God made Kings for the People and not People for Kings How shall I be defended from the domineering of Proud and Insolent Strangers that speak another Language that scorn us that seek to make us Slaves Or how shall I avoid the Destruction that may arise from the cruelty of Factions in a Civil War unless the King to whom alone you say belongeth the right of Levying and disposing of the Militia by which only it can be prevented have ready Money upon all Occasions to Arm and pay as many Souldiers as for the present defence or the Peace of the People shall be necessary Shall not I and you and every Man be undone Tell me not of a Parliament when there is no Parliament sitting or perhaps none in being which may often happen and when there is a Parliament if the speaking and leading Men should have a design to put down Monarchy as they had in the Parliament which began to sit Nov. 3. 1640. Shall the King who is to answer to God Almighty for the safety of the People and to that end is intrusted with the Power to Levy and dispose of the Souldiery be disabled to perform his Office by virtue of these Acts of Parliament which you have cited If this be reason 't is reason also that the People be Abandoned or left at liberty to kill one another even to the last Man if it be not Reason then you have granted it is not Law La. 'T is true if you mean Recta Ratio but Recta Ratio which I grant to be Law as Sir Edw. Coke says 1 Inst. Sect. 138. Is an Artificial perfection of Reason gotten by long Study Observation and Experience and not every Mans natural Reason for Nemo nascitur Artifex This Legal Reason is summa Ratio and therefore if all the Reason that is dispersed into so many several Heads were united into one yet could he not make such a Law as the Law of England is because by many Successions of Ages it hath been fined and refinâ—d by an infinite number of Grave and Learned Men. And this is it he calls the Common-Law Ph. Do you think this to be good Doctrine though it be true that no Man is born with the use of Reason yet all Men may grow up to it as well as Lawyers and when they have applyed their Reason to the Laws which were Laws before they Studyed them or else it was not Law they Studied may be as fit for and capable of Judicature as Sir Edw. Coke himself who whether he had more or less use of Reason was not thereby a Judge but because the King made him so And whereas he says that a Man who should have as much Reason as is dispersed in so many several Heads could not make such a Law as this Law of England is if one should ask him who made the Law of England Would he say a Succession of English Lawyers or Judges made it or rather a Succession of Kings and that upon their own Reason either solely or with the Advice of the Lords and Commons in Parliament without the Judges or other Professors of the Law You see therefore that the Kings Reason be it more or less is that Anima Legis that Summa Lex whereof Sir Edw. Coke speaketh and not the Reason Learning or Wisdom of the Judges but you may see that quite through his Institutes of Law he often takes occasion to Magnifie the Learning of the Lawyers whom he perpetually termeth the Sages of the Parliament or of the Kings Council therefore unless you say otherwise I say that the Kings Reason when it is publickly upon Advice and Deliberation declar'd is that Anima Legis and that Summa Ratio and that Equity which all agree to be the Law of Reason is all that is or ever was Law in England since it became Christian besides the Bible La. Are not the Canons of the Church part of the Law of England as also the Imperial Law used in the Admiralty and the Customs of particular places and the by-Laws of Corporations and Courts of Judicature Ph. Why not for they were all Constituted by the Kings of England and though the Civil Law used in the Admiralty were at first the Statutes of the Roman Empire yet because they are in force by no other Authority than that of the King they are now the Kings Laws and the Kings Statutes The same we may say of the Canons such of them as we have retained made by the Church of Rome have been no Law nor of any force in England since the beginning of Queen Elizabeth's Raign but by Virtue of the Great Seal of England La. In the said Statutes that restrain the Levying of Money without consent of Parliament Is there any thing you can take exceptions to Ph. No I am satisfied that the Kings that grant such Liberties are bound to make them good so far as it may be done without sin But if a King find that by such a Grant he be disabled to protect his Subjects if he maintain his Grant he sins and therefore may and ought to take no Notice of the said Grant For such Grants as by Error or false Suggestion are gotten from him are as the Lawyers do Confess Void and of no Effect and ought to be recalled Also the King as is on all hands Confessed hath the Charge lying upon him to Protect his People against Forraign Enemies and to keep the Peace betwixt them within the Kingdom if he do not his utmost endeavour to discharge himself thereof he Committeth a Sin which neither King nor Parliament can Lawfully commit La. No Man I think will deny this For if Levying of Money be necessary it is a Sin in the Parliament to refuse if unnecessary it is a sin both in King and Parliament to Levy But for all that it may be and I think it is a Sin in any one that hath the Soveraign Power be he one Man or one Assembly being intrusted with the safety of a whole Nation if rashly and relying upon his own Natural sufficiency he make War or Peace without Consulting with such as by their Experience and Employment abroad and Intelligence by Letters or other means have gotten the Knowledge in some measure of the strength Advantages and Designs of the Enemy and the Manner and Degree of the Danger that may from thence arise In like manner in case of Rebellion at Home if he Consult not with of Military Condition which if he do then I think he may Lawfully proceed to Subdue all such Enemies and Rebels and that the Souldiers ought to go on without Inquiring whether they be within the Country or without For who shall suppress Rebellion but he that hath Right to Levy Command and Dispose of the Militia The last long Parliament denied this But why Because by the Major part of their Votes the Rebellion was raised with design to put down Monarchy and to that end Maintained Ph. Nor do
I hereby lay any Aspersion upon such Grants of the King and his Ancestors Those Statutes are in themselves very good for the King and People as creating some kind of Difficulty or such Kings as for the Glory of Conquest might spend one part of their Subjects Lives and Estates in Molesting other Nations and leave the rest to Destroy themselves at Home by Factions That which I here find fault with is the wresting of those and other such Statutes to a binding of our Kings from the use of their Armies in the necessary defence of themselves and their People The late long Parliament that in 1648 Murdered their King a King that sought no greater Glory upon Earth but to be indulgent to his People and a Pious defender of the Church of England no sooner took upon them the Soveraign Power then they Levyed Money upon the People at their own Discretion Did any of their Subjects Dispute their Power Did they not send Souldiers over the Sea to Subdue Ireland and others to Fight against the Dutch at Sea or made they any doubt but to be obeyed in all that they Commanded as a Right absolutely due to the Soveraign Power in whomsoever it resides I say not this as allowing their Actions but as a Testimony from the Mouths of those very Men that denyed the same Power to him whom they acknowledged to have been their Soveraign immediately before which is a sufficient Proof that the People of England never doubted of the Kings Right to Levy Money for the Maintenance of his Armies till they were abused in it by Seditious Teachers and other prating Men on purpose to turn the State and Church into Popular Government where the most ignorant and boldest Talkers do commonly obtain the best preferments again when their New Republick returned into Monarchy by Oliver who durst deny him Money upon any pretence of Magna Charta or of these other Acts of Parliament which you have Cited You may therefore think it good Law for all your Books that the King of England may at all times that he thinks in his Conscience it will be necessar for the defence of his People Levy as many Souldiers and as much Money as he please and that himself is Judge of the Necessity La. Is there no body harkning at the door Ph. What are you afraid of La. I mean to say the same that you say but there be very many yet that hold their former Principles whom neither the Calamities of the Civil Wars nor their former Pardon have throughly cur'd of their Madness Ph. The Common People never take notice of what they hear of this Nature but when they are set