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
nor that any Judgment be given without due Process of Law Ph. This is no unreasonable Petition for the Common-Law is nothing else but Equity And by this Statute it appears that the Chancellors before that Statute made bolder with the Courts of Common Law than they did afterward but it does not appear that Common-Law in this Statute signifies any thing else but generally the Law Temporal of the Realm nor was this Statute ever Printed that such as I might take notice of it but whether it be a Statute or not I know not till you tell me what the Parliament Answer'd to this Petition La. The Kings Answer was the Wages heretofore shall stand so as the Kings Royalty be saved Ph. This is slatly against Sir Edw. Coke concerning the Chancery La. In another Parliament 17 Rich. 2. It is Enacted at the Petition of the Commons That forasmuch as People were Compelled to come before the Kings Council or in Chancery by Writs grounded upon untrue Suggestions that the Chancellor for the time being presently after such Suggestions be duly found and proved untrue shall have power to Ordain and Award Dammages according to his discretion to him which is so Travelled unduly as is aforesaid Ph. By this Statute it appears that when a Complaint is made in Chancery upon undue Suggestions the Chancellor shall have the Examination of the said Suggestions and as he may avoid Dammages when the Suggestions are untrue so he may also proceed by Process to the detemining of the Cause whether it be Real or Personal so it be not Criminal La. Also the Commons Petitioned in a Parliament of 2 Hen. 4. not Printed That no Writs nor Privy-Seals be sued out of Chancery Exchequer or other places to any Man to appear at a day upon a pain either before the King and his Council or in any other place contrary to the ordinary Course of Common-Law Ph. What Answer was given to this Petition by the King La. That such Writs should not be granted without necessity Ph. Here again you see the King may deny or Grant any Petitions in Parliament either as he thinks it necessary as in this place or as he thinks it prejudicial or not prejudicial to his Royalty as in the Answer of the former Petition which is a sufficient proof that no part of his Legislative Power or any other Essential part of Royalty can be taken from him by a Statute Now seeing it is granted that Equity is the same thing with the Law of Reason and seeing Sir Edw. Coke 1 Inst. Sect. 21. Defines Equity to be a certain Reason comprehended in no Writing but consisting only in right Reason which interpreteth and amendeth the Written-Law I would fain know to what end there should be any other Court of Equity at all either before the Chancellor or any other Person besides the Judges of the Civil or Common-Pleas Nay I am sure you can alledge none but this that there was a necessity of a Higher Court of Equity than the Courts of Common-Law to remedy the Errors in Judgment given by the Justices of Inferior Courts and the Errors in Chancery were irrevocable except by Parliament or by special Commission appointed thereunto by the King La. But Sir Edw. Coke says that seeing matters of Fact by the Common-Law are Tryable by a Jury of 12 Men this Court should not draw the matter ad aliud Examen i. e. to another kind of Examination viz. by Deposition of Witnesses which should be but evidence to a Jury Ph. To the Deposition of Witnesses any more or less then to evidence to the Lord-Chancellor 'T is not therefore another kind of Examination nor is a Jury more capable of duly examining Witnesses than a Lord-Chancellor Besides seeing all Courts are bound to Judge according to Equity and that all Judges in a Case of Equity may sometimes be deceiv'd what harm is there to any Man or to the State if there be a subordination of Judges in Equity as well as of Judges in Common-Law Seeing it is provided by an Act of parliament to avoid Vexation that Subpoenas shall not be granted till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences if so be the matter may not be made good which is contained in the Bill La. There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words Provided that no matter determinable by the Laws of the Realm shall be by the said Act determined in other Form then after the course of the same Law in the Kings Courts having the Determination of the same Law Ph. This Law was made but for Seven years and never continued by any other Parliament and the motive of this Law was the great Riots Extortions Oppressions c. used during the time of the Insurrection of John Cade and the Indictments and Condemnations wrongfully had by this usurped Authority and thereupon the Parliament Ordained that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal or should