was ready drawn by them Her Majesty was highly displeased herewith as contrary to her former strait Command and charged the Councel to call the Parties before them Sir Thomas Henage sent for them and after Speech with them commanded them to forbear the Parliament and not to go out of their several Lodgings after they were called before the Lord Treasurer the Lord Buckhurst and Sir Thomas Henage Mr. Wentworth was committed by them to the Tower Sir Henry Bromley with Mr. Richard Stevens to whom Sir Henry Bromley had imparted the Matter were sent to the Fleet as also Mr. Welch the other Knight for Worcestershire In the same Parliament Mr. Morrice Attorney of the Court of Wards moved against the hard Courses of the Bishops Ordinaries and other Ecclesiastical Judges in their Courts used towards sundry Learned and godly Ministers and Preachers and spake against Subscription and Oaths and offer'd a Bill to be read against Imprisonment for refusal of Oaths Mr. Dalton opposed the Reading of it as a thing expresly against Her Majesties Command to meddle in Doctor Lewin shewed that Subscription was used even at Geneva At two of the clock the same day the Speaker Mr. Coke afterwards Sir Edward Coke was sent for to the Court where the Queen Her self gave him in Command a Message to the House She told him It being wholly in Her Power to Call to Determine to Assent or Dissent to any thing done in Parliament that the Calling of This was only that the Majesty of God might be more religiously observed by compelling by some sharp Laws such as neglect that Service and that the Safety of Her Majesties Person and the Realm might be provided for It was not meant they should meddle with matters of State or Causes Ecclesiastical for so Her Majesty termed them she wondred that any could be of so high Commandement to attempt they were Her own words a thing so expresly contrary to that which She had commanded wherefore with this She was highly offended And because the words spoken by my Lord Keeper are not now perhaps well remembred or some bâ—… now here that were not then present Her Majesties present Charge and express Command is that no Bill touching the said matter of State or Reformation in Causes Ecclesiastical be exhibited and upon my Allegiance saith Mr. Coke I am charged if any such Bill be exhibited not to read it I have been credibly informed that the Queen sent a Messenger or Serjeant at Arms into the House of Commons and took out Mr. Morrice and committed him to prison within few dayes after I find Mr. Wroth moved in the House that they might be humble Suitors to Her Majesty that She would be pleased to set at liberty those Members of the House that were restrained To this it was answered by the Privy Counsellors that Her Majesty had committed them for Causes best known to Her self and to press Her Highness with this Suit would but hinder them whose Good is sought that the House must not call the Queen to account for what she doth of Her Royal Authority that the Causes for which they are restrained may be High and Dangerous that Her Majesty liketh no such Questions neither doth it become the House to searcâ—… into such matters In the 39 Eliz. The Commons were tolâ—… their Privilege was Yea and No and thaâ—… Her Majesties Pleasure was that if the Speaker perceived any idle heads which would not stick to hazard their own Estates which will meddle with reforming the Church and transforming the Commonweal and do exhibit Bills to that purpose the Speaker should not receive them till they were viewed and considered by those whom it is fitter should consider of such things and can better judge of them and at the end of this Parliament the Queen refused to pass 48 Bills which had passed both Houses In the 28 of Eliz. the Queen said She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk a thing impertinent for the House to deal withal and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned 4 Hen. 4. The 10 of October the Chancellor before the King declared the Commons had sent to the King praying him that they might have Advice and Communication with certain Lords about Matters of Business in Parliament for the common good of the Realm which Prayer Our Lord the King graciously granted making Protestation he would not do it of Duty nor of Custom but of his special Grace at this time and therefore Our Lord the King â—…harged the Clark of the Parliament that this Protestation should be entred on Record upon the Parliament-Roll which the King made known to them by the Lord Say and his Secretary how that neither of Due nor of Custom our Lord the King ought to grant any Lords to enter into Communication with them of Matters touching the Parliament but by his special Grace at this time he hath granted their Request in this Particular upon which matter the said Steward and Secretary made Report to the King