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
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
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
little worth if they tended not to the preservation and improvement of Mens Lives seeing then without Humane Law all things would be Common and this Community a cause of Incroachment Envy Slaughter and continual War of one upon another the same Law of Reason Dictates to Mankind for their own preservation a distribution of Lands and Goods that each Man may know what is proper to him so as none other might pretend a right thereunto or disturb him in the use of the same This distribution is Justice and this properly is the same which we say is one owns by which you may see the great Necessity there was of Statute Laws for preservation of all Mankind It is also a Dictate of the Law of Reason that Statute Laws are a necessary means of the safety and well being of Man in the present World and are to be Obeyed by all Subjects as the Law of Reason ought to be Obeyed both by King and Subjects because it is the Law of God Ph. All this is very Rational but how can any Laws secure one Man from another When the greatest part of Men are so unreasonable and so partial to themselves as they are and the Laws of themselves are but a dead Letter which of it self is not able to compel a Man to do otherwise than himself pleaseth nor punish or hurt him when he hath done a mischief La. By the Laws I mean Laws living and Armed for you must suppose that a Nation that is subdued by War to an absolute submission of a Conqueror it may by the same Arm that compelled it to Submission be compelled to Obey his Laws Also if a Nation choose a Man or an Assembly of Men to Govern them by Laws it must furnish him also with Armed Men and Money and all things necessary to his Office or else his Laws will be of no force and the Nation remains as before it was in Confusion 'T is not therefore the word of the Law but the Power of a Man that has the strength of a Nation that makes the Laws effectual It was not Solon that made Athenian Laws though he devised them but the Supream Court of the People nor the Lawyers of Rome that made the Imperial Law in Justinian's time but Justinian himself Ph. We agree then in this that in England it is the King that makes the Laws whosoever Pens them and in this that the King cannot make his Laws effectual nor defend his People against their Enemies without a Power to Leavy Souldiers and consequently that he may Lawfully as oft as he shall really think it necessary to raise an Army which in some occasions be very great I say raise it and Money to Maintain it I doubt not but you will allow this to be according to the Law at least of Reason La. For my part I allow it But you have heard how in and before the late Troubles the People were of another mind Shall the King said they take from us what he please upon pretence of a necessity whereof he makes himself the Judg What worse Condition can we be in from an Enemy What can they take from us more than what they list Ph. The People Reason ill they do not know in what Condition we were in the time of the Conqueror when it was a shame to be an English-Man who if he grumbled at the base Offices he was put to by his Norman Masters received no other Answer but this Thou art but an English-Man nor can the People nor any Man that humors them in their Disobedience produce any Example of a King that ever rais'd any excessive Summ's either by himself or by the Consent of his Parliament but when they had great need thereof nor can shew any reason that might move any of them so to do The greatest Complaint by them made against the unthriftiness of their Kings was for the inriching now and then a Favourite which to the Wealth of the Kingdom was inconsiderable and the Complaint but Envy But in this point of raising Souldiers what is I pray you the Statute Law La. The last Statute concerning it is 13 Car. 2. c. 6. By which the Supream Government Command and disposing of the Militia of England is delivered to be and always to have been the Antient Right of the Kings of England But there is also in the same Act a Proviso that this shall not be Construed for a Declaration that the King may Transport his Subjects or compel them to march out of the Kingdom nor is it on the contrary declared to be unlawful Ph. Why is not that also determined La. I can imagine cause enough for it though I may be deceiv'd We love to have our King amongst us and not be Govern'd by Deputies either of our own or another Nation But this I verily believe that if a Forraign Enemy should either invade us or put himself in t a readiness to invade either England Ireland or Scotland no Parliament then sitting and the King send English Souldiers thither the Parliament would give him thanks for it The Subjects of those Kings who affect the Glory and imitate the Actions of Alexander the Great have not always the most comfortable lives nor do such Kings usually very long enjoy their Conquests They March to and fro perpetually as upon a Plank sustained only in the midst and when one end rises down goes the other Ph. 