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
open before them be Burglary Robbery Theft or other Felony for this is to give a leading Judgment to the Jury who ought not to consider any private Lawyers Institutes but the Statutes themselves pleaded before them for directions La. Burning as he defines it p. 66. is a Felony at the Common-Law committed by any that maliciously and voluntarily in the night or day burneth the House of another And hereupon infers if a Man sets Fire to the House and it takes not that then it is not within the Statute Ph. If a Man should secretly and maliciously lay a quantity of Gun-Powder under another Mans House sufficient to Blow it up and set a Train of Powder in it and set Fire to the Train and some Accident hinder the Effect is not this Burning or what is it What Crime It is neither Treason nor Murder nor Burglary nor Robbery nor Theft nor no dammage being made any Trespass nor contrary to any Statute And yet seeing the Common-Law is the Law of Reason it is a sin and such a sin as a Man may be Accused of and Convicted and consequently a Crime committed of Malice prepensed shall he not then be Punished for the Attempt I grant you that a Judge has no Warrant from any Statute-Law Common-Law or Commission to appoint the Punishment but surely the King has power to Punish him on this side of Life or Member as he please and with the Assent of Parliament if not without to make the Crime for the future Capital La. I know not Besides these Crimes there is Conjuration Witch-craft Sorcery and Inchantment which are Capital by the Statute 1 of King James cap. 12. Ph. But I desire not to discourse of that Subject for though without doubt there is some great Wickedness signified by those Crimes yet I have ever found my self too dull to conceive the nature of them or how the Devil hath power to do many things which Witches have been Accused of Let us now come to Crimes not Capital La. Shall we pass over the Crime of Heresie which Sir Edw. Coke ranketh before Murder but the consideration of it will be somewhat long Ph. Let us defer it till the Afternoon Of Heresie La. COncerning Heresie Sir Edw. Coke 4 Inst. p. 39. says that 5 things fall into consideration 1. Who be the Judges of Heresie 2. What shall be Judged Heresie 3. What is the Judgment upon a Man Convicted of Heresie 4. What the Law alloweth him to save his Life 5. What he shall forfeit by Judgment against him Ph. The principal thing to be considered which is the Heresie it self he leaveth out viz. What it is in what Fact or Words it consisteth what Law it violateth Statute-Law or the Law of Reason The Cause why he omitteth it may perhaps be this that it was not only out of his Profession but also out of his other Learning Murder Robbery Theft c. Every Man knoweth to be evil and are Crimes defined by the Statute-Law so that any Man may avoid them if he will But who can be sure to avoid Heresie if he but dare to give an Account of his Faith unless he know beforehand what it is La. In the Preamble of the Statute of the 2d Hen. 4. cap. 15. Heresie is laid down as a Preaching or Writing of such Doctrine as is contrary to the determination of Holy Church Ph. Then it is Heresie at this day to Preach or Write against Worshipping of Saints or the Infallibility of the Church of Rome or any other determination of the same Church For Holy-Church at that time was understood to be the Church of Rome and now with us the Holy-Church I understand to be the Church of England and the Opinions in that Statute are now and were then the true Christian Faith Also the same Statute of Hen. 4. Declareth by the same Preamble that the Church of England had never been troubled with Heresie La. But that Statute is Repeal'd Ph. Then also is that Declaration or Definition of Heresie repeal'd La. What say you is Heresie Ph. I say Heresie is a singularity of Doctrine or Opinion contrary to the Doctrine of another Man or Men and the word properly signifies the Doctrine of a Sect which Doctrine is taken upon Trust of some Man of Reputation for Wisdom that was the first Author of the same If you will understand the truth hereof you are to Read the Histories and other Writings of the Antient Greeks whose word it is which Writings are extant in these days and easie to be had Wherein you will find that in and a little before the time of Alexander the Great there lived in Greece many Excellent Wits that employed their time in search of the Truth in all manner of Sciences worthy of their Labour and which to their great Honour and Applause published their Writings some concerning Justice Laws and Government some concerning Good and Evil Manners some concerning the Causes of things Natural and of Events discernable by sense and some of all these Subjects And of the Authors of these the Principal were Pythagoras Plato Zeno Epicurus and Aristotle Men of deep and laborious Meditation and such as did not get their Bread by their Philosophy but were able to live of their own and were in Honour with Princes and other great Personages But these Men though above the rest in Wisdom yet their Doctrine in many points did disagree whereby it came to pass that such Men as studied their Writings inclined some to Pythagoras some to Plato some to Aristotle some to Zeno and some to Epicurus But Philosophy it self was then so much in Fashion as that every Rich Man endeavour'd to have his