in Parliament that the said Commons knew well that they could not have any such Lords to commune with them of any Business of Parliament without special Grace and Command of the King Himself It hath heretofore been a question whether it be not an Infringing and Prejudice to the Liberties and Privileges of the House of Commons for them to joyn in Conference with the Lords in Cases of Benevolence or Contribution without a Bill In the 35 Eliz. on Tuesday the first of March Mr. Egerton Attorney general and Doct. Carey came with a Message from the Lords their Lordships desired to put the House in Remembrance of the Speech delivered by the Lord Keeper the first day for Consultation and Provision of Treasure to be had aginst the great and imminent Dangers of the Realm thereupon their Lordships did look to have something from the Houses touching those Causes before this time and yet the Parliament had sate but three dayes for it began Feb. 26. and therefore their Lordships had hitherto omitted to do any thing therein themselves And thereupon their Lordships desired that according to former laudable Usages between both Houses in such like Cases a Committee of Commons may have Conference with a Committee of Lords touching Provision of Treasure against the great Dangers of the Realm which was presently resolved by the whole House and they signified to their Lordships the willing and ready Assent of the whole House At the Meeting the Lords negatively affirm not to assent to less than three Subsidies and do insist for a second Conference M. Francis Bacon yielded to the Subsidy but opposed the joyning with the Lords as contrary to the Privileges of the House of Commons thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
Obligation one to another as Mr. Hobs's words are in his Book De Cive cap. 8. sect 3. the Scripture teacheth us otherwise that all men came by Succession and Generation from one man we must not deny the Truth of the History of the Creation IV. It is not to be thought that God would create man in a Condition worse than any Beasts as if he made men to no other End by Nature but to destroy one another a Right for the Father to destroy or eat his Children and for Children to do the like by their Parents is worse than Canibals This horrid Condition of pure Nature when Mr. Hobs was charged with his Refuge was to answer that no Son can be understood to be in this state of pure Nature which is all one with denying his own Principle for if men be not free-born it is not possible for him to assign and prove any other time for them to claim a Right of Nature to Liberty if not at their Birth V. But if it be allowed which is yet most false that a Company of men were at first without a common Power to keep them in Awe I do not see why such a Condition must be called a State of War of all men against all men indeed if such a Multitude of men should be created as the Earth could not well nourish there might be Cause for men to destroy one another rather than perish for want of Food but God was no such Niggard in the Creation and there being Plenty of Sustenance and Room for all men there is no Cause or Use of War till men be hindred in the Preservation of Life so that there is no absolute Necessity of War in the State of pure Nature it is the Right of Nature for every man to live in Peace that so he may tend the Preservation of his life which whilst he is in actual War he cannot do War of it self as it is War preserves no mans Life it only helps us to preserve and obtain the Means to live if every man tend the Right of preserving Life which may be done in Peace there is no Cause of War VI. But admit the State of Nature were the State of War let us see what Help Mr. Hobs hath for it It is a Principle of his that the Law of Nature is a Rule found out by Reason I do think it is given by God pag. 64. forbidding a man to do that which is destructive to his Life and to omit that by which he thinks it may be best preserved If the Right of Nature be a Liberty for a man to do any thing he thinks fit to preserve his Life then in the first Place Nature must teach him that Life is to be preserved and so consequently forbids to do that which may destroy or take away the means of life or to omit that by which it may be preserved and thus the Right of Nature and the Law of Nature will be all one for I think Mr. Hobs will not say the Right of Nature is a Liberty for man to destroy his own Life The Law of Nature might better have been said to consist in a Command to preserve or not to omit the Means of preserving Life than in a Prohibition to destroy or to omit it VII Another Principle I meet with pag. 65. If other men will not lay down their Right as well as he then there is no Reason for any to devest himself of his Hence it follows that if all the men in the World do not agree no Common-wealth can be established