A DIALOGUE BETWEEN A PHILOSOPHER & A STUDENT OF THE COMMON LAWS OF ENGLAND. (continued 2)

L. As for this reasoning of yours, I think it well 58enough. But there ought to be had also a reverend respect to customs not unreasonable; and therefore, I think, Sir Edward Coke says not amiss, that in such cases where the Chancellor will proceed by the rule of the common-law, he ought to deliver the record in the King’s Bench; and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by statutes.

P. What are the statutes by which his jurisdiction is limited? I know that by the 27 Eliz. c. 8, he cannot reverse a judgment given in the King’s Bench for debt, detinue, &c.; nor before the statute could he ever, by virtue of his office, reverse a judgment in pleas of the Crown, given by the King’s Bench, that hath the cognizance of such pleas. Nor need he; for the judges themselves, when they think there is need to relieve a man oppressed by ill witnesses, or power of great men prevailing on the jury, or by error of the jury, though it be in case of felony, may stay the execution and inform the King, who will in equity relieve him. As to the regard we ought to have to custom, we will consider of it afterwards.

L. First, in a Parliament holden the 13th of Richard II, the Commons petitioned the King, that neither the Chancellor, nor other Chancellor, do make any order against the common-law, nor that any judgment be given without due process of law.

P. 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 59else 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 answered to this petition.

L. The King’s answer was, the usages heretofore shall stand, so as the King’s royalty be saved.

P. This is flatly against Sir Edward Coke, concerning the Chancery.

L. In another Parliament, 17 Rich. II, it is enacted, at the petition of the Commons, that forasmuch as people were compelled to come before the King’s Council, or in Chancery, by writs grounded upon untrue suggestions, the Chancellor for the time being, presently after such suggestions be duly found and proved untrue, shall have power to ordain and award damages according to his discretion, to him which is so travelled unduly as is aforesaid.

P. 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 award damages when the suggestions are untrue, so he may also proceed by process to the determining of the cause, whether it be real or personal, so it be not criminal.

L. Also the Commons petitioned in a Parliament of 2 Hen. IV, (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.

P. What answer was given to this petition by the King?

60L. That such writs should not be granted without necessity.

P. 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 Edward Coke (1 Inst. sec. xxi.), 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 allege none but this, that there was a necessitynecessity for 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.

L. But Sir Edward Coke says, that seeing matters of fact by the common-law are triable by a jury of twelve men, this court should not draw the matter ad aliud examen, that is, to another kind of examination, viz. deposition of witnesses, which should be but evidence to a jury.

P. Is the deposition of witnesses any more or less, than evidence to the Lord Chancellor? It 61is 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 deceived, 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 subpœnas shall not be granted till surety be found to satisfy the party so grieved and vexed for his damages and expenses, if so be the matter may not be made good which is contained in the bill.

L. There is another statute of 31 Hen. VI. c. 2, wherein there is a proviso cited by Sir Edward 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, than after the course of the same law in the King’s Courts, having the determination of the same law.”

P. 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 seven years following no man should disobey any of the King’s writs under the Great Seal, or should refuse to appear upon proclamation before the King’s 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, 62but an extraordinary power given to the Chancery, and to the King’s Privy Council, to determine of those crimes, which were not before that time triable but only by the King’s Bench or special commission. For the Act was made expressly for the punishment of a great multitude of crimes committed by those who had acted under the said Cade’s authority; to which Act the proviso was added which is here mentioned, that the proceedings in those Courts of Chancery, and of the King’s Council, should be such as should be used in the courts, to which the said causes, before this Act was made, do belong: that is to say, such causes as were criminal, should be after the order of the King’s Bench; and such causes as were not criminal, but only against equity, should be tried after the manner of the Chancery, or in some cases according to the proceedings in the Exchequer. I wonder why Sir Edward Coke should cite a statute, as this is, above two hundred years before expired, 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 King’s 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 ancient 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 ascribe to custom, I deny that any custom of its own nature can amount to the authority of a law. For if the custom be unreasonable, 63you must, with all other lawyers, confess that it is no law, but ought to abolished; and if the custom be reasonable, it is not the custom, but the equity that makes it law. For what need is there to make reason law by any custom how long soever, when the law of reason is eternal? Besides, you cannot find it in any statute, though lex et consuetudo be often mentioned as things to be followed by the judges in their judgments, that consuetudines, that is to say, customs or usages, did imply any long continuance of former time; but that it signified such use and custom of proceeding, as was then immediately in being before the making of such statute. Nor shall you find in any statute the word common-law, which may not be there well interpreted for any of the laws of England temporal; for it is not the singularity of process used in any court that can distinguish it, so as to make it a different law from the law of the whole nation.

L. If all the courts were, as you think, courts of equity, would it not be incommodious to the commonwealth?

P. I think not; unless perhaps you may say, that seeing the judges, whether they have many or few causes to be heard before them, have but the same wages from the King, they may be too much inclined to put off the causes they use to hear, for the easing of themselves, to some other court, to the delay of justice, and damage of the parties suing.

L. You are very much deceived in that; for on the contrary, the contention between the courts for jurisdiction is, of who shall have most causes brought before them.

64P. I cry you mercy, I smelt not that.

L. Seeing also all judges ought to give their sentence according to equity, if it should chance that a written law should be against the law of reason, which is equity, I cannot imagine in that case how any judgment can be righteous.

P. It cannot be that a written law should be against reason; for nothing is more reasonable than that every man should obey the law which he hath himself assented to. But that is not always the law, which is signified by grammatical construction of the letter, but that which the legislature thereby intended should be in force; which intention, I confess, is a very hard matter many times to pick out of the words of the statute, and requires great ability of understanding, and greater meditations and consideration of such conjuncture of occasions and incommodities, as needed a new law for a remedy. For there is scarce anything so clearly written, that when the cause thereof is forgotten, may not be wrested by an ignorant grammarian, or a cavilling logician, to the injury, oppression, or perhaps destruction of an honest man. And for this reason the Judges deserve that honour and profit they enjoy. Since the determination of what particular causes every particular court should have cognizance, is a thing not yet sufficiently explained, and is in itself so difficult, as that the sages of the law themselves, (the reason Sir Edward Coke will leave to law itself), are not yet agreed upon it; how is it possible for a man who is no professed or no profound lawyer, to take notice in what court he may lawfully begin his suit, or give counsel in it to his client?

65L. I confess that no man can be bound to take notice of the jurisdiction of courts, till all the courts be agreed upon it amongst themselves; but what rule to give judgment by, a judge can have, so as never to contradict the law written, nor displease his legislator, I understand not.

