Selected quad for the lemma: war_n
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A43971
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The art of rhetoric, with A discourse of the laws of England by Thomas Hobbes of Malmesbury.; Art of rhetoric
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Hobbes, Thomas, 1588-1679.
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1681
(1681)
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Wing H2212; ESTC R7393
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151,823
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382
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Council the Judges La. The Council Inform the Judges Ph. Why may they not as well Inform the Chancellor Unless you will say that a Bishop understands not as well as a Lawyer what is sense when he hears it Read in English No no both the one and the other are able enough but to be able enough is not enough when not the difficulty of the Case only but also the Passion of the Judge is to be Conquer'd I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written or others contained in divers Statutes will come to the Chancery or any for him and thereof make his Complaint he shall presently there have Remedy by force of the said Articles and Statutes without elsewhere pursuing to have Remedy By the words of this Statute it is very apparent in my opinion that the Chancery may hold Plea upon the Complaint of the Party grieved in any Case Tryable at the Common-Law because the party shall have present Remedy in that Court by force of this Act without pursuing for Remedy elsewhere La. Yes but Sir Edw. Coke Answers this Objection 4 Inst. p. 82. in this manner These words says he He shall have Remedy signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law Ph. Very like Sir Edw. Coke thought as soon as the Party had his Writ he had his Remedy though he kept the Writ in his Pocket without pursuing his Complaint elsewhere or else he thought that in the Common-Bench was not elsewhere than in the Chancery La. Then there is the Court of Ph. Let us stop here for this which you have said satisfies me that seek no more than to distinguish between Justice and Equity and from it I Conclude that Justice fulfils the Law and Equity Interprets the Law and amends the Judgments given upon the same Law Wherein I depart not much from the Definition of Equity cited in Sir Edw. Coke 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth and Amendeth the Law Written though I Construe it a little otherwise than he would have done for no one can mend a Law but he that can make it and therefore I say not it amends the Law but the Judgments only when they are Erroneous And now let us Consider of Crimes in particular the Pleas whereof are commonly called the Pleas of the Crown and of the punishments belonging to them and first of the Highest Crime of all which is High Treason Tell me what is High Treason Of Crimes Capital La. THe first Statute that declareth what is High Treason is the Statute of the 25 Edw. 3. in these words Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not the King at the Request of the Lords and of the Commons hath made Declaration in the manner as hereafter follows That is to say when a Man doth Compass or Imagine the Death of our Lord the King of our Lady the Queen or of their Eldest Son and Heir or if a Man doth violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir or if a Man do Levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted by open Deed by People of their Condition And if a Man Counterfeit the Kings Great or Privy-Seal or his Money And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandize and make payment in deceit of our said Lord the King and of his People And if a Man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assises and all other Justices Assigned to Hear and Determine being in their Places and doing their Offices And is to be understood in the Cases above rehearsed that That ought to be adjudged Treason which extends to our Royal Lord the King and his Royal Majesty and of such Treason the Forfeiture of the Escheats pertains to our Lord the King as well the Lands and Tenements holden of others as himself And moreover there is another manner of Treason that is to say when a Servant Slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience and of such Treason the Escheats ought to pertain to every Lord of his own Fee And because many other like Cases of Treason may happen in time to come which a Man cannot think nor declare at this present time it is accorded that if any Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Ph. I desir'd to understand what Treason is wherein no Enumeration of Facts can give me satisfaction Treason is a Crime of it self Malum in se and therefore a Crime at the Common-Law and High Treason the Highest Crime at the Common-Law that can be And therefore not the Statute only but Reason without a Statute makes it a Crime And this appears by the Preamble where it is intimated that all Men though of divers Opinions did Condemn it by the name of Treason though they knew not what Treason meant but were forced to request the King to determine it That which I desire to know is how Treason might have been defined without the Statute by a Man that has no other faculty to make a Definition of it than by meer Natural Reason La. When none of the Lawyers have done it you are not to expect that I should undertake it on such a sudden Ph. You know that Salus Populi is Suprema Lex that is to say the safety of the People is the highest Law and that the safety of the People of a Kingdom consisteth in the safety of the King and of the strength necessary to defend his People both against Forraign Enemies and Rebellious Subjects And from this I infer that to Compass that is to design the Death of the then present King was High Treason before the making of this Statute as being a Designing of a Civil War and the Destruction of the People 2. That the Design to Kill the Kings Wife or to violate her Chastity as also to violate the Chastity of the Kings Heir apparent or of his Eldest Daughter unmarryed as tending to the Destruction of the certainty of
