L. Concerning heresy, Sir Edward Coke (3 Inst. p. 39) says, that five things fall into consideration. 1. Who be the judges of heresy. 2. What shall be judged heresy. 3. What is the judgment upon a man convicted of heresy. 4. What the law alloweth him to save his life. 5. What he shall forfeit by judgment against him.
P. The principal thing to be considered, which is the heresy itself, he leaveth out, viz. what it is; in what fact or words it consisteth; what law it violateth, statute-law or the law of reason. The 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 heresy, (if he but dare to give an account of his faith), unless he know beforehand what it is?
L. In the preamble of the statute of 2 Hen. IV, c. 15, heresy is laid down, as a preaching or writing of such doctrine as is contrary to the determination of Holy Church.
P. Then it is heresy at this day to preach or write against worshipping of Saints, or the infallibility of the Church of Rome, or any other determination of the same Church. For Holy Church, at that time, was understood to be the Church of Rome, and now with us the Holy Church I understand to be the Church of England; and the opinions in that statute are now, and were then, the true Christian faith. Also the same statute of Hen. IV declareth, by the same preamble, that the Church of England had never been troubled with heresy.
L. But that statute is repealed.
P. Then also is that declaration or definition of heresy repealed.
L. What, say you, is heresy?
P. I say, heresy is a singularity of doctrine or opinion contrary to the doctrine of another man, or men; and the word properly signifies the doctrine of a sect, which doctrine is taken upon trust of some man of reputation for wisdom, that was the first author of the same. If you will understand the truth hereof, you are to read the histories and other writings of the ancient Greeks, whose word it is; which writings are extant in these days, and easy to be had. Wherein you will find, that in and a little before the time of Alexander the Great, there lived in Greece many excellent wits, that employed their time in search of the truth in all manner of sciences worthy of their labour, and which to their great honour and applause published their writings; some concerning justice, laws, and government, some concerning good and evil manners, some concerning the causes of things natural and of events discernible by sense, and some of all these subjects. And of the authors of these, the principal were Pythagoras, Plato, Zeno, Epicurus and Aristotle, men of deep and laborious meditation, and such as did not get their bread by their philosophy, but were able to live of their own, and were in honour with princes and other great personages. But these men, though above the rest in wisdom, yet their doctrine in many points did disagree; whereby it came to pass, that such men as studied their writings, inclined some to Pythagoras, some to Plato, some to Aristotle, some to Zeno, and some to Epicurus. But philosophy itself was then so much in fashion, as that every rich man endeavoured to have his children educated in the doctrine of some or other of these philosophers, which were for their wisdom so much renowned. Now those that followed Pythagoras, were called Pythagoreans; those that followed Plato, Academics; those that followed Zeno, Stoics; those that followed Epicurus, Epicureans; and those that followed Aristotle, Peripatetics; which are the names of heresy in Greek, which signifies no more but taking of an opinion; and the said Pythagoreans, Academics, Stoics, Peripatetics, &c. were termed by the names of so many several heresies. All men, you know, are subject to error, and the ways of error very different; and therefore it is no wonder if these wise and diligent searchers of the truth did, notwithstanding their excellent parts, differ in many points amongst themselves. But this laudable custom of great wealthy persons to have their children at any price to learn philosophy, suggested to many idle and needy fellows an easy and compendious way of maintenance; which was to teach the philosophy, some of Plato, some of Aristotle, &c: whose books to that end they read over, but without capacity or much endeavour to examine the reasons of their doctrines, taking only the conclusions, as they lay. And setting up with this, they soon professed themselves philosophers, and got to be the school-masters to the youth of Greece. But by competition for such employment, they hated and reviled one another with all the bitter terms they could invent; and very often, when upon occasion they were in civil company, fell first to disputation, and then to blows, to the great trouble of the company and their own shame. Yet amongst all their reproachful words, the name of heretic came never in, because they were all equally heretics, their doctrine not being theirs, but taken upon trust from the aforesaid authors. So that though we find heresy often mentioned in Lucian and other heathen authors, yet we shall not find in any of them hæreticus for a heretic. And this disorder among the philosophers continued a 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 Stoics and Epicureans was not much esteemed, only Plato’s and Aristotle’s philosophy were much in credit; Plato’s with the better sort, that founded their doctrine upon the conceptions and ideas of things, and Aristotle’s with those that reasoned only from the names of things, according to the scale of the categories. Nevertheless, there were always, though not new sects of philosophy, yet new opinions continually arising.