Children educated in the Doctrine of some or other of these Philosophers which were for their Wisdom so much renown'd Now those that followed Pythagoras were called Pythagoreans those that followed Plato Academicks those that followed Zeno Stoicks those that followed Epicurus Epicureans and those that followed Aristotle Peripateticks which are the names of Heresie in Greek which signifies no more but taking of an Opinion and the said Pythagoreans Academicks Stoicks Peripateticks c. were termed by the names of so many several Heresies All Men you know are subject to Error and the ways of Error very different and therefore 't is no wonder if these Wise and diligent searchers of the Truth did notwithstanding their Excellent parts differ in many points amongst themselves But this Laudable Custom of Great Wealthy Persons to have their Children at any price to learn Philosophy suggested to many idle and needy Fellows an easie and compendious way of Maintenance which was to Teach the Philosophy some of Plato some of Aristotle c. Whose Books to that end they Read over but without Capacity or much Endeavour to examine the Reasons of their Doctrines taking only the Conclusions as they lay and setting up with this they soon professed themselves Philosophers and got to be the School-Masters to the
Bishops and Right of Advowsans and Presentations belonged to himself and to the Nobility that were the founders of such Bishopricks Abbies and other Benefices And he enacted farther that if any Clerk which he or any of his Subjects should present should be disturbed by any such Provisor that such Provisor or Disturber should be attached by his Body and if Convicted lye in Prison till he were Ransomed at the Kings Will and had satisfied the Party griev'd renouced his Title and sound sureties not to sue for it any farther and that if they could not be found then Exigents should go forth to Outlawrie and the Profits of the Benefice in the mean time be taken into the Kings hands And the same Statute is confirmed in the 27th year of King Ed. the 3d which Statute alloweth to these Provisors six weeks Day to appear but if they appear before they be outlaw'd they shall be received to make Answer but if they render not themselves they shall forfeit all their Lands Goods and Chattels besides that they stand outlaw'd The same Law is confirmed again by 16 Rich. 2d cap. 5. in which is added because these Provisors obtained sometimes from the Pope that such English Bishops as according to the Law were instituted and inducted by the Kings Presentees should be excommunicated that for this also both they and the Receivers and Publishers of such Papal Process and the Procurers should have the same Punishment Ph. Let me see the Statute it self of 27 Ed. 3. La. It lies there before you set down verbatim by Sir Edw. Coke himself both in English and French Ph. 'T is well we are now to consider what it means and whether it be well or ill interpreted by Sir Edw. Coke And first it appeareth by the Preamble which Sir Edw. Coke acknowledgeth to be the best Interpreter of the Statute that this Statute was made against the Incroachments only of the Church of Rome upon the Right of the King and other Patrons to collate Bishopricks and other Benefices within the Realm of England and against the power of the Courts Spiritual to hold Plea of Controversies determinable in any of the Courts of the King or to reverse any Judgment there given as being things that tend to the Disherison of the King and Destruction of the Common-Law of the Realm always used Put the case now that a Man had procur'd the Pope to reverse a Decree in Chancery had he been within the danger of Premunire La. Yes certainly or if the Judgment had been given in the Court of the Lord Admiral or in any other Kings Court whatsoever either of Law or Equity for Courts of Equity are most properly Courts of the Common-Law of England because Equity and Common-Law as Sir Ed. Coke says are all one Ph. Then the word Common-Law is not in this Preamble restrained to such Courts only where the Tryal is by Juries but comprehends all the Kings Temporal Courts if not also the Courts of those Subjects that are Lords of great Mannors La. 'T is very likely yet I think it will not by every Man be granted Ph. The Statute also says That they who draw Men out of the Realm in Plea whereof the Cognizance pertaineth to the Kings Court or of things whereof Judgment is given in the Kings Court are within the Cases of Premunire But what if one Man draw another to Lambeth in Plea whereof Judgment is already given at Westminster Is he by this Clause involv'd in a Premunire La. Yes For though it be not out of the Realm yet it is within the meaning of the Statute because the Popes Court not the Kings Court was then perhaps at Lambeth Ph. But in Sir Edw. Coke's time the Kings Court was at Lambeth and not the Popes La. You know well enough that the Spiritual-Court has no power to hold Pleas of Common-Law Ph. I do so but I know not for what cause any simple Man that mistakes his right Court should be out of the Kings Protection lose his Inheritance and all his Goods Personal and Real and if taken be kept in Prison all his Life This Statute cannot be by Sir Edw. Cokes Torture made to say it Besides such Men are ignorant in what Courts they are to seek their Remedy And it is a Custom confirmed by perpetual usage that such ignorant