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-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-Common-Pleas Ph. When the Kng by Authority in Writing maketh a lord-chief-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-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-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-Lord-Chief-Justice made now La. By these
examinâ—â— Judgment given in the Court of Common-Pleas La. You deny not but by the Antient Law of England the Kings-Bench may examine the Judgment given in the Court of Common-Pleas Ph. 'T is true but why may not also the Court of Chancery do the same especially if the fault of the Judgment be against Equity and not against the Letter of the Law La. There is no necessity of that for the same Court may examine both the Letter and the Equity of the Statute Ph. You see by this that the Jurisdiction of Courts cannot easily be distinguished but by the King himself in his Parliament The Lawyers themselves cannot do it for you see what Contention there is between Courts as well as between particular Men. And whereas you say that Law of 4 Hen. 4. 23. is by that of 27 Eliz. cap. 8. taken away I do not find it so I find indeed a Diversity of opinion between the makers of the former and the latter Statute in the preamble of the latter and Conclusion of the former The Preamble of the latter is forasmuch as Erroneous Judgments given in the Court called the Kings-Bench are only to be reformed in the High Court of Parliament and the Conclusion of the former is that the contrary was Law in the times of the Kings Progenitors These are no parts of those Laws but Opinions only concerning the Antient Custom in that Case arising from the different Opinions of the Lawyers in those different times neither Commanding nor Forbidding any thing though of the Statutes themselves the one forbids that such Pleas be brought before the Parliament the other forbids it not But yet if after the Act of Hen. 4. such a Plea had been brought before the Parliament the Parliament might have Heard and Determin'd it For the Statute forbids not that nor can any Law have the force to hinder the Law of any Jurisdiction whatsoever they please to take upon them seeing it is a Court of the King and of all the People together both Lords and Commons La. Though it be yet seeing the King as Sir Edw. Coke affirms 4 Inst. p. 71. hath committed all his power Judicial some to one Court and some to another so as if any Man would render himself to the Judgment of the King in such case where the King hath committed all his power Judicial to others such a render should be to no effect And p. 73. he saith farther That in this Court the Kings of this Realm have sitten on the High Bench and the Judges of that Court on the Lower Bench at his feet but Judicature belongeth only to the Judges of that Court and in his presence they answer all Motions Ph. I cannot believe that Sir Edw. Coke how much soever he desir'd to advance the authority of himself and other Justices of the Common-Law could mean that the King in the Kings-Bench sate as a Spectator only and might not have answered all motions which his Judges answer'd if he had seen cause for it For he knew that the King was Supream Judge then in all causes Temporal and is now in all Causes both Temporal and Ecclesiastical and that there is an exceeding great penalty ordained by the Laws for them that shall deny it But Sir Edw. Coke as he had you see in many places before hath put a Fallacy upon himself by not distinguishing between Committing and Transferring He that Transferreth his power hath deprived himself of it but he that Committeth it to another to be Exercised in his name and under him is still in the Possession of the same power And therefore if a Man render himself that is to say Appealeth to the King from any Judge whatsoever the King may receive his Appeal and it shall be effectual La. Besides these 2 Courts the Kings-Bench for Pleas of the Crown and the Court of common-Common-Pleas for Causes Civil according to the Common-Law of England there is another Court of Justice that hath Jurisdiction in Causes both Civil and Criminal and is as Antient a Court at least as the Court of Common Pleas and this is the Court of the Lord Admiral but the proceedings therein are according to the Laws of the Roman Empire and the Causes to be determin'd there are such as arise upon the Marine Sea For so it is ordain'd by divers Statutes and confirm'd by many Precedents Ph. As for the Statutes they are always Law and Reason also for they are made by the Assent of all the Kingdom but Precedents are Judgments one contrary to another I mean divers Men in divers Ages upon the same case give divers Judgments Therefore I will ask your Opinion once more concerning any Judgments besides those of the King as to their validity in Law But what is the difference between the proceedings of the Court of Admiralty and the Court of Common-Law La. One is that the Court of Admiralty proceedeth by two Witnesses without any either Grand-Jury to Indict or Petty to Convict and the Judge giveth Sentence according to the Laws Imperial which of old time were in force in all this part of Europe and now are Laws not by the Will of any other Emperor or Forraign Power but by the Will of the Kings of England that have given them force in their own Dominions the reason whereof seems to be that the causes that arise at Sea are very often between us and People of other Nations such as are Governed for the most part by the self same laws Imperial Ph. How can it precisely enough be determin'd at Sea especially near the mouth of a very great River whether it be upon the Sea or within the Land For the Rivers also are as well as their Banks within or a part of one Country or other La. Truly the Question is difficult and there have been many Suits about it wherein the Question has been whose Jurisdiction it is in Ph. Nor do I see how it can be decided but by the King himself in case it be not declar'd in the Lord Admirals Letters Patents La. But though there be in the Letters Patents a power given to hold Plea in some certain cases to any of the Statutes concerning the Admiralty the Justices of the Common-Law may send a Prohibition to that Court to proceed in the Plea though it be with a non-obstante of any Statute Ph. Methinks that That should be against the Right of the Crown which cannot be taken from it by any Subject For that Argument of Sir Edw. Coke's that the King has given away all his Judicial Power is worth nothing because as I have said before he cannot give away the Essential Rights of his Crown and because by a non-obstante he declares he is not deceived in his Grant La. But you may see by the Precedents alledged by Sir Edw. Coke the contrary has been perpetually practised Ph. I see not that perpetually for who can tell but there may have been given other Judgments in such cases
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-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-Chief-Justice of the common-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-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-Chief-Justice of England but of a Court of common-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-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-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-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
