The art of rhetoric, with A discourse of the laws of England by Thomas Hobbes of Malmesbury.

THE ART OF Rhetoric , WITH A DISCOURSE OF The Laws of England .

By Thomas Hobbes of Malmesbury .

Dent Vmbrae tenuem Divi & sine pondere terram , Spirantesque crocos & in urnâ perpetuum ver.

LONDON , Printed for William Crooke at the Green Dragon without Temple-Bar , 1681.

TO THE READER .

ALtho these pieces may appear fully to express their own real intrinsic value , as bearing the Image and Inscription of that great Man Mr. Hobbes ; yet since common usage has rendred a Preface to a Book as necessary as a Porch to a Church , and that in all things some Ceremonies cannot be avoided , Mode and Custom in this point is dutifully to be obeyed .

That they are genuine , credible testimony might be produced ; did not the peculiar fineness of thought and expression , and a constant undaunted resolution of maintaining his own Opinions sufficiently ascertain their Author . Besides which , they are now Publish'd from his own true Copies , an advantage which some of his works have wanted .

The first of them , being an abridgement containing the most useful part of Aristotle's Rhetoric , was written some thirty years since . Mr. Hobbes in his Book of Humane Nature had already describ'd Man , with an exactness almost equal to the original draught of Nature ; and in his Elements of Law , laid down the constitution of Government , and shewn by what Arm'd Reason it is maintain'd . And having demonstrated in the State of Nature , the Primitive Art of Fighting to be the only medium whereby Men procur'd their ends ; did in this design to shew what Power in Societies has succeeded to reign in its stead . I mean the Art of speaking , which by use of Common places of Probability , and knowledge in the manners and passions of Mankind , throu the working of Belief is able to bring about whatsoever Interest .

How necessary this Art is to that of Politic , is clearly evident from that mighty force , whereby the Eloquence of the Ancient Orators captivated the minds of the People . Mr. Hobbes chose to recommend by his Translation the Rhetoric of Aristotle , as being the most accomplish'd work on that Subject , which the World has yet seen , having been admir'd in all Ages , and in particular highly approv'd by the Father of the Roman Eloquence , a very competent Judge . To this he thought fit to add some small matter relating to that part which concern's Tropes and Figures ; as also a short discovery of some little tricks of false and deceitful Reasoning .

The other piece is a Discourse concerning the Laws of England , and has been finish'd many years . Herein he has endeavour'd to accommodate the general notions of his Politic to the particular constitution of the English Monarchy . A design of no small difficulty , wherein to have succeeded , deserves much Honour ; to have perchance miscarryed , deserves easie Pardon . It has had the good fortune to be much esteem'd by the greatest Men of the Profession of the Law , and therefore may be presumed to contain somewhat excellent . However 't is not to be expected , that al Men should submit to his Opinions , yet 't is hoped none will be offended at the present Publishing these Papers , since they will not find here any new fantastic Notions , but only such things as have been already asserted with strength of Argument by himself , and other Persons of eminent Learning . To the Public at least this Benefit may accrue , that some able Pen may undertake the controversie , being moved with the desire of that reputation , which will necessarily attend Victory over so considerable an Adversary .

THE WHOLE ART OF RHETORICK .

BOOK I.

CHAP. I.

That Rhetorick is an Art consisting not only in moving the passions of the Judge ; but chiefly in Proofs . And that this Art is Profitable .

WE see that all men naturally are able in some sort to accuse and excuse : Some by chance ; but some by method . This method may be discovered : and to discover Method is all one with teaching an Art . If this Art consisted in Criminations only , and the skill to stir up the Judges to Anger , Envy , Fear , Pity , or other affections ; a Rhetorician in well ordered Common-wealths and States , where it is forbidden to digress from the cause in hearing , could have nothing at all to say . For all these perversions of the Judge are beside the question . And that which the pleader is to shew , and the Judge to give sentence on , is this only : 'T is so : or not so . The rest hath been decided already by the Law-maker ; who judging of universals , and future things , could not be corrupted . Besides , 't is an absurd thing , for a man to make crooked the Ruler he means to use .

It consisteth therefore chiefly in Proofs ; which are Inferences : and all Inferences being Syllogismes , a Logician , if he would observe the difference between a plain Syllogisme , and an Enthymeme , ( which is a Rhetoricall Syllogisme , ) would make the best Rhetorician . For all Syllogismes and Inferences belong properly to Logick ; whether they infer truth or probability : and because without this Art it would often come to pass , that evil men by the advantage of natural abilities , would carry an evil cause against a good ; it brings with it at least this profit , that making the pleaders even in skill , it leaves the odds only in the merit of the cause . Besides , ordinarily those that are Judges , are neither patient , nor capable of long Scientifical proofs , drawn from the principles through many Syllogisms ; and therefore had need to be instructed by the Rhetoricall , and shorter way . Lastly , it were ridiculous , to be ashamed of being vanquished in exercises of the body , and not to be ashamed of being inferior in the vertue of well expressing the mind .

CHAP. II.

The Definition of Rhetorick .

RHetorick , is that Faculty , by which we understand what will serve our turn , concerning any Subject to win belief in the hearer .

Of those things that beget belief ; some require not the help of Art ; as Witnesses , Evidences , and the like , which we invent not , but make use of ; and some require Art , and are invented by us .

The belief that proceeds from our Invention , comes partly from the behaviour of the speaker ; partly from the passions of the hearer : but especially from the proofs of what we alledge .

Proofs are , in Rhetorick , either Examples , or Enthymemes , as in Logick , Inductions , or Syllogisms . For an Example is a short Induction , and an Enthymeme a short Syllogisme ; out of which are left as superfluous , that which is supposed to be necessarily understood by the hearer ; to avoid prolixity , and not to consume the time of publick business needlesly .

CHAP. III.

Of the several kinds of Orations : and of the Principles of Rhetorick .

IN all Orations , the Hearer does either hear only ; or judge also .

If he hear only , that 's one kind of Oration , and is called Demonstrative .

If he judg , he must judg either of that which is to come ; or of that which is past .

If of that which is to come , ther 's another kind of Oration , and is called Deliberative .

If of that which is past ; then 't is a third kind of Oration , called Judicial .

So there are three kinds of Orations ; Demonstrative , Judicial , Deliberative .

To which belong their proper times . To the Demonstrative , the Present ; To the Judicial , the Past ; and to the Deliberative , the time to come .

And their proper Offices . To the Deliberative , Exhortation and Dehortation . To the Judicial , Accusation and Defence . And to the Demonstrative , Praising and Dispraising .

And their proper ends . To the Deliberative , to Prove a thing Profitable , or Vnprofitable . To the Judicial , Just , or Vnjust . To the Demonstrative , Honourable , or Dishonourable .

The Principles of Rhetorick out of which Enthymemes are to be drawn ; are the common opinions that men have concerning Profitable , and Vnprofitable ; Just , and Vnjust ; Honourable , and Dishonourable ; which are the points in the several kinds of Orations questionable . For as in Logick , where certain and infallible knowledg is the scope of our proof , the Principles must be all infallible truths : so in Rhetorick the Principles must be common opinions , such as the Judg is already possessed with : because the end of Rhetorick is victory ; which consists in having gotten belief .

And because nothing is Profitable , Vnprofitable , Just , Vnjust , Honourable or Dishonourable , but what has been done , or is to be done ; and nothing is to be done , that is not possible : and because there be degrees of Profitable , Vnprofitable , Just , Vnjust , Honourable , and Dishonourable ; an Orator must be ready in other Principles ; namely , of what is done and not done ; possible and not possible , to come and not to come , and what is Greater , and what is Lesser , both in general , and particularly applyed to the thing in question ; as what is more and less , generally ; and what is more profitable , and less profitable , &c. particularly .

CHAP. IV.

Of the subject of Deliberatives ; and the abilities that are required of him that will deliberate of business of State .

IN Deliberatives there are to be considered the subject , wherein ; and the ends whereto the Orator exhorteth , or from which he dehorteth .

The Subject is always something in our own power , the knowledg whereof belongs not to Rhetorick , but for the most part to the Politicks ; and may be referred in a manner to these five heads .

1. Of levying of money . To which point he that will speak as he ought to do , ought to know before hand the revenue of the State , how much it is , and wherein it consisteth : and also how great are the necessary charges and expences of the same . This knowledge is gotten partly by a mans own experience , partly by Relations , and accounts in writing .

2. Of Peace and War . Concerning which the Counsellor or Deliberator , ought to know the strength of the Commonwealth ; how much it both now is , and hereafter may be ; and wherein that power Consisteth . Which knowledge is gotten , partly by experience , and Relations at home ; and partly by the sight of Wars , and of their events abroad .

3. Of the safeguard of the Country . Wherein he only is able to give counsell , that knows the forms , and number , and places of the Garrisons .

4. Of Provision . Wherein to speak well , it is necessary for a man to know what is sufficient to maintain the State ; what Commodities they have at home growing ; what they must fetch in through need ; and what they may carry out through abundance .

5. Of making Laws . To which is necessary so much Political , or Civil Philosophy , as to know what are the several kinds of Governments ; and by what means , either from without or from within , each of those kinds is , preserved , or destroyed . And this knowledg is gotten , partly by observing the several Governments in times past , by History ; and partly by observing the Government of the times present in several Nations , by Travel .

So that to him that will speak in a Councell of State , there is necessary this ; History , Sight of Wars , Travel , Knowledge of the Revenue , Expences , Forces , Havens , Garrisons , Wares , and Provisions in the State he lives in ; and what is needful for that State , either to export , or import .

CHAP. V.

Of the ends which the Orator in Deliberatives , propoundeth , whereby to exhort , or dehort .

AN Orator in exhorting always propoundeth Felicity , or some part of Felicity to be attained by the actions he exhorteth unto : and in Dehortation the contrary .

By Felicity , is meant commonly , Prosperity with vertue , or a continual content of the life with surety . And the parts of it are such things as we call good , in body , mind , or fortune ; such as these that follow .

1. Nobility , which to a State or Nation is , to have been antient inhabitants ; and to have had most antiently , and in most number , famous Generals in the Wars , or men famous for such things as fall under emulation . And to a private man , to have been descended lawfully of a Family , which hath yielded most antiently , and in most number , men known to the World for vertue , riches , or any thing in general estimation .

2. Many and good Children . Which is also publick and private . Publick , when there is much youth in the State endued with vertue , ( namely , of the body , stature , beauty , strength , and dexterity : Of the mind , valour , and temperance ) Private , when a man hath many such Children , both Male and Female . The vertues commonly respected in women , are of the body , Beauty , and Stature ; Of the mind , Temperance , and Houswifery , without sordidness .

3. Riches . Which is , Money , Cattel , Lands , Houshold-stuffe ; with the power to dispose of them .

4. Glory . Which is , the reputation of Vertue , or of the possession of such things as all , or most men , or wise men desire .

5. Honour . Which is the glory of benefiting , or being able to benefit others . To benefit others , is to contribute somewhat , not easily had , to another mans safety , or riches , The parts of Honour are , Sacrifices , Monuments , Rewards , Dedication of places , Precedence , Sepulchres , Statues , publick Pensions , Adorations , Presents .

6. Health . Which is the being free from Diseases , with strength to use the body .

7. Beauty . Which is to different Ages different . To Youth , strength of body , and sweetness of aspect . To full men , strength of body fit for the Wars , and Countenance sweet , with a mixture of Terror . To old men , strength enough for necessary labours , with a Countenance not displeasing .

8. Strength . Which is the ability to move any thing at pleasure of the Mover . To move , is to pull , to put off , to lift , to thrust down , to press together .

9. Stature . Which is then just , when a man in heighth , breadth , and thickness of body doth so exceed the most , as nevertheless it be no hinderance to the quickness of his motion .

10. Good old Age. Which is , that which comes late , and with the least trouble .

11. Many and good Friends . Which is , to have many that will do for his sake that which they think will be for his good .

12. Prosperity . Which is , to have all , or the most , or the greatest of those goods which we attribute to Fortune .

13. Vertue . Which is then to be defined , when we speak of Praise .

These are the grounds from whence we exhort .

Dehortation is from the contraries of these .

CHAP. VI.

Of the Colours or common opinions concerning Good and Evil.

IN Deliberatives , the Principles , or Elements from whence we draw our Proofs , are common Opinions concerning Good and Evil. And these Principles are either Absolute , or Comparative . And those that are Absolute , are either Disputable , or Indisputable .

The Indisputable Principles are such as these ;

Good , is that which we love for it self .

And that , for which we love somewhat else .

And that which all things desire .

And that to every man which his reason dictates .

And that , which when we have , we are well , or satisfied .

And that which satisfies .

And the Cause or Effect of any of these .

And that which preserves any of these .

And that which keeps off , or destroys the contrary of any of these .

Also to take the Good , and reject the Evil , is Good .

And to take the greater Good , rather than the less ; and the lesser Evil , rather than the greater .

Further , all Vertues are Good .

And Pleasure .

And all things Beautiful .

And Justice , Valour , Temperance , Magnanimity , Magnificence ; and other like habits .

And Health , Beauty , Strength , &c.

And Riches .

And Friends .

And Honour , and Glory .

And Ability to say or do : also Towardliness , Will , and the like .

And Whatsoever Art , or Science .

And Life .

And whatsoever is Just.

The Disputable Principles are such as follow .

That is , Good , whose contrary is Evil .

And whose contrary is Good for our Enemies .

And whose contrary our Enemies are glad of .

And of which there cannot be too much .

And upon which much labour and cost hath been bestowed .

And that which many desire .

And that which is praised .

And that which even our Enemies and evil men praise .

And what good we prefer .

And what we do advise .

And that which is possible , is Good ( to undertake . )

And that which is Easie.

And that which depends on our own Will.

And that which is proper for us to do .

And what no man else can do .

And whatsoever is Extraordinary .

And what is suitable .

And that which wants a little of being at an end .

And what we hope to master .

And what we are fit for .

And what evil men do not .

And what we love to do .

CHAP. VII .

Of the Colours , or common Opinions concerning Good and Evil , comparatively .

THE Colours of Good comparatively depend partly upon the following Definitions of Comparatives .

1. More , is so much , and somewhat besides .

2. Less , is that , which and somewhat else is so much .

3. Greater and more in number are said only Comparatively to Less , and Fewer in number .

4. Great and Little , Many and Few , are taken Comparatively to the Most of the same kind . So that Great and Many , is that which exceeds ; Little and Few , is that which is exceeded by the Most of the same kind .

Partly from the precedent Definitions of Good absolutely .

Common Opinions concerning Good . Comparatively then are these .

Greater Good is Many , than fewer , or one of those many .

And Greater is the kind , in which the greatest is greater than the greatest of another kind . And greater is that Good than another good , whose kind is greater than another's kind .

And Greater is that from which another Good follows ; then the Good which follows .

And of two which exceed a third , Greater is that which exceeds it most .

And that which causes the greater Good .

And that which proceeds from a greater Good .

And Greater is that which is chosen for it self , than that which is chosen from somwhat else .

And the end greater than that which is not the end .

And that which less needs other things , than that which more .

And that which is independent , than that which is dependent of another .

And the Beginning , than not the Beginning .

[ Seeing the Beginning is a greater Good , or Evil , than that which is not the Beginning ; and the End , than that which is not the End ; One may argue from this Colour both ways : as Leodamas against Chabrias , would have the Actor more to blame than the Advisor ; and against Callistratus , the Advisor more than the Actor . ]

And the Cause , than not the Cause .

And that which hath a greater Beginning or Cause .

And the Beginning , or Cause of a greater Good or Evil.

And that which is scarce , greater than that which is Plentiful ; because harder to get .

And that which is Plentiful , than that which is scarce ; because oftner in Use.

And that which is easie , than that which is Hard.

And that whose Contrary is greater .

And that whose Want is greater .

And Vertue than not Vertue , a greater Good . Vice , than not Vice , a greater Evil.

And greater Good , or Evil is that , the effects whereof are more Honourable or more Shameful .

And the effects of greater Vertues , or Vices .

And the Excess whereof is more tolerable , a greater Good .

And those things which may with more honour be desir'd .

And the desire of better things .

And those things whereof the Knowledg is better .

And the Knowledge of better things .

And that which wise men prefer .

And that which is in better men .

And that which better men chuse .

And that which is more , than that which is less delightful .

And that which is more , than that which is less Honourable .

And that which we would have for our selves and Friends , a greater Good ; and the contrary a greater Evil.

And that which is Lasting , than that which is not Lasting .

And that which is Firm , than that which is not Firm.

And what many desire , than what few .

And what the Adversary , or Judg confesseth to be greater , is greater .

And Common than not Common .

And not Common than Common .

And what is more Laudable .

And that which is more Honour'd , a greater Good .

And that which is more Punish'd , a greater Evil.

And both Good and Evil divided than undivided , appear greater .

And Compounded than Simple , appear greater .

And that which is done with Opportunity , Age , Place , Time , Means disadvantagious , greater than otherwise .

And that which is natural , than that which is attained unto .

And the same part of that which is great , than of that which is less .

And that which is nearest to the end designed .

And that which is Good or Evil to ones self , than that which is simply so .

And Possible , than not possible .

And that which comes toward the end of our Life .

And that which we do really , than that which we do for shew .

And that which we would be , rather than what we would seem to be .

And that which is good for more purposes , is the greater Good .

And that which serves us in great necessity .

And that which is joyned with less trouble .

And that which is joyned with more delight .

And of the two , that which added to a third , makes the whole the greater .

And that which having , we are more sensible of .

And in every thing , that which we most esteem .

CHAP. VIII .

Of the several kinds of Governments .

BEcause Hortation and Dehortation concern the Common-wealth , and are drawn from the Elements of Good and Evil ; as we have spoken of them already in the Abstract , so we must speak of them also in the Concrete ; that is , of what is Good or Evil to each sort of Common-wealth in special .

The Government of a Common-wealth , is either Democracy , or Aristocracy , or Oligarchy , or Monarchy .

Democracy is that , wherein all men with equal right , are preferred to the highest Magistracy by Lot .

Aristocracy is that , wherein the highest Magistrate is chosen out of those , that had the best education , according to what the Laws prescribe for best .

Oligarchy is that , where the highest Magistrate is chosen for wealth .

Monarchy is that , wherein one man hath the Government of all ; which Government , if he limit it by Law , is called Kingdom ; if by his own will , Tyranny .

The end of Democracy , or the Peoples Government , is Liberty .

The end of Oligarchy , is the Riches of those that Govern.

The end of Aristocracy , is good Laws , and good ordering of the City .

The end of Monarchy , or Kings , is the safety of the People , and conservation of his own Authority .

Good therefore , in each sort of Government is that which conduceth to these their ends .

And because belief is not gotten only by proofs , but also from manners ; the manners of each sort of Commonwealth ought to be well understood by him that undertaketh to perswade , or diswade in matter of State . Their manners may be known by their designs ; and their designs by their ends ; and their ends by what we see them take pleasure in . But of this more accurately in the Politicks .

CHAP. IX .

Of the Colours of Honourable and Dishonourable .

IN a Demonstrative Oration , the subject whereof is Praise , or Dispraise ; the proofs are to be drawn from the Elements of Honourable and Dishonourable .

In this place we anticipate the second way of getting belief ; which is from the manners of the Speaker . For Praise , whether it come in as the principal business , or upon the by , depends still upon the same Principles . Which are these .

Honourable , is that , which we love for it self , and is withal laudable .

And that Good , which pleaseth us only because 't is Good .

And Vertue .

Vertue is the faculty of getting and preserving that which is Good ; and the faculty of doing many , and great things well .

The kinds of it are these ;

1. Justice ; which is a Vertue whereby every man obtains what by Law is his .

2. Fortitude ; which is a Vertue by which a man carries himself Honourably , and according to the Laws , in time of danger .

3. Temperance ; which is a Vertue whereby a man Governs himself in matter of pleasure according to the Law .

4. Liberality ; which is a Vertue , by which we benefit others in matter of money .

5. Magnanimity ; which is a Vertue , by which a man is apt to do great benefits .

6. Magnificence ; which is a Vertue , by which a man is apt to be at great cost .

7. Prudence ; which is an Intellectual Vertue , by which a man is able to deliberate well concerning any Good leading to Felicity .

And Honourable , are the Causes and effects of things Honourable .

And the Works of Vertue .

And the signs of Vertue .

And those actions , the reward whereof is Honor.

And the reward whereof is rather Honor , than Money .

And that which we do not for our own sakes .

And what we do for our Countries good , neglecting our own .

And those things are Honourable , which good of themselves , are not so to the Owner .

And those things which happen to the dead , rather than to the living .

And what we do for other men , especially for Benefactors .

And bestowing of Benefits .

And the contrary of those things we are ashamed of .

And those things which men strive for earnestly , but without fear of Adversary .

And of the more Honourable , and better men , the Vertues are more Honourable .

And more Honourable are the vertues that tend to other mens benefit , than those which tend to ones own .

And Honourable are those things which are Just.

And Revenge is Honourable .

And Victory .

And Honour .

And Monuments .

And those things which happen not ot the living .

And things that excell .

And what none can do but we .

And Possessions we reap no profit by .

And those things which are had in honour particularly in several places .

And the signs of praise .

And to have nothing of the servile , mercenary , or Mechanick .

And that which seems Honourable ; Namely such as follow .

Vices confining upon Vertue .

And the extreams of Vertues .

And what the Auditors think Honourable .

And that which is in estimation .

And that which is done according to custom .

Besides , in a Demonstrative Oration , the Orator must shew , that he whom he praiseth , did what he praiseth unconstrainedly , and willingly .

And he does so , who does the same often .

Praise , is speech , declaring the magnitude of a Vertue , Action , or Work .

But to praise the Work from the Vertue of the Worker , is a circular proof .

To Magnifie , and to Praise , differ in themselves , as Felicity and Vertue . For Praise declares a mans Vertue ; and Magnifying declares his Felicity .

Praise is a kind of inverted Precept . For to say , Do it because 't is good , is a Precept . But to say , He is good because he did it , is Praise .

An Orator in Praising must also use the forms of Amplification ; such as these :

He was the first that did it .

The only man that did it .

The special man that did it .

He did it with disadvantage of time .

He did it with little help .

He was the cause , that the Law ordained Rewards and Honours for such Actions .

Further , he that will praise a Man , must compare him with others ; and his actions with the actions of others ; especially with such as are renowned .

And Amplification is more proper to a Demonstrative Oration , than to any other . For here the Actions are confess'd ; and the Orators part is only this , to contribute unto them Magnitude and Luster .

CHAP. X.

Of Accusation and Defence , with the Definition of Injury .

IN a Judicial Oration , which consists in Accusation and Defence , the thing to be proved is , that Injury has been done : and the heads from whence the proofs are to be drawn , are these three :

1. The causes that move to Injury .

2. The Persons apt to do Injury .

3. The Persons obnoxious , or apt to suffer Injury .

An Injury is a voluntary offending of another man contrary to the Law .

Voluntary is that which a man does with knowledg , and without compulsion .

The causes of Voluntary Actions are Intemperance , and a Vicious disposition concerning things Desirable . As the Covetous man does against the Law , out of an intemperate desire of Money .

All Actions proceed either from the doers disposition , or not .

Those that proceed not from the Doers disposition are such as he does by Chance , by Compulsion , or by Natural necessity .

Those that proceed from the Doers disposition , are such as he does by Custom , or upon Premeditation , or in Anger , or out of Intemperance .

By Chance are said to be done those things whereof neither the Cause , nor the Scope is evident ; and which are done neither orderly , nor always , nor most commonly after the same manner .

By Nature are said to be done those things , the Causes whereof are in the Doer ; and are done orderly , and always , or for the most part after the same manner .

By Compulsion are done those things , which are against the Appetite , and Ordination of the Doer .

By Custome those Actions are said to be done , the Cause whereof is this , that the Door has done them often .

Vpon Premeditation are said to be done those things which are done for profit , as the End , or the way to the End .

In Anger are said to be done those things which are done with a purpose of Revenge .

Out of Intemperance are said to be done those things which are delightful .

In sum , every Voluntary Action tends either to Profit or Pleasure .

The Colours of Profitable are already set down .

The Colours of that which is Pleasing follow next .

CHAP. XI .

Of the Colours , or Common Opinions concerning Pleasure .

PLeasure is a sudden and sensible motion of the Soul , towards that which is Natural .

Grief is the Contrary .

Pleasant therefore is that , which is the cause of such motion .

And to return to ones own Nature .

And Customes .

And those things that are not violent .

Vnpleasant are those things , which proceed from Necessity , as Cares , Study , Contentions . The contrary whereof , Ease , Remission from Labour and Care : also Play , Rest , Sleep , are Pleasant .

Pleasant also is that , to which we have an appetite .

Also the appetites themselves , if they be sensual ; as Thirst , Hunger , and Lust.

Also those things to which we have an appetite upon perswasion and Reason .

And those things we remember , whether they pleased , or displeased , than when they were present .

And the things we hope for .

And Anger .

And to be in Love .

And Revenge .

And Victory . Therefore

Also contentious Games ; as Tables , Chess , Dice , Tennis , &c.

And Hunting .

And Suits in Law .

And Honour and Reputation amongst men in Honour and Reputation .

And to Love .

And to be Belov'd and Respected .

And to be admir'd .

And to be Flatter'd .

And a Flatterer : ( for he seems both to love and admire . )

And the same thing often .

And Change , or Variety .

And what we return to afresh .

And to Learn .

And to admire .

And to do Good .

And to receive Good .

And to help up again one that 's fallen .

And to finish that which is unperfect .

And Imitation .

And therefore the Art of Painting .

And the Art of Carving Images .

And the Art of Poetry .

And Pictures and Statues .

And other Mens Dangers , so they be near .

And to have escaped hardly .

And things of a kind please one another .

And every one himself .

And ones own pleases him .

And to bear Sway.

And to be thought Wise.

And to dwell upon that which he is good at .

And ridiculous actions , Sayings and Persons .

CHAP. XII .

Presumptions of Injury drawn from the persons that do it : or Common Opinions concerning the aptitude of Persons to do Injury .

OF the Causes which move to Injury , namely , Profit and Pleasure , has been already spoken , Chap. 6. 7. 11.

It follows next to speak of the Persons , that are apt to do Injury .

The Doers of Injury are .

Such as think they can do it .

And such as think to be undiscover'd when they have done it .

And such as think , though they be discover'd , they shall not be called in question for it .

And such as think , though they be called in question for it , that their Mulct will be less than their Gain , which either themselves or their Friends receive by the Injury .

Able to do Injury are .

Such as are Eloquent .

And such as are practis'd in business .

And such as have skill in Process .

And such as have many Friends .

And Rich Men.

And such as have Rich Friends ; or Rich Servants ; or Rich Partners .

Vndiscover'd when they have done it , are Such are not apt to commit the crimes whereof they are accused : as Feeble Men , Slaughter : Poor , and not Beautiful Men , Adultery .

And such as one would think could not chuse but be discover'd .

And such as do Injuries , whereof there hath been no Example .

And such as have none , or many enemies .

And such as can easily conceal what they do .

And such as have some body to transfer the fault upon .

They that do Injury openly , are Such , whose friends have been Injured .

And such as have the Judges for friends .

And such as can escape their Tryal at Law .

And such as can put off their Tryal .

And such as can corrupt the Judges .

And such as can avoid the payment of their Fine .

And such as can defer the payment .

And such as cannot pay at all .

And such as by the Injury get manifestly , much , and presently ; when the Fine is uncertain , little , and to come .

And such as get by the Injury , money ; by the penalty , shame only .

And such on the Contrary , as get honour by the Injury , and suffer the mulct of money only , or banishment , or the like .

And such as have often escaped , or been undiscovered .

And such as have often attempted in vain .

And such as consider present pleasure , more than pain to come ; and so intemperate men are apt to do Injury .

And such as consider pleasure to come , more than present pain ; and so temperate men are apt to do Injury .

And such as may seem to have done it by Fortune , Nature , Necessity , or Custom ; and by Error , rather than by Injustice .

And such as have means to get pardon .

And such as want Necessaries , as poor men : or Unnecessaries , as rich men .

And such as are of very good , or very bad Reputation .

CHAP. XIII .

Presumptions of Injury drawn from the Persons that suffer , and from the matter of the Injury .

OF those that do Injury , and why they do it , it hath been already spoken .

Now of the persons that suffer , and of the Matter wherein they suffer , the common Opinions are these :

Persons obnoxious to Injury are ,

Such as have the things that we want , either as necessary , or as delightful .

And such as are far from us .

And such as are at hand .

And such as are unwary , and Credulous .

And such as are Lazy .

And such as are Modest.

And such as have swallowed many Injuries .

And such as we have Injured often before .

And such as never before .

And such as are in our danger .

And such as are ill belov'd generally .

And such as are envyed .

And our Friends .

And our Enemies .

And such as , wanting friends , have no great ability either in speech or Action .

And such as shall be losers by going to Law : as Strangers , and Workmen .

And such as have done the Injuries they suffer .

And such as have committed a crime , or would have done , or are about to do .

And such as , by doing them an Injury , we shall gratifie our friends or superiours .

And such , whose friendship we have newly left , and accuse .

And such as another would do the Injury to , if we should not .

And such as by Injuring , we get greater means of doing good .

The Matters wherein men are obnoxious to Injury are ,

Those things wherein all , or most men use to deal unjustly .

And those things which are easily hid , and put off into other hands , or altered .

And those things which a man is ashamed to have suffered .

And those things wherein prosecution of Injury , may be thought a love of contention .

CHAP. XIV .

Of those things which are necessary to be known for the Definition of Just and Unjust .

WHen the fact is evident , the next Inquiry is , whether it be Just , or Vnjust .

For the Definition of Just and Vnjust , we must know what Law is ; that is , what the Law of Nature , what the Law of Nations ; what the Law Civil , what written Law , and what unwritten Law is : and what Persons , that is , what a publick Person , or the City is ; and what a private Person , or Citizen is .

Vnjust in the opinion of all men , is that which is contrary to the Law of Nature .

Vnjust in the opinion of all men of those Nations which traffick and come together , is that which is contrary to the Law common to those Nations .

Vnjust only in one Common-wealth , is that which is contrary to the Law Civil , or Law of that Common-wealth .

He that is accused to have done any thing against the Publick , or a private Person , is accused to do it either ignorantly , or unwillingly , or in anger , or upon premeditation .

And because the Defendant does many times confess the fact , but deny the unjustice ; as that he took , but did not steal ; and did , but not adultery ; it is necessary to know the Definitions of Theft , Adultery , and all other crimes .

What facts are contrary to the written Laws , may be known by the Laws themselves .

Besides written Laws , whatsoever is Just , proceeds from Equity , or Goodness .

From Goodness proceeds that which we are praised , or honoured for .

From Equity proceed those actions , which though the written Law command not , yet being interpreted reasonably , and supplyed , seems to require at our hands .

Actions of Equity are such as these .

Not too rigorously to punish Errors , Mischances , or Injuries .

To pardon the faults that adhere to Mankind .

And not to consider the Law so much , as the Law-makers mind ; and not the Words so much , as the meaning of the Law .

And not to regard so much the Fact , as the intention of the Doer ; nor part of the Fact , but the Whole ; nor what the Doer is , but what he has been always , or for the most part .

And to remember better the Good received , than the Ill.

And to endure injuries patiently .

And to submit rather to the sentence of a Judge , than of the Sword .

And to the sentence of an Arbitrator , rather than of a Judge .

CHAP. XV.

Of the Colours or Common Opinions concerning Injuries , comparatively .

COmmon Opinions concerning Injuries comparatively , are such as these :

Greater is the Injury which proceed from greater Iniquity .

And from which proceedeth greater dammage .

And of which there is no revenge .

And for which there is no remedy .

And by occasion of which , he that hath received the Injury , hath done some mischief to himself .

He does the greater Injury , that does it first , or alone , or with few :

And he that does it often .

Greater Injury is that , against which Laws and Penalties were first made .

And that which is more brutal , or more approaching to the actions of beasts .

And that which is done upon more premeditation .

And by which more Laws are broken .

And which is done in the place of Execution .

And which is of greatest shame to him that receives the Injury .

And which is committed against well deservers .

And which is committed against the unwritten Law ; because good men should observe the Law for Justice , and not for fear of punishment .

And which is committed against the written Law ; because he that will do Injury neglecting the penalty set down in the written Law , is much more likely to transgress the unwritten Law , where there is no penalty at all .

CHAP. XVI .

Of Proofs Inartificial .

OF Artificial Proofs we have already spoken .

Inartificial Proofs , which we invent not , but make use of , are of five sorts .

1. Laws . And those are Civil , or written Law : the Law or Custom of Nations : and the universal Law of Nature .

2. Witness . And those are such as concern Matter ; and such as concern Manners . Also , they be ancient , or present .

3. Evidences , or Writings .

4. Question , or Torture .

5. Oaths . And those be either given , or taken , or both , or neither .

For Laws , we use them thus .

When the written Law makes against us , we appeal to the Law of Nature , alledging , That to be greatest Justice , which is greatest Equity .

That the Law of Nature is immutable ; the written Law mutable .

That the written Law is but seeming Justice ; the Law of Nature very Justice . And Justice is among those things which are , and not which seem to be .

That the Judge ought to discern between true and adulterate Justice .

That they are better men that obey unwritten , than written Laws .

That the Law against us does contradict some other Law . And when the Law has a double interpretation , that is , the true one , which makes for us .

And that the cause of the Law being abolished , the Law is no more of Validity .

But when the written Law makes for us , and Equity for the Adversary , we must alledge ,

That a man may use Equity , not as a liberty to judg against the Law ; but only as a security against being forsworn , when he knows not the Law .

That men seek not Equity because 't is good simply , but because good for them .

That it is the same thing not to make , and not to use the Law .

That as in other Arts , and namely in Physick , Fallacies are pernitious ; so in a Common-wealth 't is pernitious to use pretexts against the Law .

And that in Common-wealths well instituted , to seem wiser than the Laws , is prohibited .

For Witnesses , we must use them thus :

When we have them not , we must stand for Presumptions , and say ,

That in Equity sentence ought to be given according to the most probability .

That Presumptions are the testimony of the things themselves , and cannot be bribed .

That they cannot lye .

When we have witnesses , against him that has them not , we must say ,

That Presumptions , if they be false , cannot be punished .

That if Presumptions were enough , witnesses were superfluous .

For Writings , when they favour us ; we must say ,

That Writings are private and particular Laws ; and he that takes away the use of Evidences , abolisheth the Law .

That since Contracts and Negotiations pass by Writings , he that bars their use , dissolves humane Society .

Against them , if they favour the Adversary , we may say ,

That since Laws do not bind , that are fraudulently made to pass , much less Writings .

And that the Judge being to dispense Justice , ought rather to consider what is just , than what is in the Writing .

That Writings may be gotten by fraud or force ; but Justice by neither .

That the Writing is repugnant to some Law , Civil , or Natural ; or to Justice ; or to Honesty .

That 't is repugnant to some other writing before , or after .

That it crosses some commodity of the Judge ( which must not be said directly , but implyed cunningly . )

For the Torture , if the giving of it make for us , we must say ,

That 't is the only testimony that is certain .

But if it make for the Adversary , we may say .

That men inforced by Torture , speak as well that which is false , as that which is true .

That they who can endure , conceal the truth ; and they who cannot , say that which is false to be delivered from pain .

For Oaths ; he that will not put his

Adversary to his Oath , may alledge ,

That he makes no scruple to be forsworn .

That by swearing , he will carry the cause ; which not swearing , he must lose .

That he had rather trust his cause in the hand of the Judge , than of the Adversary .

He that refuseth to take the Oath , may say ,

That the matter is not worth so much .

That if he had been an evil man , he had sworn , and carryed his cause .

That to try it by swearing for a Religious man against an irreligious , is as hard a match , as to set a weak man against a strong in Combate .

He that is willing to take the Oath , may pretend .

That he had rather trust himself , than his Adversary ; and that 't is equal dealing for an irreligious man to give , and for a Religious man to take the Oath .

That 't is his duty to take the Oath , since he has required to have sworn Judges .

He that Offers the Oath may pretend ,

That he does piously commit his cause to the Gods .

That he makes his Adversary himself Judge .

That 't were absurd for him not to swear , that has required the Judges to be sworn .

And of these are to be compounded the Forms we are to use , when we would give , and not take the Oath ; or take , and not give ; or both give and take ; or neither give nor take .

But if one have sworn contrary to a former Oath , he may pretend ;

That he was forced .

That he was deceived , and that neither of these is Perjury , since Perjury is voluntary .

But if the Adversary do so , he may say ; That he that stands not to what he hath sworn , subverteth humane society .

And ( turning to the Judge ) What reason have we to require , that you should be sworn , that judge our cause ; when we will not stand to that we swear our selves .

And so much for Proofs inartificial .

BOOK . II.

CHAP. I.

The Introduction .

OF Belief proceeding from our Invention , that part which consisteth in proof , is already spoken of .

The other two parts follow ; whereof one ariseth from the manners of the Speaker ; the other from the passions of the Hearer .

The Principles , Colours , or Common Opinions upon which a mans belief is gronnded concerning the manners of him that speaks , are to be had partly out of that which hath been said before concerning Vertue , Book . 1. Chap. 9. partly out of those things which shall be said by and by , concerning the Passions . For a man is believed either for his Prudence , or for his Probity , which are Vertues ; or for good will : of which among the Passions .

The Principles concerning belief , arising from the passion of the Hearer , are to be gather'd from that which shall now be said of the several Passions in order .

In every one of which three things are to be considered . 1. First , how men are affected . 2. Secondly , Towards whom . 3. Thirdly , For what .

CHAP. II.

Of Anger .

ANger is desire of Revenge , joyned with grief for that he , or some of his , is , or seems to be neglected .

The object of Anger is always some particular , or individual thing .

In Anger there is also pleasure proceeding from the imagination of revenge to come .

To Neglect , is to esteem little or nothing : and of three kinds .

1. Contempt . 2. Crossing . 3. Contumely .

Contempt , is when a man thinks another of little worth in comparison to himself .

Crossing is the hinderance of another mans will without design to profit himself .

Contumely , is the disgracing of another for his own pastime .

The common Opinions concerning Anger are therefore such as follow .

They are easily Angry that think they are neglected .

That think they excell others ; as the Rich with the Poor ; the Noble with the Obscure , &c.

And such as think they deserve well .

And such as grieve to be hindered , opposed , or not assisted . And therefore sick men , poor men , Lovers , and generally all that desire , and attain not , are Angry with those that standing by , are not moved with their wants .

And such as having expected good , find evil .

Those that men are Angry with , are , Such as mock , deride , or jest at them .

And such as shew any kind of Contumely , towards them .

And such as despise those things which we spend most labour and study upon : and the more , by how much we seem the less advanced therein .

And our friends , rather than those that are not our friends .

And such as have honoured us , if they continue not .

And such as requite not our courtesie .

And such as follow contrary courses , i● they be our inferiors .

And our friends , if they have said , or done us evil , or not good .

And such as give not eare to our intreaty .

And such as are joyful , or calm in our distress .

And such as troubling us , are not themselves troubled .

And such as willingly hear or see our disgraces .

And such as neglect us in the presence of our Competitors ; of those we admire of those we would have admire us ; of those we reverence , and of those that reverence us .

And such as should help us , and neglect it .

And such as are in jest , when we are in earnest .

And such as forget us , or our Names .

An Orator therefore must so frame his Judg or Auditor by his Oration ; as to make him apt to Anger : and then make his Adversary appear such as men use to be Angry withal .

CHAP. III.

Of Reconciling , or Pacifying Anger .

REconciliation is the Appeasing of Anger .

Those to whom men are easily reconciled , are ,

Such as have not offended out of Neglect .

And such as have done it against their will .

And such as wish done the contrary of what they have done .

And such as have done as much to themselves .

And such as confess and repent .

And such as are humbled .

And such as do seriously the same things , that they do seriously .

And such as have done them more good heretofore , than now hurt .

And such as sue to them for any thing .

And such as are not insolent , nor mockers , nor slighters of others in their own disposition .

And generally such as are of a contrary disposition to those , whom men are usually angry withal .

And such as they fear or reverence .

And such as reverence them .

And such as have offended their Anger . Reconcilable are ,

Such as are contrarily affected to those whom we have said before to be easily angry .

And such as play , laugh , make merry , prosper , live in plenty ; and in sum , all that have no cause of grief .

And such as have given their anger time . Men lay down their Anger for these causes .

Because they have gotten the Victory .

Because the Offender has suffered more than they meant to inflict .

Because they have been revenged of another .

Because they think they suffer justly .

And because they think the revenge will not be felt , or not known that the revenge was theirs , and for such an injury .

And because the Offender is dead .

Whosoever therefore would asswage the anger of his Auditor , must make himself appear such , as men use to be reconciled unto : and beget in his Auditor such opinions , as make him reconcileable .