it is a thing impossible for all the men in the World every man with every man to Covenant to lay down their Right Nay it is not possible to be done in the smallest Kingdom though all men should spend their whole Lives in nothing else but in running up and down to Covenant VIII Right may be laid aside but not transfer'd for pag. 65. he that renounceth or passeth away his Right giveth not to any other man a Right which he had not before and reserves a Right in himself against all those with whom he doth not Covenant IX Pag. 87. The only way to erect a Common Power or a Commonwealth is for men to confer all their Power and Strength upon one man or one Assembly of men that may reduce all their Wills by Plurality of Voices to one Will which is to appoint one man or an Assembly of men to bear their Person to submit their Wills to his Will this is a real Unity of them all in one Person made by Covenant of every man with every man as if every man should say to every man I authorise and give up my Right of Governing my self to this man or this Assembly of men on this Condition that thou give up thy Right to him and authorise all his Actions This done the Multitude so united in one Person is called a Commonwealth To authorise and give up his Right of Governing himself to confer all his Power and Strength and to submit his Will to another is to lay down his Right of resisting for if Right of Nature be a Liberty to use Power for Preservation of Life laying down of that Power must be a Relinquishing of Power to preserve or defend Life otherwise a man relinquisheth nothing To reduce all the Wills of an Assembly by Plurality of Voices to one Will is not a proper Speech for it is not a Plurality but a Totality of Voices which makes an Assembly be of one Will otherwise it is but the one Will of a major part of the Assembly the Negative Voice of any one hinders the Being of the one Will of the Assembly there is nothing more destructive to the true Nature of a lawful Assembly than to allow a major part to prevail when the whole only hath Right For a man to give up his Right to one that never Covenants to protect is a great Folly since it is neither in Consideration of some Right reciprocally transferred to himself nor can he hope for any other Good by standing out of the way that the other may enjoy his own original Right without hinderance from him by reason of so much Diminution of Impediments pag. 66. X. The Liberty saith Mr. Hobs whereof there is so frequent and honourable Mention in the Histories and Philosophy of the ancient Greeks and Romans and in the Writings and Discourse of those that from them have received all their Learning in the Politiques is not the Liberty of particular men but the Liberty of the Commonwealth Whether a Commonwealth be Monarchical or Popular the Freedom is still the same Here I find Mr. Hobs is much mistaken for the Liberty of the Athenians and Romans was a Liberty only to be found in popular Estates and not in Monarchies This is clear by Aristotle who calls a City a Community of Freemen meaning every particular Citizen to be free Not that every particular man had
do at the Fire Here we see the Picture of Wax roasted by the Witch hath no vertue in the Murdering but the Devil onely It is necessary in the first place that it be duly proved that the party Murther'd be Murthered by the Devil for it is a shame to bely the Devil and it is not possible to be proved if it be Subtilely done as a Spirit 5. Our Definers of Witch-craft dispute much whether the Devil can work a Miracle they resolve he can do a Wonder but not a Miracle Mirum but not Miraculum A Miracle saith Mr. Perkins is that which is above or against nature simply a Wonder is that which proceeds not from the ordinary course of nature Delrio will have a Miracle to be praeter or supra naturae creatae vires both seem to agree in this that he had need be an admirable or profound Philosopher that can distinguish between a Wonder and a Miracle it would pose Aristotle himself to tell us every thing that can be done by the power of Nature and what things cannot for there be daily many things found out and daily more may be which our Fore-fathers never knew to be possible in Nature Those that were converted by the Miracles of our Saviour never stayed to enquire of their Philosophers what the power of Nature was it was sufficient to them when they saw things done the like whereof they had neither seen nor heard of to believe them to be Miracles 6. It is commonly believed and affirmed by Mr. Perkins that the cause which moves the Devil to bargain with a Witch is a desire to obtain thereby the Soul and Body of the Witch But I cannot see how this can agree with another Doctrine of his where he saith The Precepts of Witch-craft are not delivered indifferently to every Man but to his own subjects the wicked and not to them