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
examinâ—â— Judgment given in the Court of Common-Pleas La. You deny not but by the Antient Law of England the Kings-Bench may examine the Judgment given in the Court of Common-Pleas Ph. 'T is true but why may not also the Court of Chancery do the same especially if the fault of the Judgment be against Equity and not against the Letter of the Law La. There is no necessity of that for the same Court may examine both the Letter and the Equity of the Statute Ph. You see by this that the Jurisdiction of Courts cannot easily be distinguished but by the King himself in his Parliament The Lawyers themselves cannot do it for you see what Contention there is between Courts as well as between particular Men. And whereas you say that Law of 4 Hen. 4. 23. is by that of 27 Eliz. cap. 8. taken away I do not find it so I find indeed a Diversity of opinion between the makers of the former and the latter Statute in the preamble of the latter and Conclusion of the former The Preamble of the latter is forasmuch as Erroneous Judgments given in the Court called the Kings-Bench are only to be reformed in the High Court of Parliament and the Conclusion of the former is that the contrary was Law in the times of the Kings Progenitors These are no parts of those Laws but Opinions only concerning the Antient Custom in that Case arising from the different Opinions of the Lawyers in those different times neither Commanding nor Forbidding any thing though of the Statutes themselves the one forbids that such Pleas be brought before the Parliament the other forbids it not But yet if after the Act of Hen. 4. such a Plea had been brought before the Parliament the Parliament might have Heard and Determin'd it For the Statute forbids not that nor can any Law have the force to hinder the Law of any Jurisdiction whatsoever they please to take upon them seeing it is a Court of the King and of all the People together both Lords and Commons La. Though it be yet seeing the King as Sir Edw. Coke affirms 4 Inst. p. 71. hath committed all his power Judicial some to one Court and some to another so as if any Man would render himself to the Judgment of the King in such case where the King hath committed all his power Judicial to others such a render should be to no effect And p. 73. he saith farther That in this Court the Kings of this Realm have sitten on the High Bench and the Judges of that Court on the Lower Bench at his feet but Judicature belongeth only to the Judges of that Court and in his presence they answer all Motions Ph. I cannot believe that Sir Edw. Coke how much soever he desir'd to advance the authority of himself and other Justices of the Common-Law could mean that the King in the Kings-Bench sate as a Spectator only and might not have answered all motions which his Judges answer'd if he had seen cause for it For he knew that the King was Supream Judge then in all causes Temporal and is now in all Causes both Temporal and Ecclesiastical and that there is an exceeding great penalty ordained by the Laws for them that shall deny it But Sir Edw. Coke as he had you see in many places before hath put a Fallacy upon himself by not distinguishing between Committing and Transferring He that Transferreth his power hath deprived himself of it but he that Committeth it to another to be Exercised in his name and under him is still in the Possession of the same power And therefore if a Man render himself that is to say Appealeth to the King from any Judge whatsoever the King may receive his Appeal and it shall be effectual La. Besides these 2 Courts the Kings-Bench for Pleas of the Crown and the Court of Common-Pleas for Causes Civil according to the Common-Law of England there is another Court of Justice that hath Jurisdiction in Causes both Civil and Criminal and is as Antient a Court at least as the Court of Common Pleas and this is the Court of the Lord Admiral but the proceedings therein are according to the Laws of the Roman Empire and the Causes to be determin'd there are such as arise upon the Marine Sea For so it is ordain'd by divers Statutes and confirm'd by many Precedents Ph. As for the Statutes they are always Law and Reason also for they are made by the Assent of all the Kingdom but Precedents are Judgments one contrary to another I mean divers Men in divers Ages upon the same case give divers Judgments Therefore I will ask your Opinion once more concerning any Judgments besides those of the King as to their validity in Law But what is the difference between the proceedings of the Court of Admiralty and the Court of Common-Law La. One is that the Court of Admiralty proceedeth by two Witnesses without any either Grand-Jury to Indict or Petty to Convict and the Judge giveth Sentence according to the Laws Imperial which of old time were in force in all this part of Europe and now are Laws not by the Will of any other Emperor or Forraign Power but by the Will of the Kings of England that have given them force in their own Dominions the reason whereof seems to be that the causes that arise at Sea are very often between us and People of other Nations such as are Governed for the most part by the self same laws Imperial Ph. How can it precisely enough be determin'd at Sea especially near the mouth of a very great River whether it be upon the Sea or within the Land For the Rivers also are as well as their Banks within or a part of one Country or other La. Truly the Question is difficult and there have been many Suits about it wherein the Question has been whose Jurisdiction it is in Ph. Nor do I see how it can be decided but by the King himself in case it be not declar'd in the Lord Admirals Letters Patents La. But though there be in the Letters Patents a power given to hold Plea in some certain cases to any of the Statutes concerning the Admiralty the Justices of the Common-Law may send a Prohibition to that Court to proceed in the Plea though it be with a non-obstante of any Statute Ph. Methinks that That should be against the Right of the Crown which cannot be taken from it by any Subject For that Argument of Sir Edw. Coke's that the King has given away all his Judicial Power is worth nothing because as I have said before he cannot give away the Essential Rights of his Crown and because by a non-obstante he declares he is not deceived in his Grant La. But you may see by the Precedents alledged by Sir Edw. Coke the contrary has been perpetually practised Ph. I see not that perpetually for who can tell but there may have been given other Judgments in such cases