CHAP. IV.

Of Love and Friends .

TO Love , is to will well to another , and that for others , not for our own sake .

A Friend is he that loves , and he that is beloved .

Friends one to another , are they that naturally love one another .

A Friend therefore is he ,

That rejoyceth at anothers Good .

And that grieves at his hurt .

And that wishes the same with us to a third , whether good , or hurt .

And that is Enemy or Friend to the same man .

We love them ,

That have done good to us , or ours ; especially if much , readily , or in season .

That are our Friends Friends .

That are our Enemies Enemies .

That are Liberal .

That are Valiant .

That are Just.

And that we would have love us .

And good Companions .

And such as can abide Jests .

And such as break Jests .

And such as praise us , especially for somewhat that we doubt of in our selves .

And such as are neat .

And such as upbraid us not with our vices , or with their own benefits .

And such as quickly forget injuries .

And such as least observe our Errors .

And such as are not of ill Tongue .

And those that are ignorant of our Vices .

And such as cross us not when we are busie , or angry .

And such as are officious towards us .

And those that are like us .

And such as follow the same course or trade of life , where they impeach not one another .

And such as labour for the same thing , when both may be satisfied .

And such as are not ashamed to tell us freely their faults , so it be not in contempt of us , and the faults such , as the World , rather than their own Consciences Condemns .

And such as are ashamed to tell us of their very faults .

And such as we would have honour us , and not envie , but imitate us .

And such as we would do good to , except with greater hurt to our selves .

And such as continue their Friendship to the dead .

And such as speak their mind .

And such as are not terrible .

And such as we may rely on .

The several kinds of friendship , are Society , Familiarity , Consanguinity , Affinity , &c.

The things that beget love , are ,

The bestowing of Benefits . Gratis . Vnasked . Privately .

CHAP. V.

Of Enmity and Hatred .

THE Colours , or Common Opinions concerning Hatred are to be taken from the contrary of those , which concern Love and Friendship .

Hatred differs from Anger in this ,

That Anger regards only what is done to ones self ; but Hatred not .

And in this , that Anger regards particulars only ; the other universals also .

And in this , that Anger is curable , Hatred not .

And in this , that Anger seeks the vexation , Hatred the dammage of ones Adversary .

That with Anger there is always joyned Grief ; with Hatred not always .

That Anger may at length be satiated , but Hatred never .

Hence it appears how the Judge or Auditor may be made Friend or Enemy to us ; and how our Adversary may be made appear Friend or Enemy to the Judge ; and how we may answer to our Adversary , that would make us appear Enemies to him .

CHAP. VI.

Of Fear .

FEar is a trouble , or vexation of the mind , arising from the apprehension of an evil at hand , which may hurt or destroy .

Danger is the nearness of the evil feared .

The things to be Feared , are , Such as have power to hurt .

And the signs of will to do us hurt , as Anger and Hatred of powerful men .

And Injustice joyned with power .

And Valour provoked , joyned with power .

And the fear of powerful men .

The men that are to be feared , are , Such as know our faults .

And such as can do us Injury .

And such as think they are injured by us .

And such as have done us Injury .

And our Competitors in such things as cannot satisfie both .

And such as are feared by more powerful men than we are .

And such as have destroyed greater men than we are .

And such as use to invade their inferiours .

And men not passionate , but dissemblers , and crafty , are more to be feared than those that are hasty and free .

The things especially to be feared , are ,

Such , wherein if we err , the error cannot be repaired ; at least , not according to ours , but our Adversaries pleasure .

And such as admit either none , or not easie help .

And such as being done , or about to be done to others , make us pitty them .

They that fear not , are ,

Such as expect not evil ; or not now ; or not this ; or not from these .

And therefore men fear little in prosperity .

And men fear little that think they have suffered already .

An Orator therefore that wouldput Fear into the Auditor , must let him see that he is obnoxious ; and that greater than he do suffer , and have suffer'd from those , and at those times they least thought .

CHAP. VII .

Of Assurance .

ASsurance is hope , arising from an imagination that the help is near , or the evil afar off .

The things therefore that beget Assurance are ,

The remoteness of those things that are to be feared , and the nearness of their contraries .

And the facility of great , or many helps or remedies .

And neither to have done ; nor received Injury .

And to have no Competitors or not great ones , or if great ones , at least friends ; such as we have obliged , or are obliged to .

And that the danger is extended to more , or greater than us .

Assured , or Confident , are , They that have oft escaped danger .

And they to whom most things have succeeded well .

And they that see their Equals , or inferiours not afraid .

And they that have wherewith to make themselves feared , as wealth , strength , &c.

And such as have done others no wrong .

And such as think themselves in good terms with God Almighty .

And such as think they will speed well , that are gone before .

CHAP. VIII .

Of Shame .

SHame is a perturbation of the Mind arising from the apprehension of Evil , past , present , or to come , to the prejudice of a mans own , or his friends reputation .

The things therefore which men are ashamed of are those Actions which proceed from Vice , as ,

To throw away ones Arms ; to run away , signs of Cowardliness .

To deny that which is committed to ones trust , a sign of Injustice .

To have lyen with whom , where , and when we ought not , signs of Intemperance .

To make gain of small and base things ; not to help with money whom and how much we ought ; to receive help from meaner men ; to ask money at use from such as one thinks will borrow of him ; to borrow of him that expects payment of somewhat before lent ; and to redemand what one has lent , of him that one thinks will borrow more ; and so to praise , as one may be thought to ask ; signs of Wretchedness .

To praise one to his face ; to praise his vertues too much , and colour his vices ; Signs of Flattery .

To be unable to indure such labours as men indure that are elder , tenderer , greater in quality , and of less strength than he , signs of Effeminacy .

To be beholden often to another ; and to upbraid those that are beholding to him , signs of Pusillanimity .

To speak and promise much of ones self more than his due , signs of Arrogance .

To want those things which ones Equals , all , or most of them have attained to , is also a thing to be ashamed of .

And to suffer things ignominious , as to serve about anothers person ; or to be imployed in his base actions .

In Actions of Intemperance , whether willingly , or unwillingly committed ; there is shame in Actions of Force , only when they are done unwillingly .

The men before whom we are ashamed , are such as we respect ; namely ,

Those that admire us .

And those whom we desire should admire us .

And those whom we admire .

Those that contend with us for Honour .

Those whose opinion we contemn not .

And therefore men are most ashamed in the presence .

Of old and well bred men .

Of those we are always to live with .

Of those that are not guilty of the same fault .

Of those that do not easily pardon .

And of those that are apt to reveal our faults ; such as are men injured , Backbiters , Scoffers , Comick Poets .

And of those before whom we have had always good success .

And of those who never asked any thing of us before .

And of such as desire our Friendship .

And of our familiars , that know none of our Crimes .

And of such as will reveal our faults to any of those that are named before .

But in the presence of such whose judgment most men despise , men are not ashamed .

Therefore we are ashamed also in the presence

Of those whom we reverence .

And of those who are concerned in our own , or Ancestors , or Kinsfolks actions or misfortunes , if they be shameful .

And of their Rivals .

And of those that are to live with them that know their disgrace .

The Common Opinions concerning Impudence are taken from the contrary of these .

CHAP. IX .

Of Grace , or Favour .

GRace is that Vertue , by which a man is said to do a good turn , or do service to a man in need ; not for his own but for his cause to whom he does it .

Great Grace is when the need is great ; or when they are hard , or difficult things that are conferr'd , or when the time is seasonable , or when he that conferr's the favour is the only , or first man that did it .

Need , is a desire joyned with grief for the absence of the thing desired .

Grace therefore it is not , if it be not done to one that needs .

Whosoever therefore would prove that he has done a Grace , or Favour , must shew that he needeth it to whom it was done .

Grace it is not ,

Which is done by Chance .

Nor which is done by Necessity .

Nor which has been requited .

Nor that which is done to ones Enemy .

Nor that which is a trifle .

Nor that which is nought , if the Giver know the fault .

And in this manner a man may go over the Praedicaments , and examine a benefit , whether it be a Grace for being This , or for being so Much , or for being Such , or for being Now , &c.

CHAP. X.

Of Pity , or Compassion .

PIty is a perturbation of the mind , arising from the apprehension of hurt o● trouble to another that doth not deserve it , and which he thinks may happen to himself , or his .

And because it appertains to Pity , it think that he , or his may fall into the misery he pities in others , it follows that they be most compassionate ,

Who have passed through Misery .

And old Men.

And weak Men.

And timorous Men.

And learned Men.

And such as have Parents , Wife , and Children .

And such as think there be honest Men. And that they are Iess Compassionate .

Who are in great despair .

Who are in great prosperity .

And they that are Angry ; for they consider not .

And they that are very confident ; for they also consider not .

And they that are in the Act of contumely ; for neither do these consider .

And they that are astonished with fear . And they that think no Man honest .

The things to be pitied are , Such as grieve , and withal hurt . Such as destroy .

And Calamities of fortune , if they be great : as none or few friends , deformity , weakness , lameness , &c.

And evil that arrives where good is expected .

And after extream Evil , a little Good .

And through a Mans life to have no good offer it self ; or being offer'd , not to have been able to enjoy it .

Men to be pitied are ,

Such as are known to us , unless they be so near to us , as their hurt be our own .

And such as be of our own years .

Such as are like us in manners .

Such as are of the same , or like stock .

And our Equals in dignity .

Those that have lately suffer'd , or are shortly to suffer injury : and those that have the marks of injury past .

And those that have the words or actions of them that be in present misery .

CHAP. XI .

Of Indignation .

OPposite in a manner to Pity in good Men , is Indignation , which is grief for the prosperity of a Man unworthy .

With Indignation there is always joyned a joy for the prosperity of a Man worthy , as Pity is always with contentment in the adversity of them that deserve it .

In wicked Men the opposite of pity is , Envy ; as also the companion thereof , delight in the harm of others , which the Greeks in one word have called 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . But of these in the next Chapter .

Men conceive Indignation against others , not for their vertues , as Justice , &c.

For these make Men worthy ; and in Indignation we think Men unworthy .

But for those goods which men indued with vertue , and noble Men , and handsome Men are worthy of .

And for newly gotten power and riches , rather than for antient , and especially if by these he has gotten other goods , as by Riches , Command . The reason why we conceive greater Indignation against new than antient Riches , is , that the former seem to possess that which is none of theirs . But the antient seem to have but their own . For with common people , to have been so long , is to be so by Right .

And for the bestowing of goods incongruously : as when the arms of the most valiant Achilles were bestowed on the most eloquent Vlysses .

And for the comparison of the Inferiour in the same thing , as when one Valiant is compared with a more Valiant ; or whether absolutely Superiour , as when a good Scholer is compared with a good Man .

Apt to Indignation are ,

They that think themselves worthy of the greatest goods , and do possess them .

And they that are good .

And they that are ambitious .

And such as think themselves deserve better what another possesseth , than he that hath it .

Least apt to Indignation are ,

Such as are of a poor , servile , and not ambitious Nature .

Who they are , that Rejoyce , or Grieve not at the Adversity of him that suffers worthily , and in what occasions , may be gathered from the contrary of what has been already said .

Whosoever therefore would turn away the compassion of the Judge , he must make him apt to Indignation ; and shew that his Adversary is unworthy of the Good , and worthy of the Evil which happens to him .

CHAP. XII .

of Envy .

ENvy is grief , for the prosperity of such as our selves , arising not from any hurt that we , but from the good that they receive .

Such as our selves , I call those that are equal to us in blood , in age , in abilities , in glory , or in means .

They are apt to Envy ,

That are within a little of the highest .

And those that are extraordinarily honoured for some quality that is singular in them , especially Wisdom or good Fortune .

And such as would be thought wise .

And such as catch at glory in every action .

And Men of poor spirits : for every thing appears great to them .

The things which Men Envy in others are ,

Such as bring Glory .

And goods of Fortune .

And such things as we desire for our selves .

And things in the possession whereof we exceed others , or they us a little .

Obnoxious to Envy are ,

Men of our own time , of our own Countrey , of our own Age , and Competitors of our Glory .

And therefore ,

Those whom we strive with for Honour .

And those that covet the same things that we do .

And those that get quickly , what we hardly obtain , or not at all .

And those that attain unto , or do the things that turn to our reproach , not being done by us .

And those that possess what we have possessed heretofore . So old and decayed Men Envy the young and lusty .

And those that have bestowed little , are subject to be Envyed by such as have bestowed much upon the same thing .

From the contraries of these may be derived the Principles concerning Joy for other Mens hurt .

He therefore that would not have his Enemy prevail , when he craves pity , or other favour ; must dispose the Judge to Envy ; and make his Adversary appear such , as are above described , to be subject to the Envy of others .

CHAP. XIII .

Of Emulation .

EMulation is grief arising from that our Equals possess such goods as are had in honour , and whereof we are capable , but have them not ; not because they have them , but because not we also .

No Man therefore Emulates another in things whereof himself is not capable .

Apt to Emulate are ,

Such as esteem themselves worthy of more than they have .

And Young and Magnanimous Men.

And such as already possess the goods for which Men are honoured : for they measure their worth by their having .

And those that are esteemed worthy by others .

And those whose Ancestors , Kindred , Familiars , Nation , City , have been eminent for some good , do Emulate others for that good .

Objects of Emulation are , for things ; Vertues .

And things whereby we may profit others .

And things whereby we may please others .

For Persons ,

They that possess such things .

And such as many desire to be friends or acquainted with , or like unto .

And they whose praises flie abroad ,

The contrary of Emulation is Contempt .

And they that Emulate such as have the goods aforementioned , Contemn such as have them not : and thence it is , that Men who live happily enough , unless they have the goods which Men honour , are nevertheless Contemned .

CHAP. XIV .

Of the Manners of Youth .

OF Passions we have already spoken . We are next to speak of Manners . Manners are distinguished by Passions ; Habits , Ages , and Fortunes .

What kind of Manners proceed from Passions , and from Vertues and Vices ( which are Habits , ) hath been already shewed .

There remains to be spoken of the Manners , that are peculiar to several Ages and Fortunes .

The Ages are Youth , Middle-Age , Old Age.

And first of Youth .

Young Men are ,

Violent in their desires .

Prompt to execute their desires .

Incontinent .

Inconstant , easily forsaking what they desired before .

Longing mightily , and soon satisfied .

Apt to anger , and in their anger Violent : and ready to execute their anger with their hands .

Lovers of Honour , and of Victory more than Money , as having not been yet in Want .

Well natured , as having not been acquainted with much malice .

Full of hope , both because they have not yet been often frustrated , and because they have by natural heat that disposition that other Ages have by Wine ; Youth being a kind of natural drunkenness . Besides , Hope is of the time to come , whereof Youth hath much , but of the time past little .

Credulous , because not yet often deceived .

Easily deceived , because full of Hope .

Valiant , because apt to Anger and full of Hope ; whereof this begets confidence , the other keeps off Fear .

Bashful , because they estimate the Honour of Actions by the precepts of the Law .

Magnanimous , because not yet dejected by the misfortunes of humane life .

And lovers of Honour more than of Profit , because they live more by Custom than by Reason ; and by Reason we acquire Profit , but Vertue by Custom .

Lovers of their Friends and Companions .

Apt to err in the excese , rather than the defect , contrary to that precept of Chilon , Ne quid nimis ; for they overdo every thing : they Love too much , and Hate too much , because thinking themselves wise , they are obstinate in the opinion they have once delivered .

Doers of Injury rather for Contumely than for dammage .

Mercifull , because measuring others by their own Innocence , they think them better than they be , and therefore less to merit what they suffer ; which is a cause of Pity .

And Lovers of Mirth , and by consequence such as love to jest at others .

Jesting is witty Contumely .

CHAP. XV.

Of the Manners of Old Men.

THe Manners of Old Men are in a manner the contraries of those of Youth . They determine nothing : they do every thing less vehemently than is fit : they never say they know ; but to every thing they say , perhaps and peradventure ; which comes to pass from that having lived long , they have often mistaken and been deceived .

They are peevish because they interpret every thing to the worst .

And suspicious through Incredulity , and Incredulous by reason of their Experience .

They Love and Hate , as if they meant to continue in neither .

Are of poor spirits , as having been humbled by the chances of life .

And Covetous , as knowing how easie 't is to lose , and hard to get .

And Timorous , as having been cooled by years .

And greedy of life : for good things seem greater by the want of them .

And Lovers of themselves out of Pusilla●imity .

And seek Profit more than Honour , because they love themselves ; and Profit is among the goods that are not simply good , but good for ones self .

And without bashfulness , because they despise seeming .

And hope little ; knowing by Experience that many times good Counsel has been followed with ill event , and because also they be timorous .

And live by Memory rather than Hope ; for Memory is of the time past , whereof Old Men have good store .

And are full of Talk , because they delight in their Memory .

And Vehement in their anger ; but not stout enough to execute it .

They have weak , or no desires ; and thence seem Temperate .

They are slaves to Gain .

And live more by reason than Custom ; because reason leads to Profit , as Custom to that which is Honourable .

And do Injury to indammage , and not in Contumely .

And are merciful by Compassion , or imagination of the same Evils in themselves which is a kind of Infirmity , and not Humanity , as in Young Men , proceeding from a good opinion of those that suffer Evil.

And full of complaint , as thinking themselves not far from Evil , because of their Infirmity .

Seeing then every Man loves such Men , and their discourses , which are most agreeable to their own Manners ; 't is not hard to collect , how the Orator , and his Oration may be made acceptable to the Hearer , whether Young or Old .

CHAP. XVI .

Of the Manners of Middle-aged men .

THe Manners of Middle-aged men , are between those of Youth , and Old Men , and therefore ,

They neither dare , nor fear too much : but both as is fit .

They neither believe all ; nor reject all ; but judge .

They seek not only what is Honourable , nor only what is Profitable ; but both .

They are neither Covetous , nor Prodigal ; but in the mean .

They are neither easily angry ; nor yet stupid : but between both .

They are Valiant , and withal Temperate .

And in general , whatsoever is divided in Youth , and Old Men : is compounded in Middle-age .

And whereof the Excess , or Defect is in Youth or Old Men ; the Mediocrity is in those of Middle-age .

Middle-age for the Body , I call the time from thirty to five and thirty years : for the Mind , the nine and fortieth , or thereabouts .

CHAP. XVII .

Of the Manners of the Nobility .

OF Manners that proceed from the several Ages we have already spoken .

We are next to speak of those that rise from several Fortunes .

The Manners of the Nobility are ,

To be Ambitious .

To undervalue their Ancestors Equals . For the goods of Fortune seem the more precious for their Antiquity .

Nobility is the Vertue of a Stock .

And Generosity , is not to degenerate from the vertue of his Stock .

For as in Plants ; so in the Races of Men , there is a certain progress ; and they grow better and better to a certain point ; and change , viz. Subtil Wits into Madness ; and staid wits into stupidity and Blockishness .

CHAP. XVIII .

Of the Manners of the Rich.

RIch Men are Contumelious , and Proud . This they have from their Riches . For seeing every thing may be had for Money , having Money , they think they have all that is good .

And Effeminate ; because they have wherewithal to subminister to their Lust.

And Boasters of their Wealth : and speak in high terms foolishly . For Men willingly talk of what they love and admire ; and think others affect the same that they do : and the truth is , all sorts of Men submit to the Rich.

And think themselves worthy to command , having that by which Men attain Command .

And in general , they have the Manners of Fortunate Fools .

They do Injury , with intention not to hurt , but to disgrace ; and partly also through Incontinence .

There is a difference between New and Ancient Riches : for they that are newly come to Wealth have the same faults in a greater degree : for New Riches are a kind of rudeness and apprentiship of Riches .

CHAP. XIX .

Of the Manners of Men in Power , and of such as prosper .

THe Manners of Men in Power , are the same , or better than those of the Rich.

They have a greater sense of Honour than the Rich ; and their Manners are more Manly .

They are more Industrious than the Rich: for Power is sustained by Industry .

They are Grave , but without Austereness : for being in place conspicuous , they carry themselves the more modestly ; and have a kind of gentle and comely Gravity , which the Greeks call 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 .

When they do Injuries , they do great ones .

The Manners of Men that prosper , are compounded of the Manners of the Nobility , the Rich , and those that are in Power , for to some of these all Prosperity appertains .

Prosperity in Children , and goods of the Body , make Men desire to exceed others in the goods of Fortune .

Men that Prosper have this ill , to be more proud , and inconsiderate than others .

And this good ; that they worship God , trusting in him , for that they find themselves to receive more good than proceeds from their Industry .

The Manners of Poor Men , Obscure Men , Men without Power , and Men in Adversity , may be collected from the Contrary of what has been said .

CHAP. XX.

Common Places or Principles concerning what May be Done , what Has been Done , and what Shall be Done ; or of Fact Possible , Past and Future . Also of Great and Little .

WE have hitherto set down such Principles as are peculiar to several kinds of Orations .

Now we are to speak of such Places as are Common to them all ; as these , Possible , Done , or Past , Future , Great , Small .

Possible is that ,

The Gontrary whereof is Possible .

And the like whereof is Possible .

And then which some harder thing is Possible .

And the beginning whereof is Possible .

And the end whereof is Possible .

And the usual consequent whereof is Possible .

And whatsoever we desire .

And the beginning whereof is in the power of those whom we can either compell or perswade .

And part whereof is Possible .

And part of the whole that is possible .

And the General if a Particular .

And a Particular if the General .

And of Relatives , if one , the other .

And that which without Art and Industry is Possible , is much more so with Art and Industry .

And that which is Possible to Worse , Weaker , and Unskilfuller Men , is much more so to Better , Stronger , and more Skilful .

The Principles concerning Impossible are the Contraries of these .

That Has been done ,

Then which a harder thing has been Done .

And the Consequent whereof has been done .

And that which being Possible , he had a will to , and nothing hindered .

And that which was Possible , to him in his Anger .

And that which he longed to do .

And that which was before upon the point of doing .

And whose antecedent has been Done ; or that , for which it uses to be Done .

And if that , for whose cause we do this , than this .

The Principles concerning Not done are the Contraries of these .

That Shall be done .

Which some Man can , and means to do .

And which some Man can , and desires to do .

And which is in the way , and upon the point to be done .

And the antecedents whereof are past .

And the Motive whereof is past .

Of Great and Small , More and Less , see Chap. 7. Book . 1.

CHAP. XXI .

Of Example , Similitude , and Fables .

OF the Principles both general and special from whence Proofs are to be drawn , has been already spoken .

Now follow the Proofs themselves which are Examples or Enthymemes .

An Example is either an Example properly so called ( as some Action past : ) or a Similitude ( which also is , called a Parable : ) or a Fable ( which contains some Action feigned . )

An Example properly so called , is this ; Darius came not into Greece , till he had first subdued Aegypt . Xerxes also conquered Aegypt first ; then afterwards crossed the Hellespont . We ought therefore to hinder the King of Persia from conquering Aegypt .

A Similitude , or Parable , is such as followeth : They who choose their Magistrates by Lot , are like them that choose for their Champions those on whom the Lot shall fall , rather than those who have the greatest strength ; and for their Pilot , not him that hath skill ; but him whose name is drawn out of the Vrne .

A Fable is in this manner . The Horse desiring to drive out the Stag from his common

Such as are not manifest ; are either Conclusions of Enthymemes ; as

He that 's wise will not suffer his Children , &c.

Or else are Enthymematical ; that is ; have in themselves the force of an Enthymeme ; as

Mortal Men ought not to carry Immortal Anger .

A Sentence not Manifest , ought to be either Inferr'd , or Confirm'd .

Inferr'd thus .

'T is not good to be effeminately minded , nor to be envyed by ones fellow Citizens . A wise Man therefore will not have his Children over-learned .

Confirm'd thus .

A wise Man will not have his Children over-learned , seeing too much Learning both softens a Mans mind , and procures him envy among his fellow Citizens .

If a reason be added to a manifest Sentence let it be short .

Sentences become not every Man ; but only old Men , and such as be well versed in business . For to hear a young Man speak Sentencee , is ridiculous ; and to hear an ignorant Man speak Sentences , is absurd .

Sentences generally received , when they are for our purpose , ought not to be neglected , because they pass for truths . And yet they may be denyed , when any laudable custom , or humour may thereby be made appear in the Denyer .

The commodities of Sentences , are two .

One proceeding from the Vanity of the Hearer , who takes for true universally affirmed , that which he has found for true only in some particular ; and therefore a Man ought to consider in every thing what opinion the Hearer holds .

Another is , that Sentences do discover the manners and disposition of the speaker ; so that if they be esteemed good Sentences , he shall be esteemed a good Man ; and if evil , an evil Man .

Thus much of Sentences , what they be ; of how many sorts ; how to be used ; whom they become ; and what is their profit .

CHAP. XXIII .

Of the Invention of Enthymemes .

SEeing an Enthymeme differs from a Logical Syllogisme , in that it neither concludes out of every thing , nor out of remote Principles ; the Places of it , from whence a Man may argue ought to be certain , and determinate .

And because whosoever makes a Syllogisme Rhetorical , or other , should know all , or the most part of that which is in question ; as , whosoever is to advise the Athenians in the question , whether they are to make War or no , must know what their Revenues be ; what , and what kind of power they have : and he that will praise them , must know their acts at Salamis , Marathon , &c. It will be necessary for a good speaker to have in readiness the choicest particulars of whatsoever he foresees he may speak of .

He that is to speak ex tempore , must comprehend in his speech as much as he can of what is most proper in the matter in hand .

Proper , I call those things which are least common to others ; as , he that will praise Achilles , is not to declare such things as are common both to him , and Diomedes ; as that he was a Prince , and Warred against the Trojans ; but such things as are proper only to Achilles ; as that he killed Hector and Cygnus ; went to the War young , and Voluntary .

Let this therefore be one general Place , from that which is proper .

CHAP. XXIV .

Of the Places of Enthymemes Ostensive .

FOrasmuch as Enthymemes either infer truly , or seem only so to do ; and they which do infer indeed , be either Ostensive ; or such as bring a Man to some impossibility ; we will first set down the Places of Enthymemes Ostensive .

And Ostensive Enthymeme is , wherein a Man concludes the question from somewhat granted .

That Enthymeme which brings a Man to an impossibility , is an Enthymeme wherein from that which the Adversary maintaineth , we conclude that which is manifestly impossible .

All Places have been already set down in a manner in the precedent Propositions of Good , Evil , Just , Vnjust , Honourable and Dishonourable : namely , they have been set down as applyed to particular Subjects , or in Concrete .

Here they are to be set down in another manner ; namely in the Abstract or Vniversal .

The first Place then let be from Contraries , which in the Concrete or Particulars is exemplified thus . If Intemperance be hurtful , Temperance is profitable : and if Intemperance be not hurtful ; neither is Temperance profitable .

Another Place may be from Cognomination or affinity of words : as in this Particular . If what is Just be Good ; then what is Justly is well : but Justly to die is not well : therefore not all that is Just is Good .

A third from Relatives ; as , This Man has Justly Done , therefore the other has Justly suffered . But this Place sometimes deceives for a Man may suffer justly , yet not from him .

A fourth from Comparison , three ways .

From the Great to the Less ; as , He has stricken his Father ; and therefore this Man .

From the Less to the Greater : as , The Gods know not all things ; much less Man .

From Equality : as , If Captains be not always the worse esteemed for losing a Victory ; why should Sophisters ?

Another from the Time : as Philip to the Thebans : If I had required to pass through your Country with my Army , before I had ●ayded you against the Phocaeans , there is no doubt but you would have promised it me . It is absurd therefore to deny it me now , after I have trusted you :

A Sixth from what the adversary says of himself : as , Iphicrates asked Aristophon , whether he would take a Bribe to betray the Army : and he answering no ; What ( says he ) is it likely that Iphicrates would betray the Army ; and Aristophon not ?

This Place would be ridiculous , where the Defendant were not in much more estimation than the accuser .

A seventh from the Definition ; as that of Socrates ; A Spirit is either God , or the Creature of God : and therefore he denies not that there is a God , that confesses there are Spirits .

An eighth from the distinction of an ambiguous word .

A Ninth from Division : as , If all Men do what they do for one of three causes , whereof two are impossible ; and the Accuser charge not the Defendant with the third ; it follows that he has not done it .

A Tenth from Induction : as , At Athens , at Thebes , at Sparta , &c. And therefore every where .

An Eleventh from Authority , or precedent sentence ; as that of Sappho , that Death is evil , for that the Gods have judged it so , in exempting themselves from mortality .

A Twelfth from the Consequence : as , 'T is not good to be envied ; Therefore neither to be Learned . 'T is good to be wise , therefore also to be instructed .

A Thirteenth from two contrary Consequences ; as , 'T is not good to be an Orator , because if he speak the truth , he shall displease Men : If he speak falsely , he shall displease God .

Here is to be noted , that sometimes this argument may be retorted : as thus , If you speak truth , you shall please God ; if you speak untruth you shall please Men ; therefore by all means be an Orator .

A Fourteenth from the quality that Men have to praise one thing , and approve another ▪ as , We ought not to War against the Athenians upon no precedent injury ; for all Men discommend injustice . Again , We ought to War against the Athenians ; for otherwise our Liberty is at their mercy , that is , is no Liberty : but the preservation of Liberty is a thing that all Men will approve .

A Fifteenth from Proportion : as , seeing we naturalize strangers for their virtues , why should we not Banish this stranger for his vices ?

A Sixteenth from the similitude of Consequents : as , He that denies the immortality of the Gods , is no worse than he that has Written the generation of the Gods . For the same Consequence follows of both , that sometimes there are none .

A Seventeenth from that , that Men change their mind : as , If when we were in Banishment , we fought to recover our Countrey , why should we not fight now to retain it ?

An Eighteenth from a fained end : as , that Diomedes chose Ulysses to go with him , not as more Valiant than another ; but as one that would partake less of the Glory .

A Nineteenth from the Cause ; as if he would infer he did it from this , that he had cause to do it .

A Twentieth from that which is Incredible , but True : as , that Laws may need a Law to mend them ; as well as Fish Bred in the salt Water , may need salting .

CHAP. XXV .

Of the Places of Enthymemes that lead to I●possibility .

LEt the first Place be from inspection 〈◊〉 Times , Actions , or Words , either of the Adversary , or of the Speaker , or Both. O● the Adversary ; as , He says , he loves the People , and yet he was in the conspiracy of the Thirty . Of the Speaker ; as , He says , I am contentious , and yet I never began Suit . Of Both ; as He never conferr'd any thing to the benefit of the Commonwealth , whereas I have ransomed divers Citizens with mine own Money .

A Second from shewing the cause of that which seemed amiss , and serves for Men of good reputation that are accused ; as , The Mother that was accused of Incest for being seen Imbracing her Son , was absolved as soon as she made appear , that she imbraced him upon his arrival from far , by way of Salutation .

A Third , from rendring of the cause ; as , Leodamas . to whom it was objected , that he had , under the Thirty Tyrants , defaced the Inscription ( which the People had set up in a Pillar ) of his Ignominy ; answered , He had not done it ; because it would have been more to his commodity to let it stand ; thereby to indear himself to the Tyrants , by the Testimony of the Peoples hatred .

A Fourth from better Counsel ; as , He might have done better for himself ; therefore he did not this . But this Place deceives , when the better Counsel comes to mind after the Fact .

A Fifth , from the Incompatibility of the things to be done ; as , They that did deliberate whether they should both Mourn and Sacrifice at the Funeral of Leucothea , were told , that if they thought her a Goddess , they ought not to Mourn ; and if they thought her a Mortal , they ought not to Sacrifice .

A Sixth ( which is proper to Judicial Orations ) from an Inference of Errour ; as , If he did it not , he was not wise , therefore he did it .

Enthymemes that lead to Impossibility , please more than Ostensive : for they compare , and put contraries together , whereby they are the better set off , and more conspicuous to the Auditor .

Of all Enthymemes , they be best , which we assent to as soon as hear . For such consent pleaseth us ; and makes us favourable to the speaker .

CHAP. XXVI .

Of the Places of seeming Enthymemes .

OF seeming Enthymemes , one Place may be from the Form of speaking ; as when a Man has repeated divers Sentences , he brings in his Conclusion , as if it follow'd necessarily , though it do not .

A Second from an ambiguous word .

A Third from that which is true divided , to that which is false joyned ; as that of Orestes , It was justice that I should Revenge my Fathers death , and it was justice my Mother should die for killing my Father , therefore I justly killed my Mother . Or from that which is true joyned , to that which is false divided ; as , one cup of Wine , and one cup of Wine , are hurtful ; therefore one cup of Wine is hurtful .

A Fourth from Amplification of the Crime . For neither is the Defendant likely to have committed the Crime he amplifies ; nor does the Accuser seem , when he is Passionate , to want ground for his Accusation .

A Fifth from signs ; as , when a Man concludes the doing of the Fact from the manner of his life .

A Sixth from that which comes by chance , as if from this , that the Tyranny of Hipparthus came to be overthrown from the love of Aristogeiton to Harmodius , a Man should conclude , that in a free Commonwealth loving of Boyes were profitable .

A Seventh from the Consequence , as Banishment is to be desired , because a Banish'd Man has choice of places to dwell in .

An Eighth from making that the cause which is not ; as , In Demosthenes his Government , the War began ; therefore Demosthenes Governed well . With the Peloponnesian War began the Plague , therefore Pericles that perswaded that War , did ill .

A Ninth from the Omission of some circumstance , as , Helen did what was Lawful , when she ran away with Paris , because she had her Fathers consent to choose her own Husband ; which was true only during the time that she had not chosen .

A Tenth , from that which is probable in some case , to that mhich is probable simply ; as , 'T is probable , he fore-saw , that if he did it , he should be suspected ; therefore 't is probable he did it not .

From this Place one may infer both ways that he did it not . For if he be not likely to do it , it may be thought he did it not : again , if he were likely to do it , it may be thought he did it not , for this , that he knew he should be suspected .

Upon this Place was grounded the Art which was so much detested in Protagor●● , of making the better cause seem the worse ▪ and the worse the better .

CHAP. XXVII .

Of the wayes to answer the Arguments of the Adversary .

AN Argument is answered by an opposite Syllogisme , or by an Objection .

The Places of opposite Syllogismes are the same with the Places of Syllogismes , or Enthymemes : for a Rhetorical Syllogisme is an Enthymeme .

The Places of Objections are four .

First , from the same , as , To the Adversary that proves Love to be good by an Enthymeme , may be objected , that no want is good , and yet Love is want ; or particularly thus ; The Love of Myrrha to her Father was not good .

The Second from Contraries : as , if the Adversary say , A good Man does good to his friends , an Objection might be made , that then an evil Man will do also evil to his friends .

The Third From Similitude : as thus , if the Adversary say , all Men that are injured , do hate those that have injured them , it may be Objected , that then , all Men that had received Benefits should love their Benefactors , that is to say , be grateful .

The Fourth from the authority of famous Men ; as when a Man shall say , that drunken Men ought to be pardoned those Acts they do in their drunkenness , because they know not what they do ; the Objection may be , that Pittacus was of another mind , that appointed for such Acts a double punishment ; one for the Act , another for the Drunkenness .

And forasmuch as all Enthymemes are drawn from Probability , or Example , or from a Sign Fallible , or from a Sign infallible : an Enthymeme from Probability may be confuted Really , by shewing that for the most part it falls out otherwise ; but Apparantly , or Sophistically , by shewing only that it does not fall out so alwayes ; whereupon the Judge thinks the Probability not sufficient to ground his Sentence upon .

[ The Reason whereof is this , That the Judge , while he hears the Fact proved Probable , conceives it as true . For the Understanding has no Object but Truth . And therefore by and by , when he shall hear an Instance to the contrary ; and thereby find that he had no necessity to think it true , presently changes his opinion , and thinks it false , and consequently not so much as Probable . For he cannot at one time think the same thing both Probable and False : and he that says a thing is Probable , the meaning is , he thinks it True , but finds not arguments enough to prove it . ]

An Enthymeme from a fallible sign , is answered , by shewing the sign to be fallible .

An Enthymeme from an Example , is answered , as an Enthymeme from Probability ; Really , by shewing more Examples to the contrary ; Apparently , if he bring Examples enough to make it seem not necessary .

If the Adversary have more Examples than we , we must make appear , that they are not applycable to the Case .

An Enthymeme from an infallible Sign , if the Proposition be true , is unanswerable .

CHAP. XXVIII .

Amplification and Extenuation are not Common Places . Enthymemes by which Arguments are answered , are the same with those by which the matter in question is proved , or disproved . Objections are not Enthymemes .

THe first , that Amplification and Extenuation are not Common Places , appears by this , that Amplification , and Extenuation do prove a fact to be great , or little ; and are therefore Enthymemes , to be drawn from Common Places , and therefore are not the Places themselves .

The Second , that Enthymemes , by which Arguments are answered , are of the same kind with those by which the matter in question is proved , is manifest by this , that these infer the opposite of what was proved by the other .

The Third , that an Objection is no Enthymeme , is apparent by this , that an Objection is no more but an Opinion , Example , or other Instance , produced to make appear , that the Adversaries Argument does not conclude .

Thus much of Examples , Sentences , Enthymemes , and generally of all things that belong to Argumentation ; from what Places they may be drawn , or answered .

There remains Elocution , and Disposition to be spoken of in the next Book .

BOOK . III.

CHAP. I.

Of the Original of Elocution and Pronuntiation .

THree things being necessary to an Oration , namely Proof , Elocution and Disposition ; we have done with the first , and shall speak of the other two in that which follows .

As for Action , or Pronunciation , so much as is necessary for an Orator , may be fetcht out of the Book of the Art of Poetry , in which we have treated of the Action of the Stage .

For Tragedians were the first that invented such Action , and that but of late ; and it consisteth in governing well the Magnitude , Tone , and Measure of the Voice ; a thing less subject to Art , than is either Proof , or Elocution .

And yet there have been Rules delivered concerning it , as far forth as serve for Poetry .

But Oratorical Action has not been hitherto reduced to Art .

And Orators in the beginning , when they saw that the Poets in barren and feigned Arguments , nevertheless attained great Reputation ; supposing it had proceeded from the choice , or connexion of words , fell into a Stile , by imitation of them , approaching to Verse , and made choice of words .

But when the Poets changed their Stile , and laid by all words that were not in common use , the Orators did the same , and lighted at last upon words , and a Government of the Voice and Measures proper to themselves .

Seeing therefore Pronuntiation , or Action are in some degree necessary also for an Orator , the Precepts thereof are to be fetcht from the Art of Poetry .

[ In the mean time this may be one general Rule . If the Words , Tone , Greatness of the Voice , Gesture of the Body and Countenance , seem to proceed all from one Passion , then 't is well pronounced . Otherwise not .

For when there appear more passions than one at once , the mind of the Speaker appears unnatural and distracted . Otherwise , as the mind of the Speaker , so the mind of the Hearer always . ]

CHAP. II.

Of the choise of Words and Epithets .

THe Vertues of a Word are two ; the first , that it be perspicuous ; the second , that it be decent ; that is , neither above , nor below the thing signified ; or , neither too humble , nor too fine .

Perspicuous are all Words that be Proper .

Fine Words are those , that are borrowed , or Translated from other significations ; of which in the Art of Poetry .

The reason why borrowed Words please , is this . Men are affected with Words , as they are with Men , admiring in both that which is Forreign and New .

To make a Poem graceful , many things help ; but few an Oration .

For to a Poet it sufficieth with what Words he can to set out his Poem : but an Orator must not only do that : but also seem not to do it : for else he will be thought to speak unnaturally , and not as he thinks ; and thereby be the less believed ; whereas belief is the scope of his Oration .

The Words that an Orator ought to use are of three sorts . Proper ; Such as are Received ; and Metaphors .

Words taken from Forraign Languages , Words compounded , and Words new coyned are seldom to be used .

Synonimaes belong to Poets , and Equivocal words to Sophisters .

An Orator , if he use Proper words , and Received , and good Metaphors , shall both make his Oration beautiful , and not seem to intend it ; and shall speak perspicuously . For in a Metaphor alone there is perspicuity , Novity , and Sweetness .

Concerning Metaphors the Rules are these .

1. He that will make the best of a thing , let him draw his Metaphor from somewhat that is better . As for Example , let him call a Crime , an Error . On the other side , when he would make the worst of it , let him draw his Metaphor from somewhat worse , as , calling Error , Crime .

2. A Metaphor ought not to be so far fetcht , as that the Similitude may not easily appear .

3. A Metaphor ought to be drawn from the noblest things , as the Poets do that choose rather to say , Rosy-finger'd ; then Red finger'd Aurora .

In like manner the Rule of Epithets is ,

That he that will adorn , should use those of the better sort ; and he that will disgrace should use those of the worse : as Simonides being to Write an Ode in honour of the Victory gotten in a Course by certain Mules , being not well paid , called them by their name [ 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ] that signifies their propinquity to Asses : but having received a greater reward , Stiles them the Sons of swift footed Coursers .