P. I think he may avoid both, if he take care by his sentence that he neither punish an innocent man, nor deprive him of his damages due from one that maliciously sueth him without reasonable cause, which to the most of rational men and unbiassed, is not, in my opinion, very difficult. And though a judge should, as all men may do, err in his judgment, yet there is always such power in the laws of England, as may content the parties, either in the Chancery, or by commissioners of their own choosing, authorized by the King; for every man is bound to acquiesce in the sentence of the judges he chooseth.

L. In what cases can the true construction of the letter be contrary to the meaning of the lawmaker?

P. Very many, whereof Sir Edward Coke nameth three: fraud, accident, and breach of confidence. But there be many more; for there be a very great many reasonable exceptions almost to every general rule, which the makers of the rule could not foresee; and very many words in every statute, especially long ones, that are, as to grammar, of ambiguous signification, and yet to them that know well to what end the statute was made, perspicuous enough; and many connexions of doubtful reference, which by a grammarian may be cavilled at, though the intention of the lawmaker be never so perspicuous. And these are the difficulties which the 66judges ought to master, and can do it in respect of their ability for which they are chosen, as well as can be hoped for; and yet there are other men can do the same, or else the judges' places could not be from time to time supplied. The bishops commonly are the most able and rational men, and obliged by their profession to study equity, because it is the law of God; and are therefore capable of being judges in a court of equity. They are the men that teach the people what is sin; that is to say, they are the doctors in cases of conscience. What reason then can you show me, why it is unfit and hurtful to the commonwealth that a bishop should be a Chancellor; as they were most often before the time of Henry VIII, and since that time once in the reign of King James?

L. But Sir Edward says, that soon after that a Chancellor was made which was no professor of the law, he finds in the rolls of the Parliament a grievous complaint by the whole body of the realm, and a petition that the most wise and able men within the realm might be chosen Chancellors.

P. That petition was reasonable; but it does not say which are the abler men, the judges of the common-law, or the bishops.

L. That is not the great question as to the ability of a judge; both of one and the other, there are able men in their own way. But when a judge of equity has need, almost in every case, to consider as well the statute-law, as the law of reason, he cannot perform his office perfectly, unless he be also ready in the statutes.

P. I see no great need he has to be ready in the statutes. In the hearing of a cause, do the judges 67of the common-law inform the counsel at the bar what the statute is, or the counsel the judges?

L. The counsel inform the judges.

P. 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 conquered. I forgot to tell you of the statute of 36 Edw.III, c. 9, that if any person thinking 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 triable at the common-law; because the party shall have present remedy in that court, by force of this Act, without pursuing for remedy elsewhere.

L. Yes; but Sir Edward Coke (4 Inst. p. 82) answers this objection in this manner. These words, says he, he shall have remedy, signify no more but that he shall have presently there a remedial writ grounded upon those statutes, to give him remedy at the common-law.

P. Very like Sir Edward Coke thought, as soon as the party had his writ, he had his remedy, though he kept the writ in his pocket without pursuing 68his complaint elsewhere: or else he thought, that the Common-bench was not elsewhere than in the Chancery.

L. Then there is the Court of——

P. 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 Edward Coke (1 Inst. sec. xxi.); 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 it amends not 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.

L. The first statute that declareth what is high-treason, is the statute of the 25 Edw. III, 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 King’s companion, or the King’s eldest daughter 69unmarried, or the wife of the King’s eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s 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 King’s 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 King’s Justices of one Bench or the other, Justices in Eyre, or Justices of Assizes, 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 70any justices, the justices shall tarry without giving any judgment of the treason, till the cause be showed and declared before the King and his Parliament, whether it ought to be adjudged treason or other felony.”

P. I desired to understand what treason is, wherein no enumeration of facts can give me satisfaction. Treason is a crime of itself, 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 the definition of it, than by mere natural reason.

L. When none of the lawyers have done it, you are not to expect that I should undertake it on such a sudden.

L. Whether this you say be true or false, the law is now unquestionable, by a statute made in the 1st and 2nd years of Queen Mary, whereby there is nothing to be esteemed treason, besides those few offences specially mentioned in the act of 25 Edward III.

P. 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 73his oath in any thing sworn to, if it be against the King. For homage, as it is expressed in a statute of 17 Edw. II, 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 Sovereign 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.

L. But Sir Edward Coke, (4 Inst. p. 11), denies that a traitor is in legal understanding the King’s enemy. For enemies, saith he, be those that be out of the allegiance of the King. And his reason is, because, if a subject join with a foreign 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 traitor 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.

P. This is not an argument worthy of the meanest lawyer. Did Sir Edward Coke think it impossible for a King lawfully to kill a man, by what 74death 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 signify? 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 designed, 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 Edward Coke does seldom 75well 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 and a traitor. But now let us come to his comment upon this statute. The statute says (as it is printed in English) when a man doth compass, or imagine, the death of our Lord the King, &c. What is the meaning of the word compassing, or imagining?

L. On this place Sir Edward Coke says, that before the making of this act, voluntas reputabatur pro facto, the will was taken for the deed. And so saith Bracton; spectatur voluntas, et non exitus; et nihil interest utrum quis occidat, aut causam præbeat, that is to say, the cause of the killing. Now Sir Edward Coke says, this was the law before the statute; and that to be a cause of the killing, is to declare the same by some open deed tending to the execution of his intent, or which might be cause of death.

P. Is there any Englishman can understand, that to cause the death of a man, and to declare the same, is all one thing? And if this were so, and that such was the common-law before the statute, by what words in the statute is it taken away?

L. It is not taken away, but the manner how it must be proved is thus determined, that it must be proved by some open deed, as providing of weapons, powder, poison, assaying of armour, sending of letters, &c.

P. But what is the crime itself, which this statute maketh treason? For as I understand the words, to compass or imagine the King’s death, &c. the 76compassing (as it is in the English) is the only thing which is made high-treason. So that not only the killing, but the design, is made high-treason; or, as it is in the French record, fait compasser, that is to say, the causing of others to compass or design the King’s death is high-treason; and the words par overt fait, are not added as a specification of any treason, or other crime, but only of the proof that is required by the law. Seeing then the crime is the design and purpose to kill the King, or cause him to be killed, and lieth hidden in the breast of him that is accused; what other proof can there be had of it than words spoken or written? And therefore, if there be sufficient witness that he by words declared that he had such a design, there can be no question, but that he is comprehended within the statute. Sir Edward Coke doth not deny, but, that if he confess this design, either by word or writing, he is within the statute. As for that common saying, that bare words may make a heretic but not a traitor, which Sir Edward Coke on this occasion maketh use of, they are to little purpose; seeing that this statute maketh not the words high-treason, but the intention, whereof the words are but a testimony: and that common saying is false as it is generally pronounced. For there were divers statutes made afterwards, though now expired, which made bare words to be treason without any other deed; as, 1 Eliz. c. 6, and 13 Eliz. c. 1, if a man should publicly preach that the King were an usurper, or that the right of the crown belonged to any other than the King that reigned, there is no doubt but it were treason, not only within this statute of Edward III, but also within 77the statute of 1 Edw. VI, c. 12, which are both still in force.