on by such as they think Wise that is by some sorts of Preachers or some that seem to be Learned in the Laws and withal speak evil of the Governors But what if the King upon the sight or apprehension of any great danger to his People as when their Neighbours are born down with the Current of a Conquering Enemy should think his own People might be involved in the same Misery may he not Levy Pay and Transport Souldiers to help those weak Neighbours by way of prevention to save his own People and himself from Servitude Is that a sin La. First If the War upon our Neighbour be Just it may be question'd whether it be Equity or no to Assist them against the Right Ph. For my part I make no Question of that at all unless the Invader will and can put me in security that neither he nor his Successors shall make any Advantage of the Conquest of my Neighbour to do the same to me in time to come but there is no Common Power to bind them to the Peace La. Secondly when such a thing shall happen the Parliament will not refuse to Contribute freely to the safety of themselves and the whole Nation Ph. It may be so and it may be not For if a Parliament then sit not it must be called that requires 6 Weeks time Debating and Collecting what is given requires as much and in this time the Opportunity perhaps is lost Besides how many wretched Souls have we heard to say in the late Troubles What matter is it who gets the Victory We can pay but what they please to Demand and so much we pay now and this they will Murmur as they have ever done whosoever shall Raign over them as long as their Coveteousness and Ignorance hold together which will be till Dooms-day if better order be not taken for their struction in their Duty both from Reason and Religion La. For all this I find it somewhat hard that a King should have Right to take from his Subjects upon the pretence of Necessity what he pleaseth Ph. I know what it is that troubles your Conscience in this Point All Men are troubled at the Crossing of their Wishes but it is our own fault First we wish Impossibilities we would have our Security against all the World upon Right of Property without Paying for it This is Impossible We may as well Expect that Fish and Fowl should Boil Rost and Dish themselves and come to the Table and that Grapes should squeeze themselves into our Mouths and have all other the Contentments and ease which some pleasant Men have Related of the Land of Cocquam Secondly There is no Nation in the World where he or they that have the Soveraignty do not take what Money they please for Defence of those respective Nations when they think it necessary for their safety The late long Parliament denyed this but why Because there was a Design amongst them to Depose the King Thirdly There is no Example of any King of England that I have Read of that ever pretended any such Necessity for Levying of Money against his Conscience The greatest sounds that ever were Levyed Comparing the value of Money as it was at that time with what now it is were Levied by King Edw. 3d. and King Henry the 5th Kings of whom we Glory now and think their Actions great Ornaments to the English History Lastly As to the enriching of now and then a Favourite it is neither sensible to the Kingdom nor is any Treasure thereby Conveyed out of the Realm but so spent as it falls down again upon the Common People To think that our Condition being Humane should be subject to no Incommodity were Injuriously to Quarrel with God Almighty for our own Faults for he hath done his part in annexing our own Industry and Obedience La. I know not what to say Ph. If you allow this that I have said then say that the People never were shall be or ought to be free from being Taxed at the will of one or other being hindred that if Civil War come they must Levy all they have and that Dearly from the one or from the other or from both sides Say that adhering to the King their Victory is an end of their Trouble that adhering to his
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
also if he will And they say true but they have no reason to think he will unless it be for his own profit which cannot be for he loves his own Power and what becomes of his power when his Subjects are destroyed or weakned by whose multitude and strength he enjoyes his power and every one of his Subjects his Fortune And lastly whereas they sometimes say the King is bound not only to cause his Laws to be observ'd but also to observe them himself I think the King causing them to be observ'd is the same thing as observing them himself For I never heard it taken for good Law that the King may be Indicted or Appealed or served with a Writ till the long Parliament practised the contrary upon the good King Charles for which divers of them were Executed and the rest by this our present King pardoned La. Pardoned by the King and Parliament Ph. By the King in Parliament if you will but not by the King and Parliament you cannot deny but that the pardoning of Injury to the Person that is Injur'd Treason and other Offences against the Peace and against the Right of the Soveraign are Injuries done to the King and therefore whosoever is pardoned any such Offence ought to acknowledge he ows his Pardon to the King alone But as to such Murders Felonies and other Injuries as are done to any Subject how mean soever I think it great reason that the parties endammaged ought to have satisfaction before such pardon be allow'd And in the death of a Man where restitution of Life is Impossible what can any Friend Heir or other party that may appeal require more than reasonable satisfaction some other way Perhaps he will be content with nothing but Life for Life but that is Revenge and belongs to God and under God to the King and none else therefore if there be reasonable satisfaction tendred the King without sin I think may pardon him I am sure if the pardoning him be a sin that neither King nor Parliament nor any earthly Power can do it La. You see by this your own Argument that the Act of Oblivion without a Parliament could not have passed because not only the King but also most of the Lords and abundance of Common People had received Injuries which not being pardonable but by their own Assent it was absolutely necessary that it should be done in Parliament and by the assent of the Lords and Commons Ph. I grant it but I pray you tell me now what is the difference between a general Pardon and an Act of Oblivion La. The word Act of Oblivion was never in our Books before but I believe it is in yours Ph. In the State of Athens long ago for the Abolishing of the Civil War there was an Act agreed on that from that time forward no Man should be molested for any thing before that Act done whatsoever without exception which Act the makers of it called an Act of Oblivion not that all Injuries should be forgotten for then we could never have had the story but that they should not rise up in Judgment against any Man And in imitation of this Act the like was propounded though it took no effect upon the death of Julius Caesar in the Senate of Rome By such an Act you may easily conceive that all Accusations for offences past were absolutely dead and buried and yet we have no great reason to think that the objecting one to another of the Injuries pardoned was any violation of those Acts except the same were so expressed in the Act it self La. It seems then that the Act of Oblivion was here no more nor of other nature than a General Pardon Of Courts Ph. SInce you acknowledge that in all controversies the Judicature originally belongeth to the King and seeing that no Man is able in his own person to execute an Office of so much business what order is taken for deciding of so many and so various Controversies La. There be divers sorts of Controversies some of which are concerning Mens Titles to Lands and Goods and some Goods are Corporeal and Lands Money Cattel Corn and the like which may be handled or seen and some Incorporeal as Priviledges Liberties Dignities Offices and many other good things meer Creatures of the Law and cannot be handled or seen And both of these kinds are concerning Meum and Tuum Others there are concerning Crimes punishable divers wayes and amongst some of these part of the punishment is some Fine or Forfeiture to the King and then it is called a Plea of the Crown in case the King sue the party otherwise it is but a private Plea which they call an Appeal And though upon Judgment in an Appeal the King shall have his Forfeiture yet it cannot be called a Plea of the Crown but when the Crown pleadeth for it There be also other Controversies concerning the Government of the Church in order to Religion and virtuous Life The offences both against the Crown and against the Laws of the Church are Crimes but the offences of one Subject against another if they be not against the Crown the King pretendeth nothing in those Pleas but the