of Salisbury began the Sermon his Text being taken out of 2 Sam. 23. V. 3 4. The Sermon ended Their Majesties took the Oath And being conducted to their Regal Chairs placed on the Theater that they might be more conspicuous to the Members of the House of Commons who were seated in the North-Cross They were Anointed After the Unction they were presented with the Spurs and Sword invested with the Palls and Orbs and then with the Rings and Scepters At four of the Clock the Crowns were put upon their Heads at sight whereof all the People shouted the Drums and Trumpets sounded the great Guns were discharged and the Peers and Peeresses put on their Coronets Then the Bible was presented to Their Majesties and after the Benediction They vouchsafed to kiss the Bishops Being Inthroned first the Bishops and then the Temporal Lords did their Homage and Kissed Their Majesties left Cheeks In the mean while the Treasurer of the Houshold threw about the Coronation Medals which were of Silver about the bigness of a half-crown Piece representing of one side the King and Queen with their Names thus Gulielmus Maria Rex Regina And on the Reverse giddy-brained Phaethon unskilfully guiding the Chariot of the Sun with Jupiter above striking him with a Thunder-bolt and this Motto about it Ne Totus Absumatur that is Lest the whole World be Consumed with fire A very pat Emblem to the present Juncture as those may best judge who are well acquainted with the Story of Phaethon Next followed the Communion And Their Majesties having made Their second Oblation received the holy Sacrament Then the Bishop read the final Prayers After Prayers Their Majesties retired into S. Edward's Chapel where they were new Arrayed in Purple Velvet And in this Habit they returned to Westminster-Hall with Their rich Crowns of State upon their Heads and the Nobility their Coronets A splendid Dinner being prepared in the Hall for Their Majesties and the whole Proceeding the first Course for Their Majesties Table was served up with the proper Ceremony being preceded by the great Officers and the High Constable High Steward and Earl Marshal But the Tables of the Nobility c. were all ready furnished before their Coming in Before the second Course Charles Dymoke Esq Their Majesties Champion came into the Hall on horse-back between the High Constable and the Earl Marshal where be performed the Challenge After which the Heralds proclaimed Their Majesties Styles Dinner being ended and the whole Solemnity performed with great Splendour and Magnificence Their Majesties about eight in the Evening returned to Whitehall CHAP. IX Of the King's peculiar Prerogatives Also of His Power Court and Revenues in general BEsides the Royal Marks of Sovereignty inherent in the Crown of England the King has certain Priviledges properly called by the Name of Prerogatives which are so many Flowers of the Crown The principal are these that follow First all Estates for want of Heirs or by Forfeiture escheat or revert to the King To Him also belong all Lands of Aliens dying before Naturalization or Denization unless they leave Issue born within his Dominions All Waste Ground or Land recovered from the Sea All Gold and Silver Mines in whose Ground soever they are found All Wayfs Strays and Wracks not granted away by Him or any of his Predecessors All Treasure found as Gold Silver Plate Bullion c. the Owner whereof is unknown All Royal Fishes as Whales Dolphins c. And Royal Fowl as Swans not markt and swimming at liberty on the River The King by his Prerogative has the Right of Pre-emption of all Sorts of Victuals near the Court and may take Horses Carts Ships and Boats for his Carriages at reasonable Rates By his Letters Patent he may erect new Counties Cities Boroughs Universities Colledges Schools Hospitals Fairs Markets Forests Chases Free-Warrens c. And without his Authority no Forest Chase or Park can be made or Castle built He has Power likewise to Infranchise an Alien and make him a Denison whereby he is inabled to purchase Houses and Lands and to bear some Offices But none can be Naturalized but by King and Parliament The King only can give Letters of Mart or Reprisal And in case of Losses by Fire or otherwise He only can give Patents to receive the charitable Benevolences of the People without which no Man may ask it publickly Debts due to the King are in the first place to be satisfied in case of Executorship and Administratorship and till the Kings Debts be satisfied He may protect the Debtor from the Arrest of other Creditors He may Distrein for the whole Rent upon one Tenant tho he do not hold the whole Land Is not obliged to demand his Rent as others are and may sue in what Court he pleases and Distrain where he