L. But how came the word heretic to be a reproach?
P. Stay a little. After the death of our Saviour, his apostles and his disciples, as you know, dispersed themselves into several parts of the world to preach the Gospel, and converted much people, especially in Asia the Less, in Greece, and Italy, where they constituted many churches; and as they travelled from place to place, left bishops to teach and direct those their converts, and to appoint presbyters under them to assist them therein, and to confirm them by setting forth the life and miracles of our Saviour, as they had received them from the writings of the apostles and evangelists; whereby, and not by the authority of Plato, or Aristotle, or any other philosopher, they were to be instructed. Now you cannot doubt but that among so many heathens converted in the time of the apostles, there were men of all professions and dispositions, and some that had never thought of philosophy at all, but were intent upon their fortunes or their pleasures; and some that had a greater, some a less use of reason; and some that had studied philosophy, but professed it not, which were commonly the men of the better rank; and some had professed it only for their better abstinence, and had it not farther than readily to talk and wrangle; and some were Christians in good earnest, and others but counterfeit, intending to make use of the charity of those that were sincere Christians, which in those times was very great. Tell me now, of these sorts of Christians, which was the most likely to afford the fittest men to propagate the faith by preaching and writing, or public or private disputation; that is to say, who were fittest to be made presbyters and bishops.
L. Certainly those who, cæteris paribus, could make the best use of Aristotle’s rhetoric and logic.
P. And who were the most prone to innovation?
L. They that were most confident of Aristotle’s and Plato’s (their former masters) natural philosophy. For they would be the aptest to wrest the writings of the apostles and all Scriptures to the doctrines in which their reputation was engaged.
P. And from such bishops and priests and other sectaries it was, that heresy, amongst the Christians, first came to be a reproach. For no sooner had one of them preached or published any doctrine that displeased either the most, or the most leading men of the rest, but it became such a quarrel as not to be decided but by a Council of the bishops in the province where they lived; wherein he that would not submit to the general decree, was called a heretic, as one that would not relinquish the philosophy of his sect. The rest of the Council gave themselves the name of Catholics, and to their Church the name of Catholic Church. And thus came up the opposite terms of catholic and heretic.
L. I understand how it came to be a reproach, but not how it follows that every opinion condemned by a Church that is, or calls itself catholic, must needs be an error or a sin. The Church of England denies that consequence, and that such doctrine as they hold cannot be proved to be erroneous but by the Scripture, which cannot err; but the Church, being but men, may both err and sin.
P. In this case we must consider also that error, in its own nature, is no sin. For it is impossible for a man to err on purpose; he cannot have an intention to err; and nothing is sin unless there be a sinful intention: much less are such errors sins, as neither hurt the commonwealth nor any private man, nor are against any law positive or natural; such errors as were those for which men were burnt, in the time when the Pope had the government of this Church.
L. Since you have told me how heresy came to be a name, tell me also how it came to be a crime; and what were the heresies that first were made crimes.
P. Since the Christian Church could declare, and none else, what doctrines were heresies, but had no power to make statutes for the punishment of heretics before they had a Christian King, it is manifest that heresy could not be made a crime before the first Christian Emperor, which was Constantine the Great. In his time, one Arius, a priest of Alexandria, in dispute with his bishop publicly denied the divinity of Christ, and maintained it afterwards in the pulpit, which was the cause of a sedition and much bloodshed both of citizens and soldiers in that city. For the preventing of the like for the time to come, the Emperor called a general Council of bishops to the city of Nice; who being met, he exhorted them to agree upon a confession of the Christian faith, promising that whatsoever they agreed on he would cause to be observed.
L. By the way, the Emperor, I think, was here a little too indifferent.
P. In this Council was established so much of the creed we now use and call the Nicene creed, as reacheth to the words, I believe in the Holy Ghost. The rest was established by the three general Councils next succeeding. By the words of which creed almost all the heresies then in being, and especially the doctrine of Arius, were condemned; so that now all doctrines published by writing or by word, and repugnant to this confession of the first four general Councils, and contained in the Nicene creed, were, by the imperial law forbidding them, made crimes; such as are that of Arius, denying the divinity of Christ; that of Eutiches, denying the two natures of Christ; that of the Nestorians, denying the divinity of the Holy Ghost; that of the Anthropomorphites, that of the Manichees, that of the Anabaptists, and many other.
