the Kings Issue and by Consequence by raising of Contentions about the Crown and Destruction of the People in Succeeding time by Civil War was therefore High Treason before this Statute 3. That to Levy war against the King within the Realm and Aiding the Kings Enemies either within or without the Realm are tending to the Kings Destruction or Disherison and was High Treason before this Statute by the Common-Law 4. That Counterfeiting the principal Seals of the Kingdom by which the King Governeth his People tendeth to the Confusion of Government and Consequently to the Destruction of the People and was therefore Treason before the Statute 5. If a Souldier design the Killing of his General or other Officer in time of Battel or a Captain Hover doubtfully with his Troops with intention to gain the Favour of him that shall chance to get the Victory it tendeth to the Destruction both of King and People whether the King be present or absent and was High Treason before the Statute 6. If any Man had Imprisoned the Kings Person he had made him incapable of Defending his People and was therefore High Treason before the Statute 7. If any Man had with design to raise Rebellion against the King Written or by words advisedly uttered denyed the King Regnant to be their Lawful King he that wrought Preached or spoke such words living then under the Protection of the Kings Laws it had been High Treason before the Statute for the Reasons aforesaid And perhaps there may be some other Cases upon this Statute which I cannot presently think upon but the Killing of a Justice or other Officer as is determin'd by the Statute is not otherwise High Treason but by the Statute And to distinguish that which is Treason by the Common-Law from all other Inferior Crimes we are to Consider that if such High Treason should take effect it would destroy all Laws at once and being done by a Subject 't is a return to Hostility by Treachery and consequently such as are Traytors may by the Law of Reason be dealt withal as Ignoble and Treacherous Enemies but the greatest of other Crimes for the most part are breaches of one only or at least of very few Laws La. Whether this you say be true or false the Law is now unquestionable by a Statute made in 1 and 2 of Queen Mary whereby there is nothing to be esteemed Treason besides those few Offences specially mentioned in the Act of 25 Ed. 3. Ph. Amongst these great Crimes the greatest is that which is Committed by one that has been trusted and loved by him whose Death he so designeth For a Man cannot well take heed of those whom he thinks he hath obliged whereas an open Enemy gives a Man warning before he Acteth And this it is for which the Statute hath declared that it is another kind of Treason when a Servant killeth his Master or Mistress or a Wife killeth her Husband or a Clerk killeth his Prelate and I should think it petty Treason also though it be not within the words of the Statute when a Tenant in Fee that holdeth by Homage and Fealty shall kill the Lord of his Fee for Fealty is an Oath of Allegiance to the Lord of the Fee saving he may not keep his Oath in any thing Sworn to if it be against the King For Homage as it is expressed in a Statute of 17 Edw. 2. is the greatest submission that is possible to be made to one Man by another for the Tenant shall hold his Hands together between the Hands of his Landlord and shall say thus I become your Man from this day forth for Life for Member and for Worldly Honour and shall owe that my Faith for the Lands that I shall hold of you saving the Faith that I owe unto our Soveraign Lord the King and to many other Lords Which Homage if made to the King is Equivalent to a promise of simple obedience and if made to another Lord there is nothing excepted but the Allegiance to the King and that which is called Fealty is but the same Confirmed by an Oath La. But Sir Edw. Coke 4 Inst. p. 11. denies that a Traytor is in Legal understanding the Kings Enemy for Enemies saith he be those that be out of the Allegiance of the King and his Reason is because if a Subject joyn with a Forraign Enemy and come into England with him and be taken Prisoner here he shall not be Ransomed or proceeded with as an Enemy shall but he shall be taken as a Traytor to the King Whereas an Enemy coming in open Hostility and taken shall either be Executed by Martial-Law or Ransomed for he cannot be Indicted of Treason for that he never was in the Protection and Ligeance of the King and the Indictment of the Treason saith Contra Ligeantiam suam debitam Ph. This is not an Argument worthy of the meanest Lawyer Did Sir Edw. Coke think it is possible for a King Lawfully to kill a Man by what Death soever without an Indictment when it is manifestly proved he was his open Enemy Indictment is a form of Accusation peculiar to England by the Command of some King of England and retained still and therefore a Law to this Country of England but if it were not Lawful to put a Man to Death otherwise than by an Indictment no Enemy could be put to Death at all in other Nations because they proceed not as we do by Indictment Again when an open Enemy is taken and put to Death by Judgment of Martial-Law it is not the Law of the General or Council of War that an Enemy shall be thus proceeded with but the Law of the King contained in their Commissions such as from time to time the Kings have thought fit in whose Will it always resteth whether an open Enemy when he is taken shall be put to Death or no and by what Death and whether he shall be Ransomed or no and at what price Then for the Nature of Treason by Rebellion is it not a return to Hostility What else does Rebellion signifie William the Conqueror Subdued this Kingdom some he Killed some upon promise of future obedience he took to Mercy and they became his Subjects and swore Allegiance to him if therefore they renew the War against him are they not again open Enemies or if any of them lurking under his Laws seek occasion thereby to kill him secretly and come to be known may he not be proceeded against as an Enemy who though he had not Committed what he Design'd yet had certainly a Hostile Design Did not the long Parliament declare all those for Enemies to the State that opposed their Proceedings against the late King But Sir Edw. Coke does seldom well distinguish when there are two divers Names for one and the same thing though one contain the other he makes them always different as if it could not be that one and the same Man should be both an Enemy