list No Occupancy can stand good against the King nor any Entry before Him prejudice him And the Sale of the Kings Goods in open Market do's not take away his Property therein All Receivers of Mony for the King or Accomptants to Him for any Branch of his Revenues are chargeable for the same at all times in their Persons Lands Goods Heirs Executors and Administrators And when any Debtor to the King is disabled to pay him by reason of Debts owing him which he has not been able to recover in such a Case the Kings Debtor being Plaintiff has some Priviledges above others by virtue of a Quo minus in the Exchequer In Doubtfull Cases always there ought to be a particular Regard and favourable Presumption for the King And Judgments against the King's Title are always entred with a Salvo Jure Domini Regis That if at any time the King's Council at Law can make out his Title better that Judgment shall not prejudice Him Which is not so for a Subject The King's Servants in Ordinary are free from Arrest also from all Offices that require their Attendance as Sheriff Constable Church-Warden c. And for reasonable Causes Him thereunto moving He may protect any Man against Suits at Law c. with a Noli Prosequi As to Church Matters the King by Act of Parliament is the Supream Head of the Church as He is of the State and is lookt upon as her Gardian and Nursing Father He is as Constantine the Emperor said of himself an external Bishop of the Church and in some Sense a Priest aswell as a King Therefore at his Coronation He is Anointed with Oyl as the Priests were at first and afterwards the Kings of Israel to intimate that his Person is Sacred and Spiritual and has the Dalmatica and other Priestly Vests put upon Him By virtue of his Prerogative He has Power to call a National or Provincial Synod and to make such Alterations in the Church-Discipline as they shall judge expedient And as He is the Lord Paramount or Supream Landlord of all the Lands in England so He has all over England the Supream
Estates to his own caused the whole united Body to be called Engel-lond since turned into England in a Parliament or Council held at Winchester in the Year aforesaid And by that Name he was then crowned in the presence of his Nobles and the rest of his Subjects Though the Truth is King Alfred a Grandchild of Egbert was he who totally united the Saxon Heptarchy into one Estate Thus from the Time of Egbert to this present Time England has continued a Monarchy above 870 Year First under 15 Kings of the Saxon Bace then under 3 Danish Kings and next to them under Edward the Confessour and Harold II two Kings of the Saxon Blood Who were succeeded by four Norman Kings And after Stephen the last of the Four the Saxon Blood was again restored in the Person of King Henry II Anno 1155 in whose Blood the Crown has continued ever since Now the English Monarchy is none of those Despotical Monarchies where the Subjects like Slaves are at the Arbitrary Power and Will of their Sovereign An unnatural sort of Government and directly contrary to the true end of Government which is the Preservation Welfare and Happiness of the People And what Happiness can a People propose to themselves when instead of being protected they may be plundered and murdered at the will of their Prince Men had as good live in a state of Anarchy as ly at some Princes Mercy whose unlimited Power serves only to make them furious and outragious And where lies the Advantage when the King proves a cruel Tyrant to be Robbed or Murdered by a Royal or a common Robber The Government of England Thanks be to God is better Constituted 'T is a Monarchy but not with that Dominion which a Master has over his Slave For then the King might lawfully sell all his Subjects like so many Head of Cattel and make Mony of his whole Stock when he pleases Here the Legislative Power is divided betwixt the King and his People but the Executive Power is lodged solely in the King Here the King has his Prerogative which is the Support of the Crown and the People their Priviledges which assert their Liberty If the King stretches his Prerogative so far beyond its Bounds as to overthrow the Liberty of the Subject he unhinges the Government and the Government being dissolved He and the Nation are to seek as in the late King's Case If any part of the Subjects incroach upon his Prerogative they undergo the lash of the Law which is no less tender of the Kings Prerogative than of the Subjects Liberty But the Question is in case of a Difference betwixt the King and his People who is a competent Judge To answer this Objection I shall make use of the Inquiry into the Measures of Submission to the Supream Authority 'T is to be considered says the Learned and