CHAP. III.

Of the things that make an Oration Flat .

THe things that make an Oration flat , or insipide , are four .

1. Words Compounded ; [ and yet a Man may Compound a word , when the Composition is necessary , for want of a simple word ; and easie , and seldom used . ]

2. Forraign Words . As for Example , such as are newly derived from the Latine ; which though they were proper among them whose tongue it is , are Forraign in another Language : and yet these may be used , so it be moderately .

3. Long , impertinent , and often Epithets ,

4. Metaphors , indecent , and obscure . Obscure they are , when they are far fetcht . Indecent when they are ridiculous , as in Comedies ; or too grave , as in Tragedies .

CHAP. IV.

Of a Similitude .

A Similitude differs from a Metaphor only by such Particles of Comparison as these , As ; Even as ; So ; Even so , &c.

A Similitude therefore is a Metaphor dilated ; and a Metaphor is a Similitude Contracted into one Word .

A Similitude does well in an Oration , so it be not too frequent ; for 't is Poetical .

An Example of a Similitude , is this of Pericles ; that said in his Oration , that the Baeotians were like to so many Oaks in a Wood , that did nothing but beat one another .

CHAP. V.

Of the Purity of Language .

FOur things are necessary to make Language Pure .

1. The right rendring of those Particles which some antecedent particle does require : As to a Not only , a Not also ; and then they are rendered right , when they are not suspended too long .

2. The use of proper Words , rather than Circumlocutions , unless there be motive to make one do it of purpose .

3. That there be nothing of double construction , unless there be cause to do it of purpose . As the Prophets ( of the Heathen ) who speak in general terms , to the end they may the better maintain the truth of their Prophesies ; which is easier maintained in generals , than in particulars . For 't is easier to divine , whether a number be even or odd , than how many ; and that a thing will be , than what it will be .

4. Concordance of Gender , Number , and Person ; as not to say Him for Her ; Man for Men ; Hath for Have .

In Summ ; a Mans Language ought to be easie for another to read , pronounce , and point .

Besides , to divers Antecedents , let divers Relatives , or one Common to them all , be correspondent : as , He saw the Colour ; He heard the Sound ; or he perceived both Colour and Sound : but by no means , He heard or saw both .

Lastly , that which is to be interposed by Parenthesis , let it be done quickly : as , I purposed , having spoken to him ( to this , and to this purpose ) afterward to be gone . For to put it off thus ; I resolved , after I had spoken to him , to be gone ; but the subject of my speech was to this and this Purpose , is vi●●ous .

CHAP. VI.

Of the Amplitude and Tenuity of Language .

A Man shall add Amplitude , or Dignity to his Language , but by such means as these .

1. By changing the Name with the Definition , as occasion shall serve . As , whe● the Name shall be indecent , by using the Definition ; or Contrary .

2. By Metaphors .

3. By using the plural Number for the singular .

4. By privative Epithets .

CHAP. VII .

Of the Convenience or Decency of Elocution .

ELocutions are made Decent ,

1. By speaking Feelingly ; that is , with such Passion as is fit for the matter he is in ; as Angerly in matter of Injury .

2. By speaking as becomes the Person of the Speaker ; as for a Gentleman to speak Eruditely .

3. By speaking proportionably to the matter ; as of great affairs to speak in a high ; and of mean , in a low Stile .

4. By abstaining from Compounded , and from Out-landish Words ; unless a Man speak Passionately , and have already moved , and , as it were , inebriated his Hearers . Or Ironically .

It confers also to perswasion very much , to use these ordinary Forms of speaking , All Men know ; 'T is confessed by all ; No Man will deny , and the like . For the Hearer consents , surprized with the fear to be esteemed the only Ignorant Man .

'T is good also , having used a word that signifies more than the matter requires , to abstain from the Pronunciation and Countenance that to such a word belongs ; that the Disproportion between it and the matter may the less appear . And when a Man has said too much , it will shew well to correct himself : For he will get belief by seeming to consider what he says .

[ But in this a Man must have a care not to be too precise in shewing of this Consideration . For the oftentation of Carefulness is an argument oftentimes of lying ; as may be observed in such as tell particularities not easily observed , when they would be thought to speak more precise truth than is required . ]

CHAP. VIII .

Of two sorts of Stiles .

THere be two sorts of Stiles .

The one continued or to be comprehended at once ; the other divided , or distinguished by Periods .

The first sort was in use with ancient Writers ; but is now out of date .

An Example of this Stile is in the History of Herodotus ; wherein there is no Period till the end of the whole History .

In the other kind of Stile , that is distinguished by Periods , a Period is such a Part as is perfect in it self ; and has such length , as may easily be comprehended by the understanding .

This later kind is pleasant ; the former unpleasant , because this appears finite , the other infinite : in this the Hearer has always somewhat set out , and terminated to him ; in the other he fore-sees no end , and has nothing finished to him : this may easily be committed to memory , because of the measure and cadence ( which is the cause that Verses be easily remembred ; ) the other not .

Every Sentence ought to end with the period , and nothing to be interposed .

Period is either simple , or divided into Parts .

Simple is that which is Indivisible ; as , I wonder you fear not their ends , whose actions you imitate .

A Period divided , is that which not only has perfection and length convenient : for respiration , but also Parts . As , I wonder you are not afraid of their ends , seeing you imitate their actions : where in these words , I wonder you are not afraid of their ends , is one Colon , or Part ; and in these , Seeing you Imitate their Actions , another : and both together make the Period .

The parts , or members , and periods of speech ought neither to be too long , nor too short .

Too long are they , which are produced beyond the expectation of the Hearer .

Too short , are they that end before he expects it .

Those that be too long , leave the Hearer behind , like him that walking , goes beyond the usual end of the Walk , and thereby out-goes him that walks with him .

They that be too short , make the Hearer stumble ; for when he looks far before him , the end stops him before he be aware .

A period that is divided into Parts , is either divided only ; or has also an Opposition of the parts one to another .

Divided only is such as this ; This the Senate knows ; the Consul sees ; and yet the Man lives .

A Period with Opposition of Parts , called also Antithesis , and the parts Antitheta , is when contrary parts are put together ; or also joyned by a third .

Contrary parts are put together , as here , The one has obtained Glory , the other Riches ; both by my benefit .

Antitheta are therefore acceptable ; because not only the parts appear the better for the opposition ; but also for that they carry with them a certain appearance of that kind of Enthymeme , which leads to Impossibility .

Parts , or Members of a Period , are said to be equal , when they have altogether , or almost equal Number of Syllables .

Parts , or Members of a period , are said to be like , when they begin , or end alike : and the more Similitudes , and the greater equality there is of Syllables , the more graceful is the Period .

CHAP. IX .

Of those things that grace an Oration , and make it delightful .

FOrasmuch as there is nothign more delightful to a Man , than to find that he apprehends and learns easily ; it necessarily follows , that those Words are most grateful to the Ear , that make a Man seem to see before his Eyes the things signified .

And therefore Forraign Words are unpleasant , because Obscure ; and Plain Words , because too Manifest , making us learn nothing new : but Metaphors please ; for they beget in us by the Genus , or by some common thing to that with another , a kind of Science : as when an Old Man is called Stubble ; a Man suddainly learns that he grows up , flourisheth , and withers like Grass , being put in mind of it by the qualities common to Stubble , and to Old Men.

That which a Metaphor does , a Similitude does the same ; but with less grace , because with more prolixity .

Such Enthymemes are the most graceful , which neither are presently very Manifest , nor yet very hard to be understood ; but are comprehended , while they are uttering , or presently after , though not understood before .

The things that make a speech graceful , are these ; Antitheta , Metaphors , and Animation .

Of Anitheta , and Antithesis hath been spoken in the precedent Chapter .

Of Metaphors the most graceful is that which is drawn from Proportion .

[ Aristotle ( in the 12 Chapter of his Poetry ) defines a Metaphor to be the translation of a name from one signification to another ; whereof he makes four kinds , 1. From the General to the Particular , 2. From the Particular to the General . 3. From one Particular to another . 4. From Proportion . ]

A Metaphor from Proportion is such as this , A State without Youth , is a Year without a Spring .

Animation is that expression which makes us seem to see the thing before our eyes ; as he that said , The Athenians powred out their City into Sicily , meaning , they sent thither the greatest Army they could make ; and this is the greatest grace of an Oration .

If therefore in the same Sentence there concur both Metaphor , and this Animation , and also Antithesis , it cannot choose but be very graceful .

That an Oration is graced by Metaphor , Animation and Antithesis , hath been said : but how 't is graced , is to be said in the next Chapter .

CHAP. X.

In what Manner an Oration is graced by the things aforesaid .

T Is graced by Animation , when the actions of living Creatures are attributed to things without life ; as when the Sword is said to devour .

Such Metaphors as these come into a Mans mind by the observation of things that have similitude and proportion one to another . And the more unlike , and unproportionable the things be otherwise , the more grace hath the Metaphor .

A Metaphor without Animation , adds grace then , when the Hearer finds he learns somewhat by such use of the word .

Also Paradoxes are graceful , so Men inwardly do believe them : for they have in them somewhat like to those jests that are grounded upon the similitude of words , which have usually one sense , and in the present another ; and somewhat like to those jests which are grounded upon the deceiving of a Mans expectation .

And Paragrams ; that is , allusions of words are graceful , if they be well placed ; and in Periods not too long ; and with Antithesis : for by these means the Ambiguity is taken away .

And the more of these ; namely , Metaphor , Animation , Antithesis , Equality of Members a Period hath , the more graceful it is .

Similitudes grace an Oration , when they contain also a Metaphor .

And Proverbs are graceful , because they are Metaphors , or Translations of words from one species to another .

And Hyperboles , because they also are Metaphors : but they are youthful , and bewray vehemence ; and are used with most grace by them that be angry ; and for that cause are not comely in Old Men.

CHAP. XI .

Of the Difference between the Stile to be used in Writing , and the Stile to be used in Pleading .

THe Stile that should be Read ought to be more exact and accurate .

But the Stile of a Pleader ought to be suted to Action and Pronuntiation .

Orations of them that Plead , pass away with the Hearing .

But those that are Written , Men carry about them , and are considered at Leasure ; and consequently must endure to be sifted and examined .

Written Orations appear flat in Pleading .

And Orations made for the Barr , when the Action is away , appear in Reading insipide .

In Written Orations Repetition is justly condemned .

But in Pleadings , by the help of Action , and by some change in the Pleader , Repetition becomes Amplification .

In Written Orations Disjunctives do ill ; as , I came , I found him , I asked him : for they seem superfluous , and but one thing , because they are not distinguished by Action .

But in Pleadings 't is Amplification ; because that which is but one thing , is made to seem many .

Of Pleadings , that which is Judicial ought to be more accurate , than that which is before the people .

And an Oration to the people ought to be more accommodate to Action , than a Judicial .

And of Judicial Orations , that ought to be more accurate , which is uttered to few Judges ; and that ought to be more accommodate to Action , which is uttered to Many . As in a Picture , the farther he stands off that beholds it , the less need there is that the Colours be fine : so in Orations , the farther the Hearer stands off , the less need there is for his Oration to be Elegant .

Therefore Demonstrative Orations are most proper for Writing , the end whereof is to be Read .

CHAP. XII .

Of the parts of an Oration , and their Order .

THe necessary Parts of an Oration are but two ; Propositions , and Proof ; which are as it were the Probleme , and Demonstration .

The Proposition is the explication , or opening of the Matter to be proved .

And Proof is the Demonstration of the Matter propounded .

To these necessary parts , are sometimes added two other , tho Proeme and the Epilogue , neither of which are any proof .

So that in some , there be four parts of an Oration ; the Proeme , the Proposition , or ( as others call it ) the Narration , the Proofs ( which contain Confirmation , Confutation , Amplification , and Diminution ; ) and the Epilogue .

CHAP. XIII .

Of the Proem .

THe Proem is the Beginning of an Oration , and , as it were , the preparing of the way before one enter into it .

In some kinds of Orations it resembles the Prelude of Musicians , who first play what they list , and afterwards the Tune they intended .

In other kinds it resembles the Prologue of a Play , that contains the Argument .

Proems of the first sort , are most proper for Demonstrative Orations ; in which a Man is free to fore-tell , or not , what points he will insist upon ; and for the most part 't is better not : because when a Man has not obliged himself to a certain matter , Digression will seem Variety : but if he have ingaged himself , Variety will be accounted Digression .

In Demonstratives the matter of the Proem consisteth in the Praise or Dispraise of some Law or Custom , or in Exhortation , or Dehortation ; or in something that serves to incline the Hearer to the purpose .

Proems of the second kind are most proper for Judicial Orations . For as the Prologue in a Dramatick , and the Exordium in an Epique Poem , setteth first in few words the Argument of the Poem : so in a Judicial Oration the Orator ought to exhibit a Model of his Oration , that the mind of the Hearer may not be suspended , and for want of fore-sight , err or wander .

Whatsoever else belongs to a Proem , is drawn from one of these four ; From the Speaker , From the Adversary , From the Hearer , or from the Matter .

From the Speaker and Adversary are drawn into Proems such Criminations and Purgations as belong not to the cause .

To the Defendant 't is necessary in the Proem to answer to the accusations of his Adversary ; that those being cleared , he may have a more favourable entrance to the rest of his Oration .

But to the Plaintife 't is better to cast his Criminations all into the Epilogue , that the Judge may the more easily remember them .

From the Hearer and from the Matter are drawn into the Proem such things as serve to make the Hearer favourable , or angry ; attentive , or nor attentive , as need shall require .

And Hearers use to be attentive to persons that are reputed good ; to things that are of great Consequence , or that concern thomselves , or that are strange , or that delight .

But to make the Hearer attentive , is not the part of the proeme only , but of any other part of the Oration , and rather of any other part , than of the proeme . For the Hearer is every where more remiss than in the beginning . And therefore wheresoever there is need , the Orator must make appear both the probity of his own person , and that the matter in hand is of great Consequence ; or that it concerns the Hearer ; or that it is new ; or that it is delightful .

He that will have the Hearer attentive to him , but not to the Cause , must on the other side make it seem that the matter is a trifle , without relation to the Hearer , common , and tedious .

That the Hearer may be favourable to the Speaker , one of two things is required ; that he love him , or that he pity them .

In Demonstrative Orations , he that praises shall have the Hearer favourable if he think himself , or his own manners , or course of life , or any thing he loves , comprehended in the same praise .

On the contrary , he that dispraises , shall be heard favourably , if the Hearer find his Enemies , or their courses , or any thing he hates , involv'd in the same dispraise .

The Proeme of a Deliberative Oration is taken from the same things , from which are taken the Proemes of Judicial Orations . For the matter of a Deliberative Oration needeth not that natural proeme , by which is shewn what we are to speak of ; for that is already known : the proeme in these , being made only for the Speakers , or Adversaries sake ; or to make the Matter appear great , or little , as one would have it , and is therefore to be taken from the persons of the Plaintif or Defendant ; or from the Hearer , or from the Matter , as in Orations Judicial .

CHAP. XIV .

Places of Crimination , and Purgation .

1. ONe is from the removal of ill Opinion in the Hearer , imprinted in him by the Adversary , or otherwise .

2. Another from this , That the thing done is not hurtful , or not to him , or not so much , or not unjust , or not great , or not dishonourable .

3. A Third from the Recompence , as , I did him harm , but withal I did him honour .

4. A Fourth from the Excuse ; as , It was Errour , Mischance , or Constraint .

5. A Fifth from the Intention ; as , One thing was done , another meant .

6. A Sixth from the Comprehension of the Accuser ; as , What I have done , the Accuser has done the same ; or his Father , Kinsman , or Friend .

7. From the Comprehension of those that are in Reputation ; as , What I did , such , and such have done the same , who nevertheless are good Men.

8. From Comparison with such as have been falsly accused , or wrongfully suspected , and nevertheless found upright .

9. From Recrimination ; as , The Accuser is a man of ill life , and therefore not to be believed .

10. From that the Judgment belongs to another Place , or Time ; as , I have already answered , or am to answer else-where to this Matter .

11. From Crimination of the Crimination ; as , It serves only to ●e●vert Indgment .

12. A Twelfth , which is common both to Crimination and Purgation , and is taken from some sign ; as Teucer is not to be believed , because his Mother was Priam's Sister . On the other side , Teucer is to be believed , because his Father was Priam's Enemy .

13. A Thirteenth , proper to Crimination only , from praise and dispraise mixt ; as , To praise small things , and blame great ones ; or to praise in many words , and blame with effectual ones ; or to praise many things that are good , and then add one evil , but a great one .

14. A Fourteenth , comming both to Crimination and Purgation , is taken from the interpretation of the fact : for he that purgeth himself interpreteth the fact always in the best sense ; and he that Criminates , always in the worst ; as when Vlysses said , Diomedes chose him for his Companion , as the most able of the Grecians , to aid him in his exploit : but his Adversary said , He chose him for his cowardize , as the most unlikely to share with him in the Honour .

CHAP. XV.

Of the Narration .

THe Narration is not always continued and of one Piece ; but sometimes , as in Demonstratives , interrupted , and dispersed through the whole Oration .

For there being in a Narration something that falls not under Art ; as namely , the Actions themselves , which the Orator inventeth not ; he must therefore bring in the Narration of them where he best may . As for Example , if being to praise a Man , you would make a Narration of all his Acts immediately from the beginning , and without interruption , you will find it necessary afterwards to repeat the same Acts again , while from some of them you praise his Valour , and from others his Wisdom ; whereby your Oration shall have less variety , and shall less please .

'T is not necessary always that the Narration be short . The true measure of it must be taken from the matter that is to be laid open .

In the Narration , as oft as may be , 't is good to insert somewhat commendable in ones self , and blameable in ones Adversary : As , I advised him , but he would take no Counsel .

In Narrations , a Man is to leave out whatsoever breeds compassion , indignation in the Hearer besides the purpose ; as Vlysses in Homer , relating his Travels to Alcinous , to move compassion in him , is so long in it , that it consists of divers Books : but when he comes home , tells the same to his Wife in thirty Verses , leaving out what might make her sad .

The Narration ought also to be in such words as argue the Manners ; that is , some virtuous or vicious habit in him of whom we speak , although it be not exprest ; As , setting his Arms a kenbold , he answered , &c. by which is insinuated the Pride of him that so answered .

In an Oration a Man does better to shew his affection than his Judgment : this is , 'T is better to say , I like this ; than to say , This is better . For by the one you would seem wise , by the other good . But favour follows Goodness ; whereas Wisdom procures Envy .

But if this Affection seem incredible , then either a reason must be rendered , as did Antigone . For when she had said , She loved her Brother better than her Husband , or Children ; she added , for Husband and Children I may have more ; but another Brother I cannot , my Parents being both dead . Or else a Man must use this form of speaking ; I know this affection of mine seems strange to you ; but nevertheless it is such . For 't is not easily believed , that any Man has a mind to do any thing that is not for his own good .

Besides in a Narration , not only the Actions themselves ; but the Passions , and signs that accompany them , are to be discovered .

And in his Narration a Man should make himself and his Adversary be considered for such , and such , as soon , and as covertly as he can .

A Narration may have need sometimes not to be in the beginning .

In Deliberative Orations ; that is , where soever the question is of things to come ; a Narration , which is always of things past , has no place : and yet things past may be recounted , that Men may Deliberate better of the future : But that is not as Narration , but Proof ; for 't is Example .

There may also be Narration in Deliberatives in that part where Crimination and Praise come in : But that part is not Deliberative , but Demonstrative .

CHAP. XVI .

Of Proof , or Confirmation , and Refutation .

PRoofs are to be applyed to something Controverted .

The Controversie in Judicial Orations is , Whether it has been done ; whether it has been hurtful ; whether the matter be so great , and whether it be Just , or no.

In a question of Fact , one of the Parties of necessity is faulty ( for ignorance of the Fact is no excuse ) and therefore the Fact is chiefly to be insisted on .

In Demonstratives , the Fact for the most part is supposed : but the honour and profit of the Fact are to be proved .

In Deliberatives , the question is , Whether the thing be like to be , or likely to be so Great ; or whether it be Just ; or whether it be profitable .

Besides the application of the proof to the question , a Man ought to observe , whether his Adversary have lyed in any point without the Cause . For 't is a sign he does the same in the Cause .

The Proofs themselves are either Examples , or Enthymemes .

A Deliberative Oration , because 't is of things to come , requireth rather Examples , than Enthymemes .

But a Judicial Oration , being of things past , which have a necessity in them , and may be concluded Syllogistically , requireth rather Enthymemes .

Enthymemes ought not to come too thick together : for they hinder one anothers force by confounding the Hearer .

Nor ought a Man endeavour to prove every thing by Enthymeme , least like some Philosophers , he collect what is known , from what is less known .

Nor ought a Man to use Enthymemes , when he would move the Hearer to some affection : For seeing divers Motions do mutually destroy or weaken one another , he will lose either the Enthymeme , or the affection that he would move .

For the same reason , a Man ought not to use Enthymemes when he would express Manners .

But whether he would move affection , or insinuate his Manners , he may withal use Sentences .

A Deliberative Oration is more difficult than a Judicial , because 't is of the future , whereas a Judicial is of that which is past , and that consequently may be known ; and because it has principles , namely the Law ; and it is easier to prove from principles , than without .

Besides , a Deliberative Oration wants those helps of turning to the Adversary , of speaking of himself ; of raising passion .

He therefore that wants matter in a Deliberative Oration , let him bring in some person to praise or dispraise .

And in Demonstratives he that has nothing to say in commendation or discommendation of the principal party , let him praise or dispraise some body else , as his Father , or Kinsman , or the very vertues or vices themselves .

He that wants not Proofs , let him not only prove strongly , but also insinuate his Manners : but he that has no proof , let him nevertheless insinuate his Manners . For a good man is as acceptable , as an exact Oration .

Of Proofs , those that lead to an absurdity , please better than those that are direct or ostensive ; because from the comparison of Contraries , namely , Truth and Falsity , the force of the Syllogisme does the better appear .

Confutation is also a part of proof .

And he that speaks first , puts it after his own proofs , unless the Controversie contain many and different matters . And he that speaks last , puts it before .

For 't is necessary to make way for his own Oration , by removing the Objections of him that spake before . For the mind abhors both the Man , and his Oration , that is damned before hand .

If a Man desire his Manners should appear well , ( least speaking of himself he become odious , or troublesome , or obnoxious to obtrectation ; or speaking of another , he seem contumelious , or scurrilous ) let him introduce another person .

Last of all , least he cloy his Hearer with Enthymemes , let him vary them sometimes with Sentences ; but such as have the same force . As here is an Enthymeme . If it be then the best time to make peace when the best conditions of peace may be had , than the time is now , while our Fortune is entire . And this is a Sentence of equal force to it . Wise Men make peace , while their Fortune is entire .

CHAP. XVII .

Of Interrogations , Answers , and Jests .

THe times wherein 't is fit to ask ones Adversary a question are chiefly four .

1. The first is , when of two Propositions that conclude an Absurdity , he has already uttered one ; and we would by Interrogation draw him to confess the other .

2. The Second , when of two Propositions that conclude an Absurdity , one is manifest of it self , and the other likely to be fetch'd out by a question ; then the Interrogation will be seasonable ; and the absurd Conclusion is presently to be inferr'd , without adding that Proposition which is manifest .

3. The third , when a Man would make appear that his Adversary does contradict himself .

4. The Fourth , when a Man would take from his Adversary such shifts as these , In some sort 't is so ; In some sort 't is not so .

Out of these Cases 't is not fit to Interrogate . For he whose question succeeds not , is thought vanquished .

To equivocal questions a Man ought to answer fully , and not to be too brief .

To Interrogations which we fore-see tend to draw from us an Answer , contrary to our purpose , we must , together with our Answer , presently give an Answer to the objection which is implyed in the question .

And where the question exacteth an answer that concludeth against us , we must together with our answer presently distinguish .

Jests are dissolved by serious and grave discourse : and grave discourse is deluded by Jests .

The several kinds of Jests are set down in the Art of Poetry .

Whereof one kind is Ironia , and tends to please ones self .

The other is Scurrility , and tends to please others .

The latter of these has in it a kind of baseness : the former may become a Man of good breeding .

CHAP. XVIII .

Of the Epilogue .

THe Epilogue must consist of one of these four things .

Either of inclining the Judg to favour his own , or disfavour the Adversaries side : For then when all is said in the cause , is the best season to praise , or dispraise the Parties .

Or of Amplification or Diminution . For when it appears what is good or evil , then is the time to shew how great , or how little that good or evil is .

Or in moving the Judge to Anger , Love , or other Passion . For when 't is manifest of what kind , and how great the good or evil is , then it will be opportune to excite the Judge .

Or of Repetition , that the Judge may remember what has been said .

Repetition consisteth in the matter , and the manner . For the Orator must shew , that he has performed what he promised in the beginning of his Oration , and how : Namely , by comparing his Arguments one by one with his Adversaries , repeating them in the same order they were spoken .

FINIS .

THE ART OF Rhetorick Plainly set forth ; with Pertinent EXAMPLES For the more easie understanding and Practice of the same .

By Tho. Hobbes , of Malmsbury .

LONDON . Printed , for W. Crook . 1681.

THE ART OF RHETORICK .

RHetorick is an Art of speaking finely .

It hath two parts .

1. Garnishing of speech , called Elocution .

2. Garnishing of the manner of utterance called Pronunciation .

Garnishing of speech is the first part of Rhetorick , whereby the speech it self is beautified and made fine .

It is either ,

1. The fine manner of words , called a Trope , or ,

2. The fine shape or frame of speech , called a Figure .

The fine manner of words is a garnishing of Speech , whereby one word is drawn from his first proper signification , to another ; as in this sentence : Sin lyeth at the door : where Sin is put for the punishment of sin adjoyned unto it : Lyeth at the door signifieth at hand ; as that which lyeth at the Door , is ready to be brought in .

This changing of words was first found out by necessity , for the want of words ; afterward confirmed by Delight , because such words are pleasant and gracious to the ear . Therefore this change of signification must be shamefac'd , and , as it were , maidenly , that it may seem rather to be led by the hand to another signification , to be driven by force unto the same : yet sometimes this fine manner of Speech swerveth from this perfection , and then it is ,

Either

1. The abuse of this fine Speech , called Katachresis , or

2. The excess of this fineness , call'd Hyperbole .

Be not too just , nor too wicked : which speech , although it seem very hard , yet it doth not , without some fineness of Speech , utter thus much , That one seek not a righteousness beyond the Law of God ; and that when none can live without all sin , yet that they take heed that sin bear not Dominion over them , As , My Tears are my Meat day and night . Those that hate me are mo in number , than the Hairs of my Head . Both which do utter by an express of Speech , a great sorrow , and a great number of Enemies .

The abuse of Speech , is , when the change of Speech is hard , strange , and unwonted , as in the first example .

The excess of Speech is , when the change of signification is very high and lofty , as in the second Example , and Ps. 6. 7.

But the excellency , or fineness of Words , or Tropes , is most excellent , when divers are ,

Shut up in one ; or ,

Continued in many .

An Example of the first sort is in the 2 Kings : I pray thee , let me have a double portion of thy Spirit : where by Spirit , is meant the gift of the Spirit ; and by thy Spirit , the gift of the Spirit like to thine .

The continuance of Tropes , called an Allegorie , is , when one kind of Trope is so continued ; as , look with what kind of matter it be begun , with the same it be ended . So in the 23 Psal. The care of God towards his Church , is set forth in the words proper to a Shepherd . So in the whole Book of Canticles , the sweet conference of Christ and his Church , is set down by the words proper to the Husband and the Wife . So old Age is set down by this garnishing of Speech , Eccles. 12. 5 , 6.

Hitherto of the properties of a fine manner of words , called a Trope .

Now the divers sorts do follow .

They are those which note out ,

1. No Comparison , and are with some Comparison ; or ,

2. No respect of Division , or some respect .

The first is double :

1. The change of name , called a Metonymie .

2. The mocking speech , called an Ironie .

The change of name , is where the name of a thing , is put for the name of a thing agreeing with it .

It is double ,

1. When the cause is put for the thing caused , and contrariwise ,

2. When the thing to which any thing is adjoyned , is put for the thing adjoyned ; and contrariwise .

The change of name of the cause , is when ,

Either the name of the Maker , or the name of the Matter , is put for the thing made .

Of the Maker , when the finder out , or the Author of the thing , or the instrument whereby the thing is done , is put for the thing made . So Moses is put for his Writings : so Love is put for Liberality , or bestowing Benefits , the fruit of Love : so Faith the Cause , is put for Religious serving of God , the thing caused . Rom. 1. So the tongue , the instrument of speech , is put for the Speech it self . Rule thy Tongue , James 3.

Of the Matter : Thou art Dust , and to Dust shalt thou return ; that is , one made of Dust.

Now on the other side , when the thing caused , or the effect is put for any of these causes . So the Gospel of God is called the Power of God to Salvation ; That is , the instrument of the power of God . So Love is said to be bountiful ; because it causeth one to be bountiful . S. Paul saith , The Bread that we break , is it not in the Communion of the Body and Blood of Christ ? That is , an instrument of the Communion of the Body of Christ . So , the Body is said to be an earthly Tabernacle : That is , a Tabernacle made of Earth .

The change of Name , or Metonymie , where the Subject , or that which hath any thing adjoyned , is put for the thing adjoyned , or adjoynt . So the place is put for those , or that in the place : Set thine House in an order : That is , thy Houshold matters . It shall be easier for Sodom and Gomorra : that is , the People in Sodom and Gomorra . So Moses Chair is put for the Doctrine , taught in Moses Chair . So , all Jericho and Jerusalem came out : That is , all the Men in Jericho and Jerusalem . So , before , Sin was put for the punishment of Sin : Let his Blood rest upon us and our Children : That is the punishment which shall follow his Death . So Christ said , This is my Body , That is , a sign or Sacrament of my Body . This Wine is the New Testament in my Blood ; That is , a Sign or Seal of the New Testament in my Blood . So John saith , He saw the Spirit descending in the likeness of a Dove : That is , the sign of the Spirit .

On the other side , the Adjunct is put for the thing to which it is adjoyned . As Christ is called our hope . 1 Tti. That is , on whom our hope did depend : So , we are justified by Faith , That is , by Christ , applyed by Faith : So , Love is the fulfilling of the Law , That is , those things to which it is adjoyned . Hope for the things hoped for , Rom. 8. 28. So in the Epist. to the Eph. The dayes are evil : That is , the Manner , Conversation , and Deeds of Men in the dayes .

Hitherto of the Metonymie , or change of name .

Now followeth the Mocking speech , or Ironie .

CHAP. II.

THe mocking Trope is , when one contrary is signified by another , as God said , Man is like to one of us . So Christ saith , sleep on ; and yet by and by , Arise , let us go : so Paul saith , you are Wise , and I am a Fool.

This Trope is perceived , either by the contrariety of the Matter , or the Manner of utterance , or both : so Elias said to the Prophets of Baal , Cry a loud , &c. So the Jews said unto Christ ; Hail , King of the Jews .

Hitherto appertaineth the passing by a thing , which yet with a certain elegancy noteth it : so Philemon , 19. That I say not , thou owest thy self unto me .

Hitherto of the fineness of words which respect no division .

Now followeth that which respecteth division , called Synechdoche .

A Synechdoche is when the name of the whole is given to the part ; or the name of the part to the whole .

And it is double ;

1. When the whole is put for the Member , and contrarily .

2. When the General , or whole kind is put for the Special , or contrarily .

So S. John , Not only for our Sins , but for the Sins of the whole World . So Righteousness , a Member of Goodness , is put for all goodness : so Unrighteousness , is put for all manner of Sins .

Examples of the second sort , as these : So Israel is put for those of Juda sometimes : So Nations for the Heathen : A Minister of Christ , for an Apostle of Christ , Rom. 1. A Minister put for a distributer , Rom. 12.

On the other side , one sort or special is put for the whole sort , or general , in the Examples following . In the Lords Prayer , Bread , one help of life , is put for all helps : This day , one time , for all times : so Solomon saith . The thing of the day in his day ; That is , the thing of the time , in his time .

So sometimes less is spoken , and yet more is understood ; which is called Diminution , or Meiosis : As James saith , to him that knoweth how to do well , and doth not , it is Sin : That is , a great sin . So our Saviour Christ saith , If they had not known , they had had no Sin : That is , no such great Sin as they have now . Likewise the denial by Comparison : so Solomon saith , Receive my Words , and not Silver : That is , my words rather than Silver : so Paul saith , I was sent to Preach , and not to Baptise : That is , not so much to Baptise , as to Preach .

Hitherto of the fineness of Words , which note out no Comparison . Now followeth the fineness of words which noteth out Comparison , called a Metaphor .

CHAP. III.

A Metaphor is when the like is signified by the like : as 1 Cor. The Apostle saith , Doctrine must be tryed by Fire ; That is , the evidence of the Word , Spirit , trying Doctrine , as Fire doth Metals . So Christ is said to Baptize with Fire : where Fire is put for the power of the Holy Ghost , purging as Fire : so Christ saith , None shall enter into the Kingdom of God , but he that is Born of the Holy Ghost and Water : so Paul calleth himself the Father of the Corinths , who said , That he begat them in Christ : so he calleth Timothy and Titus his Natural Sons in the Faith .

Hitherto of a Trope , or Garnishing of Speech in one word , where the Metaphor is most usual ; then the change of Name ; then the Synechdoche ; and last of all , the Ironie . Now followeth the fine Frame or shape of speech ; called a Figure .

A Figure is a Garnishing of Speech ; wherein the course of the same is changed from the more simple and plain manner of speaking , unto that which is more full of Excellency and Grace . For as in the fineness of Words , or a Trope , Words are considered asunder by themselves : so in the fine shape or frame of Speech or a Figure , the apt and pleasant joyning together of many Words is noted .

The Garnishing of the Shape of Speech or a Figure , is Garnishing of Speech in Words , or in a Sentence .

The Garnishing of Speech in Words , called Figura dictionis , is wherein the Speech is Garnished by the pleasant and sweet sound of Words joyned together .

This is either ,

1. In the measure of sounds ; or

2. In the repetition of sounds .

The measure of sounds is belonging either to ,

1. Poets , with us called Rhymers ; or ,

2. Orators , with us called Eloquent Pleaders .

The first is the measure of sounds by certain and continual spaces : And it is either ,

1. Rhyme ; or ,

2. Verse .

Rhyme is the first sort , containing a certain measure of Syllables ending alike , and these in the Mother Tongues are most fit for Psalms , Songs , or Sonnets .

Verses are the second sort , containing certain Feet fitly placed .

A Foot is a measure framed by the length and shortness of Syllables : For the several sorts whereof , as also of the verses of them , because we have no worthy examples in our English Tongue , we judge the large handling of them should be more curious than necessary .

The measure of sounds belonging to Orators is that which , as it is not uncertain , so it differeth altogether from rhime and verse , and is very changeable with it self . Therefore in that eloquent Speech you must altogether leave rhime and verse , unless you alledge it for Authority and Pleasure .

In the Beginning of the Sentence little care is to be had , in the middle least of all , and in the end chiefest regard is to be had , because the fall of the Sentence is most marked , and therefore lest it fall out to be harsh and unpleasant both to the mind and ear , there must be most variety and change .

Now this change must not be above six Syllables from the end , and that must be set down in feet of two Syllables .

And thus much of garnishing of speech by the measure of sounds , rather to give some taste of the same to the Readers , than to draw any to the curious and unnecessary practise of it .

Now followeth the repeating of sounds .

CHAP. IV.

REpetition of sounds is either of the Like , or the Vnlike sound .

Of the Like , is either continued to the end of , or broken off from the same , or a diverse sentence .

Continued to the end of the same sentence is , when the same sound is repeated without any thing coming between , except a Parenthesis ; that is , something put in , without the which , notwithstanding the sentence is full . And it is a joyning of the same sound , as Rom. 1. As Vnrighteousness , Fornication , Wickedness . And in the prayer of Christ , My God , my God . From Men by thine hand , O Lord , from Men , &c. Psal. 17.

Continued in a diverse Sentence is , either a Redoubling , called Anadyplosis ; or a pleasant climing , called Clymax .

Redoubling is when the same sound is repeated in the end of the former Sentence , and the beginning of the Sentence following . As , Psal. 9. 8. The Lord also will be a refuge to the poor , a refuge , I say , in due time . Psal. 81. 14. For this God is our God . But more plain in Psal. 8. As we have heard , so have we seen in the City of our God . God will establish it for ever .

A pleasant climing is a redoubling continued by divers degrees or steps of the same sounds : As Rom. 8. 17. If we be Children , we be Heirs , even Heirs of God , annexed with Christ . Rom. 8. 30. Whom he predestinated , them also he called ; and whom he called , them also he justified ; and whom he justified , them also he glorified . Also Rom. 9. 14. 15.

And hitherto of the same sound continued to the end .

Now followeth the same sound broken off .

CHAP. V.

THE same sound broken off is a repetition of the same in the Beginning ; or In the end .

In the Beginning it is called Anaphora , a bringing of the same again ; As Rom. 8. 38.

Nor death , nor life , nor Angels , &c. nor any other creature shall be able to separate us &c. So likewise Ephes. 4. 11. Some to be Apostles , some Preachers , &c. So Gal. Nor Jew , nor Gentile , &c. So likewise Hebr. 11. 1. 2.

Repetition of the same sound in the end is called Epistrophe , a turning to the same sound in the end . So Ezech. Behold greater Abominations than these . Lament. 3. 41. Let us lift up our hearts with our hands unto God in the Heavens ; we have sinned , and have rebelled therefore thou hast not spared .

When both of these are joyned together , it is called a coupling or Symplote . As , 2 Cor. 6. 4. to the 11. But in all things we approve our selves , as the Ministers of God , in much patience , in afflictions , &c. See also 2 Cor. 22. 23.

Hitherto of the repetitions in the same place .

Now of those that do interchange their place .

They are either Epanalepsis , which signifieth to take back ; or Epanados which signifieth a turning to the same tune .

The first is when the same sound is repeated in the beginning and the ending , as My Son Absolom , my Son , 2 Sam. 19. 1.

Epanados is when the same sound is repeated in the beginning and the middle , in the middle and the end , Ezech. 35. 6. I will prepare thee unto Blood , and Blood shall pursue thee : except thou hate Blood , even Blood shall pursue thee . And 2 Thes. 2. So that he that doth sit as God , in the Temple of God , sheweth himself that he is God .

Hitherto of the repetition of those sounds which are like .

Now of those that are unlike .

CHAP. VI.

UNlike A small changing of the name , as Paronomasia . A small changing of the end or case , as Polypto●on .

A small change of name is , when a word by the change of one letter or Syllable , the signification also is changed , As , Patience , Experience . Rom. 5. 4. 19. We walk after the flesh , not War in the flesh . So by honour and dishonour , as unknown and yet known .

A small changing of the end or case , is when words of the same beginning rebound by divers ends : Christ being raised from the dead , dyeth no more , death hath no more Power over him . He that doth righteousness is righteous . If ye know that he is Righteous , know ye that he that doth righteously , is born of him . And of both these there are many in the Scripture , but the Translations cannot reach them .

Hitherto of the Garnishing of the shape of speech in words .

Now followeth the Garnishing of the shape of speech in a sentence .

CHAP. VII .

GArnishing of the frame of speech in a sentence , is a Garnishing of the shape of speech , or a figure ; which for the forcible moving of affections , doth after a sort beautifie the sense and very meaning of a sentence . Because it hath in it a certain manly Majesty , which far surpasseth the soft delicacy or dainties of the former figures .

It is either the Garnishing of speech Alone ; or with others .

The Garnishing of speech alone , is when as the sentence is Garnished without speech had to other . And it is either in regard of the Matter ; or of the Person .

In regard of the Matter , it is either

1. A crying out , called Exclamation ; or

2. A pulling or calling back of himself , called Revocation .

A crying out or Exclamation is the first , which is set forth by a word of calling out : Sometimes of wonder , As , Rom. 8. O the depth of the Judgments of God! Psal. 8. O Lord , how excellent is thy Name !

Sometimes of pity ; also these words , Behold , Alas , Oh , be signs of this figure : As , O Jerusalem , Jerusalem , which stonest the Prophets . Sometimes of desperation ; As , My Sin is greater than can be forgiven . Behold , thou drivest me out , &c. Sometimes of wishing : As , O Lord of Hosts , how amiable are thy Tabernacles ? Sometimes of disdaining : As , Rom. 7. in the end , O miserable wretch that I am , who shall deliver me from this Body of Sin ? Sometimes of mocking : as they which said to our Saviour Christ , Ah , thou that , &c.

Sometimes of cursing and detestation , as in David , Let their Table be made a Snare , and bow down their Back always .

