shall have â—â—ll Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign c. Was it not this Parliament that gave this Authority to the Queen La. For the Statute in this Clause is no more than as Sir Edw. Coke useth to speak an Affirmance of the Common-Law For she being Head of the Church of England might make Commissioners for the deâ—iding of Matters Ecclesiastical as freely â—s if she had been Pope who did you know pretend his Right from the Law of God Ph. We have hitherto spoken of Laws without considering any thing of the Naâ—ure and Essence of a Law and now unless we define the word Law we can go no â—arther without Ambiguity and Fallacy which will be but loss of time whereas on the contrary the Agreement upon our words will enlighten all we have to say â—hereafter La. I do not remember the Definition of Law in any Statute Ph. I think so For the Statutes were made by Authority and not drawn from any other Principles than the care of the safety of the People Statutes are not Philosophy as is the Common-Law and other disputable Arts but are Commands or Prohibitions which ought to be obeyed because Assented to by Submission made to the Conqueror here in England and to whosoever had the Soveraign Power in other Common wealths so that the Positive Laws of all Places are Statutes The Definition of Law was therefore unnecessary for the makers of Statutes though very necessary to them whose work it is to Teach the sence of the Law La. There is an Accurate Definition of a Law in Bracton Cited by Sir Edw. Coke Lex est sanctio justa jubens honesta prohibens contraria Ph. That is to say Law is a just Statute Commanding those things which are honest and Forbidding the contrary From whence it followeth that in all Cases it must be the Honesty or Dishonesty that makes the Command a Law whereas you know that but for the Law we could not as saith St. Paul have known what is sin therefore this Definition is no Ground at all for any farther Discourse of Law Besides you know the Rule of Honest and Dishonest refers to Honour and that it is Justice only and Injustice that the Law respecteth But that which I most except against in this Definition is that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust There may indeed in a Statute Law made by Men be found Iniquity but not Injustice La. This is somewhat subtil I pray deal plainly what is the difference between Injustice and Iniquity Ph. I pray you tell me first what is the difference between a Court of Justice and a Court of Equity La. A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land and a
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
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
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
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
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
Kings of those times had not means enough and to spare if God were not their Enemy to defend their People against Forreign Enemies and also to compell them to keep the Peace amongst themselves Ph. And so had had the succeeding Kings if they had never given their rights away and their Subjects always kept their Oaths and promises In what manner proceeded those Ancient Saxons and other Nations of Germany especially the Northern parts to the making of their Laws La. Sir Edw. Coke out of divers Saxon Laws gathered and published in Saxon and Latine by Mr. Lambert inferreth that the Saxon Kings for the making of their Laws called together the Lords and Commons in such manner as is used at this day in England But by those Laws of the Saxons published by Mr. Lambert it appeareth that the Kings called together the Bishops and a great part of the wisest and discreetest Men of the Realm and made Laws by their advice Ph. I think so for there is no King in the World being of ripe years and sound mind that made any Law otherwise for it concerns them in their own interest to make such Laws as the people can endure and may keep them without impatience and live in strength and courage to defend their King and Countrey against their potent neighbours But how was it discerned and by whom was it determined who were those wisest and discreetest Men It is a hard matter to know who is wisest in our times We know well enough who chooseth a Knight of the Shire and what Towns are to send Burgesses to the Parliament therefore if it were determined also in those dayes who those wise Men should be then I confess that the Parliaments of the old Saxons and the Parliaments of England since are the same thing and Sir Edw. Coke is in the right Tell me therefore if you can when those Towns which now send Burgesses to the Parliament began to do so and upon what cause one Town had this priviledge and another Town though much more populous had not La. At what time began this custom I cannot tell but I am sure it is more ancient than the City of Salisbury because there come two Burgesses to Parliament for a place near to it called Old Sarum which as I Rid in sight of it if I should tell a stranger that knew not what the word Burgess meant he would think were a couple of Rabbets the place looketh so like a long Cony-Borough And yet a good Argument may be drawn from thence that the Townsmen of every Town were the Electors of their own Burgesses and Judges of their discretion and that the Law whether they be discreet or not will suppose them to be discreet till the contrary be apparent Therefore where it is said that the King called together the more discreet Men of his Realm it must be understood of such Elections as are now in use By which it is manifest that those great and general Moots assembled by the old Saxon Kings were of the same nature with the Parliaments assembled since the Conquest Ph. I think your reason is good For I cannot conceive how the King or any other but the inhabitants of the Boroughs themselves can take notice of the discretion or sufficiency of those they were to send to the Parliament And for the Antiquity of the Burgess-Towns since it is not mentioned in any History or certain Record now extant it is free for any Man to propound his conjecture You know that this Land was invaded by the Saxons at several times and conquered by pieces in several Wars so that there were in England many Kings at once and every of them had his Parliament and therefore according as there were more or fewer walled Towns within each Kings Dominion his Parliament had the more or fewer Burgesses But when all these lesser Kingdoms were joyned into one then to that one Parliament came Burgesses from all the Burroughs of England And this perhaps may be the reason why there be so many more such Burroughs in the West than in any other part of the Kingdom the West being more populous and also more obnoxious to invaders and for that cause having greater store of Towns Fortified This I think may be the original of that priviledge which some Towns have to send Burgesses to the Parliament and others have not La. The Conjecture is not improbable and for want of greater certainty may be allowed But seeing it is commonly receiv'd that for the making of a Law there ought to be had the assent of the Lords Spiritual and Temporal whom do you account in the Parliaments of the old Saxons for Lords Temporal and whom for Lords Spiritual For the Book called The mode of holding Parliaments agreeth punctually with the manner of holding them at this day and was written as Sir Edw. Coke says in the time of the Saxons and before the Conquest Ph. Mr. Selden a greater Antiquary than Sir Edw. Coke in the last Edition of his Book of Titles of Honour says that that Book called the Mode c. was not written till about the time of Rich. 2. and seems to me to prove it But howsoever that be it is apparent by the Saxon Laws set forth by Mr. Lambert that there were always called to the Parliament certain great Persons called Aldermen alias Earls and so you have a House of Lords and a House of Commons Also you will find in the same place that after the Saxons had received the Faith of Christ those Bishops that were amongst them were always at the great Mootes in which they made their Laws Thus you have a perfect English Parliament saving that the name of Barons was not amongst them as being a French Title which came in with the Conqueror FINIS The King is the Supream Judge