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
THE ART OF Rhetoric WITH A DISCOURSE OF The Laws of England By Thomas Hobbes of Malmesbury Dent Vmbrae tenuem Divi sine pondere terram Spirantesque crocos in urnâ perpetuum ver LONDON Printed for William Crooke at the Green Dragon without Temple-Bar 1681. TO THE READER ALtho these pieces may appear fully to express their own real intrinsic value as bearing the Image and Inscription of that great Man Mr. Hobbes yet since common usage has rendred a Preface to a Book as necessary as a Porch to a Church and that in all things some Ceremonies cannot be avoided Mode and Custom in this point is dutifully to be obeyed That they are genuine credible testimony might be produced did not the peculiar fineness of thought and expression and a constant undaunted resolution of maintaining his own Opinions sufficiently ascertain their Author Besides which they are now Publish'd from his own true Copies an advantage which some of his works have wanted The first of them being an abridgement containing the most useful part of Aristotle's Rhetoric was written some thirty years since Mr. Hobbes in his Book of Humane Nature had already describ'd Man with an exactness almost equal to the original draught of Nature and in his Elements of Law laid down the constitution of Government and shewn by what Arm'd Reason it is maintain'd And having demonstrated in the State of Nature the Primitive Art of Fighting to be the only medium whereby Men procur'd their ends did in this design to shew what Power in Societies has succeeded to reign in its stead I mean the Art of speaking which by use of Common places of Probability and knowledge in the manners and passions of Mankind throu the working of Belief is able to bring about whatsoever Interest How necessary this Art is to that of Politic is clearly evident from that mighty force whereby the Eloquence of the Ancient Orators captivated the minds of the People Mr. Hobbes chose to recommend by his Translation the Rhetoric of Aristotle as being the most accomplish'd work on that Subject which the World has yet seen having been admir'd in all Ages and in particular highly approv'd by the Father of the Roman Eloquence a very competent Judge To this he thought fit to add some small matter relating to that part which concern's Tropes and Figures as also a short discovery of some little tricks of false and deceitful Reasoning The other piece is a Discourse concerning the Laws of England and has been finish'd many years Herein he has endeavour'd to accommodate the general notions of his Politic to the particular constitution of the English Monarchy A design of no small difficulty wherein to have succeeded deserves much Honour to have perchance miscarryed deserves easie Pardon It has had the good fortune to be much esteem'd by the greatest Men of the Profession of the Law and therefore may be presumed to contain somewhat excellent However 't is not to be expected that al Men should submit to his Opinions yet 't is hoped none will be offended at the present Publishing these Papers since they will not find here any new fantastic Notions but only such things as have been already asserted with strength of Argument by himself and other Persons of eminent Learning To the Public at least this Benefit may accrue that some able Pen may undertake the controversie being moved with the desire of that reputation which will necessarily attend Victory over so considerable an Adversary THE WHOLE ART OF RHETORICK BOOK I. CHAP. I. That Rhetorick is an Art consisting not only in moving the passions of the Judge but chiefly in Proofs And that this Art is Profitable WE see that all men naturally are able in some sort to accuse and excuse Some by chance but some by method This method may be discovered and to discover Method is all one with teaching an Art If this Art consisted in Criminations only and the skill to stir up the Judges to Anger Envy Fear Pity or other affections a Rhetorician in well ordered Common-wealths and States where it is forbidden to digress from the cause in hearing could have nothing at all to say For all these perversions of the Judge are beside the question And that which the pleader is to shew and the Judge to give sentence on is this only 'T is so or not so The rest hath been decided already by the Law-maker who judging of universals and future things could not be corrupted Besides 't is an absurd thing for a man to make crooked the Ruler he means to use It consisteth therefore chiefly in Proofs which are Inferences and all Inferences being Syllogismes a Logician if he would observe the difference between a plain Syllogisme and an Enthymeme which is a Rhetoricall Syllogisme would make the best Rhetorician For all Syllogismes and Inferences belong properly to Logick whether they infer truth or probability and because without this Art it would often come to pass that evil men by the advantage of natural abilities would carry an evil cause against a good it brings with it at least this profit that making the pleaders even in skill it leaves the odds only in the merit of the cause Besides ordinarily those that are Judges are neither patient nor capable of long Scientifical proofs drawn from the principles through many Syllogisms and therefore had need to be instructed by the Rhetoricall and shorter way Lastly it were ridiculous to be ashamed of being vanquished in exercises of the body and not to be ashamed of being inferior in the vertue of well expressing the mind CHAP. II. The Definition of Rhetorick RHetorick is that Faculty by which we understand what will serve our turn concerning any Subject to win belief in the hearer Of those things that beget belief some require not the help of Art as Witnesses Evidences and the like which we invent not but make use of and some require Art and are invented by us The belief that proceeds from our Invention comes partly from the behaviour of the speaker partly from the passions of the hearer but especially from the proofs of what we alledge Proofs are in Rhetorick either Examples or Enthymemes as in Logick Inductions or Syllogisms For an Example is a short Induction and an Enthymeme a short Syllogisme out of which are left as superfluous that which is supposed to be necessarily understood by the hearer to avoid prolixity and not to consume the time of publick business needlesly CHAP. III. Of the several kinds of Orations and of the Principles of Rhetorick IN all Orations the Hearer does either hear only or judge also If he hear only that 's one kind of Oration and is called Demonstrative If he judg he must judg either of that which is to come or of that which is past If of that which is to come ther 's another kind of Oration and is called Deliberative If of that which is past then 't is a third kind