Men should be guided by their Council at Law It is manifest therefore that the makers of the Statute intended not to prohibit Men from their suing for their Right neither in the Chancery nor in the Admiralty nor in any other Court except the Ecclesiastical Courts which had their Jurisdiction from the Church of Rome Again where the Statute says which do sue in any other Court or defeat a Judgment in the Kings Court what is the meaning of another Court Another Court than what Is it here meant the Kings-Bench or Court of Common-Pleas Does a Premunire lye for every Man that sues in Chancery for that which might be remedied in the Court of Common-Pleas Or can a Premunire lye by this Statute against the Lord Chancellor The Statute lays it only on the Party that sueth not upon the Judge which holdeth the Plea Nor could it be laid neither by this Statute nor by the Statute of 16 Rich. 2. upon the Judges which were then punishable only by the Popes Authority Seeing then the Party Suing has a just excuse upon the Council of his Lawyer and the Temporal Judge and the Lawyer both are out of the Statute the punishment of the Premunire can light upon no body La. But Sir Edw. Coke in this same Chapter bringeth two Precedents to prove that though the Spiritual-Courts in England be now the Kings Courts yet whosoever sueth in them for any thing tryable by the Common-Law shall fall into a Premunire One is that whereas in the 22d of Hen. 8. all the Clergy of England in a Convocation by publick Instrument acknowledged the King to be Supream Head of the Church of England yet after this viz. 24 of H. 8. this Statute was in force Ph. Why not A Convocation of the Clergy could not alter the Right of Supremacie their Courts were still the Popes Courts The other Precedent in the 25th of Hen. 8. of the Bishop of Norwich may have the same Answer for the King was not declared Head of the Church by Act of Parliament till the 26th year of his Reign If he had not mistrusted his own Law he would not have laid hold on so weak a Proof as these Precedents And as to the Sentence of Premunire upon the Bishop of Norwich neither doth this Statute nor that other of R. 2. warrant it he was sentenced for threatning to excommunicate a Man which had sued another before the Mayor But this Statute forbids not that but forbids the bringing in or publishing of Excommunications or other Process from Rome or any other Place Before the 26 Hen. 8. there is no Question but that for a
Doctrine Heresie but Justice Stamford leaves it out because when Heresie was a Crime it was a Plea of the Mitre I see also in this Catalogue of Causes Criminal he inserteth costly Feeding costly Apparel and costly Building though they were contrary to no Statute 'T is true that by evil Circumstances they become sins but these sins belong to the Judgment of the Pastors Spiritual A Justice of the Temporal Law seeing the Intention only makes them sins cannot judge whether they be sins or no unless he have power to take Confessions Also he makes flattery of the King to be a Crime How could he know when one Man had flattered another He meant therefore that it was a Crime to please the King And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned some banished and some put to death by the same Rebels that imprisoned banished and put to death the same King upon no better ground than the Earl of Strafford the Arch-Bishop of Canterbury and King Charles the first by the Rebels of that time Empson and Dudley were no Favourites of Hen. the 7th but Spunges which King Hen. the 8th did well Squeeze Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th but fell into disgrace not for flattering the King but for not flattering him in the business of Divorce from Queen Katharine You see his Reasoning here see also his Passion in the words following We will for some Causes descend no lower Qui eorum vestigiis insistunt eorum exitus perhorrescant this is put in for the Favourite that then was of King James But let us give over this and speak of the legal Punishments to these Crimes belonging Of Punishments ANd in the first place I desire to know who it is that hath the power for an Offence committed to define and appoint the special manner of Punishment for suppose you are not of the Opinion of the Stoicks in old time that all faults are equal and that there ought to be the same Punishment for killing a Man and for killing a Hen. La. The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law That is to say if it be a Statute that determins it then the Judgment must be according to the Statute if it be not specified by the Statute then the Custome in such Cases is to be followed But if the Case be new I know not why the Judge may not determine it according to Reason Ph. But according to whose reason If you mean the natural Reason of this or that Judge authorized by the King to have cognisance of the Cause there being as many several Reasons as there are several Men the punishment of all Crimes will be uncertain and none of them ever grow up to make a Custome Therefore a Punishment certain can never be assigned if it have its beginning from the natural Reasons of deputed Judges no nor from the natural of the Supream Judge For if the Law of Reason did determine Punishments then for the same Offences there should be through all the World and in all times the same Punishments because the Law of Reason