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-Lord-Chief-Justice in the Court of common-Common-Pleas had given an Erroneous Judgment that when he was removed and made lord-chief-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-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-Common-Pleas should be brought in to be examin'd in the Exchequer-Chamber why therefore may not the Court of Chancery
Justice La. The Judgment for Felony is Ph. Heresie is before Felony in the Catalogue of the Pleas of the Crown La. He has omitted the Judgment against a Heretick because I think no Jury confin'd Heresie nor no Judge Temporal did ever pronounce Judgment upon it For the Statute of 2 H. 5. c. 7. was that the Bishop having convicted any Man of Heresie should deliver him to the Sheriff and that the Sheriff should believe the Bishop The Sheriff therefore was bound by the Statute of 2 H. 4. after he was delivered to him to burn him but that Statute being repeal'd the Sheriff could not burn him without a Writ de Heretico comburendo and therefore the Sheriff burnt Legat 9. king James by that Writ which was granted by the Judges of the Common-Law at that time and in that Writ the Judgment is expressed Ph. This is strange reasoning when Sir Edw. Coke knew and confessed that the Statutes upon which the Writ de Heretico comburendo was grounded were all repeal'd how could he think the Writ it self could be in force Or that the Statute which repealeth the Statutes for burning Hereticks was not made with an intent to forbid such burning It is manifest he understood not his Books of Common-Law For in the time of Hen. 4. and Hen. 5. the word of the Bishop was the Sheriff's warrant and there was need of no such Writ nor could he till the 25 Hen. 8. when those Statutes were repeal'd and a Writ made for that purpose and put into the Register which Writ Fitzherbert cites in the end of his natura brevium Again in the later end of the Reign of Queen Elizabeth was published a correct Register of Original and Judicial Writs and the Writ de Haeretico comburendo left out because that Statute of 25 H. 8. and all Statutes against Hereticks were repeal'd and burning forbidden And whereas he citeth for the granting of this Writ 9. Jac. the Lord Chief Justice the Lord Chief Baron and two Justices of the common-Common-pleas it is as to all but the Lord Chief against the Law for neither the Judges of common-Common-Pleas nor of the Exchequer can hold Pleas of the Crown without special Commission and if they cannot hold Plea they cannot condemn La. The Punishment for Felony is that the Felon be hang'd by the Neck till he be dead And to prove that it ought to be so he cites a Sentence from whence I know not Quod non licet Felonem pro Felonia decollare Ph. It is not indeed lawful for the Sheriff of his own Head to do it or to do otherwise than is commanded in the Judgment nor for the Judge to give any other Judgment than according to Statute-Law or the usage consented to by the King but this hinders not the King from altering his Law concerning Judgments if he see good cause La. The King may do so if he please And Sir Edw. Coke tells you how he altered particular Judgments in case of Felony and sheweth that Judgment being given upon a Lord in Parliament that he should be hang'd he was nevertheless beheaded and that another Lord had the like Judgment for another Felony and was not hang'd but beheaded and withal he shews you the inconveniency of such proceeding because saith he if hanging might be altered to beheading by the same reason it might be altered to burning stoning to Death c. Ph. Perhaps there might be inconveniency in it but 't is more than I see or he shews nor did there happen any inconveniency from the execution he citeth Besides he granteth that death being ultimum supplicium is a satisfaction to the Law But what is all this to the purpose when it belongeth not to consider such inconveniencies of Government but to the King and Parliament Or who from the authority of a deputed Judge can derive a power to censure the actions of a King that hath deputed him La. For the death of a Man by misfortune there is he saith no express Judgment nor for killing a Man in ones own defence but he saith that the Law hath in both Cases given judgment that he that so killeth a Man shall forfeit all his Goods and Chattels Debts and Duties Ph. If we consider what Sir Edw. Coke saith 1 Inst. Sect. 745. at the word Felony these Judgments are very favourable For there he saith that killing of a Man by Chance-medley or se defendendo is Felony His words are wherefore by the Law at this day under the word Felony in Commissions c. is included Petit Treason Murder Homicide burning of Houses Burglary Robbery Rape c. Chance-medley and se defendendo But if we consider only the intent of him that killeth a Man by misfortune or in his own defence the same judgments will be thought both cruel and sinful Judgments And how they can be Felony at this day cannot be understood unless there be a Statute to make them so For the Statute of 25 H. 3. cap. 25. The words whereof Murder from henceforth shall not be judged before our Justices where it is found Misfortune only but it shall take place in such as are slain by Felony and not otherwise make it manifest if they be Felonies they must also be Murders unless they have been made Felonies by some latter Statute La. There is no such latter Statute nor is it to say in Commission nor can a Commission or any thing but another Statute make a thing Felony that was not so before Ph. See what it is for a Man to distinguish Felony into several sorts before he understands the general name of Felony what it meaneth but that a Man for killing another Man by misfortune only without any evil purpose should forfeit all his Goods and Chartels Debts and Duties is a very hard Judgment unless perhaps they were to be given to the Kindred of the Man slain by way of amends for dammage But the Law is not that Is it the Common-Law which is the Law of Reason that justifies this Judgment or the Statute-Law It cannot be the Law of Reason if the Case be meer misfortune If a Man be upon his Apple-tree to gather his Apples and by ill fortune fall down and lighting on the Head of another Man kill him and by good fortune saves himself shall he for this mischance be punished with the forfeiture of his Goods to the King Does the Law of Reason warrant this He should you 'l say have look'd to his Feet that 's true but so should he that was under have look'd up to the Tree Therefore in this Case the Law of Reason as I think dictates that they ought each of them to bear his own misfortune La. In this Case I agree with you Ph. But this Case is the true Case of meer misfortune and a sufficient reprehension of the Opinion of Sir Edw. Coke La. But what if this had hapned to be done by one that had been stealing Apples upon the Tree