have suffered And those things wherein prosecution of Injury may be thought a love of contention CHAP. XIV Of those things which are necessary to be known for the Definition of Just and Unjust WHen the fact is evident the next Inquiry is whether it be Just or Vnjust For the Definition of Just and Vnjust we must know what Law is that is what the Law of Nature what the Law of Nations what the Law Civil what written Law and what unwritten Law is and what Persons that is what a publick Person or the City is and what a private Person or Citizen is Vnjust in the opinion of all men is that which is contrary to the Law of Nature Vnjust in the opinion of all men of those Nations which traffick and come together is that which is contrary to the Law common to those Nations Vnjust only in one Common-wealth is that which is contrary to the Law Civil or Law of that Common-wealth He that is accused to have done any thing against the Publick or a private Person is accused to do it either ignorantly or unwillingly or in anger or upon premeditation And because the Defendant does many times confess the fact but deny the unjustice as that he took but did not steal and did but not adultery it is necessary to know the Definitions of Theft Adultery and all other crimes What facts are contrary to the written Laws may be known by the Laws themselves Besides written Laws whatsoever is Just proceeds from Equity or Goodness From Goodness proceeds that which we are praised or honoured for From Equity proceed those actions which though the written Law command not yet being interpreted reasonably and supplyed seems to require at our hands Actions of Equity are such as these Not too rigorously to punish Errors Mischances or Injuries To pardon the faults that adhere to Mankind And not to consider the Law so much as the Law-makers mind and not the Words so much as the meaning of the Law And not to regard so much the Fact as the intention of the Doer nor part of the Fact but the Whole nor what the Doer is but what he has been always or for the most part And to remember better the Good received than the Ill. And to endure injuries patiently And to submit rather to the sentence of a Judge than of the Sword And to the sentence of an Arbitrator rather than of a Judge CHAP. XV. Of the Colours or Common Opinions concerning Injuries comparatively COmmon Opinions concerning Injuries comparatively are such as these Greater is the Injury which proceed from greater Iniquity And from which proceedeth greater dammage And of which there is no revenge And for which there is no remedy And by occasion of which he that hath received the Injury hath done some mischief to himself He does the greater Injury that does it first or alone or with few And he that does it often Greater Injury is that against which Laws and Penalties were first made And that which is more brutal or more approaching to the actions of beasts And that which is done upon more premeditation And by which more Laws are broken And which is done in the place of Execution And which is of greatest shame to him that receives the Injury And which is committed against well deservers And which is committed against the unwritten Law because good men should observe the Law for Justice and not for fear of punishment And which is committed against the written Law because he that will do Injury neglecting the penalty set down in the written Law is much more likely to transgress the unwritten Law where there is no penalty at all CHAP. XVI Of Proofs Inartificial OF Artificial Proofs we have already spoken Inartificial Proofs which we invent not but make use of are of five sorts 1. Laws And those are Civil or written Law the Law or Custom of Nations and the universal Law of Nature 2. Witness And those are such as concern Matter and such as concern Manners Also they be ancient or present 3. Evidences or Writings 4. Question or Torture 5. Oaths And those be either given or taken or both or neither For Laws we use them thus When the written Law makes against us we appeal to the Law of Nature alledging That to be greatest Justice which is greatest Equity That the Law of Nature is immutable the written Law mutable That the written Law is but seeming Justice the Law of Nature very Justice And Justice is among those things which are and not which seem to be That the Judge ought to discern between true and adulterate Justice That they are better men that obey unwritten than written Laws That the Law against us does contradict some other Law And when the Law has a double interpretation that is the true one which makes for us And that the cause of the Law being abolished the Law is no more of Validity But when the written Law makes for us and Equity for the Adversary we must alledge That a man may use Equity not as a liberty to judg against the Law but only as a security against being forsworn when he knows not the Law That men seek not Equity because 't is good simply but because good for them That it is the same thing not to make and not to use the Law That as in other Arts and namely in Physick Fallacies are pernitious so in a Common-wealth 't is pernitious to use pretexts against the Law And that in Common-wealths well instituted to seem wiser than the Laws is prohibited For Witnesses we must use them thus When we have them not we must stand for Presumptions and say That in Equity sentence ought to be given according to the most probability That Presumptions are the testimony of the things themselves and cannot be bribed That they cannot lye When we have witnesses against him that has them not we must say That Presumptions if they be false cannot be punished That if Presumptions were enough witnesses were superfluous For Writings when they favour us we must say That Writings are private and particular Laws and he that takes away the use of Evidences abolisheth the Law That since Contracts and Negotiations pass by Writings he that bars their use dissolves humane Society Against them if they favour the Adversary we may say That since Laws do not bind that are fraudulently made to pass much less Writings And that the Judge being to dispense Justice ought rather to consider what is just than what is in the Writing That Writings may be gotten by fraud or force but Justice by neither That the Writing is repugnant to some Law Civil or Natural or to Justice or to Honesty That 't is repugnant to some other writing before or after That it crosses some commodity of the Judge which must not be said directly but implyed cunningly For the Torture if the giving of it make for us we must say That 't is the only testimony