L. What punishment had Arius?
P. At the first, for refusing to subscribe, he was deprived and banished; but afterwards having satisfied the Emperor concerning his future obedience (for the Emperor caused this confession to be made, not for the regard of truth of doctrine, but for the preserving of the peace, especially among his Christian soldiers, by whose valour he had gotten the empire, and by the same was to preserve it), he was received again into grace, but died before he could repossess his benefice. But after the time of those Councils, the imperial law made the punishment for heresy to be capital, though the manner of the death was left to the prefects in their several jurisdictions; and thus it continued till somewhat after the time of the Emperor Frederick Barbarossa. But the papacy having gotten the upper hand of the Emperor, brought in the use of burning both heretics and apostates; and the Popes from time to time made heresies of many other points of doctrine (as they saw it conduce to the setting up of the chair above the throne), besides those determined in the Nicene creed, and brought in the use of burning; and according to this papal law, there was an apostate burnt at Oxford, in the time of William the Conqueror, for turning Jew. But of a heretic burnt in England, there is no mention made till after the statute of 2 Hen. IV, whereby some followers of Wicliff, called Lollards, were afterwards burned; and that for such doctrines as by the Church of England, ever since the first year of Queen Elizabeth, have been approved for godly doctrines, and no doubt were godly then. And so you see how many have been burnt for godliness.
L. It was not well done. But it is no wonder we read of no heretics before the time of Henry IV: for in the preamble to that statute it is intimated, that before those Lollards there never was any heresy in England.
P. I think so too; for we have been the tamest nation to the Pope of all the world. But what statutes concerning heresy have there been made since?
L. The statute of 2 Hen. V, c. 7, which adds to the burning the forfeiture of lands and goods; and then no more till the 25 Hen. VIII, c. 14, which confirms the two former, and giveth some new rules concerning how they shall be proceeded with. But by the statute of 1 Edw. VI, c. 12, all acts of Parliament formerly made to punish any manner of doctrine concerning religion, are repealed. For therein it is ordained, after divers Acts specified, that all and every other Act or Acts of Parliament concerning doctrine or matters of religion, and all and every branch, article, sentence, and matter, pains and forfeitures contained, mentioned, or anywise declared in the same Acts of Parliament or statutes, shall be from henceforth repealed, utterly void, and of none effect. So that in the time of King Edward VI, not only all punishments of heresy were taken away, but also the nature of it was changed to what originally it was, a private opinion. Again, in 2 Phil. & M. those former statutes of 2 Hen. IV, c. 15, 2 Hen. V, c. 17, 25 Hen. VIII, c. 14, are revived; and the branch of 1 Edw. VI, c. 12, touching doctrine, though not specially named, seemeth to be this, that the same statute confirmeth the statute of 25 Edw. III, concerning treasons. Lastly, in the first year of Queen Elizabeth, c. 1, the aforesaid statutes of Queen Mary are taken away, and thereby the statute of 1 Edw. VI, c. 12, revived; so as there was no statute left for the punishment of heretics. But Queen Elizabeth by the advice of her Parliament gave a commission, which was called the High Commission, to certain persons, amongst whom were very many of the bishops, to declare what should be heresy for the future, but with a restraint that they should judge nothing to be heresy, but what had been so declared in the first four general Councils.
P. From this which you have showed me, I think we may proceed to the examination of the learned Sir Edward Coke concerning heresy. In his chapter of heresy, 3 Inst. p. 40, he himself confesseth that no statute against heresy stood then in force, when in the 9th year of King James, Bartholomew Legat was burnt for Arianism; and that from the authority of the act of 2 Hen. IV, c. 15, and other acts cited in the margin, it may be gathered that the diocesan hath the jurisdiction of heresy. This I say is not true: for as to acts of Parliament, it is manifest, that from acts repealed, that is to say, from things that have no being, there can be gathered nothing. And as to the other authorities in the margin, Fitzherbert and the Doctor and Student, they say no more than what was law in the time when they writ; that is, when the Pope’s usurped authority was here obeyed. But if they had written this in the time of King Edward VI or Queen Elizabeth, Sir Edward Coke might as well have cited his own authority, as theirs; for their opinions had no more the force of laws than his. Then he cites this precedent of Legat, and another of Hammond in the time of Queen Elizabeth; but precedents prove only what was done, and not what was well done. What jurisdiction could the diocesan then have of heresy, when by the statute of Edw. VI, c. 12, then in force, there was no heresy, and all punishment for opinions was forbidden? For heresy is a doctrine contrary to the determination of the Church; but then the Church had not determined any thing at all concerning heresy.
