this the fault of his Councellor Nor when a Judge in the Common-Pleas hath given an Erroneous Sentence it is always likely that the Judge of the Kings-Bench will reverse the Judgment though there be no Question but as you may find in Bracton and other Learned Men he has power to do it because being Professors of the same Common-Law they are perswaded for the most part to give the same Judgments For Example if Sir Edw. Coke in the last Terme that he sate Lord-Chief-Justice in the Court of Common-Pleas had given an Erroneous Judgment that when he was removed and made Lord-Chief-Justice of the Kings-Bench would therefore have reversed the said Judgment it is possi he might but not very likely And therefore I do believe there is some other power by the King constituted to reverse Erroneous Judgments both in the Kings-Bench and in the Court of Common-Pleas La. I think not for there is a Statute to the contrary made 4 o Hen. 4. cap. 23. in these words Whereas as well in Plea Real as in Plea Personal after Judgment in the Court of our Lord the King the Parties be made to come upon grievous pain sometimes before the King himself sometimes before the Kings Council and sometimes to the Parliament to answer thereof anew to the great Impoverishing of the Parties aforesaid and to the subversion of the Common-Law of the Land it is ordained and established that after Judgment given in the Court of our Lord the King the Parties and their Heirs shall be there in Peace until the Judgment be undone by Attaint or by Error if there be Error as hath been used by the Laws in the times of the Kings Progenitors Ph. This Statute is so far from being repugnant to that I say as it seemeth to me to have been made expresly to confirm the same For the substance of the Statuâ—e is that there shall be no Suit made by either of the Parties for any thing adjudged either in the Kings-Bench or Court of Common-Pleas before the Judgment be undone by Error or Corruption prov'd and that this was the Common-Law before the making of this Statute which could not be except there were before this Statute some Courts authorised to examine and correct such Errors as by the Plaintiff should be assign'd The inconvenience which by this Statute was to be remedied was this that often Judgment given in the Kings Courts by which are meant in this place the Kings-Bench and Court of Common-Pleas the Party against whom the Judgment was given did begin a new Suit and cause his Adversary to come before the King himself here by the King himself must be understood the King in Person for though in a Writ by the words Coram nobis is understood the Kings-Bench yet in a Statute it is never so nor is it strange seeing in those days the King did usually sit in Court with his Council to hear as sometimes King James and sometimes the same Parties commenced their Suit before the Privy-Council though the King were absent and sometimes before the Parliament the former Judgment yet standing For remedy whereof it was ordained by this Statute that no Man should renew his Suit till the former Judgment was undone by Attaint or Error which Reversing of a Judgment had been impossible if there had been no Court besides the aforesaid two Courts wherein the Errors might be Assigned Examin'd and Judg'd for no Court can be esteemed in Law or Reason a Competent Judge of its own Errors There was therefore before this Statute some other Court existent for the hearing of Errors and Reversing of Erroneous Judgments What Court this was I enquire not yet but I am sure it could not be either the Parliament or the Privy-Council or the Court wherein the Erroneous Judgment was given La. The Doctor and Student discourses of this Statute cap. 18. much otherwise than you do For the Author of that Book saith that against an Erroneous Judgment all Remedy is by this Statute taken away And though neither Reason nor the Office of a King nor any Law positive can prohibit the remedying of any Injury much less of an unjust Sentence yet he shows many Statutes wherein a Mans Conscience ought to prevail above the Law Ph. Upon what ground can he pretend that all Remedy in this case is by this Statute prohibited La. He says it is thereby enacted that Judgment given by the Kings Courts shall not be examin'd in the Chancery Parliament nor elsewhere Ph. Is there any mention of Chancery in this Act It cannot be examin'd before the King and his Council nor before the Parliament but you see that before the Statute it was examin'd somewhere and that this Statute will have it examin'd there again And seeing the Chancery was altogether the highest Office of Judicature in the Kingdom for matter of Equity and that the Chancery is not here forbidden to examine the Judgments of all other Courts at least it is not taken from it by this Statute But what Cases are there in this Chapter of the Doctor and Student by which it can be made probable that when Law and Conscience or Law and Equity seem to oppugne one another the written Law should be preferr'd La. If the Defendant wage his Law in an Action of Debt brought upon a true Debt the Plaintiff hath no means to come to his Debt by way of Compulsion neither by Subpoena nor otherwise and