refuse to appear upon Proclamation before the Kings Council or in the Chancery to Answer to Riots Extortions c. For the first time he should lose c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery or any other Court but an extraordinary power given to the Chancery and to the Kings Privy-Council to Determine of those Crimes which were not before that time Tryable but only by the Kings-Bench or special Commission For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority to which Act the Proviso was added which is here mention'd that the Proceeds in those Courts of Chancery and of the Kings Council should be such as should be used in the Courts to which the said Courts before this Act was made do belong That is to say such causes as were Criminal should be after the order of the Kings-Bench and such Causes as were not Criminal but only against Equity should be Tryed after the manner of the Chancery or in some cases according to the Proceedings in the Exchequer I wonder why Sir Edw. Coke should cite a Statute as this is above two hundred years before expir'd and other two Petitions as if they were Statutes when they were not passed by the King unless he did it on purpose to diminish as he endeavours to do throughout his Institutes the Kings Authority or to insinuate his own opinions among the People for the Law of the Land For that also he endeavours by Inserting Latin Sentences both in his Text and in the Margin as if they were Principles of the Law of Reason without any Authority of Antient Lawyers or any certainty of Reason in themselves to make Men believe they are the very grounds of the Law of England Now as to the Authority you
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
words in their Letters Patents Constituimus vos Justitiarium nostrum Capitalem ad Placita coram nobis tenenda durante beneplacito nostro That is to say we have made you our Chief-Justice to hold Pleas before our self during our pleasure But this Writ though it be shorter does not at all abridge the power they had by the former And for the Letters Patents for the Chief-Justice of the Common-Pleas they go thus Constituimus dilectum Fidelem c. Capitalem Justitiarium de Communi Banco Habendum c. quamdiu nobis placuerit cum vadiis foedis ab antiquo debitis consuetis Id est We have Constituted our Beloved and Faithful c. Chief-Justice of the Common-Bench To have c. during our pleasure with the ways and Fees thereunto heretofore due and usual Ph. I find in History that there have been in England always a Chancellour and a Chief-Justice of England but of a Court of Common-Pleas there is no mention before Magna Charta Common-Pleas there were ever both here and I think in all Nations for Common-Pleas and Civil-Pleas I take to be the same La. Before the Statute of Magna Charta Common-Pleas as Sir Edw. Coke granteth 2 Inst. p. 21. might have been holden in the Kings-Bench and that Court being removeable at the Kings will the Returns of Writs were Coram Nobis ubicunque fuerimus in Anglia whereby great trouble of Jurors ensued and great charges of the parties and delay of Justice and that for these causes it was Ordain'd that the Common-Pleas should not follow the King but be held in a place certain Ph. Here Sir Edw. Coke declares his Opinion that no Common-Plea can be holden in the Kings-Bench in that he says they might have been holden then And yet this doth not amount to any probable proof that there was any Court of Common-Pleas in England before Magna Charta For this Statute being to ease the Jurors and lessen the Charges of Parties and for the Expedition of Justice had been in Vain if there had been a Court of Common-Pleas then standing for such a Court was not necessarily to follow the King as was the Chancery and the Kings-Bench Besides unless the Kings-Bench wheresoever it was held Plea of civil Causes the Subject had not at all been eased by this Statute For supposing the King at York had not the Kings Subjects about London Jurors and parties as much trouble and charge to go to York as the People about York had before to go to London Therefore I can by no means believe otherwise then that the Erection of the Court of Common-Pleas was the effect of that Statute of Magna Charta Cap. 11. And before that time not existent though I think that for the multiplicity of Suits in a great Kingdom there was need of it La. Perhaps there was not so much need of it as you think For in those times the Laws for the most part were in setling rather than setled and the old Saxon Laws concerning Inheritances were then practised by which Laws speedy Justice was Executed by the Kings Writs in the Courts of Barons which were Landlords to the rest of the Freeholders and Suits of Barons in County-Courts and but few Suits in the Kings Courts but