L. But seeing the high-commissioners had power to correct and amend heresies, they must have power to cite such as were accused of heresy to appear before them; or else they could not execute their commission.
P. If they had first made and published a declaration of what articles they made heresy, that when one man heard another speak against their declaration, he might thereof inform the commissioners, then indeed they had had power to cite and imprison the person accused. But before they can know what should be heresy, how was it possible that one man should accuse another? And before he be accused, how can he be cited?
L. Perhaps it was taken for granted, that whatsoever was contrary to any of the four first general Councils, was to be judged heresy.
P. That granted, yet I see not how one man might accuse another any the better for those Councils. For not one man of ten thousand had ever read them, nor were they ever published in English, that a man might avoid offending against them; nor perhaps are they extant. Nor if those that we have printed in Latin, are the very acts of the Councils, which is yet much disputed amongst divines, do I think it fit they were put in the vulgar tongues. But it is not likely that the makers of the statutes had any purpose to make heresy of whatsoever was repugnant to those four general Councils. For if they had, I believe the Anabaptists, of which there was great plenty in those times, would one time or other have been questioned upon this article of the Nicene Creed, I believe one baptism for the remission of sins. Nor was the commission itself for a long time after registered, that men might in such uncertainty take heed and abstain, for their better safety, from speaking of religion anything at all. But by what law was this hereticheretic Legat burnt? I grant he was an Arian, and his heresy contrary to the determination of the Church of England, in the highest points of Christianity. But seeing there was no statute-law to burn him, and no penalty forbidding, by what law, by what authority was he burnt?
L. That this Legat was accused of heresy, was no fault of the high-commissioners; but when he was accused, it had been a fault in them not to have examined him, or having examined him and found him an Arian, not to have judged him so, or not to have certified him so. All this they did, and this was all that belonged unto them; they meddled not with his burning, but left him to the secular power to do with him what they pleased.
P. Your justification of the commissioners is nothing to the question. The question is by what law was he burnt? The spiritual-law gives no sentence of temporal punishment; and Sir Edward Coke confesseth that he could not be burned; and burning being forbidden by statute-law, by what law then was he burned?
L. By the common-law.
P. What is that? It is not custom. For before the time of Henry IV, there was no such custom in England; for if there had, yet those laws that came after were but confirmations of the custom, and therefore the repealing of those laws was a repealing of the custom. For when King Edward VI and Queen Elizabeth abolished those statutes, they abolished all pains, and consequently burning, or else they had abolished nothing. And if you will say he was burnt by the law of reason, you must tell me how there can be proportion between doctrine and burning; there can be no equality, nor majority, nor minority assigned between them. The proportion that is between them, is the proportion of the mischief which the doctrine maketh, to the mischief to be inflicted on the doctor; and this is to be measured only by him that hath the charge of governing the people; and consequently the punishing of offences can be determined by none but by the King, and that, if it extend to life or member, with the assent of Parliament.
L. He does not draw any argument for it from reason, but allegeth for it this judgment executed upon Legat, and a story out of Holinshed and Stow. But I know that neither history nor precedent will pass with you for law. And though there be a writ de hæretico comburendo in the register, as you may read in Fitzherbert, grounded upon the statutes of 2 Hen. IV, c. 15, and 2 Hen. V, c. 7; yet seeing those statutes are void, you will say the writ is also void.
P. Yes, indeed will I. Besides this, I understand not how that it is true that he saith, that the diocesan hath jurisdiction of heresy, and that so it was put in use in all Queen Elizabeth’s reign; whereas by the statute it is manifest, that all jurisdiction spiritual was given under the Queen to the high-commissioners. How then could any one diocesan have any part thereof without deputation from them, which by their letters-patent they could not grant? Nor was it reasonable they should; for the trust was not committed to the bishops only, but also to divers lay persons, who might have an eye upon their proceedings, lest they should encroach upon the power temporal. But at this day there is neither statute nor any law to punish doctrine, but the ordinary power ecclesiastical, and that according to the canons of the Church of England, only authorized by the King, the high-commission being long since abolished. Therefore let us come now to such causes criminal as are not capital.