'T is well But where Souldiers in the Judgment of the Kings Conscience are indeed necessary as in an insurrection or Rebellion at home how shall the Kingdom be preserved without a considerable Army ready and in pay How shall Money be rais'd for this Army especially when the want of publick Treasure inviteth Neighbour Kings to incroach and unruly Subjects to Rebel La I cannot tell It is matter of Polity not of Law but I know that there be Statutes express whereby the King hath obliged himself never to Levy Money upon his Subjects without the consent of his Parliament One of which Statutes is 25 Ed. 1. c. 6. in these words We have granted for us and our Heirs as well to Arch-Bishops Bishops Abbots and other Folk of the Holy Church as also Earls Barons and to all the Commonalty of the Land that for no Business from henceforth we shall take such Aids Taxes or Prizes but by the common Consent of the Realm There is also another Statute of Ed. 1. in these words No Taxes or Aid shall be taken or Leveyed by us or our Heirs in our Realm without the good will and assent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land which Statutes have been since that time Confirmed by divers other Kings and lastly by the King that now Reigneth Ph. All this I know and am not satisfied I am one of the Common People and one of that almost infinite number of Men for whose welfare Kings and other Soveraigns were by God Ordain'd For
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
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
Council the Judges La. The Council Inform the Judges Ph. Why may they not as well Inform the Chancellor Unless you will say that a Bishop understands not as well as a Lawyer what is sense when he hears it Read in English No no both the one and the other are able enough but to be able enough is not enough when not the difficulty of the Case only but also the Passion of the Judge is to be Conquer'd I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written or others contained in divers Statutes will come to the Chancery or any for him and thereof make his Complaint he shall presently there have Remedy by force of the said Articles and Statutes without elsewhere pursuing to have Remedy By the words of this Statute it is very apparent in my opinion that the Chancery may hold Plea upon the Complaint of the Party grieved in any Case Tryable at the Common-Law because the party shall have present Remedy in that Court by force of this Act without pursuing for Remedy elsewhere La. Yes but Sir Edw. Coke Answers this Objection 4 Inst. p. 82. in this manner These words says he He shall have Remedy signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law Ph. Very like Sir Edw. Coke thought as soon as the Party had his Writ he had his Remedy though he kept the Writ in his Pocket without pursuing his Complaint elsewhere or else he thought that in the Common-Bench was not elsewhere than in the Chancery La. Then there is the Court of Ph. Let us stop here for this which you have said satisfies me that seek no more than to distinguish between Justice and Equity and from it I Conclude that Justice fulfils the Law and Equity Interprets the Law and amends the Judgments given upon the same Law Wherein I depart not much from the Definition of Equity cited in Sir Edw. Coke 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth and Amendeth the Law Written though I Construe it a little otherwise than he would have done for no one can mend a Law but he that can make it and therefore I say not it amends the Law but the Judgments only when they are Erroneous And now let us Consider of Crimes in particular the Pleas whereof are commonly called the Pleas of the Crown and of the punishments belonging to them and first of the Highest Crime of all which is High Treason Tell me what is High Treason Of Crimes Capital La. THe first Statute that declareth what is High Treason is the Statute of the 25 Edw. 3. in these words Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not the King at the Request of the Lords and of the Commons hath made Declaration in the manner as hereafter follows That is to say when a Man doth Compass or Imagine the Death of our Lord the King of our Lady the Queen or of their Eldest Son and Heir or if a Man doth violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir or if a Man do Levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted by open Deed by People of their Condition And if a Man Counterfeit the Kings Great or Privy-Seal or his Money And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandize and make payment in deceit of our said Lord the King and of his People And if a Man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assises and all other Justices Assigned to Hear and Determine being in their Places and doing their Offices And is to be understood in the Cases above rehearsed that That ought to be adjudged Treason which extends to our Royal Lord the King and his Royal Majesty and of such Treason the Forfeiture of the Escheats pertains to our Lord the King as well the Lands and Tenements holden of others as himself And moreover there is another manner of Treason that is to say when a Servant Slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience and of such Treason the Escheats ought to pertain to every Lord of his own Fee And because many other like Cases of Treason may happen in time to come which a Man cannot think nor declare at this present time it is accorded that if any Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Ph. I desir'd to understand what Treason is wherein no Enumeration of Facts can give me satisfaction Treason is a Crime of it self Malum in se and therefore a Crime at the Common-Law and High Treason the Highest Crime at the Common-Law that can be And therefore not the Statute only but Reason without a Statute makes it a Crime And this appears by the Preamble where it is intimated that all Men though of divers Opinions did Condemn it by the name of Treason though they knew