Also when this Figure is used in the end of a Sentence , it is called a shooting out of the Voice , or Epiphonema ; as when the sins of Jezabel were spoken against , this is added at the end , Seemed it a little to her to do thus and thus .

So after the high setting forth of the Name of God , David shutteth up his praise with this : Blessed be his glorious Name , and let all the Earth be filled with his Glory . Sometimes here is used a certain liberty of speech , wherein is a kind of secret crying out : As Peter , Act. 3. saith : Ye Men of Israel , hear these words . And Paul , 1 Cor. 11. Would to God you could suffer a little my foolishness , and indeed ye suffer me .

Thus much of crying out .

Now followeth the Figure of calling back , or Revocation .

Revocation is when any thing is called back , and it is as it were a cooling and quenching of the heat of the exclamation that went before .

And this is either a Correction of ones self , called Epanorthrosis ; a holding of ones peace , called Aposiopesis .

Epanorthrosis is correction , when something is called back that went before : as Paul correcteth his doubtfulness of Agrippa's belief , when he saith , Believest thou King Agrippa , I know thou believest . So , 1 Cor. 15. I laboured more abundantly than they all , yet not I , &c.

A keeping of silence or Aposiopesis is , when the course of the sentence bygon is so stayed , as thereby some part of the sentence not being uttered , may be understood . So our Saviour Christ saith , My Soul is heavy : what shall I say ? John 12. 27.

Thus much of a Figure Garnishing the speech alone in regard of the matter .

Now followeth the Garnishing of the speech alone in regard of the person .

CHAP. VIII .

GArnishing of the speech alone in regard of the person is double .

Either in turning to the person , called Apostrophe , or feigning of the person , called , Prosopopoeia .

Apostrophe or turning to the person , is when the speech is turned to another person , than the speech appointed did intend or require . And this Apostrophe or turning is diversly seen , according to the diversity of persons . Sometimes it turneth to a Mans person ; As David in the 6 Psalm , where having gathered arguments of his safety , turneth hastily to the wicked , saying , Away from me , all ye workers of iniquity , for the Lord hath heard the Voice of my petition .

Sometimes from a Man to God , as Ps. 3. David being dismayed with the number of his Enemies , turneth himself to God , saying : But thou art my Buckler , &c.

Sometimes to unreasonable Creatures without sense . Esai . 1. & Esai . 20. 1.

Prosopopoeia or a feigning of the person , is whereby we do feign another person speaking in our speech ; and it is double ; Imperfect , and Perfect .

Imperfect is when the speech of another person is set down lightly and indirectly , As in the Psal. 10. David , bringeth in the wicked , Who say unto my Soul , Fly as the Bird unto yonder hill .

A perfect Prosopopoeia is when the whole feigning of the person is set down in our speech , with a fit entring into the same , and a leaving it off . So Wisd. Pro. 8. Where the entrance is in the first Verses , her speech in the rest of the Chapter .

Hitherto of the figures of sentences concerning one speaking alone .

Now follow the other , which concern the speeches of two .

CHAP. IX .

THey which concern the speeches of two , are either in Asking ; or in Answering .

That of Asking , is either in Deliberation ; or , in preventing an Objection .

Deliberation is when we do ever now and then ask , as it were , reasons of our consultation , whereby the mind of the hearers wavering in doubt , doth set down some great thing .

This deliberation is either in Doubting ; or in Communication .

A Doubting is a deliberating with our selves , as Paul . 1. Phil. 22. doubting whether it were better to dye than to live , he Garnisheth his speech on this manner : For I am greatly in doubt on both sides , desiring to be loosed , and to be with Christ , which is best of all : nevertheless , to abide in the Flesh is more needful for you .

Communication is a deliberation with others . Gal. 3. 1 , 2. O foolish Galatians , who hath bewitched you , &c.

And hitherto of the Figure of speech between two , called Deliberation .

Now followeth the Figure of speech between two , called the preventing of an Objection , or occupation .

Occupation is when we do bring an objection , and yield an answer unto it : Therefore this speech between two in the first part , is called the Setting down of the Objection or Occupation . In the latter part , an Answering of the Objection , or the Subjection : as Rom. 6. What shall we say then ? Shall we continue still in sin that grace may abound ? In which words is set down the Objection : the Answering in these words , God forbid . And here this must be marked , that the Objection is many times wanting , which must be wisely supplyed by considering the occasion and answer of it : As , 1 Tim. 5. They will Marry , having condemnation . Now lest any might say , what , for Marrying ? He answereth : No , For denying their first Faith .

Hitherto of the Figures of Asking .

Now followeth the Figures of Answering .

They are either in Suffering of a deed , called Permission ; or , Granting of an argument , called Concession .

Suffering of a deed or permission is , when mockingly we give liberty to any deed ; being never so filthy , as Rev. Let him that is filthy be filthy still . And 1 Cor. 14. If any be ignorant , let him be ignorant .

Concession or granting of an argument is , when an argument is mockingly yielded unto , as , Eccle. 11. Rejoyce , O young Man in thy youth , and let thy heart chear thee , &c.

Although the Rules of Sophistry be needless for them that be perfect in Logick ; yet because the knowledge of them bringeth some profit to young beginners , both for the ready answering of the subtil arguments , and the better practising of Logick and Rhetorick , we have thought good to turn it into the English Tongue .

SOphistry is the feigned art of Enleches , or coloured reasons .

A colourable reason , or Elench , is a shew of reason to deceive withal .

It is either when the deceit lyeth in the Words ; or in the default of Logick , called a Sophism .

In words is , either when the deceit lyeth in one word ; or in Words joyned together . If it were , it should be , Whosoever .

In one word , is either the darkness of a word ; or , the doubtfulness of a word .

The darkness of a word , or an insolencie deceiveth , when by a reason the meaning is not understood , whether the strangeness be through the oldness , newness , or swelling vanity of the words ; and of the last sort , is that spoken of in 2 Pet. 2. 18.

By this fallacie the Papists conclude , the Fathers to be on their side , for deserving by good works .

Whosoever saith Mans merits are Crowned , they say Mans works do deserve .

But the Fathers say , Mans merits are Crowned .

Therefore the Fathers say , Mans works do deserve .

Where Merits is an old word , put for any works done under the hope of reward whether it come by desart , or freedom of promise .

Doubtfulness of a word , Likeness of name , is either called Homonymia ; or by a Trope or fineness of speech .

The Likeness of name , or Homonymia , is when one word is given to signifie divers things : As ,

He that believeth shall be saved .

The Hypocrites to whom our Saviour Christ would not commit himself , believed ,

Therefore they shall be saved .

Where Faith doth note out both a justifying Faith , and a dead Faith .

Doubtfulness by a Trope , is when a word is taken properly , which is meant figuratively , or contrarily : As ,

That which Christ saith is true .

Christ saith that Bread is his Body .

Therefore it is true .

Where by body is meant the Sign or Sacrament of his body .

Unto the first , a perfect Logician would answer , that the Proposition is not an Axiome necessarily true , according to the Rule of truth , because of the doubtfulness of the old and new signification of merit . And if the word be far worn out of use , that it be not understood , then the answer must be , I understand it not , or put your Axiome in plain words .

To the second , he would answer , that the Proposition or first part , is not according to the Rule of Righteousness , because the proper Subject and Adjunct are not joyned together : which hath justifying faith , or believing sincerely , shall be saved ; and then the assumption being in the same sense inferred , is false .

Unto the third he would answer , that the Assumption is not necessarily true , because if the word Body be taken properly , it is not then true that is set down : but if it be taken figuratively , it is true , and therefore would bid him make the Assumption necessarily true , and then say , Christ saith in proper words , It is my Body ; and then it is false .

Hitherto of the fallacies in single words .

Now of those that are joyned together .

It is either Amphibolia , or the doubtfulness of speech : or , Exposition , or unapt setting down of the reason .

The first is , when there is doubtfulness in the frame of speech ; as thus , If any obey not our word by a Letter , note him : where some refer by a Letter , to the first part of the Sentence , and some to the latter , where the signification of the word , and right pointing doth shew , that it must be referred to the first .

The answer is , that the right and wise placing of the Sentence is perverted .

Unapt setting down of the Reason , is , when the parts of the Question and the reasons intreated , is not set down in fit words : as ,

All sin is evil .

Every Child of God doth sin .

Therefore every Child of God is evil .

Here the answer according to Logick , is that the assumption doth not take the argument out of the proposition , but putteth in another thing , and so it is no right Frame of concluding , as appeareth by the definition of the assumption .

Hitherto of the deceits of reason which lye in words .

Now of the default of Logick , called Sophisme .

It is either General , or Special .

The General are those which cannot be referred to any part of Logick .

They are either begging of the question , called the Petition of the principle , or bragging of no proof .

Begging of the Question is when nothing is brought to prove but the Question , or that which is doubtful : As ,

That Righteousness which is both by Faith and works , doth justifie .

But this Righteousness , is inherent Righteousness : Ergo.

Here the Proposition in effect is nothing but a Question .

If together with the Blood of Christ we must make perfect satisfaction for our sins , before we come to Heaven .

Then there must be Purgatory for them that die without perfection .

But the first is so : Ergo. Where the argument they bring is as doubtful , and needeth as much proof as the Question .

The answer is this out of the definition of the Syllogisme , that there is no new argument invented , therefore it cannot be a certain frame of concluding .

Bragging of no proof , is when that which is brought is too much , called Redounding .

It is either impertinent to another matter called Heterogenium ; or a vain repetition , called Tautologia .

Impertinent , or not to the purpose , is when any thing is brought for a proof , which is nothing near to the matter in hand , whereunto the common Proverb giveth answer ; I ask you of Cheese , you answer me of Chalk .

A vain repetition is , when the same thing in effect , though not in words , is repeated ; as they that after long time of Prayer say , Let us pray . And this fallacie our Saviour Christ condemneth in prayer , Mat. 5. and this is a fault in Method .

Special are those which may be referred to certain parts of Logick , and they are of two sorts .

Such as are referred to the spring of reasons , called Invention , or to Judgment .

Those referred to Invention are , when any thing is put for a reason , which is not , as no cause for a cause , no effect for an effect , and so of the rest .

In the Distribution this is a proper Fallacie , when any thing simply or generally granted , thereby is inferred a certain respect or special not meant nor intended : as ,

He that saith , there are not seven Sacraments , saith true .

He that saith , there are only three , saith , there are not seven .

Therefore he that saith , there are three , saith true .

The right answer is , that the Proposition is not necessarily true , for there may be a way to say , there are not seven , and yet affirm an untruth .

Fallacies of judgment are those that are referred to the judgment of one sentence , or of more .

Of one Sentence , either to the Proprieties of an Axiome ; or to the sorts .

To the Proprieties , as when a true is put for a false , and contrarily : and Affirmative for a Negative , and contrarily . So some take the words of Saint John , I do not say concerning it , that you shall not pray , for no denyal ; when as it doth deny to pray for that sin .

To the sorts are referred , either to the Simple , or Compound .

The first when the General is taken for the Special , and contrarily . So the Papists by this fallacy do answer to that general saying of Paul ; We are justified by Faith without the works of the Law . Which they understand of works done before Faith , when that was never called in doubt .

The fallacies which are referred to a compound Axiome , are those which are referred either to a disjoyned , or knitting Axiome .

To a disjoyned Axiome when the parts indeed are not disjoyned : As , Solomon was either a King , or did bear Rule .

To a Knitting Axiome is , when the parts are not necessarily knit together , 〈◊〉

If Rome be one Fire , the Popes Chair is burn●

And hitherto of the first sort of Fallacie referred to judgment .

Now followeth the second .

And they be either those that are refer●red to a Syllogisme ; or to Method .

And they again are General , and Special

General which are referred to the general properties of a Syllogisme .

It is either when all the parts are Denyed or are Particular .

All parts denyed : As , No Pope is a Devil . No man is a Devil . Therefore . No man is a Pope .

And this must be answered , that it is no● according to the definition of a Negativ● syllogisme , which must have always one Affirmative .

All particular : As ,

Some unlawful thing must be suffered , 〈◊〉 namely that which cannot be taken away .

The Stews in some unlawful thing .

Therefore the Stews must be suffered .

This is answered by the definition of ● special syllogism , which is that hath one part general .

The special are those which are Simple , or Compound .

The Simple is of two sorts .

The first is more Plain .

The second less Plain .

More plain is when the assumption is denyed , or the question is not particular : As ,

Every Apostle may Preach abroad :

Some Apostle is not a Pope ,

Therefore

Some Pope may not Preach abroad . Also ,

Every Pope is a Lord :

Some Pope may give an universal licence .

Therefore every Lord may give an universal licence .

Less plain hath one fallacy in common , when the proposition is special . As ,

Some Player is a Rogue :

Every Vagabond is Rogue ,

Therefore every Player is a Vagabond . Also ,

Some Player is a Rogue :

Every Vagabond is a Player .

Therefore every Player is a Rogue .

The fallacie of the first kind is when all the parts be affirmative : As ,

All Pauls Bishops were ordained for unity .

All Arch-Bishops be ordained for unity .

Therefore all Arch-Bishops are Pauls Bishops .

The fallacie of the second kind is when the assumption is denyed : As ,

Every Puritane is a Christian.

No Lord Bishop is a Puritane ,

Therefore no Lord Bishop is a Christian.

Hitherto of the fallacies referred to a simple Syllogism .

Now follow those which are referred to a compound , which are those which are referred either to the Connexive , or to the disjoyned .

Of the first sort one is when the first part or antecedent is denyed , that the second or consequent may be so likewise : As ,

If any Man have two Benefices , he may escape unpunished at the Bishops hands .

But he may not have two Benefices ,

Therefore

He may not escape unpunished at the Bishops hands .

The second part is affirmed , that the first may be so also . As ,

If every ignorant Minister were put out of the Church , and a Preacher in his place , we should have good order .

But we have good order , Therefore

Every ignorant Minister is put out of the Church ; and a Preacher in his place .

Of those referred to the disjoyned , the first is , when all the parts of the Disjunction or Proposition are not affirmed : As ,

Every ignorant Minister is to be allowed , or not .

But he is not .

Therefore he is .

The second kind is when the second part of the copulative negative Axiome is denyed , that the first may be so ; As ,

A Non-Resident , is either a faithful , or unfaithful Minister .

But he is unfaithful , Ergo , &c.

And thus much of the fallacies in a Syllogism .

The fallacie in Method is when , to deceive withal , the end is set in the beginning , the special before the general , good order be gone , confounded : And finally when darkness , length and hardness is laboured after .

PINIS .

A DIALOGUE Between A PHYLOSOPHER AND A STVDENT , OF The Common-Laws of England .

Of the Law of Reason . Law .

WHat makes you say , that the Study of the Law is less Rational , than the study of the Mathematicks ?

Phylosoph .

I say not that , for all study is Rational , or nothing worth ; but I say that the great Masters of the Mathematicks do not so often err as the great Professors of the Law .

Law .

If you had applyed your reason to the Law , perhaps you would have been of another mind .

Ph.

In whatsoever Study , I examine whether my Inference be rational , and have look't over the Titles of the Statutes from Magna Charta downward to this present time . I left not one unread , which I thought might concern my self , which was enough for me that meant not to plead for any but my self . But I did not much examine which of them was more , or less rational ; because I read them not to dispute , but to obey them , and saw in all of them sufficient reason for my obedience , and that the same reason , though the Statutes themselves were chang'd , remained constant . I have also diligently read over Littleton's Book of Tenures , with the Commentaries thereupon of the Renowned Lawyer Sir Ed. Coke , in which I confess I found great subtility , not of the Law , but of Inference from Law , and especially from the Law of Humane Nature , which is the Law of reason : and I confess that it is truth which he sayes in the Epilogue to his Book ; that by Arguments and Reason in the Law , a Man shall sooner come to the certainty and knowledge of the Law : and I agree with Sir Edw. Coke , who upon that Text farther ; That Reason is the Soul of the Law , and upon sect. 138. Nihil quod est Rationi contrarium est licitum ; that is to say , nothing is Law that is against Reason : and that Reason is the life of the Law , nay the Common Law it self is nothing else but Reason . And upon Sect. 21. Aequitas est perfecta quaedam Ratio , quae Jus scriptum interpretatur & emendat , nulla scriptura comprehensa , sed solus in vera Ratione consistens . i. e. Equity is a certain perfect Reason that interpreteth and amendeth the Law written , it self being unwritten , and consisting in nothing else but right Reason . When I consider this , and find it to be true , and so evident as not to be denyed by any Man of right sense , I find my own reason at a stand ; for it frustrates all the Laws in the World : for upon this ground any Man , of any Law whatsoever may say it is against Reason , and thereupon make a pretence for his disobedience . I pray you clear this passage , that we may proceed .

La.

I clear it thus out of Sir Edw. Coke . I Inst. Sect. 138. that this is to be understood of an artificial perfection of Reason gotten by long Study , Observation and Experience , and not of every Mans natural Reason ; for Nemo nascitur Artifex . This Legal Reason is summa Ratio ; and therefore if all the Reason that is dispersed into so many several heads were united into one , yet could he not make such a Law as the Law of England is , because by so many successions of Ages it hath been fined and refined by an infinite number of Grave and Learned Men.

Ph.

This does not clear the place , as being partly obscure , and partly untrue , that the Reason which is the Life of the Law , should be not Natural , but Artificial I cannot conceive . I understand well enough , that the knowledge of the Law is gotten by much study , as all other Sciences are , which when they are studyed and obtained , it is still done by Natural , and not by Artificial Reason . I grant you that the knowledge of the Law is an Art , but not that any Art of one Man , or of many how wise soever they be , or the work of one and more Artificers , how perfect soever it be , is Law . It is not Wisdom , but Authority that makes a Law . Obscure also are the words Legal Reason ; there is no Reason in Earthly Creatures , but Humane Reason ; but I suppose that he means , that the Reason of a Judge , or of all the Judges together ( without the King ) is that Summa Ratio , and the very Law , which I deny , because none can make a Law but he that hath the Legislative Power . That the Law hath been fined by Grave and Learned Men , meaning the Professors of the Law is manifestly untrue , for all the Laws of England have been made by the Kings of England , consulting with the Nobility and Commons in Parliament , of which not one of twenty was a Learned Lawyer .

Law .

You speak of the Statute Law , and I speak of the Common Law .

Ph.

I speak generally of Law .

La.

Thus far I agree with you , that Statute Law taken away , there would not be left , either here , or any where , any Law at all that would conduce to the Peace of a Nation ; yet Equity , and Reason which Laws Divine and Eternal , which oblige all Men at all times , and in all places , would still remain , but be Obeyed by few : and though the breach of them be not punished in this World , yet they will be punished sufficiently in the World to come . Sir Edw. Coke for drawing to the Men of his own Profession as much Authority as lawfully he might , is not to be reprehended ; but to the gravity and Learning of the Judges they ought to have added in the making of Laws , the Authority of the King , which hath the Soveraignty : for of these Laws of Reason , every Subject that is in his Wits , is bound to take notice at his Peril , because Reason is part of his Nature , which he continually carryes about with him , and may read it , if he will .

Ph.

'T is very true ; and upon this ground , if I pretend within a Month , or two to make my self able to perform the Office of a Judge , you are not to think it Arrogance ; for you are to allow to me , as well as to other Men , my pretence to Reason , which is the Common Law ( remember this that I may not need again to put you in mind , that Reason is the Common Law ) and for Statute Law , seeing it is Printed , and that there be Indexes to point me to every matter contained in them , I think a Man may profit in them very much in two Months .

Law .

But you will be but an ill Pleader .

Ph.

A Pleader commonly thinks he ought to say all he can for the Benefit of his Client , and therefore has need of a faculty to wrest the sense of words from their true meaning ; and the faculty of Rhetorick to seduce the Jury , and sometimes the Judge also , and many other Arts , which I neither have , nor intend to study .

La.

But let the Judge how good soever he thinks his Reasoning , take heed that he depart not too much from the Letter of the Statute : for it is not without danger .

Ph.

He may without danger recede from the Letter , if he do not from the meaning and sense of the Law , which may be by a Learned Man , ( such as Judges commonly are ) easily found out by the Preamble , the time when it was made , and the Incommodities for which it was made : but I pray tell me , to what end were Statute-Laws ordained , seeing the Law of Reason ought to be applyed to every Controversie that can arise .

La.

You are not ignorant of the force of an irregular Appetite to Riches , to Power , and to sensual Pleasures , how it Masters the strongest Reason , and is the root of Disobedience , Slaughter , Fraud , Hypocrisie , and all manner of evil habits ; and that the Laws of Man , though they can punish the fruits of them , which are evil Actions , yet they cannot pluck up the roots that are in the Heart . How can a Man be Indicted of Avarice , Envy , Hypocrisie , or other vitious Habit , till it be declared by some Action , which a Witness may take notice of ; the root remaining , new fruit will come forth till you be weary of punishing , and at last destroy all Power that shall oppose it .

Ph.

What hope then is there of a constant Peace in any Nation , or between one Nation , and another ?

La.

You are not to expect such a Peace between two Nations , because there is no Common Power in this World to punish their Injustice : mutual fear may keep them quiet for a time , but upon every visible advantage they will invade one another , and the most visible advantage is then , when the one Nation is obedient to their King , and the other not ; but Peace at home may then be expected durable , when the common people shall be made to see the benefit they shall receive by their Obedience and Adhaesion to their own Soveraign , and the harm they must suffer by taking part with them , who by promises of Reformation , or change of Government deceive them . And this is properly to be done by Divines , and from Arguments not only from Reason , but also from the Holy Scripture .

Ph.

This that you say is true , but not very much to that I aim at by your Conversation , which is to inform my self concerning the Laws of England : therefore I ask you again , what is the end of Statute-Laws ?

Of Soveraign Power . La.

I say then that the scope of all Humane Law is Peace , and Justice in every Nation amongst themselves , and defence against Forraign Enemies .

Ph.

But what is Justice ?

La.

Justice is giving to every Man his own .

Ph.

The Definition is good , and yet 't is Aristotles ; what is the Definition agreed upon as a Principle in the Science of the Common Law ?

La.

The same with that of Aristotle .

Ph.

See you Lawyers how much you are beholding to a Philosopher , and 't is but reason , for the more General and Noble Science , and Law of all the World is true Philosophy , of which the Common Law of England is a very little part .

La.

'T is so , if you mean by Philosophy nothing but the Study of Reason , as I think you do .

Ph.

When you say that Justice gives to every Man his own , what mean you by his own ? How can that be given me which is my own already ? or , if it be not my own , how can Justice make it mine ?

La.

Without Law every thing is in such sort every Mans , as he may take , possess , and enjoy without wrong to any Man , every thing , Lands , Beasts , Fruits , and even the bodies of other Men , if his Reason tell him he cannot otherwise live securely : for the dictates of Reason are little worth , if they tended not to the preservation and improvement of Mens Lives , seeing then without Humane Law all things would be Common , and this Community a cause of Incroachment , Envy , Slaughter , and continual War of one upon another , the same Law of Reason Dictates to Mankind ( for their own preservation ) a distribution of Lands , and Goods , that each Man may know what is proper to him , so as none other might pretend a right thereunto , or disturb him in the use of the same . This distribution is Justice , and this properly is the same which we say is one owns : by which you may see the great Necessity there was of Statute Laws , for preservation of all Mankind . It is also a Dictate of the Law of Reason , that Statute Laws are a necessary means of the safety and well being of Man in the present World , and are to be Obeyed by all Subjects , as the Law of Reason ought to be Obeyed , both by King and Subjects , because it is the Law of God .

Ph.

All this is very Rational ; but how can any Laws secure one Man from another ? When the greatest part of Men are so unreasonable , and so partial to themselves as they are , and the Laws of themselves are but a dead Letter , which of it self is not able to compel a Man to do otherwise than himself pleaseth , nor punish , or hurt him when he hath done a mischief .

La.

By the Laws , I mean , Laws living and Armed : for you must suppose , that a Nation that is subdued by War to an absolute submission of a Conqueror , it may by the same Arm that compelled it to Submission , be compelled to Obey his Laws . Also if a Nation choose a Man , or an Assembly of Men to Govern them by Laws , it must furnish him also with Armed Men and Money , and all things necessary to his Office , or else his Laws will be of no force , and the Nation remains , as before it was , in Confusion . 'T is not therefore the word of the Law , but the Power of a Man that has the strength of a Nation , that makes the Laws effectual . It was not Solon that made Athenian Laws ( though he devised them ) but the Supream Court of the People ; nor , the Lawyers of Rome that made the Imperial Law in Justinian's time , but Justinian himself .

Ph.

We agree then in this , that in England it is the King that makes the Laws , whosoever Pens them , and in this , that the King cannot make his Laws effectual , nor defend his People against their Enemies , without a Power to Leavy Souldiers , and consequently , that he may Lawfully , as oft as he shall really think it necessary to raise an Army ( which in some occasions be very great ) I say , raise it , and Money to Maintain it . I doubt not but you will allow this to be according to the Law ( at least ) of Reason .

La.

For my part I allow it . But you have heard how , in , and before the late Troubles the People were of another mind . Shall the King , said they , take from us what he please , upon pretence of a necessity whereof he makes himself the Judg ? What worse Condition can we be in from an Enemy ! What can they take from us more than what they list ?

Ph.

The People Reason ill ; they do not know in what Condition we were in the time of the Conqueror , when it was a shame to be an English-Man , who if he grumbled at the base Offices he was put to by his Norman Masters , received no other Answer but this , Thou art but an English-Man , nor can the People , nor any Man that humors them in their Disobedience , produce any Example of a King that ever rais'd any excessive Summ's , either by himself , or by the Consent of his Parliament , but when they had great need thereof ; nor can shew any reason that might move any of them so to do . The greatest Complaint by them made against the unthriftiness of their Kings was for the inriching now and then a Favourite , which to the Wealth of the Kingdom was inconsiderable , and the Complaint but Envy . But in this point of raising Souldiers , what is I pray you the Statute Law ?

La.

The last Statute concerning it , is 13 Car. 2. c. 6. By which the Supream Government Command , and disposing of the Militia of England is delivered to be , and always to have been the Antient Right of the Kings of England : But there is also in the same Act a Proviso , that this shall not be Construed for a Declaration , that the King may Transport his Subjects , or compel them to march out of the Kingdom , nor is it , on the contrary declared to be unlawful .

Ph.

Why is not that also determined ?

La.

I can imagine cause enough for it , though I may be deceiv'd . We love to have our King amongst us , and not be Govern'd by Deputies , either of our own , or another Nation : But this I verily believe , that if a Forraign Enemy should either invade us , or put himself in t a readiness to invade either England , Ireland , or Scotland ( no Parliament then sitting ) and the King send English Souldiers thither , the Parliament would give him thanks for it . The Subjects of those Kings who affect the Glory , and imitate the Actions of Alexander the Great , have not always the most comfortable lives , nor do such Kings usually very long enjoy their Conquests . They March to and fro perpetually , as upon a Plank sustained only in the midst , and when one end rises , down goes the other .

Ph.

'T is well . But where Souldiers ( in the Judgment of the Kings Conscience ) are indeed necessary , as in an insurrection , or Rebellion at home ; how shall the Kingdom be preserved without a considerable Army ready , and in pay ? How shall Money be rais'd for this Army , especially when the want of publick Treasure inviteth Neighbour Kings to incroach , and unruly Subjects to Rebel ?

I cannot tell . It is matter of Polity , not of Law ; but I know , that there be Statutes express , whereby the King hath obliged himself never to Levy Money upon his Subjects without the consent of his Parliament . One of which Statutes is . 25 Ed. 1. c. 6. in these words , We have granted for us , and our Heirs , as well to Arch-Bishops , Bishops , Abbots , and other Folk of the Holy Church , as also Earls , Barons , and to all the Commonalty of the Land , that for no Business from henceforth , we shall take such Aids , Taxes , or Prizes , but by the common Consent of the Realm . There is also another Statute of Ed. 1. in these words , No Taxes , or Aid shall be taken or Leveyed by us , or our Heirs in our Realm , without the good will , and assent of the Arch-Bishops , Bishops , Earls , Barons , Knights , Burgesses , and other Freemen of the Land ; which Statutes have been since that time Confirmed by divers other Kings , and lastly by the King that now Reigneth .

Ph.

All this I know , and am not satisfied . I am one of the Common People , and one of that almost infinite number of Men , for whose welfare Kings , and other Soveraigns were by God Ordain'd : For God made Kings for the People , and not People for Kings . How shall I be defended from the domineering of Proud and Insolent Strangers that speak another Language , that scorn us , that seek to make us Slaves ? Or how shall I avoid the Destruction that may arise from the cruelty of Factions in a Civil War , unless the King , to whom alone , you say , belongeth the right of Levying , and disposing of the Militia ; by which only it can be prevented , have ready Money , upon all Occasions , to Arm and pay as many Souldiers , as for the present defence , or the Peace of the People shall be necessary ? Shall not I , and you , and every Man be undone ? Tell me not of a Parliament when there is no Parliament sitting , or perhaps none in being , which may often happen ; and when there is a Parliament if the speaking , and leading Men should have a design to put down Monarchy , as they had in the Parliament which began to sit Nov. 3. 1640. Shall the King , who is to answer to God Almighty for the safety of the People , and to that end is intrusted with the Power to Levy and dispose of the Souldiery , be disabled to perform his Office by virtue of these Acts of Parliament which you have cited ? If this be reason , 't is reason also that the People be Abandoned , or left at liberty to kill one another , even to the last Man ; if it be not Reason , then you have granted it is not Law .

La.

'T is true , if you mean Recta Ratio , but Recta Ratio which I grant to be Law , as Sir Edw. Coke says , 1 Inst. Sect. 138. Is an Artificial perfection of Reason gotten by long Study , Observation , and Experience , and not every Mans natural Reason ; for Nemo nascitur Artifex . This Legal Reason is summa Ratio ; and therefore , if all the Reason that is dispersed into so many several Heads were united into one , yet could he not make such a Law as the Law of England is , because by many Successions of Ages it hath been fined and refin●d , by an infinite number of Grave and Learned Men. And this is it he calls the Common-Law .

Ph.

Do you think this to be good Doctrine ? though it be true , that no Man is born with the use of Reason , yet all Men may grow up to it as well as Lawyers ; and when they have applyed their Reason to the Laws ( which were Laws before they Studyed them , or else it was not Law they Studied ) may be as fit for , and capable of Judicature as Sir Edw. Coke himself , who whether he had more , or less use of Reason , was not thereby a Judge , but because the King made him so : And whereas he says , that a Man who should have as much Reason as is dispersed in so many several Heads , could not make such a Law as this Law of England is ; if one should ask him who made the Law of England ? Would he say a Succession of English Lawyers , or Judges made it , or rather a Succession of Kings ; and that upon their own Reason , either solely , or with the Advice of the Lords and Commons in Parliament , without the Judges , or other Professors of the Law ? You see therefore that the Kings Reason , be it more , or less , is that Anima Legis , that Summa Lex , whereof Sir Edw. Coke speaketh , and not the Reason , Learning , or Wisdom of the Judges ; but you may see , that quite through his Institutes of Law , he often takes occasion to Magnifie the Learning of the Lawyers , whom he perpetually termeth the Sages of the Parliament , or of the Kings Council : therefore unless you say otherwise , I say , that the Kings Reason , when it is publickly upon Advice , and Deliberation declar'd , is that Anima Legis , and that Summa Ratio , and that Equity which all agree to be the Law of Reason , is all that is , or ever was Law in England , since it became Christian , besides the Bible .

La.

Are not the Canons of the Church part of the Law of England , as also the Imperial Law used in the Admiralty , and the Customs of particular places , and the by-Laws of Corporations , and Courts of Judicature .

Ph.

Why not ? for they were all Constituted by the Kings of England ; and though the Civil Law used in the Admiralty were at first the Statutes of the Roman Empire , yet because they are in force by no other Authority than that of the King , they are now the Kings Laws , and the Kings Statutes . The same we may say of the Canons ; such of them as we have retained , made by the Church of Rome , have been no Law , nor of any force in England , since the beginning of Queen Elizabeth's Raign , but by Virtue of the Great Seal of England .

La.

In the said Statutes that restrain the Levying of Money without consent of Parliament , Is there any thing you can take exceptions to ?

Ph.

No , I am satisfied that the Kings that grant such Liberties are bound to make them good , so far as it may be done without sin : But if a King find that by such a Grant he be disabled to protect his Subjects if he maintain his Grant , he sins ; and therefore may , and ought to take no Notice of the said Grant : For such Grants as by Error , or false Suggestion are gotten from him , are as the Lawyers do Confess , Void and of no Effect , and ought to be recalled . Also the King ( as is on all hands Confessed ) hath the Charge lying upon him to Protect his People against Forraign Enemies , and to keep the Peace betwixt them within the Kingdom ; if he do not his utmost endeavour to discharge himself thereof , he Committeth a Sin , which neither King , nor Parliament can Lawfully commit .

La.

No Man I think will deny this : For if Levying of Money be necessary , it is a Sin in the Parliament to refuse , if unnecessary , it is a sin both in King and Parliament to Levy : But for all that it may be , and I think it is a Sin in any one that hath the Soveraign Power , be he one Man , or one Assembly , being intrusted with the safety of a whole Nation , if rashly , and relying upon his own Natural sufficiency , he make War , or Peace without Consulting with such , as by their Experience and Employment abroad , and Intelligence by Letters , or other means have gotten the Knowledge in some measure of the strength , Advantages and Designs of the Enemy , and the Manner and Degree of the Danger that may from thence arise . In like manner , in case of Rebellion at Home , if he Consult not with of Military Condition , which if he do , then I think he may Lawfully proceed to Subdue all such Enemies and Rebels ; and that the Souldiers ought to go on without Inquiring whether they be within the Country , or without : For who shall suppress Rebellion , but he that hath Right to Levy , Command , and Dispose of the Militia ? The last long Parliament denied this . But why ? Because by the Major part of their Votes the Rebellion was raised with design to put down Monarchy , and to that end Maintained .

Ph.

Nor do I hereby lay any Aspersion upon such Grants of the King and his Ancestors . Those Statutes are in themselves very good for the King and People , as creating some kind of Difficulty , or such Kings as for the Glory of Conquest might spend one part of their Subjects Lives and Estates , in Molesting other Nations , and leave the rest to Destroy themselves at Home by Factions . That which I here find fault with , is the wresting of those , and other such Statutes to a binding of our Kings from the use of their Armies in the necessary defence of themselves and their People . The late long Parliament that in 1648 , Murdered their King ( a King that sought no greater Glory upon Earth , but to be indulgent to his People , and a Pious defender of the Church of England ) no sooner took upon them the Soveraign Power , then they Levyed Money upon the People at their own Discretion . Did any of their Subjects Dispute their Power ? Did they not send Souldiers over the Sea to Subdue Ireland , and others to Fight against the Dutch at Sea , or made they any doubt but to be obeyed in all that they Commanded , as a Right absolutely due to the Soveraign Power in whomsoever it resides ? I say , not this as allowing their Actions , but as a Testimony from the Mouths of those very Men that denyed the same Power to him , whom they acknowledged to have been their Soveraign immediately before , which is a sufficient Proof , that the People of England never doubted of the Kings Right to Levy Money for the Maintenance of his Armies , till they were abused in it by Seditious Teachers , and other prating Men , on purpose to turn the State and Church into Popular Government , where the most ignorant and boldest Talkers do commonly obtain the best preferments ; again , when their New Republick returned into Monarchy by Oliver , who durst deny him Money upon any pretence of Magna Charta , or of these other Acts of Parliament which you have Cited ? You may therefore think it good Law , for all your Books ; that the King of England may at all times , that he thinks in his Conscience it will be necessar for the defence of his People , Levy as many Souldiers , and as much Money as he please , and that himself is Judge of the Necessity .

La.

Is there no body harkning at the door ?

Ph.

What are you afraid of ?

La.

I mean to say the same that you say : but there be very many yet , that hold their former Principles , whom , neither the Calamities of the Civil Wars , nor their former Pardon have throughly cur'd of their Madness .

Ph.

The Common People never take notice of what they hear of this Nature , but when they are set on by such as they think Wise ; that is , by some sorts of Preachers , or some that seem to be Learned in the Laws , and withal speak evil of the Governors . But what if the King upon the sight , or apprehension of any great danger to his People ; as when their Neighbours are born down with the Current of a Conquering Enemy , should think his own People might be involved in the same Misery , may he not Levy , Pay , and Transport Souldiers to help those weak Neighbours by way of prevention , to save his own People and himself from Servitude ? Is that a sin ?

La.

First , If the War upon our Neighbour be Just , it may be question'd whether it be Equity or no to Assist them against the Right .

Ph.

For my part I make no Question of that at all , unless the Invader will , and can put me in security , that neither he , nor his Successors shall make any Advantage of the Conquest of my Neighbour , to do the same to me in time to come ; but there is no Common Power to bind them to the Peace .

La.

Secondly ; when such a thing shall happen , the Parliament will not refuse to Contribute freely to the safety of themselves , and the whole Nation .

Ph.

It may be so , and it may be not : For if a Parliament then sit not , it must be called ; that requires 6 Weeks time ; Debating and Collecting what is given requires as much , and in this time the Opportunity perhaps is lost . Besides , how many wretched Souls have we heard to say in the late Troubles ; What matter is it who gets the Victory ? We can pay but what they please to Demand , and so much we pay now : and this they will Murmur , as they have ever done whosoever shall Raign over them , as long as their Coveteousness and Ignorance hold together , which will be till Dooms-day , if better order be not taken for their struction in their Duty , both from Reason and Religion .

La.

For all this I find it somewhat hard , that a King should have Right to take from his Subjects , upon the pretence of Necessity what he pleaseth .

Ph.

I know what it is that troubles your Conscience in this Point . All Men are troubled at the Crossing of their Wishes ; but it is our own fault . First , we wish Impossibilities ; we would have our Security against all the World , upon Right of Property , without Paying for it : This is Impossible . We may as well Expect that Fish , and Fowl should Boil , Rost , and Dish themselves , and come to the Table ; and that Grapes should squeeze themselves into our Mouths , and have all other the Contentments and ease which some pleasant Men have Related of the Land of Cocquam . Secondly , There is no Nation in the World where he , or they that have the Soveraignty do not take what Money they please , for Defence of those respective Nations , when they think it necessary for their safety . The late long Parliament denyed this ; but why ? Because there was a Design amongst them to Depose the King . Thirdly , There is no Example of any King of England that I have Read of , that ever pretended any such Necessity for Levying of Money , against his Conscience . The greatest sounds that ever were Levyed ( Comparing the value of Money , as it was at that time , with what now it is ) were Levied by King Edw. 3d. and King Henry the 5th . Kings of whom we Glory now , and think their Actions great Ornaments to the English History . Lastly , As to the enriching of now and then a Favourite , it is neither sensible to the Kingdom , nor is any Treasure thereby Conveyed out of the Realm , but so spent as it falls down again upon the Common People . To think that our Condition being Humane should be subject to no Incommodity , were Injuriously to Quarrel with God Almighty for our own Faults ; for he hath done his part in annexing our own Industry and Obedience .

La.

I know not what to say .

Ph.

If you allow this that I have said ; then , say that the People never were , shall be , or ought to be free from being Taxed at the will of one or other ; being hindred that if Civil War come , they must Levy all they have , and that Dearly , from the one , or from the other , or from both sides . Say , that adhering to the King , their Victory is an end of their Trouble ; that adhering to his Enemies there is no end ; for the War will continue by a perpetual Subdivision , and when it ends , they will be in the same Estate they were before . That they are often Abused by Men who to them seem wise , when then their Wisdom is nothing else but Envy to those that are in Grace , and in profitable Employments , and that those Men do but abuse the Common People to their own ends , that set up a private Mans Propriety against the publick Safety . But say withal , that the King is Subject to the Laws of God , both Written , and Unwritten , and to no other ; and so was William the Conqueror , whose Right it all Descended to our present King .

La.

As to the Law of Reason , which is Equity , 't is sure enough there is but one Legislator , which is God .

Ph.

It followeth then that which you call the Common-Law , Distinct from Statute-Law , is nothing else but the Law of God .

La.

In some sense it is , but it is not Gospel , but Natural Reason , and Natural Equity .

Ph.

Would you have every Man to every other Man alledge for Law his own particular Reason ? There is not amongst Men an Universal Reason agreed upon in any Nation , besides the Reason of him that hath the Soveraign Power ; yet though his Reason be but the Reason of one Man , yet it is set up to supply the place of that Universal Reason , which is expounded to us by our Saviour in the Gospel , and consequently our King is to us the Legislator both of Statute-Law , and of Common-Law .

La.

Yes , I know that the Laws Spiritual , which have been Law in this Kingdom since the Abolishing of Popery , are the Kings Laws , and those also that were made before ; for the Canons of the Church of Rome were no Laws , neither here , nor any where else without the Popes Temporal Dominions , farther than Kings , and States in their several Dominions respectively did make them so .