is Immutable and Eternal La. If the natural Reason neither of the King nor of any else be able to prescribe a Punishment how can there be any lawful Punishment at all Ph. Why not For I think that in this very difference between the rational Faculties of particular Men lyeth the true and perfect reason that maketh every Punishment certain For but give the authority of defining punishments to any Man whatsoever and let that Man define them and right Reason has defin'd them Suppose the Definition be both made and made known before the Offence committed For such authority is to trump in Card-playing save that in matter of Government when nothing else is turn'd up Clubs are Trump Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason and knoweth what Punishments are by this authority for every evil action ordained it is manifest Reason that for breaking the known Laws he should suffer the known Punishments Now the person to whom this authority of defining Punishments is given can be no other in any place of the World but the same Person that hath the Soveraign Power be it one Man or one assembly of Men For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed for no less power can do it when many Offenders be united and combin'd to defend one another There was a Case put to King David by Nathan of a rich Man that had many Sheep and of a poor Man that had but one which was a tame Lamb The rich Man had a stranger in his House for whose entertainment to spare his own Sheep he took away the poor Mans Lamb. Upon this Case the King gave Judgment surely the Man that hath done this shall die What think you of this Was it a Royal or Tyrannical Judgment La. I will not contradict the Canons of the Church of England which acknowledgeth the King of England within his own Dominions hath the same Rights which the good Kings of Israel had in theirs nor deny King David to have been one of those good Kings But to punish with death without a precedent Law will seem but a harsh proceeding with us who unwillingly hear of Arbitrary Laws much less of Arbitrary Punishments unless we were sure that all our Kings would be as good as David I will only ask you by what Authority the Clergy may take upon them to determine or make a Canon concerning the power of their own King or to distinguish between the Right of a good and an evil King Ph. It is not the Clergy that maketh their Canons to be Law but it is the King that doth it by the Great Seal of England and it is the King that giveth them power to teach their Doctrines in that that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles according to the Scriptures wherein this Doctrine is perspicuously contained But if they had derogated from the Royal Power in any of their Doctrines published then certainly they had been too blame nay I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law I cite not this Precedent of King David as approving the breach of the great Charter or justifying the Punishment with loss of Life or Member of every Man that shall offend the King but to shew you that before the Charter was granted in all Cases where the Punishments were not prescribed it was the King only that could prescribe them
God made Kings for the People and not People for Kings How shall I be defended from the domineering of Proud and Insolent Strangers that speak another Language that scorn us that seek to make us Slaves Or how shall I avoid the Destruction that may arise from the cruelty of Factions in a Civil War unless the King to whom alone you say belongeth the right of Levying and disposing of the Militia by which only it can be prevented have ready Money upon all Occasions to Arm and pay as many Souldiers as for the present defence or the Peace of the People shall be necessary Shall not I and you and every Man be undone Tell me not of a Parliament when there is no Parliament sitting or perhaps none in being which may often happen and when there is a Parliament if the speaking and leading Men should have a design to put down Monarchy as they had in the Parliament which began to sit Nov. 3. 1640. Shall the King who is to answer to God Almighty for the safety of the People and to that end is intrusted with the Power to Levy and dispose of the Souldiery be disabled to perform his Office by virtue of these Acts of Parliament which you have cited If this be reason 't is reason also that the People be Abandoned or left at liberty to kill one another even to the last Man if it be not Reason then you have granted it is not Law La. 'T is true if you mean Recta Ratio but Recta Ratio which I grant to be Law as Sir Edw. Coke says 1 Inst. Sect. 138. Is an Artificial perfection of Reason gotten by long Study Observation and Experience and not every Mans natural Reason for Nemo nascitur Artifex This Legal Reason is summa Ratio and therefore if all the Reason that is dispersed into so many several Heads were united into one yet could he not make such a Law as the Law of England is because by many Successions of Ages it hath been fined and refinâ—d by an infinite number of Grave and Learned Men. And this is it he calls the Common-Law Ph. Do you think this to be good Doctrine though it be true that no Man is born with the use of Reason yet all Men may grow up to it as well as Lawyers and when they have applyed their Reason to the Laws which were Laws before they Studyed them or else it was not Law