not what Treason meant but were forced to request the King to determine it That which I desire to know is how Treason might have been defined without the Statute by a Man that has no other faculty to make a Definition of it than by meer Natural Reason La. When none of the Lawyers have done it you are not to expect that I should undertake it on such a sudden Ph. You know that Salus Populi is Suprema Lex that is to say the safety of the People is the highest Law and that the safety of the People of a Kingdom consisteth in the safety of the King and of the strength necessary to defend his People both against Forraign Enemies and Rebellious Subjects And from this I infer that to Compass that is to design the Death of the then present King was High Treason before the making of this Statute as being a Designing of a Civil War and the Destruction of the People 2. That the Design to Kill the Kings Wife or to violate her Chastity as also to violate the Chastity of the Kings Heir apparent or of his Eldest Daughter unmarryed as tending to the Destruction of the certainty of
could be made after the doer therefore every such killing was called Murder before it could be known whether it could be by Felony or not For a Man may be found dead that kills himself or was Lawfully kill'd by another This name of Murder came to be the more horrid when it was secretly done for that it made every Man to consider of their own danger and him that saw the dead Body to boggle at it as a Horse will do at a dead Horse and to prevent the same they had Laws in force to Amerce the Hundred where it was done in a sum defined by Law to be the Price of his Life For in those dayes the lives of all sorts of Men were valued by Money and the value set down in their Written Laws And therefore Sir Edw. Coke was mistaken in that he thought that killing a Man by misfortune before the Statute of Marlebridge was adjudged Murder and those secret Murders were abominated by the People for that they were lyable to so great a Pecuniary Punishment for suffering the Malefactor to escape But this grievance was by Canutus when he Reign'd soon eased For he made a Law that the Countrey in this Case should not be Charged unless he were an English-man that was so slain but if he were a French-man under which name were comprehended all Forraigners and especially the Normans though the slayer escaped the County was not to be Amerced And this Law though it were very hard and Chargeable when an English-man was so slain for his Friend to prove he was an English-man and also unreasonable to deny the Justice to a stranger yet was it not Repealed till the 14th of King Ed. the 3d. By this you see that Murder is distinguished from Homicide by the Statute-Laws and not by any Common-Law without the Statute and that it is comprehended under the general name of Felony La. And so also is Petit Treason and I think so is High Treason also for in the abovesaid Statute in the 25 Ed. 3d. Concerning Treasons there is this Clause And because that many other like Cases of Treason may happen in time to come which a Man cannot think or declare at the present time it is accorded that if any other Case supposed Treason which is not above specified doth happen before any the Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it be Treason or other Felony which thereby shews that the King and Parliament thought that Treason was one of the sorts of Felony Ph. And so think I. La. But Sir Edw. Coke denies it to be so at this day for 1 Inst. Sect. 745. at the word Felony he saith That in Antient time this word Felony was of so large an extent as that it included High Treason But afterwards it was resolved that in the Kings Pardon or Charter this word Felony should extend only to Common Felonies And at this day under the word Felony by Law is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit Larceny Ph. He says it was resolv'd but by whom La. By the Justices of Assize in the time of Hen. 4. as it seems in the Margin Ph. Have Justices of Assize any Power by their Commission to alter the Language of the Land and the received sence of words Or in the Question in what Case Felony shall be said it is referred to the Judges to Determine as in the Question in what Case Treason shall be said it is referred by the Statute of Edw. the 3d. to the Parliament I think not and yet perhaps they may be disobliged to disallow a Pardon of Treason when mentioning all Felonies it nameth not Treason nor specifies it by any description of the Fact La. Another kind of Homicide there is simply called so or by the name of Manslaughter and is not Murder and that is when a Man kills another Man upon suddain Quarrel during the heat of Blood Ph. If two meeting in the Street chance to strive who shall go nearest to the Wall and thereupon Fighting one of them kills the other I believe verily he that first drew his Sword did it of Malice forethought though not long forethought but whether it be Felony or no it may be doubted It is true that the harm done is the same as if it had been done by Felony but the wickedness of the Intention was nothing near so great And supposing it had been done by Felony then 't is manifest by the Statute of Marlebridge that it was very Murder And when a Man for a word or a trifle shall draw his Sword and kill another Man can any Man imagine that there was not some Precedent Malice La. 