Reparation of his Subjects injur'd Ph. A Crime is an offence of any kind whatsoever for which a penalty is Ordain'd by the Law of the Land But you must understand that dammages awarded to the party injur'd has nothing common with the nature of a penalty but is meerly a Restitution or satisfaction due to the party griev'd by the Law of Reason and consequently is no more a punishment than is the paying of a Debt La. It seems by this Definition of a Crime you make no difference between a Crime and a sin Ph. All Crimes are indeed Sins but not all Sins Crimes A Sin may be in the thought or secret purpose of a Man of which neither a Judge nor a Witness nor any Man take notice but a Crime is such a Sin as consists in an Action against the Law of which Action he can be Accused and Tryed by a Judge and be Convinced or Cleared by Witnesses Farther that which is no Sin in it self but indifferent may be made Sin by a positive Law As when the Statute was in force that no Man should wear Silk in his Hat after the Statute such wearing of Silk was a Sin which was not so before Nay sometimes an Action that 's good in it self by the Statute Law may be made a Sin as if a Statute should be made to forbid the giving of Alms to a strong and sturdy Beggar such Alms after that Law would be a Sin but not before For then it was Charity the Object whereof is not the strength or other Quality of the poor Man but his Poverty Again he that should have said in Queen Maries time that the Pope had no Authority in England should have been Burnt at a Stake but for saying the same in the time of Queen Elizabeth
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
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-pleas it is as to all but the Lord Chief against the Law for neither the Judges of 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
King after the report of the Judge heard give the Sheriff command to do it Fourthly that the general verdict of the King hinders not the King but that he may Judge of it upon the special matter for it often happens that an ill-disposed Person provokes a Man with words or otherwise on purpose to make him draw his Sword that he may kill him and pretend it done in his own defence which appearing the King may without any offence to God punish him as the cause shall require Lastly contrary to the Doctrine of Sir Edw. Coke he may in his own Person be Judge in the case and annul the Verdict of the Jury which a deputed Judge cannot do La. There be some cases wherein a Man though by the Jury he be found not Guilty shall nevertheless forfeit his Goods and Chattells to the King For example a Man is slain and one A. hating B. giveth out that it was B. that slew him B. hearing thereof fearing if he be tryed for it that through the great power of A. and others that seek his hurt he should be condemned flieth and afterwards is taken and tryed and upon sufficient evidence is by the Jury found Not Guilty yet because he fled he shall forfeit his Goods and Chattels notwithstanding there be no such Judgment given by the Judge nor appointed by any Statute but the Law it self authoriseth the Sheriff to seize them to the use of the King Ph. I see no reason which is Common-Law for it and am sure it is grounded upon no Statute La. See Sir Edw. Coke Inst. 1. Sect. 709. and read Ph. If a Man that is Innocent be accus'd of Felony and for fear flieth for the same albeit that he be judicially acquitted of the Felony yet if it be found that he fled for the same he shall notwithstanding his Innocence forfeit all his Goods and Chattells Debts and Duties O unchristian and abominable Doctrine which also he in his own words following contradicteth For saith he as to the forfeiture of them the Law will admit no proof against the presumption of the Law grounded upon his flight and so it is in many other cases But that the general Rule is Quod stabitur praesumptioni donec probetur in contrarium but you see it hath many exceptions This general Rule contradicts what he said before for there can be no exceptions to a general Rule in Law that is not expresly made an exception by some Statute and to a general Rule of equity there can be no exception at all From the power of Punishing let us proceed to the power of Pardoning La. Touching the power of Pardoning Sir Edw. Coke says 3 Inst. p. 236. That no Man shall obtain Charter of pardon out of Parliament and cites for it the Statute of 2 Ed. 3. cap. 2. and says farther that accordingly in a Parliament Roll it is said that for the peace of the Land it would help that no pardon were granted but by Parliament Ph. What lawful power would he have left to the King that thus disableth him to practice Mercy In the Statute which he citeth to prove that the King ought not to grant Charters of Pardon but in Parliament there are no such words as any Man may see for that Statute is in Print and that which he says is in the Parliament Roll is but a wish of he tells not whom and not a Law and 't is strange that a private wish should be inroll'd amongst Acts of Parliament If a Man do you an injury to whom think you belongeth the Right of pardoning it La. Doubtless to me alone if to me alone be done that injury and to the King alone if to him alone be done the injury and to both together if the injury be done to both Ph. What part then has any Man in the granting of a pardon but the King and the party wrong'd if you offend no Member of either House why should you ask their pardon It is possible that a Man may deserve a pardon or he may be such a one sometimes as the defence of the Kingdom hath need of may not the King pardon him though there be no Parliament then sitting Sir Edw. Coke's Law is too general in this point and I believe if he had thought on 't he would have excepted some Persons if not all the Kings Children and his Heir apparent and yet they are all his Subjects and subject to the Law as other Men. La. But if the King shall grant pardons of Murder and Felony of his own head there would be very little safety for any Man either out of his House or in it either by Night or by Day And for that very cause there have been many good Statutes provided which forbid the Justices to allow of such pardons as do not specially name the Crime Ph. Those Statutes I confess are reasonable and very profitable which forbid the Judge to pardon Murders but what Statute is there that forbids the King to do it There is a Statute of 13 Rich. 2. c. 1. wherein the King promiseth not to pardon Murder but there is in it a clause for the saving of the Kings Regality From which may be inferr'd that the King did not grant away that power when he thought good to use it for the Common-wealth Such Statutes are not Laws to the King but to his Judges and though the Judges be commanded by the King not to allow pardons in many cases yet if the King by writing command the Judges to allow them they ought to do it I think if the King think in his conscience it be for the good of the Common-wealth he sinneth not in it but I hold not that the King may pardon him without sin if any other Man be damnified by the Crime committed unless he cause reparation to be made as far as the party offending can do it And howsoever be it sin or not sin there is no power in England that may resist him or speak evil of him lawfully La. Sir Edw. Coke denies not that and upon that ground it is that the King he says may pardon high Treason for there can be no high Treason but against the King Ph. That 's well therefore he confesseth that whatsoever the offence be the King may pardon so much of it as is an injury to himself and that by his own right without breach of any Law positive or natural or of any grant if his Conscience tell him that it be not to the dammage of the Common-wealth and you know that to judge of what is good or evil to the Common-wealth belongeth to the King only Now tell me what it is which is said to be pardoned La. What can it be but only the offence If a Man hath done a Murder and be pardoned for the same is it not the Murder that is pardoned Ph. Nay by your favour if a Man be pardoned for Murder or any other offence it is the Man that is
