Chapter III: Front Matter (3)

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

_P._ Is the deposition of witnesses any more or less, than evidence to the Lord Chancellor? It 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 deceived, what harm is there to any man, or to the state, if there be a subordination of judges in equity, as well as of judges in common-law? Seeing it is provided by an Act of Parliament, to avoid vexation, that _subpœnas_ shall not be granted till surety be found to satisfy the party so grieved and vexed for his damages and expenses, if so be the matter may not be made good which is contained in the bill.

_L._ There is another statute of 31 _Hen. VI._ c. 2, wherein there is a proviso cited by Sir Edward Coke in these words: “_Provided that no matter determinable by the laws of the realm, shall be by the said Act determined in other form, than after the course of the same law in the King’s Courts, having the determination of the same law_.”

_P._ This law was made but for seven years, and never continued by any other Parliament, and the motive of this law was the great riots, extortions, oppressions, &c. used during the time of the insurrection of John Cade, and the indictments and condemnations wrongfully had by this usurped authority. And thereupon the Parliament ordained, that for seven years following no man should disobey any of the King’s writs under the Great Seal, or should refuse to appear upon proclamation before the King’s Council, or in the Chancery, to answer to riots, extortions, &c.; for the first time he should lose, &c. Wherein there is nothing at all concerning the jurisdiction of the Chancery or any other court, but an extraordinary power given to the Chancery, and to the King’s Privy Council, to determine of those crimes, which were not before that time triable but only by the King’s Bench or special commission. For the Act was made expressly for the punishment of a great multitude of crimes committed by those who had acted under the said Cade’s authority; to which Act the proviso was added which is here mentioned, that the proceedings in those Courts of Chancery, and of the King’s Council, should be such as should be used in the courts, to which the said causes, before this Act was made, do belong: that is to say, such causes as were criminal, should be after the order of the King’s Bench; and such causes as were not criminal, but only against equity, should be tried after the manner of the Chancery, or in some cases according to the proceedings in the Exchequer. I wonder why Sir Edward Coke should cite a statute, as this is, above two hundred years before expired, and other two petitions, as if they were statutes, when they were not passed by the King; unless he did it on purpose to diminish, as he endeavours to do throughout his Institutes, the King’s authority, or to insinuate his own opinions among the people for the law of the land; for that also he endeavours by inserting Latin sentences, both in his text and in the margin, as if they were principles of the law of reason, without any authority of ancient lawyers, or any certainty of reason in themselves, to make men believe they are the very grounds of the law of England. Now as to the authority you ascribe to custom, I deny that any custom of its own nature can amount to the authority of a law. For if the custom be unreasonable, you must, with all other lawyers, confess that it is no law, but ought to abolished; and if the custom be reasonable, it is not the custom, but the equity that makes it law. For what need is there to make reason law by any custom how long soever, when the law of reason is eternal? Besides, you cannot find it in any statute, though _lex et consuetudo_ be often mentioned as things to be followed by the judges in their judgments, that _consuetudines_, that is to say, customs or usages, did imply any long continuance of former time; but that it signified such use and custom of proceeding, as was then immediately in being before the making of such statute. Nor shall you find in any statute the word common-law, which may not be there well interpreted for any of the laws of England temporal; for it is not the singularity of process used in any court that can distinguish it, so as to make it a different law from the law of the whole nation.

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

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

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

_P._ I cry you mercy, I smelt not that.

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

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

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

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

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

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

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

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

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

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

_L._ The counsel inform the judges.

_P._ Why may they not as well inform the Chancellor? Unless you will say, that a bishop understands not as well as a lawyer what is sense, when he hears it read in English. No, no; both the one and the other are able enough: but to be able enough is not enough, when not the difficulty of the case only, but also the passion of the judge is to be conquered. I forgot to tell you of the statute of 36 _Edw.III_, c. 9, that if any person thinking himself grieved contrary to any of the articles above-written, or others contained in divers statutes, will come to the Chancery, or any for him, and thereof make his complaint, he shall presently there have remedy by force of the said articles and statutes, without elsewhere pursuing to have remedy. By the words of this statute it is very apparent, in my opinion, that the Chancery may hold plea upon the complaint of the party grieved, in any case triable at the common-law; because the party shall have present remedy in that court, by force of this Act, without pursuing for remedy elsewhere.