Enemies there is no end for the War will continue by a perpetual Subdivision and when it ends they will be in the same Estate they were before That they are often Abused by Men who to them seem wise when then their Wisdom is nothing else but Envy to those that are in Grace and in profitable Employments and that those Men do but abuse the Common People to their own ends that set up a private Mans Propriety against the publick Safety But say withal that the King is Subject to the Laws of God both Written and Unwritten and to no other and so was William the Conqueror whose Right it all Descended to our present King La. As to the Law of Reason which is Equity 't is sure enough there is but one Legislator which is God Ph. It followeth then that which you call the Common-Law Distinct from Statute-Law is nothing else but the Law of God La. In some sense it is but it is not Gospel but Natural Reason and Natural Equity Ph. Would you have every Man to every other Man alledge for Law his own particular Reason There is not amongst Men an Universal Reason agreed upon in any Nation besides the Reason of him that hath the Soveraign Power yet though his Reason be but the Reason of one Man yet it is set up to supply the place of that Universal Reason which is expounded to us by our Saviour in the Gospel and consequently our King is to us the Legislator both of Statute-Law and of Common-Law La. Yes I know that the Laws Spiritual which have been Law in this Kingdom since the Abolishing of Popery are the Kings Laws and those also that were made before for the Canons of the Church of Rome were no Laws neither here nor any where else without the Popes Temporal Dominions farther than Kings and States in their several Dominions respectively did make them so Ph. I grant that But you must grant also that those Spiritual Laws Legislators of the Spiritual Law and yet not all Kings and States make Laws by Consent of the Lords and Commons but our King here is so far bound to their Assents as he shall Judge Conducing to the Good and safety of his People for Example if the Lords and Commons should Advise him to restore those Laws Spiritual which in Queen Maries time were in Force I think the King were by the Law of Reason obliged without the help of any other Law of God to neglect such Advice La. I Grant you that the King is sole Legislator but with this Restriction that if he will not Consult with the Lords of Parliament and hear the Complaints and Informations of the Commons that are best acquainted with their own wants he sinneth against God though he cannot be Compell'd to any thing by his Subjects by Arms and Force Ph. We are Agreed upon that already since therefore the King is sole Legislator I think it also Reason he should be sole Supream Judge La. There is no doubt of that for otherwise there would be no Congruity of Judgments with the Laws I Grant also that he is the Supream Judge over all Persons and in all Causes Civil and Ecclesiastical within his own Dominions not only by Act of Parliament at this time but that he has ever been so by the Common-Law For the Judges of both the Benches have their Offices by the Kings Letters Patents and so as to Judicature have the Bishops Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England and to say all at once there is no Magistrate or Commissioner for Publick Business neither of Judicature nor Execution in State or Church in Peace or War but he is made so by Authority from the King Ph. 'T is true But perhaps you may â—â—ink otherwise when you Read such Acts of Parliament as say that the King shall â—ave Power and Authority to do this or that by Virtue of that Act as Eliz. c. 1. That your Highness your Heirs and Successors Kings or Queens of this Realm shall have â—â—ll Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign c. Was it not this Parliament that gave this Authority to the Queen La. For the Statute in this Clause is no more than as Sir Edw. Coke useth to speak an Affirmance of the Common-Law For she being Head of the Church of England might make Commissioners for the deâ—iding of Matters Ecclesiastical as freely â—s if she had been Pope who did you know pretend his Right from the Law of God Ph. We have hitherto spoken of Laws without considering any thing of the Naâ—ure and Essence of a Law and now unless we define the word Law we can go no â—arther without Ambiguity and Fallacy which will be but loss of time whereas on the contrary the Agreement upon our words will enlighten all we have to say â—hereafter La. I do not remember the Definition of Law in any Statute Ph. I think so For the Statutes were made by Authority and not drawn from any other Principles than the care of the safety of the People Statutes are not Philosophy as is the Common-Law and other disputable Arts but are Commands or Prohibitions which ought to be obeyed because Assented to by Submission made to the Conqueror here in England and to whosoever had the Soveraign Power in other Common wealths so that the Positive Laws of all Places are Statutes The Definition of Law was therefore unnecessary for the makers of Statutes though very necessary to them whose work it is to Teach the sence of the Law La. There is an Accurate Definition of a Law in Bracton Cited by Sir Edw. Coke Lex est sanctio justa jubens honesta prohibens contraria Ph. That is to say Law is a just Statute Commanding those things which are honest and Forbidding the contrary From whence it followeth that in all Cases it must be the Honesty or Dishonesty that makes the Command a Law whereas you know that but for the Law we could not as saith St. Paul have known what is sin therefore this Definition is no Ground at all for any farther Discourse of Law Besides you know the Rule of Honest and Dishonest refers to Honour and that it is Justice only and Injustice that the Law respecteth But that which I most except against in this Definition is that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust There may indeed in a Statute Law made by Men be found Iniquity but not Injustice La. This is somewhat subtil I pray deal plainly what is the difference between Injustice and Iniquity Ph. I pray you tell me first what is the difference between a Court of Justice and a Court of Equity La. A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land and a
Court of Equity in that to which belong such Causes as are to be determined by Equity that is to say by the Law of Reason Ph. You see then that the difference between Injustice and Iniquity is this that Injustice is the Transgression of a Statute-Law and Iniquity the Transgression of the Law of Reason was nothing else but the Law of Reason and that the Judges of that Law are Courts of Justice because the breach of the Statute-Law is Iniquity and Injustice also But perhaps you mean by Common-Law not the Law it self but the manner of proceeding in the Law as to matter of Fact by 12 Men Freeholders though those 12 Men are no Court of Equity nor of Justice because they determine not what is Just or Unjust but only whether it be done or not done and their Judgment is nothing else but a Confirmation of that which is properly the Judgment of the Witnesses for to speak exactly there cannot possibly be any Judge of Fact besides the Witnesses La. How would you have a Law defâ—n'd Ph. Thus A Law is the Command of him or them that have the Soveraign Power given to those that be his or their Subjects declaring Publickly