when Justice could not be had in those Inferior Courts but at this day there be more Suits in the Kings Courts than any one Court can dispatch Ph. Why should there be more Suits now than formerly For I believe this Kingdom was as well Peopled then as now La. Sir Edw. Coke 4 Inst. p. 76. assigneth for it six Causes 1. Peace 2. Plenty 3. The Dissolution of Religious Houses and dispersing of their Lands among so many several persons 4. The multitude of Informers 5. The number of Concealers 6. The multitude of Attorneys Ph. I see Sir Edw. Coke has no mind to lay any fault upon the Men of his own Profession and that he Assigns for Causes of the Mischiefs such things as would be Mischief and Wickedness to amend for if Peace and Plenty be the cause of this Evil it cannot be removed but by War and Beggery and the Quarrels arising about the Lands of Religious Persons cannot arise from the Lands but from the doubtfulness of the Laws And for Informers they were Authorised by Statutes to the Execution of which Statutes they are so necessary as that their number cannot be too great and if it be too great the fault is in the Law it self The number of Concealers are indeed a number of Couseners which the Law may easily Correct And lastly for the multitude of Attorneys it is the fault of them that have the power to admit or refuse them For my part I believe that Men at this day have better learn't the Art of Caviling against the words of a Statute than heretofore they had and thereby encourage themselves and others to undertake Suits upon little reason Also the variety and repugnancy of Judgments of Common-Law do oftentimes put Men to hope for Victory in causes whereof in reason they had no ground at all Also the ignorance of what is Equity in their own causes which Equity not one Man in a thousand ever Studied and the Lawyers themselves seek not for their Judgments in their own Breasts but in the precedents of former Judges as the Antient Judges sought the same not in their own Reason but in the Laws of the Empire Another and perhaps the greatest cause of multitude of Suits is this that for want of Registring of conveyances of Land which might easily be done in the Townships where the Lands ly a Purchase cannot easily be had which will not be litigious Lastly I believe the Coveteousness of Lawyers was not so great in Antient time which was full of trouble as they have been since in time of Peace wherein Men have leisure to study fraud and get employment from such Men as can encourage to Contention And how ample a Field they have to exercise this Mystery in is manifest from this that they have a power to Scan and Construe every word in a Statute Charter Feofment Lease or other Deed Evidence or Testimony But to return to the Jurisdiction of this Court of the Kings-Bench where as you say it hath power to correct and amend the Errors of all other Judges both in Process and in Judgments cannot the Judges of the Common-Pleas correct Error in Process in their own Courts without a Writ of Error from another Court La. Yes and there be many Statutes which Command them so to do Ph. When a Writ of Error is brought out of the Kings-Bench be it either Error in Process or in Law at whose Charge is it to be done La. At the Charge of the Clyent Ph. I see no reason for that for the Clyent is not in fault who never begins a Suit but by the advice of his Council Learned in the Law whom he pays for his Council given Is not
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
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
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-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
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
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
Court of Equity in that to which belong such Causes as are to be determined by Equity that is to say by the Law of Reason Ph. You see then that the difference between Injustice and Iniquity is this that Injustice is the Transgression of a Statute-Law and Iniquity the Transgression of the Law of Reason was nothing else but the Law of Reason and that the Judges of that Law are Courts of Justice because the breach of the Statute-Law is Iniquity and Injustice also But perhaps you mean by Common-Law not the Law it self but the manner of proceeding in the Law as to matter of Fact by 12 Men Freeholders though those 12 Men are no Court of Equity nor of Justice because they determine not what is Just or Unjust but only whether it be done or not done and their Judgment is nothing else but a Confirmation of that which is properly the Judgment of the Witnesses for to speak exactly there cannot possibly be any Judge of Fact besides the Witnesses La. How would you have a Law defâ—n'd Ph. Thus A Law is the Command of him or