Judicious Author that some Points are justly disputable and doubtful and others so manifest that any Objections made against them are rather forced Pretences than so much as plausible Colours If the Case be doubtful the Interest of the publick Peace and Order ought to carry it But the Case is quite different when the Invasions that are made upon Liberty and Property are plain and visible to all that consider them But upon such an Invasion how can the Subjects of England take up Arms against their King when the Militia is by several express Laws lodged singly in the King and those Laws have been put in the form of an Oath which all that have born any Imployment either in Church or State have sworn So that though the Subjects have a Right to their Property by many positive Laws yet they seem now to have no Right or Means left to preserve it And here seems to be a Contradiction in the English Government viz. a publick Liberty challenged by the Nation and grounded upon Law and yet a Renouncing of all Resistance when that Liberty is invaded and that also grounded upon Law This is indeed the main Difficulty But in Answer to it this we must take for a general Rule when there seems to be a Contradiction between two Articles in the Constitution That we ought to examine which of the two is the most evident and the most important and so fix upon it then we must give such an accommodating sense to that which seems to contradict it that so we may reconcile 'em together 'T is plain that our Liberty is only a Thing that we injoy at the Kings Discretion and during his Pleasure if the other against all Resistance is to be understood according to the utmost extent of the Words Therefore since the chief Design of our whole Law and of all the several Rules of our Constitution is to secure and maintain our Liberty we ought to lay that down for a Conclusion that it is both the most plain and the most important of the two And the other Article against Resistance ought to be so softened as that it do not destroy us If the Law never designed to lodge the Legislative Power in the King as it is self-evident 't is plain it did not intend to secure him in it in case he should go about to assume it Therefore the not resisting the King can only be applied to the Executive Power that so upon no pretence of ill Administrations in the Execution of the Law it should be lawful to resist him Another Proof that the Law only designed to secure the King in the Executive Power is the Words of the Oath which makes it unlawful to bear Arms against the King or any Commissionated by him For if the Commission be not according to Law 't is no Commission and consequently those who act by virtue of it are not Commissionated by the King in the sense of the Law Besides all general Words how comprehensive soever are still supposed to have a tacit Exception and Reserve in them if the matter seem to require it Thus Children are commanded to obey their Parents in all Things and Wives are declared by the Scripture to be subject to their Husbands in all Things as the Church is unto Christ For odious Things ought not to be suspected and therefore not named upon such Occasions but when they fall out they carry still their own force with them So by our Form of Marriage the Parties swear to one another till Death them do part and yet few doubt but that this Bond is dissolved by Adultery though it is not named In short when a King of England strikes at the very Foundations of the Government as the late King did and that his Maleversations are not only the effect of Humane Frailty of Ignorance Inadvertencies or Passions to which all Princes may be subject as well as other Men in such Cases that King may fall from his Power or at least from the Exercise of it and such his Attempts in the very Judgement of the greatest Assertors of Monarchy naturally
eldest Sons Marquesses younger Sons Barons Vicounts eldest Sons Earls younger Sons Barons eldest Sons Vicounts younger Sons Barons younger Sons But 't is to be observed that all Dukes that are not Princes of the Bloud are preceded by these four Great Officers of the Crown though they be but Barons viz. the Lord Chancellour the Lord Treasurer the Lord President of the Privy Council and the Lord Privy Seal I leave out the Lord High Steward of England because none of this Office is continued beyond the present Occasion As for the Lord Great Chamberlain of England the Lord High Constable the Lord Marshal the Lord High Admiral the Lord Steward of the King's Houshold and the Lord Chamberlain of the King's Houshold they sit above all of their Degree only The Nobility of England have at all times injoyed many considerable Priviledges Though neither Civil nor Common Law