they Studied may be as fit for and capable of Judicature as Sir Edw. Coke himself who whether he had more or less use of Reason was not thereby a Judge but because the King made him so And whereas he says that a Man who should have as much Reason as is dispersed in so many several Heads could not make such a Law as this Law of England is if one should ask him who made the Law of England Would he say a Succession of English Lawyers or Judges made it or rather a Succession of Kings and that upon their own Reason either solely or with the Advice of the Lords and Commons in Parliament without the Judges or other Professors of the Law You see therefore that the Kings Reason be it more or less is that Anima Legis that Summa Lex whereof Sir Edw. Coke speaketh and not the Reason Learning or Wisdom of the Judges but you may see that quite through his Institutes of Law he often takes occasion to Magnifie the Learning of the Lawyers whom he perpetually termeth the Sages of the Parliament or of the Kings Council therefore unless you say otherwise I say that the Kings Reason when it is publickly upon Advice and Deliberation declar'd is that Anima Legis and that Summa Ratio and that Equity which all agree to be the Law of Reason is all that is or ever was Law in England since it became Christian besides the Bible La. Are not the Canons of the Church part of the Law of England as also the Imperial Law used in the Admiralty and the Customs of particular places and the by-Laws of Corporations and Courts of Judicature Ph. Why not for they were all Constituted by the Kings of England and though the Civil Law used in the Admiralty were at first the Statutes of the Roman Empire yet because they are in force by no other Authority than that of the King they are now the Kings Laws and the Kings Statutes The same we may say of the Canons such of them as we have retained made by the Church of Rome have been no Law nor of any force in England since the beginning of Queen Elizabeth's Raign but by Virtue of the Great Seal of England La. In the said Statutes that restrain the Levying of Money without consent of Parliament Is there any thing you can take exceptions to Ph. No I am satisfied that the Kings that grant such Liberties are bound to make them good so far as it may be done without sin But if a King find that by such a Grant he be disabled to protect his Subjects if he maintain his Grant he sins and therefore may and ought to take no Notice of the said Grant For such Grants as by Error or false Suggestion are gotten from him are as the Lawyers do Confess Void and of no Effect and ought to be recalled Also the King as is on all hands Confessed hath the Charge lying upon him to Protect his People against Forraign Enemies and to keep the Peace betwixt them within the Kingdom if he do not his utmost endeavour to discharge himself thereof he Committeth a Sin which neither King nor Parliament can Lawfully commit La. No Man I think will deny this For if Levying of Money be necessary it is a Sin in the Parliament to refuse if unnecessary it is a sin both in King and Parliament to Levy But for all that it may be and I think it is a Sin in any one that hath the Soveraign Power be he one Man or one Assembly being intrusted with the safety of a whole Nation if rashly and relying upon his own Natural sufficiency he make War or Peace without Consulting with such as by their Experience and Employment abroad and Intelligence by Letters or other means have gotten the Knowledge in some measure of the strength Advantages and Designs of the Enemy and the Manner and Degree of the Danger that may from thence arise In like manner in case of Rebellion at Home if he Consult not with of Military Condition which if he do then I think he may Lawfully proceed to Subdue all such Enemies and Rebels and that the Souldiers ought to go on without Inquiring whether they be within the Country or without For who shall suppress Rebellion but he that hath Right to Levy Command and Dispose of the Militia The last long Parliament denied this But why Because by the Major part of their Votes the Rebellion was raised with design to put down Monarchy and to that end Maintained Ph. Nor do
I hereby lay any Aspersion upon such Grants of the King and his Ancestors Those Statutes are in themselves very good for the King and People as creating some kind of Difficulty or such Kings as for the Glory of Conquest might spend one part of their Subjects Lives and Estates in Molesting other Nations and leave the rest to Destroy themselves at Home by Factions That which I here find fault with is the wresting of those and other such Statutes to a binding of our Kings from the use of their Armies in the necessary defence of themselves and their People The late long Parliament that in 1648 Murdered their King a King that sought no greater Glory upon Earth but to be indulgent to his People and a Pious defender of the Church of England no sooner took upon them the Soveraign Power then they Levyed Money upon the People at their own Discretion Did any of their Subjects Dispute their Power Did they not send Souldiers over the Sea to Subdue Ireland and others to Fight against the Dutch at Sea or made they any doubt but to be obeyed in all that they Commanded as a Right absolutely due to the Soveraign Power in whomsoever it resides I say not this as allowing their Actions but as a Testimony from