little worth if they tended not to the preservation and improvement of Mens Lives seeing then without Humane Law all things would be Common and this Community a cause of Incroachment Envy Slaughter and continual War of one upon another the same Law of Reason Dictates to Mankind for their own preservation a distribution of Lands and Goods that each Man may know what is proper to him so as none other might pretend a right thereunto or disturb him in the use of the same This distribution is Justice and this properly is the same which we say is one owns by which you may see the great Necessity there was of Statute Laws for preservation of all Mankind It is also a Dictate of the Law of Reason that Statute Laws are a necessary means of the safety and well being of Man in the present World and are to be Obeyed by all Subjects as the Law of Reason ought to be Obeyed both by King and Subjects because it is the Law of God Ph. All this is very Rational but how can any Laws secure one Man from another When the greatest part of Men are so unreasonable and so partial to themselves as they are and the Laws of themselves are but a dead Letter which of it self is not able to compel a Man to do otherwise than himself pleaseth nor punish or hurt him when he hath done a mischief La. By the Laws I mean Laws living and Armed for you must suppose that a Nation that is subdued by War to an absolute submission of a Conqueror it may by the same Arm that compelled it to Submission be compelled to Obey his Laws Also if a Nation choose a Man or an Assembly of Men to Govern them by Laws it must furnish him also with Armed Men and Money and all things necessary to his Office or else his Laws will be of no force and the Nation remains as before it was in Confusion 'T is not therefore the word of the Law but the Power of a Man that has the strength of a Nation that makes the Laws effectual It was not Solon that made Athenian Laws though he devised them but the Supream Court of the People nor the Lawyers of Rome that made the Imperial Law in Justinian's time but Justinian himself Ph. We agree then in this that in England it is the King that makes the Laws whosoever Pens them and in this that the King cannot make his Laws effectual nor defend his People against their Enemies without a Power to Leavy Souldiers and consequently that he may Lawfully as oft as he shall really think it necessary to raise an Army which in some occasions be very great I say raise it and Money to Maintain it I doubt not but you will allow this to be according to the Law at least of Reason La. For my part I allow it But you have heard how in and before the late Troubles the People were of another mind Shall the King said they take from us what he please upon pretence of a necessity whereof he makes himself the Judg What worse Condition can we be in from an Enemy What can they take from us more than what they list Ph. The People Reason ill they do not know in what Condition we were in the time of the Conqueror when it was a shame to be an English-Man who if he grumbled at the base Offices he was put to by his Norman Masters received no other Answer but this Thou art but an English-Man nor can the People nor any Man that humors them in their Disobedience produce any Example of a King that ever rais'd any excessive Summ's either by himself or by the Consent of his Parliament but when they had great need thereof nor can shew any reason that might move any of them so to do The greatest Complaint by them made against the unthriftiness of their Kings was for the inriching now and then a Favourite which to the Wealth of the Kingdom was inconsiderable and the Complaint but Envy But in this point of raising Souldiers what is I pray you the Statute Law La. The last Statute concerning it is 13 Car. 2. c. 6. By which the Supream Government Command and disposing of the Militia of England is delivered to be and always to have been the Antient Right of the Kings of England But there is also in the same Act a Proviso that this shall not be Construed for a Declaration that the King may Transport his Subjects or compel them to march out of the Kingdom nor is it on the contrary declared to be unlawful Ph. Why is not that also determined La. I can imagine cause enough for it though I may be deceiv'd We love to have our King amongst us and not be Govern'd by Deputies either of our own or another Nation But this I verily believe that if a Forraign Enemy should either invade us or put himself in t a readiness to invade either England Ireland or Scotland no Parliament then sitting and the King send English Souldiers thither the Parliament would give him thanks for it The Subjects of those Kings who affect the Glory and imitate the Actions of Alexander the Great have not always the most comfortable lives nor do such Kings usually very long enjoy their Conquests They March to and fro perpetually as upon a Plank sustained only in the midst and when one end rises down goes the other Ph. 'T is well But where Souldiers in the Judgment of the Kings Conscience are indeed necessary as in an insurrection or Rebellion at home how shall the Kingdom be preserved without a considerable Army ready and in pay How shall Money be rais'd for this Army especially when the want of publick Treasure inviteth Neighbour Kings to incroach and unruly Subjects to Rebel La I cannot tell It is matter of Polity not of Law but I know that there be Statutes express whereby the King hath obliged himself never to Levy Money upon his Subjects without the consent of his Parliament One of which Statutes is 25 Ed. 1. c. 6. in these words We have granted for us and our Heirs as well to Arch-Bishops Bishops Abbots and other Folk of the Holy Church as also Earls Barons and to all the Commonalty of the Land that for no Business from henceforth we shall take such Aids Taxes or Prizes but by the common Consent of the Realm There is also another Statute of Ed. 1. in these words No Taxes or Aid shall be taken or Leveyed by us or our Heirs in our Realm without the good will and assent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land which Statutes have been since that time Confirmed by divers other Kings and lastly by the King that now Reigneth Ph. All this I know and am not satisfied I am one of the Common People and one of that almost infinite number of Men for whose welfare Kings and other Soveraigns were by God Ordain'd For
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