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
Propositions and Proof which are as it were the Probleme and Demonstration The Proposition is the explication or opening of the Matter to be proved And Proof is the Demonstration of the Matter propounded To these necessary parts are sometimes added two other tho Proeme and the Epilogue neither of which are any proof So that in some there be four parts of an Oration the Proeme the Proposition or as others call it the Narration the Proofs which contain Confirmation Confutation Amplification and Diminution and the Epilogue CHAP. XIII Of the Proem THe Proem is the Beginning of an Oration and as it were the preparing of the way before one enter into it In some kinds of Orations it resembles the Prelude of Musicians who first play what they list and afterwards the Tune they intended In other kinds it resembles the Prologue of a Play that contains the Argument Proems of the first sort are most proper for Demonstrative Orations in which a Man is free to fore-tell or not what points he will insist upon and for the most part 't is better not because when a Man has not obliged himself to a certain matter Digression will seem Variety but if he have ingaged himself Variety will be accounted Digression In Demonstratives the matter of the Proem consisteth in the Praise or Dispraise of some Law or Custom or in Exhortation or Dehortation or in something that serves to incline the Hearer to the purpose Proems of the second kind are most proper for Judicial Orations For as the Prologue in a Dramatick and the Exordium in an Epique Poem setteth first in few words the Argument of the Poem so in a Judicial Oration the Orator ought to exhibit a Model of his Oration that the mind of the Hearer may not be suspended and for want of fore-sight err or wander Whatsoever else belongs to a Proem is drawn from one of these four From the Speaker From the Adversary From the Hearer or from the Matter From the Speaker and Adversary are drawn into Proems such Criminations and Purgations as belong not to the cause To the Defendant 't is necessary in the Proem to answer to the accusations of his Adversary that those being cleared he may have a more favourable entrance to the rest of his Oration But to the Plaintife 't is better to cast his Criminations all into the Epilogue that the Judge may the more easily remember them From the Hearer and from the Matter are drawn into the Proem such things as serve to make the Hearer favourable or angry attentive or nor attentive as need shall require And Hearers use to be attentive to persons that are reputed good to things that are of great Consequence or that concern thomselves or that are strange or that delight But to make the Hearer attentive is not the part of the proeme only but of any other part of the Oration and rather of any other part than of the proeme For the Hearer is every where more remiss than in the beginning And therefore wheresoever there is need the Orator must make appear both the probity of his own person and that the matter in hand is of great Consequence or that it concerns the Hearer or that it is new or that it is delightful He that will have the Hearer attentive to him but not to the Cause must on the other side make it seem that the matter is a trifle without relation to the Hearer common and tedious That the Hearer may be favourable to the Speaker one of two things is required that he love him or that he pity them In Demonstrative Orations he that praises shall have the Hearer favourable if he think himself or his own manners or course of life or any thing he loves comprehended in the same praise On the contrary he that dispraises shall be heard favourably if the Hearer find his Enemies or their courses or any thing he hates involv'd in the same dispraise The Proeme of a Deliberative Oration is taken from the same things from which are taken the Proemes of Judicial Orations For the matter of a Deliberative Oration needeth not that natural proeme by which is shewn what we are to speak of for that is already known the proeme in these being made only for the Speakers or Adversaries sake or to make the Matter appear great or little as one would have it and is therefore to be taken from the persons of the Plaintif or Defendant or from the Hearer or from the Matter as in Orations Judicial CHAP. XIV Places of Crimination and Purgation 1. ONe is from the removal of ill Opinion in the Hearer imprinted in him by the Adversary or otherwise 2. Another from this That the thing done is not hurtful or not to him or not so much or not unjust or not great or not dishonourable 3. A Third from the Recompence as I did him harm but withal I did him honour 4. A Fourth from the Excuse as It was Errour Mischance or Constraint 5. A Fifth from the Intention as One thing was done another meant 6. A Sixth from the Comprehension of the Accuser as What I have done the Accuser has done the same or his Father Kinsman or Friend 7. From the Comprehension of those that are in Reputation as What I did such and such have done the same who nevertheless are good Men. 8. From Comparison with such as have been falsly accused or wrongfully suspected and nevertheless found upright 9. From Recrimination as The Accuser is a man of ill life and therefore not to be believed 10. From that the Judgment belongs to another Place or Time as I have already answered or am to answer else-where to this Matter 11. From Crimination of the Crimination as It serves only to â—eâ—vert Indgment 12. A Twelfth which is common both to Crimination and Purgation and is taken from some sign as Teucer is not to be believed because his Mother was Priam's Sister On the other side Teucer is to be believed because his Father was Priam's Enemy 13. A Thirteenth proper to Crimination only from praise and dispraise mixt as To praise small things and blame great ones or to praise in many words and blame with effectual ones or to praise many things that are good and then add one evil but a great one 14. A Fourteenth comming both to Crimination and Purgation is taken from the interpretation of the fact for he that purgeth himself interpreteth the fact always in the best sense and he that Criminates always in the worst as when Vlysses said Diomedes chose him for his Companion as the most able of the Grecians to aid him in his exploit but his Adversary said He chose him for his cowardize as the most unlikely to share with him in the Honour CHAP. XV. Of the Narration THe Narration is not always continued and of one Piece but sometimes as in Demonstratives interrupted and dispersed through the whole Oration For there being in a Narration