'T is very likely there was Malice more or less and therefore the Law hath Ordained for it a punishment equal to that of Murder saving that the Offender shall have the Benefit of his Clergy Ph. The Benefit of Clergy comes in upon another account and importeth not any extenuation of the Crime for it is but a Relick of the old usurped Papal priviledge which is now by many Statutes so pared off as to spread but to few Offences and is become a Legal kind of Conveying Mercy not only to the Clergy but also to the Laity La. The work of a Judge you see is very difficult and requires a Man that hath a faculty of well distinguishing of Dissimilitudes of such Cases as Common Judgments think to be the same A small Circumstance may make a great Alteration which a Man that cannot well discern ought not to take upon him the Office of a Judge Ph. You say very well for if Judges were to follow one anothers Judgments in Precedent Cases all the Justice in the World would at length depend upon the Sentence of a few Learned or Unlearned ignorant Men and have nothing at all to do with the Study of Reason La. A Third kind of Homicide is when a Man kills another either by misfortune or in a necessary defence of himself or of the King or of his Laws for such killing is neither Felony nor Crime saving as Sir Edw. Coke says 4. Inst. p. 56. that if the Act that a Man is a doing when he kills another Man be Unlawful then it is Murder As if A. meaneth to steal a Deer in the Park of B. Shooteth at the Deer and by the glance of the Arrow killeth a Boy that is hidden in a Bush this is Murder for that the Act was Unlawful but if the owner of the Park had done the like shooting at his own Deer it had been by Misadventure and no Felony Ph. This is not so distinguished by any Statute but is the Commonly only of Sir Ed. Coke I believe not a word of it If a Boy be Robbing an Apple-tree and falling thence upon a Man that stands under
whatsoever was repugnant to those 4 General Councils For if they had I believe the Anabaptists of which there was great plenty in those times would one time or other have been question'd upon this Article of the Nicene Creed I believe one Baptism for the Remission of sins nor was the Commission it self for a long time after Registred that Men might in such uncertainty take heed and abstain for their better safety from speaking of Religion any thing at all But by what Law was this Heretick Legat burnt I grant he was an Arian and his Heresie contrary to the Determination of the Church of England in the Highest Points of Christianity but seeing there was no Statute-Law to burn him and no Penalty forbidden by what Law by what Authority was he burn't La. That this Legat was accused of Heresie was no fault of the High Commissioners but when he was accused it had been a fault in them not to have examin'd him or having examin'd him and found him an Arian not to have judged him so or not to have certified him so All this they did and this was all that belonged unto them they medled not with his Burning but left him to the Secular Power to do with him what they pleased Ph. Your Justification of the Commissioners is nothing to the Question the Question is by what Law he was burn't the Spiritual-Law gives no Sentence of Temporal Punishment and Sir Edw. Coke confesseth that he could not be burned and Burning forbidden by Statute-Law By what Law then was he burned La. By the Common-Law Ph. What 's that It is not Custom for before the time of Henry the 4th there was no such Custom in England for if there had yet those Laws that came after were but Confirmations of the Customs and therefore the Repealing of those Laws was a Repealing of the Custom For when King Ed. the 6th and Queen Eliz. abolished those Statutes they abolished all Pains and consequently Burning or else they had abolished nothing And if you will say he was burn't by the Law of Reason you must tell me how there can be Proportion between Doctrine and Burning there can be no Equality nor Majority nor Minority Assigned between them The Proportion that is between them is the Proportion of the Mischief which the Doctrine maketh to the Mischief to be Inflicted on the Doctor and this is to be measur'd only by him that hath the charge of Governing the People and consequently the Punishing of Offences can be determined by none but by the King and that if it extend to life or member with the Assent of Parliament La. He does not draw any Argument for it from Reason but alledgeth for it this Judgment executed upon Legat and a story out of Hollingshed and Stow But I know that neither History nor Precedent will pass with you for Law And though there be a Writ de haeretico comburendo in the Register as you may Read in Fitzherbert grounded upon the Statutes of 2 H. 4. cap. 15. and 2 H. 5. cap. 7. yet seeing those Statutes are void you will say the VVrit is also void Ph. Yes indeed will I. Besides this I understand not how that is true that he saith that the Diocesan hath Jurisdiction of Heresie and that so it was put in ure in all Queen Elizabeths Reign whereas by the Statute it is manifest that all Jurisdiction spiritual was given under the Queen to the High Commissioners how then could any one Diocesan have any part thereof without deputation from them which by their Letters Patents they could not grant nor was it reasonable they should For the Trust was not committed to the Bishops only but also to divers Lay-Persons who might have an Eye upon their Proceedings lest they should Incroach upon the power Temporal But at this day there is neither Statute nor any Law to Punish Doctrine but the ordinary Power Ecclesiastical and that according to the Canons of the Church of England only Authorized by the King the High Commission being long since abolished Therefore let us come now