all but to special and tried ones whom he most betrusteth with his secrets as being the fittest to to serve his turn both in respect of their willingness to learn and practise as also for their ability to become Instruments of the mischief he intendeth to others All this argues the end of the Devils rules of Witch-craft is not to gain Novices for new Subjects but to make use of old ones to serve his turn 7. The last clause of Mr. Perkins definition is that Witch-craft doth work wonders so far as God shall permit I should here desire to have known whether Mr. Perkins had thought that God doth permit farther power to the Devil upon his contracting with the Witch than he had before the Contract for if the Devil had the same permission before the Contract then he doth no more mischief upon the Contract than he would have gladly done before seeing as Mr. Perkins saith The Devils malice towards all Men is of so high a degree that he cannot endure they should enjoy the World or the benefits of this life if it were possible so much as one hour But yet afterward I finde Master Perkins is more favourable to the Devil where he writes that if the Devil were not stirred up and provoked by the Witch he would never do so much hurt as he doth Of the Discerning and Discovery of a Witch A Magistrate saith Mr. Perkins may not take upon him to examine whom and how he willeth of any Crime nor to proceed upon slight causes or to shew his Authority or upon sinister respects or to revenge his malice or to bring parties into danger and suspition but he must proceed upon special presumptions He calls those presumptions which do at least probably and conjecturally note one to be a Witch and are certain signs whereby the Witch may be discovered I cannot but wonder that Mr. Perkins should say that presumptions do at least probably and conjecturally note and are certain signs to discover a Witch when he confesseth that though presumptions give occasion to examine yet they are no sufficient causes of conviction and though presumptions be never so strong yet they are not proofs sufficient for Conviction but onely for Examination Therefore no credit is to be given to those presumptions he reckons up 1. For common fame it falls out many times saith he that the innocent may be suspected and some of the better sort notoriously defamed 2. The testimony of a fellow-Witch he confesseth doth not probably note one to be a Witch The like may be said of his third and fourth presumption if after cursing or quarrelling or threatning there follow present mischief And the fifth presumption is more frivolous which is if the party be the Son or Daughter or Servant or Friend neer neighbour or old companion of a Witch The sixth presumption Mr. Perkins dares not or is loath to own but saith Some add if the party suspected have the Devils Mark and yet be resolves if such a Mark be descried whereof no evident reason in nature can be given the Magistrate may cause such to be examined or take the matter into his own hands that the truth may appear but he doth not teach how the truth may be made to appear The last presumption he names is if the party examined be unconstant or contrary to himself here he confesseth a good man may be fearful in a good cause sometimes by nature sometimes in regard of the presence of the Iudge or the greatness of the Audience some may be suddenly taken and others want that liberty of speech which other men have Touching Examination Mr. Perkins names two kinds of proceedings either by simple Question or by Torture Torture when besides the enquiry by words the Magistrate useth the Rack or some other violent means to urge Confession this he saith may be lawfully used howbeit not in every case but onely upon strong and great presumptions and when the party is obstinate Here it may be noted that it is not lawful for any person but the Judge onely to allow Torture suspitious Neighbours may not of their own heads use either Threats Terrors or Tortures I know not any one of those presumptions before-cited to be sufficient to warrant a Magistrate to use Torture or whether when the party constantly denies the Fact it must be counted obstinacy In case of Treason sometimes when the main Fact hath been either confessed or by some infallible proofs manifested the Magistrate for a farther discovery of some circumstance of the Time the Place and the Persons or the like have made use of the Rack and yet that kind of torture hath not been of antient usage in this Kingdom for if my memory fail not I have read that the Rack hath been called the Duke of Exeters Daughter and was first used about Hen. 6. days From presumptions Mr. Perkins proceeds to proofs of a Witch and here he hath a neat distinction of proofs less sufficient or more sufficient by less sufficient he meaneth insufficient but gives them this mild and strange phrase