them that have the Soveraign Power given to those that be his or their Subjects declaring Publickly and plainly what every of them may do and what they must forbear to do La. Seeing all Judges in all Courts ought to Judge according to Equity which is the Law of Reason a distinct Court of Equity seemeth to me to be unnecessary and but a Burthen to the People since Common-Law and Equity are the same Law Ph. It were so indeed If Judges could not err but since they may err and that the King is not Bound to any other Law but that of Equity it belongs to him alone to give Remedy to them that by the Ignorance or Corruption of a Judge shall suffer dammage La. By your Definition of a Law the Kings Proclamation under the Great Seal of England is a Law for it is a Command and Publick and of the Soveraign to his Subjects Ph. Why not If he think it necessary for the good of his Subjects For this is a Maxim at the Common-Law Alledged by Sir Edward Coke himself 1 Inst. Sect. 306. Quando Lex aliquid concedit concedere videtur id per quod devenitur ad illud And you know out of the same Author that divers Kings of â—ngland have often to the Petitions in Parliament which they granted annexed such exceptions as these unless there be necessity saving our Regality which I think should be always understood though they be not expressed and are understood so by Common Lawyers who agree that the King may recall any Grant wherein he was deceiv'd La. Again whereas you make it of the Essence of a Law to be Publickly and plainly declar'd to the People I see no necessity for that Are not all Subjects Bound to take notice of all Acts of Parliament when no Act can pass without their Consent Ph. If you had said that no Act could pass without their knowledge then indeed they had been bound to take notice of them but none can have knowledge of them but the Members of the Houses of Parliament therefore the rest of the People are excus'd or else the Knights of the Shires should be bound to furnish People with a sufficient Number of Copies at the Peoples Charge of the Acts of Parliament at their return into the Country that every man may resort to them and by themselves or Friends take notice of what they are obliged to for otherwise it were Impossible they should be obeyed And that no Man is bound to do a thing Impossible is one of Sir Edw. Cokes Maxims at the Common-Law I know that most of the Statutes are Printed but it does not appear that every Man is bound to Buy the Book of Statutes nor to search for them at Westminster or at the Tower nor to understand the Language wherein they are for the most part Written La. I grant it proceeds from their own Faults but no Man can be excused by the Ignorance of the Law of Reason that is to say by Ignorance of the Common-Law except Children Mad-men and Idiots But you exact such a notice of the Statute-Law as is almost Impossible Is it not enough that they in all Places have a sufficient Number of the Poenal Statutes Ph. Yes If they have those Poenal Statutes near them but what Reason can you give me why there should not be as many Copies abroad of the Statutes as there be of the Bible La. I think it were well that every Man that can Read had a Statute-Book for certainly no knowledge of those Laws by which Mens Lives and Fortunes can be brought into danger can be too much I find a great Fault in your Definition of Law which is that every Law either forbiddeth or Commandeth something 'T is true that the Moral-Law is always a Command or a Prohibition or at least Implieth it but in the Levitical-Law where it is said that he that Stealeth a Sheep shall Restore four Fold what Command or Prohibition lyeth in these words Ph. Such Sentences as that are not in themselves General but Judgments nevertheless there is in those words Implied a Commandment to the Judge to cause to be made a Four-fold Restitution La. That 's Right Ph. Now Define what Justice is and what Actions and Men are to be called Just. La. Justice is the constant will of giving to every Man his own that is to say of giving to every Man that which is his Right in such manner as to Exclude the Right of all men else to the same thing A Just Action is that which is not against the Law A Just Man is he that hath a constant Will to live Justly if you require more I doubt there will no Man living be Comprehended within the Definition Ph. Seeing then that a Just Action according to your Definition is that which is not against the Law it is Manifest that before there was a Law there could be no Injustice and therefore Laws are in their Nature Antecedent to Justice and Injustice and you cannot deny but there must be Law-makers before there was any Laws and Consequently before there was any Justice I speak of Humane Justice and that Law-makers were before that which you call Own or property of Goods or Lands distinguished by Meum Tuum Alienum La. That must be Granted for without Statute-Laws all Men have Right to all things and we have had Experience when our Laws were silenced by Civil War there was not a Man that of any Goods could say assuredly they were his own Ph. You see then that no private Man can claim a Propriety in any Lands or other Goods from any Title from any Man but the King or them that have the Soveraign Power because it is in virtue of the Soveraignty that every Man may not enter into and Possess what he pleaseth and consequently to deny the Soveraign any thing necessary to