to such Causes Criminal as are not Capital Of Praemunire La. THe greatest Offence not Capital is that which is done against the Statute of Provisoes Ph. You have need to expound this La. This Crime is not unlike to that for which a Man is outlawed when he will not come in and submit himself to the Law saving that in Outlawries there is a long Process to precede it and he that is outlawed is put out of the Protection of the Law But for the Offence against the Statute of Provisors which is called Praemunire facias from the words in the Original VVrit if the Offender submit not himself to the Law within the space of 2 Months after notice he is presently an Outlaw And this Punishment if not Capital is equivalent to Capital For he lives secretly at the Mercy of those that know where he is and cannot without the like Peril to themselves but discover him And it has been much disputed before the time of Queen Elizabeth whether he might not be lawfully killed by any Man that would as one might kill a VVolf It is like the Punishment amongst the old Romans of being barred the use of Fire and VVater and like the great Excommunication in the Papacy when a Man might not eat or drink with the Offender without incurring the like Penalty Ph. Certainly the Offence for which this Punishment was first Ordained was some abominable Crime or of extraordinary Mischief La. So it was For the Pope you know from long before the Conquest incroached every day upon the Power Temporal VVhatsoever could be made to seem to be in ordine ad Spiritualia was in every Common-wealth claimed and haled to the Jurisdiction of the Pope And for that end in every Country he had his Court Ecclesiastical and there was scarce any cause Temporal which he could not by one shift or other hook into his Jurisdiction in such sort as to have it tryed in his own Courts at Rome or in France or in England it self By which means the Kings Laws were not regarded Judgments given in the Kings Courts were avoided and presentations to Bishopricks Abbies and other Benefices founded and endowed by the Kings and Nobility of England were bestowed by the Pope upon Strangers or such as with Money in their Purses could travel to Rome to provide themselves of such Benefices And suitably hereunto when there was a Question about a Tythe or a VVill though the point were meerly Temporal yet the Popes Court here would fetch them in or else one of the Parties would appeal to Rome Against these Injuries of the Roman Church and to maintain the Right and Dignity of the Crown of England Ed. 1. made a Statute concerning Provisors that is such as provide themselves with Benefices here from Rome for in the 25th year of his Reign he ordained in a full Parliament that the Right of Election of
Bishops and Right of Advowsans and Presentations belonged to himself and to the Nobility that were the founders of such Bishopricks Abbies and other Benefices And he enacted farther that if any Clerk which he or any of his Subjects should present should be disturbed by any such Provisor that such Provisor or Disturber should be attached by his Body and if Convicted lye in Prison till he were Ransomed at the Kings Will and had satisfied the Party griev'd renouced his Title and sound sureties not to sue for it any farther and that if they could not be found then Exigents should go forth to Outlawrie and the Profits of the Benefice in the mean time be taken into the Kings hands And the same Statute is confirmed in the 27th year of King Ed. the 3d which Statute alloweth to these Provisors six weeks Day to appear but if they appear before they be outlaw'd they shall be received to make Answer but if they render not themselves they shall forfeit all their Lands Goods and Chattels besides that they stand outlaw'd The same Law is confirmed again by 16 Rich. 2d cap. 5. in which is added because these Provisors obtained sometimes from the Pope that such English Bishops as according to the Law were instituted and inducted by the Kings Presentees should be excommunicated that for this also both they and the Receivers and Publishers of such Papal Process and the Procurers should have the same Punishment Ph. Let me see the Statute it self of 27 Ed. 3. La. It lies there before you set down verbatim by Sir Edw. Coke himself both in English and French Ph. 'T is well we are now to consider what it means and whether it be well or ill interpreted by Sir Edw. Coke And first it appeareth by the Preamble which Sir Edw. Coke acknowledgeth to be the best Interpreter of the Statute that this Statute was made against the Incroachments only of the Church of Rome upon the Right of the King and other Patrons to collate Bishopricks and other Benefices within the Realm of England and against the power of the Courts Spiritual to hold Plea of Controversies determinable in any of the Courts of the King or to reverse any Judgment there given as being things that tend to the Disherison of the King and Destruction of the Common-Law of the Realm always used Put the case now that a Man had procur'd the Pope to reverse a Decree in Chancery had he been within the danger of Premunire La. Yes certainly or if the Judgment had been given in the Court of the Lord Admiral or in any other Kings Court whatsoever either of Law or Equity for Courts of Equity are most properly Courts of the Common-Law of England because Equity and Common-Law as Sir Ed. Coke says are all one Ph. Then the word Common-Law is not in this Preamble restrained to such Courts only where the Tryal is by Juries but comprehends all the Kings Temporal Courts if not also the Courts of those Subjects that are Lords of great Mannors La. 