Ph.

I grant that . But you must grant also , that those Spiritual Laws Legislators of the Spiritual Law ; and yet not all Kings , and States make Laws by Consent of the Lords and Commons ; but our King here is so far bound to their Assents , as he shall Judge Conducing to the Good , and safety of his People ; for Example , if the Lords and Commons should Advise him to restore those Laws Spiritual , which in Queen Maries time were in Force , I think the King were by the Law of Reason obliged , without the help of any other Law of God , to neglect such Advice .

La.

I Grant you that the King is sole Legislator , but with this Restriction , that if he will not Consult with the Lords of Parliament and hear the Complaints , and Informations of the Commons , that are best acquainted with their own wants , he sinneth against God , though he cannot be Compell'd to any thing by his Subjects by Arms , and Force .

Ph.

We are Agreed upon that already , since therefore the King is sole Legislator , I think it also Reason he should be sole Supream Judge .

La.

There is no doubt of that ; for otherwise there would be no Congruity of Judgments with the Laws . I Grant also that he is the Supream Judge over all Persons , The King is the Supream Judge . and in all Causes Civil , and Ecclesiastical within his own Dominions , not only by Act of Parliament at this time , but that he has ever been so by the Common-Law : For the Judges of both the Benches have their Offices by the Kings Letters Patents , and so ( as to Judicature ) have the Bishops . Also the Lord Chancellour hath his Office by receiving from the King the Great Seal of England ; and to say all at once , there is no Magistrate , or Commissioner for Publick Business , neither of Judicature , nor Execution in State , or Church , in Peace , or War , but he is made so by Authority from the King .

Ph.

'T is true ; But perhaps you may ●●ink otherwise , when you Read such Acts of Parliament , as say , that the King shall ●ave Power and Authority to do this , or that by Virtue of that Act , as Eliz. c. 1. That your Highness , your Heirs , and Successors , Kings , or Queens of this Realm shall have ●●ll Power and Authority , by Virtue of this Act , by Letters Patents under the Great Seal of England to Assign , &c. Was it not this Parliament that gave this Authority to the Queen ?

La.

For the Statute in this Clause is no more than ( as Sir Edw. Coke useth to speak ) an Affirmance of the Common-Law ; For she being Head of the Church of England might make Commissioners for the de●iding of Matters Ecclesiastical , as freely ●s if she had been Pope , who did you know pretend his Right from the Law of God .

Ph.

We have hitherto spoken of Laws without considering any thing of the Na●ure and Essence of a Law ; and now unless we define the word Law , we can go no ●arther without Ambiguity , and Fallacy , which will be but loss of time ; whereas , on the contrary , the Agreement upon our words will enlighten all we have to say ●hereafter .

La.

I do not remember the Definition of Law in any Statute .

Ph.

I think so : For the Statutes were made by Authority , and not drawn from any other Principles than the care of the safety of the People . Statutes are not Philosophy as is the Common-Law , and other disputable Arts , but are Commands , or Prohibitions which ought to be obeyed , because Assented to by Submission made to the Conqueror here in England , and to whosoever had the Soveraign Power in other Common wealths ; so that the Positive Laws of all Places are Statutes . The Definition of Law was therefore unnecessary for the makers of Statutes , though very necessary to them , whose work it is to Teach the sence of the Law .

La.

There is an Accurate Definition of a Law in Bracton , Cited by Sir Edw. Coke ( ) Lex est sanctio justa , jubens honesta , & prohibens contraria .

Ph.

That is to say , Law is a just Statute , Commanding those things which are honest , and Forbidding the contrary . From whence it followeth , that in all Cases it must be the Honesty , or Dishonesty that makes the Command a Law , whereas you know that but for the Law we could not ( as saith St. Paul ) have known what is sin ; therefore this Definition is no Ground at all for any farther Discourse of Law . Besides , you know the Rule of Honest , and Dishonest refers to Honour , and that it is Justice only , and Injustice that the Law respecteth . But that which I most except against in this Definition , is , that it supposes that a Statute made by the Soveraign Power of a Nation may be unjust . There may indeed in a Statute Law , made by Men be found Iniquity , but not Injustice .

La.

This is somewhat subtil ; I pray deal plainly , what is the difference between Injustice and Iniquity ?

Ph.

I pray you tell me first , what is the difference between a Court of Justice , and a Court of Equity ?

La.

A Court of Justice is that which hath Cognizance of such Causes as are to be ended by the Possitive Laws of the Land ; and a Court of Equity in that , to which belong such Causes as are to be determined by Equity ; that is to say , by the Law of Reason .

Ph.

You see then that the difference between Injustice , and Iniquity is this ; that Injustice is the Transgression of a Statute-Law , and Iniquity the Transgression of the Law of Reason , was nothing else but the Law of Reason , and that the Judges of that Law are Courts of Justice , because the breach of the Statute-Law is Iniquity , and Injustice also . But perhaps you mean by Common-Law , not the Law it self , but the manner of proceeding in the Law ( as to matter of Fact ) by 12 Men , Freeholders , though those 12 Men are no Court of Equity , nor of Justice , because they determine not what is Just or Unjust , but only whether it be done , or not done ; and their Judgment is nothing else but a Confirmation of that which is properly the Judgment of the Witnesses ; for to speak exactly there cannot possibly be any Judge of Fact besides the Witnesses .

La.

How would you have a Law def●n'd ?

Ph.

Thus ; A Law is the Command of him , or them that have the Soveraign Power , given to those that be his or their Subjects , declaring Publickly , and plainly what every of them may do , and what they must forbear to do .

La.

Seeing all Judges in all Courts ought to Judge according to Equity , which is the Law of Reason , a distinct Court of Equity seemeth to me to be unnecessary , and but a Burthen to the People , since Common-Law , and Equity are the same Law .

Ph.

It were so indeed ; If Judges could not err , but since they may err , and that the King is not Bound to any other Law but that of Equity , it belongs to him alone to give Remedy to them that by the Ignorance , or Corruption of a Judge shall suffer dammage .

La.

By your Definition of a Law , the Kings Proclamation under the Great Seal of England is a Law ; for it is a Command , and Publick , and of the Soveraign to his Subjects .

Ph.

Why not ? If he think it necessary for the good of his Subjects : For this is a Maxim at the Common-Law Alledged by Sir Edward Coke himself . 1 Inst. Sect. 306. Quando Lex aliquid concedit , concedere videtur & id per quod devenitur ad illud . And you know out of the same Author , that divers Kings of ●ngland have often , to the Petitions in Parliament which they granted , annexed such exceptions as these , unless there be necessity , saving our Regality ; which I think should be always understood , though they be not expressed ; and are understood so by Common Lawyers , who agree that the King may recall any Grant wherein he was deceiv'd .

La.

Again , whereas you make it of the Essence of a Law to be Publickly and plainly declar'd to the People , I see no necessity for that . Are not all Subjects Bound to take notice of all Acts of Parliament , when no Act can pass without their Consent ?

Ph.

If you had said that no Act could pass without their knowledge , then indeed they had been bound to take notice of them ; but none can have knowledge of them but the Members of the Houses of Parliament , therefore the rest of the People are excus'd ; or else the Knights of the Shires should be bound to furnish People with a sufficient Number of Copies ( at the Peoples Charge ) of the Acts of Parliament at their return into the Country ; that every man may resort to them , and by themselves , or Friends take notice of what they are obliged to ; for otherwise it were Impossible they should be obeyed : And that no Man is bound to do a thing Impossible is one of Sir Edw. Cokes Maxims at the Common-Law . I know that most of the Statutes are Printed , but it does not appear that every Man is bound to Buy the Book of Statutes , nor to search for them at Westminster or at the Tower , nor to understand the Language wherein they are for the most part Written .

La.

I grant it proceeds from their own Faults ; but no Man can be excused by the Ignorance of the Law of Reason ; that is to say , by Ignorance of the Common-Law , except Children , Mad-men , and Idiots : But you exact such a notice of the Statute-Law , as is almost Impossible . Is it not enough that they in all Places have a sufficient Number of the Poenal Statutes ?

Ph.

Yes ; If they have those Poenal Statutes near them , but what Reason can you give me why there should not be as many Copies abroad of the Statutes , as there be of the Bible ?

La.

I think it were well that every Man that can Read had a Statute-Book ; for certainly no knowledge of those Laws , by which Mens Lives and Fortunes can be brought into danger , can be too much . I find a great Fault in your Definition of Law ; which is , that every Law either forbiddeth or Commandeth something . 'T is true that the Moral-Law is always a Command or a Prohibition , or at least Implieth it ; but in the Levitical-Law , where it is said ; that he that Stealeth a Sheep shall Restore four Fold ; what Command , or Prohibition lyeth in these words ?

Ph.

Such Sentences as that are not in themselves General , but Judgments , nevertheless , there is in those words Implied a Commandment to the Judge , to cause to be made a Four-fold Restitution .

La.

That 's Right .

Ph.

Now Define what Justice is , and what Actions , and Men are to be called Just.

La.

Justice is the constant will of giving to every Man his own ; that is to say , of giving to every Man that which is his Right , in such manner as to Exclude the Right of all men else to the same thing . A Just Action is that which is not against the Law . A Just Man is he that hath a constant Will to live Justly ; if you require more , I doubt there will no Man living be Comprehended within the Definition .

Ph.

Seeing then that a Just Action ( according to your Definition ) is that which is not against the Law ; it is Manifest that before there was a Law , there could be no Injustice , and therefore Laws are in their Nature Antecedent to Justice and Injustice , and you cannot deny but there must be Law-makers , before there was any Laws , and Consequently before there was any Justice , I speak of Humane Justice ; and that Law-makers were before that which you call Own , or property of Goods , or Lands distinguished by Meum , Tuum , Alienum .

La.

That must be Granted ; for without Statute-Laws , all Men have Right to all things ; and we have had Experience when our Laws were silenced by Civil War , there was not a Man , that of any Goods could say assuredly they were his own .

Ph.

You see then that no private Man can claim a Propriety in any Lands , or other Goods from any Title , from any Man , but the King , or them that have the Soveraign Power ; because it is in virtue of the Soveraignty , that every Man may not enter into , and Possess what he pleaseth ; and consequently to deny the Soveraign any thing necessary to the sustaining of his Soveraign power , is to destroy the Propriety he pretends to . The next thing I will ask you is , how you distinguish between Law and Right , or Lex and Jus.

La.

Sir Ed. Coke in divers places makes Lex and Jus to be the same , and so Lex Communis , and Jus Communis to be all one ; nor do I find that he does in any places distinguish them .

Ph.

Then will I distinguish them , and make you judge whether my distinction be not necessary to be known by every Author of the Common Law : for Law obligeth me to do , or forbear the doing of something ; and therefore it lies upon me an Obligation ; but my Right is a Liberty left me by the Law to do any thing which the Law forbids me not , and to leave undone any thing which the Law commands me not . Did Sir Ed. Coke see no difference between being bound and being free ?

La.

I know not what he was , but he has not mention'd it , though a man may dispense with his own Liberty , that cannot do so with the Law .

Ph.

But what are you better for your Right , if a rebellious Company at home , or an Enemy from abroad take away the Goods , or dispossess you of the Lands you have a right to ? Can you be defended , or repair'd , but by the strength and authority of the King ? What reason therefore can be given by a man that endeavours to preserve his Propriety , why he should deny , or malignly contribute to the Strength that should defend him , or repair him ? Let us see now what your Books say to this point , and other points of the Right of Soveraignty . Bracton , the most authentick Author of the Common Law , fol. 55. saith thus : Ipse Dominus Rex habet omnia Jura in manu suâ , est Dei Vicarius ; habet ea quae sunt Pacis , habet etiam coercionem ut Delinquentes puniat ; habet in potestate suâ Leges ; nihil enim prodest Jura condere , nisi sit qui Jura tueatur . That is to say , our Lord the King hath all Right in his own Hands ; is Gods Vicar ; he has all that concerns the Peace ; he has the power to punish Delinquents ; all the Laws are in his power ; To make Laws is to no purpose , unless there be some-body to make them obeyed . If Bracton's Law be Reason , as I , and you think it is ; what temporal power is there which the King hath not ? Seeing that at this day all the power Spiritual which Bracton allows the Pope , is restored to the Crown ; what is there that the King cannot do , excepting sin against the Law of God ? The same Bracton Lib. 21. c. 8. saith thus ; Si autem a Rege petitur ( cum Breve non curret contra ipsum ) locus erit supplicationi , quod factum suum corrigat , & emendet ; quod quidem si non fecerit , satis sufficit ad poenam , quod Dominum expectet Vltorem ; nemo quidem de factis ejus praesumat disputare , multo fortius contra factum ejus venire : That is to say , if any thing be demanded of the King ( seeing a Writ lyeth not against him ) he is put to his Petition , praying him to Correct and Amend his own Fact ; which if he will not do , it is a sufficient Penalty for him , that he is to expect a punishment from the Lord : No Man may presume to dispute of what he does , much less to resist him . You see by this , that this Doctrine concerning the Rights of Soveraignty so much Cryed down by the long Parliament , is the Antient Common-Law , and that the only Bridle of the Kings of England , ought to be the fear of God . And again Bracton , c. 24. of the second Book sayes , That the Rights of the Crown cannot be granted away ; Ea vero quae Jurisdictionis & Pacis , & ea quae sunt Justitiae & Paci annexa , ad nullum pertinent , nisi ad Coronam & Dignitatem Regiam , nec a Corona separari possunt , nec a privata persona possideri . That is to say , those things which belong to Jurisdiction and Peace , and those things that are annexed to Justice , and Peace , appertain to none , but to the Crown and Dignity of the King , nor can be separated from the Crown , nor be possest by a private Person . Again you 'l find in Fleta ( a Law-Book written in the time of Edw. 2. ) That Liberties though granted by the King , if they tend to the hinderance of Justice , or subversion of the Regal Power , were not to be used , nor allowed : For in that Book c. 20. concerning Articles of the Crown , which the Justices Itinerant are to enquire of , the 54th Article is this , you shall inquire De Libertatibus concessis quae impediunt Communem J●stitiam , & Regiam Potestatem subvertunt . Now what is a greater hindrance to Common Justice , or a greater subversion of the Regal Power , than a Liberty in Subjects to hinder the King from raising Money necessary to suppress , or prevent Rebellions , which doth destroy Justice , and subvert the power of the Soveraignty ? Moreover when a Charter is granted by a King in these words , Dedita & coram pro me & Haeredibus meis . The grantor by the Common-Law ( as Sir Edw. Coke sayes in his Commentaries on Littleton ) is to warrant his Gift ; and I think it Reason , especially if the Gift be upon Consideration of a price Paid . Suppose a Forraign State should say claim to this Kingdom ( 't is no Matter as to the Question I am putting , whether the Claim be unjust ) how would you have the King to warrant to every Free-holder in England the Lands they hold of him by such a Charter ? If he cannot Levy Money , their Estates are lost , and so is the Kings Estate , and if the Kings Estate be gone , how can he repair the Value due upon the Warranty ? I know that the Kings Charters are not so meerly Grants , as that they are not also Laws ; but they are such Laws as speak not to all the Kings Subjects in general , but only to his Officers ; implicitly forbidding them to Judge , or Execute any thing contrary to the said Grants . There be many Men that are able Judges of what is right Reason , and what not ; when any of these shall know that a Man has no Superiour , nor Peer in the Kingdom , he will hardly be perswaded he can be bound by any Law of the Kingdom , or that he who is Subject to none but God , can make a Law upon himself , which he cannot also as easily abrogate , as he made it . The main Argument , and that which so much taketh with the throng of People , proceedeth from a needless fear put into their minds by such Men as mean to make use of their Hands to their own ends ; for if ( say they ) the King may ( notwithstanding the Law ) do what he please , and nothing to restrain him but the fear of punishment in the World to come , then ( in case there come a King that fears no such punishment ) he may take away from us , not only our Lands , Goods , and Liberties , but our Lives also if he will : And they say true ; but they have no reason to think he will , unless it be for his own profit , which cannot be ; for he loves his own Power ; and what becomes of his power when his Subjects are destroyed , or weakned , by whose multitude , and strength he enjoyes his power , and every one of his Subjects his Fortune ? And lastly , whereas they sometimes say the King is bound , not only to cause his Laws to be observ'd , but also to observe them himself ; I think the King causing them to be observ'd is the same thing as observing them himself : For I never heard it taken for good Law , that the King may be Indicted , or Appealed , or served with a Writ , till the long Parliament practised the contrary upon the good King Charles , for which divers of them were Executed , and the rest by this our present King pardoned .

La.

Pardoned by the King and Parliament .

Ph.

By the King in Parliament if you will , but not by the King , and Parliament ; you cannot deny , but that the pardoning of Injury , to the Person that is Injur'd , Treason , and other Offences against the Peace , and against the Right of the Soveraign are Injuries done to the King ; and therefore whosoever is pardoned any such Offence , ought to acknowledge he ows his Pardon to the King alone : But as to such Murders , Felonies , and other Injuries as are done to any Subject how mean soever , I think it great reason that the parties endammaged ought to have satisfaction before such pardon be allow'd . And in the death of a Man , where restitution of Life is Impossible , what can any Friend , Heir , or other party that may appeal , require more than reasonable satisfaction some other way ? Perhaps he will be content with nothing but Life for Life ; but that is Revenge , and belongs to God , and under God to the King , and none else ; therefore if there be reasonable satisfaction tendred , the King , without sin ( I think ) may pardon him . I am sure , if the pardoning him be a sin , that neither King , nor Parliament , nor any earthly Power can do it .

La.

You see by this your own Argument , that the Act of Oblivion , without a Parliament could not have passed ; because , not only the King , but also most of the Lords , and abundance of Common People had received Injuries ; which not being pardonable , but by their own Assent , it was absolutely necessary that it should be done in Parliament , and by the assent of the Lords and Commons .

Ph.

I grant it ; but I pray you tell me now what is the difference between a general Pardon , and an Act of Oblivion ?

La.

The word Act of Oblivion was never in our Books before ; but I believe it is in yours .

Ph.

In the State of Athens long ago , for the Abolishing of the Civil War , there was an Act agreed on ; that from that time forward , no Man should be molested for any thing ( before that Act done ) whatsoever without exception , which Act the makers of it called an Act of Oblivion ; not that all Injuries should be forgotten ( for then we could never have had the story ) but that they should not rise up in Judgment against any Man . And in imitation of this Act the like was propounded ( though it took no effect ) upon the death of Julius Caesar , in the Senate of Rome . By such an Act you may easily conceive that all Accusations for offences past were absolutely dead , and buried , and yet we have no great reason to think , that the objecting one to another of the Injuries pardoned , was any violation of those Acts , except the same were so expressed in the Act it self .

La.

It seems then that the Act of Oblivion was here no more , nor of other nature than a General Pardon .

Of Courts . Ph.

SInce you acknowledge that in all controversies , the Judicature originally belongeth to the King , and seeing that no Man is able in his own person to execute an Office of so much business ; what order is taken for deciding of so many , and so various Controversies ?

La.

There be divers sorts of Controversies , some of which are concerning Mens Titles to Lands , and Goods ; and some Goods are Corporeal , and Lands , Money , Cattel , Corn , and the like , which may be handled , or seen ; and some Incorporeal , as Priviledges , Liberties , Dignities , Offices , and many other good things , meer Creatures of the Law , and cannot be handled or seen : And both of these kinds are concerning Meum , and Tuum . Others there are concerning Crimes punishable divers wayes ; and amongst some of these , part of the punishment is some Fine , or Forfeiture to the King , and then it is called a Plea of the Crown , in case the King sue the party , otherwise it is but a private Plea , which they call an Appeal : And though upon Judgment in an Appeal the King shall have his Forfeiture ; yet it cannot be called a Plea of the Crown , but when the Crown pleadeth for it . There be also other Controversies concerning the Government of the Church , in order to Religion , and virtuous Life . The offences both against the Crown , and against the Laws of the Church are Crimes ; but the offences of one Subject against another , if they be not against the Crown , the King pretendeth nothing in those Pleas , but the Reparation of his Subjects injur'd .

Ph.

A Crime is an offence of any kind whatsoever , for which a penalty is Ordain'd by the Law of the Land : But you must understand that dammages awarded to the party injur'd , has nothing common with the nature of a penalty , but is meerly a Restitution , or satisfaction due to the party griev'd by the Law of Reason , and consequently is no more a punishment than is the paying of a Debt .

La.

It seems by this Definition of a Crime you make no difference between a Crime , and a sin .

Ph.

All Crimes are indeed Sins , but not all Sins Crimes . A Sin may be in the thought or secret purpose of a Man , of which neither a Judge , nor a Witness , nor any Man take notice ; but a Crime is such a Sin as consists in an Action against the Law , of which Action he can be Accused , and Tryed by a Judge , and be Convinced , or Cleared by Witnesses . Farther ; that which is no Sin in it self , but indifferent , may be made Sin by a positive Law . As when the Statute was in force ; that no Man should wear Silk in his Hat , after the Statute , such wearing of Silk was a Sin , which was not so before : Nay sometimes an Action that 's good in it self , by the Statute Law may be made a Sin ; as if a Statute should be made to forbid the giving of Alms to a strong and sturdy Beggar ; such Alms after that Law would be a Sin , but not before : For then it was Charity , the Object whereof is not the strength , or other Quality of the poor Man , but his Poverty . Again , he that should have said in Queen Maries time , that the Pope had no Authority in England , should have been Burnt at a Stake ; but for saying the same in the time of Queen Elizabeth , should have been Commended . You see by this , that many things are made Crimes , and no Crimes , which are not so in their own Nature , but by Diversity of Law , made upon Diversity of Opinion , or of Interest by them which have Authority : And yet those things , whether good , or evil , will pass so with the Vulgar ( if they hear them often with odious terms recited ) for hainous Crimes in themselves , as many of those Opinions , which are in themselves Pious , and Lawful , were heretofore by the Popes Interest therein called Detestable Heresie . Again ; some Controversies are of things done upon the Sea , others of things done upon the Land . There need by many Courts to the deciding of so many kinds of Controversies . What order is there taken for their Distribution ?

La.

There be an extraordinary great number of Courts in England ; First ; there be the Kings Courts both for Law , and Equity in matters Temporal , which are the Chancery , the Kings-Bench , the Court of Common-Pleas , and for the Kings Revenue the Court of the Exchequer , and there be Subjects Courts by Priviledge , as the Court in London , and other priviledg'd places . And there be other Courts of Subjects , as the Courts of Landlords , called the Court of Barons , and the Courts of Sherifs . Also the Spiritual Courts are the Kings Courts at this day , though heretofore they were the Popes Courts . And in the Kings Courts , some have their Judicature by Office , and some by Commission , and some Authority to Hear , and Determine , and some only to Inquire , and to Certifie into other Courts . Now for the Distribution of what Pleas every Court may hold ; it is commonly held , that all the Pleas of the Crown , and of all Offences contrary to the Peace are to be holden in the Kings Bench , or by Commissioners , for Bracton saith ; Sciendum est , quod si Actiones sunt Criminales , in Curia Domini Regis debent determinari ; cum sit ibi poena C●rporalis infligenda , & hoc coram ipso Rege , si tangat personam suam , sicut Crimen Laesae Majestatis , vel coram Justitiariis ad hoc specialiter assignatis . That is to say ; That if the Plea be Criminal , it ought to be determin'd in the Court of our Lord the King , because there they have power to inflict Corporeal punishment , and if the Crime be against his person , as the Crime of Treason , it ought to be determin'd before the King himself , or if it be against a private person , it ought to be determin'd by Justices Assigned ; that is to say , before Commissioners . It seems by this , that heretofore Kings did hear and determine Pleas of Treason against themselves , by their own Persons ; but it has been otherwise a long time , and is now : For it is now the Office of the Lord Steward of England in the Tryal of a Peer , to hold that Plea by a Commission especially for the same . In Causes concerning Meum , and Tuum , the King may sue , either in the Kings-Bench , or in the Court of Common Pleas , as it appears by Fitzherbert in his Natura Brevium , at the Writ of Escheat .

Ph.

A King perhaps will not sit to determine of Causes of Treason against his Person , lest he should seem to make himself Judge in his own Cause ; but that it shall be Judged by Judges of his own making , can never be avoided , which is also one as if he were Judge himself .

La.

To the Kings-Bench also ( I think ) belongeth the Hearing , and Determining of all manner of Breaches of the Peace whatsoever , saving alwayes to the King that he may do the same , when he pleaseth , by Commissioners . In the time of Henry the 3d , and Edward the 1st , ( when Bracton wrote ) the King did usually send down every seven years into the Country Commissioners called Justices Itinerant , to Hear , and Determine generally all Causes Temporal , both Criminal , and Civil , whose places have been now a long time supplyed by the Justices of Assize , with Commissions of the Peace of Oyer , and Terminer , and of Goal-delivery .

Ph.

But why may the King only Sue in the Kings-Bench , or Court of Common-Pleas , which he will , and no other Person may do the same ?

La.

There is no Statute to the contrary , but it seemeth to be the Common-Law ; for Sir Edw. Coke , 4 Inst. setteth down the Jurisdiction of the Kings-Bench ; which ( he says ) has ; First , Jurisdiction in all Pleas of the Crown . Secondly , The Correcting of all manner of Errors of other Justices , and Judges , both of Judgments and Process ( except of the Court of Exchequer ) which he sayes , is to this Court Proprium quarto modo . Thirdly ; That it has power to Correct all Misdemeanours extrajudicial tending to the breach of the Peace , or oppression of the Subjects , or raising of Factions , Controversies , Debates , or any other manner of Misgovernment . Fourthly ; It may hold Plea by Writ out of the Chancery of all Trespasses done Vi & Armis . Fifthly ; It hath power to hold Plea by Bill for Debt , Detinu , Covenant , Promise , and all other personal Actions ; but of the Jurisdiction of the Kings-Bench in Actions real he says nothing ; save , that if a Writ in a Real Action be abated by Judgment in the Court of Common-Pleas , and that the Judgment be by a Writ of Error , reversed in the Kings-Bench , then the Kings-Bench may proceed upon the Writ .

Ph.

But how is the Practice ?

La.

Real Actions are commonly decided , as well in the Kings-Bench , as in the Court of Common-Pleas .

Ph.

When the Kng by Authority in Writing maketh a Lord-Chief-Justice of the Kings-Bench ; does he not set down what he makes him for ?

La.

Sir Edw Coke sets down the Letters Patents , whereby of Antient time the Lord Chief-Justice was Constituted , wherein is expressed to what end he hath his Office ; viz. Pro Conservatione nostra , & tranquilitatis Regni nostri , & ad Justitiam universis & singulis de Regno nostro exhibendam , Constituimus Dilectum & Fidelem nostrum P. B. Justitiarium Angliae , quamdiu nobis placuerit Capitalem , &c. That is to say , for the preservation of our self , and of the Peace of our Realm , and for the doing of Justice to all and singular our Subjects , we have Constituted our Beloved and Faithful P. B. during our pleasure , Chief Justice of England , &c.

Ph.

Methinks 't is very plain by these Letters Patents , that all Causes Temporal within the Kingdom ( except the Pleas that belong to the Exchequer ) should be decidable by this Lord-Chief-Justice . For as for Causes Criminal , and that concern the Peace , it is granted him in these words , for the Conservation of our self , and peace of the Kingdom , wherein are contained all Pleas Criminal ; and , in the doing of Justice to all and singular the Kings Subjects are comprehended all Pleas Civil . And as to the Court of Common-Pleas , it is manifest it may hold all manner of Civil-Pleas ( except those of the Exchequer ) by Magna Charta , Cap. 11. So that all original Writs concerning Civil-Pleas are returnable into either of the said Courts ; but how is the Lord-Chief-Justice made now ?

La.

By these words in their Letters Patents ; Constituimus vos Justitiarium nostrum Capitalem ad Placita coram nobis tenenda , durante beneplacito nostro . That is to say , we have made you our Chief-Justice to hold Pleas before our self , during our pleasure . But this Writ , though it be shorter , does not at all abridge the power they had by the former . And for the Letters Patents for the Chief-Justice of the Common-Pleas , they go thus , Constituimus dilectum & Fidelem , &c. Capitalem Justitiarium de Communi Banco , Habendum , &c. quamdiu nobis placuerit , cum vadiis & foedis ab antiquo debitis & consuetis . Id est , We have Constituted our Beloved and Faithful , &c. Chief-Justice of the Common-Bench , To have , &c. during our pleasure , with the ways , and Fees thereunto heretofore due , and usual .

Ph.

I find in History , that there have been in England always a Chancellour and a Chief-Justice of England , but of a Court of Common-Pleas there is no mention before Magna Charta . Common-Pleas there were ever both here , and I think , in all Nations ; for Common-Pleas and Civil-Pleas I take to be the same .

La.

Before the Statute of Magna Charta Common-Pleas ( as Sir Edw. Coke granteth , 2 Inst. p. 21. ) might have been holden in the Kings-Bench ; and that Court being removeable at the Kings will , the Returns of Writs were Coram Nobis ubicunque fuerimus in Anglia ; whereby great trouble of Jurors ensued , and great charges of the parties , and delay of Justice ; and that for these causes it was Ordain'd , that the Common-Pleas should not follow the King , but be held in a place certain .

Ph.

Here Sir Edw. Coke declares his Opinion , that no Common-Plea can be holden in the Kings-Bench , in that he says they might have been holden then . And yet this doth not amount to any probable proof , that there was any Court of Common-Pleas in England before Magna Charta : For this Statute being to ease the Jurors , and lessen the Charges of Parties , and for the Expedition of Justice had been in Vain , if there had been a Court of Common-Pleas then standing ; for such a Court was not necessarily to follow the King , as was the Chancery , and the Kings-Bench . Besides , unless the Kings-Bench , wheresoever it was , held Plea of civil Causes , the Subject had not at all been eased by this Statute : For supposing the King at York , had not the Kings Subjects about London , Jurors , and parties as much trouble , and charge to go to York , as the People about York had before to go to London ? Therefore I can by no means believe otherwise , then that the Erection of the Court of Common-Pleas was the effect of that Statute of Magna Charta , Cap. 11. And before that time not existent , though I think that for the multiplicity of Suits in a great Kingdom there was need of it .

La.

Perhaps there was not so much need of it as you think : For in those times the Laws , for the most part , were in setling , rather than setled ; and the old Saxon Laws concerning Inheritances were then practised , by which Laws speedy Justice was Executed by the Kings Writs , in the Courts of Barons , which were Landlords to the rest of the Freeholders , and Suits of Barons in County-Courts , and but few Suits in the Kings Courts , but when Justice could not be had in those Inferior Courts ; but at this day there be more Suits in the Kings Courts , than any one Court can dispatch .

Ph.

Why should there be more Suits now , than formerly ? For I believe this Kingdom was as well Peopled then as now .

La.

Sir Edw. Coke , 4 Inst. p. 76. assigneth for it six Causes , 1. Peace , 2. Plenty , 3. The Dissolution of Religious Houses , and dispersing of their Lands among so many several persons , 4. The multitude of Informers , 5. The number of Concealers , 6. The multitude of Attorneys .

Ph.

I see Sir Edw. Coke has no mind to lay any fault upon the Men of his own Profession ; and that he Assigns for Causes of the Mischiefs , such things as would be Mischief , and Wickedness to amend ; for if Peace , and Plenty , be the cause of this Evil , it cannot be removed but by War and Beggery ; and the Quarrels arising about the Lands of Religious Persons cannot arise from the Lands , but from the doubtfulness of the Laws . And for Informers they were Authorised by Statutes , to the Execution of which Statutes they are so necessary , as that their number cannot be too great , and if it be too great the fault is in the Law it self . The number of Concealers , are indeed a number of Couseners , which the Law may easily Correct . And lastly for the multitude of Attorneys , it is the fault of them that have the power to admit , or refuse them . For my part I believe that Men at this day have better learn't the Art of Caviling against the words of a Statute , than heretofore they had , and thereby encourage themselves , and others , to undertake Suits upon little reason . Also the variety and repugnancy of Judgments of Common-Law do oftentimes put Men to hope for Victory in causes , whereof in reason they had no ground at all . Also the ignorance of what is Equity in their own causes , which Equity not one Man in a thousand ever Studied , and the Lawyers themselves seek not for their Judgments in their own Breasts , but in the precedents of former Judges , as the Antient Judges sought the same , not in their own Reason , but in the Laws of the Empire . Another , and perhaps the greatest cause of multitude of Suits is this , that for want of Registring of conveyances of Land , which might easily be done in the Townships where the Lands ly , a Purchase cannot easily be had , which will not be litigious . Lastly , I believe the Coveteousness of Lawyers was not so great in Antient time , which was full of trouble , as they have been since in time of Peace , wherein Men have leisure to study fraud , and get employment from such Men as can encourage to Contention . And how ample a Field they have to exercise this Mystery in is manifest from this , that they have a power to Scan and Construe every word in a Statute , Charter , Feofment , Lease , or other Deed , Evidence , or Testimony . But to return to the Jurisdiction of this Court of the Kings-Bench , where , as you say , it hath power to correct and amend the Errors of all other Judges , both in Process , and in Judgments ; cannot the Judges of the Common-Pleas correct Error in Process in their own Courts , without a Writ of Error from another Court ?

La.

Yes ; and there be many Statutes which Command them so to do .

Ph.

When a Writ of Error is brought out of the Kings-Bench , be it either Error in Process , or in Law , at whose Charge is it to be done ?

La.

At the Charge of the Clyent .

Ph.

I see no reason for that ; for the Clyent is not in fault , who never begins a Suit but by the advice of his Council Learned in the Law , whom he pays for his Council given . Is not this the fault of his Councellor ? Nor when a Judge in the Common-Pleas hath given an Erroneous Sentence , it is always likely that the Judge of the Kings-Bench will reverse the Judgment ( though there be no Question , but as you may find in Bracton , and other Learned Men , he has power to do it ) because being Professors of the same Common-Law , they are perswaded , for the most part , to give the same Judgments : For Example ; if Sir Edw. Coke in the last Terme that he sate Lord-Chief-Justice in the Court of Common-Pleas , had given an Erroneous Judgment , that when he was removed , and made Lord-Chief-Justice of the Kings-Bench , would therefore have reversed the said Judgment , it is possi - he might , but not very likely . And therefore I do believe there is some other power , by the King constituted , to reverse Erroneous Judgments , both in the Kings-Bench , and in the Court of Common-Pleas .

La.

I think not ; for there is a Statute to the contrary , made 4o , Hen. 4. cap. 23. in these words ; Whereas , as well in Plea Real , as in Plea Personal , after Judgment in the Court of our Lord the King , the Parties be made to come upon grievous pain , sometimes before the King himself , sometimes before the Kings Council , and sometimes to the Parliament to answer thereof anew , to the great Impoverishing of the Parties aforesaid , and to the subversion of the Common-Law of the Land , it is ordained and established , that after Judgment given in the Court of our Lord the King , the Parties , and their Heirs shall be there in Peace , until the Judgment be undone by Attaint , or by Error , if there be Error , as hath been used by the Laws in the times of the Kings Progenitors .

Ph.

This Statute is so far from being repugnant to that , I say , as it seemeth to me to have been made expresly to confirm the same : For the substance of the Statu●e is , that there shall be no Suit made by either of the Parties for any thing adjudged , either in the Kings-Bench , or Court of Common-Pleas , before the Judgment be undone by Error , or Corruption prov'd ; and that this was the Common-Law before the making of this Statute , which could not be , except there were ( before this Statute ) some Courts authorised to examine , and correct such Errors as by the Plaintiff should be assign'd . The inconvenience which by this Statute was to be remedied was this , that often Judgment given in the Kings Courts , by which are meant in this place the Kings-Bench , and Court of Common-Pleas , the Party against whom the Judgment was given , did begin a new Suit , and cause his Adversary to come before the King himself ; here by the King himself must be understood the King in Person ; for though in a Writ by the words Coram nobis is understood the Kings-Bench , yet in a Statute it is never so ; nor is it strange , seeing in those days the King did usually sit in Court with his Council , to hear ( as sometimes King James ) and sometimes the same Parties commenced their Suit before the Privy-Council , though the King were absent ; and sometimes before the Parliament the former Judgment yet standing . For remedy whereof , it was ordained by this Statute , that no Man should renew his Suit , till the former Judgment was undone by Attaint , or Error ; which Reversing of a Judgment had been impossible , if there had been no Court ( besides the aforesaid two Courts ) wherein the Errors might be Assigned , Examin'd , and Judg'd ; for no Court can be esteemed in Law , or Reason , a Competent Judge of its own Errors . There was therefore before this Statute some other Court existent for the hearing of Errors , and Reversing of Erroneous Judgments . What Court this was I enquire not yet , but I am sure it could not be either the Parliament or the Privy-Council , or the Court wherein the Erroneous Judgment was given .

La.

The Doctor and Student discourses of this Statute , cap. 18. much otherwise than you do : For the Author of that Book saith , that against an Erroneous Judgment all Remedy is by this Statute taken away . And though neither Reason , nor the Office of a King , nor any Law positive can prohibit the remedying of any Injury , much less of an unjust Sentence , yet he shows many Statutes , wherein a Mans Conscience ought to prevail above the Law .

Ph.

Upon what ground can he pretend , that all Remedy in this case is by this Statute prohibited ?

La.

He says it is thereby enacted , that Judgment given by the Kings Courts shall not be examin'd in the Chancery , Parliament , nor elsewhere .

Ph.

Is there any mention of Chancery in this Act ? It cannot be examin'd before the King and his Council , nor before the Parliament , but you see that before the Statute it was examin'd somewhere , and that this Statute will have it examin'd there again .

And seeing the Chancery was altogether the highest Office of Judicature in the Kingdom for matter of Equity , and that the Chancery is not here forbidden to examine the Judgments of all other Courts , at least it is not taken from it by this Statute . But what Cases are there in this Chapter of the Doctor and Student , by which it can be made probable , that when Law , and Conscience , or Law and Equity seem to oppugne one another , the written Law should be preferr'd ?

La.

If the Defendant wage his Law in an Action of Debt brought upon a true Debt , the Plaintiff hath no means to come to his Debt by way of Compulsion , neither by Subpoena , nor otherwise , and yet the Defendant is bound in Conscience to pay him .

Ph.

Here is no preferring that , I see , of the Law above Conscience , or Equity ; for the Plaintiff in this case loseth not his Debt for want either of Law , or Equity , but for want of Proof ; for neither Law , nor Equity can give a Man his Right , unless he prove it .

La.

Also if the Grand-Jury in Attaint affirm a false Verdict given by the Petty-Jury , there is no farther Remedy , but the Conscience of the party .

Ph.

Here again the want of Proof is the want of Remedy ; for if he can prove that the Verdict given was false , the King can give him remedy such way as himself shall think best , and ought to do it , in case the Party shall find surety , if the same Verdict be again affirmed , to satisfie his Adversary for the Dammage , and Vexation he puts him to .

La.

But there is a Statute made since ; viz. 27 Eliz. c. 8. by which that Statute of Hen. 4. 23. is in part taken away ; for by that Statute Erroneous Judgments given in the Kings-Bench , are by a Writ of Error to be examin'd in the Exchequer-Chamber , before the Justices of the Common-Bench , and the Barons of the Exchequer , and by the preamble of this Act it appears , that Erroneous Judgments are only to be reform'd by the High Court of Parliament .

Ph.

But here is no mention , that the Judgments given in the Court of Common-Pleas should be brought in to be examin'd in the Exchequer-Chamber , why therefore may not the Court of Chancery examin●● Judgment given in the Court of Common-Pleas ?

La.

You deny not but , by the Antient Law of England , the Kings-Bench may examine the Judgment given in the Court of Common-Pleas .

Ph.

'T is true ; but why may not also the Court of Chancery do the same , especially if the fault of the Judgment be against Equity , and not against the Letter of the Law ?

La.

There is no necessity of that ; for the same Court may examine both the Letter and the Equity of the Statute .

Ph.

You see by this , that the Jurisdiction of Courts cannot easily be distinguished , but by the King himself in his Parliament . The Lawyers themselves cannot do it ; for you see what Contention there is between Courts , as well as between particular Men. And whereas you say , that Law of 4 ▪ Hen. 4. 23. is by that of 27 Eliz. cap. 8. taken away , I do not find it so . I find indeed a Diversity of opinion between the makers of the former and the latter Statute , in the preamble of the latter and Conclusion of the former . The Preamble of the latter is ; forasmuch as Erroneous Judgments given in the Court called the Kings-Bench , are only to be reformed in the High Court of Parliament , and the Conclusion of the former is , that the contrary was Law in the times of the Kings Progenitors . These are no parts of those Laws , but Opinions only concerning the Antient Custom in that Case , arising from the different Opinions of the Lawyers in those different times , neither Commanding , nor Forbidding any thing ; though of the Statutes themselves , the one forbids that such Pleas be brought before the Parliament , the other forbids it not : But yet if after the Act of Hen. 4. such a Plea had been brought before the Parliament , the Parliament might have Heard , and Determin'd it : For the Statute forbids not that ! nor can any Law have the force to hinder the Law of any Jurisdiction whatsoever they please to take upon them , seeing it is a Court of the King and of all the People together , both Lords , and Commons .