L. Not only so; but if a subject should counsel any other man to kill the King, Queen, or heir-apparent to the Crown, it would at this day be adjudged high-treason; and yet it is no more than bare words. In the third year of King James, Henry Garnet, a Jesuit priest, to whom some of the gunpowder traitors had revealed their design by way of confession, gave them absolution without any caution taken for their desisting from their purpose, or other provision against the danger, and was therefore condemned and executed as a traitor, though such absolution was nothing else but bare words. Also I find in the reports of Sir John Davis, Attorney-General for Ireland, that in the time of King Henry VI, a man was condemned of treason for saying the King was a natural fool, and unfit to govern. But yet this clause in the statute of Edw. III, viz. that the compassing there mentioned ought to be proved by some overt act, was by the framers of the statute not without great wisdom and providence inserted; for as Sir Edward Coke very well observeth, when witnesses are examined concerning words only, they never, or very rarely, agree precisely about the words they swear to.

P. I deny not but that it was wisely enough done. But the question is not here of the treason, which is either fact or design, but of the proof, which when it is doubtful, is to be judged by a jury of twelve lawful men. Now whether think you is it a better proof of a man’s intention to kill, that he declare the same with his own mouth, so as it may be witnessed, or that he provide weapons, 78powder, poison, or assay arms? If he utter his design by words, the jury has no more to do than to consider the legality of the witnesses, the harmony of their testimonies, or whether the words were spoken advisedly. For they might have been uttered in a disputation, for exercise only; or when he that spake them, had not the use of reason, nor perhaps any design or wish at all, towards the execution of what he talked of. But how a jury, from providing or buying of armour, or buying of gunpowder, or from any other overt act, not treason in itself, can infer a design of murdering the King, unless there appear some words also signifying to what end he made such provision, I cannot easily conceive. Therefore, as the jury on the whole matter, words and deeds, shall ground their judgment concerning design or not design, so, in reason, they ought to give verdict. But to come to the treason of counterfeiting the great or privy-seal, seeing there are so many ways for a cheating fellow to make use of these seals, to the cozening of the King and his people; why are not all such abuses high-treason, as well as the making of a false seal?

L. So they are; for Sir Edward Coke produceth a record of one that was drawn and hanged for taking the great seal from an expired patent, and fastening it to a counterfeit commission to gather money. But he approveth not the judgment, because it is the judgment for petty treason: also, because the jury did not find him guilty of the offence laid in the indictment, which was, the counterfeiting of the great seal, but found the special matter, for which the offender was drawn and hanged.

79P. Seeing this crime of taking the great seal from one writing, and fastening it to another, was not found high-treason by the jury, nor could be found upon special matter to be the other kind of treason mentioned in the same statute; what ground had either the jury to find it treason, or the judge to pronounce sentence upon it?

L. I cannot tell. Sir Edward Coke seems to think it a false record; for hereupon he saith, by way of admonition to the reader, that hereby it appeareth how dangerous it is to report a case by the ear.

P. True; but he does not make it apparent that this case was untruly reported; but on the contrary, confesseth that he had perused the same record; and a man may, if it may be done without proof of the falsity, make the same objection to any record whatsoever. For my part, seeing this crime produced the same mischief that ariseth from counterfeiting, I think it reason to understand it as within the statute; and for the difference between the punishments, which are both of them capital, I think it is not worthy to be stood upon; seeing death, which is ultimum supplicium, is a satisfaction to the law, as Sir Edward Coke himself hath in another place affirmed. But let us now proceed to other crimes.

L. Appendant to this is another crime, called misprision of treason; which is the concealing of it by any man that knows it; and is called misprision from the French mespriser, which signifies to contemn or undervalue. For it is no small crime in any subject, so little to take to heart a known danger to the King’s person, and consequently to the whole kingdom, as not to discover not only 80what he knows, but also what he suspecteth of the same, that the truth therefore may be examined. But for such discovery, though the thing prove false, the discoverer shall not, as I think, be taken for a false accuser; if for what he directly affirms, he produce a reasonable proof, and some probability for his suspicion. For else the concealment will seem justifiable by the interest, which is to every man allowed, in the preservation of himself from pain and damage.

P. This I consent to.

L. All other crimes merely temporal, are comprehended under felony or trespass.

P. What is the meaning of the word felony? Does it signify anything that is in its own nature a crime, or that only which is made a crime by some statute? For I remember some statutes that make it felony to transport horses, and some other things, out of the kingdom; which transportation, before such statutes were made, and after the repealing of the same, was no greater crime than any other usual traffic of a merchant.

L. Sir Edward Coke derives the word felony from the Latin word fel, the gall of a living creature; and accordingly defines felony to be an act done animo felleo; that is to say, a bitter, a cruel act.

P. Etymologies are no definitions, and yet when they are true, they give much light towards the finding out of a definition. But this of Sir Edward Coke’s carries with it very little of probability; for there be many things made felony by the statute law, that proceed not from any bitterness of mind at all, and many that proceed from the contrary.

81L. This is matter for a critic, to be picked out of the knowledge of history and foreign languages, and you may perhaps know more of it than I do.

P. All that I, or I think any other, can say in this matter, will amount to no more than a reasonable conjecture, insufficient to sustain any point of controversy in law. The word is not to be found in any of the old Saxon laws, set forth by Mr. Lambard, nor in any statute printed before that of Magna Charta; there it is found. Now Magna Charta was made in the time of Henry III, grandchild to Henry II, Duke of Anjou, a Frenchman born, and bred in the heart of France, whose language might very well retain many words of his ancestors the German Franks, as ours doth of the German Saxons; as also many words of the language of the Gauls, as the Gauls did retain many words of the Greek colony planted at Marseilles. But certain it is, the French lawyers at this day use the word felon, just as our lawyers use the same; whereas the common people of France use the word filou in the same sense. But filou signifieth, not the man that hath committed such an act as they call felony, but the man that maketh it his trade to maintain himself by the breaking and contemning of all laws generally; and comprehendeth all those unruly people called cheaters, cutpurses, picklocks, catchcloaks, coiners of false money, forgers, thieves, robbers, murderers, and whosoever make use of iniquity on land or sea as a trade or living. The Greeks upon the coast of Asia, where Homer lived, were they that planted the colony of Marseilles. They had a word that signified the same with felon, which was 82φιλήτης, filetes; and this filetes of Homer signifies properly the same that a felon signifies with us. And therefore Homer makes Apollo to call Mercury φιλήτην, fileteen, and ἄρχον φιλήτων. I insist not upon the truth of this etymology, but it is certainly more rational than the animus felleus of Sir Edward Coke. And for the matter itself, it is manifest enough, that which we now call murder, robbery, theft, and other practices of felons, are the same that we call felony, and crimes in their own nature without the help of statute. Nor is it the manner of punishment, that distinguisheth the nature of one crime from another; but the mind of the offender and the mischief he intendeth, considered together with the circumstances of person, time, and place.

