Men so it cannot be imagin'd that the Law has left Men to so wild a Justice as is guided by Passion and Affection for it had been so great a Defect in the Constitution of this Government that long before this it would have been reform'd And as it is most clear that they are thus restrain'd so those bounds and limits are no less known to them that are acquainted with the Law there are two things which have heretofore been look'd upon as very good Guides 1st What has formerly been expresly done in the like Case 2ly For want of such particular Direction then to consider that which comes the nearest to it and so proportionably to add or abate as the manner and circumstance of the Case do require These were thought very good and safe Directions till it was declared and ever since has been practised in the King's Bench that they did not regard Presidents but would make them and for ought that I can learn or find this of my Lord Devonshire is an Original What Obscurity soever may be pretended in other Cases yet in this the Law has given so positive and plain a Direction that it seems very strange how they came to lay a Fine of 30000 l. upon my Lord Devonshire The Court of Starchamber was taken away because of the unmeasurable Fines which it impos'd which alone was a plain and direct prohibition for any other Court to do the like for otherwise the Mischief remain'd for what Advantage was it to the Nation if it had not been wholly supprest the shifting of Hands gave the People no Ease in the Burden that lay upon them it was all one whether the Starchamber or King's Bench did crush them by immoderate Fines But to put all out of dispute the Statute 17 Car. says expresly That from henceforth no Court Council or place of Judicature shall be erected ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath been used practised or exercised in the said Court of Starchamber And this was upon very good reason because those great Fines imposed in that Court were inconsistent with the Law of England which is a Law of Mercy and concludes every Fine which is left at discretion with Salvo Contenimento If the Fines imposed in the Starchamber were an intolerable Burden to the Subject and the means to introduce an Arbitrary Power and Government as that Statute recites the like proceeding in the King's Bench can be no less grievous and must produce the same Evil. Laws that are made upon new occasions or sudden immergencies the Reason upon which they were made may cease and consequently they do cease also but Laws that are grounded upon the ancient Principles of the Government cannot cease because the Reason of them will ever continue and this Statute of 17 Car. being such no doubt holds good and is now in as much force as the first moment in which it was made and therefore this Fine imposed on my Lord Devonshire is in open defiance of that Statute I think no man can altogether excuse my Lord Devonshire for my part I don 't but think it was a very inconsiderate rash act and I believe the Indiscretion of it abstracted from the Fine is a very sensible trouble to him yet if those things were wanting which may be urg'd in his excuse the Offence and Punishment don't seem to bear proportion Could not the Merits of his Father be laid in the balance nor the Surprize of meeting Coll. Culpepper for my Lord having been abused by him a man of so great Courage and Honour as my Lord Devonshire must needs feel and remember it a long time having received no satisfaction or reparation made him for it but if there were nothing of this in the Case could all that may be said to alleviate his Offence be urg'd against him with a double weight were the Circumstances of the Fact as foul and aggravating as the Malice of his Enemies could wish yet surely a less Fine might have serv'd for the Law casts in a great many grains of Mercy into every Judgment and has ever look'd upon a over-rigid prosecution of the Guilty to be no less Tyranny than the prosecution of the Not guilty because it is Summum jus and has declar'd that to be Summa Injuria But besides all this I do conceive with submission that where the Law has intrusted the Judges with a power to fine it is in a much less degree than they have done in this Case First because the Law is very cautious whom and with what it does intrust it reposes a great confidence in the King yet in some cases his Acts are not regarded by it as the King can do no Ministerial Act a Commitment per speciale mandatum Dom. regis is a void Commitment Where there lies an Action in case of Wrong done to the Party the Acts of the King in those cases according to the old Law Phrase are to be holden for none Secondly Because Liberty is so precious in the eye of the Law it is of so tender a regard that it has reserv'd the whole dispose thereof to its own immediate direction and left no part of it to the Discretion of the Judges and what the Law will not suffer to be done directly it does forbid that it be done indirectly or by a side-wind and so consequently the Judges cannot impose a greater Fine than what the Party may be capable of paying immediately into Court but if the Judges may commit the Party to