which have either been not preserv'd in the Records or else by Sir Edw. Coke because they were against his opinion not alledged For this is possible though you will not grant it to be very likely therefore I insist only upon this that no Record of a Judgment is a Law save only to the party Pleading until he can by Law reverse the former Judgment And as to the proceeding without Juries by two sufficient Witnesses I do not see what harm can proceed from it to the Common-wealth nor consequently any just Quarrel that the Justice of the Common-Law can have against their proceedings in the Admiralty For the Proof of a Fact in both Courts lyeth meerly on the Witnesses and the difference is no more but that in the Imperial-Law the Judge of the Court Judgeth of the Testimony of the Witnesses and the Jury doth in a Court of Common-Law Besides if a Court of Common-Law should chance to Incroach upon the Jurisdiction of the Admiral may not he send a prohibition to the Court of Common-Law to forbid their proceeding I pray you tell me what Reason there is for the one more than for the other La. I know none but long Custom for I think it was never done Ph. The Highest ordinary Court in England is the Court of Chancery wherein the Lord Chancellour or otherwise Keeper of the Great Seal is the only Judge This Court is very Antient as appears by Sir Edw. Coke 4 Inst. p. 87. where he nameth the Chancellors of King Edgar King Etheldred King Edmund and King Edward the Confessor His Office is given to him without Letters Patents by the Kings delivery to him of the Great Seal of England and whosoever hath the keeping of the Great Seal of England hath the same and the whole Jurisdiction that the Lord Chancellour ever had by the Statute of 5 Eliz. cap. 18. wherein it is declar'd that such is and always has been the Common-Law And Sir Edw. Coke says he has his name of Chancellour from the highest point of his Jurisdiction viz. a Cancellando that is from Cancelling the Kings Letters Patents by drawing strokes through it like a Lattice Ph. Very pretty It is well enough known that Cancellarius was a great Officer under the Roman Empire whereof this Island was once a Member and that the Office came into this Kingdom either with or in Imitation of the Roman Government Also it was long after the time of the 12 Caesars that this Officer was created in the State of Rome For till after Septimius Severus his time the Emperors did diligently enough take cognizance of Causes and Complaints for Judgments given in the Courts of the Praetors which were in Rome the same that the Judges of the Common-Law are here but by the continual Civil Wars in after-times for the choosing of Emperors that diligence by little and little ceased and afterwards as I have Read in a very good Author of the Roman Civil Law the number of complaints being much increased and being more than the Emperor could dispatch he appointed an Officer as his Clerk to receive all such Petitions and that this Clerk caused a partition to be made in a Room convenient in which partition-Wall at the heighth of a Mans reach he placed at convenient distances certain Bars so that when a Suitor came to deliver his Petition to the Clerk who was sometimes absent he had no more to do but to throw in his Petition between those Bars which in Latin are called properly Cancelli not that any certain Form of those Bars or any Bars at all were necessary for they might have been thrown over though the whole space had been left open but because they were Cancelli the Clerk Attendant and keeping his Office there was called Cancellarius And any Court Bar may properly enough be called Cancelli which does not signifie a Lattice for that is but a meer Conjecture grounded upon no History nor Grammar but taken up at first as is likely by some Boy that could find no other word in the Dictionary for a Lattice but Cancelli The Office of this Chancellour was at first but to Breviate the matter of the Petitions for the easing of the Emperor but Complaints encreasing daily they were too many considering other Businesses more necessary for the Emperor to determine and this caused the