L. Of felonies, the greatest crime is murder.

P. And what is murder?

L. Murder is the killing of a man upon malice forethought, as by a weapon, or by poison, or any way, if it be done upon antecedent meditation; or thus, murder is the killing of a man in cold blood.

P. I think there is a good definition of murder set down by statute, 52 Henry III, c. 25, in these words: 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. And Sir Edward Coke interpreting this statute, 2 Inst. p. 148, saith, that the mischief before this statute was, that he that killed a man by misfortune, as by doing any act that was not against law, and yet against his intent the death of a man ensued, this was adjudged murder. But I find no proof of that he allegeth, nor find I any such law among the laws of the Saxons set forth 83by Mr. Lambard. For the word, it is, as Sir Edward Coke noteth, old Saxon, and amongst them it signified no more than a man slain in the field or other place, the author of his death not known. And according hereunto, Bracton, who lived in the time of Magna Charta, defineth it, fol. 134, thus: Murder is the secret killing of a man, when none besides the killer and his companions saw or knew it; so that it was not known who did it, nor fresh suit could be made after the doer. Therefore, every such killing was called murder, before it could be known whether it could be by felony or not; for a man may be found dead that kills himself, or was lawfully killed by another. This name of murder came to be the more horrid, when it was secretly done, for that it made every man to consider of their own danger, and him that saw the dead body, to boggle at it, as a horse will do at a dead horse. And to prevent the same, they had laws in force, to amerce the hundred where it was done, in a sum defined by law to be the price of his life. For in those days, the lives of all sorts of men were valued by money, and the value set down in their written laws. And therefore Sir Edward Coke was mistaken, in that he thought that killing a man by misfortune before the statute of Marlebridge, was adjudged murder. And those secret murders were abominated by the people, for that they were liable to so great a pecuniary punishment for suffering the malefactor to escape. But this grievance was by Canutus, when he reigned, soon eased. For he made a law, that the county in this case should not be charged, unless he were an Englishman that was so slain; but if he were a 84Frenchman, (under which name were comprehended all foreigners, and especially the Normans,) though the slayer escaped, the county was not to be amerced. And this law, though it were very hard and chargeable, when an Englishman was so slain, for his friend to prove he was an Englishman, and also unreasonable to deny the justice to a stranger, yet was it not repealed till the 14th Edw. III. By this you see that murder is distinguished from homicide by the statute laws, and not by any common-law without the statute; and that it is comprehended under the general name of felony.

L. And so also is petit treason: and I think so is high-treason also. For in the abovesaid statute in the 25th Edw. III, concerning treasons, there is this clause: And because that many other like cases of treason may happen in time to come, which a man cannot think or declare at the present time; it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any of the justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it be treason or other felony. Which thereby shews that the King and Parliament thought that treason was one of the sorts of felony.

P. And so think I.

L. But Sir Edward Coke denies it to be so at this day. For (1 Inst. sec. 745) at the word felony, he saith, that in ancient time this word felony was of so large an extent, as that it included high-treason; but afterwards it was resolved, that in the King’s pardon or charter, this word felony should 85extend only to common felonies; and at this day, under the word felony, by law is included petite treason, murder, homicide, burning of houses, burglary, robbery, rape, &c. chance medley, se defendendo, and petite larceny.

P. He says it was resolved: but by whom?

L. By the justices of assize in the time of Henry IV, as it seems in the margin.

P. Have justices of assize any power by their commission to alter the language of the land and the received sense of words? Or in the question in what case felony shall be said, is it referred to the judges to determine; as in the question in what case treason shall be said, it is referred by the statute of Edward III to the Parliament? I think not; and yet perhaps they may be obliged to disallow a pardon of treason, when mentioning all felonies it nameth not treason, nor specifies it by any description of the fact.

L. Another kind of homicide there is, simply called so, or by the name of manslaughter, and is not murder: and that is, when a man kills another man upon sudden quarrel, during the heat of blood.

P. If two meeting in the street chance to strive who shall go nearest to the wall, and thereupon fighting, one of them kills the other, I believe verily he that first drew his sword, did it of malice forethought, though not long forethought; but whether it be felony or no, it may be doubted. It is true, that the harm done is the same as if it had been done by felony; but the wickedness of the intention was nothing near so great. And supposing it had been done by felony, then it is manifest, by the statute of Marlebridge, that it was very murder. 86And when a man for a word or a trifle shall draw his sword and kill another man, can any man imagine that there was not some precedent malice?

L. It is very likely there was malice, more or less: and therefore the law hath ordained for it a punishment equal to that of murder, saving that the offender shall have the benefit of his clergy.

P. The benefit of clergy comes in upon another account, and importeth not any extenuation of the crime. For it is but a relic of the old usurped papal privilege, which is now by many statutes so pared off, as to spread but to few offences, and is become a legal kind of conveying mercy, not only to the clergy, but also to the laity.

L. The work of a judge, you see, is very difficult, and requires a man that hath a faculty of well distinguishing of dissimilitudes in such cases as common judgments think to be the same. A small circumstance may make a great alteration; wherefore a man that cannot well discern, ought not to take upon him the office of a judge.

P. You say very well; for if judges were to follow one another’s judgments in precedent cases, all the justice in the world would at length depend upon the sentence of a few learned, or unlearned, ignorant men, and have nothing at all to do with the study of reason.

L. A third kind of homicide is when a man kills another, either by misfortune, or in the necessary defence of himself, or of the King, or of his laws; for such killing is neither felony nor crime, saving, as Sir Edward Coke says (3 Inst. p. 56), that if the act that a man is doing, when he kills another man, be unlawful, then it is murder. As, if A meaning 87to steal a deer in the park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder, for that the act was unlawful; but if the owner of the park had done the like, shooting at his own deer, it had been by misadventure, and no felony.