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

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

_L._ Then there is the Court of——

_P._ Let us stop here; for this which you have said satisfies me, that seek no more than to distinguish between justice and equity; and from it I conclude, that justice fulfils the law, and equity interprets the law, and amends the judgments given upon the same law. Wherein I depart not much from the definition of equity cited in Sir Edward Coke (1 _Inst._ sec. xxi.); _viz._ equity is a certain perfect reason, that interpreteth and amendeth the law written; though I construe it a little otherwise than he would have done; for no one can mend a law but he that can make it, and therefore I say it amends not the law, but the judgments only when they are erroneous. And now let us consider of crimes in particular, the pleas whereof are commonly called the Pleas of the Crown, and of the punishments belonging to them. And first of the highest crime of all, which is high-treason. Tell me, what is high-treason?

[Sidenote: Of crimes capital.]

_L._ The first statute that declareth what is high-treason, is the statute of the 25 _Edw. III_, in these words: “Whereas divers opinions have been before this time, in what case treason shall be said, and in what not; the King, at the request of the Lords and of the Commons, hath made declaration in the manner as hereafter follows: that is to say, when a man doth compass or imagine the death of our Lord the King, of our Lady the Queen, or of their eldest son and heir; or if a man doth violate the King’s companion, or the King’s eldest daughter unmarried, or the wife of the King’s eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm or elsewhere; and thereof be provably attainted by open deed by people of their condition: and if a man counterfeit the King’s Great or Privy Seal, or his money: and if a man bring false money into this realm counterfeit to the money of England, as the money called Lushburgh, or other like to the said money of England, knowing the money to be false, to merchandize, and make payment in deceit of our said Lord the King, and of his people: and if a man slay the Chancellor, Treasurer, or the King’s Justices of one Bench or the other, Justices in Eyre, or Justices of Assizes, and all other justices assigned to hear and determine, being in their places and doing their offices. And is to be understood in the cases above rehearsed, that that ought to be adjudged treason, which extends to our royal Lord the King, and his royal Majesty; and of such treason the forfeiture of the escheats pertains to our Lord the King, as well the lands and tenements holden of others, as himself. And moreover there is another manner of treason; that is to say, when a servant slayeth his master, or a wife her husband; or when a man, secular or religious, slayeth his prelate, to whom he oweth faith and obedience; and of such treason the escheats ought to pertain to every Lord of his own fee. And because many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any case supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without giving any judgment of the treason, till the cause be showed and declared before the King and his Parliament, whether it ought to be adjudged treason or other felony.”

_P._ I desired to understand what treason is, wherein no enumeration of facts can give me satisfaction. Treason is a crime of itself, _malum in se_, and therefore a crime at the common-law; and high-treason the highest crime at the common-law that can be. And therefore not the statute only, but reason without a statute makes it a crime. And this appears by the preamble, where it is intimated, that all men, though of divers opinions, did condemn it by the name of treason, though they knew not what treason meant, but were forced to request the King to determine it. That which I desire to know is, how treason might have been defined without the statute, by a man that has no other faculty to make the definition of it, than by mere natural reason.

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

_P._ 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 foreign 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 King’s wife, or to violate her chastity, as also to violate the chastity of the King’s heir-apparent, or of his eldest daughter unmarried, as tending to the destruction of the certainty of the King’s issue, and by consequence to the 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 King’s enemies, either within or without the realm, are tending to the King’s 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 soldier design the killing of his general or other officer in time of battle, 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 King’s person, he had made him incapable of defending his people, and it was therefore high-treason before the statute. 7. If any man had, with design to raise rebellion against the King, by words written or advisedly uttered, denied the King regnant to be their lawful King, he that wrote, preached, or spoke such words, living then under the protection of the King’s 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 determined 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, it is a return to hostility by treachery; and consequently, such as are traitors 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.