the Kings Issue and by Consequence by raising of Contentions about the Crown and Destruction of the People in Succeeding time by Civil War was therefore High Treason before this Statute 3. That to Levy war against the King within the Realm and Aiding the Kings Enemies either within or without the Realm are tending to the Kings Destruction or Disherison and was High Treason before this Statute by the Common-Law 4. That Counterfeiting the principal Seals of the Kingdom by which the King Governeth his People tendeth to the Confusion of Government and Consequently to the Destruction of the People and was therefore Treason before the Statute 5. If a Souldier design the Killing of his General or other Officer in time of Battel or a Captain Hover doubtfully with his Troops with intention to gain the Favour of him that shall chance to get the Victory it tendeth to the Destruction both of King and People whether the King be present or absent and was High Treason before the Statute 6. If any Man had Imprisoned the Kings Person he had made him incapable of Defending his People and was therefore High Treason before the Statute 7. If any Man had with design to raise Rebellion against the King Written or by words advisedly uttered denyed the King Regnant to be their Lawful King he that wrought Preached or spoke such words living then under the Protection of the Kings Laws it had been High Treason before the Statute for the Reasons aforesaid And perhaps there may be some other Cases upon this Statute which I cannot presently think upon but the Killing of a Justice or other Officer as is determin'd by the Statute is not otherwise High Treason but by the Statute And to distinguish that which is Treason by the Common-Law from all other Inferior Crimes we are to Consider that if such High Treason should take effect it would destroy all Laws at once and being done by a Subject 't is a return to Hostility by Treachery and consequently such as are Traytors may by the Law of Reason be dealt withal as Ignoble and Treacherous Enemies but the greatest of other Crimes for the most part are breaches of one only or at least of very few Laws La. Whether this you say be true or false the Law is now unquestionable by a Statute made in 1 and 2 of Queen Mary whereby there is nothing to be esteemed Treason besides those few Offences specially mentioned in the Act of 25 Ed. 3. Ph. Amongst these great Crimes the greatest is that which is Committed by one that has been trusted and loved by him whose Death he so designeth For a Man cannot well take heed of those whom he thinks he hath obliged whereas an open Enemy gives a Man warning before he Acteth And this it is for which the Statute hath declared that it is another kind of Treason when a Servant killeth his Master or Mistress or a Wife killeth her Husband or a Clerk killeth his Prelate and I should think it petty Treason also though it be not within the words of the Statute when a Tenant in Fee that holdeth by Homage and Fealty shall kill the Lord of his Fee for Fealty is an Oath of Allegiance to the Lord of the Fee saving he may not keep his Oath in any thing Sworn to if it be against the King For Homage as it is expressed in a Statute of 17 Edw. 2. is the greatest submission that is possible to be made to one Man by another for the Tenant shall hold his Hands together between the Hands of his Landlord and shall say thus I become your Man from this day forth for Life for Member and for Worldly Honour and shall owe that my Faith for the Lands that I shall hold of you saving the Faith that I owe unto our Soveraign Lord the King and to many other Lords Which Homage if made to the King is Equivalent to a promise of simple obedience and if made to another Lord there is nothing excepted but the Allegiance to the King and that which is called Fealty is but the same Confirmed by an Oath La. But Sir Edw. Coke 4 Inst. p. 11. denies that a Traytor is in Legal understanding the Kings Enemy for Enemies saith he be those that be out of the Allegiance of the King and his Reason is because if a Subject joyn with a Forraign Enemy and come into England with him and be taken Prisoner here he shall not be Ransomed or proceeded with as an Enemy shall but he shall be taken as a Traytor to the King Whereas an Enemy coming in open Hostility and taken shall either be Executed by Martial-Law or Ransomed for he cannot be Indicted of Treason for that he never was in the Protection and Ligeance of the King and the Indictment of the Treason saith Contra Ligeantiam suam debitam Ph. This is not an Argument worthy of the meanest Lawyer Did Sir Edw. Coke think it is possible for a King Lawfully to kill a Man by what Death soever without an Indictment when it is manifestly proved he was his open Enemy Indictment is a form of Accusation peculiar to England by the Command of some King of England and retained still and therefore a Law to this Country of England but if it were not Lawful to put a Man to Death otherwise than by an Indictment no Enemy could be put to Death at all in other Nations because they proceed not as we do by Indictment Again when an open Enemy is taken and put to Death by Judgment of Martial-Law it is not the Law of the General or Council of War that an Enemy shall be thus proceeded with but the Law of the King contained in their Commissions such as from time to time the Kings have thought fit in whose Will it always resteth whether an open Enemy when he is taken shall be put to Death or no and by what Death and whether he shall be Ransomed or no and at what price Then for the Nature of Treason by Rebellion is it not a return to Hostility What else does Rebellion signifie William the Conqueror Subdued this Kingdom some he Killed some upon promise of future obedience he took to Mercy and they became his Subjects and swore Allegiance to him if therefore they renew the War against him are they not again open Enemies or if any of them lurking under his Laws seek occasion thereby to kill him secretly and come to be known may he not be proceeded against as an Enemy who though he had not Committed what he Design'd yet had certainly a Hostile Design Did not the long Parliament declare all those for Enemies to the State that opposed their Proceedings against the late King But Sir Edw. Coke does seldom well distinguish when there are two divers Names for one and the same thing though one contain the other he makes them always different as if it could not be that one and the same Man should be both an Enemy