'T is very likely yet I think it will not by every Man be granted Ph. The Statute also says That they who draw Men out of the Realm in Plea whereof the Cognizance pertaineth to the Kings Court or of things whereof Judgment is given in the Kings Court are within the Cases of Premunire But what if one Man draw another to Lambeth in Plea whereof Judgment is already given at Westminster Is he by this Clause involv'd in a Premunire La. Yes For though it be not out of the Realm yet it is within the meaning of the Statute because the Popes Court not the Kings Court was then perhaps at Lambeth Ph. But in Sir Edw. Coke's time the Kings Court was at Lambeth and not the Popes La. You know well enough that the Spiritual-Court has no power to hold Pleas of Common-Law Ph. I do so but I know not for what cause any simple Man that mistakes his right Court should be out of the Kings Protection lose his Inheritance and all his Goods Personal and Real and if taken be kept in Prison all his Life This Statute cannot be by Sir Edw. Cokes Torture made to say it Besides such Men are ignorant in what Courts they are to seek their Remedy And it is a Custom confirmed by perpetual usage that such ignorant Men should be guided by their Council at Law It is manifest therefore that the makers of the Statute intended not to prohibit Men from their suing for their Right neither in the Chancery nor in the Admiralty nor in any other Court except the Ecclesiastical Courts which had their Jurisdiction from the Church of Rome Again where the Statute says which do sue in any other Court or defeat a Judgment in the Kings Court what is the meaning of another Court Another Court than what Is it here meant the Kings-Bench or Court of Common-Pleas Does a Premunire lye for every Man that sues in Chancery for that which might be remedied in the Court of Common-Pleas Or can a Premunire lye by this Statute against the Lord Chancellor The Statute lays it only on the Party that sueth not upon the Judge which holdeth the Plea Nor could it be laid neither by this Statute nor by the Statute of 16 Rich. 2. upon the Judges which were then punishable only by the Popes Authority Seeing then the Party Suing has a just excuse upon the Council of his Lawyer and the Temporal Judge and the Lawyer both are out of the Statute the punishment of the Premunire can light upon no body La. But Sir Edw. Coke in this same Chapter bringeth two Precedents to prove that though the Spiritual-Courts in England be now the Kings Courts yet whosoever sueth in them for any thing tryable by the Common-Law shall fall into a Premunire One is that whereas in the 22d of Hen. 8. all the Clergy of England in a Convocation by publick Instrument acknowledged the King to be Supream Head of the Church of England yet after this viz. 24 of H. 8. this Statute was in force Ph. Why not A Convocation of the Clergy could not alter the Right of Supremacie their Courts were still the Popes Courts The other Precedent in the 25th of Hen. 8. of the Bishop of Norwich may have the same Answer for the King was not declared Head of the Church by Act of Parliament till the 26th year of his Reign If he had not mistrusted his own Law he would not have laid hold on so weak a Proof as these Precedents And as to the Sentence of Premunire upon the Bishop of Norwich neither doth this Statute nor that other of R. 2. warrant it he was sentenced for threatning to excommunicate a Man which had sued another before the Mayor But this Statute forbids not that but forbids the bringing in or publishing of Excommunications or other Process from Rome or any other Place Before the 26 Hen. 8. there is no Question but that for a
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
Justice La. The Judgment for Felony is Ph. Heresie is before Felony in the Catalogue of the Pleas of the Crown La. He has omitted the Judgment against a Heretick because I think no Jury confin'd Heresie nor no Judge Temporal did ever pronounce Judgment upon it For the Statute of 2 H. 5. c. 7. was that the Bishop having convicted any Man of Heresie should deliver him to the Sheriff and that the Sheriff should believe the Bishop The Sheriff therefore was bound by the Statute of 2 H. 4. after he was delivered to him to burn him but that Statute being repeal'd the Sheriff could not burn him without a Writ de Heretico comburendo and therefore the Sheriff burnt Legat 9. king James by that Writ which was granted by the Judges of the Common-Law at that time and in that Writ the Judgment is expressed Ph. This is strange reasoning when Sir Edw. Coke knew and confessed that the Statutes upon which the Writ de Heretico comburendo was grounded were all repeal'd how could he think the Writ it self could be in force Or that the Statute which repealeth the Statutes for burning Hereticks was not made with an intent to forbid such burning It is manifest he understood not his Books of Common-Law For in the time of Hen. 4. and Hen. 5. the word of the Bishop was the Sheriff's warrant and there was need of no such Writ nor could he till the 25 Hen. 8. when those Statutes were repeal'd and a Writ made for that purpose and put into the Register which Writ Fitzherbert cites in the end of his natura brevium Again in the later end of the Reign of Queen Elizabeth was published a correct Register of Original and Judicial Writs and the Writ de Haeretico comburendo left out because that Statute of 25 H. 8. and all Statutes against Hereticks were repeal'd and burning forbidden And whereas he citeth for the granting of this