_L._ Whether this you say be true or false, the law is now unquestionable, by a statute made in the 1st and 2nd years of _Queen Mary_, whereby there is nothing to be esteemed treason, besides those few offences specially mentioned in the act of 25 _Edward III_.

_P._ Amongst these great crimes the greatest is that which is committed by one that has been trusted and loved by him whose death he so designeth: for a man cannot well take heed of those whom he thinks he hath obliged, whereas an open enemy gives a man warning before he acteth. And this it is for which the statute hath declared, that it is another kind of treason, when a servant killeth his master or mistress, or a wife killeth her husband, or a clerk killeth his prelate. And I should think it petty treason also, though it be not within the words of the statute, when a tenant in fee, that holdeth by homage and fealty, shall kill the lord of his fee; for fealty is an oath of allegiance to the lord of the fee; saving he may not keep 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. II_, is the greatest submission that is possible to be made to one man by another. For the tenant shall hold his hands together between the hands of his landlord, and shall say thus; I become your man from this day forth for life, for member, and for worldly honour, and shall owe that my faith for the lands that I shall hold of you, saving the faith that I owe unto our Sovereign Lord the King, and to many other lords. Which homage, if made to the King, is equivalent to a promise of simple obedience, and if made to another lord, there is nothing excepted but the allegiance to the King; and that which is called fealty, is but the same confirmed by an oath.

_L._ But Sir Edward Coke, (4 _Inst._ p. 11), denies that a traitor is in legal understanding the King’s enemy. For enemies, saith he, be those that be out of the allegiance of the King. And his reason is, because, if a subject join with a foreign enemy, and come into England with him, and be taken prisoner here, he shall not be ransomed, or proceeded with as an enemy shall, but he shall be taken as a traitor to the King. Whereas an enemy coming in open hostility, and taken, shall either be executed by martial law, or ransomed; for he cannot be indicted of treason, for that he never was in the protection and ligeance of the King; and the indictment of the treason saith, _contra ligeantiam suam debitam_.

_P._ This is not an argument worthy of the meanest lawyer. Did Sir Edward Coke think it impossible for a King lawfully to kill a man, by what 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 signify? William the Conqueror subdued this kingdom; some he killed; some upon promise of future obedience he took to mercy, and they became his subjects, and swore allegiance to him. If therefore they renew the war against him, are they not again open enemies? Or if any of them lurking under his laws, seek occasion thereby to kill him secretly, and come to be known, may he not be proceeded against as an enemy, who, though he had not committed what he designed, yet had certainly a hostile design? Did not the Long Parliament declare all those for enemies to the state, that opposed their proceedings against the late King? But Sir Edward Coke does seldom 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 traitor. But now let us come to his comment upon this statute. The statute says (as it is printed in English) when a man doth compass, or imagine, the death of our Lord the King, &c. What is the meaning of the word compassing, or imagining?

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

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

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

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

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

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

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

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

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

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

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

_P._ This I consent to.

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

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

_L._ Sir Edward Coke derives the word felony from the Latin word _fel_, the gall of a living creature; and accordingly defines felony to be an act done _animo felleo_; that is to say, a bitter, a cruel act.

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

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

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

_L._ Of felonies, the greatest crime is murder.

_P._ And what is murder?

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

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

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

_P._ And so think I.

_L._ But Sir Edward Coke denies it to be so at this day. For (_1 Inst. sec. 745_) at the word felony, he saith, that in ancient time this word _felony_ was of so large an extent, as that it included high-treason; but afterwards it was resolved, that in the King’s pardon or charter, this word _felony_ should extend only to common felonies; and at this day, under the word felony, by law is included petite treason, murder, homicide, burning of houses, burglary, robbery, rape, &c. chance medley, _se defendendo_, and petite larceny.

_P._ He says it was resolved: but by whom?

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

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

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

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

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

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

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

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

_L._ A third kind of homicide is when a man kills another, either by misfortune, or in the necessary defence of himself, or of the King, or of his laws; for such killing is neither felony nor crime, saving, as Sir Edward Coke says (_3 Inst. p. 56_), that if the act that a man is doing, when he kills another man, be unlawful, then it is murder. As, if A meaning 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.