La.

Though it be , yet seeing the King ( as Sir Edw. Coke affirms , 4 Inst. p. 71. ) hath committed all his power Judicial , some to one Court , and some to another , so as if any Man would render himself to the Judgment of the King , in such case where the King hath committed all his power Judicial to others , such a render should be to no effect . And p. 73. he saith farther ; That in this Court the Kings of this Realm have sitten on the High Bench , and the Judges of that Court on the Lower Bench , at his feet ; but Judicature belongeth only to the Judges of that Court , and in his presence they answer all Motions .

Ph.

I cannot believe that Sir Edw. Coke , how much soever he desir'd to advance the authority of himself , and other Justices of the Common-Law , could mean that the King in the Kings-Bench sate as a Spectator only , and might not have answered all motions , which his Judges answer'd , if he had seen cause for it : For he knew that the King was Supream Judge then in all causes Temporal , and is now in all Causes both Temporal , and Ecclesiastical ; and that there is an exceeding great penalty ordained by the Laws for them that shall deny it . But Sir Edw. Coke as he had ( you see ) in many places before , hath put a Fallacy upon himself , by not distinguishing between Committing , and Transferring . He that Transferreth his power , hath deprived himself of it , but he that Committeth it to another to be Exercised in his name , and under him , is still in the Possession of the same power . And therefore if a Man render himself ; that is to say , Appealeth to the King from any Judge whatsoever , the King may receive his Appeal ; and it shall be effectual .

La.

Besides these 2 Courts , the Kings-Bench for Pleas of the Crown , and the Court of Common-Pleas for Causes Civil , according to the Common-Law of England , there is another Court of Justice , that hath Jurisdiction in Causes both Civil , and Criminal , and is as Antient a Court , at least as the Court of Common Pleas , and this is the Court of the Lord Admiral , but the proceedings therein are according to the Laws of the Roman Empire , and the Causes to be determin'd there are such as arise upon the Marine Sea : For so it is ordain'd by divers Statutes , and confirm'd by many Precedents .

Ph.

As for the Statutes they are always Law , and Reason also ; for they are made by the Assent of all the Kingdom , but Precedents are Judgments one contrary to another ; I mean divers Men , in divers Ages , upon the same case give divers Judgments . Therefore I will ask your Opinion once more concerning any Judgments besides those of the King , as to their validity in Law . But what is the difference between the proceedings of the Court of Admiralty , and the Court of Common-Law ?

La.

One is , that the Court of Admiralty proceedeth by two Witnesses , without any either Grand-Jury , to Indict , or Petty to Convict , and the Judge giveth Sentence according to the Laws Imperial , which of old time were in force in all this part of Europe , and now are Laws , not by the Will of any other Emperor or Forraign Power , but by the Will of the Kings of England that have given them force in their own Dominions ; the reason whereof seems to be , that the causes that arise at Sea are very often between us , and People of other Nations , such as are Governed for the most part by the self same laws Imperial .

Ph.

How can it precisely enough be determin'd at Sea , especially near the mouth of a very great River , whether it be upon the Sea , or within the Land ? For the Rivers also are , as well as their Banks , within , or a part of one Country or other .

La.

Truly the Question is difficult , and there have been many Suits about it , wherein the Question has been , whose Jurisdiction it is in .

Ph.

Nor do I see how it can be decided , but by the King himself , in case it be not declar'd in the Lord Admirals Letters Patents .

La.

But though there be in the Letters Patents a power given to hold Plea in some certain cases ; to any of the Statutes concerning the Admiralty the Justices of the Common-Law may send a Prohibition to that Court , to proceed in the Plea , though it be with a non-obstante of any Statute .

Ph.

Methinks that That should be against the Right of the Crown , which cannot be taken from it by any Subject : For that Argument of Sir Edw. Coke's , that the King has given away all his Judicial Power , is worth nothing ; because ( as I have said before ) he cannot give away the Essential Rights of his Crown , and because by a non-obstante he declares he is not deceived in his Grant .

La.

But you may see by the Precedents alledged by Sir Edw. Coke , the contrary has been perpetually practised .

Ph.

I see not that perpetually ; for who can tell , but there may have been given other Judgments in such cases , which have either been not preserv'd in the Records , or else by Sir Edw. Coke ( because they were against his opinion ) not alledged : For this is possible , though you will not grant it to be very likely ; therefore I insist only upon this , that no Record of a Judgment is a Law , save only to the party Pleading , until he can by Law reverse the former Judgment . And as to the proceeding without Juries by two sufficient Witnesses , I do not see what harm can proceed from it to the Common-wealth , nor consequently any just Quarrel that the Justice of the Common-Law can have against their proceedings in the Admiralty : For the Proof of a Fact in both Courts lyeth meerly on the Witnesses , and the difference is no more , but that in the Imperial-Law , the Judge of the Court Judgeth of the Testimony of the Witnesses , and the Jury doth in a Court of Common-Law . Besides , if a Court of Common-Law should chance to Incroach upon the Jurisdiction of the Admiral , may not he send a prohibition to the Court of Common-Law to forbid their proceeding ? I pray you tell me what Reason there is for the one , more than for the other ?

La.

I know none but long Custom ; for I think it was never done .

Ph.

The Highest ordinary Court in England is the Court of Chancery , wherein the Lord Chancellour , or otherwise Keeper of the Great Seal is the only Judge . This Court is very Antient , as appears by Sir Edw. Coke , 4 Inst. p. 87. where he nameth the Chancellors of King Edgar , King Etheldred , King Edmund , and King Edward the Confessor . His Office is given to him without Letters Patents by the Kings delivery to him of the Great Seal of England , and whosoever hath the keeping of the Great Seal of England hath the same , and the whole Jurisdiction that the Lord Chancellour ever had by the Statute of 5 Eliz. cap. 18. wherein it is declar'd , that such is , and always has been the Common-Law . And Sir Edw. Coke says , he has his name of Chancellour from the highest point of his Jurisdiction ; viz. a Cancellando ; that is , from Cancelling the Kings Letters Patents , by drawing strokes through it like a Lattice .

Ph.

Very pretty . It is well enough known that Cancellarius was a great Officer under the Roman Empire , whereof this Island was once a Member , and that the Office came into this Kingdom , either with , or in Imitation of the Roman Government . Also it was long after the time of the 12 Caesars , that this Officer was created in the State of Rome . For till after Septimius Severus his time , the Emperors did diligently enough take cognizance of Causes and Complaints for Judgments given in the Courts of the Praetors , which were in Rome the same that the Judges of the Common-Law are here ; but by the continual Civil Wars in after-times for the choosing of Emperors , that diligence by little and little ceased ; and afterwards ( as I have Read in a very good Author of the Roman Civil Law ) the number of complaints being much increased , and being more than the Emperor could dispatch , he appointed an Officer as his Clerk , to receive all such Petitions ; and that this Clerk caused a partition to be made in a Room convenient , in which partition-Wall , at the heighth of a Mans reach , he placed at convenient distances certain Bars ; so that when a Suitor came to deliver his Petition to the Clerk , who was sometimes absent , he had no more to do , but to throw in his Petition between those Bars , which in Latin are called properly Cancelli ; not that any certain Form of those Bars , or any Bars at all were necessary ; for they might have been thrown over , though the whole space had been left open ; but because they were Cancelli , the Clerk Attendant , and keeping his Office there , was called Cancellarius : And any Court Bar may properly enough be called Cancelli , which does not signifie a Lattice ; for that is but a meer Conjecture grounded upon no History nor Grammar , but taken up at first ( as is likely ) by some Boy that could find no other word in the Dictionary for a Lattice but Cancelli . The Office of this Chancellour was at first but to Breviate the matter of the Petitions , for the easing of the Emperor , but Complaints encreasing daily , they were too many , considering other Businesses more necessary for the Emperor to determine , and this caused the Emperor to commit the Determination of them to the Chancellor again ; what Reason doth Sir Edw. Coke alledge to prove , that the highest point of the Chancellors Jurisdiction is to Cancel his Masters Letters Patents , after they were Sealed with his Masters Seal ; unless he hold Plea concerning the validity of them , or of his Masters meaning in them , or of the surreptitious getting of them , or of the abusing of them , which are all causes of Equity ? Also , seeing the Chancellor hath his Office only by the delivery of the Great Seal , without any Instruction , or Limitation of the Process in his Court to be used ; it is manifest , that in all Causes whereof he has the hearing , he may proceed by such manner of hearing , and examining of Witnesses ( with Jury , or without Jury ) as he shall think fittest for the Exactness , Expedition and Equity of the Decrees . And therefore , if he think the Custome of proceeding by Jury , according to the Custome of England in Courts of Common-Law , tend more to Equity ( which is the scope of all the Judges in the World , or ought to be ) he ought to use that method , or if he think better of another proceeding , he may use it , if it be not forbidden by a Statute .

La.

As for this Reasoning of yours I think it well enough ; but there ought to be had also a reverend respect to Customs not unreasonable ; and therefore , I think , Sir Edw. 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 Kings-Bench ; and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by Statutes .

Ph.

What are the Statutes by which his Jurisdiction is limited ? I know that by the 27 Eliz. cap. 8. He cannot Reverse a Judgment given in the Kings-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 Kings-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 opprest 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 Custome , we will Consider of it afterward .

La.

First in a Parliament holden the 13th of Rich. 2. 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 .

Ph.

This is no unreasonable Petition ; for the Common-Law is nothing else but Equity : And by this Statute it appears , that the Chancellors , before that Statute , made bolder with the Courts of Common Law , than they did afterward ; but it does not appear that Common-Law in this Statute signifies any thing else , but generally the Law Temporal of the Realm , nor was this Statute ever Printed , that such as I might take notice of it ; but whether it be a Statute or not , I know not , till you tell me what the Parliament Answer'd to this Petition .

La.

The Kings Answer was , the Wages heretofore shall stand , so as the Kings Royalty be saved .

Ph.

This is slatly against Sir Edw. Coke , concerning the Chancery .

La.

In another Parliament , 17 Rich. 2. It is Enacted , at the Petition of the Commons ; That forasmuch as People were Compelled to come before the Kings Council , or in Chancery , by Writs grounded upon untrue Suggestions , that the Chancellor for the time being , presently after such Suggestions , be duly found , and proved untrue , shall have power to Ordain , and Award Dammages , according to his discretion , to him which is so Travelled unduly , as is aforesaid .

Ph.

By this Statute it appears , that when a Complaint is made in Chancery upon undue Suggestions , the Chancellor shall have the Examination of the said Suggestions , and as he may avoid Dammages when the Suggestions are untrue , so he may also proceed by Process to the detemining of the Cause , whether it be Real , or Personal , so it be not Criminal .

La.

Also the Commons Petitioned in a Parliament of 2 Hen. 4. not Printed ; That no Writs , nor Privy-Seals be sued out of Chancery , Exchequer , or other places to any Man to appear at a day , upon a pain , either before the King and his Council , or in any other place , contrary to the ordinary Course of Common-Law .

Ph.

What Answer was given to this Petition by the King ?

La.

That such Writs should not be granted without necessity .

Ph.

Here again you see the King may deny , or Grant any Petitions in Parliament , either as he thinks it necessary , as in this place , or as he thinks it prejudicial , or not prejudicial to his Royalty , as in the Answer of the former Petition , which is a sufficient proof , that no part of his Legislative Power , or any other Essential part of Royalty can be taken from him by a Statute . Now seeing it is granted , that Equity is the same thing with the Law of Reason , and seeing Sir Edw. Coke , 1 Inst. Sect. 21. Defines Equity to be a certain Reason comprehended in no Writing , but consisting only in right Reason , which interpreteth and amendeth the Written-Law ; I would fain know to what end there should be any other Court of Equity at all , either before the Chancellor or any other Person , besides the Judges of the Civil , or Common-Pleas ? Nay I am sure you can alledge none but this , that there was a necessity of a Higher Court of Equity , than the Courts of Common-Law , to remedy the Errors in Judgment given by the Justices of Inferior Courts , and the Errors in Chancery were irrevocable , except by Parliament , or by special Commission appointed thereunto by the King .

La.

But Sir Edw. Coke says , that seeing matters of Fact by the Common-Law are Tryable by a Jury of 12 Men , this Court should not draw the matter ad aliud Examen ; i. e. to another kind of Examination , viz. by Deposition of Witnesses , which should be but evidence to a Jury .

Ph.

To the Deposition of Witnesses any more or less , then to evidence to the Lord-Chancellor ? 'T is not therefore another kind of Examination ; nor is a Jury more capable of duly examining Witnesses than a Lord-Chancellor . Besides , seeing all Courts are bound to Judge according to Equity , and that all Judges in a Case of Equity , may sometimes be deceiv'd , what harm is there to any Man , or to the State , if there be a subordination of Judges in Equity , as well as of Judges in Common-Law ? Seeing it is provided by an Act of parliament to avoid Vexation , that Subpoenas shall not be granted , till surety be found to satisfie the Party so grieved and vexed for his Dammages and Expences , if so be the matter may not be made good which is contained in the Bill .

La.

There is another Statute of 31 Hen. 6. cap. 2. wherein there is a Proviso cited by Sir Edw. Coke in these words ; Provided , that no matter determinable by the Laws of the Realm , shall be by the said Act determined in other Form , then after the course of the same Law in the Kings Courts having the Determination of the same Law .

Ph.

This Law was made but for Seven years , and never continued by any other Parliament , and the motive of this Law was the great Riots , Extortions , Oppressions , &c. used during the time of the Insurrection of John Cade , and the Indictments and Condemnations wrongfully had by this usurped Authority ; and thereupon the Parliament Ordained , that for 7 years following no Man should disobey any of the Kings Writs under the Great Seal , or should refuse to appear upon Proclamation before the Kings Council , or in the Chancery , to Answer to Riots , Extortions , &c. For the first time he should lose , &c. Wherein there is nothing at all concerning the Jurisdiction of the Chancery , or any other Court , but an extraordinary power given to the Chancery , and to the Kings Privy-Council , to Determine of those Crimes which were not before that time Tryable , but only by the Kings-Bench , or special Commission : For the Act was made expresly for the punishment of a great Multitude of Crimes committed by those that had Acted by the said Cade's Authority ; to which Act the Proviso was added , which is here mention'd , that the Proceeds in those Courts of Chancery , and of the Kings Council should be such , as should be used in the Courts , to which the said Courts , before this Act was made , do belong . That is to say , such causes as were Criminal , should be after the order of the Kings-Bench , and such Causes as were not Criminal , but only against Equity , should be Tryed after the manner of the Chancery , or in some cases according to the Proceedings in the Exchequer . I wonder why Sir Edw. Coke should cite a Statute ( as this is ) above two hundred years before expir'd , and other two Petitions ; as if they were Statutes , when they were not passed by the King ; unless he did it on purpose to diminish ( as he endeavours to do throughout his Institutes ) the Kings Authority , or to insinuate his own opinions among the People for the Law of the Land : For that also he endeavours by Inserting Latin Sentences , both in his Text , and in the Margin , as if they were Principles of the Law of Reason , without any Authority of Antient Lawyers , or any certainty of Reason in themselves , to make Men believe they are the very grounds of the Law of England . Now as to the Authority you ascribe to Custome , I deny that any Custome of its own Nature , can amount to the Authority of a Law : For if the Custom be unreasonable , you must with all other Lawyers confess that it is no Law , but ought to be 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 in any Statute ( though Lex & 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 .

La.

If all Courts were ( as you think ) Courts of Equity , would it not be incommodious to the Common-wealth ?

Ph.

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 inclin'd to put off the Causes they use to hear ( for the easing of themselves ) to some other Court ; to the delay of Justice , and dammage of the Parties suing .

La.

You are very much deceiv'd in that ; for on contrary the Contention between the Courts for Jurisdiction , is of who shall have most Causes brought before them .

Ph.

I cry you Mercy , I smelt not that .

La.

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 .

Ph.

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 Legislator 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 Considerations of such Conjuncture of occasions , and Incommodities as needed a new Law for a Remedy ; for there is scarce any thing 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 it self so difficult , as that the Sages of the Law themselves ( the Reason Sir Edw. Coke will leave to Law it self ) are not yet agreed upon it ; how is it possible for a Man that is no professed , or no profound Lawyer , to take notice in what Court he may Lawfully begin his Suit , or give Council in it to his Client ?

La.

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 .

Ph.

I think he may avoid both , if he take care by his Sentence , that he neither punish an Innocent , nor deprive him of his ●ammages due from one that maliciously ●●eth him without reasonable Cause , which ●o the most of Rational Men , and unbiassed ●s not , in my Opinion , very difficult . And though a Judge should ( as all Men may do ) Erre 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 ●s bound to acquiesce in the Sentence of the Judges he chooseth .

La.

In what Cases can the true Construction of the Letter be contrary to the meaning of the Lawmaker ?

Ph.

Very many , whereof Sir Edw. Coke nameth 3 , 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 Connections of doubtful reference , which by a Grammarian may be Cavill'd at , though the Intention of the Lawmaker be never so perspicuous . And these are the difficulties which the Judges 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 supplyed . 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 shew me , why it is unfit , and hurtful to the Common-wealth , that a Bishop should be a Chancellor , as they were most often before the time of Hen. 8. and since that time once in the Raign of King James ?

La.

But Sir Ed. 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 .

Ph.

That Petition was Reasonable , but it does not say which are Abler Men , the Judges of the Common Law , or the Bishops .

La.

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 .

Ph.

I see no great need he has to be ready in the Statutes ; in the hearing of a Cause do the Judges of the Common-Law Inform the Council at the Bar what the Statute is , or the Council the Judges ?

La.

The Council Inform the Judges .

Ph.

Why may they not as well Inform the Chancellor ? Unless you will say , that a Bishop understands not as well as a Lawyer what is sense , when he hears it Read in English . No ; no ; both the one , and the other are able enough , but to be able enough is not enough ; when , not the difficulty of the Case only , but also the Passion of the Judge is to be Conquer'd . I forgot to tell you of the Statute of the 36 Edw. 3. cap. 9. That if any Person think himself grieved contrary to any of the Articles above Written , or others contained in divers Statutes , will come to the Chancery , or any for him , and thereof make his Complaint , he shall presently there have Remedy by force of the said Articles , and Statutes , without elsewhere pursuing to have Remedy . By the words of this Statute it is very apparent , in my opinion , that the Chancery may hold Plea upon the Complaint of the Party grieved , in any Case Tryable at the Common-Law , because the party shall have present Remedy in that Court , by force of this Act , without pursuing for Remedy elsewhere .

La.

Yes ; but Sir Edw. Coke Answers this Objection , 4 Inst. p. 82. in this manner . These words , says he , He shall have Remedy , signifie no more but that he shall have presently there a remedial Writ grounded upon those Statutes to give him Remedy at the Common-Law .

Ph.

Very like Sir Edw. Coke thought as soon as the Party had his Writ , he had his Remedy , though he kept the Writ in his Pocket , without pursuing his Complaint elsewhere ; or else he thought , that in the Common-Bench was not elsewhere than in the Chancery .

La.

Then there is the Court of —

Ph.

Let us stop here ; for this which you have said satisfies me , that seek no more than to distinguish between Justice , and Equity ; and from it I Conclude , that Justice fulfils the Law , and Equity Interprets the Law ; and amends the Judgments given upon the same Law : Wherein I depart not much from the Definition of Equity , cited in Sir Edw. Coke , 1 Inst. Sect. 21. viz. Equity is a certain perfect Reason that Interpreteth , and Amendeth the Law Written ; though I Construe it a little otherwise than he would have done ; for no one can mend a Law but he that can make it , and therefore I say not it amends the Law , but the Judgments only when they are Erroneous . And now let us Consider of Crimes in particular ( the Pleas whereof are commonly called the Pleas of the Crown ) and of the punishments belonging to them ; and first of the Highest Crime of all which is High Treason . Tell me what is High Treason .

Of Crimes Capital . La.

THe first Statute that declareth what is High Treason , is the Statute of the 25 Edw. 3. in these words . Whereas divers Opinions have been before this time , in what Case Treason shall be said , and in what not ; the King , at the Request of the Lords , and of the Commons , hath made Declaration in the manner as hereafter follows ; That is to say , when a Man doth Compass , or Imagine the Death of our Lord the King , of our Lady the Queen , or of their Eldest Son and Heir ; or if a Man doth violate the Kings Companion , or the Kings Eldest Daughter unmarried , or the Wife of the Kings Eldest Son and Heir ; or if a Man do Levy War against our Lord the King in his Realm , or be adherent to the Kings Enemies in his Realm , giving to them Aid , and Comfort in the Realm , or elsewhere , and thereof be provably Attainted by open Deed , by People of their Condition . And if a Man Counterfeit the Kings Great , or Privy-Seal , or his Money . And if a Man bring false Money into this Realm Counterfeit to the Money of England , as the Money called Lushburgh , or other like to the said Money of England , knowing the Money to be false , to Merchandize , and make payment in deceit of our said Lord the King , and of his People . And if a Man slay the Chancellor , Treasurer , or the Kings Justices of the one Bench , or the other , Justices in Eyre , or Justices of Assises , and all other Justices Assigned to Hear , and Determine , being in their Places , and doing their Offices . And is to be understood in the Cases above rehearsed , that That ought to be adjudged Treason , which extends to our Royal Lord the King , and his Royal Majesty , and of such Treason the Forfeiture of the Escheats pertains to our Lord the King , as well the Lands and Tenements holden of others as himself . And moreover there is another manner of Treason ; that is to say , when a Servant Slayeth his Master , or a Wife her Husband ; or when a Man Secular , or Religious slayeth his Prelate , to whom he oweth Faith , and Obedience ; and of such Treason the Escheats ought to pertain to every Lord of his own Fee . And because many other like Cases of Treason may happen in time to come , which a Man cannot think , nor declare at this present time , it is accorded , that if any Case supposed Treason , which is not above specified , doth happen before any Justices , the Justices shall tarry without giving any Judgment of the Treason till the Cause be shewed , and declared before the King and his Parliament , whether it ought to be adjudged Treason , or other Felony .

Ph.

I desir'd to understand what Treason is , wherein no Enumeration of Facts can give me satisfaction . Treason is a Crime of it self , Malum in se , and therefore a Crime at the Common-Law , and High Treason the Highest Crime at the Common-Law that can be : And therefore not the Statute only , but Reason without a Statute makes it a Crime . And this appears by the Preamble , where it is intimated , that all Men , though of divers Opinions did Condemn it by the name of Treason , though they knew not what Treason meant , but were forced to request the King to determine it . That which I desire to know is , how Treason might have been defined without the Statute , by a Man that has no other faculty to make a Definition of it , than by meer Natural Reason .

La.

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

Ph.

You know that Salus Populi is Suprema Lex ; that is to say , the safety of the People , is the highest Law ; and that the safety of the People of a Kingdom consisteth in the safety of the King , and of the strength necessary to defend his People , both against Forraign Enemies , and Rebellious Subjects . And from this I infer , that to Compass ( that is ) to design the Death of the then present King , was High Treason before the making of this Statute , as being a Designing of a Civil War , and the Destruction of the People . 2. That the Design to Kill the Kings Wife , or to violate her Chastity , as also to violate the Chastity of the Kings Heir apparent , or of his Eldest Daughter unmarryed , as tending to the Destruction of the certainty of 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 , and a Traytor . 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 ?

La.

On this place Sir Edw. 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 , & non Exitus ; & nihil interest utrum quis occidat , aut causam praebeat ; That is to say , the Cause of the killing : Now Sir Edw. 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 .

Ph.

Is there any English-man 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 ?

La.

It is not taken away , but the manner how it must be prov'd is thus Determin'd , that it must be prov'd by some open Deed , as providing of Weapons , Powder , Poyson , Assaying of Armour , sending of Letters , &c.

Ph.

But what is the Crime it self which this Statute maketh Treason ? For as I understand the words , To Compass , or Imagine the Kings Death , &c. The Compassing ( 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 Kings 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 requir'd by the Law . Seeing then the Crime is the Design and Purpose to kill the King , or cause him to be killed , and lyeth 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 this Statute : Sir Edw. Coke doth not deny , but that if he Confess this Design , either by Word , or Writing , but that he is within the Statute . As for that Common saying , that bare words may make a Heretick , but not a Traytor , which Sir Edw. 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 expir'd , which made bare words to be Treason without any other Deed : As , 1 El. cap. 6. & 13. El. cap. 1. If a Man should Publickly 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 E. 3. but also within the Statute of 1 Ed. 6. c. 12. which are both still in Force .

La.

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 Judged 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 Gun-Powder Traytors 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 , was therefore Condemned , and Executed as a Traytor , though such Absolution were 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 the 6th , 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. 3. 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 Edw. Coke very well observeth , when Witnesses are Examin'd concerning words only , they never or very rarely agree precisely about the words they Swear to .

Ph.

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 12 Lawful Men : Now whether think you is it a better Proof of a Mans Intention to kill , that he declares that same with his own Mouth , so as it may be Witnessed , or that he provide Weapons , Powder , Poyson , or Assay Arms ? If he utter his Design by words , the Jury has no more to do than to consider the Legallity 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 Gun-Powder , or from any other overt Act , not Treason in it self , 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 Cousening of the King , and his People ; why are not all such abuses High-Treason , as well as the making of a false Seal ?

La.

So they are : For Sir Edw. Coke produceth a Record of one that was Drawn , and Hang'd for taking the Great Seal from an expir'd Patent , and fastning 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 Hang'd .

Ph.

Seeing this Crime of taking the Great Seal from one Writing , and fastning 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 ?

La.

I cannot tell . Sir Edw. 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.

Ph.

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 thing it is not worthy to be stood upon ; seeing Death , which is , Vltimum supplicium , is a satisfaction to the Law ; as Sir Edw. Coke himself hath in another place affirm'd . But let us now proceed to other Crimes .

La.

Appendent to this is another Crime called Misprision of Treason ; which is the Concealing of it by any Man that knows it ; and it 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 Kings Person , and Consequently , to the whole Kingdom , as not to discover not only what he knows , but also what he suspecteth of the same , that the Truth therefore may be Examin'd . But for such Discovery , tho 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 Suspition ; for else the Concealment will seem justifiable by the Interest , which is to every Man allowed in the preservation of himself from pain and dammage .

Ph.

This I consent to .

La.

All other Crimes meerly Temporal are comprehended under Felony , or Trespass .

Ph.

What is the meaning of the word Felony ? Does it signifie any thing 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 made , and after the Repealing of the same , was no greater Crime than any other usual Traffick of a Merchant .

La.

Sir Edw. 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.

Ph.

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 Edw. 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 .

La.

This is matter for a Critick , to be pickt out of the knowledge of History and Forraign Languages , and you may perhaps know more of it than I do .

Ph.

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 Controversie in Law . The word is not to be found in any of the old Saxon Laws , set forth by Mr. Lambert , nor in any Statute Printed before that of Magna Charta ; there it is found . Now Magna Charta was made in the time of Hen. the 3d , Grand-Child to Hen. the 2d , Duke of Anjou , a French-man 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 Gaules , as the Gaules did retain many words of the Greek Colonie 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 sence ; 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 , Cut-purses , Pick-locks , Catch-Cloaks , Coyners of false Money , Forgers , Thieves , Robbers , Murderers , and whosoever make use of Iniquity on Land , or Sea , as a Trading , or Living . The Greeks upon the Coast of Asia , where Homer liv'd , were they that Planted the Colony of Marseilles ; they had a word that signified the same with Felon , which was 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , Filetes , and this Filetes of Homer signifies properly the same that a Felon signifies with us : And therefore Homer makes Apollo to call Mercury 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , Fileteen , and 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ; I insist not upon the truth of this Etymologie ; but it is certainly more rational than the Animus Felleus of Sir Edw. Coke . And for the matter it self 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 .

La.

Of Felonies , the Crime is Murder .

Ph.

And what is Murder ?

La.

Murder is the Killing of a Man upon Malice forethought , as by a Weapon , or by Poyson , or any way , if it be done , upon Antecedent Meditation , or thus , Murder is the Killing of a Man in cold Blood .

Ph.

I think there is a good definition of Murder set down by Statute , 52 Hen. 3. cap. 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 Sir Edw. 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 , if the Death of a Man ensued , this was adjudged Murder . But I find no Proof that he alledgeth , nor find I any such Law amongst the Laws of the Saxons , set forth by Mr. Lambert . For the word , it is ( as Sir Edw. 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 kill'd 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 dayes the lives of all sorts of Men were valued by Money ; and the value set down in their Written Laws . And therefore Sir Edw. 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 lyable to so great a Pecuniary Punishment for suffering the Malefactor to escape . But this grievance was by Canutus , when he Reign'd , soon eased : For he made a Law , that the Countrey in this Case , should not be Charged , unless he were an English-man that was so slain ; but if he were a French-man ( under which name were comprehended all Forraigners , 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 English-man was so slain , for his Friend to prove he was an English-man , and also unreasonable to deny the Justice to a stranger ; yet was it not Repealed till the 14th of King Ed. the 3d. 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 .

La.

And so also is Petit Treason , and I think so is High Treason also ; for in the abovesaid Statute in the 25 Ed. 3d. 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 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 .

Ph.

And so think I.

La.

But Sir Edw. Coke denies it to be so at this day ; for 1 Inst. Sect. 745. at the word Felony , he saith ; That in Antient time this word Felony was of so large an extent , as that it included High Treason — But afterwards it was resolved , that in the Kings Pardon , or Charter , this word Felony should extend only to Common Felonies — And at this day , under the word Felony by Law is included Petit Treason , Murder , Homicide , burning of Houses , Burglary , Robbery , Rape , &c. Chance-medley , se defendendo , and Petit Larceny .

Ph.

He says it was resolv'd , but by whom ?

La.

By the Justices of Assize in the time of Hen. 4. as it seems in the Margin .

Ph.

Have Justices of Assize any Power by their Commission to alter the Language of the Land , and the received sence of words ? Or in the Question in what Case Felony shall be said , it is referred to the Judges to Determine ; as in the Question in what Case Treason shall be said it is referred by the Statute of Edw. the 3d. to the Parliament ? I think not ; and yet perhaps they may be disobliged to disallow a Pardon of Treason , when mentioning all Felonies it nameth not Treason , nor specifies it by any description of the Fact .

La.

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 suddain Quarrel , during the heat of Blood .

Ph.

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 't is manifest by the Statute of Marlebridge , that it was very Murder . And 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 ?

La.

'T 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 .

Ph.

The Benefit of Clergy comes in upon another account , and importeth not any extenuation of the Crime ; for it is but a Relick of the old usurped Papal priviledge , 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 .

La.

The work of a Judge you see is very difficult , and requires a Man that hath a faculty of well distinguishing of Dissimilitudes of such Cases as Common Judgments think to be the same . A small Circumstance may make a great Alteration , which a Man that cannot well discern , ought not to take upon him the Office of a Judge .

Ph.

You say very well ; for if Judges were to follow one anothers 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 .

La.

A Third kind of Homicide is when a Man kills another , either by misfortune , or in a necessary defence of himself , or of the King , or of his Laws ; for such killing is neither Felony , nor Crime , saving ( as Sir Edw. Coke says , 4. Inst. p. 56. ) that if the Act that a Man is a doing when he kills another Man be Unlawful , then it is Murder . As if A. meaneth to 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 .

Ph.

This is not so distinguished by any Statute , but is the Commonly only of Sir Ed. Coke . I believe not a word of it . If a Boy be Robbing an Apple-tree , and falling thence upon a Man that stands under it , and breaks his Neck , but by the same chance saveth his own Life , Sir Edw. Coke , it seems , will have him Hanged for it , as if he had fallen of prepensed Malice . All that can be called Crime in this Business is but a simple Trespass , to the dammage perhaps of sixpence or a shilling . I confess the Trespass was an Offence against the Law , but the falling was none , nor was it by the Trespass , but by the falling that the Man was slain ; and as he ought to be quit of the killing , so he ought to make Restitution for the Trespass . But I believe the Cause of Sir Edw. Coke's mistake was his not well understanding of Bracton , whom he cites in the Margin : For 1206 he saith thus : Sed hic erit distinguendum , utrum quis dederit operam rei licitae , vel illicitae ; si illicitae , ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere , vel dum insequitur equum , vel bovem , & aliquis ab equo , vel a bove percussus fuerit , & hujusmodi , hoc imputatur ei , i. e. But here we are to distinguish whether a Man be upon a Lawful , or Unlawful business ; if an unlawful , as he that throws a stone into a place , where Men use to pass ; or if he chase a Horse , or an Ox , and thereby the Man be stricken by the Horse , or the Ox , this shall be imputed to him : And it is most reasonable : For the doing of such an unlawful Act as is here meant , is a sufficient Argument of a Felonious purpose , or at least a hope to kill some body , or other , and he cared not whom ; which is worse than to design the death of a certain Adversary , which nevertheless is Murder . Also on the contrary , though the business a Man is doing be Lawful , and it chanceth sometimes that a Man be slain thereby ; yet may such killing be Felony . For if a Car-man drive his Cart through Cheapside in a throng of People , and thereby he kill a Man ; though he bare him no Malice , yet because he saw there was very great danger , it may reasonably be inferr'd , that he meant to adventure the killing of some body , or other , though not of him that was kill'd .

La.

He is a Felon also that killeth himself voluntarily , and is called , not only by Common Lawyers , but also in divers Statute-Laws , Felo de se.

Ph.

And 't is well so : For names imposed by Statutes are equivalent to Definitions ; but I conceive not how any Man can bear Animum felleum , or so much Malice towards himself , as to hurt himself voluntarily , much less to kill himself ; for naturally , and necessarily the Intention of every Man aimeth at somewhat , which is good to himself , and tendeth to his preservation : And therefore , methinks , if he kill himself , it is to be presumed that he is not compos mentis , but by some inward Torment or Apprehension of somewhat worse than Death , Distracted .

La.

Nay , unless he be compos mentis he is not Felo de se ( as Sir Edw. Coke saith , 4 Inst. p. 54. ) and therefore he cannot be Judged a Felo de se , unless it be first proved he was compos mentis .

Ph.

How can that be proved of a Man dead ; especially if it cannot be proved by any Witness , that a little before his death he spake as other men used to do . This is a hard place ; and before you take it for Common-Law it had need to be clear'd .

La.

I 'le think on 't . There 's a Statute of 3 Hen. 7. c. 14. which makes it Felony in any of the Kings Houshold-Servants under the degree of a Lord , to Compass the Death of any of the Kings Privy-Council . The words are these ; That from henceforth the Steward , Treasurer , and Controuler of the Kings House for that time being , or one of them , have full Authority and Power , to inquire by 12 sad Men , and discreet Persons of the Chequer-Roll of the King 's Honourable Houshold . If any Servant , admitted to his Servant Sworn , and his name put into the Chequer-Roll , whatsoever he be serving in any manner , Office , or Room , reputed , had , or taken under the State of a Lord , make any Confederacies , Compassings , Conspiracies , or Imaginations with any Person to Destroy , or Murder the King , or any Lord of this Realm , or any other Person sworn to the Kings Council , Steward , Treasurer , or Controuler of the Kings House . And if such Misdoers shall be found Guilty by Confession , or otherwise , that the said Offence shall be Judged Felony .

Ph.

It appears by this Statute , that not only the Compassing the Death ( as you say ) of a Privy-Councellor , but also of any Lord of this Realm is Felony ; if it be done by Any of the Kings Houshold Servants that is not a Lord .

La.

No ; Sir Edw. Coke upon these words , any Lord of this Realm , or other Person Sworn of the Kings Council infers 4 Inst. p. 38. that is to be understood of such a Lord only as is a Privy-Councellor .

Ph.

For barring of the Lords of Parliament from this Priviledge , he strains this Statute a little farther ( in my Opinion ) than it reacheth of it self . But how are such Felonies to be Tryed ?

La.

The Indictment is to be found , before the Steward , Treasurer , and Controuler of the Kings House , or one of them , by 12 of the Kings Houshold Servants . The Petit Jury for the Tryal must be 12 other of the Kings Servants , and the Judges are again the Steward , Treasurer , and Controuler of the Kings House , or 2 of them ; and yet I see that these Men are not usually great Students of the Law .

Ph.

You may hereby be assur'd , that either the King and Parliament were very much overseen in choosing such Officers perpetually for the time being , to be Judges in a Tryal at the Common-Law , or else that Sir Edw. Coke presumes too much , to appropriate all the Judicature , both in Law , and Equity , to the Common-Lawyers ; as if neither Lay-Persons , Men of Honour , nor any of the Lords Spiritual , who are the most versed in the Examination of Equity , and Cases of Conscience , when they hear the Statutes Read , and Pleaded , were unfit to Judge of the intention and meaning of the same . I know , that neither such great Persons , nor Bishops have ordinarily so much spare time from their ordinary Employment as to be so skilful as to Plead Causes at the Bar ; but certainly they are , especially the Bishops , the best able to Judge of matters of Reason ; that is to say ( by Sir Edw. Coke's Confession ) of matters ( except of Blood ) at the Common-Law .

La.

Another sort of Felony , though without Man-slaughter , is Robbery ; and by Sir Edw. Coke , 4 Inst. p. 68. defined thus , Robbery by the Common-Law is a Felony committed by a violent Assault upon the Person of another , by putting him in fear , and taking away from him his Money , or other Goods of any value whatsoever .

Ph.

Robbery is not distinguished from Theft by any Statute . Latrocinium comprehendeth them both , and both are Felony , and both 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 . 'T 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 Mans Field of Wheat Ripe , and standing , and Loading my Cart with it I carry it away ; Is it Theft , or Robbery ?

La.

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 .

Ph.

Why so ?

La.

Sir Edw. Coke tells you the Reason of it , 4 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 meer 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 . Omne magis dignum trahit ad se minus .

Ph.

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 ?

La.

No ; it is his own ; and you may observe by the Logick-Sentences dispersed through his Works , that he was a Logician sufficient enough to make a Definition .

Ph.

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 concern the Realty ; that is , because they concern the Land . 'T is true that the Land cannot be stolen , nor the right of a Mans Tenure ; but Corn , and Trees , and Fruit , though growing , may be cut down , and carryed away secretly , and Feloniously , in Contempt , and Despight 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 ? 'T 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 Free-hold cannot be stolen ; which is a very obvious Fallacy ; for Free-hold signifieth , not only the Tenement , but also the Tenure ; and though it be true that a Tenure cannot be stolen , yet every man sees 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 descendeth to the Heir , and nothing can descend to the Executors , but what is meerly Personal . And though a Box , or Case of Evidences are to descend to 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 shillings worth of Wood ; which the Wind hath blown down , or which lyeth Rotten on the ground , should be Hang'd for it , and he that takes a Tree worth 20 or 40 shillings , should Answer only for the Dammage ?

La.

'T is somewhat hard , but it has been so practised time out of mind . Then follows Sodomy , and Rape , both of them Felonies .

Ph.

I know that , and that of the former he justly says it is detestable , being in a manner an Apostacie from Humane Nature : But in neither of them is there any thing of Animus Felleus . The Statutes which make them Felony are exposed to all Mens reading ; but because Sir Edw. 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 .

La.

Two other great Felonies are breaking , and Burning of Houses , neither of which are defin'd by any Statute . The former of them is by Sir Edw. Coke . 4 Inst. p. 63. Defined thus : Burglary is by the Common-Law , the Breaking and Entring 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 defineth Night to be then , when one Man cannot know anothers Face by day-light : And for the parts of a Mansion-house he reckoneth all Houses that belong to Housekeeping , as Barns , Stables , Dary-Houses , Buttery , Kitchin , Chambers , &c. But breaking of a House by day , though Felony , and Punished as Burglary , is not within the Statute .

Ph.

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 12 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 Lawyers Institutes , but the Statutes themselves pleaded before them for directions .

La.

Burning , as he defines it , p. 66. is a Felony at the Common-Law committed by any that maliciously and voluntarily in the night , or day , burneth the House of another : And hereupon infers , if a Man sets Fire to the House , and it takes not , that then it is not within the Statute .

Ph.

If a Man should secretly , and maliciously lay a quantity of Gun-Powder under another Mans House , sufficient to Blow it up , and set a Train of Powder in it , and set Fire to the Train , and some Accident hinder the Effect , is not this Burning ? or what is it ? What Crime ? It is neither Treason , nor Murder , nor Burglary , nor Robbery , nor Theft , nor ( no dammage being made ) any Trespass , nor contrary to any Statute . And yet ( seeing the Common-Law is the Law of Reason ) it is a sin , and such a sin as a Man may be Accused of , and Convicted , and consequently a Crime committed of Malice prepensed ; shall he not then be Punished for the Attempt ? I grant you that a Judge has no Warrant from any Statute-Law , Common-Law , or Commission to appoint the Punishment , but surely the King has power to Punish him ( on this side of Life or Member ) as he please ; and with the Assent of Parliament ( if not without ) to make the Crime for the future Capital .