L. The greatest offence not capital, is that which is done against the statute of provisors.
P. You have need to expound this.
L. This crime is not unlike to that for which a man is outlawed, when he will not come in and submit himself to the law; saving that in outlawries there is a long process to precede it, and he that is outlawed is put out of the protection of the law. But for the offence against the statute of provisors (which is called præmunire facias, from the words in the original writ), if the offender submit not himself to the law within the space of two months after notice, he is presently an outlaw. And this punishment, if not capital, is equivalent to capital. For he lives secretly at the mercy of those that know where he is, and cannot, without the like peril to themselves, but discover him. And it has been much disputed, before the time of Queen Elizabeth, whether he might not be lawfully killed by any man that would, as one might kill a wolf. It is like the punishment amongst the old Romans, of being barred the use of fire and water; and like the great excommunication in the papacy, when a man might not eat nor drink with the offender without incurring the like penalty.
P. Certainly the offence for which this punishment was first ordained was some abominable crime, or extraordinary mischief.
L. So it was. For the Pope, you know, from long before the Conquest, encroached every day upon the power temporal. Whatsoever could be made to seem to be in ordine ad spiritualia, was in every commonwealth claimed and haled to the jurisdiction of the Pope; and for that end, in every country he had his court ecclesiastical, and there was scarce any cause temporal which he could not, by one shift or other, hook into his jurisdiction, in such sort as to have it tried in his own courts at Rome, or in France, or in England itself. By which means the King’s laws were not regarded, judgments given in the King’s courts were avoided, and presentations to bishoprics, abbeys, and other benefices, founded and endowed by the Kings and nobility of England, were bestowed by the Pope upon strangers, or such as with money in their purses could travel to Rome to provide themselves of such benefices. And suitably hereunto, when there was a question about a tithe, or a will, though the point were merely temporal, yet the Pope’s court here would fetch them in, or else one of the parties would appeal to Rome. Against these injuries of the Roman Church, and to maintain the right and dignity of the Crown of England, Edward III made a statute concerning provisors, that is, such as provide themselves with benefices here from Rome. For in the twenty-fifth year of his reign he ordained, in a full Parliament, that the right of election of bishops, and right of advowsons and presentations, belonged to himself, and to the nobility that were the founders of such bishoprics, abbeys, and other benefices. And he enacted further, that if any clerk which he or any of his subjects should present, should be disturbed by any such provisor, that such provisor or disturber should be attached by his body, and if convicted, lie in prison till he were ransomed at the King’s will, and had satisfied the party grieved, renounced his title, and found sureties not to sue for it any further; and that if they could not be found, then exigents should go forth to outlawry, and the profits of the benefice in the mean time be taken into the King’s hands. And the same statute is confirmed in the twenty-seventh year of King Edward III; which statute alloweth to these provisors two months to appear: but if they appear before they be outlawed, they shall be received to make answer; but if they render not themselves, they shall forfeit all their lands, goods, and chattels, besides that they stand outlawed. The same law is confirmed again by 16 Rich. II, c. 5; in which is added, because these provisors obtained sometimes from the Pope, that such English bishops, as according to the law were instituted and inducted by the King’s presentees, should be excommunicated, that for this also both they, and the receivers and publishers of such papal process, and the procurers, should have the same punishment.
P. Let me see the statute itself of 27 Edw. III.
L. It lies there before you, set down verbatim by Sir Edward Coke himself, both in English and French.
P. It is well. We are now to consider what it means, and whether it be well or ill interpreted by Sir Edward Coke. And first it appeareth by the preamble, which Sir Edward Coke acknowledgeth to be the best interpreter of the statute, that this statute was made against the encroachments only of the Church of Rome upon the right of the King, and other patrons, to collate bishoprics 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 procured the Pope to reverse a decree in chancery. Had he been within the danger of præmunire?
L. Yes, certainly. Or if the judgment had been given in the Court of the Lord Admiral, or in any other King’s 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 Edward Coke says, are all one.
P. Then the word common-law is not in this preamble restrained to such courts only where the trial is by juries, but comprehends all the King’s temporal courts, if not also the courts of those subjects that are lords of great manors.