and plainly what every of them may do and what they must forbear to do La. Seeing all Judges in all Courts ought to Judge according to Equity which is the Law of Reason a distinct Court of Equity seemeth to me to be unnecessary and but a Burthen to the People since Common-Law and Equity are the same Law Ph. It were so indeed If Judges could not err but since they may err and that the King is not Bound to any other Law but that of Equity it belongs to him alone to give Remedy to them that by the Ignorance or Corruption of a Judge shall suffer dammage La. By your Definition of a Law the Kings Proclamation under the Great Seal of England is a Law for it is a Command and Publick and of the Soveraign to his Subjects Ph. Why not If he think it necessary for the good of his Subjects For this is a Maxim at the Common-Law Alledged by Sir Edward Coke himself 1 Inst. Sect. 306. Quando Lex aliquid concedit concedere videtur id per quod devenitur ad illud And you know out of the same Author that divers Kings of â—ngland have often to the Petitions in Parliament which they granted annexed such exceptions as these unless there be necessity saving our Regality which I think should be always understood though they be not expressed and are understood so by Common Lawyers who agree that the King may recall any Grant wherein he was deceiv'd La. Again whereas you make it of the Essence of a Law to be Publickly and plainly declar'd to the People I see no necessity for that Are not all Subjects Bound to take notice of all Acts of Parliament when no Act can pass without their Consent Ph. If you had said that no Act could pass without their knowledge then indeed they had been bound to take notice of them but none can have knowledge of them but the Members of the Houses of Parliament therefore the rest of the People are excus'd or else the Knights of the Shires should be bound to furnish People with a sufficient Number of Copies at the Peoples Charge of the Acts of Parliament at their return into the Country that every man may resort to them and by themselves or Friends take notice of what they are obliged to for otherwise it were Impossible they should be obeyed And that no Man is bound to do a thing Impossible is one of Sir Edw. Cokes Maxims at the Common-Law I know that most of the Statutes are Printed but it does not appear that every Man is bound to Buy the Book of Statutes nor to search for them at Westminster or at the Tower nor to understand the Language wherein they are for the most part Written La. I grant it proceeds from their own Faults but no Man can be excused by the Ignorance of the Law of Reason that is to say by Ignorance of the Common-Law except Children Mad-men and Idiots But you exact such a notice of the Statute-Law as is almost Impossible Is it not enough that they in all Places have a sufficient Number of the Poenal Statutes Ph. Yes If they have those Poenal Statutes near them but what Reason can you give me why there should not be as many Copies abroad of the Statutes as there be of the Bible La. I think it were well that every Man that can Read had a Statute-Book for certainly no knowledge of those Laws by which Mens Lives and Fortunes can be brought into danger can be too much I find a great Fault in your Definition of Law which is that every Law either forbiddeth or Commandeth something 'T is true that the Moral-Law is always a Command or a Prohibition or at least Implieth it but in the Levitical-Law where it is said that he that Stealeth a Sheep shall Restore four Fold what Command or Prohibition lyeth in these words Ph. Such Sentences as that are not in themselves General but Judgments nevertheless there is in those words Implied a Commandment to the Judge to cause to be made a Four-fold Restitution La. That 's Right Ph. Now Define what Justice is and what Actions and Men are to be called Just. La. Justice is the constant will of giving to every Man his own that is to say of giving to every Man that which is his Right in such manner as to Exclude the Right of all men else to the same thing A Just Action is that which is not against the Law A Just Man is he that hath a constant Will to live Justly if you require more I doubt there will no Man living be Comprehended within the Definition Ph. Seeing then that a Just Action according to your Definition is that which is not against the Law it is Manifest that before there was a Law there could be no Injustice and therefore Laws are in their Nature Antecedent to Justice and Injustice and you cannot deny but there must be Law-makers before there was any Laws and Consequently before there was any Justice I speak of Humane Justice and that Law-makers were before that which you call Own or property of Goods or Lands distinguished by Meum Tuum Alienum La. That must be Granted for without Statute-Laws all Men have Right to all things and we have had Experience when our Laws were silenced by Civil War there was not a Man that of any Goods could say assuredly they were his own Ph. You see then that no private Man can claim a Propriety in any Lands or other Goods from any Title from any Man but the King or them that have the Soveraign Power because it is in virtue of the Soveraignty that every Man may not enter into and Possess what he pleaseth and consequently to deny the Soveraign any thing necessary to
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
ascribe to Custome I deny that any Custome of its own Nature can amount to the Authority of a Law For if the Custom be unreasonable you must with all other Lawyers confess that it is no Law but ought to be abolished and if the Custom be reasonable it is not the Custom but the Equity that makes it Law For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal Besides you cannot find in any Statute though Lex Consuetudo be often mentioned as things to be followed by the Judges in their Judgments that Consuetudines that is to say Customs or Usages did imply any Long continuance of former time but that it signified such Use and Custom of proceeding as was then immediately in being before the making of such Statute Nor shall you find in any Statute the word Common-Law which may not be there well Interpreted for any of the Laws of England Temporal for it is not the singularity of Process used in any Court that can distinguish it so as to make it a different Law from the Law of the whole Nation La. If all Courts were as you think Courts of Equity would it not be incommodious to the Common-wealth Ph. I think not unless perhaps you may say that seeing the Judges whether they have many or few causes to be heard before them have but the same wages from the King they may be too much inclin'd to put off the Causes they use to hear for the easing of themselves to some other Court to the delay of Justice and dammage of the Parties suing La. You are very much deceiv'd in that for on contrary the Contention between the Courts for Jurisdiction is of who shall have most Causes brought before them Ph. I cry you Mercy I smelt not that La. Seeing also all Judges ought to give their Sentence according to Equity if it should chance that a Written Law should be against the Law of Reason which is Equity I cannot Imagine in that Case how any Judgment can be Righteous