cannot conceive I understand well enough that the knowledge of the Law is gotten by much study as all other Sciences are which when they are studyed and obtained it is still done by Natural and not by Artificial Reason I grant you that the knowledge of the Law is an Art but not that any Art of one Man or of many how wise soever they be or the work of one and more Artificers how perfect soever it be is Law It is not Wisdom but Authority that makes a Law Obscure also are the words Legal Reason there is no Reason in Earthly Creatures but Humane Reason but I suppose that he means that the Reason of a Judge or of all the Judges together without the King is that Summa Ratio and the very Law which I deny because none can make a Law but he that hath the Legislative Power That the Law hath been fined by Grave and Learned Men meaning the Professors of the Law is manifestly untrue for all the Laws of England have been made by the Kings of England consulting with the Nobility and Commons in Parliament of which not one of twenty was a Learned Lawyer Law You speak of the Statute Law and I speak of the Common Law Ph. I speak generally of Law La. Thus far I agree with you that Statute Law taken away there would not be left either here or any where any Law at all that would conduce to the Peace of a Nation yet Equity and Reason which Laws Divine and Eternal which oblige all Men at all times and in all places would still remain but be Obeyed by few and though the breach of them be not punished in this World yet they will be punished sufficiently in the World to come Sir Edw. Coke for drawing to the Men of his own Profession as much Authority as lawfully he might is not to be reprehended but to the gravity and Learning of the Judges they ought to have added in the making of Laws the Authority of the King which hath the Soveraignty for of these Laws of Reason every Subject that is in his Wits is bound to take notice at his Peril because Reason is part of his Nature which he continually carryes about with him and may read it if he will Ph. 'T is very true and upon this ground if I pretend within a Month or two to make my self able to perform the Office of a Judge you are not to think it Arrogance for you are to allow to me as well as to other Men my pretence to Reason which is the Common Law remember this that I may not need again to put you in mind that Reason is the Common Law and for Statute Law seeing it is Printed and that there be Indexes to point me to every matter contained in them I think a Man may profit in them very much in two Months Law But you will be but an ill Pleader Ph. A Pleader commonly thinks he ought to say all he can for the Benefit of his Client and therefore has need of a faculty to wrest the sense of words from their true meaning and the faculty of Rhetorick to seduce the Jury and sometimes the Judge also and many other Arts which I neither have nor intend to study La. But let the Judge how good soever he thinks his Reasoning take heed that he depart not too much from the Letter of the Statute for it is not without danger Ph. He may without danger recede from the Letter if he do not from the meaning and sense of the Law which may be by a Learned Man such as Judges commonly are easily found out by the Preamble the time when it was made and the Incommodities for which it was made but I pray tell me to what end were Statute-Laws ordained seeing the Law of Reason ought to be applyed to every Controversie that can arise La. You are not ignorant of the force of an irregular Appetite to Riches to Power and to sensual Pleasures how it Masters the strongest Reason and is the root of Disobedience Slaughter Fraud Hypocrisie and all manner of evil habits and that the Laws of Man though they can punish the fruits of them which are evil Actions yet they cannot pluck up the roots that are in the Heart How can a Man be Indicted of Avarice Envy Hypocrisie or other vitious Habit till it be declared by some Action which a Witness may take notice of the root remaining new fruit will come forth till you be weary of punishing and at last destroy all Power that shall oppose it Ph. What hope then is there of a constant Peace in any Nation or between one Nation and another La. You are not to expect such a Peace between two Nations because there is no Common Power in this World to punish their Injustice mutual fear may keep them quiet for a time but upon every visible advantage they will invade one another and the most visible advantage is then when the one Nation is obedient to their King and the other not but Peace at home may then be expected durable when the common people shall be made to see the benefit they shall receive by their Obedience and Adhaesion to their own Soveraign and the harm they must suffer by taking part with them who by promises of Reformation or change of Government deceive them And this is properly to be done by Divines and from Arguments not only from Reason but also from the Holy Scripture Ph. This that you say is true but not very much to that I aim at by your Conversation which is to inform my self concerning the Laws of England therefore I ask you again what is the end of Statute-Laws Of Soveraign Power La. I say then that the scope of all Humane Law is Peace and Justice in every Nation amongst themselves and defence against Forraign Enemies Ph. But what is Justice La. Justice is giving to every Man his own Ph. The Definition is good and yet 't is Aristotles what is the Definition agreed upon as a Principle in the Science of the Common Law La. The same with that of Aristotle Ph. See you Lawyers how much you are beholding to a Philosopher and 't is but reason for the more General and Noble Science and Law of all the World is true Philosophy of which the Common Law of England is a very little part La. 'T is so if you mean by Philosophy nothing but the Study of Reason as I think you do Ph. When you say that Justice gives to every Man his own what mean you by his own How can that be given me which is my own already or if it be not my own how can Justice make it mine La. Without Law every thing is in such sort every Mans as he may take possess and enjoy without wrong to any Man every thing Lands Beasts Fruits and even the bodies of other Men if his Reason tell him he cannot otherwise live securely for the dictates of Reason are
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
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
the sustaining of his Soveraign power is to destroy the Propriety he pretends to The next thing I will ask you is how you distinguish between Law and Right or Lex and Jus. La. Sir Ed. Coke in divers places makes Lex and Jus to be the same and so Lex Communis and Jus Communis to be all one nor do I find that he does in any places distinguish them Ph. Then will I distinguish them and make you judge whether my distinction be not necessary to be known by every Author of the Common Law for Law obligeth me to do or forbear the doing of something and therefore it lies upon me an Obligation but my Right is a Liberty left me by the Law to do any thing which the Law forbids me not and to leave undone any thing which the Law commands me not Did Sir Ed. Coke see no difference between being bound and being free La. I know not what he was but he has not mention'd it though a man may dispense with his own Liberty that cannot do so with the Law Ph. But what are you better for your Right if a rebellious Company at home or an Enemy from abroad take away the Goods or dispossess you of the Lands you have a right to Can you be defended or repair'd but by the strength and authority of the King What reason therefore can be given by a man that endeavours to preserve his Propriety why he should deny or malignly contribute to the Strength that should defend him or repair him Let us see now what your Books say to this point and other points of the Right of Soveraignty Bracton the most authentick Author of the Common Law fol. 55. saith thus Ipse Dominus Rex habet omnia Jura in manu suâ est Dei Vicarius habet ea quae sunt Pacis habet etiam coercionem ut Delinquentes puniat habet in potestate suâ Leges nihil enim prodest Jura condere nisi sit qui Jura tueatur That is to say our Lord the King hath all Right in his own Hands is Gods Vicar he has all that concerns the Peace he has the power to punish Delinquents all the Laws are in his power To make Laws is to no purpose unless there be some-body to make them obeyed If Bracton's Law be Reason as I and you think it is what temporal power is there which the King hath not Seeing that at this day all the power Spiritual which Bracton allows the Pope is restored to the Crown what is there that the King cannot do excepting sin against the Law of God The same Bracton Lib. 21. c. 8. saith thus Si autem a Rege petitur cum Breve non curret contra ipsum locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ad poenam quod Dominum expectet Vltorem nemo quidem de factis ejus praesumat disputare multo fortius contra factum ejus venire That is to say if any thing be demanded of the King seeing a Writ lyeth not against him he is put to his Petition praying him to Correct and Amend his own Fact which if he will not do it is a sufficient Penalty for him that he is to expect a punishment from the Lord No Man may presume to dispute of what he does much less to resist him You see by this that this Doctrine concerning the Rights of Soveraignty so much Cryed down by the long Parliament is the Antient Common-Law and that the only Bridle of the Kings of England ought to be the fear of God And again Bracton c. 24. of the second Book sayes That the Rights of the Crown cannot be granted