Emperor to commit the Determination of them to the Chancellor again what Reason doth Sir Edw. Coke alledge to prove that the highest point of the Chancellors Jurisdiction is to Cancel his Masters Letters Patents after they were Sealed with his Masters Seal unless he hold Plea concerning the validity of them or of his Masters meaning in them or of the surreptitious getting of them or of the abusing of them which are all causes of Equity Also seeing the Chancellor hath his Office only by the delivery of the Great Seal without any Instruction or Limitation of the Process in his Court to be used it is manifest that in all Causes whereof he has the hearing he may proceed by such manner of hearing and examining of Witnesses with Jury or without Jury as he shall think fittest for the Exactness Expedition and Equity of the Decrees And therefore if he think the Custome of proceeding by Jury according to the Custome of England in Courts of Common-Law tend more to Equity which is the scope of all the Judges in the World or ought to be he ought to use that method or if he think better of another proceeding he may use it if it be not forbidden by a Statute La. As for this Reasoning of yours I think it well enough but there ought to be had also a reverend respect to Customs not unreasonable and therefore I think Sir Edw. Coke says not amiss that in such Cases where the Chancellor will proceed by the Rule of the Common-Law he ought to deliver the Record in the Kings-Bench and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by Statutes Ph. What are the Statutes by which his Jurisdiction is limited I know that by the 27 Eliz. cap. 8. He cannot Reverse a Judgment given in the Kings-Bench for Debt Detinue c. Nor before the Statute could he ever by virtue of his Office Reverse a Judgment in Pleas of the Crown given by the Kings-Bench that hath the Cognizance of such Pleas nor need he for the Judges themselves when they think there is need to relieve a Man opprest by ill Witnesses or power of great Men prevailing on the Jury or by Error of the Jury though it be in case of Felony may stay the Execution and Inform the King who will in Equity relieve him As to the regard we ought to have to Custome we will Consider of it afterward La. First in a Parliament holden the 13th of Rich. 2. the Commons Petitioned the King that neither the Chancellor nor other Chancellor do make any order against the Common-Law
ascribe to Custome I deny that any Custome of its own Nature can amount to the Authority of a Law For if the Custom be unreasonable you must with all other Lawyers confess that it is no Law but ought to be abolished and if the Custom be reasonable it is not the Custom but the Equity that makes it Law For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal Besides you cannot find in any Statute though Lex Consuetudo be often mentioned as things to be followed by the Judges in their Judgments that Consuetudines that is to say Customs or Usages did imply any Long continuance of former time but that it signified such Use and Custom of proceeding as was then immediately in being before the making of such Statute Nor shall you find in any Statute the word Common-Law which may not be there well Interpreted for any of the Laws of England Temporal for it is not the singularity of Process used in any Court that can distinguish it so as to make it a different Law from the Law of the whole Nation La. If all Courts were as you think Courts of Equity would it not be incommodious to the Common-wealth Ph. I think not unless perhaps you may say that seeing the Judges whether they have many or few causes to be heard before them have but the same wages from the King they may be too much inclin'd to put off the Causes they use to hear for the easing of themselves to some other Court to the delay of Justice and dammage of the Parties suing La. You are very much deceiv'd in that for on contrary the Contention between the Courts for Jurisdiction is of who shall have most Causes brought before them Ph. I cry you Mercy I smelt not that La. Seeing also all Judges ought to give their Sentence according to Equity if it should chance that a Written Law should be against the Law of Reason which is Equity I cannot Imagine in that Case how any Judgment can be Righteous Ph. It cannot be that a Written Law should be against Reason For nothing is more reasonable than that every Man should obey the Law which he hath himself assented to but that is not always the Law which is signified by Grammatical Construction of the Letter but that which the Legislator thereby intended should be in Force which Intention I Confess is a very hard matter many times to pick out of the words of the Statute and requires great Ability of understanding and greater Meditations and