Ph. It cannot be that a Written Law should be against Reason For nothing is more reasonable than that every Man should obey the Law which he hath himself assented to but that is not always the Law which is signified by Grammatical Construction of the Letter but that which the Legislator thereby intended should be in Force which Intention I Confess is a very hard matter many times to pick out of the words of the Statute and requires great Ability of understanding and greater Meditations and Considerations of such Conjuncture of occasions and Incommodities as needed a new Law for a Remedy for there is scarce any thing so clearly written that when the Cause thereof is forgotten may not be wrested by an ignorant Grammarian or a Cavilling Logician to the Injury Oppression or perhaps Destruction of an honest Man And for this Reason the Judges deserve that Honour and Profit they enjoy since the Determination of what particular Causes every particular Court should have Cognizance is a thing not yet sufficiently explained and is in it self so difficult as that the Sages of the Law themselves the Reason Sir Edw. Coke will leave to Law it self are not yet agreed upon it how is it possible for a Man that is no professed or no profound Lawyer to take notice in what Court he may Lawfully begin his Suit or give Council in it to his Client La. I confess that no Man can be bound to take notice of the Jurisdiction of Courts till all the Courts be agreed upon it amongst themselves but what Rule to give Judgment by a Judge can have so as never to contradict the Law written nor displease his Legislator I understand not Ph. I think he may avoid both if he take care by his Sentence that he neither punish an Innocent nor deprive him of his â—ammages due from one that maliciously â—â—eth him without reasonable Cause which â—o the most of Rational Men and unbiassed â—s not in my Opinion very difficult And though a Judge should as all Men may do Erre in his Judgment yet there is always such power in the Laws of England as may content the Parties either in the Chancery or by Commissioners of their own choosing Authorized by the King for every Man â—s bound to acquiesce in the Sentence of the Judges he chooseth La. In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker Ph. Very many whereof Sir Edw. Coke nameth 3 Fraud Accident and Breach of Confidence but there be many more for there be a very great many reasonable Exceptions almost to every General Rule which the makers of the Rule could not foresee and very many words in every Statute especially long ones that are as to Grammar of Ambiguous signification and yet to them that know well to what end the Statute was made perspicuous enough and many Connections of doubtful reference which by a Grammarian may be Cavill'd at though the Intention of the Lawmaker be never so perspicuous And these are the difficulties which the Judges ought to Master and can do it in respect of their Ability for which they are chosen as well as can be hoped for and yet there are other Men can do the same or else the Judges places could not be from time to time supplyed The Bishops commonly are the most able and rational Men and obliged by their profession to Study Equity because it is the Law of God and are therefore capable of being Judges in a Court of Equity They are the Men that teach the People what is Sin that is to say they are the Doctors in Cases of Conscience What reason then can you shew me why it is unfit and hurtful to the Common-wealth that a Bishop should be a Chancellor as they were most often before the time of Hen. 8. and since that time once in the Raign of King James La. But Sir Ed. says that soon after that a Chancellor was made which was no Professor of the Law he finds in the Rolls of the Parliament a grievous Complaint by the whole Body of the Realm and a Petition that the most wise and able Men within the Realm might be chosen Chancellors Ph. That Petition was Reasonable but it does not say which are Abler Men the Judges of the Common Law or the Bishops La. That is not the great Question as to the Ability of a Judge both of one and the other there are Able Men in their own way but when a Judge of Equity has need almost in every Case to consider as well the Statute-Law as the Law of Reason he cannot perform his Office perfectly unless he be also ready in the Statutes Ph. I see no great need he has to be ready in the Statutes in the hearing of a Cause do the Judges of the Common-Law Inform the Council at the Bar what the Statute is or the
Council the Judges La. The Council Inform the Judges Ph. Why may they not as well Inform the Chancellor Unless you will say that a Bishop understands not as well as a Lawyer what is sense when he hears it Read in English No no both the one and the other are able enough but to be able enough is not enough when not the difficulty of the Case only but also the Passion of the Judge is to be Conquer'd I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written or others contained in divers Statutes will come to the Chancery or any for him and thereof make his Complaint he shall presently there have Remedy by force of the said Articles and Statutes without elsewhere pursuing to have Remedy By the words of this Statute it is very apparent in my opinion that the Chancery may hold Plea upon the Complaint of the Party grieved in any Case Tryable at the Common-Law because the party shall have present Remedy in that Court by force of this Act without pursuing for Remedy elsewhere La. Yes but Sir Edw. Coke Answers this Objection 4 Inst. p. 82. in this manner These words says he He shall have Remedy signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law Ph. Very like Sir Edw. Coke thought as soon as the Party had his Writ he had his Remedy though he kept the Writ in his Pocket without pursuing his Complaint elsewhere or else he thought that in the Common-Bench was not elsewhere than in the Chancery La. Then there is the Court of Ph. Let us stop here for this which you have said satisfies me that seek no more than to distinguish between Justice and Equity and from it I Conclude that Justice fulfils the Law and Equity Interprets the Law and amends the Judgments given upon the same Law Wherein I depart not much from the Definition of Equity cited in Sir Edw. Coke 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth and Amendeth the Law Written though I Construe it a little otherwise than he would have done for no one can mend a Law but he that can make it and therefore I say not it amends the Law but the Judgments only when they are Erroneous And now let us Consider of Crimes in particular the Pleas whereof are commonly called the Pleas of the Crown and of the punishments belonging to them and first of the Highest Crime of all which is High Treason Tell me what is High Treason Of Crimes Capital La. THe first Statute that declareth what is High Treason is the Statute of the 25 Edw. 3. in these words Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not the King at the Request of the Lords and of the Commons hath made Declaration in the manner as hereafter follows That is to say when a Man doth Compass or Imagine the Death of our Lord the King of our Lady the Queen or of their