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
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
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
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
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
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
Doctrine Heresie but Justice Stamford leaves it out because when Heresie was a Crime it was a Plea of the Mitre I see also in this Catalogue of Causes Criminal he inserteth costly Feeding costly Apparel and costly Building though they were contrary to no Statute 'T is true that by evil Circumstances they become sins but these sins belong to the Judgment of the Pastors Spiritual A Justice of the Temporal Law seeing the Intention only makes them sins cannot judge whether they be sins or no unless he have power to take Confessions Also he makes flattery of the King to be a Crime How could he know when one Man had flattered another He meant therefore that it was a Crime to please the King And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned some banished and some put to death by the same Rebels that imprisoned banished and put to death the same King upon no better ground than the Earl of Strafford the Arch-Bishop of Canterbury and King Charles the first by the Rebels of that time Empson and Dudley were no Favourites of Hen. the 7th but Spunges which King Hen. the 8th did well Squeeze Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th but fell into disgrace not for flattering the King but for not flattering him in the business of Divorce from Queen Katharine You see his Reasoning here see also his Passion in the words following We will for some Causes descend no lower Qui eorum vestigiis insistunt eorum exitus perhorrescant this is put in for the Favourite that then was of King James But let us give over this and speak of the legal Punishments to these Crimes belonging Of Punishments ANd in the first place I desire to know who it is that hath the power for an Offence committed to define and appoint the special manner of Punishment for suppose you are not of the Opinion of the Stoicks in old time that all faults are equal and that there ought to be the same Punishment for killing a Man and for killing a Hen. La. The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law That is to say if it be a Statute that determins it then the Judgment must be according to the Statute if it be not specified by the Statute then the Custome in such Cases is to be followed But if the Case be new I know not why the Judge may not determine it according to Reason Ph. But according to whose reason If you mean the natural Reason of this or that Judge authorized by the King to have cognisance of the Cause there being as many several Reasons as there are several Men the punishment of all Crimes will be uncertain and none of them ever grow up to make a Custome Therefore a Punishment certain can never be assigned if it have its beginning from the natural Reasons of deputed Judges no nor from the natural of the Supream Judge For if the Law of Reason did determine Punishments then for the same Offences there should be through all the World and in all times the same Punishments because the Law of Reason is Immutable and Eternal La. If the natural Reason neither of the King nor of any else be able to prescribe a Punishment how can there be any lawful Punishment at all Ph. Why not For I think that in this very difference between the rational Faculties of particular Men lyeth the true and perfect reason that maketh every Punishment certain For but give the authority of defining punishments to any Man whatsoever and let that Man define them and right Reason has defin'd them Suppose the Definition be both made and made known before the Offence committed For such authority is to trump in Card-playing save that in matter of Government when nothing else is turn'd up Clubs are Trump Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason and knoweth what Punishments are by this authority for every evil action ordained it is manifest Reason that for breaking the known Laws he should suffer the known Punishments Now the person to whom this authority of defining Punishments is given can be no other in any place of the World but the same Person that hath the Soveraign Power be it one Man or one assembly of Men For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed for no less power can do it when many Offenders be united and combin'd to defend one another There was a Case put to King David by Nathan of a rich Man that had many Sheep and of a poor Man that had but one which was a tame Lamb The rich Man had a stranger in his House for whose entertainment to spare his own Sheep he took away the poor Mans Lamb. Upon this Case the King gave Judgment surely the Man that hath done this shall die What think you of this Was it a Royal or Tyrannical Judgment La. I will not contradict the Canons of the Church of England which acknowledgeth the King of England within his own Dominions hath the same Rights which the good Kings of Israel had in theirs nor deny King David to have been one of those good Kings But to punish with death without a precedent Law will seem but a harsh proceeding with us who unwillingly hear of Arbitrary Laws much less of Arbitrary Punishments unless we were sure that all our Kings would be as good as David I will only ask you by what Authority the Clergy may take upon them to determine or make a Canon concerning the power of their own King or to distinguish between the Right of a good and an evil King Ph. It is not the Clergy that maketh their Canons to be Law but it is the King that doth it by the Great Seal of England and it is the King that giveth them power to teach their Doctrines in that that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles according to the Scriptures wherein this Doctrine is perspicuously contained But if they had derogated from the Royal Power in any of their Doctrines published then certainly they had been too blame nay I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law I cite not this Precedent of King David as approving the breach of the great Charter or justifying the Punishment with loss of Life or Member of every Man that shall offend the King but to shew you that before the Charter was granted in all Cases where the Punishments were not prescribed it was the King only that could prescribe them