P. This is not so distinguished by any statute, but is the common-law only of Sir Edward Coke. I believe not a word of it. If a boy be robbing an appletree, and falleth thence upon a man that stands under it and breaks his neck, but by the same chance saveth his own life, Sir Edward 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 damage 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 Edward Coke’s mistake was his not well understanding of Bracton, whom he cites in the margin. For, fol. 120 b. lib. iii. cap. 4, he saith thus: Sed hic erit distinguendum, utrum quis dederit operam rei licitæ, vel illicitæ; si illicitæ, ut si lapidem projiciebat quis versus locum per quem consueverunt homines transitum facere, vel dum insequitur quis equum vel bovem, et aliquis a bove vel equo percussus fuerit, et hujusmodi, hoc imputatur ei. That is: 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 88horse 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 somebody 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 carman 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 inferred, that he meant to adventure the killing of somebody or other, though not of him that was killed.

L. 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.

P. And it 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.

L. Nay, unless he be compos mentis, he is not felo de se, as Sir Edward Coke saith, 3 Inst. p. 54; and therefore he cannot be judged a felo de se, unless it be first proved he was compos mentis.

89P. 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 cleared.

L. I will think on it. There is a statute of 3 Hen. VII, c. 14, which makes it felony in any of the King’s household servants, under the degree of a Lord, to compass the death of any of the King’s Privy Council. The words are these: That from henceforth the steward, treasurer, and comptroller of the King’s house for the time being, or one of them, have full authority and power, to inquire by twelve staid men and discreet persons of the chequer-roll of the King’s honourable household, if any servant, admitted to be 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 estate 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 of the King’s council, steward, treasurer, or comptroller of the King’s house. And if such misdoers shall be found guilty by confession, or otherwise, that the said offence shall be judged felony.

P. It appears by this statute, that not only the compassing the death, as you say, of a privy-councillor, but also of any Lord of this realm, is felony; if it be done by any of the King’s household servants, that is not a Lord.

L. No; Sir Edward Coke upon these words, any Lord of this realm, or other person sworn of the King’s council, infers (3 Inst. p. 38), that it is to be 90understood of such a Lord only as is a privy-councillor.

P. For barring of the Lords of Parliament from this privilege, he strains this statute a little farther, in my opinion, than it reacheth of itself. But how are such felonies to be tried?

L. The indictment is to be found before the steward, treasurer, and comptroller of the King’s house, or one of them, by twelve of the King’s household servants. The petit jury for the trial must be twelve other of the King’s servants. And the judges are again the steward, treasurer, and comptroller of the King’s house, or two of them; and yet I see that these men are not usually great students of the law.

P. You may hereby be assured, that either the King and Parliament were very much overseen in choosing such officers perpetually for the time being to be judges in a trial at the common-law, or else that Sir Edward 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 fit 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 Edward Coke’s confession) of matters, except of blood, at the common-law.

91L. Another sort of felony, though without manslaughter, is robbery; and by Sir Edward Coke (3 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.

P. Robbery is not distinguished from theft by any statute. Latrocinium comprehendeth them both, and both are felony, and both punished with death. And therefore to distinguish them aright is the work of reason only. And the first difference, which is obvious to all men, is that robbery is committed by force or terror, of which neither is in theft. For theft is a secret act, and that which is taken by violence or terror, either from his person, or in his presence, is still robbery. But if it be taken secretly, whether it be by day or night, from his person, or from his fold, or from his pasture, then it is called theft. It is force and fraud only, that distinguisheth between theft and robbery; both which are, by the pravity only of the intention, felony in their nature. But there be so many evasions of the law found out by evil men, that I know not, in this predicament of felony, how to place them. For suppose I go secretly, by day or night, into another man’s field of wheat, ripe and standing, and loading my cart with it I carry it away: is it theft or robbery?

L. Neither, it is but trespass. But if you first lay down the wheat you have cut, and then throw it into your cart, and carry it away, then it is felony.

P. Why so?

L. Sir Edward Coke tells you the reason of it 92(3 Inst. p. 107). For he defineth theft to be, by the common-law, a felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, not from the person, nor by night in the house of the owner. From this definition, he argues thus, p. 109: Any kind of corn or grain, growing upon the ground, is a personal chattel, and the executors of the owner shall have them, though they be not severed; but yet no larceny can be committed of them, because they are annexed to the realty; so it is of grass standing on the ground, or of apples, or of any fruit upon the trees, &c.; so it is of a box or chest of charters, no larceny can be committed of them, because the charters concern the realty, and the box or chest though it be of great value, yet shall it be of the same nature the charters are of; et omne magis dignum trahit ad se minus.

P. Is this definition drawn out of any statute, or is it in Bracton or Littleton, or any other writer upon the science of the laws?

L. No, it is his own: and you may observe by the logic sentences dispersed through his works, that he was a logician sufficient enough to make a definition.

P. But if his definitions must be the rule of law, what is there that he may not make felony or not felony, at his pleasure? But seeing it is not statute law that he says, it must be very perfect reason, or else no law at all; and to me it seems so far from reason, as I think it ridiculous. But let us examine it. There can, says he, be no larceny of corn, grass, or fruits that are growing, that is to say, they cannot be stolen. But why? Because they 93concern the realty; that is, because they concern the land. It is true, that the land cannot be stolen, nor the right of a man’s tenure; but corn, and trees, and fruit, though growing, may be cut down, and carried away secretly and feloniously, in contempt and despite of the law. And are they not then stolen? And is there any act which is feloniously committed, that is not more than trespass? Can any man doubt of it, that understands the English tongue? It is true, that if a man pretend a right to the land, and on that pretence take the fruits thereof by way of taking possession of his own, it is no more than a trespass, unless he conceal the taking of them. For in that one case, he but puts the man that was in possession before, to exhibit his complaint, which purpose is not felonious, but lawful; for nothing makes a distinction between felony and not felony, but the purpose. I have heard, that if a man slander another with stealing of a tree standing, there lies no action for it. And that upon this ground: to steal a standing tree is impossible; and that the cause of the impossibility is, that a man’s freehold cannot be stolen; which is a very obvious fallacy. For freehold signifieth, not only the tenement, but also the tenure; and though it be true that a tenure cannot be stolen, yet every man sees that the standing trees and corn may easily be stolen. And so far forth as trees, &c. are part of the freehold, so far forth also, they are personal goods. For whatsoever is freehold is inheritance, and descended to the heir, and nothing can descend to the executors but what is merely personal. And though a box or case of evidences are to descend 94to the heir, yet unless you can shew me positive law to the contrary, they shall be taken into the executors' hands to be delivered to the heir. Besides, how unconscionable a thing is it, that he that steals a shilling’s worth of wood, which the wind hath blown down, or which lieth rotting on the ground, should be hanged for it, and he that takes a tree, worth twenty or forty shillings, should answer only for the damage!

L. It is somewhat hard, but it has been so practised time out of mind. Then follows sodomy, and rape, both of them felonies.