allow any Testimony to be valid but what is given upon Oath yet the Testimony of a Peer of England given in upon his Honour without any oath is esteemed valid And whereas the law allows any one of the Commonalty arraigned for Treason or Felony to challenge 35 of his Jury without shewing Cause and others by shewing Cause a Peer of the Realm cannot challenge any of his Jury or put any of them to their Oath the Law presuming that they being Peers of the Realm and judging upon their Honour cannot be guilty of Falshood Favour or Malice In Criminal Causes a Peer cannot be tried but by a Jury of the Peers of the Realm who are not as other Juries to be put to their Oath but their Verdict given in upon their Honour sufficeth All Peers of the Realm being lookt upon as the King 's constant Counsellors their Persons are at all Times priviledged from Arrests except in Criminal Cases Therefore a Peer cannot be Outlawed in any Civil Action and no Attachment lies against him The only Way for satisfaction from a Peer is by Execution taken forth upon his Lands and Goods and not by Attachment or Imprisonment of his Person So tender is the Law of the Honour Credit Reputation and Persons of Noblemen that there is a Statute on purpose called Scandalum Magnatum to punish all such as by false Reports â—ring any scandal upon them They are exempted from all Attendance at Leets or Sheriffs Turns where others are obliged to take the Oath of Allegiance And whereas for the suppressing of Riots the Sheriff may raise the Posse Comitatus yet he cannot command any Peer of the Realm to attend that Service In Civil Causes they are not to be Impanelled upon any Jury or Inquest de facto though in a Matter between two Peers and if a Peer be returned upon any such Jury there lies a special Writ for his Discharge They are upon no Case to be bound to their good Behaviour or put to swear they will not break the Peace but only to promise it upon their Honour which was ever counted so sacred as upon no terms to be violated Every Peer of the Realm summoned to Parliament may constitute in his lawful absence a Proxy to Vote for him which none of the Commons may do And any Peer in a Place of Trust is free to make a Deputy to act in his absence whilst he attends the Person of the King Where a Peer of the Realm is Defendant no Day of Grace is to be granted to the Plaintiff the Law presuming that a Peer of the Realm must always be ready to attend the Person of the King and the Service of the Commonwealth Therefore he ought not to be delayed any longer than the ordinary Use of the Court but tâ— have expedition of Justice In any Civil Trial where a Peer of the Realâ— is Plaintiff or Defendant there must be at leasâ— one Knight returned of the Jury Otherwisâ— the Array may be quashed by Challenge In all Cases wherein the Priviledge of the Clergy is allowed to other Men and in divers Cases where that Priviledge is taken away from them a Peer of the Realm upon his Request shall be for the first time adjudged as a Clerk Convict though he cannot read And that without burning in the Hand loss of Inheritance or Corruption of Bloud In case of Amerciaments of the Peers of the Realm upon Non-Suits or other Judgments a Duke is to be amerced but Ten Pounds and all others under Five This to be done by their Peers according to Magna Charta though it has been often done of late by the King's Justices A Peer of the Realm being sent for by the King to Court Parliament Council or Chancery has the Priviledge passing by the King's Park or Forest both coming and returning to Kill one or two Deer An Earl has 8 Tun of Wine Custom-free and the rest proportionably All Peers of the Realm have a Priviledge of Qualifying a certain Number of Chaplains to hold Plurality of Benefices with Cure of Souls But it must be with a Dispensation first obtained from the Archbishop and the same ratified under the Great Seal of England Thus a Duke may qualify six Chaplains a Marquess and Earl five a Viscount four and a Baron â—hree A Peer of the Realm has also the Priviledge â—f Retaining six Aliens whereas another may â—ot Retain above four These are the chief Priviledges belonging to â—e Nobility of England which are great and â—onsiderable And yet none of them ever had the Priviledge of the Grandees of Spain to be covered in the King's Presence except Henry Ratcliff Earl of Surrey 'T is true the Princes of the Bloud have often had the honour of being covered but then it was by the King 's gracious Command not by virtue of any constant Priviledge Neither are our Noblemen exempted as in France from Tailles and Contributions but always bear a share proportionable And in case of a Poll-Act they are usually thus Rated according to their