and that no deputed Judge could punish an Offender but by force of some Statute or by the words of some Commission and not ex officio They might for a contempt of their Courts because it is a contempt of the King imprison a Man during the Kings pleasure or fine him to the King according to the greatness of the Offence But all this amounteth to no more than to leave him to the Kings Judgment As for cutting off of Ears and for the Pillory and the like corporal Punishments usually inflicted heretofore in the Star-Chamber they were warranted by the Statute of Hen. 7. that giveth them power to punish sometimes by discretion And generally it is a rule of Reason that every Judge of Crimes in case the positive Law appoint no Punishment and he have no other Command from the King then to consult the King before he pronounce Sentence of any irreparable dammage on the Offender For otherwise he doth not pronounce the Law which is his Office to do but makes the Law which is the Office of the King And from this you may collect that the Custome of punishing such and such a Crime in such and such a manner hath not the force of Law in it self but from an assured presumption that the Original of the Custome was the Judgment of some former King And for this Cause the Judges ought not to run up for the Customs by which they are warranted to the time of the Saxon Kings nor to the time of the Conquest For the most immediate antecedent precedents are the fairest warrants of their Judgments as the most recent Laws have commonly the greatest vigor as being fresh in the memory of all Men and tacitly confirmed because not disapprov'd by the Soveraign Legislator What can be said against this La. Sir Edw. Coke 3 Inst. p. 210. in the Chapter of Judgments and Executions saith that of Judgments some are by the Common-Law some by Statute-Law and some by Custome wherein he distinguisheth Common-Law both from Statute-Law and from Custome Ph. But you know that in other places he makes the Common-Law and the Law of Reason to be all one as indeed they are when by it is meant the Kings Reason and then his meaning in this distinction must be that there be Judgments by Reason without Statute-Law and Judgments neither by Statute-Law nor by Reason but by Custome without Reason for if a Custome be Reasonable then both he and other Learned Lawyers say it is Common-Law and if unreasonable no Law at all La. I believe Sir Edw. Coke's meaning was no other than yours in this point but that he inserted the word Custom because there be not many that can distinguish between Customs reasonable and unreasonable Ph. But Custom so far forth as it hath the force of a Law hath more of the nature of a Statute than of the Law of Reason especially where the question is not of Lands and Goods but of Punishments which are to be defined only by authority Now to come to particulars What Punishment is due by Law for High Treason La. To be drawn upon a Hurdle from the Prison to the Gallows and there to be hanged by the Neck and laid upon the ground alive and have his Bowels taken out and burnt whilst he is yet living to have his Head cut off his Body to be divided into four parts and his Head and Quarters to be placed as the King shall assign Ph. Seeing a Judge ought to give Judgment according to the Law and that this Judgment is not appointed by any Statute how does Sir Edw. Coke warrant it by Reason or how by Custom La. Only thus Reason it is that his Body Lands Goods Posterity c. should be torn pulled asunder and destroy'd that intended to destroy the Majesty of Government Ph. See how he avoids the saying the Majesty of the King But does not this Reason make as much for punishing a Traytor as Metius Suffetius in old time was executed by Tullus Hostilius King of Rome or as Ravillac not many years ago in France who were torn in pieces by four Horses as it does for Drawing Hanging and Quartering La. I think it does But he confirms it also in the same Chapter by holy Scripture Thus Joab for Treason 1 Kings 2. 28. was drawn from the horns of the Altar that 's proof for drawing upon a Hurdle Esth. 2. 22. Bithan for Treason was Hang'd there 's for hanging Acts. 1. 18. Judas hanged himself and his Bowels were poured out there 's for hanging and embowelling alive 2 Sam. 18. 14. Joab pierced Absalom's heart that 's proof for pulling out a Traytors heart 2 Sam. 20. 22. Sheba the Son of Bichri had his Head cut off which is proof that a Traytors Head ought to be cut off 2 Sam. 4. 12. They slew Baanah and Rechab and hung up their Heads over the Pool of Hebron this is for setting up of Quarters And Lastly for forfeiture of Lands and Goods Psal. 109. v. 9. 10. c. Let their Children be driven out and beg and other Men make spoil of their labours and let their Memory be blotted out of the Land Ph. learnedly said and no Record is to be kept of the Judgment Also the Punishments divided between those Traytors must be joyn'd in one Judgment for a Traytor here La. He meant none of this but intended his Hand being in to shew his Reading or his Chaplains in the Bible Ph. Seeing then for the specifying of the Punishment in Case of Treason he brings no argument from natural Reason that is to say from the Common Law and that it is manifest that it is not the general Custom of the Land the same being rarely or never executed upon any Peer of the Realm and that the King may remit the whole Penalty if he will it follows that the specifying of the Punishment depends meerly upon the authority of the King But this is certain that no Judge ought to give other Judgment than has been usually given and approv'd either by a Statute or by Consent express or implyed of the Soveraign Power for otherwise it is not the Judgment of the Law but of a Man subject to the Law La. In Petit Treason the Judgment is to be drawn to the place of execution and hang'd by the Neck or if it be a Woman to be drawn and burnt Ph. Can you imagine that this so nice a distinction can have any other foundation than the wit of a private Man La. Sir Edw. Coke upon this place says that she ought not to be beheaded or hanged Ph. No not by the Judge who ought to give no other Judgment than the Statute or the King appoints nor the Sheriff to make other execution than the Judge pronounceth unless he have a special warrant from the King And this I should have thought he had meant had he not said before that the King had given away all his Right of Judicature to his Courts of