yet the Defendant is bound in Conscience to pay him Ph. Here is no preferring that I see of the Law above Conscience or Equity for the Plaintiff in this case loseth not his Debt for want either of Law or Equity but for want of Proof for neither Law nor Equity can give a Man his Right unless he prove it La. Also if the Grand-Jury in Attaint affirm a false Verdict given by the Petty-Jury there is no farther Remedy but the Conscience of the party Ph. Here again the want of Proof is the want of Remedy for if he can prove that the Verdict given was false the King can give him remedy such way as himself shall think best and ought to do it in case the Party shall find surety if the same Verdict be again affirmed to satisfie his Adversary for the Dammage and Vexation he puts him to La. But there is a Statute made since viz. 27 Eliz. c. 8. by which that Statute of Hen. 4. 23. is in part taken away for by that Statute Erroneous Judgments given in the Kings-Bench are by a Writ of Error to be examin'd in the Exchequer-Chamber before the Justices of the Common-Bench and the Barons of the Exchequer and by the preamble of this Act it appears that Erroneous Judgments are only to be reform'd by the High Court of Parliament Ph. But here is no mention that the Judgments given in the Court of Common-Pleas should be brought in to be examin'd in the Exchequer-Chamber why therefore may not the Court of Chancery
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
words in their Letters Patents Constituimus vos Justitiarium nostrum Capitalem ad Placita coram nobis tenenda durante beneplacito nostro That is to say we have made you our Chief-Justice to hold Pleas before our self during our pleasure But this Writ though it be shorter does not at all abridge the power they had by the former And for the Letters Patents for the Chief-Justice of the Common-Pleas they go thus Constituimus dilectum Fidelem c. Capitalem Justitiarium de Communi Banco Habendum c. quamdiu nobis placuerit cum vadiis foedis ab antiquo debitis consuetis Id est We have Constituted our Beloved and Faithful c. Chief-Justice of the Common-Bench To have c. during our pleasure with the ways and Fees thereunto heretofore due and usual Ph. I find in History that there have been in England always a Chancellour and a Chief-Justice of England but of a Court of Common-Pleas there is no mention before Magna Charta Common-Pleas there were ever both here and I think in all Nations for Common-Pleas and Civil-Pleas I take to be the same La. Before the Statute of Magna Charta Common-Pleas as Sir Edw. Coke granteth 2 Inst. p. 21. might have been holden in the Kings-Bench and that Court being removeable at the Kings will the Returns of Writs were Coram Nobis ubicunque fuerimus in Anglia whereby great trouble of Jurors ensued and great charges of the parties and delay of Justice and that for these causes it was Ordain'd that the Common-Pleas should not follow the King but be held in a place certain Ph. Here Sir Edw. Coke declares his Opinion that no Common-Plea can be holden in the Kings-Bench in that he says they might have been holden then And yet this doth not amount to any probable proof that there was any Court of Common-Pleas in England before Magna Charta For this Statute being to ease the Jurors and lessen the Charges of Parties and for the Expedition of Justice had been in Vain if there had been a Court of Common-Pleas then standing for such a Court was not necessarily to follow the King as was the Chancery and the Kings-Bench Besides unless the Kings-Bench wheresoever it was held Plea of civil Causes the Subject had not at all been eased by this Statute For supposing the King at York had not the Kings Subjects about London Jurors and parties as much trouble and charge to go to York as the People about York had before to go to London Therefore I can by no means believe otherwise then that the Erection of the Court of Common-Pleas was the effect of that Statute of Magna Charta Cap. 11. And before that time not existent though I think that for the multiplicity of Suits in a great Kingdom there was need of it La. Perhaps there was not so much need of it as you think For in those times the Laws for the most part were in setling rather than setled and the old Saxon Laws concerning Inheritances were then practised by which Laws speedy Justice was Executed by the Kings Writs in the Courts of Barons which were Landlords to the rest of the Freeholders and Suits of Barons in County-Courts and but few Suits in the Kings Courts but when Justice could not be had in those Inferior Courts but at this day there be more Suits in the Kings Courts than any one Court can dispatch Ph. Why should there be more Suits now than formerly For I believe this Kingdom was as well Peopled then as now La. Sir Edw. Coke 4 Inst. p. 76. assigneth for it six Causes 1. Peace 2. Plenty 3. The Dissolution of Religious Houses and dispersing of their Lands among so many several persons 4. The multitude of Informers 5. The number of Concealers 6. The multitude of Attorneys Ph. I see Sir Edw. Coke has no mind to lay any fault upon the Men of his own Profession and that he Assigns for Causes of the Mischiefs such things