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
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
citing of Aristotle and of Homer and of other Books which are commonly read to Gown-men do in my opinion but weaken his Authority for any Man may do it by a Servant but seeing the whole scene of that time is gone and past let us proceed to somewhat else Wherein doth an Act of Oblivion differ from a Parliament-pardon La. This word Act of Oblivion was never in our Law-Books before the 12 Car. 2. c. 11. and I wish it may never come again but from whence it came you may better know perhaps than I. Ph. The first and only Act of Oblivion that ever passed into a Law in any State that I have read of was that Amnestia or Oblivion of all Quarrels between any of the Citizens of Athens at any time before that Act without all exception of Crime or Person The occasion whereof was this The Lacedemonians having totally subdued the Athenians entred into the City of Athens and ordained that the People should choose thirty Men of their own City to have the Soveraign Power over them These being chosen behav'd themselves so outragiously as caused a Sedition in which the Citizens on both sides were daily slain There was then a discreet Person that propounded to each of the parties this proposition that every Man should return to his own and forget all that was past which proposition was made by consent on both sides into a publick Act which for that cause was called an Oblivion Upon the like disorder hapning in Rome by the Murder of Julius Caesar the like Act was propounded by Cicero and indeed passed but was within few days after broken again by Marcus Antonius In imitation of this Act was made the Act of 12 Car. 2. c. 11. La. By this it seems that the Act of Oblivion made by King Charles was no other than a Parliament-pardon because it containeth a great number of exceptions as the other Parliament-pardons do and the Act of Athens did not Ph. But yet there is a difference between the late Act of Oblivion made here and an ordinary Parliament-pardon For concerning a fault pardoned in Parliament by a general word a suit in Law may arise about this whether the offender be signified by the word or not as whether the pardon of all Felonies be a pardon of Piracy or not For you see by Sir Edw. Coke's reports that notwithstanding a pardon of Felony a Sea Felony when he was Attourney General was not pardoned But by the late Act of Oblivion which pardoned all manner of offences committed in the late Civil War no question could arise concerning Crimes excepted First because no Man can by Law accuse another Man of a Fact which by Law is to be forgotten Secondly because all Crimes may be alledged as proceeding from the Licentiousness of the time and from the silence of the Law occasion'd by the Civil War and consequently unless the offenders Person also were excepted or unless the Crime were committed before the War began are within the Pardon La. Truly I think you say right For if nothing had been pardoned but what was done by occasion of the War the raising of the War it self had not been pardoned Ph. I have done with Crimes and Punishments let us come now to the Laws of Meum and Tuum La. We must then examine the Statutes Ph. We must so what they command and forbid but not dispute of their Justice For the Law of Reason commands that every one observe the Law which he hath assented to and obey the Person to whom he hath promised obedience and fidelity Then let us consider next the Commentaries of Sir Edw. Coke upon Magna Charta and other Statutes Ph. For the understanding of Magna Charta it will be very necessary to run up into Antient times as far as History will give us leave and consider not only the Customs of our Ancestors the Saxons but also the Law of nature the most Antient of all Laws concerning the original of Government and acquisition of Property and concerning Courts of Judicature And first it is evident that Dominion Government and Laws are far more Antient than History or any other writing and that the beginning of all Dominion amongst Men was in Families in which first the Father of the Family by the Law of nature was absolute Lord of his Wife and Children Secondly made what Laws amongst them he pleased Thirdly was Judge of all their Controversies Fourthly was not obliged by any Law of Man to follow any Counsel but his own Fifthly What Land soever the Lord sat down upon and made use of for his own and his Families benefit was his Propriety by the Law of First-Possession in case it was void of Inhabitants before or by the Law of War in case they conquer'd it In this Conquest what Enemies they took and saved were their Servants Also such Men as wanting Possessions of Lands but furnished with Arts necessary for Mans life came to dwell in the Family for Protection became their Subjects and submitted themselves to the Laws of the Family And all this is consonant not only to the Law of nature but also to the practice of Mankind set forth in History Sacred and Praphane La. Do you think it lawful for a Lord that is the Soveraign Ruler of his Family to make War upon another like Soveraign Lord and dispossess him of his Lands Ph. It is Lawful or not Lawful according to the intention of him that does it For First being a Soveraign Ruler he is not subject to any Law of Man and as to the Law of God where the intention is justifiable the action is so also The intention may be Lawful in divers Cases by the right of nature one of those Cases is when he is constrained to it by the necessity of subsisting So the Children of Israel besides that their leaders Moses and Joshua had an immediate command from God to dispossess the Canaanites had also a just pretence to do what they did from the right of nature which they had to preserve their lives being unable otherwise to subsist And as their preservation so also is their security a just pretence of invading those whom they have just cause to fear unless sufficient caution be given to take away their fear which Caution for any thing I can yet conceive is utterly impossible Necessity and Security are the principal justifications before God of beginning War Injuries receiv'd justifie a War defensive but for reparable injuries if Reparation be tendred all invasion upon that Title is Iniquity If you need examples either from Scripture or other History concerning this right of nature in making War you are able enough from your own reading to find them out at your leisure La. Whereas you say that the Lands so won by the Soveraign Lord of a Family are his in propriety you deny methinks all property to the Subjects how much soever any of them hath contributed to the Victory Ph. I do