several Degrees of Honour Viz. Â l. s. d. A Duke 50 00 00 A Marquess 40 00 00 An Earl 30 00 00 A Viscount 25 00 00 A Baron 20 00 00 Those of their Sons which have attained to 16 Years of Age are thus taxed As. Â l. s. d. The Eldest Son of A Duke 30 00 00 The Eldest Son of A Marquess 25 00 00 The Eldest Son of An Earl 20 00 00 The Eldest Son of A Viscount 17 00 00 The Eldest Son of A Baron 15 00 00 A Younger Son of A Duke 25 00 00 A Younger Son of A Marquess 20 00 00 A Younger Son of An Earl 15 00 00 A Younger Son of A Viscount 13 06 00 A Younger Son of A Baron 12 00 00 The Nobles to bear up their Rank have generally great and plentiful Estates some of them beyond those of several Princes beyond Sea And till the Civil Wars in the Reign of Charles I. they lived with suitable splendour and Magnisicence Keeping a plentiful Table and a numerous Attendance with several Officers delighting in
submitted to take it at his hand again at a yearly Tribute the Pope in the Reign of Edward III. demanded his Rent and all the Arrears Upon which issued this Resolve of the Parliament that neither the King nor any other could put the Realm nor the People thereof into a forein Subjection without their Assent This was a high Resolution in Law in one of the highest Points of Law concerning the Kings Claim of an absolute Power when the Pope was in his height However this intimates that with their joynt Consent the Crown may be disposed of But how transcendent soever be the Power and Authority of the King and Parliament yet it do's not extend so far as to bar restrain or make void subsequent Parliaments and tho divers Parliaments have attempted â—t yet they could never effect it For the â—atter Parliament hath still a Power to abrogate suspend qualify explain or make void the former in the Whole or any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former it being a Maxim in the Law of Parliament Quod Leges posteriores priores contrarias abrogant 'T was therefore but in vain that the late King James pretended so to settle that Liberty of Conscience which he ushered in by his Declaration as to make it a Law unalterable like the Laws of the Medes and Persians It was but a Blind for Dissenters to bring them into his Snare and tho he had really designed it he must have been at least Immortal to secure it One of the fundamental and principal Ends of Parliaments was to Redress Grievances and ease the People of Oppressions The chief Care whereof is in the House of Commons as being the Grand Inquest of the Realm summoned from all Parts to present publick Grievances to be redressed and publick Delinquents punished as corrupted Counsellours Judges and Magistrates Therefore Parliaments are a great Check to Men in Authority and consequently abhorred by Delinquents Who must expect one time or other to be called to a strict and impartial Account and be punished according to their Demerits Remember said the Lord Bacon to his Friend Sr. Lionel Cranfield when he was made Lord Treasurer that a Parliament will come In this Case the House of Commons the Parliament sitting Impeaches and the House of Lords are the Judges the Commons Inform Present and Manage the Evidence the Lords upon a full Trial give Judgment upon it And such is the Priviledge of the House of Commons in this particular that they may Impeach the highest Lord in the Kingdom either Spiritual or Temporal and he is not to have the benefit of the Habeas Corpus Act that is he cannot come out upon Bail till his Trial be over or the Parliament Dissolved which last some of the late Judges have declared for But the Lords cannot proceed against a Commoner except upon a Complaint of the Commons In a Case of Misdemeanour both the Lords Spiritual and Temporal are Judges and the Kings Assent to the Judgment is not necessary But if the Crime be Capital the Lords Spiritual tho as Barons they might sit as Judges yet they absent themselves during the Trial because by the Decrees of the Church they may not be Judges of Life and Death For by an Ordinance made at the Council at Westminster in 21 Hen. 2. all Clergymen were forbidden agitare Judicium Sanguinis upon pain to be deprived both of Dignities and Orders When a Peer is Impeached of High Treason a Court is usually erected for his Trial in Westminster-Hall and the King makes a Lord Steward which commonly is the Lord Chancellour to sit as Judge thereof The Trial being over the Lords Temporal resorting to their House give Judgment upon it by Voting the Party arraigned upon their Honours Guilty or not Guilty and he is either Condemned or Acquitted by the Plurality of Voices If found Guilty he receives Sentence accordingly by the Mouth of the Lord High Steward The House of Lords is also