of the Caesars that could write or read The right to the Government was either Paternal or by Conquest or by Marriages Their succession to Lands was determined by the pleasure of the Master of the Family by Gift or Deed in his life time and what Land they disposed not of in their life time descended after their death to their Heirs The Heir was the Eldest Son The issue of the Eldest Son failing they descended to the younger Sons in their order and for want of Sons to the Daughters joyntly as to one Heir or to be divided amongst them and so to descend to their Heirs in the same manner And Children failing the Uncle by the Fathers or Mothers side according as the Lands had been the Fathers or the Mothers succeeded to the inheritance and so continually to the next of blood And this was a natural descent because naturally the nearer in Blood the nearer in kindness and was held for the Law of nature not only amongst the Germans but also in most Nations before they had a written Law The right of Government which is called Jus Regni descended in the same manner except only that after the Sons it came to the eldest Daughter first and her Heirs the reason whereof was that Government is indivisible And this Law continues still in England La. Seeing all the Land which any Soveraign Lord possessed was his own in propriety how came a Subject to have a propriety in their Lands Ph. There be two sorts of Propriety One is when a Man holds his Land from the gift of God only which Lands Civilians call Allodial which in a Kingdom no Man can have but the King The other is when a Man holds his Land from another Man as given him in respect of service and obedience to that Man as a Fee The first kind of propriety is absolute the other is in a manner conditional because given for some service to be done unto the giver The first kind of propriety excludes the right of all others the second excludes the right of all other Subjects to the same Land but not the right of the Soveraign when the common good of the People shall require the use thereof La. When those Kings had thus parted with their Lands what was left them for the maintenance of their Wars either offensive or defensive or for the maintenance of the Royal Family in such manner as not only becomes the dignity of a Soveraign King but is also necessary to keep his Person and People from contempt Ph. They have means enough and besides what they gave their Subjects had much Land remaining in their own hands afforrested for their recreation For you know very well that a great part of the Land of England was given for Military service to the great Men of the Realm who were for the most part of the Kings kindred or great Favourites much more Land than they had need of for their own Maintenance but so charged with one or many Souldiers according to the quantity of Land given as there could be no want of Souldiers at all times ready to resist an invading Enemy Which Souldiers those Lords were bound to furnish for a time certain at their own Charges You know also that the whole Land was divided into Hundreds and those again into Decennaries in which Decennaries all Men even to Children of 12 years of age were bound to take the Oath of Allegiance And you are to believe that those Men that hold their Land by the service of Husbandry were all bound with their Bodies and Fortunes to defend the Kingdom against invaders by the Law of nature And so also such as they called Villains and held their Land by baser drudgery were obliged to defend the Kingdom to the utmost of their power Nay Women and Children in such a necessity are bound to do such service as they can that is to say to bring Weapons and Victuals to them that fight and to Dig But those that hold their Land by service Military have lying upon them a greater obligation For read and observe the form of doing homage according as it is set down in the Statute of 17 Edw. 2. which you doubt not was in use before that time and before the Conquest La. I become your Man for Life for Member and for worldly Honour and shall owe you my faith for the Lands that I hold of you Ph. I pray you expound it La. I think it is as much as if you should say I promise you to be at your Command to perform with the hazard of my Life Limbs and all my Fortune as I have charged my self to the reception of the Lands you have given me and to be ever faithful to you This is the form of Homage done to the King immediately but when one Subject holdeth Land of another by the like Military service then there is an exception added viz. saving the faith I owe to the King Ph. Did he not also take an Oath La. Yes which is called the Oath of Fealty I shall be to you both faithful and lawfully shall do such customs and services as my duty is to you at the terms assigned so help me God and all his Saints But both these services and the services of Husbandry were quickly after turned into Rents payable either in Money as in England or in Corn or other Victuals as in Scotland and France When the service was Military the Tenant was for the most part bound to serve the King in his Wars with one or more Persons according to the yearly value of the Land he held Ph. Were they bound to find Horse-men or Foot-men La. I do not find any Law that requires any Man in respect of his Tenancie to serve on Horseback Ph. Was the Tenant bound in case he were called to serve in Person La. I think he was so in the beginning For when Lands were given for service Military and the Tenant dying left his Son and Heir the Lord had the custody both of Body and Lands till the Heir was twenty one years old and the reason thereof was that the Heir till that Age of twenty one years was presum'd to be unable to serve the King in his Wars which reason had been insufficient if the Heir had been bound to go to the Wars in Person Which methinks should ever hold for Law unless by some other Law it come to be altered These services together with other Rights as Wardships first possession of his Tenants inheritance Licenses for Alienation Felons Goods Felons Lands if they were holden of the King and the first years profit of the Lands of whomsoever they were holden Forfeitures Amercements and many other aids could not but amount to a very great yearly Revenue Add to this all that which the King might reasonably have imposed upon Artificers and Tradesmen for all Men whom the King protecteth ought to contribute towards their own protection and consider then whether 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
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