as would be Mischief and Wickedness to amend for if Peace and Plenty be the cause of this Evil it cannot be removed but by War and Beggery and the Quarrels arising about the Lands of Religious Persons cannot arise from the Lands but from the doubtfulness of the Laws And for Informers they were Authorised by Statutes to the Execution of which Statutes they are so necessary as that their number cannot be too great and if it be too great the fault is in the Law it self The number of Concealers are indeed a number of Couseners which the Law may easily Correct And lastly for the multitude of Attorneys it is the fault of them that have the power to admit or refuse them For my part I believe that Men at this day have better learn't the Art of Caviling against the words of a Statute than heretofore they had and thereby encourage themselves and others to undertake Suits upon little reason Also the variety and repugnancy of Judgments of Common-Law do oftentimes put Men to hope for Victory in causes whereof in reason they had no ground at all Also the ignorance of what is Equity in their own causes which Equity not one Man in a thousand ever Studied and the Lawyers themselves seek not for their Judgments in their own Breasts but in the precedents of former Judges as the Antient Judges sought the same not in their own Reason but in the Laws of the Empire Another and perhaps the greatest cause of multitude of Suits is this that for want of Registring of conveyances of Land which might easily be done in the Townships where the Lands ly a Purchase cannot easily be had which will not be litigious Lastly I believe the Coveteousness of Lawyers was not so great in Antient time which was full of trouble as they have been since in time of Peace wherein Men have leisure to study fraud and get employment from such Men as can encourage to Contention And how ample a Field they have to exercise this Mystery in is manifest from this that they have a power to Scan and Construe every word in a Statute Charter Feofment Lease or other Deed Evidence or Testimony But to return to the Jurisdiction of this Court of the Kings-Bench where as you say it hath power to correct and amend the Errors of all other Judges both in Process and in Judgments cannot the Judges of the Common-Pleas correct Error in Process in their own Courts without a Writ of Error from another Court La. Yes and there be many Statutes which Command them so to do Ph. When a Writ of Error is brought out of the Kings-Bench be it either Error in Process or in Law at whose Charge is it to be done La. At the Charge of the Clyent Ph. I see no reason for that for the Clyent is not in fault who never begins a Suit but by the advice of his Council Learned in the Law whom he pays for his Council given Is not
nor that any Judgment be given without due Process of Law Ph. This is no unreasonable Petition for the Common-Law is nothing else but Equity And by this Statute it appears that the Chancellors before that Statute made bolder with the Courts of Common Law than they did afterward but it does not appear that Common-Law in this Statute signifies any thing else but generally the Law Temporal of the Realm nor was this Statute ever Printed that such as I might take notice of it but whether it be a Statute or not I know not till you tell me what the Parliament Answer'd to this Petition La. The Kings Answer was the Wages heretofore shall stand so as the Kings Royalty be saved Ph. This is slatly against Sir Edw. Coke concerning the Chancery La. In another Parliament 17 Rich. 2. It is Enacted at the Petition of the Commons That forasmuch as People were Compelled to come before the Kings Council or in Chancery by Writs grounded upon untrue Suggestions that the Chancellor for the time being presently after such Suggestions be duly found and proved untrue shall have power to Ordain and Award Dammages according to his discretion to him which is so Travelled unduly as is aforesaid Ph. By this Statute it appears that when a Complaint is made in Chancery upon undue Suggestions the Chancellor shall have the Examination of the said Suggestions and as he may avoid Dammages when the Suggestions are untrue so he may also proceed by Process to the detemining of the Cause whether it be Real or Personal so it be not Criminal La. Also the Commons Petitioned in a Parliament of 2 Hen. 4. not Printed That no Writs nor Privy-Seals be sued out of Chancery Exchequer or other places to any Man to appear at a day upon a pain either before the King and his Council or in any other place contrary to the ordinary Course of Common-Law Ph. What Answer was given to this Petition by the King La. That such Writs should not be granted without necessity Ph. Here again you see the King may deny or Grant any Petitions in Parliament either as he thinks it necessary as in this place or as he thinks it prejudicial or not prejudicial to his Royalty as in the Answer of the former Petition which is a sufficient proof that no part of his Legislative Power or any other Essential part of Royalty can be taken from him by a Statute Now seeing it is granted that Equity is the same thing with the Law of Reason and seeing Sir Edw. Coke 1 Inst. Sect. 