away Ea vero quae Jurisdictionis Pacis ea quae sunt Justitiae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona separari possunt nec a privata persona possideri That is to say those things which belong to Jurisdiction and Peace and those things that are annexed to Justice and Peace appertain to none but to the Crown and Dignity of the King nor can be separated from the Crown nor be possest by a private Person Again you 'l find in Fleta a Law-Book written in the time of Edw. 2. That Liberties though granted by the King if they tend to the hinderance of Justice or subversion of the Regal Power were not to be used nor allowed For in that Book c. 20. concerning Articles of the Crown which the Justices Itinerant are to enquire of the 54th Article is this you shall inquire De Libertatibus concessis quae impediunt Communem Jâ—stitiam Regiam Potestatem subvertunt Now what is a greater hindrance to Common Justice or a greater subversion of the Regal Power than a Liberty in Subjects to hinder the King from raising Money necessary to suppress or prevent Rebellions which doth destroy Justice and subvert the power of the Soveraignty Moreover when a Charter is granted by a King in these words Dedita coram pro me Haeredibus meis The grantor by the Common-Law as Sir Edw. Coke sayes in his Commentaries on Littleton is to warrant his Gift and I think it Reason especially if the Gift be upon Consideration of a price Paid Suppose a Forraign State should say claim to this Kingdom 't is no Matter as to the Question I am putting whether the Claim be unjust how would you have the King to warrant to every Free-holder in England the Lands they hold of him by such a Charter If he cannot Levy Money their Estates are lost and so is the Kings Estate and if the Kings Estate be gone how can he repair the Value due upon the Warranty I know that the Kings Charters are not so meerly Grants as that they are not also Laws but they are such Laws as speak not to all the Kings Subjects in general but only to his Officers implicitly forbidding them to Judge or Execute any thing contrary to the said Grants There be many Men that are able Judges of what is right Reason and what not when any of these shall know that a Man has no Superiour nor Peer in the Kingdom he will hardly be perswaded he can be bound by any Law of the Kingdom or that he who is Subject to none but God can make a Law upon himself which he cannot also as easily abrogate as he made it The main Argument and that which so much taketh with the throng of People proceedeth from a needless fear put into their minds by such Men as mean to make use of their Hands to their own ends for if say they the King may notwithstanding the Law do what he please and nothing to restrain him but the fear of punishment in the World to come then in case there come a King that fears no such punishment he may take away from us not only our Lands Goods and Liberties but our Lives
should have been Commended You see by this that many things are made Crimes and no Crimes which are not so in their own Nature but by Diversity of Law made upon Diversity of Opinion or of Interest by them which have Authority And yet those things whether good or evil will pass so with the Vulgar if they hear them often with odious terms recited for hainous Crimes in themselves as many of those Opinions which are in themselves Pious and Lawful were heretofore by the Popes Interest therein called Detestable Heresie Again some Controversies are of things done upon the Sea others of things done upon the Land There need by many Courts to the deciding of so many kinds of Controversies What order is there taken for their Distribution La. There be an extraordinary great number of Courts in England First there be the Kings Courts both for Law and Equity in matters Temporal which are the Chancery the Kings-Bench the Court of Common-Pleas and for the Kings Revenue the Court of the Exchequer and there be Subjects Courts by Priviledge as the Court in London and other priviledg'd places And there be other Courts of Subjects as the Courts of Landlords called the Court of Barons and the Courts of Sherifs Also the Spiritual Courts are the Kings Courts at this day though heretofore they were the Popes Courts And in the Kings Courts some have their Judicature by Office and some by Commission and some Authority to Hear and Determine and some only to Inquire and to Certifie into other Courts Now for the Distribution of what Pleas every Court may hold it is commonly held that all the Pleas of the Crown and of all Offences contrary to the Peace are to be holden in the Kings Bench or by Commissioners for Bracton saith Sciendum est quod si Actiones sunt Criminales in Curia Domini Regis debent determinari cum sit ibi poena Câ—rporalis infligenda hoc coram ipso Rege si tangat personam suam sicut Crimen Laesae Majestatis vel coram Justitiariis ad hoc specialiter assignatis That is to say That if the Plea be Criminal it ought to be determin'd in the Court of our Lord the King because there they have power to inflict Corporeal punishment and if the Crime be against his person as the Crime of Treason it ought to be determin'd before the King himself or if it be against a private person it ought to be determin'd by Justices Assigned that is to say before Commissioners It seems by this that heretofore Kings did hear and determine Pleas of Treason against themselves by their own Persons but it has been otherwise a long time and is now For it is now the Office of the Lord Steward of England in the Tryal of a Peer to hold that Plea by a Commission especially for the same In Causes concerning Meum and Tuum the King may sue either in the Kings-Bench or in the Court of Common Pleas as it appears by Fitzherbert in his Natura Brevium at the Writ of Escheat Ph. A King perhaps will not sit to determine of Causes of Treason against his Person lest he should seem to make himself Judge in his own Cause but that it shall be Judged by Judges of his own making can never be avoided which is also one as if he were Judge himself La. To the Kings-Bench also I think belongeth the Hearing and Determining of all manner of Breaches of the Peace whatsoever saving alwayes to the King that he may do the same when he pleaseth by Commissioners In the time of Henry the 3d and Edward the 1st when Bracton wrote the King did usually send down every seven years into the Country Commissioners called Justices Itinerant to Hear and Determine generally all Causes Temporal both Criminal and Civil whose places have been now a long time supplyed by the Justices of Assize with Commissions of the Peace of Oyer and Terminer and of Goal-delivery Ph. But why may the King only Sue in the Kings-Bench or Court of Common-Pleas which he will and no other Person may do the same La. There is no Statute to the contrary but it seemeth to be the Common-Law for Sir Edw. Coke 4 Inst. setteth down the Jurisdiction of the Kings-Bench which he says has First Jurisdiction in all Pleas of the Crown Secondly The Correcting of all manner of Errors of other Justices and Judges both of Judgments and Process except of the Court of Exchequer which he sayes is to this Court Proprium quarto modo Thirdly That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace or oppression of the Subjects or raising of Factions Controversies Debates or any other manner of Misgovernment Fourthly It may hold Plea by Writ out of the Chancery of all Trespasses done Vi Armis Fifthly It hath power to hold Plea by Bill for Debt Detinu Covenant Promise and all other personal Actions but of the Jurisdiction of the Kings-Bench in Actions real he says nothing save that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas and that the Judgment be by a Writ of Error reversed in the Kings-Bench then the Kings-Bench may proceed upon the Writ Ph. But how is the Practice La. Real Actions are commonly decided as well in the Kings-Bench as in the Court of Common-Pleas Ph. When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench does he not set down what he makes him for La. Sir Edw Coke sets down the Letters Patents whereby of Antient time the Lord Chief-Justice was Constituted wherein is expressed to what end he hath his Office viz. Pro Conservatione nostra tranquilitatis Regni nostri ad Justitiam universis singulis de Regno nostro exhibendam Constituimus Dilectum Fidelem nostrum P. B. Justitiarium Angliae quamdiu nobis placuerit Capitalem c. That is to say for the preservation of our self and of the Peace of our Realm and for the doing of Justice to all and singular our Subjects we have Constituted our Beloved and Faithful P. B. during our pleasure Chief Justice of England c. Ph. Methinks 't is very plain by these Letters Patents that all Causes Temporal within the Kingdom except the Pleas that belong to the Exchequer should be decidable by this Lord-Chief-Justice For as for Causes Criminal and that concern the Peace it is granted him in these words for the Conservation of our self and peace of the Kingdom wherein are contained all Pleas Criminal and in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil And as to the Court of Common-Pleas it is manifest it may hold all manner of Civil-Pleas except those of the Exchequer by Magna Charta Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts but how is the Lord-Chief-Justice made now La. By these