Considerations of such Conjuncture of occasions and Incommodities as needed a new Law for a Remedy for there is scarce any thing so clearly written that when the Cause thereof is forgotten may not be wrested by an ignorant Grammarian or a Cavilling Logician to the Injury Oppression or perhaps Destruction of an honest Man And for this Reason the Judges deserve that Honour and Profit they enjoy since the Determination of what particular Causes every particular Court should have Cognizance is a thing not yet sufficiently explained and is in it self so difficult as that the Sages of the Law themselves the Reason Sir Edw. Coke will leave to Law it self are not yet agreed upon it how is it possible for a Man that is no professed or no profound Lawyer to take notice in what Court he may Lawfully begin his Suit or give Council in it to his Client La. I confess that no Man can be bound to take notice of the Jurisdiction of Courts till all the Courts be agreed upon it amongst themselves but what Rule to give Judgment by a Judge can have so as never to contradict the Law written nor displease his Legislator I understand not Ph. I think he may avoid both if he take care by his Sentence that he neither punish an Innocent nor deprive him of his â—ammages due from one that maliciously â—â—eth him without reasonable Cause which â—o the most of Rational Men and unbiassed â—s not in my Opinion very difficult And though a Judge should as all Men may do Erre in his Judgment yet there is always such power in the Laws of England as may content the Parties either in the Chancery or by Commissioners of their own choosing Authorized by the King for every Man â—s bound to acquiesce in the Sentence of the Judges he chooseth La. In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker Ph. Very many whereof Sir Edw. Coke nameth 3 Fraud Accident and Breach of Confidence but there be many more for there be a very great many reasonable Exceptions almost to every General Rule which the makers of the Rule could not foresee and very many words in every Statute especially long ones that are as to Grammar of Ambiguous signification and yet to them that know well to what end the Statute was made perspicuous enough and many Connections of doubtful reference which by a Grammarian may be Cavill'd at though the Intention of the Lawmaker be never so perspicuous And these are the difficulties which the Judges ought to Master and can do it in respect of their Ability for which they are chosen as well as can be hoped for and yet there are other Men can do the same or else the Judges places could not be from time to time supplyed The Bishops commonly are the most able and rational Men and obliged by their profession to Study Equity because it is the Law of God and are therefore capable of being Judges in a Court of Equity They are the Men that teach the People what is Sin that is to say they are the Doctors in Cases of Conscience What reason then can you shew me why it is unfit and hurtful to the Common-wealth that a Bishop should be a Chancellor as they were most often before the time of Hen. 8. and since that time once in the Raign of King James La. But Sir Ed. says that soon after that a Chancellor was made which was no Professor of the Law he finds in the Rolls of the Parliament a grievous Complaint by the whole Body of the Realm and a Petition that the most wise and able Men within the Realm might be chosen Chancellors Ph. That Petition was Reasonable but it does not say which are Abler Men the Judges of the Common Law or the Bishops La. That is not the great Question as to the Ability of a Judge both of one and the other there are Able Men in their own way but when a Judge of Equity has need almost in every Case to consider as well the Statute-Law as the Law of Reason he cannot perform his Office perfectly unless he be also ready in the Statutes Ph. I see no great need he has to be ready in the Statutes in the hearing of a Cause do the Judges of the Common-Law Inform the Council at the Bar what the Statute is or the
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