L. It is very likely, yet I think it will not by every man be granted.
P. The statute also says, that they who draw men out of the realm in plea, whereof the cognizance pertaineth to the King’s court, or of things whereof judgment is given in the King’s court, are within the cases of præmunire. But what if one man draw another to Lambeth in plea, whereof judgment is already given at Westminster. Is he by this clause involved in a præmunire?
L. Yes. For though it be not out of the realm, yet it is within the meaning of the statute; because the Pope’s court, not the King’s court, was then perhaps at Lambeth.
P. But in Sir Edward Coke’s time the King’s court was at Lambeth, and not the Pope’s.
L. You know well enough that the spiritual Court has no power to hold pleas of common-law.
P. I do so; but I know not for what cause any simple man, that mistakes his right court, should be out of the King’s 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 Edward Coke’s 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 counsel at law. It is manifest, therefore, that the makers of the statute intended not to prohibit men from 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 King’s court”: what is the meaning of another court? Another court than what? Is it here meant the King’s Bench, or Court of Common Pleas? Does a præmunire lie for every man that sues in Chancery for that which might be remedied in the Court of Common Pleas? Or can a præmunire lie 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, either by this statute or by the statute of 16 Rich. II, upon the judges, which were then punishable only by the Pope’s authority. Seeing then the party suing has a just excuse upon the counsel of his lawyer, and the temporal judge and the lawyer both are out of the statute, the punishment of the præmunire can light upon nobody.
L. But Sir Edward Coke in this same chapter bringeth two precedents to prove, that though the spiritual courts in England be now the King’s courts, yet whosoever sueth in them for any thing triable by the common-law, shall fall into a præmunire. One is, that whereas in the twenty-second year of Hen. VIII all the clergy of England in a convocation by public instrument acknowledged the King to be supreme head of the Church of England; yet after this, viz. 24 Hen. VIII, this statute was in force.
P. Why not? A convocation of the clergy could not alter the right of supremacy; their courts were still the Pope’s courts. The other precedent, in the twenty-fifth year of Hen. VIII, 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 twenty-sixth 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 præmunire upon the Bishop of Norwich, neither doth this statute nor that other of Richard II warrant it. He was sentenced for threatening 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 twenty-sixth year of Henry VIII, there is no question but that for a suit in the spiritual court here in a temporal cause there lay a præmunire. And if perhaps some judge or other hath since that time judged otherwise, his judgment was erroneous.
L. Nay, but by the statute of 16 Rich. II. c. 5, it appeareth to the contrary, as Sir Edward Coke here will show you. The effect, saith he, of the statute of Richard II is, that if any pursue, or cause to be pursued, in the Court of Rome or elsewhere, anything which toucheth the King, against him, his crown, or regality, or his realm, they, their notaries, &c. shall be out of the King’s protection.
P. I pray you let me know the very words of the statute as they lie.
L. 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.
P. If a man bring a plea of common-law into the spiritual court, which is now the King’s 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 King’s court, is no pursuing of translations of bishoprics, made or procured 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 præmunire? 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 falsely, his submission to the King’s 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?
L. He says, they are called other courts, either because they proceed by the rules of other laws, as by the canon or civil law, or by other trials than the common-law doth warrant. For the trial warranted by the law of England for matter of fact, is by verdict of twelve 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 governed per aliam legem, or which draweth the party ad aliud examen. For if—
P. Stop there. Let us consider of this you have read: for the trial warranted by the law of England is by verdict of twelve men. What means he here by the law of England? Does it not warrant the trials in Chancery, and in the Court of Admiralty, by witnesses?
L. By the law of England he means the law used in the King’s Bench; that is to say, the common-law.
P. This is just as if he had said, that two courts did warrant their own way of trial; 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 trials are by twelve men, who are judges of the fact; and the fact known and proved, 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 præmunire for suing in a court, being not the King’s Court. The King’s Bench and Court of Common Pleas may also be different kinds of courts, because the process is different. But it is plain that this statute doth not distinguish courts otherwise than into the courts of the King, and into the courts of the foreign 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 trials at the common-law, and the trials in other courts? You know that in trials 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 or do, but after the fact is proved, to declare the law; which is not judgment, but jurisdiction. Again, though the trial be in Chancery, or in the Court of civil law, 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, lies 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, that is 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 præmunire.
L. 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 three mischiefs afore expressed 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.