Prison till the Fine be paid and withal set so great a Fine as is impossible for the Party to pay into Court then it will depend upon the Judges pleasure whether he shall ever have his Liberty because the Fine may be such as he shall never be able to pay And thus every Man's Liberty is wrested out of the dispose of the Law and is stuck under the Girdle of the Judges Thirdly Because the Nation has an Interest in the Person of every particular Subject for every Man either one way or other is useful and serviceable in his Generation but by these intolerable Fines the Nation will frequently lose a Member and the Person that is Fin'd shall not only be disabled from doing his Part in the Common-wealth but also he and his Family will become a Burden to the Land especially if he be a man of no great Estate for the excessive Charge that attends a Confinement will quickly consume all that he has and then he and his Family must live upon Charity And thus the poor man will be doubly punish'd first to wear out his days in perpetual Imprisonment and secondly to see Himself and Family brought to a Morsel of Bread Fourthly Because in all great Cases and such as require a grievous Punishment the Law has in certain awarded the Judgment and next to Life
disposition and temper not to prescribe or necessitate them to any particular form And then consequently it will follow that what lawful Right or Power every King claims is by reason of the constitution of the Government and not from Nature If there be any such thing as this Natural Right it must be inherent in all lawful Kings for if some of them have it why not all of them And if any have every King else has the same And if this be so where was the Natural Right of King Stephen and Henry II both born out of the Realm their Fathers Forraigners and at the same time there were others who by right of descent were nearer to the Crown than either of them It was not this natural right that invented the coronation oath neither is it by reason of it that every King of England is bound to take it before they can require any of their Subjects to do them homage and fealty If there be any such thing as this natural right then it will follow that all the Kings of the earth but one are Usurpers because this natural right must arise from Primogeniture and there can be but one man at the same time who is the rightful Heir and Successor to Adam and consequently all others that pretend to be Kings usurp upon his right So that this notion of a natural right pulls down the thing it pretends to set up When a Common-wealth is changed into a Monarchy is it this natural right that makes him King who is first set up Or when a Family is extinct that has been long in possession of the Crown and the Body of the People chuse a King from amongst themselves is it by this natural right that he attains to this dignity But as a multitude of other absurdities would follow upon it so the Apostle puts the thing out of dispute when he says That Kings are the Ordinance of man And here I will leave Kings to resolve which is their best title whether this natural right or the constitution of the Government Differences and disputes do but too frequently arise betwixt the King and People and therefore I will tell you what I conceive to be advisable when such ill humours are afloat Consider whose demands do best suit the common good For by a serious and impartial examination of that you will be able to discover who is in the right For if you follow this rule exactly it will not misguide you And take this Observation along with you When the State is distempered you will find for the most part if not always that the cause of offence proceeds from the Court. And the reason of it is very evident Because so long as English men injoy their rights they have no occasion to quarrel with the King for they need nothing else But Kings as they are always think they are too short in power and those that are about them are too apt to incourage those desires in Kings because the more absolute he is the more able he is to gratifie his Creatures Now in this case let not the opinion of the Clergy govern you for none are blinder Guides than they and no one thing hath done more mischief in this Nation than their politicks If you happen to be on the prevailing side use your advantage with Moderation This you are obliged to do as you are a good Christian and self-interest pleads for it for since the events of all things are uncertain there may come another turn and then in reason you may expect fair quarter from them whom you treated so well in the day of your power If your Party come by the worst remember these two things First don't think the worse of your Cause by reason of the Success Neither make any mean submission nor do any other sordid thing to get out of your trouble use only lawful and honest means for if you are in the right sooner or later it will prevail and then in the end you will come off with double honour 2. If you are examined as a criminal confess nothing only argue against the insufficiency of what is objected against you For First It is an argument of your courage and resolution Secondly By