P. I know that, and that of the former he justly says it is detestable, being in a manner an apostacy from human nature: but in neither of them is there anything of animus felleus. The statutes which make them felony, are exposed to all men’s reading. But because Sir Edward Coke’s commentaries upon them are more diligent and accurate than to be free from all uncleanness, let us leap over them both; observing only by the way, that he leaves an evasion for an impotent offender, though his design be the same, and pursued to the utmost of his power.

L. Two other great felonies are, breaking and burning of houses; neither of which are defined by any statute. The former of them is by Sir Edward Coke (3 Inst. p. 63), defined thus:—Burglary is by the common-law, the breaking and entering into the mansion-house of another, in the night, with intent to kill some reasonable creature, or to commit some other felony within the same, whether his intent be executed or not. And he defineth night to be then, when one man cannot know another’s 95face by daylight. And for the parts of a mansion-house, he reckoneth all houses that belong to house-keeping, as barns, stables, dairyhouses, buttery, kitchen, chambers, &c. But breaking of a house by day, though felony, and punished as burglary, is not within the statute.

P. I have nothing to say against his interpretations here; but I like not that any private man should presume to determine, whether such or such a fact done be within the words of a statute or not, where it belongs only to a jury of twelve men to declare in their verdict, whether the fact laid 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 lawyer’s institutes, but the statutes themselves pleaded before them for directions.

L. Burning, as he defines it (ibid. 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 an other. And he hereupon infers, if a man set fire to the house, and it takes not, that then it is not within the statute.

P. If a man should secretly and maliciously lay a quantity of gunpowder under another man’s 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 damage 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 96consequently 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.

L. I know not. Besides these crimes, there is conjuration, witchcraft, sorcery and enchantment; which are capital by the statute 1 James, c. 12.

P. 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 myself 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.

L. Shall we pass over the crime of heresy, which Sir Edward Coke ranketh before murder? But the consideration of it will be somewhat long.

P. Let us defer it till the afternoon.

Of heresy.

L. Concerning heresy, Sir Edward Coke (3 Inst. p. 39) says, that five things fall into consideration. 1. Who be the judges of heresy. 2. What shall be judged heresy. 3. What is the judgment upon a man convicted of heresy. 4. What the law alloweth him to save his life. 5. What he shall forfeit by judgment against him.

P. The principal thing to be considered, which is the heresy itself, 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 97cause 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 heresy, (if he but dare to give an account of his faith), unless he know beforehand what it is?

L. In the preamble of the statute of 2 Hen. IV, c. 15, heresy is laid down, as a preaching or writing of such doctrine as is contrary to the determination of Holy Church.

P. Then it is heresy 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. IV declareth, by the same preamble, that the Church of England had never been troubled with heresy.

L. But that statute is repealed.

P. Then also is that declaration or definition of heresy repealed.

L. What, say you, is heresy?

P. I say, heresy 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 98truth hereof, you are to read the histories and other writings of the ancient Greeks, whose word it is; which writings are extant in these days, and easy 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 discernible 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 itself was then so much in fashion, as that every rich man endeavoured to have his children educated in the doctrine of some or other of these philosophers, which were for their wisdom so much renowned. Now those that followed Pythagoras, were called Pythagoreans; those that followed Plato, Academics; those that followed Zeno, Stoics; those that followed Epicurus, Epicureans; and those that followed Aristotle, Peripatetics; which are the 99names of heresy in Greek, which signifies no more but taking of an opinion; and the said Pythagoreans, Academics, Stoics, Peripatetics, &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 it 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 easy 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 youth of Greece. But by competition for such employment, they hated and reviled one another with all the bitter terms they could invent; and very often, when upon occasion they were in civil company, fell first to disputation, and then to blows, to the great trouble of the company and their own shame. Yet amongst all their reproachful words, the name of heretic came never in, because they were all equally heretics, their doctrine not being theirs, but taken upon trust from the aforesaid authors. So that though we find heresy often mentioned in Lucian and other heathen authors, yet we shall not find in any of them hæreticus for a heretic. And this disorder among the philosophers continued a 100long time in Greece, and infecting also the Romans, was at the greatest in the times of the apostles and in the primitive Church, till the time of the Nicene Council, and somewhat after. But at last the authority of the Stoics and Epicureans was not much esteemed, only Plato’s and Aristotle’s philosophy were much in credit; Plato’s with the better sort, that founded their doctrine upon the conceptions and ideas of things, and Aristotle’s with those that reasoned only from the names of things, according to the scale of the categories. Nevertheless, there were always, though not new sects of philosophy, yet new opinions continually arising.

L. But how came the word heretic to be a reproach?

P. Stay a little. After the death of our Saviour, his apostles and his disciples, as you know, dispersed themselves into several parts of the world to preach the Gospel, and converted much people, especially in Asia the Less, in Greece, and Italy, where they constituted many churches; and as they travelled from place to place, left bishops to teach and direct those their converts, and to appoint presbyters under them to assist them therein, and to confirm them by setting forth the life and miracles of our Saviour, as they had received them from the writings of the apostles and evangelists; whereby, and not by the authority of Plato, or Aristotle, or any other philosopher, they were to be instructed. Now you cannot doubt but that among so many heathens converted in the time of the apostles, there were men of all professions and dispositions, and some that had never thought of philosophy at all, but were intent upon their fortunes or their pleasures; 101and some that had a greater, some a less use of reason; and some that had studied philosophy, but professed it not, which were commonly the men of the better rank; and some had professed it only for their better abstinence, and had it not farther than readily to talk and wrangle; and some were Christians in good earnest, and others but counterfeit, intending to make use of the charity of those that were sincere Christians, which in those times was very great. Tell me now, of these sorts of Christians, which was the most likely to afford the fittest men to propagate the faith by preaching and writing, or public or private disputation; that is to say, who were fittest to be made presbyters and bishops.

L. Certainly those who, cæteris paribus, could make the best use of Aristotle’s rhetoric and logic.

P. And who were the most prone to innovation?

L. They that were most confident of Aristotle’s and Plato’s (their former masters) natural philosophy. For they would be the aptest to wrest the writings of the apostles and all Scriptures to the doctrines in which their reputation was engaged.

P. And from such bishops and priests and other sectaries it was, that heresy, amongst the Christians, first came to be a reproach. For no sooner had one of them preached or published any doctrine that displeased either the most, or the most leading men of the rest, but it became such a quarrel as not to be decided but by a Council of the bishops in the province where they lived; wherein he that would not submit to the general decree, was called a heretic, as one that would not relinquish the philosophy of his sect. The rest of the Council gave themselves the name of Catholics, and to their 102Church the name of Catholic Church. And thus came up the opposite terms of catholic and heretic.

L. I understand how it came to be a reproach, but not how it follows that every opinion condemned by a Church that is, or calls itself catholic, must needs be an error or a sin. The Church of England denies that consequence, and that such doctrine as they hold cannot be proved to be erroneous but by the Scripture, which cannot err; but the Church, being but men, may both err and sin.