_P._ This is not so distinguished by any statute, but is the _common-law_ only of Sir Edward Coke. I believe not a word of it. If a boy be robbing an appletree, and falleth thence upon a man that stands under it and breaks his neck, but by the same chance saveth his own life, Sir Edward Coke, it seems, will have him hanged for it, as if he had fallen of prepensed malice. All that can be called crime in this business is but a simple trespass, to the damage perhaps of sixpence or a shilling. I confess the trespass was an offence against the law, but the falling was none, nor was it by the trespass but by the falling that the man was slain; and as he ought to be quit of the killing, so he ought to make restitution for the trespass. But I believe the cause of Sir Edward Coke’s mistake was his not well understanding of Bracton, whom he cites in the margin. For, fol. 120 b. lib. iii. cap. 4, he saith thus: _Sed hic erit distinguendum, utrum quis dederit operam rei licitæ, vel illicitæ; si illicitæ, ut si lapidem projiciebat quis versus locum per quem consueverunt homines transitum facere, vel dum insequitur quis equum vel bovem, et aliquis a bove vel equo percussus fuerit, et hujusmodi, hoc imputatur ei_. That is: But here we are to distinguish whether a man be upon a lawful or unlawful business; if an unlawful, as he that throws a stone into a place where men use to pass; or if he chase a horse or an ox, and thereby the man be stricken by the 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 somebody or other, and he cared not whom, which is worse than to design the death of a certain adversary, which nevertheless is murder. Also, on the contrary, though the business a man is doing be lawful, and it chanceth sometimes that a man be slain thereby, yet may such killing be felony. For if a carman drive his cart through Cheapside in a throng of people, and thereby he kill a man, though he bare him no malice, yet because he saw there was very great danger, it may reasonably be inferred, that he meant to adventure the killing of somebody or other, though not of him that was killed.

_L._ He is a felon also that killeth himself voluntarily, and is called, not only by common lawyers, but also in divers statute laws, _felo de se_.

_P._ And it is well so; for names imposed by statutes are equivalent to definitions. But I conceive not how any man can bear _animum felleum_, or so much malice towards himself, as to hurt himself voluntarily, much less to kill himself. For naturally and necessarily the intention of every man aimeth at somewhat which is good to himself, and tendeth to his preservation. And therefore, methinks, if he kill himself, it is to be presumed that he is not _compos mentis_, but by some inward torment or apprehension of somewhat worse than death, distracted.

_L._ Nay, unless he be _compos mentis_, he is not _felo de se_, as Sir Edward Coke saith, _3 Inst. p. 54_; and therefore he cannot be judged a _felo de se_, unless it be first proved he was _compos mentis_.

_P._ How can that be proved of a man dead; especially if it cannot be proved by any witness, that a little before his death he spake as other men used to do? This is a hard place; and before you take it for common-law, it had need to be cleared.

_L._ I will think on it. There is a statute of _3 Hen. VII, c. 14_, which makes it felony in any of the King’s household servants, under the degree of a Lord, to compass the death of any of the King’s Privy Council. The words are these: That from henceforth the steward, treasurer, and comptroller of the King’s house for the time being, or one of them, have full authority and power, to inquire by twelve staid men and discreet persons of the chequer-roll of the King’s honourable household, if any servant, admitted to be his servant sworn, and his name put into the chequer-roll, whatsoever he be, serving in any manner, office, or room, reputed, had, or taken under the estate of a Lord, make any confederacies, compassings, conspiracies, or imaginations with any person, to destroy or murder the King, or any Lord of this realm, or any other person sworn of the King’s council, steward, treasurer, or comptroller of the King’s house. And if such misdoers shall be found guilty by confession, or otherwise, that the said offence shall be judged felony.

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

_L._ No; Sir Edward Coke upon these words, _any Lord of this realm, or other person sworn of the King’s council_, infers (_3 Inst. p. 38_), that it is to be understood of such a Lord only as is a privy-councillor.

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