confessing any thing you help them to evidence against your self and others for you furnish them with time and place and then it is an easie matter for a Knight of the Post to give such an evidence against you as is not easily disproved Thirdly It 's very seldom that you will meet with better usage though you confess never so much unless you will turn accuser of others and give evidence against them which is so base a thing that I would advise you to undergoe any extremity rather than do that For as your own Party will for ever abhor you and your Memory so the other side will despise and slight you as soon as you have done their business and all that you can do for the future will never wipe off such a blot If you are concerned in the prosecution of any publick Criminal let your proceedings be tempered with Justice and Moderation For I have seen it fatal to several who have strained and forced the Law to the destruction of others yet in the end fell into the Pit they digged for others and perished by their own Law When the State is so sore that it makes a Man an Offender for a Word and the times are so evil that the prudent keep silence Then are all meetings to be avoided save only such as are upon real business recreation or for Neighbourly Visits and those too in as small numbers as may be for Spyes and Informers will thrust themselves into Consults and Cabals and of all others will say the hottest and most violent things in hopes that believing that all proceeds from the fervency of their Zeal you may thereby be induced to say something that will bring you within the compass of the Law Or if you have the discretion or good hap to say nothing yet your very being in the same Company where such things have been said or uttered may either make you criminal or at best hand involve you into a great deal of trouble without bringing any advantage to the Cause you do assert And besides he that herds in Cabals must implicitely adhere to the opinion of that Company for by asserting his own Judgment in opposition to theirs though he be never so much in the right he runs the hazard of being reproached for a Spye or Deserter As you ought not to refuse any danger when a proportionable advantage will thereby accrue to the Cause you would support so in such sore times you ought to avoid the doing of any thing unnecessary hot and provoking unless where you or the Cause will reap benefit thereby For young men either through the heat of their years or the instigation of more crafty people are too often prevailed upon to do many things that in
cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that
wealth thinking no doubt to enjoy greater Priviledges and Immunities than now they do But I am apt to believe that they who are not contented under this Government have not consider'd aright what a Common wealth is A Common-wealth makes a sound and shadow of Liberty to the People but in reality is but a Monarchy under another Name for if Monarchy be Tyranny under a single person a Common wealth is Tyranny under several persons as many Persons that govern so many Tyrants but let it be the best that can be yet the People under any Common-wealth enjoy not that Liberty that we do Gentlemen as the Excellency of this Government is an Argument sufficient to disswade any of us from the least attempt of alteration so Experience has taught us that no sort of Government but that we now live under will suit or agree with England Let us but consider the late Troubles how many several kinds of Government were there set up one after another All ways were tryed but nothing would do till we were returned to our old and ancient way But Gentlemen it may fall out that we our selves may be the Authors of our own Destruction for whatever the Parliament does we are bound up by it if they pass a Law to give away all we have to the King we must submit to it for it is our own Act and therefore it highly behoves us to be very cautious who we chuse to represent us in Parliament we put all we have into their Hands and what they do must bind and oblige us Every Man is mortal and possibly may be corrupted to vote against the Interest of them he represents I accuse none of your Representatives nor do I accuse all only tell you that Men may be corrupted Therefore in my opinion whenever you have occasion to chuse a Member for the Parliament as now you have you ought to have a care of an ambitious Man or a Man that is vain glorious for it was never known that any of that Temper were so out of a real intention to the Publick Good for Ambition or Vain-glory was never accounted to be the Make of an Honest Man and if you 'll give me leave I 'll tell you what sort of a Man I shall give my Vote for if I cannot have a Man that is both wise and honest then I would rather be for an honest than wise man for I would rather trust all I have with a man that is truly honest and less knowing than with a man that is more knowing and less honest I shall always be for a man that has a good Estate in the Country for though he may possibly forget us yet he will remember himself and avoid all unnecessary charge upon the Country because he himself is to