P. 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 further. He nowhere 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 heresy 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 heresy. But Justice Stamford leaves it out, because, when heresy 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. It 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 served; as the favourites of Henry III, Edward II, Richard II, Henry VI; 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 Archbishop of Canterbury, and King Charles the First, by the rebels of that time. Empson and Dudley were no favourites of Henry the seventh, but spunges, which King Henry the eighth did well squeeze. Cardinal Wolsey was indeed for divers years a favourite of Henry the eighth, but fell into disgrace, not for flattering the King, but for not flattering him in the business of divorce from Queen Katherine. 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.
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 I suppose you are not of the opinion of the Stoics 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.
L. 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 determines it, then the judgment must be according to the statute; if it be not specified by the statute, then the custom 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.
P. But according to whose reason? If you mean the natural reason of this or that judge authorized by the King to have cognizance 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 custom. 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 reason of the supreme 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.
L. 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?
P. Why not? For I think that in this very difference between the rational faculties of particular men, lieth 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 defined 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 turned up, clubs are trumps. 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 sovereign 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 combined 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 man’s 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?
L. I will not contradict the canons of the Church of England, which acknowledge 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.
P. It is not the clergy that make 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 authorized them publicly 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 to blame; nay, I believe that they had been more within the statute of præmunire of 16 Rich. II, 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 show 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 King’s 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 King’s 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. VII, 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 do consult the King before he pronounce sentence of any irreparable damage 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 custom of punishing such and such a crime, in such and such a manner, hath not the force of law in itself, but from an assured presumption that the original of the custom 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 vigour, as being fresh in the memory of all men, and tacitly confirmed, because not disapproved, by the sovereign legislator. What can be said against this?
L. Sir Edward 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 custom; wherein he distinguisheth common-law both from statute-law and from custom.
P. 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 King’s 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 custom without reason. For if a custom be reasonable, then, both he and other learned lawyers say, it is common-law; and if unreasonable, no law at all.
L. I believe Sir Edward 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.
P. 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?
L. 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.
P. Seeing a judge ought to give judgment according to the law, and that this judgment is not appointed by any statute, how does Sir Edward Coke warrant it by reason, or how by custom?
L. Only thus: reason it is, that his body, lands, goods, posterity, &c. should be torn, pulled asunder, and destroyed, that intended to destroy the majesty of government.
P. See how he avoids the saying the majesty of the King. But does not this reason make as much for punishing a traitor, as Mettius Fuffetius in old time was executed by Tullus Hostilius, King of Rome, or as Ravaillac, not many years ago in France, who were torn in pieces by four horses, as it does for drawing, hanging, and quartering?
L. I think it does. But he confirms it also in the same chapter, by holy Scripture. Thus Joab for treason (1 Kings ii. 28), was drawn from the horns of the altar; that is proof for drawing upon a hurdle: Esth. ii. 22; Bigthan for treason was hanged; there is proof for hanging: Acts i. 18; Judas hanged himself and his bowels were poured out; there is for hanging and embowelling alive: 2 Sam. xviii. 14; Joab pierced Absalom’s heart; that is proof for pulling out a traitor’s heart: Sam. xx. 22; Sheba the son of Bichri had his head cut off; which is proof that a traitor’s head ought to be cut off: 2 Sam. iv. 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, Psalms cix. 9-15: 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.
P. Learnedly said; and no record is to be kept of the judgment. Also the punishments divided between those traitors, must be joined in one judgment for a traitor here.
L. He meant none of this, but intended (his hand being in) to show his reading, or his chaplain’s, in the Bible.
P. 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 merely upon the authority of the King. But this is certain, that no judge ought to give other judgment, than has been usually given and approved either by a statute, or by consent express or implied of the sovereign power. For otherwise it is not the judgment of the law, but of a man subject to the law.
L. In petit treason the judgment is, to be drawn to the place of execution, and hanged by the neck; or if it be a woman, to be drawn and burnt.
P. Can you imagine that this so nice a distinction can have any other foundation than the wit of a private man?
L. Sir Edward Coke upon this place says, that she ought not to be beheaded or hanged.
P. 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.
L. The judgment for felony is—
P. Heresy is before felony in the catalogue of the pleas of the Crown.
L. He has omitted the judgment against a heretic, because, I think, no jury can find heresy, nor no judge temporal did ever pronounce judgment upon it. For the statute of 2 Hen. V, c. 7, was, that the bishop having convicted any man of heresy, should deliver him to the sheriff, and that the sheriff should believe the bishop. The sheriff therefore was bound by the statute of 2 Hen. IV, after he was delivered to him, to burn him; but that statute being repealed, 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.