Writ 9. Jac. the Lord Chief Justice the Lord Chief Baron and two Justices of the Common-pleas it is as to all but the Lord Chief against the Law for neither the Judges of Common-Pleas nor of the Exchequer can hold Pleas of the Crown without special Commission and if they cannot hold Plea they cannot condemn La. The Punishment for Felony is that the Felon be hang'd by the Neck till he be dead And to prove that it ought to be so he cites a Sentence from whence I know not Quod non licet Felonem pro Felonia decollare Ph. It is not indeed lawful for the Sheriff of his own Head to do it or to do otherwise than is commanded in the Judgment nor for the Judge to give any other Judgment than according to Statute-Law or the usage consented to by the King but this hinders not the King from altering his Law concerning Judgments if he see good cause La. The King may do so if he please And Sir Edw. Coke tells you how he altered particular Judgments in case of Felony and sheweth that Judgment being given upon a Lord in Parliament that he should be hang'd he was nevertheless beheaded and that another Lord had the like Judgment for another Felony and was not hang'd but beheaded and withal he shews you the inconveniency of such proceeding because saith he if hanging might be altered to beheading by the same reason it might be altered to burning stoning to Death c. Ph. Perhaps there might be inconveniency in it but 't is more than I see or he shews nor did there happen any inconveniency from the execution he citeth Besides he granteth that death being ultimum supplicium is a satisfaction to the Law But what is all this to the purpose when it belongeth not to consider such inconveniencies of Government but to the King and Parliament Or who from the authority of a deputed Judge can derive a power to censure the actions of a King that hath deputed him La. For the death of a Man by misfortune there is he saith no express Judgment nor for killing a Man in ones own defence but he saith that the Law hath in both Cases given judgment that he that so killeth a Man shall forfeit all his Goods and Chattels Debts and Duties Ph. If we consider what Sir Edw. Coke saith 1 Inst. Sect. 745. at the word Felony these Judgments are very favourable For there he saith that killing of a Man by Chance-medley or se defendendo is Felony His words are wherefore by the Law at this day under the word Felony in Commissions c. is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley and se defendendo But if we consider only the intent of him that killeth a Man by misfortune or in his own defence the same judgments will be thought both cruel and sinful Judgments And how they can be Felony at this day cannot be understood unless there be a Statute to make them so For the Statute of 25 H. 3. cap. 25. The words whereof Murder from henceforth shall not be judged before our Justices where it is found Misfortune only but it shall take place in such as are slain by Felony and not otherwise make it manifest if they be Felonies they must also be Murders unless they have been made Felonies by some latter Statute La. There is no such latter Statute nor is it to say in Commission nor can a Commission or any thing but another Statute make a thing Felony that was not so before Ph. See what it is for a Man to distinguish Felony into several sorts before he understands the general name of Felony what it meaneth but that a Man for killing another Man by misfortune only without any evil purpose should forfeit all his Goods and Chartels Debts and Duties is a very hard Judgment unless perhaps they were to be given to the Kindred of the Man slain by way of amends for dammage But the Law is not that Is it the Common-Law which is the Law of Reason that justifies this Judgment or the Statute-Law It cannot be the Law of Reason if the Case be meer misfortune If a Man be upon his Apple-tree to gather his Apples and by ill fortune fall down and lighting on the Head of another Man kill him and by good fortune saves himself shall he for this mischance be punished with the forfeiture of his Goods to the King Does the Law of Reason warrant this He should you 'l say have look'd to his Feet that 's true but so should he that was under have look'd up to the Tree Therefore in this Case the Law of Reason as I think dictates that they ought each of them to bear his own misfortune La. In this Case I agree with you Ph. But this Case is the true Case of meer misfortune and a sufficient reprehension of the Opinion of Sir Edw. Coke La. But what if this had hapned to be done by one that had been stealing Apples upon the Tree
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
pardoned the Murder still remains Murder But what is pardon La. Pardon as Sir Edw. Coke says 3 Inst. p. 233 is deriv'd of per and dono and signifies throughly to remit Ph. If the King remit the Murder and not pardon the Man that did it what does the remission serve for La. You know well enough that when we say a Murder or any thing else is pardoned all English-men understand thereby that the punishment due to the offence is the thing remitted Ph. But for our understanding of one another you ought to have said so at first I understand now that to pardon Murder or Felony is throughly to save the offender from all the punishment due unto him by the Law for his offence La. Not so for Sir Edw. Coke in the same Chapter p. 238. saith thus A Man commits Felony and is attainted thereof or is abjur'd the King pardoneth the Felony without any mention of the attainder or abjuration the pardon is void Ph. What is it to be