P. In this case we must consider also that error, in its own nature, is no sin. For it is impossible for a man to err on purpose; he cannot have an intention to err; and nothing is sin unless there be a sinful intention: much less are such errors sins, as neither hurt the commonwealth nor any private man, nor are against any law positive or natural; such errors as were those for which men were burnt, in the time when the Pope had the government of this Church.

L. Since you have told me how heresy came to be a name, tell me also how it came to be a crime; and what were the heresies that first were made crimes.

P. Since the Christian Church could declare, and none else, what doctrines were heresies, but had no power to make statutes for the punishment of heretics before they had a Christian King, it is manifest that heresy could not be made a crime before the first Christian Emperor, which was Constantine the Great. In his time, one Arius, a priest of Alexandria, in dispute with his bishop publicly denied the divinity of Christ, and maintained it afterwards in the pulpit, which was the cause of a sedition and much bloodshed both of citizens and 103soldiers in that city. For the preventing of the like for the time to come, the Emperor called a general Council of bishops to the city of Nice; who being met, he exhorted them to agree upon a confession of the Christian faith, promising that whatsoever they agreed on he would cause to be observed.

L. By the way, the Emperor, I think, was here a little too indifferent.

P. In this Council was established so much of the creed we now use and call the Nicene creed, as reacheth to the words, I believe in the Holy Ghost. The rest was established by the three general Councils next succeeding. By the words of which creed almost all the heresies then in being, and especially the doctrine of Arius, were condemned; so that now all doctrines published by writing or by word, and repugnant to this confession of the first four general Councils, and contained in the Nicene creed, were, by the imperial law forbidding them, made crimes; such as are that of Arius, denying the divinity of Christ; that of Eutiches, denying the two natures of Christ; that of the Nestorians, denying the divinity of the Holy Ghost; that of the Anthropomorphites, that of the Manichees, that of the Anabaptists, and many other.

L. What punishment had Arius?

P. At the first, for refusing to subscribe, he was deprived and banished; but afterwards having satisfied the Emperor concerning his future obedience (for the Emperor caused this confession to be made, not for the regard of truth of doctrine, but for the preserving of the peace, especially among his Christian soldiers, by whose valour he had gotten the empire, and by the same was 104to preserve it), he was received again into grace, but died before he could repossess his benefice. But after the time of those Councils, the imperial law made the punishment for heresy to be capital, though the manner of the death was left to the prefects in their several jurisdictions; and thus it continued till somewhat after the time of the Emperor Frederick Barbarossa. But the papacy having gotten the upper hand of the Emperor, brought in the use of burning both heretics and apostates; and the Popes from time to time made heresies of many other points of doctrine (as they saw it conduce to the setting up of the chair above the throne), besides those determined in the Nicene creed, and brought in the use of burning; and according to this papal law, there was an apostate burnt at Oxford, in the time of William the Conqueror, for turning Jew. But of a heretic burnt in England, there is no mention made till after the statute of 2 Hen. IV, whereby some followers of Wicliff, called Lollards, were afterwards burned; and that for such doctrines as by the Church of England, ever since the first year of Queen Elizabeth, have been approved for godly doctrines, and no doubt were godly then. And so you see how many have been burnt for godliness.

L. It was not well done. But it is no wonder we read of no heretics before the time of Henry IV: for in the preamble to that statute it is intimated, that before those Lollards there never was any heresy in England.

P. I think so too; for we have been the tamest nation to the Pope of all the world. But what statutes concerning heresy have there been made since?

L. The statute of 2 Hen. V, c. 7, which adds to 105the burning the forfeiture of lands and goods; and then no more till the 25 Hen. VIII, c. 14, which confirms the two former, and giveth some new rules concerning how they shall be proceeded with. But by the statute of 1 Edw. VI, c. 12, all acts of Parliament formerly made to punish any manner of doctrine concerning religion, are repealed. For therein it is ordained, after divers Acts specified, that all and every other Act or Acts of Parliament concerning doctrine or matters of religion, and all and every branch, article, sentence, and matter, pains and forfeitures contained, mentioned, or anywise declared in the same Acts of Parliament or statutes, shall be from henceforth repealed, utterly void, and of none effect. So that in the time of King Edward VI, not only all punishments of heresy were taken away, but also the nature of it was changed to what originally it was, a private opinion. Again, in 2 Phil. & M. those former statutes of 2 Hen. IV, c. 15, 2 Hen. V, c. 17, 25 Hen. VIII, c. 14, are revived; and the branch of 1 Edw. VI, c. 12, touching doctrine, though not specially named, seemeth to be this, that the same statute confirmeth the statute of 25 Edw. III, concerning treasons. Lastly, in the first year of Queen Elizabeth, c. 1, the aforesaid statutes of Queen Mary are taken away, and thereby the statute of 1 Edw. VI, c. 12, revived; so as there was no statute left for the punishment of heretics. But Queen Elizabeth by the advice of her Parliament gave a commission, which was called the High Commission, to certain persons, amongst whom were very many of the bishops, to declare what should be heresy for the future, but with a restraint that they should judge 106nothing to be heresy, but what had been so declared in the first four general Councils.

P. From this which you have showed me, I think we may proceed to the examination of the learned Sir Edward Coke concerning heresy. In his chapter of heresy, 3 Inst. p. 40, he himself confesseth that no statute against heresy stood then in force, when in the 9th year of King James, Bartholomew Legat was burnt for Arianism; and that from the authority of the act of 2 Hen. IV, c. 15, and other acts cited in the margin, it may be gathered that the diocesan hath the jurisdiction of heresy. This I say is not true: for as to acts of Parliament, it is manifest, that from acts repealed, that is to say, from things that have no being, there can be gathered nothing. And as to the other authorities in the margin, Fitzherbert and the Doctor and Student, they say no more than what was law in the time when they writ; that is, when the Pope’s usurped authority was here obeyed. But if they had written this in the time of King Edward VI or Queen Elizabeth, Sir Edward Coke might as well have cited his own authority, as theirs; for their opinions had no more the force of laws than his. Then he cites this precedent of Legat, and another of Hammond in the time of Queen Elizabeth; but precedents prove only what was done, and not what was well done. What jurisdiction could the diocesan then have of heresy, when by the statute of Edw. VI, c. 12, then in force, there was no heresy, and all punishment for opinions was forbidden? For heresy is a doctrine contrary to the determination of the Church; but then the Church had not determined any thing at all concerning heresy.

107L. But seeing the high-commissioners had power to correct and amend heresies, they must have power to cite such as were accused of heresy to appear before them; or else they could not execute their commission.