of another Man Then as Sir Edw. Coke says 3 Inst. p 56. it had been Murder Ph. There is indeed great need of good distinction in a Case of killing by misfortune but in this Case the unlawfulness of stealing Apples cannot make it Murder unless the falling it self be unlawful It must be a voluntary unlawful Act that causeth the death or else it is no Murder by the Law of Reason Now the death of the Man that was under the Tree proceeded not from that that the Apples were not his that fell but from the fall But if a Man shoot with a Bow or a Gun at another Man's Deer and by misfortune kill a Man such shooting being both voluntary and unlawful and also the immediate Cause of the Mans death may be drawn perhaps well enough sometimes to Murder by a Judge of the Common-Law So likewise if a Man shoot an Arrow over a House and by chance kill a Man in the Street there is no doubt but by the Law of Reason it is Murder for though he meant no malice to the Man slain yet it is manifest that he cared not whom he slew In this difficulty of finding out what it is that the Law of Reason dictates who is it that must decide the Question La. In the Case of misfortune I think it belongs to the Jury for it is matter of Fact only But when it is doubtful whether the action from which the misfortune came were Lawful or Unlawful it is to be judged by the Judge Ph. But if the unlawfulness of the action as the stealing of the Apples did not cause the death of the Man then the stealing be it Trespass or Felony ought to be punished alone as the Law requireth La. But for killing of a Man se defendendo the Jury as Sir Edw. Coke here says shall not in their Verdict say it was se defendendo but shall declare the manner of the Fact in special and clear it to the Judge to consider how it is to be called whether se defendendo Manslaughter or Murder Ph. One would think so for it is not often within the capacity of a Jury to distinguish the signification of the different and hard names which are given by Lawyers to the killing of a Man as Murder and Felony which neither the Laws nor the makers of the Laws have yet defined The Witnesses say that thus and thus the Person did but not that it was Murder or Felony no more can the Jury say who ought to say nothing but what they hear from the Witnesses or from the Prisoner Nor ought the Judge to ground his Sentence upon any thing else besides the special matter found which according as it is contrary or not contrary to the Statute ought to be pronounced La. But I have told you that when the Jury has found misfortune or se defendendo there is no judgment at all to be given and the Party is to be pardoned of course saving that he shall forfeit his Goods and Chattells Debts and Duties to the King Ph. But I understand not how there can be a Crime for which there is no Judgment nor how any Punishment can be inflicted without a precedent Judgment nor upon what ground the Sheriff can seize the Goods of any Man till it be judged that they be forfeited I know that Sir Edw. Coke saith that in the Judgment of hanging the Judgment of forfeiture is implyed which I understand not though I understand well enough that the Sheriff by his Office may seize the Goods of a Felon convicted much less do I conceive how the forfeiture of Goods can be implyed in a no-judgment nor do I conceive that when the Jury has found the special manner of the Fact to be such as is really no other than se defendendo and consequently no fault at all why he should have any Punishment at all Can you shew me any Reason for it La. The Reason lies in the Custom Ph. You know that unreasonable Customs are not Law but ought to be abolished and what Custom is there more unreasonable than that a Man should be punished without a fault La. Then see the Statute of 24 Hen. 8. cap. 5. Ph. I find here that at the making of this Statute there was a Question amongst the Lawyers in case one Man should kill another that attempted feloniously to Rob or Murder him in or near any Common High-way Court-way Horse-way or Foot-way or in his Mansion Messuage or Dwelling-place whether for the death of such a Man one shall forfeit his Goods and Chattells as a Man should do for killing another by Chance-medley or in his own defence This is the Preamble and penned as well as Sir Edw. Coke could have wished but this Statute does not determine that a Man should forfeit his Goods for killing a Man se defendendo or for killing him by misfortune but supposeth it only upon the opinion of the Lawyers that then were The body of the Statute is that if a Man be indicted or appealed for the death of such Person so attempting as aforesaid and the same by verdict be so found and tryed he shall not forfeit any thing but shall be discharged as if he had been found not Guilty You see the Statute now consider thereby in the case of killing se defendendo Frst if a Man kill another in his own defence it is manifest that the Man slain did either attempt to Rob or to Kill or to Wound him for else it was not done in his own defence If then it were done in the Street or near the Street as in a Tavern he forfeits nothing because the Street is a High-way So likewise it is to be said of all other Common-ways In what place therefore can a Man kill another in his own defence but that this Statute will discharge him of the forfeiture La. But the Statute says the attempt must be felonious Ph. When a Man assaults me with a Knife Sword Club or other mortal Weapon does any Law forbid me to defend my self or command me to stay so long as to know whether he have a felonious intent or no Therefore by this Statute in case it be found se defendendo the forfeiture is discharged if it be found otherwise it is Capital If we read the Statute of Glocester cap. 9. I think it will take away the difficulty For by that Statute in case it be found by the Countrey that he did it in his own defence or by misfortune then by the report of the Justices to the King the King shall take him to his Grace if it please him From whence it followeth first that it was then thought Law that the Jury may give the general verdict of se defendendo which Sir Edw. Coke denies Secondly that the Judge ought to report especial matter to the King Thirdly that the King may take him to his Grace if he please and consequently that his Goods are not to be seiz'd till the