attainted La. To be attainted is that his Blood be held in Law as stained and corrupted so that no inheritance can descend from him to his Children or to any that make claim by him Ph. Is this attaint a part of the Crime or of the Punishment La. It cannot be a part of the Crime because it is none of his own Act 't is therefore a part of the Punishment viz. a disherison of the offender Ph. If it be a part of the Punishment due and yet not pardoned together with the rest then a pardon is not a through remitting of the Punishment as Sir Edw. Coke says it is And what is Abjuration La. When a Clerk heretofore was convicted of Felony he might have saved his life by abjuring the Realm that is by departing the Realm within a certain time appointed and taking an Oath never to return But at this day all Statutes for Abjuration are repeal'd Ph. That also is a Punishment and by a pardon of the Felony pardoned unless a Statute be in force to the contrary There is also somewhat in the Statute of 13 Rich. 2. c. 1. concerning the allowance of Charters of pardons which I understand not well The words are these No Charter of pardon for henceforth shall be allowed before our Justices for Murder or for the death of a Man by awayt or malice prepens'd Treason or Rape of a Woman unless the same be specified in the same Charter for I think it follows thence that if the King say in his Charter that he pardoneth the Murder then he breaketh not the Statute because he specifies the offence or if he saith he pardoneth the killing by awayt or of malice prepensed he breaketh not the Statute he specifies the offence Also if he say so much as that the Judge cannot doubt of the Kings meaning to pardon him I think the Judge ought to allow it because the Statute saveth the Kings liberty and regality in that point that is to say the power to pardon him such as are these words notwithstanding any Statute to the contrary are sufficient to cause the Charter to be allowed For these words make it manifest that the Charter was not granted upon surprise but to maintain and claim the Kings liberty and power to shew mercy when he seeth cause The like meaning have these words Perdonavimus omnimodam interfectionem that is to say we have pardoned the killing in what manner soever it was done But here we must remember that the King cannot pardon without sin any dammage thereby done to another Man unless he causes satisfaction to be made as far as possibly the offender can but is not bound to satisfie Mens thirst of revenge for all revenge ought to proceed from God and under God from the King Now besides in Charters how are these offences specified La. They are specified by their names as Treason Petit Treason Murder Rape Felony and the like Ph. Petit Treason is Felony Murder is Felony so is Rape Robbery and Theft and as Sir Edw. Coke says Petit Larceny is Felony now if in a Parliament-pardon or in a Coronation-pardon all Felonies be pardoned whether is Petit Larceny pardoned or not La. Yes certainly it is pardoned Ph. And yet you see it is not specified and yet it is a Crime that hath less in it of the nature of Felony than there is in Robbery Do not therefore Rape Robbery Theft pass under the pardon of all Felonies La. I think they are all pardoned by the words of the Statute but those that are by the same Statute excepted so that specification is needful only in Charters of pardon but in general pardons not so For the Statute 13 Rich. 2. cap. 1. forbids not the allowance of Parliament-pardons or Coronation-pardons and therefore the offences pardoned need not be specified but may pass under the general word of all Felonies Nor is it likely that the members of the Parliament who drew up their own pardons did not mean to make them as comprehensive as they could And yet Sir Edw. Coke 2 Inst. Sect. 745. at the word Felony seemeth to be of another mind for Piracy is one species of Felony and yet when certain English-men had committed Piracy in the last year of Queen Elizabeth and came home into England in the beginning of the Reign of King James trusting to his Coronation-pardon of all Felonies they were indicted Sir Edw. Coke was then Attorney General of the Piracy before Commissioners according to the Statute of 28 H. 8. and being found Guilty were hang'd The reason he alledgeth for it is that it ought to have been specified by the name of Piracy in the pardon and therefore the pardon was not to be allowed Ph. Why ought it to have been specified more than any other Felony He should therefore have drawn his argument from the Law of reason La. Also he does that for the Tryal he says was by the Common-Law and before Commissioners not in the Court of the Lord Admiral by the Civil-Law therefore he says it was an offence whereof the Common-Law could not take notice because it could not be Tryed by twelve Men. Ph. If the Common-Law could not or ought not to take notice of such offences how could the offenders be Tryed by twelve Men and found Guilty and hang'd as they were If the Common-Law take no notice of Piracy what other offence was it for which they were hang'd Is Piracy two Felonies for one of which a Man shall be hang'd by the Civil-Law and for the other by the Common-Law Truly I never read weaker reasoning in any Author of the Law of England than in Sir Edw. Coke's Institutes how well soever he could plead La. Though I have heard him much reprehended by others as well as by you yet there be many excellent things both for subtility and for truth in these his Institutes Ph. No better things than other Lawyers have that write of the Law as of a Science His