so nor do I see any reason to the contrary For the Subjects whether they come into the Family have no title at all to demand any part of the Land or any thing else but security to which also they are bound to contribute their whole strength and if need be their whole fortunes For it cannot be supposed that any one Man can protect all the rest with his own single strength And for the Practice it is manifest in all Conquests the Land of the vanquished is in the sole power of the Victor and at his disposal Did not Joshua and the high-Priest divide the Land of Canaan in such sort among the Tribes of Israel as they pleased Did not the Roman and Graecian Princes and States according to their own discretion send out the Colonies to inhabit such Provinces as they had Conquered Is there at this day among the Turks any inheritor of Land besides the Sultan And was not all the Land in England once in the hands of William the Conqueror Sir Edw. Coke himself confesses it therefore it is an universal truth that all Conquer'd Lands presently after Victory are the Lands of him that Conquer'd them La. But you know that all Soveraigns are said to have a double Capacity viz. a natural Capacity as he is a Man and a a politick Capacity as a King In his politick Capacity I grant you that King William the Conqueror was the proper and only owner once of all the Land in England but not in his natural Capacity Ph. If he had them in his politick Capacity then they were so his own as not to dispose of any part thereof but only to the benefit of his People and that must be either by his own or by the Peoples discretion that is by Act of Parliament But where do you find that the Conqueror disposed of his Lands as he did some to English-men some to French-men and some to Normans to be holden by divers Tenures as Knight-service Soccage c. by Act of Parliament Or that he ever called a Parliament to have the assent of the Lords and Commons of England in disposing of those Lands he had taken from them Or for retaining of such and such Lands in his own hands by the name of Forrests for his own Recreation or Magnificence You have heard perhaps that some Lawyers or other Men reputed wise and good Patriots have given out that all the Lands which the Kings of England have possessed have been given them by the People to the end that they should therewith defray the Charges of their Wars and pay the wages of their Ministers and that those Lands were gained by the Peoples Money for that was pretended in the late Civil War when they took from the King his Town of Kingston upon Hull but I know you do not think that the pretence was just It cannot therefore be denyed but that Land which King William the Conqueror gave away to English-men and others and which they now hold by his Letters Patents and other conveyances were properly and really his own or else the Titles of them that now hold them must be invalid La. I assent As you have shewed me the beginning of Monarchies so let me hear your opinion concerning their growth Ph. Great Monarchies have proceeded from small Families First by War wherein the Victor not only enlarged his Territory but also the number and riches of his Subjects As for other forms of Common-wealths they have been enlarged otherways First by a voluntary conjunction of many Lords of Families into one great Aristocracie Secondly by Rebellion proceeded first Anarchy and from Anarchy proceeded any form that the Calamities of them that lived therein did prompt them to whether it were that they chose an Hereditary King or an elective King for life or that they agreed upon a Council of certain Persons which is Aristocracy or a Council of the whole People to have the Soveraign Power which is Democracy After the first manner which is by War grew up all the greatest Kingdoms in the World viz. the Aegyptian Assyrian Persian and the Macedonian Monarchy and so did the great Kingdoms of England France and Spain The second manner was the original of the Venetian Aristocracy by the third way which is Rebellion grew up in divers great Monarchies perpetually changing from one form to another as in Rome rebellion against Kings produced Democracy upon which the Senate usurped under Sylla and the People again upon the Senate under Marius and the Emperor usurped upon the People under Caesar and his Successors La. Do you think the distinction between natural and politick Capacity is insignificant Ph. No If the Soveraign power be in an assembly of Men that Assembly whether it be Aristocratical or Democratical may possess Lands but it is in their politick Capacity because no natural Man has any right to those Lands or any part of them in the same manner they can command an Act by plurality of Commands but the Command of any one of them is of no effect But when the Soveraign power is in one Man the Natural and Politick Capacity are in the same Person and as to possession of Lands undistinguishable But as to the Acts and Commands they may be well distinguished in this manner Whatsoever a Monarch does Command or do by consent of the People of his Kingdom may properly be said to be done in his politick Capacity and whatsoever he Commands by word of Mouth only or by Letters Signed with his hand or Sealed with any of his private Seals is done in his natural Capacity Nevertheless his publick Commands though they be made in his politick Capacity have their original from his natural Capacity For in the making of Laws which necessarily requires his assent his assent is natural Also those Acts which are done by the King previously to the passing of them under the Great Seal of England either by word of Mouth or warrant under his Signet or privy Seal are done in his natural Capacity but when they have past the Seal of England they are to be taken as done in his politick Capacity La. I think verily your distinction is good For natural Capacity and politick Capacity signifie no more than private and publick right Therefore leaving this argument let us consider in the next place as far as History will permit what were the Laws and Customs of our Ancestors Ph. The Saxons as also all the rest of Germany not Conquer'd by the Roman Emperors nor compelled to use the imperial Laws were a Savage and Heathen People living only by War and Rapine and as some learned Men in the Roman Antiquities affirm had their name of Germans from that their ancient trade of life as if Germans and Hommes de guerre were all one Their rule over their Family Servants and Subjects was absolute their Laws no other than natural Equity written Law they had little or none and very few there were in the time