La.

I know not . Besides these Crimes there is Conjuration , Witch-craft , Sorcery and Inchantment , which are Capital by the Statute , 1 of King James , cap. 12.

Ph.

But I desire not to discourse of that Subject ; for though without doubt there is some great Wickedness signified by those Crimes ; yet I have ever found my self too dull to conceive the nature of them , or how the Devil hath power to do many things which Witches have been Accused of . Let us now come to Crimes not Capital .

La.

Shall we pass over the Crime of Heresie , which Sir Edw. Coke ranketh before Murder , but the consideration of it will be somewhat long .

Ph.

Let us defer it till the Afternoon .

Of Heresie . La.

COncerning Heresie , Sir Edw. Coke , 4 Inst. p. 39. says , that 5 things fall into consideration . 1. Who be the Judges of Heresie . 2. What shall be Judged Heresie . 3. What is the Judgment upon a Man Convicted of Heresie . 4. What the Law alloweth him to save his Life . 5. What he shall forfeit by Judgment against him .

Ph.

The principal thing to be considered , which is the Heresie it self , he leaveth out ; viz. What it is , in what Fact , or Words it consisteth , what Law it violateth , Statute-Law , or the Law of Reason . The Cause why he omitteth it , may perhaps be this ; that it was not only out of his Profession , but also out of his other Learning . Murder , Robbery , Theft , &c. Every Man knoweth to be evil , and are Crimes defined by the Statute-Law , so that any Man may avoid them , if he will . But who can be sure to avoid Heresie , if he but dare to give an Account of his Faith , unless he know beforehand what it is ?

La.

In the Preamble of the Statute of the 2d , Hen. 4. cap. 15. Heresie is laid down , as a Preaching or Writing of such Doctrine , as is contrary to the determination of Holy Church .

Ph.

Then it is Heresie at this day to Preach , or Write against Worshipping of Saints , or the Infallibility of the Church of Rome , or any other determination of the same Church : For Holy-Church , at that time , was understood to be the Church of Rome , and now with us the Holy-Church I understand to be the Church of England ; and the Opinions in that Statute are now , and were then the true Christian Faith . Also the same Statute of Hen. 4. Declareth , by the same Preamble , that the Church of England had never been troubled with Heresie .

La.

But that Statute is Repeal'd .

Ph.

Then also is that Declaration , or Definition of Heresie repeal'd .

La.

What , say you , is Heresie ?

Ph.

I say Heresie is a singularity of Doctrine , or Opinion contrary to the Doctrine of another Man , or Men , and the word properly signifies the Doctrine of a Sect , which Doctrine is taken upon Trust of some Man of Reputation for Wisdom , that was the first Author of the same . If you will understand the truth hereof , you are to Read the Histories and other Writings of the Antient Greeks , whose word it is , which Writings are extant in these days , and easie to be had . Wherein you will find , that in , and a little before the time of Alexander the Great ; there lived in Greece many Excellent Wits , that employed their time in search of the Truth in all manner of Sciences worthy of their Labour , and which to their great Honour and Applause published their Writings ; some concerning Justice , Laws , and Government , some concerning Good , and Evil Manners , some concerning the Causes of things Natural , and of Events discernable by sense ; and some of all these Subjects . And of the Authors of these , the Principal were Pythagoras , Plato , Zeno , Epicurus and Aristotle , Men of deep and laborious Meditation , and such as did not get their Bread by their Philosophy , but were able to live of their own , and were in Honour with Princes , and other great Personages . But these Men , though above the rest in Wisdom , yet their Doctrine in many points did disagree ; whereby it came to pass , that such Men as studied their Writings , inclined , some to Pythagoras , some to Plato , some to Aristotle , some to Zeno , and some to Epicurus . But Philosophy it self was then so much in Fashion , as that every Rich Man endeavour'd to have his Children educated in the Doctrine of some , or other of these Philosophers , which were for their Wisdom so much renown'd . Now those that followed Pythagoras , were called Pythagoreans ; those that followed Plato , Academicks ; those that followed Zeno , Stoicks ; those that followed Epicurus , Epicureans , and those that followed Aristotle , Peripateticks , which are the names of Heresie in Greek , which signifies no more but taking of an Opinion ; and the said Pythagoreans , Academicks , Stoicks , Peripateticks , &c. were termed by the names of so many several Heresies . All Men ( you know ) are subject to Error , and the ways of Error very different ; and therefore 't is no wonder if these Wise , and diligent searchers of the Truth did , notwithstanding their Excellent parts , differ in many points amongst themselves . But this Laudable Custom of Great , Wealthy Persons to have their Children at any price to learn Philosophy , suggested to many idle and needy Fellows , an easie and compendious way of Maintenance ; which was to Teach the Philosophy , some of Plato , some of Aristotle , &c. Whose Books to that end they Read over , but without Capacity , or much Endeavour to examine the Reasons of their Doctrines , taking only the Conclusions , as they lay ; and setting up with this , they soon professed themselves Philosophers , and got to be the School-Masters to the 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 Heretick came never in , because they were all equally Hereticks , their Doctrine not being theirs , but taken upon Trust from the aforesaid Authors . So that though we find Heresie often mentioned in Lucian , and other Heathen Authors , yet we shall not find in any of them Haereticus for a Heretick . And this Disorder among the Philosophers continued a long 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 Stoicks 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 .

La.

But how came the word Heretick to be a Reproach ?

Ph.

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 receiv'd it 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 ; and some that had a greater , some a lesser 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 Publick or private Disputation ; that is to say , who were fittest to be made Presbyters and Bishops ?

La.

Certainly those who ( caeteris paribus ) could make the best use of Aristotle's Rhetorick , and Logick .

Ph.

And who were the most prone to Innovation ?

La.

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 Doctrine in which their Reputation was engag'd .

Ph.

And from such Bishops and Priests , and other Sectaries it was , that Heresie , 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 an Heretick , as one that would not reliquish the Philosophy of his Sect ; the rest of the Council gave themselves the name of Catholicks , and to their Church , the name of Catholick Church . And thus came up the opposite Terms of Catholick and Heretick .

La.

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 it self Catholick , must needs be an Error , or a Sin . The Church of England denies that Consequence , and that 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 .

Ph.

In this Case we must consider also that Error , in it's 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 Common-wealth , 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 .

La.

Since you have told me how Herefie 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 ?

Ph.

Since the Christian Church could declare , and none else , what Doctrine were Heresies , but had no power to make Statutes for the punishment of Hereticks before they had a Christian King ; it is manifest that Heresie 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 , Publickly denyed the Divinity of Christ , and Maintained it afterwards in the Pulpit , which was the Cause of a Sedition , and much Blood shed , both of Citizens , and Souldiers 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 whatsoever they agreed on he would cause to be observed .

La.

By the way , the Emperor ( I think ) was here a little too Indifferent .

Ph.

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 3 General Councils next succeeding . By the words of which Creed almost all the Heresies then in being , and especially the Doctrine of Arius , were Condemn'd : 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 2 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 .

La.

What Punishment had Arius ?

Ph.

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 his Confession to be made , not for the regard of Truth of Doctrine , but for the preserving of the Peace , especially among his Christian Souldiers , by whose valour he had gotten the Empire , and by the same was to preserve it ) he was received again into Grace , but dyed before he could repossess his Benefice . But after the time of those Councils , the Imperial Law made the Punishment for Heresie to be Capital , though the manner of the Death was left to the Praefects in their several Jurisdictions ; and thus it continued till somewhat after the time of the Emperor Frederick Barbarossa , and the Papacy having gotten the upper hand of the Emperor , brought in the use of Burning both Hereticks , and Apostates ; and the Popes from time to time made Heresie 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 Heretick Burnt in England there is no mention made till after the Statute of 2 Hen. 4. Whereby some followers of Wiclif ( called Lollards ) were afterwards Burned , and that for such Doctrines , as by the Church of England , ever since the first year of Queen El. have been approved for Godly Doctrines , and no doubt were Godly then ; and so you see how many have been Burnt for Godliness .

La.

'T was not well done ; but 't is no wonder we read of no Hereticks before the time of H. 4. For in the Preamble to that Statute it is intimated , that before those Lollards there never was any Heresie in England .

Ph.

I think so too ; for we have been the tamest Nation to the Pope of all the World . But what Statutes concerning Heresie have there been made since ?

La.

The Statute of 2 H. 5. c. 7. which adds to the Burning the Forfeiture of Lands , and Goods , and then no more till the 25 H. 8. 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 Ed. 6. cap. 12. All Acts of Parliament formerly made to punish any manner of Doctrine concerning Religion are repeal'd . For therein it is ordain'd , 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 any wise 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 Ed. 6. not only all Punishments of Heresie were taken away , but also the Nature of it was changed , to what Originally it was , a Private Opinion . Again in 12 Phil. and Ma. those former Statutes of 2 H. 4. cap. 15. 2 H. 5. Cap. 17. 25. H. 8. cap. 14. are Revived , and the Branch of 1 Ed. 6. cap. 12. touching Doctrine ( though not specially named ) seemeth to be this , that the same Statute confirmeth the Statute of 25 Ed. 3. concerning Treasons . Lastly , in the first year of Queen Eliz. cap. 1. the aforesaid Statutes of Queen Mary are taken away , and thereby the Statute of 1 Ed. cap. 12. Revived ; so as there was no Statute left for the Punishment of Hereticks . But Queen Eliz. 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 Heresie for the future ; but with a Restraint , that they should Judge nothing to be Heresie , but what had been so declared in the first four General Councils .

Ph.

From this which you have shewed me , I think we may proceed to the Examination of the Learned Sir Edw. Coke concerning Heresie . In his Chapter of Heresie , 3 Inst. p. 40. he himself confesseth , that no Statute against Heresie 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. 4. cap. 15. and other Acts cited in the Margin , it may be gather'd , that the Diocesan hath the Jurisdiction of Heresie . 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 Popes Usurped Authority was here obeyed : But if they had Written this in the time of King Ed. 6. or Queen Elizabeth , Sir Edw. 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 Heresie , when by the Statute of Ed. 6. cap. 12. then in force , there was no Heresie , and all Punishment for Opinions forbidden : For Heresie is a Doctrine contrary to the Determination of the Church , but then the Church had not Determined any thing at all concerning Heresie .

La.

But seeing the High Commissioners had Power to Correct , and Amend Heresies , they must have Power to cite such as were Accused of Heresie , to appear before them , or else they could not execute their Commission .

Ph.

If they had first made , and published a Declaration of what Articles they made Heresie , 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 accus'd ; but before they had known what should be Heresie ; how was it possible that one Man should accuse another ? And before he be accused , how can he be cited ?

La.

Perhaps it was taken for granted , that whatsoever was contrary to any of the 4 first General Councils , was to be judged Heresie .

Ph.

That granted , yet I see not how one Man might accuse another 'ere 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 Heresie of whatsoever was repugnant to those 4 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 question'd upon this Article of the Nicene Creed , I believe one Baptism for the Remission of sins ; nor was the Commission it self for a long time after Registred , that Men might in such uncertainty take heed and abstain ( for their better safety ) from speaking of Religion any thing at all . But by what Law was this Heretick Legat burnt ? I grant he was an Arian , and his Heresie 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 forbidden , by what Law , by what Authority was he burn't ?

La.

That this Legat was accused of Heresie , was no fault of the High Commissioners , but when he was accused , it had been a fault in them not to have examin'd him , or having examin'd 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 medled not with his Burning , but left him to the Secular Power to do with him what they pleased .

Ph.

Your Justification of the Commissioners is nothing to the Question ; the Question is by what Law he was burn't , the Spiritual-Law gives no Sentence of Temporal Punishment , and Sir Edw. Coke confesseth that , he could not be burned , and Burning forbidden by Statute-Law . By what Law then was he burned ?

La.

By the Common-Law .

Ph.

What 's that ? It is not Custom ; for before the time of Henry the 4th , there was no such Custom in England ; for if there had , yet those Laws that came after were but Confirmations of the Customs , and therefore the Repealing of those Laws was a Repealing of the Custom . For when King Ed. the 6th , and Queen Eliz. abolished those Statutes , they abolished all Pains , and consequently , Burning , or else they had abolished nothing . And if you will say he was burn't 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 measur'd 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 .

La.

He does not draw any Argument for it from Reason , but alledgeth for it this Judgment executed upon Legat , and a story out of Hollingshed , and Stow : But I know that neither History , nor Precedent will pass with you for Law . And though there be a Writ de haeretico comburendo in the Register ( as you may Read in Fitzherbert ) grounded upon the Statutes of 2 H. 4. cap. 15. and 2 H. 5. cap. 7. yet seeing those Statutes are void , you will say the Writ is also void .

Ph.

Yes indeed will I. Besides this , I understand not how that is true that he saith ; that the Diocesan hath Jurisdiction of Heresie , and that so it was put in ure in all Queen Elizabeths 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 Patents they could not grant , nor was it reasonable they should : For the Trust was not committed to the Bishops only , but also to divers Lay-Persons , who might have an Eye upon their Proceedings , lest they should Incroach 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 Praemunire . La.

THe greatest Offence not Capital is that which is done against the Statute of Provisoes .

Ph.

You have need to expound this .

La.

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 Praemunire facias from the words in the Original Writ ) if the Offender submit not himself to the Law within the space of 2 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 , or drink with the Offender without incurring the like Penalty .

Ph.

Certainly the Offence for which this Punishment was first Ordained , was some abominable Crime , or of extraordinary Mischief .

La.

So it was : For the Pope , you know , from long before the Conquest , incroached every day upon the Power Temporal . Whatsoever could be made to seem to be in ordine ad Spiritualia was in every Common-wealth 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 tryed in his own Courts at Rome , or in France , or in England it self . By which means the Kings Laws were not regarded , Judgments given in the Kings Courts were avoided , and presentations to Bishopricks , Abbies , 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 Tythe , or a Will , though the point were meerly Temporal , yet the Popes 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 , Ed. 1. made a Statute concerning Provisors ( that is , such as provide themselves with Benefices here from Rome ) for in the 25th year of his Reign he ordained in a full Parliament that the Right of Election of Bishops , and Right of Advowsans , and Presentations belonged to himself , and to the Nobility that were the founders of such Bishopricks , Abbies , and other Benefices . And he enacted farther , that if any Clerk , which he , or any of his Subjects should present , should be disturbed by any such Provisor that such Provisor , or Disturber should be attached by his Body , and if Convicted , lye in Prison till he were Ransomed at the Kings Will , and had satisfied the Party griev'd , renouced his Title , and sound sureties not to sue for it any farther ; and that if they could not be found , then Exigents should go forth to Outlawrie , and the Profits of the Benefice in the mean time be taken into the Kings hands . And the same Statute is confirmed in the 27th year of King Ed. the 3d , which Statute alloweth to these Provisors six weeks Day to appear , but if they appear before they be outlaw'd , they shall be received to make Answer , but if they render not themselves , they shall forfeit all their Lands , Goods , and Chattels , besides that they stand outlaw'd . The same Law is confirmed again by 16 Rich. 2d . cap. 5. in which is added ( because these Provisors obtained sometimes from the Pope , that such English Bishops as according to the Law were instituted , and inducted by the Kings Presentees should be excommunicated ) that for this also both they , and the Receivers and Publishers of such Papal Process , and the Procurers should have the same Punishment .

Ph.

Let me see the Statute it self of 27 Ed. 3.

La.

It lies there before you set down verbatim by Sir Edw. Coke himself , both in English , and French .

Ph.

'T is well , we are now to consider what it means , and whether it be well , or ill interpreted by Sir Edw. Coke . And first it appeareth by the Preamble ( which Sir Edw. Coke acknowledgeth to be the best Interpreter of the Statute ) that this Statute was made against the Incroachments only of the Church of Rome , upon the Right of the King , and other Patrons to collate Bishopricks and other Benefices within the Realm of England , and against the power of the Courts Spiritual , to hold Plea of Controversies determinable in any of the Courts of the King , or to reverse any Judgment there given , as being things that tend to the Disherison of the King , and Destruction of the Common-Law of the Realm always used . Put the case now that a Man had procur'd the Pope to reverse a Decree in Chancery , had he been within the danger of Premunire ?

La.

Yes certainly ; or if the Judgment had been given in the Court of the Lord Admiral , or in any other Kings Court whatsoever , either of Law , or Equity ; for Courts of Equity are most properly Courts of the Common-Law of England , because Equity , and Common-Law ( as Sir Ed. Coke says ) are all one .

Ph.

Then the word Common-Law is not in this Preamble restrained to such Courts only where the Tryal is by Juries , but comprehends all the Kings Temporal Courts , if not also the Courts of those Subjects that are Lords of great Mannors .

La.

'T is very likely , yet I think it will not by every Man be granted .

Ph.

The Statute also says ; That they who draw Men out of the Realm in Plea , whereof the Cognizance pertaineth to the Kings Court , or of things whereof Judgment is given in the Kings Court , are within the Cases of Premunire . But what if one Man draw another to Lambeth in Plea , whereof Judgment is already given at Westminster . Is he by this Clause involv'd in a Premunire ?

La.

Yes : For though it be not out of the Realm , yet it is within the meaning of the Statute , because the Popes Court , not the Kings Court , was then perhaps at Lambeth .

Ph.

But in Sir Edw. Coke's time the Kings Court was at Lambeth , and not the Popes .

La.

You know well enough , that the Spiritual-Court has no power to hold Pleas of Common-Law .

Ph.

I do so ; but I know not for what cause any simple Man that mistakes his right Court , should be out of the Kings Protection , lose his Inheritance , and all his Goods Personal , and Real ; and if taken , be kept in Prison all his Life . This Statute cannot be by Sir Edw. Cokes Torture made to say it . Besides , such Men are ignorant in what Courts they are to seek their Remedy : And it is a Custom confirmed by perpetual usage , that such ignorant Men should be guided by their Council at Law . It is manifest therefore , that the makers of the Statute intended not to prohibit Men from their suing for their Right , neither in the Chancery , nor in the Admiralty , nor in any other Court , except the Ecclesiastical Courts , which had their Jurisdiction from the Church of Rome . Again , where the Statute says , which do sue in any other Court , or defeat a Judgment in the Kings Court , what is the meaning of another Court ? Another Court than what ? Is it here meant the Kings-Bench , or Court of Common-Pleas ? Does a Premunire lye for every Man that sues in Chancery , for that which might be remedied in the Court of Common-Pleas ? Or can a Premunire lye by this Statute against the Lord Chancellor ? The Statute lays it only on the Party that sueth , not upon the Judge which holdeth the Plea . Nor could it be laid neither by this Statute , nor by the Statute of 16 Rich. 2. upon the Judges , which were then punishable only by the Popes Authority . Seeing then the Party Suing has a just excuse upon the Council of his Lawyer ; and the Temporal Judge , and the Lawyer both are out of the Statute , the punishment of the Premunire can light upon no body .

La.

But Sir Edw. Coke in this same Chapter bringeth two Precedents to prove , that though the Spiritual-Courts in England be now the Kings Courts , yet whosoever sueth in them for any thing tryable by the Common-Law , shall fall into a Premunire . One is , that whereas in the 22d of Hen. 8. all the Clergy of England in a Convocation by publick Instrument acknowledged the King to be Supream Head of the Church of England ; yet after this , viz. 24 of H. 8. this Statute was in force .

Ph.

Why not ? A Convocation of the Clergy could not alter the Right of Supremacie ; their Courts were still the Popes Courts . The other Precedent in the 25th of Hen. 8. of the Bishop of Norwich may have the same Answer , for the King was not declared Head of the Church by Act of Parliament , till the 26th year of his Reign . If he had not mistrusted his own Law , he would not have laid hold on so weak a Proof as these Precedents . And as to the Sentence of Premunire upon the Bishop of Norwich , neither doth this Statute , nor that other of R. 2. warrant it ; he was sentenced for threatning to excommunicate a Man which had sued another before the Mayor : But this Statute forbids not that , but forbids the bringing in , or publishing of Excommunications , or other Process from Rome , or any other Place . Before the 26 Hen. 8. there is no Question , but that for a Suit in the Spiritual Court here in a Temporal Cause , there lay a Premunire ; and if perhaps some Judge . or other hath since that time judged otherwise , his Judgment was erroneous .

La.

Nay but by the Statute of 16. Rich. 2. cap. 5. it appeareth to the contrary , as Sir Edw. Coke here will shew you . The effect ( saith he ) of the Statute of Rich. 2. is ; That if any Pursue , or cause to be Pursued in the Court of Rome , or elsewhere any thing which toucheth the King , against him , his Crown , or Regality , or his Realm , they , their Notaries , &c. shall be out of the Kings Protection .

Ph.

I pray you let me know the very words of the Statutes as they ly .

La.

Presently . The words are , if any Man Purchase , or Pursue , or cause to be Purchased , or Pursued in the Court of Rome , or elsewhere , any such Translations , Processes and Sentences of Excommunication , Bulls , Instruments , or any other things whatsoever , which touch the King , against him , his Crown , and his Regality , or his Realm , as is aforesaid , &c.

Ph.

If a Man bring a Plea of Common-Law into the Spiritual Court , which is now the Kings Court , and the Judge of this Spiritual Court hold Plea thereof : By what Construction can you draw it within the compass of the words you have now read . To sue for my Right in the Kings Court , is no pursuing of Translations of Bishopricks made , or procur'd in the Court of Rome , or any place else , but only in the Court of the King , nor is this the suit against the King , nor his Crown , nor his Regality , nor his Realm , but the contrary . Why then is it a Premunire ? No. He that brings in , or setteth out a Writing in any place whatsoever , wherein is contained , that the King hath so given away his Jurisdiction , as that if a Subject be condemned falsly , his Submission to the Kings Judgment is of none effect ; or that the King upon no necessity whatsoever can , out of Parliament time raise Money for the defence of the Kingdom , is , in my opinion , much more within the Statute of Provisors , than they which begin suit for a Temporal Matter in a Court Spiritual . But what Argument has he for this Law of his ( since the Statute Law fails him ) from the Law of Reason .

La.

He says they are called Courts , either because they proceed by the Rules of other Laws , as by the Canon , or Civil Law , or by other Tryals than the Common Law doth Warrant : For the Tryals Warranted by the Law of England for matter of Fact , is by verdict of 12 Men before the Judges of the Common Law , in matters pertaining to the Common Law , and not upon Examination of Witnesses , as in the Court of Equity ; so that Alia Curia is either that which is govern'd per aliam Legem , or which draweth the Party ad aliud Examen . For if —

Ph.

Stop there . Let us consider of this you have read , for the Tryal warranted by the Law of England , is by Verdict of 12 Men. What means he here by the Law of England ? Does it not warrant the Tryals in Chancery , and in the Court of Admiralty by Witnesses ?

La.

By the Law of England he means the Law used in the Kings Bench ; that is to say , the Common-Law .

Ph.

This is just as if he had said , that these two Courts did warrant their own way of Tryal ; but other Courts not so , but were warranted by the King only , the Courts of Common Law were Warrants to themselves : You see that alia Curia is this way ill expounded . In the Courts of Common Law all Tryals are by 12 Men , who are Judges of the Fact ; and the Fact known and prov'd , the Judges are to pronounce the Law ; but in the Spiritual Court , the Admiralty , and in all the Courts of Equity there is but one Judge , both of Fact , and of Law ; this is all the difference . If this difference be intended by the Statute by alia Curia , there would be a Premunire for suing in a Court , being not the Kings Court : The Kings Bench , and Court of Common Pleas may also be different kinds of Courts , because the Process is different ; but 't is plain that this Statute doth not distinguish Courts otherwise than into the Courts of the King , and into the Courts of the Forraign States , and Princes . And seeing you stand upon the name of a Jury for the distinguishing of Courts , what difference do you find between the Tryals at the Common-Law , and the Tryals in other Courts ? You know that in Tryals of Fact naturally , and through all the World the Witnesses are Judges , and it is impossible to be otherwise . What then in England can a Jury judge of , except it be of the sufficiency of the Testimony . The Justices have nothing to judge of , nor do , but after the Fact is proved , to declare the Law , which is not Judgment , but Jurisdiction . Again , though the Tryal be in Chancery , or in the Court of Civil Law , 1. The Witnesses are still Judges of the Fact , and he that hath the Commission to hear the Cause hath both the parts ; that is to say , of a Jury to judge of the Testimony , and of a Justice to declare the Law . In this , I say , lyes all the difference , which is indeed enough to make a Dispute ( as the World goes ) about Jurisdiction : But seeing it tends neither to the Disherison of the King , nor of the People , nor to the subversion of the Law of Reason , i. e. of Common-Law , nor to the subversion of Justice , nor to any harm of the Realm , without some of which these Statutes are not broken , it cannot be a Premunire .

La.

Let me read on . For if the Freehold Inheritances , Goods and Chattels , Debts and Duties , wherein the King and Subject have Right and Property by the Common-Law , should be judged per aliam Legem , or be drawn ad aliud Examen , the 3 Mischiefs afore exprest , would follow ; viz. the destruction of the King , and his Crown , the Disherison of his People , and the undoing and destruction of the Common-Law always used .

Ph.

That is to say , of the Law of Reason . From hence it follows , that where there are no Juries , and where there are different Laws from ours ; that is to say , in all the World besides , neither King , nor People have any Inheritance , nor Goods , nor any Law of Reason . I will examine his Doctrine concerning Cases Criminal no farther . He no where defineth a Crime , that we may know what it is : An odious name sufficeth him to make a Crime of any thing . He hath put Heresie among the most odious Crimes , not knowing what it signifies ; and upon no other Cause , but because the Church of Rome ( to make their usurped Power the more terrible ) had made it by long Preaching against it , and Cruelty shown towards many Godly , and learned Men of this , and other Reformed Churches , appear to common People a thing detestable . He puts it in as a Plea of the Crown in the time of Queen Elizabeth , whereas in her time there was no Doctrine Heresie ; but Justice Stamford leaves it out , because when Heresie was a Crime , it was a Plea of the Mitre . I see also in this Catalogue of Causes Criminal , he inserteth costly Feeding , costly Apparel , and costly Building , though they were contrary to no Statute . 'T is true , that by evil Circumstances they become sins ; but these sins belong to the Judgment of the Pastors Spiritual . A Justice of the Temporal Law ( seeing the Intention only makes them sins ) cannot judge whether they be sins or no , unless he have power to take Confessions . Also he makes flattery of the King to be a Crime . How could he know when one Man had flattered another ? He meant therefore that it was a Crime to please the King : And accordingly he citeth divers Calamities of such as had been in times past in great favour of the Kings they serv'd ; as the Favourites of Hen. 3. Ed. 2. Rich. 2. Hen. 6. which Favourites were some imprisoned , some banished , and some put to death by the same Rebels that imprisoned , banished , and put to death the same King , upon no better ground than the Earl of Strafford , the Arch-Bishop of Canterbury , and King Charles the first by the Rebels of that time . Empson , and Dudley were no Favourites of Hen. the 7th , but Spunges , which King Hen. the 8th did well Squeeze . Cardinal Woolsey was indeed for divers years a favourite of Hen. the 8th , but fell into disgrace , not for flattering the King , but for not flattering him in the business of Divorce from Queen Katharine . You see his Reasoning here , see also his Passion in the words following . We will for some Causes descend no lower , Qui eorum vestigiis insistunt , eorum exitus perhorrescant , this is put in for the Favourite ( that then was ) of King James . But let us give over this , and speak of the legal Punishments to these Crimes belonging .

Of Punishments .

ANd in the first place I desire to know who it is that hath the power , for an Offence committed to define , and appoint the special manner of Punishment ; for suppose you are not of the Opinion of the Stoicks in old time , that all faults are equal , and that there ought to be the same Punishment for killing a Man , and for killing a Hen.

La.

The manner of Punishment in all Crimes whatsoever is to be determined by the Common-Law . That is to say , if it be a Statute that determins it , then the Judgment must be according to the Statute ; if it be not specified by the Statute , then the Custome in such Cases is to be followed : But if the Case be new , I know not why the Judge may not determine it according to Reason .

Ph.

But according to whose reason ? If you mean the natural Reason of this , or that Judge authorized by the King to have cognisance of the Cause , there being as many several Reasons , as there are several Men , the punishment of all Crimes will be uncertain , and none of them ever grow up to make a Custome . Therefore a Punishment certain can never be assigned , if it have its beginning from the natural Reasons of deputed Judges , no , nor from the natural of the Supream Judge : For if the Law of Reason did determine Punishments , then for the same Offences there should be through all the World , and in all times the same Punishments ; because the Law of Reason is Immutable and Eternal .

La.

If the natural Reason neither of the King , nor of any else be able to prescribe a Punishment , how can there be any lawful Punishment at all ?

Ph.

Why not ? For I think that in this very difference between the rational Faculties of particular Men , lyeth the true and perfect reason that maketh every Punishment certain . For , but give the authority of defining punishments to any Man whatsoever , and let that Man define them , and right Reason has defin'd them . Suppose the Definition be both made , and made known before the Offence committed : For such authority is to trump in Card-playing , save that in matter of Government , when nothing else is turn'd up , Clubs are Trump . Therefore seeing every Man knoweth by his own Reason what Actions are against the Law of Reason , and knoweth what Punishments are by this authority for every evil action ordained ; it is manifest Reason , that for breaking the known Laws , he should suffer the known Punishments . Now the person to whom this authority of defining Punishments is given , can be no other in any place of the World , but the same Person that hath the Soveraign Power , be it one Man , or one assembly of Men : For it were in vain to give it to any Person that had not the power of the Militia to cause it to be executed ; for no less power can do it , when many Offenders be united and combin'd to defend one another . There was a Case put to King David by Nathan , of a rich Man that had many Sheep , and of a poor Man that had but one , which was a tame Lamb : The rich Man had a stranger in his House , for whose entertainment ( to spare his own Sheep ) he took away the poor Mans Lamb. Upon this Case the King gave Judgment , surely the Man that hath done this shall die . What think you of this ? Was it a Royal , or Tyrannical Judgment ?

La.

I will not contradict the Canons of the Church of England , which acknowledgeth the King of England , within his own Dominions hath the same Rights , which the good Kings of Israel had in theirs , nor deny King David to have been one of those good Kings : But to punish with death without a precedent Law , will seem but a harsh proceeding with us , who unwillingly hear of Arbitrary Laws , much less of Arbitrary Punishments , unless we were sure that all our Kings would be as good as David . I will only ask you by what Authority the Clergy may take upon them to determine , or make a Canon concerning the power of their own King , or to distinguish between the Right of a good , and an evil King .

Ph.

It is not the Clergy that maketh their Canons to be Law , but it is the King that doth it by the Great Seal of England ; and it is the King that giveth them power to teach their Doctrines , in that , that he authoriseth them publickly to teach and preach the Doctrine of Christ and his Apostles , according to the Scriptures , wherein this Doctrine is perspicuously contained . But if they had derogated from the Royal Power in any of their Doctrines published , then certainly they had been too blame ; nay , I believe that had been more within the Statute of premunire of 16 Rich. 2. c. 5. than any Judge of a Court of Equity for holding Pleas of Common Law . I cite not this Precedent of King David , as approving the breach of the great Charter , or justifying the Punishment with loss of Life , or Member of every Man that shall offend the King ; but to shew you that before the Charter was granted , in all Cases where the Punishments were not prescribed , it was the King only that could prescribe them ; and that no deputed Judge could punish an Offender , but by force of some Statute , or by the words of some Commission , and not ex officio . They might for a contempt of their Courts , because it is a contempt of the King , imprison a Man , during the Kings pleasure , or fine him to the King , according to the greatness of the Offence : But all this amounteth to no more , than to leave him to the Kings Judgment . As for cutting off of Ears , and for the Pillory , and the like corporal Punishments usually inflicted heretofore in the Star-Chamber , they were warranted by the Statute of Hen. 7. that giveth them power to punish sometimes by discretion . And generally it is a rule of Reason , that every Judge of Crimes , in case the positive Law appoint no Punishment , and he have no other Command from the King ; then to consult the King before he pronounce Sentence of any irreparable dammage on the Offender : For otherwise he doth not pronounce the Law , which is his Office to do , but makes the Law , which is the Office of the King . And from this you may collect , that the Custome of punishing such and such a Crime , in such and such a manner , hath not the force of Law in it self , but from an assured presumption , that the Original of the Custome was the Judgment of some former King . And for this Cause the Judges ought not to run up for the Customs by which they are warranted to the time of the Saxon Kings , nor to the time of the Conquest : For the most immediate , antecedent precedents are the fairest warrants of their Judgments , as the most recent Laws have commonly the greatest vigor , as being fresh in the memory of all Men , and tacitly confirmed ( because not disapprov'd ) by the Soveraign Legislator . What can be said against this ?

La.

Sir Edw. Coke 3 Inst. p. 210. in the Chapter of Judgments and Executions saith , that of Judgments some are by the Common-Law , some by Statute-Law , and some by Custome ; wherein he distinguisheth Common-Law , both from Statute-Law and from Custome .

Ph.

But you know , that in other places he makes the Common-Law , and the Law of Reason to be all one , as indeed they are , when by it is meant the Kings Reason ; and then his meaning in this distinction must be , that there be Judgments by Reason without Statute-Law , and Judgments neither by Statute-Law , nor by Reason , but by Custome without Reason ; for if a Custome be Reasonable , then , both he , and other Learned Lawyers say , it is Common-Law ; and if unreasonable , no Law at all .

La.

I believe Sir Edw. Coke's meaning was no other than yours in this point , but that he inserted the word Custom , because there be not many that can distinguish between Customs reasonable and unreasonable .

Ph.

But Custom , so far forth as it hath the force of a Law , hath more of the nature of a Statute , than of the Law of Reason , especially where the question is not of Lands , and Goods , but of Punishments , which are to be defined only by authority . Now to come to particulars : What Punishment is due by Law for High Treason ?

La.

To be drawn upon a Hurdle from the Prison to the Gallows , and there to be hanged by the Neck , and laid upon the ground alive , and have his Bowels taken out , and burnt , whilst he is yet living ; to have his Head cut off , his Body to be divided into four parts , and his Head , and Quarters to be placed as the King shall assign .

Ph.

Seeing a Judge ought to give Judgment according to the Law , and that this Judgment is not appointed by any Statute , how does Sir Edw. Coke warrant it by Reason , or how by Custom ?

La.

Only thus , Reason it is , that his Body , Lands , Goods , Posterity , &c. should be torn , pulled asunder , and destroy'd , that intended to destroy the Majesty of Government .

Ph.

See how he avoids the saying the Majesty of the King . But does not this Reason make as much for punishing a Traytor as Metius Suffetius , in old time , was executed by Tullus Hostilius King of Rome , or as Ravillac , not many years ago in France , who were torn in pieces by four Horses , as it does for Drawing , Hanging , and Quartering ?

La.

I think it does . But he confirms it also in the same Chapter , by holy Scripture . Thus Joab for Treason , 1 Kings 2. 28. was drawn from the horns of the Altar ; that 's proof for drawing upon a Hurdle . Esth. 2. 22. Bithan for Treason was Hang'd ; there 's for hanging . Acts. 1. 18. Judas hanged himself , and his Bowels were poured out ; there 's for hanging , and embowelling alive . 2 Sam. 18. 14. Joab pierced Absalom's heart ; that 's proof for pulling out a Traytors heart . 2 Sam. 20. 22. Sheba the Son of Bichri had his Head cut off ; which is proof that a Traytors Head ought to be cut off . 2 Sam. 4. 12. They slew Baanah and Rechab , and hung up their Heads over the Pool of Hebron ; this is for setting up of Quarters . And Lastly for forfeiture of Lands , and Goods , Psal. 109. v. 9. 10. &c. Let their Children be driven out , and beg , and other Men make spoil of their labours , and let their Memory be blotted out of the Land .

Ph.

learnedly said ; and no Record is to be kept of the Judgment . Also the Punishments divided between those Traytors must be joyn'd in one Judgment for a Traytor here .

La.

He meant none of this , but intended ( his Hand being in ) to shew his Reading , or his Chaplains in the Bible .

Ph.

Seeing then for the specifying of the Punishment in Case of Treason , he brings no argument from natural Reason ; that is to say , from the Common Law ; and that it is manifest that it is not the general Custom of the Land , the same being rarely , or never executed upon any Peer of the Realm , and that the King may remit the whole Penalty , if he will ; it follows , that the specifying of the Punishment depends meerly upon the authority of the King . But this is certain , that no Judge ought to give other Judgment , than has been usually given , and approv'd either by a Statute , or by Consent express or implyed , of the Soveraign Power ; for otherwise it is not the Judgment of the Law , but of a Man subject to the Law .

La.

In Petit Treason the Judgment is , to be drawn to the place of execution , and hang'd by the Neck , or if it be a Woman , to be drawn and burnt .

Ph.

Can you imagine that this so nice a distinction can have any other foundation than the wit of a private Man ?

La.

Sir Edw. Coke upon this place says , that she ought not to be beheaded , or hanged .

Ph.

No , not by the Judge , who ought to give no other Judgment than the Statute , or the King appoints , nor the Sheriff to make other execution than the Judge pronounceth ; unless he have a special warrant from the King . And this I should have thought he had meant , had he not said before , that the King had given away all his Right of Judicature to his Courts of Justice .

La.

The Judgment for Felony is —

Ph.

Heresie is before Felony in the Catalogue of the Pleas of the Crown .

La.

He has omitted the Judgment against a Heretick , because ( I think ) no Jury confin'd Heresie , nor no Judge Temporal did ever pronounce Judgment upon it : For the Statute of 2 H. 5. c. 7. was , that the Bishop having convicted any Man of Heresie , should deliver him to the Sheriff , and that the Sheriff should believe the Bishop . The Sheriff therefore was bound by the Statute of 2 H. 4. after he was delivered to him , to burn him ; but that Statute being repeal'd , the Sheriff could not burn him , without a Writ de Heretico comburendo , and therefore the Sheriff burnt Legat 9. king James by that Writ , which was granted by the Judges of the Common-Law at that time , and in that Writ the Judgment is expressed .

Ph.

This is strange reasoning ; when Sir Edw. Coke knew , and confessed , that the Statutes upon which the Writ de Heretico comburendo was grounded , were all repeal'd , how could he think the Writ it self could be in force ? Or that the Statute which repealeth the Statutes for burning Hereticks was not made with an intent to forbid such burning ? It is manifest he understood not his Books of Common-Law : For in the time of Hen. 4. and Hen. 5. the word of the Bishop was the Sheriff's warrant , and there was need of no such Writ ; nor could he till the 25 Hen. 8. when those Statutes were repeal'd , and a Writ made for that purpose , and put into the Register , which Writ Fitzherbert cites in the end of his natura brevium . Again , in the later end of the Reign of Queen Elizabeth was published a correct Register of Original and Judicial Writs , and the Writ de Haeretico comburendo left out , because that Statute of 25 H. 8. and all Statutes against Hereticks were repeal'd , and burning forbidden . And whereas he citeth for the granting of this Writ , 9. Jac. the Lord Chief Justice , the Lord Chief Baron , and two Justices of the Common-pleas , it is , as to all , but the Lord Chief against the Law ; for neither the Judges of Common-Pleas , nor of the Exchequer can hold Pleas of the Crown ( without special Commission ) and if they cannot hold Plea , they cannot condemn .

La.

The Punishment for Felony is , that the Felon be hang'd by the Neck till he be dead . And to prove that it ought to be so , he cites a Sentence ( from whence I know not ) Quod non licet Felonem pro Felonia decollare .

Ph.

It is not indeed lawful for the Sheriff of his own Head to do it , or to do otherwise than is commanded in the Judgment , nor for the Judge to give any other Judgment , than according to Statute-Law , or the usage consented to by the King , but this hinders not the King from altering his Law concerning Judgments , if he see good cause .

La.

The King may do so , if he please : And Sir Edw. Coke tells you how he altered particular Judgments in case of Felony , and sheweth , that Judgment being given upon a Lord in Parliament , that he should be hang'd , he was nevertheless beheaded ; and that another Lord had the like Judgment for another Felony , and was not hang'd , but beheaded ; and withal he shews you the inconveniency of such proceeding , because ( saith he ) if hanging might be altered to beheading , by the same reason it might be altered to burning , stoning to Death , &c.

Ph.

Perhaps there might be inconveniency in it ; but 't is more than I see , or he shews , nor did there happen any inconveniency from the execution he citeth : Besides he granteth , that death being ultimum supplicium is a satisfaction to the Law . But what is all this to the purpose , when it belongeth not to consider such inconveniencies of Government but to the King and Parliament ? Or who from the authority of a deputed Judge can derive a power to censure the actions of a King that hath deputed him ?