in Civil Causes â—he highest Court of Judicature consisting of â—ll the Lords Spiritual and Temporal as Judges â—sisted with the most eminent Lawyers both 〈◊〉 Common and Civil Law And from this Court there lies no Appeal only the cause or â—ome Point or other of it may be brought again before the Lords upon a new Parliament In Case of Recovery of Damages or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any inferiour Court at the Common Law But the Lords in Parliament may direct how it shall be levied In short by the ancient Laws and Constitutions of this Kingdom it belongs to the House of Peers to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before Them I conclude with the Priviledges of Parliament which are great in both Houses and fit for so honourable a Court. First as to the Persons of the Commoners they are Priviledged from Suits Arrests Imprisonments except in Case of Treason and Felony also from Attendance on Trials in inferiour Courts serving on Juries and the like Their necessary Servants that tend upon them during the Parliament are also Priviledged from Arrest except in the aforesaid Cases Which Priviledge is their due eundo morando redeundo that is not only for that time the Parliament sits but also during 40 Days before and 40 Days after the Parliament finished And that not only for the Persons of Members and their necessary Servants but also in some Cases for their Goods and Estates during that Time Moreover this Priviledge do's likewise extend to such Officers as attend the Parliament as the Clerks the Sergeant at Arms the Porter of the Door and the like But if one was Arrested before he was chosen Burgess he is not to have the Priviledge of the House Many are the Precedents which shew the Resentments of this House against such as have offered to act contrary to these Priviledges and their severe Proceedings against some of them either for serving a Subpoena upon or Arresting a Member of this House or refusing to deliver a Member arrested for Debt the Parliament sitting For common Reason will have it that the King and his whole Realm having an Interest in the Body of every one of its Members all private Interest should yield to the Publick so that no Man should be withdrawn from the Service of the House And so much has been the Priviledge of the House insisted on that it has been a Question Whether any Member of the House could consent to be sued during the Session because the Priviledge is not so much the Person 's the House's And therefore when any Person has been brought to the Bar for any Offence of this nature the Speaker has usually charged the Person in the name of the whole House as a Breach of the Priviledge of this House Also for offering to threaten or to give abusive Language to any Member
petty Matters and Offences there committed contrary to the Proclamation made on Bartholomew Eve in the Afternoon at the great Gate going into the Cloth-Fair for the better regulating this Fair. Besides the foresaid Courts every Alderman keeps a Court in his Ward called Wardmote for Things relating to his Ward but still under the Direction of the Lord Mayor Who annually issues out his Precept to every Alderman to hold his Wardmote for the Election of Common Council-Men and other Officers The Companies of Traders have also their Courts called Halmotes for regulating what belongs to their several Trades and so called from the Halls or Assembly Places where they meet many of them very stately Buildings CHAP. XVI Of the Punishments inflicted on Malefactors IN the 9th Chapter of this Part I have shewn at large the Manner of Trying Criminals in England wherein is to be commended our English Humanity towards Prisoners that are upon their Trial. When other Nations under pretence that no Man ought to be put to Death but upon his own Confession of the Crime he stands charged with have devised such racking Tortures to extort the Confession as make often the Innocent cry Guilty and prefer Death to the Rack But this I have already toucht upon in my first Part. My Business is now to speak of the Punishments inflicted here upon Criminals of what nature soever Hanging is the usual Punishment to Death in England either for High Treason Petty Treason or Felony But the Manner is different For a Traytor to the King and Government is to be drawn upon a Hurdle or Sledge to the Gallows and there to be hanged by the Neck But then he is presently cut down â—live his Entrals pulled out of his Belly and â—urnt before his Face his Head cut off and his Body divided into four Parts and both the Head and Body hung up or impaled where the King shall command This Punishment indeed considering all its Circumstances seems cruel to such as do not narrowly