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-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
it and breaks his Neck but by the same chance saveth his own Life Sir Edw. Coke it seems will have him Hanged for it as if he had fallen of prepensed Malice All that can be called Crime in this Business is but a simple Trespass to the dammage perhaps of sixpence or a shilling I confess the Trespass was an Offence against the Law but the falling was none nor was it by the Trespass but by the falling that the Man was slain and as he ought to be quit of the killing so he ought to make Restitution for the Trespass But I believe the Cause of Sir Edw. Coke's mistake was his not well understanding of Bracton whom he cites in the Margin For 1206 he saith thus Sed hic erit distinguendum utrum quis dederit operam rei licitae vel illicitae si illicitae ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere vel dum insequitur equum vel bovem aliquis ab equo vel a bove percussus fuerit hujusmodi hoc imputatur ei i. e. But here we are to distinguish whether a Man be upon a Lawful or Unlawful business if an unlawful as he that throws a stone into a place where Men use to pass or if he chase a Horse or an Ox and thereby the Man be stricken by the Horse or the Ox this shall be imputed to him And it is most reasonable For the doing of such an unlawful Act as is here meant is a sufficient Argument of a Felonious purpose or at least a hope to kill some body or other and he cared not whom which is worse than to design the death of a certain Adversary which nevertheless is Murder Also on the contrary though the business a Man is doing be Lawful and it chanceth sometimes that a Man be slain thereby yet may such killing be Felony For if a Car-man drive his Cart through Cheapside in a throng of People and thereby he kill a Man though he bare him no Malice yet because he saw there was very great danger it may reasonably be inferr'd that he meant to adventure the killing of some body or other though not of him that was kill'd La. He is a Felon also that killeth himself voluntarily and is called not only by Common Lawyers but also in divers Statute-Laws Felo de se. Ph. And 't is well so For names imposed by Statutes are equivalent to Definitions but I conceive not how any Man can bear Animum felleum or so much Malice towards himself as to hurt himself voluntarily much less to kill himself for naturally and necessarily the Intention of every Man aimeth at somewhat which is good to himself and tendeth to his preservation And therefore methinks if he kill himself it is to be presumed that he is not compos mentis but by some inward Torment or Apprehension of somewhat worse than Death Distracted La. Nay unless he be compos mentis he is not Felo de se as Sir Edw. Coke saith 4 Inst. p. 54. and therefore he cannot be Judged a Felo de se unless it be first proved he was compos mentis Ph. How can that be proved of a Man dead especially if it cannot be proved by any Witness that a little before his death he spake as other men used to do This is a hard place and before you take it for Common-Law it had need to be clear'd La. I 'le think on 't There 's a Statute of 3 Hen. 7. c. 14. which makes it Felony in any of the Kings Houshold-Servants under the degree of a Lord to Compass the Death of any of the Kings Privy-Council The words are these That from henceforth the Steward Treasurer and Controuler of the Kings House for that time being or one of them have full Authority and Power to inquire by 12 sad Men and discreet Persons of the Chequer-Roll of the King 's Honourable Houshold If any Servant admitted to his Servant Sworn and his name put into the Chequer-Roll whatsoever he be serving in any manner Office or Room reputed had or taken under the State of a Lord make any Confederacies Compassings Conspiracies or Imaginations with any Person to Destroy or Murder the King or any Lord of this Realm or any other Person sworn to the Kings Council Steward Treasurer or Controuler of the Kings House And if such Misdoers shall be found Guilty by Confession or otherwise that the said Offence shall be Judged Felony Ph. It appears by this Statute that not only the Compassing the Death as you say of a Privy-Councellor but also of any Lord of this Realm is Felony if it be done by Any of the Kings Houshold Servants that is not a Lord. La. No Sir Edw. Coke upon these words any Lord of this Realm or other Person Sworn of the Kings Council infers 4 Inst. p. 38. that is to be understood of such a Lord only as is a Privy-Councellor Ph. For barring of the Lords of Parliament from this Priviledge he strains this Statute a little farther in my Opinion than it reacheth of it self But how are such Felonies to be Tryed La. The Indictment is to be found before the Steward Treasurer and Controuler of the Kings House or one of them by 12 of the Kings Houshold Servants The Petit Jury for the Tryal must be 12 other of the Kings Servants and the Judges are again the Steward Treasurer and Controuler of the Kings House or 2 of them and yet I see that these Men are not usually great Students of the Law Ph. You may hereby be assur'd that either the King and Parliament were very much overseen in choosing such Officers perpetually for the time being to be Judges in a Tryal at the Common-Law or else that Sir Edw. Coke presumes too much to appropriate all the Judicature both in Law and Equity to the Common-Lawyers as if neither Lay-Persons Men of Honour nor any of the Lords Spiritual who are the most versed in the Examination of Equity and Cases of Conscience when they hear the Statutes Read and Pleaded were unfit to Judge of the intention and meaning of the same I know that neither such great Persons nor Bishops have ordinarily so much spare time from their ordinary Employment as to be so skilful as to Plead Causes at the Bar but certainly they are especially the Bishops the best able to Judge of matters of Reason that is to say by Sir Edw. Coke's Confession of matters except of Blood at the Common-Law La. Another sort of Felony though without Man-slaughter is Robbery and by Sir Edw. Coke 4 Inst. p. 68. defined thus Robbery by the Common-Law is a Felony committed by a violent Assault upon the Person of another by putting him in fear and taking away from him his Money or other Goods of any value whatsoever Ph. Robbery is not distinguished from Theft by any Statute Latrocinium comprehendeth them both and both are Felony and both
open before them be Burglary Robbery Theft or other Felony for this is to give a leading Judgment to the Jury who ought not to consider any private Lawyers Institutes but the Statutes themselves pleaded before them for directions La. Burning as he defines it p. 66. is a Felony at the Common-Law committed by any that maliciously and voluntarily in the night or day burneth the House of another And hereupon infers if a Man sets Fire to the House and it takes not that then it is not within the Statute Ph. If a Man should secretly and maliciously lay a quantity of Gun-Powder under another Mans House sufficient to Blow it up and set a Train of Powder in it and set Fire to the Train and some Accident hinder the Effect is not this Burning or what is it What Crime It is neither Treason nor Murder nor Burglary nor Robbery nor Theft nor no dammage being made any Trespass nor contrary to any Statute And yet seeing the Common-Law is the Law of Reason it is a sin and such a sin as a Man may be Accused of and Convicted and consequently a Crime committed of Malice prepensed shall he not then be Punished for the Attempt I grant you that a Judge has no Warrant from any Statute-Law Common-Law or Commission to appoint the Punishment but surely the King has power to Punish him on this side of Life or Member as he please and with the Assent of Parliament if not without to make the Crime for the future Capital La. I know not Besides these Crimes there is Conjuration Witch-craft Sorcery and Inchantment which are Capital by the Statute 1 of King James cap. 12. Ph. But I desire not to discourse of that Subject for though without doubt there is some great Wickedness signified by those Crimes yet I have ever found my self too dull to conceive the nature of them or how the Devil hath power to do many things which Witches have been Accused of Let us now come to Crimes not Capital La. Shall we pass over the Crime of Heresie which Sir Edw. Coke ranketh before Murder but the consideration of it will be