Eldest Son and Heir or if a Man doth violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir or if a Man do Levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted by open Deed by People of their Condition And if a Man Counterfeit the Kings Great or Privy-Seal or his Money And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandize and make payment in deceit of our said Lord the King and of his People And if a Man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assises and all other Justices Assigned to Hear and Determine being in their Places and doing their Offices And is to be understood in the Cases above rehearsed that That ought to be adjudged Treason which extends to our Royal Lord the King and his Royal Majesty and of such Treason the Forfeiture of the Escheats pertains to our Lord the King as well the Lands and Tenements holden of others as himself And moreover there is another manner of Treason that is to say when a Servant Slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience and of such Treason the Escheats ought to pertain to every Lord of his own Fee And because many other like Cases of Treason may happen in time to come which a Man cannot think nor declare at this present time it is accorded that if any Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Ph. I desir'd to understand what Treason is wherein no Enumeration of Facts can give me satisfaction Treason is a Crime of it self Malum in se and therefore a Crime at the Common-Law and High Treason the Highest Crime at the Common-Law that can be And therefore not the Statute only but Reason without a Statute makes it a Crime And this appears by the Preamble where it is intimated that all Men though of divers Opinions did Condemn it by the name of Treason though they knew not what Treason meant but were forced to request the King to determine it That which I desire to know is how Treason might have been defined without the Statute by a Man that has no other faculty to make a Definition of it than by meer Natural Reason La. When none of the Lawyers have done it you are not to expect that I should undertake it on such a sudden Ph. You know that Salus Populi is Suprema Lex that is to say the safety of the People is the highest Law and that the safety of the People of a Kingdom consisteth in the safety of the King and of the strength necessary to defend his People both against Forraign Enemies and Rebellious Subjects And from this I infer that to Compass that is to design the Death of the then present King was High Treason before the making of this Statute as being a Designing of a Civil War and the Destruction of the People 2. That the Design to Kill the Kings Wife or to violate her Chastity as also to violate the Chastity of the Kings Heir apparent or of his Eldest Daughter unmarryed as tending to the Destruction of the certainty of
Suit in the Spiritual Court here in a Temporal Cause there lay a Premunire and if perhaps some Judge or other hath since that time judged otherwise his Judgment was erroneous La. Nay but by the Statute of 16. Rich. 2. cap. 5. it appeareth to the contrary as Sir Edw. Coke here will shew you The effect saith he of the Statute of Rich. 2. is That if any Pursue or cause to be Pursued in the Court of Rome or elsewhere any thing which toucheth the King against him his Crown or Regality or his Realm they their Notaries c. shall be out of the Kings Protection Ph. I pray you let me know the very words of the Statutes as they ly La. Presently The words are if any Man Purchase or Pursue or cause to be Purchased or Pursued in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunication Bulls Instruments or any other things whatsoever which touch the King against him his Crown and his Regality or his Realm as is aforesaid c. Ph. If a Man bring a Plea of Common-Law into the Spiritual Court which is now the Kings Court and the Judge of this Spiritual Court hold Plea thereof By what Construction can you draw it within the compass of the words you have now read To sue for my Right in the Kings Court is no pursuing of Translations of Bishopricks made or procur'd in the Court of Rome or any place else but only in the Court of the King nor is this the suit against the King nor his Crown nor his Regality nor his Realm but the contrary Why then is it a Premunire No. He that brings in or setteth out a Writing in any place whatsoever wherein is contained that the King hath so given away his Jurisdiction as that if a Subject be condemned falsly his Submission to the Kings Judgment is of none effect or that the King upon no necessity whatsoever can out of Parliament time raise Money for the defence of the Kingdom is in my opinion much more within the Statute of Provisors than they which begin suit for a Temporal Matter in a Court Spiritual But what Argument has he for this Law of his since the Statute Law fails him from the Law of Reason La. He says they are called Courts either because they proceed by the Rules of other Laws as by the Canon or Civil Law or by other Tryals than the Common Law doth Warrant For the Tryals Warranted by the Law of England for matter of Fact is by verdict of 12 Men before the Judges of the Common Law in matters pertaining to the Common Law and not upon Examination of Witnesses as in the Court of Equity so that Alia Curia is either that which is govern'd per aliam Legem or which draweth the Party ad aliud Examen For if Ph. Stop there Let us consider of this you have read for the Tryal warranted by the Law of England is by Verdict of 12 Men. What means he here by the Law of England Does it not warrant the Tryals in Chancery and in the Court of Admiralty by Witnesses La. By the Law of England he means the Law used in the Kings Bench that is to say the Common-Law Ph. This is just as if he had said that these two Courts did warrant their own way of Tryal but other Courts not so but were warranted by the King only the Courts of Common Law were VVarrants to themselves You see that alia Curia is this way ill expounded In the Courts of Common Law all Tryals are by 12 Men who are Judges of the Fact and the Fact known and prov'd the Judges are to pronounce the Law but in the Spiritual Court the Admiralty and in all the Courts of Equity there is but one Judge both of Fact and of Law this is all the difference If this difference be intended by the Statute by alia Curia there would be a Premunire for suing in a Court being not the Kings Court The Kings Bench and Court of Common Pleas may also be different kinds of Courts because the Process is different but 't is plain that this Statute doth not distinguish Courts otherwise than into the Courts of the King and into the Courts of the Forraign States and Princes And seeing you stand upon the name of a Jury for the distinguishing of Courts what difference do you find between the Tryals at the Common-Law and the Tryals in other Courts You know that in Tryals of Fact naturally and through all the World the Witnesses are Judges and it is impossible to be otherwise What then in England can a Jury judge of except it be of the sufficiency of the Testimony The Justices have nothing to judge of nor do but after the Fact is proved to declare the Law which is not Judgment but Jurisdiction Again