21. Defines Equity to be a certain Reason comprehended in no Writing but consisting only in right Reason which interpreteth and amendeth the Written-Law I would fain know to what end there should be any other Court of Equity at all either before the Chancellor or any other Person besides the Judges of the Civil or Common-Pleas Nay I am sure you can alledge none but this that there was a necessity of a Higher Court of Equity than the Courts of Common-Law to remedy the Errors in Judgment given by the Justices of Inferior Courts and the Errors in Chancery were irrevocable except by Parliament or by special Commission appointed thereunto by the King La. But Sir Edw. Coke says that seeing matters of Fact by the Common-Law are Tryable by a Jury of 12 Men this Court should not draw the matter ad aliud Examen i. e. to another kind of Examination viz. by Deposition of Witnesses which should be but evidence to a Jury Ph. To the Deposition of Witnesses any more or less then to evidence to the Lord-Chancellor 'T is not therefore another kind of Examination nor is a Jury more capable of duly examining Witnesses than a Lord-Chancellor Besides seeing all Courts are bound to Judge according to Equity and that all Judges in a Case of Equity may sometimes be deceiv'd what harm is there to any Man or to the State if there be a subordination of Judges in Equity as well as of Judges in Common-Law Seeing it is provided by an Act of parliament to avoid Vexation that Subpoenas shall not be granted till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences if so be the matter may not be made good which is contained in the Bill La. There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words Provided that no matter determinable by the Laws of the Realm shall be by the said Act determined in other Form then after the course of the same Law in the Kings Courts having the Determination of the same Law Ph. This Law was made but for Seven years and never continued by any other Parliament and the motive of this Law was the great Riots Extortions Oppressions c. used during the time of the Insurrection of John Cade and the Indictments and Condemnations wrongfully had by this usurped Authority and thereupon the Parliament Ordained that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal or should refuse to appear upon Proclamation before the Kings Council or in the Chancery to Answer to Riots Extortions c. For the first time he should lose c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery or any other Court but an extraordinary power given to the Chancery and to the Kings Privy-Council to Determine of those Crimes which were not before that time Tryable but only by the Kings-Bench or special Commission For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority to which Act the Proviso was added which is here mention'd that the Proceeds in those Courts of Chancery and of the Kings Council should be such as should be used in the Courts to which the said Courts before this Act was made do belong That is to say such causes as were Criminal should be after the order of the Kings-Bench and such Causes as were not Criminal but only against Equity should be Tryed after the manner of the Chancery or in some cases according to the Proceedings in the Exchequer I wonder why Sir Edw. Coke should cite a Statute as this is above two hundred years before expir'd and other two Petitions as if they were Statutes when they were not passed by the King unless he did it on purpose to diminish as he endeavours to do throughout his Institutes the Kings Authority or to insinuate his own opinions among the People for the Law of the Land For that also he endeavours by Inserting Latin Sentences both in his Text and in the Margin as if they were Principles of the Law of Reason without any Authority of Antient Lawyers or any certainty of Reason in themselves to make Men believe they are the very grounds of the Law of England Now as to the Authority you
and a Traytor But now let us come to his Comment upon this Statute The Statute says as it is Printed in English when a Man doth Compass or Imagine the Death of our Lord the King c. What is the meaning of the word Compassing or Imagining La. On this place Sir Edw. Coke says that before the making of this Act Voluntas reputabatur pro facto the Will was taken for the Deed. And so saith Bracton Spectatur Voluntas non Exitus nihil interest utrum quis occidat aut causam praebeat That is to say the Cause of the killing Now Sir Edw. Coke says this was the Law before the Statute and that to be a Cause of the killing is to declare the same by some open Deed tending to the Execution of his Intent or which might be Cause of Death Ph. Is there any English-man can understand that to Cause the Death of a Man and to declare the same is all one thing And if this were so and that such was the Common-Law before the Statute by what words in the Statute is it taken away La. It is not taken away but the manner how it must be prov'd is thus Determin'd that it must be prov'd by some open Deed as providing of Weapons Powder Poyson Assaying of Armour sending of Letters c. Ph. But what is the Crime it self which this Statute