consider the nature of the Crime Whereas the Law thinks it but reasonable that whosoever indeavours to cut off the King or rend the Government should be himself cut off and rent as before said As for his Lands and Goods they are forâ—eited to the King his Wife if married loses her Dower and if he be Noble his Children lose their Right of Nobility aswell as Inheritance For by the Law Treason taints the Bloud But it is observable as to the Kings Person that it is not only downright killing or murdering the King which makes it High Treason For the very imagining or contriving his Death without any overt Act is High Treason Falsifying and Clipping of Mony is also High Treason by Law But the Offender's Punishment is only to be Drawn and Hanged by the Neck till he be dead The same it is with one guilty of Petty Treason as when a Servant kills his Master or Mistris a Wife her Husband or a Clergy-man his Prelate to whom he ow's Obedience For Felony as Murder Theft or Robbery and other Capital Crimes for which anciently there were several sorts of Punishments the Malefactor is but Hanged since the Reign of Henry I. But when the Robbery is attended with Murder the Criminal after he is hanged and dead is taken down to be hanged in Chains and so to hang in terrorem till the Body be quite rotted off or eaten up by the Birds of the Air. As to Persons of great Birth and Quality convicted of High Treason Petty Treason or Felony tho the Judgment be the same with that of common Persons yet by the Kings Favour they are usually Beheaded Which is performed with an Ax upon a Block lying on the Scaffold and not as in other Countries by a Sword kneeling or standing The Notion of Murder as a Capital Crime invites me to explain two Law-Terms relating to it viz. Manslaughter and Chance-medley Manslaughter is the unlawful killing of one without prepensed Malice As when two that formerly meant no harm one to another meet together and falling out upon some sudden Occasion the one kills the other It differs from Murder because it is not done with fore-going Malice and from Chance-medley because it has a present Intent to kill 'T is Felony but it is allowed the Benesit of the Clergy for the first time Chance-medley otherwise called Manslaughter by Misadventure signifies the casual Killing of a Man not altogether without the Killer's Fault though without an evil Intent for which the Offender shall have his Pardon of course But here must be considered whether the Offender when he committed this Manslaughter by Chance-medley was doing a lawful Thing For if the Act were unlawful it is Felony As if two are fighting together and a third Man comes to part them and is killed by one of the two without any Malice fore-thought or evil Intent in him that killed the Man yet this is Murder in him and not Manslaughter by Chance-medley or Misadventure because they two that fought together were doing an unlawful Act. And if they were met with prepensed Malice the one intending to kill the other then it is Murder in them both Burning alive is sometimes used but only for Witches and Women convicted of High Treason or Petty Treason In the Time of Popery especially in the Reign of Queen Mary this was the proper Punishment for Hereticks that is in the Popish Sense for Protestants When the Papists who ever delighted in humane Sacrifices made Bonefires of them and reserved Hell-fiâ—e for themselves Pressing to Death called by the Law Peine forte dure is a Punishment for those only that being Arraigned either of Petty Treason or Felony refuse to Answer or to put themselves upon the ordinary Trial of God and the Country Which by the Law is called to stand Mute And for this Contumacy the Offender is to be sent back to the Prison whence he came there to be laid in some low dark Room all naked but his privy Members his Back upon the bare Ground his Arms and Legs stretched with Cords fastened to the several Quarters of the Room Then is laid upon his Body Iron and Stone as much as he may bear or more The next Day he shall have three morsels of Barley-bread without Drink and the Day after he shall have for his Drink as much of the next Water to the Prison as he can drink three several times except it be running Water and that without any bread And this is to be his Diet till he Die Which grievous kind of Death some stout Men have chosen to save their Estates to their Children and keep their Bloud from being stained But in case of High Treason though the Criminal stand mute yet Judgment shall be given against him as if he had been Convicted and his Estate shall be Confiscated In many Parts beyond Sea the Criminals hanged or beheaded are denied Christian Burial their Society being declined in the Grave who