though the Tryal be in Chancery or in the Court of Civil Law 1. The Witnesses are still Judges of the Fact and he that hath the Commission to hear the Cause hath both the parts that is to say of a Jury to judge of the Testimony and of a Justice to declare the Law In this I say lyes all the difference which is indeed enough to make a Dispute as the World goes about Jurisdiction But seeing it tends neither to the Disherison of the King nor of the People nor to the subversion of the Law of Reason i. e. of Common-Law nor to the subversion of Justice nor to any harm of the Realm without some of which these Statutes are not broken it cannot be a Premunire La. Let me read on For if the Freehold Inheritances Goods and Chattels Debts and Duties wherein the King and Subject have Right and Property by the Common-Law should be judged per aliam Legem or be drawn ad aliud Examen the 3 Mischiefs afore exprest would follow viz. the destruction of the King and his Crown the Disherison of his People and the undoing and destruction of the Common-Law always used Ph. That is to say of the Law of Reason From hence it follows that where there are no Juries and where there are different Laws from ours that is to say in all the World besides neither King nor People have any Inheritance nor Goods nor any Law of Reason I will examine his Doctrine concerning Cases Criminal no farther He no where defineth a Crime that we may know what it is An odious name sufficeth him to make a Crime of any thing He hath put Heresie among the most odious Crimes not knowing what it signifies and upon no other Cause but because the Church of Rome to make their usurped Power the more terrible had made it by long Preaching against it and Cruelty shown towards many Godly and learned Men of this and other Reformed Churches appear to common People a thing detestable He puts it in as a Plea of the Crown in the time of Queen Elizabeth whereas in her time there was no
Doctrine Heresie but Justice Stamford leaves it out because when Heresie was a Crime it was a Plea of the Mitre I see also in this Catalogue of Causes Criminal he inserteth costly Feeding costly Apparel and costly Building though they were contrary to no Statute 'T is true that by evil Circumstances they become sins but these sins belong to the Judgment of the Pastors Spiritual A Justice of the Temporal Law seeing the Intention only makes them sins cannot judge whether they be sins or no unless he have power to take Confessions Also he makes flattery of the King to be a Crime How could he know when one Man had flattered another He meant therefore that it was a Crime to please the King And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned some banished and some put to death by the same Rebels that imprisoned banished and put to death the same King upon no better ground than the Earl of Strafford the Arch-Bishop of Canterbury and King Charles the first by the Rebels of that time Empson and Dudley were no Favourites of Hen. the 7th but Spunges which King Hen. the 8th did well Squeeze Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th but fell into disgrace not for flattering the King but for not flattering him in the business of Divorce from Queen Katharine You see his Reasoning here see also his Passion in the words following We will for some Causes descend no lower Qui eorum vestigiis insistunt eorum exitus perhorrescant this is put in for the Favourite that then was of King James But let us give over this and speak of the legal Punishments to these Crimes belonging Of Punishments ANd in the first place I desire to know who it is that hath the power for an Offence committed to define and appoint the special manner of Punishment for suppose you are not of the Opinion of the Stoicks in old time that all faults are equal and that there ought to be the same Punishment for killing a Man and for killing a Hen. La. The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law That is to say if it be a Statute that determins it then the Judgment must be according to the Statute if it be not specified by the Statute then the Custome in such Cases is to be followed But if the Case be new I know not why the Judge may not determine it according to Reason Ph. But according to whose reason If you mean the natural Reason of this or that Judge authorized by the King to have cognisance of the Cause there being as many several Reasons as there are several Men the punishment of all Crimes will be uncertain and none of them ever grow up to make a Custome Therefore a Punishment certain can never be assigned if it have its beginning from the natural Reasons of deputed Judges no nor from the natural of the Supream Judge For if the Law of Reason did determine Punishments then for the same Offences there should be through all the World and in all times the same Punishments because the Law of Reason is Immutable and Eternal La. If the natural Reason neither of the King nor of any else be able to prescribe a Punishment how can there be any lawful Punishment at all Ph. Why not For I think that in this very difference between the rational Faculties of particular Men lyeth the true and perfect reason that maketh every Punishment certain For but give the authority of defining punishments to any Man whatsoever and let that Man define them and right Reason has defin'd them Suppose the Definition be both made and made known before the Offence committed For such authority is to trump in Card-playing save that in matter of Government when nothing else is turn'd up Clubs are Trump Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason and knoweth what Punishments are by this authority for every evil action ordained it is manifest Reason that for breaking the known Laws he should suffer the known Punishments Now the person to whom this authority of defining Punishments is given can be no other in any place of the World but the same Person that hath the Soveraign Power be it one Man or one assembly of Men For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed for no less power can do it when many Offenders be united and combin'd to defend one another There was a Case put to King David by Nathan of a rich Man that had many Sheep and of a poor Man that had but one which was a tame Lamb The rich Man had a stranger in his House for whose entertainment to spare his own Sheep he took away the poor Mans Lamb. Upon this Case the King gave Judgment surely the Man that hath done this shall die What think you of this Was it a Royal or Tyrannical Judgment La. I will not contradict the Canons of the Church of England which acknowledgeth the King of England within his own Dominions hath the same Rights which the good Kings of Israel had in theirs nor deny King David to have been one of those good Kings But to punish with death without a precedent Law will seem but a harsh proceeding with us who unwillingly hear of Arbitrary Laws much less of Arbitrary Punishments unless we were sure that all our Kings would be as good as David I will only ask you by what Authority the Clergy may take upon them to determine or make a Canon concerning the power of their own King or to distinguish between the Right of a good and an evil King Ph. It is not the Clergy that maketh their Canons to be Law but it is the King that doth it by the Great Seal of England and it is the King that giveth them power to teach their Doctrines in that that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles according to the Scriptures wherein this Doctrine is perspicuously contained But if they had derogated from the Royal Power in any of their Doctrines published then certainly they had been too blame nay I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law I cite not this Precedent of King David as approving the breach of the great Charter or justifying the Punishment with loss of Life or Member of every Man that shall offend the King but to shew you that before the Charter was granted in all Cases where the Punishments were not prescribed it was the King only that could prescribe them