somewhat long Ph. Let us defer it till the Afternoon Of Heresie La. COncerning Heresie Sir Edw. Coke 4 Inst. p. 39. says that 5 things fall into consideration 1. Who be the Judges of Heresie 2. What shall be Judged Heresie 3. What is the Judgment upon a Man Convicted of Heresie 4. What the Law alloweth him to save his Life 5. What he shall forfeit by Judgment against him Ph. The principal thing to be considered which is the Heresie it self he leaveth out viz. What it is in what Fact or Words it consisteth what Law it violateth Statute-Law or the Law of Reason The Cause why he omitteth it may perhaps be this that it was not only out of his Profession but also out of his other Learning Murder Robbery Theft c. Every Man knoweth to be evil and are Crimes defined by the Statute-Law so that any Man may avoid them if he will But who can be sure to avoid Heresie if he but dare to give an Account of his Faith unless he know beforehand what it is La. In the Preamble of the Statute of the 2d Hen. 4. cap. 15. Heresie is laid down as a Preaching or Writing of such Doctrine as is contrary to the determination of Holy Church Ph. Then it is Heresie at this day to Preach or Write against Worshipping of Saints or the Infallibility of the Church of Rome or any other determination of the same Church For Holy-Church at that time was understood to be the Church of Rome and now with us the Holy-Church I understand to be the Church of England and the Opinions in that Statute are now and were then the true Christian Faith Also the same Statute of Hen. 4. Declareth by the same Preamble that the Church of England had never been troubled with Heresie La. But that Statute is Repeal'd Ph. Then also is that Declaration or Definition of Heresie repeal'd La. What say you is Heresie Ph. I say Heresie is a singularity of Doctrine or Opinion contrary to the Doctrine of another Man or Men and the word properly signifies the Doctrine of a Sect which Doctrine is taken upon Trust of some Man of Reputation for Wisdom that was the first Author of the same If you will understand the truth hereof you are to Read the Histories and other Writings of the Antient Greeks whose word it is which Writings are extant in these days and easie to be had Wherein you will find that in and a little before the time of Alexander the Great there lived in Greece many Excellent Wits that employed their time in search of the Truth in all manner of Sciences worthy of their Labour and which to their great Honour and Applause published their Writings some concerning Justice Laws and Government some concerning Good and Evil Manners some concerning the Causes of things Natural and of Events discernable by sense and some of all these Subjects And of the Authors of these the Principal were Pythagoras Plato Zeno Epicurus and Aristotle Men of deep and laborious Meditation and such as did not get their Bread by their Philosophy but were able to live of their own and were in Honour with Princes and other great Personages But these Men though above the rest in Wisdom yet their Doctrine in many points did disagree whereby it came to pass that such Men as studied their Writings inclined some to Pythagoras some to Plato some to Aristotle some to Zeno and some to Epicurus But Philosophy it self was then so much in Fashion as that every Rich Man endeavour'd to have his Children educated in the Doctrine of some or other of these Philosophers which were for their Wisdom so much renown'd Now those that followed Pythagoras were called Pythagoreans those that followed Plato Academicks those that followed Zeno Stoicks those that followed Epicurus Epicureans and those that followed Aristotle Peripateticks which are the names of Heresie in Greek which signifies no more but taking of an Opinion and the said Pythagoreans Academicks Stoicks Peripateticks c. were termed by the names of so many several Heresies All Men you know are subject to Error and the ways of Error very different and therefore 't is no wonder if these Wise and diligent searchers of the Truth did notwithstanding their Excellent parts differ in many points amongst themselves But this Laudable Custom of Great Wealthy Persons to have their Children at any price to learn Philosophy suggested to many idle and needy Fellows an easie and compendious way of Maintenance which was to Teach the Philosophy some of Plato some of Aristotle c. Whose Books to that end they Read over but without Capacity or much Endeavour to examine the Reasons of their Doctrines taking only the Conclusions as they lay and setting up with this they soon professed themselves Philosophers and got to be the School-Masters to the
Bishops and Right of Advowsans and Presentations belonged to himself and to the Nobility that were the founders of such Bishopricks Abbies and other Benefices And he enacted farther that if any Clerk which he or any of his Subjects should present should be disturbed by any such Provisor that such Provisor or Disturber should be attached by his Body and if Convicted lye in Prison till he were Ransomed at the Kings Will and had satisfied the Party griev'd renouced his Title and sound sureties not to sue for it any farther and that if they could not be found then Exigents should go forth to Outlawrie and the Profits of the Benefice in the mean time be taken into the Kings hands And the same Statute is confirmed in the 27th year of King Ed. the 3d which Statute alloweth to these Provisors six weeks Day to appear but if they appear before they be outlaw'd they shall be received to make Answer but if they render not themselves they shall forfeit all their Lands Goods and Chattels besides that they stand outlaw'd The same Law is confirmed again by 16 Rich. 2d cap. 5. in which is added because these Provisors obtained sometimes from the Pope that such English Bishops as according to the Law were instituted and inducted by the Kings Presentees should be excommunicated that for this also both they and the Receivers and Publishers of such Papal Process and the Procurers should have the same Punishment Ph. Let me see the Statute it self of 27 Ed. 3. La. It lies there before you set down verbatim by Sir Edw. Coke himself both in English and French Ph. 'T is well we are now to consider what it means and whether it be well or ill interpreted by Sir Edw. Coke And first it appeareth by the Preamble which Sir Edw. Coke acknowledgeth to be the best Interpreter of the Statute that this Statute was made against the Incroachments only of the Church of Rome upon the Right of the King and other Patrons to collate Bishopricks and other Benefices within the Realm of England and against the power of the Courts Spiritual to hold Plea of Controversies determinable in any of the Courts of the King or to reverse any Judgment there given as being things that tend to the Disherison of the King and Destruction of the Common-Law of the Realm always used Put the case now that a Man had procur'd the Pope to reverse a Decree in Chancery had he been within the danger of Premunire La. Yes certainly or if the Judgment had been given in the Court of the Lord Admiral or in any other Kings Court whatsoever either of Law or Equity for Courts of Equity are most properly Courts of the Common-Law of England because Equity and Common-Law as Sir Ed. Coke says are all one Ph. Then the word Common-Law is not in this Preamble restrained to such Courts only where the Tryal is by Juries but comprehends all the Kings Temporal Courts if not also the Courts of those Subjects that are Lords of great Mannors La. 'T is very likely yet I think it will not by every Man be granted Ph. The Statute also says That they who draw Men out of the Realm in Plea whereof the Cognizance pertaineth to the Kings Court or of things whereof Judgment is given in the Kings Court are within the Cases of Premunire But what if one Man draw another to Lambeth in Plea whereof Judgment is already given at Westminster Is he by this Clause involv'd in a Premunire La. Yes For though it be not out of the Realm yet it is within the meaning of the Statute because the Popes Court not the Kings Court was then perhaps at Lambeth Ph. But in Sir Edw. Coke's time the Kings Court was at Lambeth and not the Popes La. You know well enough that the Spiritual-Court has no power to hold Pleas of Common-Law Ph. I do so but I know not for what cause any simple Man that mistakes his right Court should be out of the Kings Protection lose his Inheritance and all his Goods Personal and Real and if taken be kept in Prison all his Life This Statute cannot be by Sir Edw. Cokes Torture made to say it Besides such Men are ignorant in what Courts they are to seek their Remedy And it is a Custom confirmed by perpetual usage that such ignorant Men should be guided by their Council at Law It is manifest therefore that the makers of the Statute intended not to prohibit Men from their suing for their Right neither in the