P. If they had first made and published a declaration of what articles they made heresy, that when one man heard another speak against their declaration, he might thereof inform the commissioners, then indeed they had had power to cite and imprison the person accused. But before they can know what should be heresy, how was it possible that one man should accuse another? And before he be accused, how can he be cited?

L. Perhaps it was taken for granted, that whatsoever was contrary to any of the four first general Councils, was to be judged heresy.

P. That granted, yet I see not how one man might accuse another any the better for those Councils. For not one man of ten thousand had ever read them, nor were they ever published in English, that a man might avoid offending against them; nor perhaps are they extant. Nor if those that we have printed in Latin, are the very acts of the Councils, which is yet much disputed amongst divines, do I think it fit they were put in the vulgar tongues. But it is not likely that the makers of the statutes had any purpose to make heresy of whatsoever was repugnant to those four general Councils. For if they had, I believe the Anabaptists, of which there was great plenty in those times, would one time or other have been questioned upon this article of the Nicene Creed, I believe one baptism for the remission of sins. Nor was the commission 108itself for a long time after registered, that men might in such uncertainty take heed and abstain, for their better safety, from speaking of religion anything at all. But by what law was this hereticheretic Legat burnt? I grant he was an Arian, and his heresy contrary to the determination of the Church of England, in the highest points of Christianity. But seeing there was no statute-law to burn him, and no penalty forbidding, by what law, by what authority was he burnt?

L. That this Legat was accused of heresy, was no fault of the high-commissioners; but when he was accused, it had been a fault in them not to have examined him, or having examined him and found him an Arian, not to have judged him so, or not to have certified him so. All this they did, and this was all that belonged unto them; they meddled not with his burning, but left him to the secular power to do with him what they pleased.

P. Your justification of the commissioners is nothing to the question. The question is by what law was he burnt? The spiritual-law gives no sentence of temporal punishment; and Sir Edward Coke confesseth that he could not be burned; and burning being forbidden by statute-law, by what law then was he burned?

L. By the common-law.

P. What is that? It is not custom. For before the time of Henry IV, there was no such custom in England; for if there had, yet those laws that came after were but confirmations of the custom, and therefore the repealing of those laws was a repealing of the custom. For when King Edward VI and Queen Elizabeth abolished those statutes, 109they abolished all pains, and consequently burning, or else they had abolished nothing. And if you will say he was burnt by the law of reason, you must tell me how there can be proportion between doctrine and burning; there can be no equality, nor majority, nor minority assigned between them. The proportion that is between them, is the proportion of the mischief which the doctrine maketh, to the mischief to be inflicted on the doctor; and this is to be measured only by him that hath the charge of governing the people; and consequently the punishing of offences can be determined by none but by the King, and that, if it extend to life or member, with the assent of Parliament.

L. He does not draw any argument for it from reason, but allegeth for it this judgment executed upon Legat, and a story out of Holinshed and Stow. But I know that neither history nor precedent will pass with you for law. And though there be a writ de hæretico comburendo in the register, as you may read in Fitzherbert, grounded upon the statutes of 2 Hen. IV, c. 15, and 2 Hen. V, c. 7; yet seeing those statutes are void, you will say the writ is also void.

P. Yes, indeed will I. Besides this, I understand not how that it is true that he saith, that the diocesan hath jurisdiction of heresy, and that so it was put in use in all Queen Elizabeth’s reign; whereas by the statute it is manifest, that all jurisdiction spiritual was given under the Queen to the high-commissioners. How then could any one diocesan have any part thereof without deputation from them, which by their letters-patent they could not grant? Nor was it reasonable they should; for the trust 110was not committed to the bishops only, but also to divers lay persons, who might have an eye upon their proceedings, lest they should encroach upon the power temporal. But at this day there is neither statute nor any law to punish doctrine, but the ordinary power ecclesiastical, and that according to the canons of the Church of England, only authorized by the King, the high-commission being long since abolished. Therefore let us come now to such causes criminal as are not capital.

Of premunire.

L. The greatest offence not capital, is that which is done against the statute of provisors.

P. You have need to expound this.

L. This crime is not unlike to that for which a man is outlawed, when he will not come in and submit himself to the law; saving that in outlawries there is a long process to precede it, and he that is outlawed is put out of the protection of the law. But for the offence against the statute of provisors (which is called præmunire facias, from the words in the original writ), if the offender submit not himself to the law within the space of two months after notice, he is presently an outlaw. And this punishment, if not capital, is equivalent to capital. For he lives secretly at the mercy of those that know where he is, and cannot, without the like peril to themselves, but discover him. And it has been much disputed, before the time of Queen Elizabeth, whether he might not be lawfully killed by any man that would, as one might kill a wolf. It is like the punishment amongst the old Romans, of being barred the use of fire and water; and like the great excommunication in the papacy, when a man might not eat nor drink with the offender without incurring the like penalty.

111P. Certainly the offence for which this punishment was first ordained was some abominable crime, or extraordinary mischief.

L. So it was. For the Pope, you know, from long before the Conquest, encroached every day upon the power temporal. Whatsoever could be made to seem to be in ordine ad spiritualia, was in every commonwealth claimed and haled to the jurisdiction of the Pope; and for that end, in every country he had his court ecclesiastical, and there was scarce any cause temporal which he could not, by one shift or other, hook into his jurisdiction, in such sort as to have it tried in his own courts at Rome, or in France, or in England itself. By which means the King’s laws were not regarded, judgments given in the King’s courts were avoided, and presentations to bishoprics, abbeys, and other benefices, founded and endowed by the Kings and nobility of England, were bestowed by the Pope upon strangers, or such as with money in their purses could travel to Rome to provide themselves of such benefices. And suitably hereunto, when there was a question about a tithe, or a will, though the point were merely temporal, yet the Pope’s court here would fetch them in, or else one of the parties would appeal to Rome. Against these injuries of the Roman Church, and to maintain the right and dignity of the Crown of England, Edward III made a statute concerning provisors, that is, such as provide themselves with benefices here from Rome. For in the twenty-fifth year of his reign he ordained, in a full Parliament, that the right of election of bishops, and right of advowsons and presentations, belonged to himself, and to the nobility that were the founders 112of such bishoprics, abbeys, and other benefices. And he enacted further, 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, lie in prison till he were ransomed at the King’s will, and had satisfied the party grieved, renounced his title, and found sureties not to sue for it any further; and that if they could not be found, then exigents should go forth to outlawry, and the profits of the benefice in the mean time be taken into the King’s hands. And the same statute is confirmed in the twenty-seventh year of King Edward III; which statute alloweth to these provisors two months to appear: but if they appear before they be outlawed, 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 outlawed. The same law is confirmed again by 16 Rich. II, c. 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 King’s 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.

P. Let me see the statute itself of 27 Edw. III.