Kings of those times had not means enough and to spare if God were not their Enemy to defend their People against Forreign Enemies and also to compell them to keep the Peace amongst themselves Ph. And so had had the succeeding Kings if they had never given their rights away and their Subjects always kept their Oaths and promises In what manner proceeded those Ancient Saxons and other Nations of Germany especially the Northern parts to the making of their Laws La. Sir Edw. Coke out of divers Saxon Laws gathered and published in Saxon and Latine by Mr. Lambert inferreth that the Saxon Kings for the making of their Laws called together the Lords and Commons in such manner as is used at this day in England But by those Laws of the Saxons published by Mr. Lambert it appeareth that the Kings called together the Bishops and a great part of the wisest and discreetest Men of the Realm and made Laws by their advice Ph. I think so for there is no King in the World being of ripe years and sound mind that made any Law otherwise for it concerns them in their own interest to make such Laws as the people can endure and may keep them without impatience and live in strength and courage to defend their King and Countrey against their potent neighbours But how was it discerned and by whom was it determined who were those wisest and discreetest Men It is a hard matter to know who is wisest in our times We know well enough who chooseth a Knight of the Shire and what Towns are to send Burgesses to the Parliament therefore if it were determined also in those dayes who those wise Men should be then I confess that the Parliaments of the old Saxons and the Parliaments of England since are the same thing and Sir Edw. Coke is in the right Tell me therefore if you can when those Towns which now send Burgesses to the Parliament began to do so and upon what cause one Town had this priviledge and another Town though much more populous had not La. At what time began this custom I cannot tell but I am sure it is more ancient than the City of Salisbury because there come two Burgesses to Parliament for a place near to it called Old Sarum which as I Rid in sight of it if I should tell a stranger that knew not what the word Burgess meant he would think were a couple of Rabbets the place looketh so like a long Cony-Borough And yet a good Argument may be drawn from thence that the Townsmen of every Town were the Electors of their own Burgesses and Judges of their discretion and that the Law whether they be discreet or not will suppose them to be discreet till the contrary be apparent Therefore where it is said that the King called together the more discreet Men of his Realm it must be understood of such Elections as are now in use By which it is manifest that those great and general Moots assembled by the old Saxon Kings were of the same nature with the Parliaments assembled since the Conquest Ph. I think your reason is good For I cannot conceive how the King or any other but the inhabitants of the Boroughs themselves can take notice of the discretion or sufficiency of those they were to send to the Parliament And for the Antiquity of the Burgess-Towns since it is not mentioned in any History or certain Record now extant it is free for any Man to propound his conjecture You know that this Land was invaded by the Saxons at several times and conquered by pieces in several Wars so that there were in England many Kings at once and every of them had his Parliament and therefore according as there were more or fewer walled Towns within each Kings Dominion his Parliament had the more or fewer Burgesses But when all these lesser Kingdoms were joyned into one then to that one Parliament came Burgesses from all the Burroughs of England And this perhaps may be the reason why there be so many more such Burroughs in the West than in any other part of the Kingdom the West being more populous and also more obnoxious to invaders and for that cause having greater store of Towns Fortified This I think may be the original of that priviledge which some Towns have to send Burgesses to the Parliament and others have not La. The Conjecture is not improbable and for want of greater certainty may be allowed But seeing it is commonly receiv'd that for the making of a Law there ought to be had the assent of the Lords Spiritual and Temporal whom do you account in the Parliaments of the old Saxons for Lords Temporal and whom for Lords Spiritual For the Book called The mode of holding Parliaments agreeth punctually with the manner of holding them at this day and was written as Sir Edw. Coke says in the time of the Saxons and before the Conquest Ph. Mr. Selden a greater Antiquary than Sir Edw. Coke in the last Edition of his Book of Titles of Honour says that that Book called the Mode c. was not written till about the time of Rich. 2. and seems to me to prove it But howsoever that be it is apparent by the Saxon Laws set forth by Mr. Lambert that there were always called to the Parliament certain great Persons called Aldermen alias Earls and so you have a House of Lords and a House of Commons Also you will find in the same place that after the Saxons had received the Faith of Christ those Bishops that were amongst them were always at the great Mootes in which they made their Laws Thus you have a perfect English Parliament saving that the name of Barons was not amongst them as being a French Title which came in with the Conqueror FINIS The King is the Supream Judge