Chancery nor in the Admiralty nor in any other Court except the Ecclesiastical Courts which had their Jurisdiction from the Church of Rome Again where the Statute says which do sue in any other Court or defeat a Judgment in the Kings Court what is the meaning of another Court Another Court than what Is it here meant the Kings-Bench or Court of Common-Pleas Does a Premunire lye for every Man that sues in Chancery for that which might be remedied in the Court of Common-Pleas Or can a Premunire lye by this Statute against the Lord Chancellor The Statute lays it only on the Party that sueth not upon the Judge which holdeth the Plea Nor could it be laid neither by this Statute nor by the Statute of 16 Rich. 2. upon the Judges which were then punishable only by the Popes Authority Seeing then the Party Suing has a just excuse upon the Council of his Lawyer and the Temporal Judge and the Lawyer both are out of the Statute the punishment of the Premunire can light upon no body La. But Sir Edw. Coke in this same Chapter bringeth two Precedents to prove that though the Spiritual-Courts in England be now the Kings Courts yet whosoever sueth in them for any thing tryable by the Common-Law shall fall into a Premunire One is that whereas in the 22d of Hen. 8. all the Clergy of England in a Convocation by publick Instrument acknowledged the King to be Supream Head of the Church of England yet after this viz. 24 of H. 8. this Statute was in force Ph. Why not A Convocation of the Clergy could not alter the Right of Supremacie their Courts were still the Popes Courts The other Precedent in the 25th of Hen. 8. of the Bishop of Norwich may have the same Answer for the King was not declared Head of the Church by Act of Parliament till the 26th year of his Reign If he had not mistrusted his own Law he would not have laid hold on so weak a Proof as these Precedents And as to the Sentence of Premunire upon the Bishop of Norwich neither doth this Statute nor that other of R. 2. warrant it he was sentenced for threatning to excommunicate a Man which had sued another before the Mayor But this Statute forbids not that but forbids the bringing in or publishing of Excommunications or other Process from Rome or any other Place Before the 26 Hen. 8. there is no Question but that for a
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
pardoned the Murder still remains Murder But what is pardon La. Pardon as Sir Edw. Coke says 3 Inst. p. 233 is deriv'd of per and dono and signifies throughly to remit Ph. If the King remit the Murder and not pardon the Man that did it what does the remission serve for La. You know well enough that when we say a Murder or any thing else is pardoned all English-men understand thereby that the punishment due to the offence is the thing remitted Ph. But for our understanding of one another you ought to have said so at first I understand now that to pardon Murder or Felony is throughly to save the offender from all the punishment due unto him by the Law for his offence La. Not so for Sir Edw. Coke in the same Chapter p. 238. saith thus A Man commits Felony and is attainted thereof or is abjur'd the King pardoneth the Felony without any mention of the attainder or abjuration the pardon is void Ph. What is it to be attainted La. To be attainted is that his Blood be held in Law as stained and corrupted so that no inheritance can descend from him to his Children or to any that make claim by him Ph. Is this attaint a part of the Crime or of the Punishment La. It cannot be a part of the Crime because it is none of his own Act 't is therefore a part of the Punishment viz. a disherison of the offender Ph. If it be a part of the Punishment due and yet not pardoned together with the rest then a pardon is not a through remitting of the Punishment as Sir Edw. Coke says it is And what is Abjuration La. When a Clerk heretofore was convicted of Felony he might have saved his life by abjuring the Realm that is by departing the Realm within a certain time appointed and taking an Oath never to return But at this day all Statutes for Abjuration are repeal'd Ph. That also is a Punishment and by a pardon of the Felony pardoned unless a Statute be in force to the contrary There is also somewhat in the Statute of 13 Rich. 2. c. 1. concerning the allowance of Charters of pardons which I understand not well The words are these No Charter of pardon for henceforth shall be allowed before our Justices for Murder or for the death of a Man by awayt or malice prepens'd Treason or Rape of a Woman unless the same be specified in the same Charter for I think it follows thence that if the King say in his Charter that he pardoneth the Murder then he breaketh not the Statute because he specifies the offence or if he saith he pardoneth the killing by awayt or of malice prepensed he breaketh not the Statute he specifies the offence Also if he say so much as that the Judge cannot doubt of the Kings meaning to pardon him I think the Judge ought to allow it because the Statute saveth the Kings liberty and regality in that point that is to say the power to pardon him such as are these words notwithstanding any Statute to the contrary are sufficient to cause the Charter to be allowed For these words make it manifest that the Charter was not granted upon surprise but to maintain and claim the Kings liberty and power to shew mercy when he seeth cause The like meaning have these words Perdonavimus omnimodam interfectionem that is to say we have pardoned the killing in what manner soever it was done But here we must remember that the King cannot pardon without sin any dammage thereby done to another Man unless he causes satisfaction to be made as far as possibly the offender can but is not bound to satisfie Mens thirst of revenge for all revenge ought to proceed from God and under God from the King Now besides in Charters how are these offences specified La. They are specified by their names as Treason Petit Treason Murder Rape Felony and the like Ph. Petit Treason is Felony Murder is Felony so is Rape Robbery and Theft and as Sir Edw. Coke says Petit Larceny is Felony now if in a Parliament-pardon or in a Coronation-pardon all Felonies be pardoned whether is Petit Larceny pardoned or not La. Yes certainly it is pardoned Ph. And yet you see it is not specified and yet it is a Crime that hath less in it of the nature of Felony than there is in Robbery Do not therefore Rape Robbery Theft pass under the pardon of all Felonies La. I think they are all pardoned by the words of the Statute but those that are by the same Statute excepted so that specification is needful only in Charters of pardon but in general pardons not so For the Statute 13 Rich. 2. cap. 1. forbids not the allowance of Parliament-pardons or Coronation-pardons and therefore the offences pardoned need not be specified but may pass under the general word of all Felonies Nor is it likely that the members of the Parliament who drew up their own pardons did not mean to make them as comprehensive as they could And yet Sir Edw. Coke 2 Inst. Sect. 745. at the word Felony seemeth to be of another mind for Piracy is one species of Felony and yet when certain English-men had committed Piracy in the last year of Queen Elizabeth and came home into England in the beginning of the Reign of King James trusting to his Coronation-pardon of all Felonies they were indicted Sir Edw. Coke was then Attorney General of the Piracy before Commissioners according to the Statute of 28 H. 8. and being found Guilty were hang'd The reason he alledgeth for it is that it ought to have been specified by the name of Piracy in the pardon and therefore the pardon was not to be allowed Ph. Why ought it to have been specified more than any other Felony He should therefore have drawn his argument from the Law of reason La. Also he does that for the Tryal he says was by the Common-Law and before Commissioners not in the Court of the Lord Admiral by the Civil-Law therefore he says it was an offence whereof the Common-Law could not take notice because it could not be Tryed by twelve Men. Ph. If the Common-Law could not or ought not to take notice of such offences how could the offenders be Tryed by twelve Men and found Guilty and hang'd as they were If the Common-Law take no notice of Piracy what other offence was it for which they were hang'd Is Piracy two Felonies for one of which a Man shall be hang'd by the Civil-Law and for the other by the Common-Law Truly I never read weaker reasoning in any Author of the Law of England than in Sir Edw. Coke's Institutes how well soever he could plead La. Though I have heard him much reprehended by others as well as by you yet there be many excellent things both for subtility and for truth in these his Institutes Ph. No better things than other Lawyers have that write of the Law as of a Science His
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