La.

For the death of a Man by misfortune , there is ( he saith ) no express Judgment , nor for killing a Man in ones own defence ; but he saith , that the Law hath in both Cases given judgment , that he that so killeth a Man shall forfeit all his Goods and Chattels , Debts and Duties .

Ph.

If we consider what Sir Edw. Coke saith , 1 Inst. Sect. 745. at the word Felony , these Judgments are very favourable : For there he saith , that killing of a Man by Chance-medley , or se defendendo is Felony . His words are ; wherefore by the Law at this day , under the word Felony in Commissions , &c. is included Petit Treason , Murder , Homicide , burning of Houses , Burglary , Robbery , Rape , &c. Chance-medley , and se defendendo . But if we consider only the intent of him that killeth a Man by misfortune , or in his own defence , the same judgments will be thought both cruel , and sinful Judgments . And how they can be Felony at this day cannot be understood , unless there be a Statute to make them so . For the Statute of 25 H. 3. cap. 25. The words whereof , Murder from henceforth shall not be judged before our Justices , where it is found Misfortune only ; but it shall take place in such as are slain by Felony , and not otherwise , make it manifest , if they be Felonies , they must also be Murders , unless they have been made Felonies by some latter Statute .

La.

There is no such latter Statute , nor is it to say in Commission ; nor can a Commission , or any thing but another Statute make a thing Felony , that was not so before .

Ph.

See what it is for a Man to distinguish Felony into several sorts , before he understands the general name of Felony what it meaneth ; but that a Man , for killing another Man by misfortune only , without any evil purpose , should forfeit all his Goods and Chartels , Debts and Duties , is a very hard Judgment , unless perhaps they were to be given to the Kindred of the Man slain , by way of amends for dammage . But the Law is not that . Is it the Common-Law ( which is the Law of Reason ) that justifies this Judgment , or the Statute-Law ? It cannot be the Law of Reason , if the Case be meer misfortune . If a Man be upon his Apple-tree , to gather his Apples , and by ill fortune fall down , and lighting on the Head of another Man kill him , and by good fortune saves himself ; shall he for this mischance be punished with the forfeiture of his Goods to the King ? Does the Law of Reason warrant this ? He should ( you 'l say ) have look'd to his Feet ; that 's true , but so should he that was under have look'd up to the Tree . Therefore in this Case the Law of Reason ( as I think ) dictates , that they ought each of them to bear his own misfortune .

La.

In this Case I agree with you .

Ph.

But this Case is the true Case of meer misfortune , and a sufficient reprehension of the Opinion of Sir Edw. Coke .

La.

But what if this had hapned to be done by one that had been stealing Apples upon the Tree of another Man ? Then ( as Sir Edw. Coke says , 3 Inst. p , 56. ) it had been Murder .

Ph.

There is indeed great need of good distinction in a Case of killing by misfortune ; but in this Case the unlawfulness of stealing Apples cannot make it Murder , unless the falling it self be unlawful . It must be a voluntary unlawful Act that causeth the death , or else it is no Murder by the Law of Reason : Now the death of the Man that was under the Tree proceeded not from that , that the Apples were not his that fell , but from the fall . But if a Man shoot with a Bow or a Gun at another Man's Deer , and by misfortune kill a Man , such shooting being both voluntary , and unlawful , and also the immediate Cause of the Mans death , may be drawn perhaps well enough sometimes to Murder by a Judge of the Common-Law . So likewise if a Man shoot an Arrow over a House , and by chance kill a Man in the Street , there is no doubt but by the Law of Reason it is Murder , for though he meant no malice to the Man slain , yet it is manifest , that he cared not whom he slew . In this difficulty of finding out what it is that the Law of Reason dictates , who is it that must decide the Question ?

La.

In the Case of misfortune , I think it belongs to the Jury ; for it is matter of Fact only : But when it is doubtful whether the action from which the misfortune came , were Lawful , or Unlawful , it is to be judged by the Judge .

Ph.

But if the unlawfulness of the action ( as the stealing of the Apples ) did not cause the death of the Man , then the stealing , be it , Trespass , or Felony , ought to be punished alone , as the Law requireth .

La.

But for killing of a Man se defendendo , the Jury ( as Sir Edw. Coke here says ) shall not in their Verdict say it was se defendendo , but shall declare the manner of the Fact in special , and clear it to the Judge , to consider how it is to be called , whether se defendendo , Manslaughter , or Murder .

Ph.

One would think so ; for it is not often within the capacity of a Jury to distinguish the signification of the different and hard names which are given by Lawyers to the killing of a Man ; as Murder and Felony , which neither the Laws , nor the makers of the Laws have yet defined . The Witnesses say , that thus and thus the Person did , but not that it was Murder or Felony ; no more can the Jury say , who ought to say nothing but what they hear from the Witnesses , or from the Prisoner . Nor ought the Judge to ground his Sentence upon any thing else , besides the special matter found , which according as it is contrary , or not contrary to the Statute , ought to be pronounced .

La.

But I have told you , that when the Jury has found misfortune , or se defendendo , there is no judgment at all to be given , and the Party is to be pardoned of course , saving that he shall forfeit his Goods and Chattells , Debts and Duties to the King .

Ph.

But I understand not how there can be a Crime for which there is no Judgment , nor how any Punishment can be inflicted without a precedent Judgment , nor upon what ground the Sheriff can seize the Goods of any Man , till it be judged that they be forfeited . I know that Sir Edw. Coke saith , that in the Judgment of hanging , the Judgment of forfeiture is implyed , which I understand not ; though I understand well enough , that the Sheriff by his Office may seize the Goods of a Felon convicted ; much less do I conceive how the forfeiture of Goods can be implyed in a no-judgment , nor do I conceive , that when the Jury has found the special manner of the Fact to be such , as is really no other than se defendendo , and consequently , no fault at all , why he should have any Punishment at all . Can you shew me any Reason for it ?

La.

The Reason lies in the Custom .

Ph.

You know that unreasonable Customs are not Law , but ought to be abolished ; and what Custom is there more unreasonable than that a Man should be punished without a fault ?

La.

Then see the Statute of 24 Hen. 8. cap. 5.

Ph.

I find here , that at the making of this Statute there was a Question amongst the Lawyers , in case one Man should kill another that attempted feloniously to Rob , or Murder him in , or near any Common High-way , Court-way , Horse-way , or Foot-way , or in his Mansion , Messuage , or Dwelling-place ; whether for the death of such a Man one shall forfeit his Goods and Chattells , as a Man should do for killing another by Chance-medley , or in his own defence . This is the Preamble , and penned as well as Sir Edw. Coke could have wished ; but this Statute does not determine that a Man should forfeit his Goods for killing a Man se defendendo , or for killing him by misfortune ; but supposeth it only upon the opinion of the Lawyers that then were . The body of the Statute is , that if a Man be indicted , or appealed for the death of such Person so attempting as aforesaid , and the same by verdict be so found and tryed , he shall not forfeit any thing , but shall be discharged as if he had been found not Guilty . You see the Statute , now consider thereby in the case of killing se defendendo . Frst , if a Man kill another in his own defence , it is manifest , that the Man slain did either attempt to Rob , or to Kill , or to Wound him ; for else it was not done in his own defence . If then it were done in the Street , or near the Street as in a Tavern , he forfeits nothing because the Street is a High-way . So likewise it is to be said of all other Common-ways . In what place therefore can a Man kill another in his own defence , but that this Statute will discharge him of the forfeiture ?

La.

But the Statute says the attempt must be felonious .

Ph.

When a Man assaults me with a Knife , Sword , Club , or other mortal Weapon ; does any Law forbid me to defend my self , or command me to stay so long as to know whether he have a felonious intent , or no ? Therefore by this Statute , in case it be found se defendendo , the forfeiture is discharged , if it be found otherwise , it is Capital . If we read the Statute of Glocester , cap. 9. I think it will take away the difficulty : For by that Statute , in case it be found by the Countrey , that he did it in his own defence , or by misfortune , then by the report of the Justices to the King , the King shall take him to his Grace , if it please him . From whence it followeth ; first , that it was then thought Law , that the Jury may give the general verdict of se defendendo , which Sir Edw. Coke denies . Secondly , that the Judge ought to report especial matter to the King . Thirdly , that the King may take him to his Grace , if he please , and consequently , that his Goods are not to be seiz'd , till the King ( after the report of the Judge heard ) give the Sheriff command to do it . Fourthly , that the general verdict of the King hinders not the King , but that he may Judge of it upon the special matter , for it often happens that an ill-disposed Person provokes a Man with words , or otherwise on purpose to make him draw his Sword , that he may kill him , and pretend it done in his own defence ; which appearing , the King may , without any offence to God , punish him as the cause shall require . Lastly ( contrary to the Doctrine of Sir Edw. Coke ) he may in his own Person be Judge in the case , and annul the Verdict of the Jury , which a deputed Judge cannot do .

La.

There be some cases wherein a Man , though by the Jury he be found not Guilty , shall nevertheless forfeit his Goods and Chattells to the King . For example ; a Man is slain , and one A. hating B. giveth out that it was B. that slew him : B. hearing thereof , fearing if he be tryed for it , that through the great power of A. and others that seek his hurt , he should be condemned , flieth , and afterwards is taken , and tryed ; and upon sufficient evidence is by the Jury found Not Guilty ; yet because he fled he shall forfeit his Goods and Chattels , notwithstanding there be no such Judgment given by the Judge , nor appointed by any Statute , but the Law it self authoriseth the Sheriff to seize them to the use of the King .

Ph.

I see no reason ( which is Common-Law ) for it , and am sure it is grounded upon no Statute .

La.

See Sir Edw. Coke , Inst. 1. Sect. 709. and read .

Ph.

If a Man that is Innocent be accus'd of Felony , and for fear flieth for the same ; albeit that he be judicially acquitted of the Felony , yet if it be found that he fled for the same , he shall ( notwithstanding his Innocence ) forfeit all his Goods and Chattells , Debts and Duties . O unchristian , and abominable Doctrine ! which also he in his own words following contradicteth : For ( saith he ) as to the forfeiture of them , the Law will admit no proof against the presumption of the Law grounded upon his flight , and so it is in many other cases : But that the general Rule is , Quod stabitur praesumptioni , donec probetur in contrarium , but you see it hath many exceptions . This general Rule contradicts what he said before ; for there can be no exceptions to a general Rule in Law , that is not expresly made an exception by some Statute , and to a general Rule of equity there can be no exception at all . From the power of Punishing , let us proceed to the power of Pardoning .

La.

Touching the power of Pardoning , Sir Edw. Coke says , 3 Inst. p. 236. That no Man shall obtain Charter of pardon out of Parliament , and cites for it the Statute of 2 Ed. 3. cap. 2. and says farther , that accordingly in a Parliament Roll it is said , that for the peace of the Land it would help , that no pardon were granted but by Parliament .

Ph.

What lawful power would he have left to the King , that thus disableth him to practice Mercy ? In the Statute which he citeth , to prove that the King ought not to grant Charters of Pardon , but in Parliament there are no such words , as any Man may see ; for that Statute is in Print ; and that which he says is in the Parliament Roll , is but a wish of he tells not whom , and not a Law ; and 't is strange that a private wish should be inroll'd amongst Acts of Parliament . If a Man do you an injury , to whom ( think you ) belongeth the Right of pardoning it ?

La.

Doubtless to me alone , if to me alone be done that injury ; and to the King alone , if to him alone be done the injury ; and to both together , if the injury be done to both .

Ph.

What part then has any Man in the granting of a pardon , but the King and the party wrong'd . if you offend no Member of either House , why should you ask their pardon . It is possible that a Man may deserve a pardon ; or he may be such a one sometimes as the defence of the Kingdom hath need of ; may not the King pardon him , though there be no Parliament then sitting ? Sir Edw. Coke's Law is too general in this point , and I believe , if he had thought on 't , he would have excepted some Persons , if not all the Kings Children , and his Heir apparent ; and yet they are all his Subjects , and subject to the Law as other Men.

La.

But if the King shall grant pardons of Murder and Felony , of his own head , there would be very little safety for any Man , either out of his House , or in it , either by Night , or by Day : And for that very cause there have been many good Statutes provided , which forbid the Justices to allow of such pardons as do not specially name the Crime .

Ph.

Those Statutes , I confess , are reasonable , and very profitable , which forbid the Judge to pardon Murders , but what Statute is there that forbids the King to do it ? There is a Statute of 13 Rich. 2. c. 1. wherein the King promiseth not to pardon Murder , but there is in it a clause for the saving of the Kings Regality . From which may be inferr'd , that the King did not grant away that power , when he thought good to use it for the Common-wealth . Such Statutes are not Laws to the King , but to his Judges , and though the Judges be commanded by the King not to allow pardons in many cases , yet if the King by writing command the Judges to allow them , they ought to do it . I think , if the King think in his conscience it be for the good of the Common-wealth , he sinneth not in it ; but I hold not that the King may pardon him without sin , if any other Man be damnified by the Crime committed , unless he cause reparation to be made , as far as the party offending can do it : And howsoever be it sin , or not sin , there is no power in England that may resist him , or speak evil of him lawfully .

La.

Sir Edw. Coke denies not that ; and upon that ground it is that the King , he says , may pardon high Treason ; for there can be no high Treason , but against the King .

Ph.

That 's well ; therefore he confesseth , that whatsoever the offence be , the King may pardon so much of it as is an injury to himself , and that by his own right , without breach of any Law positive , or natural , or of any grant , if his Conscience tell him that it be not to the dammage of the Common-wealth ; and you know that to judge of what is good or evil to the Common-wealth , belongeth to the King only . Now tell me what it is which is said to be pardoned ?

La.

What can it be but only the offence ? If a Man hath done a Murder and be pardoned for the same , is it not the Murder that is pardoned ?

Ph.

Nay , by your favour , if a Man be pardoned for Murder or any other offence , it is the Man that is pardoned , the Murder still remains Murder . But what is pardon ?

La.

Pardon ( as Sir Edw. Coke says , 3 Inst. p. 233 ) is deriv'd of per and dono , and signifies throughly to remit .

Ph.

If the King remit the Murder and not pardon the Man that did it , what does the remission serve for ?

La.

You know well enough that when we say a Murder , or any thing else is pardoned , all English-men understand thereby , that the punishment due to the offence is the thing remitted .

Ph.

But for our understanding of one another , you ought to have said so at first . I understand now , that to pardon Murder or Felony is throughly to save the offender from all the punishment due unto him by the Law for his offence .

La.

Not so ; for Sir Edw. Coke in the same Chapter , p. 238. saith thus : A Man commits Felony , and is attainted thereof , or is abjur'd ; the King pardoneth the Felony without any mention of the attainder or abjuration , the pardon is void .

Ph.

What is it to be attainted ?

La.

To be attainted is , that his Blood be held in Law as stained and corrupted ; so that no inheritance can descend from him to his Children , or to any that make claim by him .

Ph.

Is this attaint a part of the Crime , or of the Punishment ?

La.

It cannot be a part of the Crime , because it is none of his own Act ; 't is therefore a part of the Punishment , viz. a disherison of the offender .

Ph.

If it be a part of the Punishment due , and yet not pardoned together with the rest ; then a pardon is not a through remitting of the Punishment as Sir Edw. Coke says it is . And what is Abjuration ?

La.

When a Clerk heretofore was convicted of Felony , he might have saved his life by abjuring the Realm ; that is , by departing the Realm within a certain time appointed , and taking an Oath never to return . But at this day all Statutes for Abjuration are repeal'd .

Ph.

That also is a Punishment , and by a pardon of the Felony pardoned , unless a Statute be in force to the contrary . There is also somewhat in the Statute of 13 Rich. 2. c. 1. concerning the allowance of Charters of pardons , which I understand not well . The words are these ; No Charter of pardon for henceforth shall be allowed before our Justices for Murder , or for the death of a Man by awayt , or malice prepens'd , Treason , or Rape of a Woman , unless the same be specified in the same Charter , for I think it follows thence , that if the King say in his Charter , that he pardoneth the Murder , then he breaketh not the Statute , because he specifies the offence ; or if he saith , he pardoneth the killing by awayt , or of malice prepensed , he breaketh not the Statute , he specifies the offence . Also if he say so much as that the Judge cannot doubt of the Kings meaning to pardon him , I think the Judge ought to allow it , because the Statute saveth the Kings liberty and regality in that point ; that is to say , the power to pardon him , such as are these words , notwithstanding any Statute to the contrary , are sufficient to cause the Charter to be allowed : For these words make it manifest , that the Charter was not granted upon surprise , but to maintain and claim the Kings liberty and power to shew mercy , when he seeth cause . The like meaning have these words Perdonavimus omnimodam interfectionem ; that is to say , we have pardoned the killing in what manner soever it was done . But here we must remember that the King cannot pardon , without sin , any dammage thereby done to another Man , unless he causes satisfaction to be made , as far as possibly the offender can , but is not bound to satisfie Mens thirst of revenge ; for all revenge ought to proceed from God , and under God from the King . Now ( besides in Charters ) how are these offences specified ?

La.

They are specified by their names , as Treason , Petit Treason , Murder , Rape , Felony , and the like .

Ph.

Petit Treason is Felony , Murder is Felony , so is Rape , Robbery and Theft , and ( as Sir Edw. Coke says ) Petit Larceny is Felony ; now if in a Parliament-pardon , or in a Coronation-pardon all Felonies be pardoned ; whether is Petit Larceny pardoned , or not ?

La.

Yes certainly it is pardoned .

Ph.

And yet you see it is not specified , and yet it is a Crime that hath less in it of the nature of Felony , than there is in Robbery . Do not therefore Rape , Robbery , Theft , pass under the pardon of all Felonies ?

La.

I think they are all pardoned by the words of the Statute , but those that are by the same Statute excepted ; so that specification is needful only in Charters of pardon , but in general pardons not so . For the Statute 13 Rich. 2. cap. 1. forbids not the allowance of Parliament-pardons , or Coronation-pardons , and therefore the offences pardoned need not be specified , but may pass under the general word of all Felonies . Nor is it likely that the members of the Parliament who drew up their own pardons , did not mean to make them as comprehensive as they could : And yet Sir Edw. Coke , 2 Inst. Sect. 745. at the word Felony , seemeth to be of another mind ; for Piracy is one species of Felony , and yet when certain English-men had committed Piracy in the last year of Queen Elizabeth , and came home into England , in the beginning of the Reign of King James , trusting to his Coronation-pardon of all Felonies ; they were indicted ( Sir Edw. Coke was then Attorney General ) of the Piracy before Commissioners according to the Statute of 28 H. 8. and being found Guilty were hang'd . The reason he alledgeth for it is , that it ought to have been specified by the name of Piracy in the pardon , and therefore the pardon was not to be allowed .

Ph.

Why ought it to have been specified more than any other Felony ? He should therefore have drawn his argument from the Law of reason .

La.

Also he does that ; for the Tryal ( he says ) was by the Common-Law , and before Commissioners not in the Court of the Lord Admiral , by the Civil-Law , therefore he says it was an offence whereof the Common-Law could not take notice because it could not be Tryed by twelve Men.

Ph.

If the Common-Law could not , or ought not to take notice of such offences , how could the offenders be Tryed by twelve Men , and found Guilty , and hang'd , as they were ? If the Common-Law take no notice of Piracy , what other offence was it for which they were hang'd ? Is Piracy two Felonies , for one of which a Man shall be hang'd by the Civil-Law , and for the other by the Common-Law ? Truly I never read weaker reasoning in any Author of the Law of England , than in Sir Edw. Coke's Institutes , how well soever he could plead .

La.

Though I have heard him much reprehended by others , as well as by you ; yet there be many excellent things , both for subtility , and for truth in these his Institutes .

Ph.

No better things than other Lawyers have that write of the Law , as of a Science : His citing of Aristotle , and of Homer , and of other Books which are commonly read to Gown-men , do , in my opinion , but weaken his Authority , for any Man may do it by a Servant ; but seeing the whole scene of that time is gone and past , let us proceed to somewhat else . Wherein doth an Act of Oblivion differ from a Parliament-pardon ?

La.

This word Act of Oblivion was never in our Law-Books before the 12 Car. 2. c. 11. and I wish it may never come again ; but from whence it came you may better know perhaps than I.

Ph.

The first , and only Act of Oblivion that ever passed into a Law , in any State that I have read of , was that Amnestia , or Oblivion of all Quarrels between any of the Citizens of Athens , at any time before that Act , without all exception of Crime , or Person . The occasion whereof was this . The Lacedemonians having totally subdued the Athenians , entred into the City of Athens , and ordained that the People should choose thirty Men of their own City to have the Soveraign Power over them . These being chosen behav'd themselves so outragiously , as caused a Sedition , in which the Citizens on both sides were daily slain . There was then a discreet Person that propounded to each of the parties this proposition , that every Man should return to his own , and forget all that was past ; which proposition was made , by consent on both sides , into a publick Act , which for that cause was called an Oblivion . Upon the like disorder hapning in Rome by the Murder of Julius Caesar , the like Act was propounded by Cicero , and indeed passed , but was within few days after broken again by Marcus Antonius . In imitation of this Act was made the Act of 12 Car. 2. c. 11.

La.

By this it seems , that the Act of Oblivion made by King Charles , was no other than a Parliament-pardon , because it containeth a great number of exceptions , as the other Parliament-pardons do , and the Act of Athens did not .

Ph.

But yet there is a difference between the late Act of Oblivion made here , and an ordinary Parliament-pardon : For concerning a fault pardoned in Parliament by a general word , a suit in Law may arise about this , whether the offender be signified by the word , or not , as whether the pardon of all Felonies , be a pardon of Piracy , or not : For you see by Sir Edw. Coke's reports , that notwithstanding a pardon of Felony , a Sea - Felony ( when he was Attourney General ) was not pardoned . But by the late Act of Oblivion , which pardoned all manner of offences committed in the late Civil War , no question could arise concerning Crimes excepted . First , because no Man can by Law accuse another Man of a Fact , which by Law is to be forgotten . Secondly , because all Crimes may be alledged , as proceeding from the Licentiousness of the time , and from the silence of the Law occasion'd by the Civil War , and consequently ( unless the offenders Person also were excepted , or unless the Crime were committed before the War began ) are within the Pardon .

La.

Truly I think you say right : For if nothing had been pardoned , but what was done by occasion of the War , the raising of the War it self had not been pardoned .

Ph.

I have done with Crimes and Punishments , let us come now to the Laws of Meum and Tuum .

La.

We must then examine the Statutes .

Ph.

We must so , what they command and forbid , but not dispute of their Justice : For the Law of Reason commands that every one observe the Law which he hath assented to , and obey the Person to whom he hath promised obedience and fidelity . Then let us consider next the Commentaries of Sir Edw. Coke upon Magna Charta , and other Statutes .

Ph.

For the understanding of Magna Charta , it will be very necessary to run up into Antient times , as far as History will give us leave , and consider not only the Customs of our Ancestors the Saxons , but also the Law of nature ( the most Antient of all Laws ) concerning the original of Government , and acquisition of Property , and concerning Courts of Judicature . And first , it is evident , that Dominion , Government , and Laws , are far more Antient than History , or any other writing , and that the beginning of all Dominion amongst Men was in Families ; in which , first , the Father of the Family by the Law of nature was absolute Lord of his Wife and Children . Secondly , made what Laws amongst them he pleased . Thirdly , was Judge of all their Controversies . Fourthly , was not obliged by any Law of Man to follow any Counsel , but his own . Fifthly , What Land soever the Lord sat down upon , and made use of for his own , and his Families benefit , was his Propriety by the Law of First-Possession , in case it was void of Inhabitants before , or by the Law of War , in case they conquer'd it . In this Conquest what Enemies they took and saved were their Servants : Also such Men as wanting Possessions of Lands , but furnished with Arts necessary for Mans life , came to dwell in the Family for Protection , became their Subjects , and submitted themselves to the Laws of the Family : And all this is consonant , not only to the Law of nature , but also to the practice of Mankind set forth in History Sacred , and Praphane .

La.

Do you think it lawful for a Lord that is the Soveraign Ruler of his Family , to make War upon another like Soveraign Lord , and dispossess him of his Lands ?

Ph.

It is Lawful , or not Lawful according to the intention of him that does it . For , First , being a Soveraign Ruler , he is not subject to any Law of Man ; and as to the Law of God , where the intention is justifiable , the action is so also . The intention may be Lawful in divers Cases by the right of nature ; one of those Cases is , when he is constrained to it by the necessity of subsisting . So the Children of Israel , besides that their leaders , Moses and Joshua had an immediate command from God to dispossess the Canaanites , had also a just pretence to do what they did from the right of nature , which they had to preserve their lives , being unable otherwise to subsist . And as their preservation , so also is their security a just pretence of invading those whom they have just cause to fear , unless sufficient caution be given to take away their fear , which Caution ( for any thing I can yet conceive ) is utterly impossible . Necessity , and Security are the principal justifications , before God , of beginning War . Injuries receiv'd justifie a War defensive ; but for reparable injuries , if Reparation be tendred , all invasion upon that Title is Iniquity . If you need examples , either from Scripture , or other History concerning this right of nature in making War , you are able enough from your own reading , to find them out at your leisure .

La.

Whereas you say , that the Lands so won by the Soveraign Lord of a Family , are his in propriety , you deny ( methinks ) all property to the Subjects , how much soever any of them hath contributed to the Victory .

Ph.

I do so , nor do I see any reason to the contrary : For the Subjects , whether they come into the Family , have no title at all to demand any part of the Land , or any thing else but security , to which also they are bound to contribute their whole strength , and , if need be , their whole fortunes : For it cannot be supposed that any one Man can protect all the rest with his own single strength : And for the Practice , it is manifest in all Conquests , the Land of the vanquished is in the sole power of the Victor , and at his disposal . Did not Joshua and the high-Priest divide the Land of Canaan in such sort among the Tribes of Israel , as they pleased ? Did not the Roman and Graecian Princes and States according to their own discretion , send out the Colonies to inhabit such Provinces as they had Conquered ? Is there at this day among the Turks any inheritor of Land , besides the Sultan ? And was not all the Land in England once in the hands of William the Conqueror ? Sir Edw. Coke himself confesses it ; therefore it is an universal truth , that all Conquer'd Lands , presently after Victory , are the Lands of him that Conquer'd them .

La.

But you know that all Soveraigns are said to have a double Capacity ; viz. a natural Capacity , as he is a Man , and a a politick Capacity , as a King . In his politick Capacity I grant you , that King William the Conqueror was the proper , and only owner once of all the Land in England , but not in his natural Capacity .

Ph.

If he had them in his politick Capacity , then they were so his own as not to dispose of any part thereof , but only to the benefit of his People , and that must be either by his own , or by the Peoples discretion ; that is , by Act of Parliament . But where do you find that the Conqueror disposed of his Lands ( as he did some to English-men , some to French-men , and some to Normans ) to be holden by divers Tenures , as Knight-service , Soccage , &c. by Act of Parliament ? Or that he ever called a Parliament to have the assent of the Lords and Commons of England in disposing of those Lands he had taken from them ? Or for retaining of such and such Lands in his own hands by the name of Forrests for his own Recreation , or Magnificence ? You have heard perhaps that some Lawyers , or other Men reputed wise and good Patriots have given out , that all the Lands which the Kings of England have possessed , have been given them by the People , to the end that they should therewith defray the Charges of their Wars , and pay the wages of their Ministers , and that those Lands were gained by the Peoples Money ; for that was pretended in the late Civil War , when they took from the King his Town of Kingston upon Hull ; but I know you do not think that the pretence was just . It cannot therefore be denyed but that Land which King William the Conqueror gave away to English-men and others , and which they now hold by his Letters Patents , and other conveyances , were properly , and really his own , or else the Titles of them that now hold them must be invalid .

La.

I assent . As you have shewed me the beginning of Monarchies , so let me hear your opinion concerning their growth .

Ph.

Great Monarchies have proceeded from small Families . First , by War , wherein the Victor not only enlarged his Territory , but also the number and riches of his Subjects . As for other forms of Common-wealths , they have been enlarged otherways . First , by a voluntary conjunction of many Lords of Families into one great Aristocracie . Secondly , by Rebellion proceeded first , Anarchy , and from Anarchy proceeded any form that the Calamities of them that lived therein did prompt them to ; whether it were that they chose an Hereditary King , or an elective King for life , or that they agreed upon a Council of certain Persons ( which is Aristocracy ) or a Council of the whole People to have the Soveraign Power , which is Democracy .

After the first manner which is by War , grew up all the greatest Kingdoms in the World , viz. the Aegyptian , Assyrian , Persian and the Macedonian Monarchy ; and so did the great Kingdoms of England , France , and Spain .

The second manner was the original of the Venetian Aristocracy , by the third way which is Rebellion , grew up in divers great Monarchies , perpetually changing from one form to another ; as in Rome rebellion against Kings produced Democracy , upon which the Senate usurped under Sylla , and the People again upon the Senate under Marius , and the Emperor usurped upon the People under Caesar and his Successors .

La.

Do you think the distinction between natural and politick Capacity is insignificant ?

Ph.

No ; If the Soveraign power be in an assembly of Men , that Assembly , whether it be Aristocratical , or Democratical , may possess Lands , but it is in their politick Capacity , because no natural Man has any right to those Lands , or any part of them , in the same manner they can command an Act by plurality of Commands , but the Command of any one of them is of no effect . But when the Soveraign power is in one Man , the Natural and Politick Capacity are in the same Person , and as to possession of Lands undistinguishable : But as to the Acts and Commands , they may be well distinguished in this manner . Whatsoever a Monarch does Command , or do by consent of the People of his Kingdom , may properly be said to be done in his politick Capacity ; and whatsoever he Commands by word of Mouth only , or by Letters Signed with his hand , or Sealed with any of his private Seals is done in his natural Capacity : Nevertheless , his publick Commands , though they be made in his politick Capacity , have their original from his natural Capacity . For in the making of Laws ( which necessarily requires his assent ) his assent is natural : Also those Acts which are done by the King previously to the passing of them under the Great Seal of England , either by word of Mouth , or warrant under his Signet , or privy Seal , are done in his natural Capacity ; but when they have past the Seal of England , they are to be taken as done in his politick Capacity .

La.

I think verily your distinction is good : For natural Capacity , and politick Capacity signifie no more than private and publick right . Therefore leaving this argument let us consider in the next place , as far as History will permit , what were the Laws and Customs of our Ancestors .

Ph.

The Saxons , as also all the rest of Germany not Conquer'd by the Roman Emperors , nor compelled to use the imperial Laws , were a Savage and Heathen People , living only by War and Rapine ; and as some learned Men in the Roman Antiquities affirm , had their name of Germans from that their ancient trade of life , as if Germans and Hommes de guerre were all one . Their rule over their Family , Servants and Subjects was absolute , their Laws no other than natural Equity ; written Law they had little , or none , and very few there were in the time of the Caesars that could write , or read . The right to the Government was either Paternal , or by Conquest , or by Marriages . Their succession to Lands was determined by the pleasure of the Master of the Family , by Gift , or Deed in his life time ; and what Land they disposed not of in their life time , descended after their death to their Heirs . The Heir was the Eldest Son ; The issue of the Eldest Son failing , they descended to the younger Sons in their order , and for want of Sons , to the Daughters joyntly , as to one Heir , or to be divided amongst them , and so to descend to their Heirs in the same manner : And Children failing , the Uncle by the Fathers , or Mothers side ( according as the Lands had been the Fathers or the Mothers ) succeeded to the inheritance , and so continually to the next of blood . And this was a natural descent , because naturally the nearer in Blood , the nearer in kindness , and was held for the Law of nature , not only amongst the Germans , but also in most Nations before they had a written Law .

The right of Government , which is called Jus Regni descended in the same manner , except only that after the Sons , it came to the eldest Daughter first , and her Heirs ; the reason whereof was , that Government is indivisible . And this Law continues still in England .

La.

Seeing all the Land which any Soveraign Lord possessed , was his own in propriety ; how came a Subject to have a propriety in their Lands ?

Ph.

There be two sorts of Propriety . One is , when a Man holds his Land from the gift of God only , which Lands Civilians call Allodial which in a Kingdom no Man can have but the King . The other is when a Man holds his Land from another Man as given him , in respect of service and obedience to that Man , as a Fee . The first kind of propriety is absolute , the other is in a manner conditional , because given for some service to be done unto the giver . The first kind of propriety excludes the right of all others ; the second excludes the right of all other Subjects to the same Land , but not the right of the Soveraign , when the common good of the People shall require the use thereof .

La.

When those Kings had thus parted with their Lands , what was left them for the maintenance of their Wars , either offensive , or defensive ; or for the maintenance of the Royal Family in such manner as not only becomes the dignity of a Soveraign King , but is also necessary to keep his Person and People from contempt .

Ph.

They have means enough ; and besides what they gave their Subjects , had much Land remaining in their own hands afforrested for their recreation : For you know very well that a great part of the Land of England was given for Military service to the great Men of the Realm , who were for the most part of the Kings kindred , or great Favourites , much more Land than they had need of for their own Maintenance ; but so charged with one , or many Souldiers , according to the quantity of Land given , as there could be no want of Souldiers , at all times , ready to resist an invading Enemy : Which Souldiers those Lords were bound to furnish , for a time certain , at their own Charges . You know also , that the whole Land was divided into Hundreds , and those again into Decennaries ; in which Decennaries all Men even to Children of 12 years of age , were bound to take the Oath of Allegiance : And you are to believe , that those Men that hold their Land by the service of Husbandry , were all bound with their Bodies , and Fortunes to defend the Kingdom against invaders by the Law of nature : And so also such as they called Villains , and held their Land by baser drudgery , were obliged to defend the Kingdom to the utmost of their power . Nay , Women , and Children in such a necessity are bound to do such service as they can , that is to say , to bring Weapons and Victuals to them that fight , and to Dig : But those that hold their Land by service Military , have lying upon them a greater obligation : For read and observe the form of doing homage , according as it is set down in the Statute of 17 Edw. 2. which you doubt not , was in use before that time , and before the Conquest .

La.

I become your Man for Life , for Member and for worldly Honour , and shall owe you my faith for the Lands that I hold of you .

Ph.

I pray you expound it .

La.

I think it is as much , as if you should say , I promise you to be at your Command ; to perform with the hazard of my Life , Limbs and all my Fortune , as I have charged my self to the reception of the Lands you have given me , and to be ever faithful to you . This is the form of Homage done to the King immediately ; but when one Subject holdeth Land of another by the like Military service , then there is an exception added ; viz. saving the faith I owe to the King .

Ph.

Did he not also take an Oath ?

La.

Yes ; which is called the Oath of Fealty ; I shall be to you both faithful , and lawfully shall do such customs and services , as my duty is to you at the terms assigned ; so help me God , and all his Saints . But both these services , and the services of Husbandry were quickly after turned into Rents , payable either in Money , as in England ; or in Corn , or other Victuals , as in Scotland and France . When the service was Military , the Tenant was for the most part bound to serve the King in his Wars with one , or more Persons , according to the yearly value of the Land he held .

Ph.

Were they bound to find Horse-men , or Foot-men ?

La.

I do not find any Law that requires any Man , in respect of his Tenancie , to serve on Horseback .

Ph.

Was the Tenant bound , in case he were called , to serve in Person ?

La.

I think he was so in the beginning : For when Lands were given for service Military , and the Tenant dying left his Son and Heir , the Lord had the custody both of Body and Lands till the Heir was twenty one years old ; and the reason thereof was , that the Heir till that Age of twenty one years , was presum'd to be unable to serve the King in his Wars , which reason had been insufficient , if the Heir had been bound to go to the Wars in Person . Which ( methinks ) should ever hold for Law , unless by some other Law it come to be altered . These services together with other Rights , as Wardships first , possession of his Tenants inheritance , Licenses for Alienation , Felons Goods , Felons Lands , if they were holden of the King , and the first years profit of the Lands , of whomsoever they were holden , Forfeitures , Amercements , and many other aids could not but amount to a very great yearly Revenue . Add to this all that which the King might reasonably have imposed upon Artificers and Tradesmen ( for all Men , whom the King protecteth , ought to contribute towards their own protection ) and consider then whether the Kings of those times had not means enough , and to spare ( if God were not their Enemy ) to defend their People against Forreign Enemies , and also to compell them to keep the Peace amongst themselves .

Ph.

And so had had the succeeding Kings if they had never given their rights away , and their Subjects always kept their Oaths , and promises . In what manner proceeded those Ancient Saxons , and other Nations of Germany , especially the Northern parts , to the making of their Laws ?

La.

Sir Edw. Coke out of divers Saxon Laws , gathered and published in Saxon and Latine by Mr. Lambert , inferreth , that the Saxon Kings , for the making of their Laws , called together the Lords and Commons , in such manner as is used at this day in England . But by those Laws of the Saxons published by Mr. Lambert , it appeareth , that the Kings called together the Bishops , and a great part of the wisest and discreetest Men of the Realm , and made Laws by their advice .

Ph.

I think so ; for there is no King in the World , being of ripe years and sound mind , that made any Law otherwise ; for it concerns them in their own interest to make such Laws as the people can endure , and may keep them without impatience , and live in strength and courage to defend their King and Countrey , against their potent neighbours . But how was it discerned , and by whom was it determined , who were those wisest and discreetest Men ? It is a hard matter to know who is wisest in our times . We know well enough who chooseth a Knight of the Shire , and what Towns are to send Burgesses to the Parliament , therefore if it were determined also in those dayes , who those wise Men should be , then , I confess , that the Parliaments of the old Saxons , and the Parliaments of England since are the same thing , and Sir Edw. Coke is in the right . Tell me therefore , if you can , when those Towns which now send Burgesses to the Parliament , began to do so , and upon what cause one Town had this priviledge , and another Town , though much more populous , had not .

La.

At what time began this custom I cannot tell ; but I am sure it is more ancient than the City of Salisbury ; because there come two Burgesses to Parliament for a place near to it , called Old Sarum , which ( as I Rid in sight of it ) if I should tell a stranger that knew not what the word Burgess meant , he would think were a couple of Rabbets , the place looketh so like a long Cony-Borough . And yet a good Argument may be drawn from thence , that the Townsmen of every Town were the Electors of their own Burgesses , and Judges of their discretion ; and that the Law , whether they be discreet or not , will suppose them to be discreet till the contrary be apparent . Therefore where it is said , that the King called together the more discreet Men of his Realm ; it must be understood of such Elections as are now in use : By which it is manifest , that those great and general Moots assembled by the old Saxon Kings , were of the same nature with the Parliaments assembled since the Conquest .

Ph.

I think your reason is good : For I cannot conceive , how the King , or any other but the inhabitants of the Boroughs themselves , can take notice of the discretion , or sufficiency of those they were to send to the Parliament . And for the Antiquity of the Burgess-Towns , since it is not mentioned in any History , or certain Record now extant , it is free for any Man to propound his conjecture . You know , that this Land was invaded by the Saxons at several times , and conquered by pieces in several Wars ; so that there were in England many Kings at once , and every of them had his Parliament , and therefore according as there were more , or fewer walled Towns within each Kings Dominion , his Parliament had the more , or fewer Burgesses : But when all these lesser Kingdoms were joyned into one , then to that one Parliament came Burgesses from all the Burroughs of England . And this perhaps may be the reason , why there be so many more such Burroughs in the West , than in any other part of the Kingdom ; the West being more populous , and also more obnoxious to invaders , and for that cause having greater store of Towns Fortified . This I think may be the original of that priviledge which some Towns have to send Burgesses to the Parliament , and others have not .

La.

The Conjecture is not improbable , and for want of greater certainty , may be allowed . But seeing it is commonly receiv'd , that for the making of a Law , there ought to be had the assent of the Lords Spiritual and Temporal ; whom do you account in the Parliaments of the old Saxons for Lords Temporal , and whom for Lords Spiritual ? For the Book called The mode of holding Parliaments , agreeth punctually with the manner of holding them at this day , and was written ( as Sir Edw. Coke says ) in the time of the Saxons , and before the Conquest .

Ph.

Mr. Selden ( a greater Antiquary than Sir Edw. Coke ) in the last Edition of his Book of Titles of Honour says , that that Book called the Mode , &c. was not written till about the time of Rich. 2. and seems to me to prove it . But howsoever that be , it is apparent by the Saxon Laws set forth by Mr. Lambert , that there were always called to the Parliament , certain great Persons called Aldermen , alias Earls ; and so you have a House of Lords , and a House of Commons . Also you will find in the same place , that after the Saxons had received the Faith of Christ , those Bishops that were amongst them , were always at the great Mootes , in which they made their Laws .

Thus you have a perfect English Parliament , saving that the name of Barons was not amongst them , as being a French Title , which came in with the Conqueror .

FINIS .

Notes, typically marginal, from the original text

Notes for div A43971-e39520