pay part of it Next I am for a moderate man one that is not strict or rigid neither one way nor the other either in Church or State for it's Moderation that must keep every thing in right order and it's Severity and Rigidness that will bring things into confusion In short Gentlemen let your own Judgment and not another Man's Interest or Inclination direct you in this case for our Parliament is our Weal or Woe And now I will proceed to the Particulars of your Charge The first and chief thing that you are to present is High-Treason To Compass or Imagine the Death of the King the Queen of their Eldest Son Now Gentlemen you must observe that the Heirs to the Crown are of two sorts first Heir Apparent that is the King 's Eldest Son that is living for no body else can be Heir Apparent secondly their Expectant or Presumptive that is he who in course of Descent is next in Blood to the King if he hath no Son Now the Offence is not so great to kill or procure the Death of the Heir Expectant as it is to compass or imagine the death of the Heir Apparent To levy War against the King in his Realm or to adhere to the King's Enemies in his Realm or to give them Aid or Comfort in the Realm or elsewhere To counterfeit the King 's Great Seal or Privy Seal or his Money To bring false Money into England counterfeit the Money of England and knowing the same to be false with intent to make payment with the same To kill or slay the Chancellor Treasurer or the King's Justices of the one or the other Bench Justices in Oyer or of Assize and all other Justices assign'd to bear and determine being in their Places doing their Offices To counterfeit the King's Sign Manual Privy Signet or Seal by 1 Q. Mary 6. To diminish scale or lighten the current Money of England 18 Eliz. 1. So Clipping Washing Rounding and Filing of Current Money by 5 Eliz. 2. There are too many Offenders in this nature amongst us The second time to extol and maintain the Pope's Authority formerly usurped here and the second time to refuse to take the Oath of Supremacy 5 Eliz. 1. A Priest or Jesuite that shall come and remain here who shall be in any Seminary and not return within six months after proclamation 27 Eliz. 2. To put in use any Bull or Instrument of Reconciliation or Absolution from Rome or from any person authorized or claiming Authority from Rome Any Person that shall willingly receive any Absolution and all Aids and Abettors it 's High-Treason in them by 13 Eliz. 2. To withdraw any of the King's Subjects from their Obedience or Religion And such Persons as shall be withdrawn from their Obedience to the King or their Religion 23 Eliz. 1. And now Gentlemen give me leave to take notice to you of them who very largely discourse that the King is above the Laws I am very apt to believe that they don't consider very well what they say nor don't know or remember that as it is High-Treason to kill or hurt the King so it is High-Treason to subvert the Government or to endeavour any alteration of it and then I would ask any man to solve me this Question Whether or no it be not an alteration of the Government to render all our Laws ineffectual and useless which must necessarily follow and where it is or upon what they ground their Opinion I am sure the Word of God warrants no such thing nor can any such thing be found in the ancient Government of this Island for at first it was govern'd without a King I don't mention this as if I question'd the King's Title to the Crown no Gentlemen I would have every subject to pay him all possible Duty and Obedience but I say this to shew you that there is no Ground for that Opinion that the King is above the Laws And I am sure I never met with it either in Magna Charta or any Law made since and therefore I could wish they would forbear to preach up such destructive Doctrine both to King and People I am sure it is for
and corruption of Blood a severer Punishment cannot be impos'd than to be Fin'd more than a man can pay and to lye in Prison till he does But if some great Cases did happen which could not be foreseen it was always usual with the Judges when any such Case came before them to adjourn it to the Parliament which had been needless if they could have punish'd at the rate that our Judges have of late done Fifthly Because where-ever the Law has set down a Fine either by way of Punishment or Caution it seldom exceeds 2000 l. Nay even in that tender place of Liberty if a Judge shall not relieve with an Habeas Corpus but let the person languish in Prison yet the third Offence is but 2000 l. Penalty and I suppose that that is but inconsiderable in comparison of what any of the Judges are worth yet it being taken as a Punishment is by the Law look'd upon as a great Sum. Sixthly Because the Law of England being a Law of Mercy and very careful to prevent Violence and Oppression and to that end having for almost every Offence appointed its particular Punishment it cannot be suppos'd to have left so great a power in the Judges as they have exerted in this Case True it is some things are left to their Discretion because it was not possible to foresee every particular Case that might happen yet they are