and that no deputed Judge could punish an Offender but by force of some Statute or by the words of some Commission and not ex officio They might for a contempt of their Courts because it is a contempt of the King imprison a Man during the Kings pleasure or fine him to the King according to the greatness of the Offence But all this amounteth to no more than to leave him to the Kings Judgment As for cutting off of Ears and for the Pillory and the like corporal Punishments usually inflicted heretofore in the Star-Chamber they were warranted by the Statute of Hen. 7. that giveth them power to punish sometimes by discretion And generally it is a rule of Reason that every Judge of Crimes in case the positive Law appoint no Punishment and he have no other Command from the King then to consult the King before he pronounce Sentence of any irreparable dammage on the Offender For otherwise he doth not pronounce the Law which is his Office to do but makes the Law which is the Office of the King And from this you may collect that the Custome of punishing such and such a Crime in such and such a manner hath not the force of Law in it self but from an assured presumption that the Original of the Custome was the Judgment of some former King And for this Cause the Judges ought not to run up for the Customs by which they are warranted to the time of the Saxon Kings nor to the time of the Conquest For the most immediate antecedent precedents are the fairest warrants of their Judgments as the most recent Laws have commonly the greatest vigor as being fresh in the memory of all Men and tacitly confirmed because not disapprov'd by the Soveraign Legislator What can be said against this La. Sir Edw. Coke 3 Inst. p. 210. in the Chapter of Judgments and Executions saith that of Judgments some are by the Common-Law some by Statute-Law and some by Custome wherein he distinguisheth Common-Law both from Statute-Law and from Custome Ph. But you know that in other places he makes the Common-Law and the Law of Reason to be all one as indeed they are when by it is meant the Kings Reason and then his meaning in this distinction must be that there be Judgments by Reason without Statute-Law and Judgments neither by Statute-Law nor by Reason but by Custome without Reason for if a Custome be Reasonable then both he and other Learned Lawyers say it is Common-Law and if unreasonable no Law at all La. I believe Sir Edw. Coke's meaning was no other than yours in this point but that he inserted the word Custom because there be not many that can distinguish between Customs reasonable and unreasonable Ph. But Custom so far forth as it hath the force of a Law hath more of the nature of a Statute than of the Law of Reason especially where the question is not of Lands and Goods but of Punishments which are to be defined only by authority Now to come to particulars What Punishment is due by Law for High Treason La. To be drawn upon a Hurdle from the Prison to the Gallows and there to be hanged by the Neck and laid upon the ground alive and have his Bowels taken out and burnt whilst he is yet living to have his Head cut off his Body to be divided into four parts and his Head and Quarters to be placed as the King shall assign Ph. Seeing a Judge ought to give Judgment according to the Law and that this Judgment is not appointed by any Statute how does Sir Edw. Coke warrant it by Reason or how by Custom La. Only thus Reason it is that his Body Lands Goods Posterity c. should be torn pulled asunder and destroy'd that intended to destroy the Majesty of Government Ph. See how he avoids the saying the Majesty of the King But does not this Reason make as much for punishing a Traytor as Metius Suffetius in old time was executed by Tullus Hostilius King of Rome or as Ravillac not many years ago in France who were torn in pieces by four Horses as it does for Drawing Hanging and Quartering La. I think it does But he confirms it also in the same Chapter by holy Scripture Thus Joab for Treason 1 Kings 2. 28. was drawn from the horns of the Altar that 's proof for drawing upon a Hurdle Esth. 2. 22. Bithan for Treason was Hang'd there 's for hanging Acts. 1. 18. Judas hanged himself and his Bowels were poured out there 's for hanging and embowelling alive 2 Sam. 18. 14. Joab pierced Absalom's heart that 's proof for pulling out a Traytors heart 2 Sam. 20. 22. Sheba the Son of Bichri had his Head cut off which is proof that a Traytors Head ought to be cut off 2 Sam. 4. 12. They slew Baanah and Rechab and hung up their Heads over the Pool of Hebron this is for setting up of Quarters And Lastly for forfeiture of Lands and Goods Psal. 109. v. 9. 10. c. Let their Children be driven out and beg and other Men make spoil of their labours and let their Memory be blotted out of the Land Ph. learnedly said and no Record is to be kept of the Judgment Also the Punishments divided between those Traytors must be joyn'd in one Judgment for a Traytor here La. He meant none of this but intended his Hand being in to shew his Reading or his Chaplains in the Bible Ph. Seeing then for the specifying of the Punishment in Case of Treason he brings no argument from natural Reason that is to say from the Common Law and that it is manifest that it is not the general Custom of the Land the same being rarely or never executed upon any Peer of the Realm and that the King may remit the whole Penalty if he will it follows that the specifying of the Punishment depends meerly upon the authority of the King But this is certain that no Judge ought to give other Judgment than has been usually given and approv'd either by a Statute or by Consent express or implyed of the Soveraign Power for otherwise it is not the Judgment of the Law but of a Man subject to the Law La. In Petit Treason the Judgment is to be drawn to the place of execution and hang'd by the Neck or if it be a Woman to be drawn and burnt Ph. Can you imagine that this so nice a distinction can have any other foundation than the wit of a private Man La. Sir Edw. Coke upon this place says that she ought not to be beheaded or hanged Ph. No not by the Judge who ought to give no other Judgment than the Statute or the King appoints nor the Sheriff to make other execution than the Judge pronounceth unless he have a special warrant from the King And this I should have thought he had meant had he not said before that the King had given away all his Right of Judicature to his Courts of