King after the report of the Judge heard give the Sheriff command to do it Fourthly that the general verdict of the King hinders not the King but that he may Judge of it upon the special matter for it often happens that an ill-disposed Person provokes a Man with words or otherwise on purpose to make him draw his Sword that he may kill him and pretend it done in his own defence which appearing the King may without any offence to God punish him as the cause shall require Lastly contrary to the Doctrine of Sir Edw. Coke he may in his own Person be Judge in the case and annul the Verdict of the Jury which a deputed Judge cannot do La. There be some cases wherein a Man though by the Jury he be found not Guilty shall nevertheless forfeit his Goods and Chattells to the King For example a Man is slain and one A. hating B. giveth out that it was B. that slew him B. hearing thereof fearing if he be tryed for it that through the great power of A. and others that seek his hurt he should be condemned flieth and afterwards is taken and tryed and upon sufficient evidence is by the Jury found Not Guilty yet because he fled he shall forfeit his Goods and Chattels notwithstanding there be no such Judgment given by the Judge nor appointed by any Statute but the Law it self authoriseth the Sheriff to seize them to the use of the King Ph. I see no reason which is Common-Law for it and am sure it is grounded upon no Statute La. See Sir Edw. Coke Inst. 1. Sect. 709. and read Ph. If a Man that is Innocent be accus'd of Felony and for fear flieth for the same albeit that he be judicially acquitted of the Felony yet if it be found that he fled for the same he shall notwithstanding his Innocence forfeit all his Goods and Chattells Debts and Duties O unchristian and abominable Doctrine which also he in his own words following contradicteth For saith he as to the forfeiture of them the Law will admit no proof against the presumption of the Law grounded upon his flight and so it is in many other cases But that the general Rule is Quod stabitur praesumptioni donec probetur in contrarium but you see it hath many exceptions This general Rule contradicts what he said before for there can be no exceptions to a general Rule in Law that is not expresly made an exception by some Statute and to a general Rule of equity there can be no exception at all From the power of Punishing let us proceed to the power of Pardoning La. Touching the power of Pardoning Sir Edw. Coke says 3 Inst. p. 236. That no Man shall obtain Charter of pardon out of Parliament and cites for it the Statute of 2 Ed. 3. cap. 2. and says farther that accordingly in a Parliament Roll it is said that for the peace of the Land it would help that no pardon were granted but by Parliament Ph. What lawful power would he have left to the King that thus disableth him to practice Mercy In the Statute which he citeth to prove that the King ought not to grant Charters of Pardon but in Parliament there are no such words as any Man may see for that Statute is in Print and that which he says is in the Parliament Roll is but a wish of he tells not whom and not a Law and 't is strange that a private wish should be inroll'd amongst Acts of Parliament If a Man do you an injury to whom think you belongeth the Right of pardoning it La. Doubtless to me alone if to me alone be done that injury and to the King alone if to him alone be done the injury and to both together if the injury be done to both Ph. What part then has any Man in the granting of a pardon but the King and the party wrong'd if you offend no Member of either House why should you ask their pardon It is possible that a Man may deserve a pardon or he may be such a one sometimes as the defence of the Kingdom hath need of may not the King pardon him though there be no Parliament then sitting Sir Edw. Coke's Law is too general in this point and I believe if he had thought on 't he would have excepted some Persons if not all the Kings Children and his Heir apparent and yet they are all his Subjects and subject to the Law as other Men. La. But if the King shall grant pardons of Murder and Felony of his own head there would be very little safety for any Man either out of his House or in it either by Night or by Day And for that very cause there have been many good Statutes provided which forbid the Justices to allow of such pardons as do not specially name the Crime Ph. Those Statutes I confess are reasonable and very profitable which forbid the Judge to pardon Murders but what Statute is there that forbids the King to do it There is a Statute of 13 Rich. 2. c. 1. wherein the King promiseth not to pardon Murder but there is in it a clause for the saving of the Kings Regality From which may be inferr'd that the King did not grant away that power when he thought good to use it for the Common-wealth Such Statutes are not Laws to the King but to his Judges and though the Judges be commanded by the King not to allow pardons in many cases yet if the King by writing command the Judges to allow them they ought to do it I think if the King think in his conscience it be for the good of the Common-wealth he sinneth not in it but I hold not that the King may pardon him without sin if any other Man be damnified by the Crime committed unless he cause reparation to be made as far as the party offending can do it And howsoever be it sin or not sin there is no power in England that may resist him or speak evil of him lawfully La. Sir Edw. Coke denies not that and upon that ground it is that the King he says may pardon high Treason for there can be no high Treason but against the King Ph. That 's well therefore he confesseth that whatsoever the offence be the King may pardon so much of it as is an injury to himself and that by his own right without breach of any Law positive or natural or of any grant if his Conscience tell him that it be not to the dammage of the Common-wealth and you know that to judge of what is good or evil to the Common-wealth belongeth to the King only Now tell me what it is which is said to be pardoned La. What can it be but only the offence If a Man hath done a Murder and be pardoned for the same is it not the Murder that is pardoned Ph. Nay by your favour if a Man be pardoned for Murder or any other offence it is the Man that is