things of the least size that are so intrusted to their Judgment for as was said before matters of any considerable moment were still refer'd to the Parliament as also the review of what the Judges should do in those lesser matters which were left to their Discretion As these Proceedings are a great Wrong to the Subject so are they no less a Disadvantage to the King because they will make his Government look very rigid and severe and gives it a grim fierce Countenance which tho' I don't say that it will make the People rebel yet I am apt to believe that it will set them upon their guard its fair and gentle usage that prevails upon reasonable and free-born Men it 's an easie Government that will bow the Hearts of the People of England for says the Statute P.M. That the Estate of a King standeth more assured by the love of his Subjects than in fear of Laws so that the King will be on the losing band by these proceedings because it spoils the complexion of his Government And the King will yet be a farther Sufferer for if 30000 l. be the price of a Blow it will make White-hall very empty for he that goes thither must approach it with fear and trembling because he does not know but he shall be ruin'd before he comes thence for though a man arm himself with all the Resolution he can yet it cannot be Proof against the Contrivance of those that intend to do him a Mischief especially if he is not upon very good terms at Court there will never want those who will endeavour to draw him into the Snare hoping to merit by it though perhaps they mistake their aim yet however Revenge that is so sweet will be greatly encourag'd to provoke him because he cannot hope to reek his Malice so plentifully as this way because if his â—â—â—â—mpt succeed the other is ruin'd nay if he do not strike but only defend himself yet if the Judges don't like the Complexion of the Man they will call the Fox's Ears Horns and lay all the Blame on his Back and pronounce him more guilty that looks over the Hedge than he that steals the Horse Since the Business of my Lord Devonshire happened I have heard him blam'd as the Author of his own Misfortune and that he drew the Mischief upon himself and the Reason given was because he ought not to have gone to Court for said they he knew there were many there who wish'd him ill and therefore sooner or later he would meet with an Affront and if he once fell into their Hands he must expect no Quarter because Coll. Culpepper who without any provocation of my Lord's part had so unnecessarily fallen upon him and had by drawing Blood upon my Lord forfeited his Hand yet not only that but all the rest of the Judgment was pardoned and therefore as well that as this are look'd upon as businesses that were laid But in saying this I only tell your Lordships what is said without doors and I don't speak it as my Opinion but setting the tattle without doors aside I do conceive that can never be a just Judgment which injures the King as well as the party that is punish'd But the true nature of my Lord Devonshire's Offence has not yet been throughly considered the Law does in all cases give great Allowances to what is done on a sudden heat where there does not appear any Premeditation and for this Reason when a man is indicted for Murder if upon the Evidence there does not appear Malice prepence either express'd or imply'd the Party accused shall have his Clergy and for the same reason though it be Death to maim or disfigure another yet if it be done on a sudden heat the Party shall not dye for it for in these and the like cases the Law thinks him to be more blame worthy who gave the Provocation than he that was so provok'd because it was not the effect of an evil Mind but of Passion Et actus non sit reus nisimens sit rea If therefore it be true which I have heard That the King promised my Lord Devonsh that Coll. Culpepper should never come to Whitehall it will then follow that my Lord Devonshire's striking Coll. Culpepper was the effect of Passion and not of Intention because he could not expect to meet him where he did If so I conceive with submission that the Punishment and Offence don't in any measure bear proportion But I am perswaded that the Judges were resolved upon what they have done before they heard the Cause in case my Lord was found guilty and the rather because my Lord Chief Justice was harranguing the Offence beforehand for when my Lord Devonshire appeared 6. May he told him that to strike in the King's Palace was little less or next door to pulling the King out of his Throne Indeed on the last day of the Term he did explain them thus That the Time and Circumstances might be such as it would be little less than the assaulting the King in his Throne But several have told me who heard him and they say The first words of Time and Circumstances were not mention'd by him 6. May and in particular a Noble Lord of this House is one from whom I had my Information and if it were so those words savour too much of a prejudging the Cause There is no doubt but in case of a Fine set the Court may commit the Party in case of obstinacy for not paying the Fine into Court yet this is to be taken