P. This is strange reasoning. When Sir Edward Coke knew and confessed, that the statutes upon which the writ de hæretico comburendo was grounded, were all repealed, how could he think the writ itself could be in force? Or that the statute, which repealeth the statutes for burning heretics, 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 Henry IV and Henry V, the word of the bishop was the sheriff’s warrant, and there was need of no such writ; nor could be till the 25 Hen. VIII, when those statutes were repealed, 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 latter end of the reign of Queen Elizabeth, was published a correct register of original and judicial writs, and the writ de hæretico comburendo left out; because that statute of 25 Hen. VIII, and all statutes against heretics, were repealed, and burning forbidden. And whereas he citeth for the granting of this writ, in the ninth year of James I, the Lord Chief Justice, the Lord Chief Baron, and two Justices of the Common-Pleas, it is, as to all but the Lord Chief Justice, 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.
L. The punishment for felony is, that the felon be hanged 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..
P. 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.
L. The King may do so, if he please: and Sir Edward Coke tells you how he altered particular judgments in case of felony, and showeth that judgment being given upon a lord in Parliament, that he should be hanged, he was nevertheless beheaded; and that another lord had the like judgment for another felony, and was not hanged but beheaded: and withal he shows 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.
P. Perhaps there might be inconveniency in it; but it is more than I see, or he shows, 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 inconveniences 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?
L. For the death of a man by misfortune, there is, he saith, no express judgment, nor for killing a man in one’s 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.
P. If we consider what Sir Edward Coke saith (1 Inst. sec. 745), at the word felony, these judgments are very favourable; for there he saith, that killing 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 petite 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 Hen. III, c. 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 later statute.
L. There is no such later statute, nor is it to say in commission; nor can a commission, or anything but another statute, make a thing felony that was not so before.
P. 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 chattels, 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 damage. 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 called the law of reason, if the case be mere misfortune. If a man be upon his appletree to gather his apples, and by ill-fortune fall down, and lighting on the head of another man, kill him, and by good fortune save 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 will say, have looked to his feet; that is true; but so should he, that was under, have looked 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.
L. In this case I agree with you.
P. But this case is the true case of mere misfortune, and a sufficient reprehension of the opinion of Sir Edward Coke.
L. But what if this had happened to be done by one, that had been stealing apples upon the tree of another man? Then, as Sir Edward Coke says (3 Inst. p. 56), it had been murder.
P. 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 itself 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 man’s 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?
L. 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.
P. 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.
L. But for the killing of a man se defendendo, the jury, as Sir Edward 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.
P. One would think so; for it is not often within the capacity of a jury, to distinguish the signification of the different 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 anything else besides the special matter found, which, according as it is contrary or not contrary to the statute, ought to be pronounced.
L. 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 chattels, debts and duties, to the King.
P. 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 Edward Coke saith, that in the judgment of hanging, the judgment of forfeiture is implied, 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 implied 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 show me any reason for it?
L. The reason lies in the custom.
P. 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?
L. Then see the statute of 24 Hen. VIII, c. 5.
P. 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 highway, courtway, horseway, or footway, or in his mansion, messuage, or dwelling place; whether for the death of such a man one shall forfeit his goods and chattels, 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 Edward 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 tried, he shall not forfeit anything, 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. First, 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 were 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 highway. 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?
L. But the statute says the attempt must be felonious.
P. When a man assaults me with a knife, sword, club, or other mortal weapon, does any law forbid me to defend myself, 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 country 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 Edward 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 seized, 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 Edward 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.
L. There be some cases wherein a man, though by the jury he be found not guilty, shall nevertheless forfeit his goods and chattels 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 tried 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 tried; 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 itself authoriseth the sheriff to seize them to the use of the King.
P. I see no reason (which is common-law) for it, and am sure it is grounded upon no statute.
L. See Sir Edward Coke, 1 Inst. s. 709, and read.
P. “If a man that is innocent be accused 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 chattels, 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 præsumptioni, 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 expressly made an exception by some statute, and to a general rule of equity there can be no exception at all.