the Mouths of those very Men that denyed the same Power to him whom they acknowledged to have been their Soveraign immediately before which is a sufficient Proof that the People of England never doubted of the Kings Right to Levy Money for the Maintenance of his Armies till they were abused in it by Seditious Teachers and other prating Men on purpose to turn the State and Church into Popular Government where the most ignorant and boldest Talkers do commonly obtain the best preferments again when their New Republick returned into Monarchy by Oliver who durst deny him Money upon any pretence of Magna Charta or of these other Acts of Parliament which you have Cited You may therefore think it good Law for all your Books that the King of England may at all times that he thinks in his Conscience it will be necessar for the defence of his People Levy as many Souldiers and as much Money as he please and that himself is Judge of the Necessity La. Is there no body harkning at the door Ph. What are you afraid of La. I mean to say the same that you say but there be very many yet that hold their former Principles whom neither the Calamities of the Civil Wars nor their former Pardon have throughly cur'd of their Madness Ph. The Common People never take notice of what they hear of this Nature but when they are set on by such as they think Wise that is by some sorts of Preachers or some that seem to be Learned in the Laws and withal speak evil of the Governors But what if the King upon the sight or apprehension of any great danger to his People as when their Neighbours are born down with the Current of a Conquering Enemy should think his own People might be involved in the same Misery may he not Levy Pay and Transport Souldiers to help those weak Neighbours by way of prevention to save his own People and himself from Servitude Is that a sin La. First If the War upon our Neighbour be Just it may be question'd whether it be Equity or no to Assist them against the Right Ph. For my part I make no Question of that at all unless the Invader will and can put me in security that neither he nor his Successors shall make any Advantage of the Conquest of my Neighbour to do the same to me in time to come but there is no Common Power to bind them to the Peace La. Secondly when such a thing shall happen the Parliament will not refuse to Contribute freely to the safety of themselves and the whole Nation Ph. It may be so and it may be not For if a Parliament then sit not it must be called that requires 6 Weeks time Debating and Collecting what is given requires as much and in this time the Opportunity perhaps is lost Besides how many wretched Souls have we heard to say in the late Troubles What matter is it who gets the Victory We can pay but what they please to Demand and so much we pay now and this they will Murmur as they have ever done whosoever shall Raign over them as long as their Coveteousness and Ignorance hold together which will be till Dooms-day if better order be not taken for their struction in their Duty both from Reason and Religion La. For all this I find it somewhat hard that a King should have Right to take from his Subjects upon the pretence of Necessity what he pleaseth Ph. I know what it is that troubles your Conscience in this Point All Men are troubled at the Crossing of their Wishes but it is our own fault First we wish Impossibilities we would have our Security against all the World upon Right of Property without Paying for it This is Impossible We may as well Expect that Fish and Fowl should Boil Rost and Dish themselves and come to the Table and that Grapes should squeeze themselves into our Mouths and have all other the Contentments and ease which some pleasant Men have Related of the Land of Cocquam Secondly There is no Nation in the World where he or they that have the Soveraignty do not take what Money they please for Defence of those respective Nations when they think it necessary for their safety The late long Parliament denyed this but why Because there was a Design amongst them to Depose the King Thirdly There is no Example of any King of England that I have Read of that ever pretended any such Necessity for Levying of Money against his Conscience The greatest sounds that ever were Levyed Comparing the value of Money as it was at that time with what now it is were Levied by King Edw. 3d. and King Henry the 5th Kings of whom we Glory now and think their Actions great Ornaments to the English History Lastly As to the enriching of now and then a Favourite it is neither sensible to the Kingdom nor is any Treasure thereby Conveyed out of the Realm but so spent as it falls down again upon the Common People To think that our Condition being Humane should be subject to no Incommodity were Injuriously to Quarrel with God Almighty for our own Faults for he hath done his part in annexing our own Industry and Obedience La. I know not what to say Ph. If you allow this that I have said then say that the People never were shall be or ought to be free from being Taxed at the will of one or other being hindred that if Civil War come they must Levy all they have and that Dearly from the one or from the other or from both sides Say that adhering to the King their Victory is an end of their Trouble that adhering to his
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
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