maketh Treason For as I understand the words To Compass or Imagine the Kings Death c. The Compassing as it is in the English is the only thing which is made High Treason so that not only the killing but the Design is made High Treason or as it is in the French Record Fait Compasser That is to say the causing of others to Compass or Design the Kings Death is High Treason and the words par overt fait are not added as a specification of any Treason or other Crime but only of the Proof that is requir'd by the Law Seeing then the Crime is the Design and Purpose to kill the King or cause him to be killed and lyeth hidden in the Breast of him that is Accused what other Proof can there be had of it than words Spoken or Written And therefore if there be sufficient Witness that he by words Declared that he had such a Design there can be no Question but that he is Comprehended within this Statute Sir Edw. Coke doth not deny but that if he Confess this Design either by Word or Writing but that he is within the Statute As for that Common saying that bare words may make a Heretick but not a Traytor which Sir Edw. Coke on this occasion maketh use of they are to little purpose seeing that this Statute maketh not the words High Treason but the Intention whereof the words are but a Testimony and that Common-saying is false as it is generally Pronounced for there were divers Statutes made afterwards though now expir'd which made bare words to be Treason without any other Deed As 1 El. cap. 6. 13. El. cap. 1. If a Man should Publickly Preach that the King were an Usurper or that the Right of the Crown belonged to any other than the King that Reigned there is no doubt but it were Treason not only within this Statute of E. 3. but also within the Statute of 1 Ed. 6. c. 12. which are both still in Force La. Not only so but if a Subject should counsel any other Man to kill the King Queen or Heir apparent to the Crown it would at this day be Judged High Treason and yet it is no more than bare words In the third year of King James Henry Garnet a Jesuit-Priest to whom some of the Gun-Powder Traytors had Revealed their design by way of Confession gave them Absolution without any Caution taken for their desisting from their purpose or other provision against the danger was therefore Condemned and Executed as a Traytor though such Absolution were nothing else but bare words Also I find in the Reports of Sir John Davis Attorney-General for Ireland that in the time of King Henry the 6th a Man was Condemned of Treason for saying the King was a Natural Fool and unfit to Govern but yet this Clause in the Statute of Edw. 3. viz. That the Compassing there mentioned ought to be proved by some Overt Act was by the Framers of the Statute not without great Wisdom and Providence inserted For as Sir Edw. Coke very well observeth when Witnesses are Examin'd concerning words only they never or very rarely agree precisely about the words they Swear to Ph. I deny not but that it was wisely enough done But the Question is not here of the Treason which is either Fact or design but of the Proof which when it is doubtful is to be Judged by a Jury of 12 Lawful Men Now whether think you is it a better Proof of a Mans Intention to kill that he declares that same with his own Mouth so as it may be Witnessed or that he provide Weapons Powder Poyson or Assay Arms If he utter his Design by words the Jury has no more to do than to consider the Legallity of the VVitnesses the Harmony of their Testimonies or whether the words were spoken advisedly For they might have been uttered in a Disputation for Exercise only or when he that spake them had not the use of Reason nor perhaps any Design or wish at all towards the Execution of what he talked of But how a Jury from providing or buying of Armour or buying of Gun-Powder or from any other overt Act not Treason in it self can infer a Design of Murdering the King unless there appear some words also signifying to what end he made such Provision I cannot easily conceive Therefore as the Jury on the whole matter VVords and Deeds shall ground their Judgment concerning Design or not Design so in Reason they ought to give Verdict But to come to the Treason of Counterfeiting the Great or Privy-Seal seeing there are so many ways for a Cheating Fellow to make use of these Seals to the Cousening of the King and his People why are not all such abuses High-Treason as well as the making of a false Seal La. So they are For Sir Edw. Coke produceth a Record of one that was Drawn and Hang'd for taking the Great Seal from an expir'd Patent and fastning it to a Counterfeit Commission to gather Money But he approveth not the Judgment because it is the Judgment for Petty Treason also because the Jury did not find him Guilty of the Offence laid in the Indictment which was the Counterfeiting of the Great-Seal but found the special matter for which the Offender was Drawn and Hang'd Ph. Seeing this Crime of taking the Great Seal from one VVriting and fastning it to another was not found High Treason by the Jury nor could be found upon special matter to be the other kind of Treason mentioned in the same Statute what ground had either the Jury to find it