Chapter IV: Front Matter (4)

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

_P._ You may hereby be assured, that either the King and Parliament were very much overseen in choosing such officers perpetually for the time being to be judges in a trial at the common-law, or else that Sir Edward Coke presumes too much to appropriate all the judicature, both in law and equity, to the common lawyers; as if neither lay persons, men of honour, nor any of the Lords spiritual who are the most versed in the examination of equity and cases of conscience, when they hear the statutes read and pleaded, were fit to judge of the intention and meaning of the same. I know that neither such great persons, nor bishops, have ordinarily so much spare time from their ordinary employment, as to be so skilful as to plead causes at the bar; but certainly they are, especially the bishops, the best able to judge of matters of reason, that is to say (by Sir Edward Coke’s confession) of matters, except of blood, at the common-law.

_L._ Another sort of felony, though without manslaughter, is robbery; and by Sir Edward Coke (_3 Inst. p. 68_), defined thus: Robbery by the common-law is a felony committed by a violent assault upon the person of another, by putting him in fear, and taking away from him his money, or other goods of any value whatsoever.

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

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

_P._ Why so?

_L._ Sir Edward Coke tells you the reason of it (_3 Inst. p. 107_). For he defineth theft to be, by the common-law, a felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, not from the person, nor by night in the house of the owner. From this definition, he argues thus, p. 109: Any kind of corn or grain, growing upon the ground, is a personal chattel, and the executors of the owner shall have them, though they be not severed; but yet no larceny can be committed of them, because they are annexed to the realty; so it is of grass standing on the ground, or of apples, or of any fruit upon the trees, &c.; so it is of a box or chest of charters, no larceny can be committed of them, because the charters concern the realty, and the box or chest though it be of great value, yet shall it be of the same nature the charters are of; _et omne magis dignum trahit ad se minus_.

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

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

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

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

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

_L._ Two other great felonies are, breaking and burning of houses; neither of which are defined by any statute. The former of them is by Sir Edward Coke (_3 Inst. p. 63_), defined thus:—Burglary is by the common-law, the breaking and entering into the mansion-house of another, in the night, with intent to kill some reasonable creature, or to commit some other felony within the same, whether his intent be executed or not. And he defineth night to be then, when one man cannot know another’s face by daylight. And for the parts of a mansion-house, he reckoneth all houses that belong to house-keeping, as barns, stables, dairyhouses, buttery, kitchen, chambers, &c. But breaking of a house by day, though felony, and punished as burglary, is not within the statute.

_P._ I have nothing to say against his interpretations here; but I like not that any private man should presume to determine, whether such or such a fact done be within the words of a statute or not, where it belongs only to a jury of twelve men to declare in their verdict, whether the fact laid open before them, be burglary, robbery, theft, or other felony. For this is to give a leading judgment to the jury, who ought not to consider any private lawyer’s institutes, but the statutes themselves pleaded before them for directions.

_L._ Burning, as he defines it (ibid. p. 66), is a felony at the common-law, committed by any that maliciously and voluntarily, in the night or day, burneth the house of an other. And he hereupon infers, if a man set fire to the house, and it takes not, that then it is not within the statute.

_P._ If a man should secretly and maliciously lay a quantity of gunpowder under another man’s house, sufficient to blow it up, and set a train of powder in it, and set fire to the train, and some accident hinder the effect, is not this burning? Or what is it? What crime? It is neither treason, nor murder, nor burglary, nor robbery, nor theft, nor (no damage being made) any trespass, nor contrary to any statute. And yet, seeing the common-law is the law of reason, it is a sin, and such a sin as a man may be accused of, and convicted; and consequently a crime committed of malice prepensed. Shall he not then be punished for the attempt? I grant you that a judge has no warrant from any statute-law, common-law, or commission, to appoint the punishment; but surely the King has power to punish him, on this side of life or member, as he please; and with the assent of Parliament, if not without, to make the crime for the future capital.

_L._ I know not. Besides these crimes, there is conjuration, witchcraft, sorcery and enchantment; which are capital by the statute _1 James, c. 12_.

_P._ But I desire not to discourse of that subject. For though without doubt there is some great wickedness signified by those crimes; yet I have ever found myself too dull to conceive the nature of them, or how the devil hath power to do many things which witches have been accused of. Let us now come to crimes not capital.

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

_P._ Let us defer it till the afternoon.

[Sidenote: Of heresy.]

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

_P._ The principal thing to be considered, which is the heresy itself, he leaveth out, viz. what it is; in what fact or words it consisteth; what law it violateth, statute-law or the law of reason. The 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 heretic 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.

[Sidenote: Of premunire.]

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

_P._ You have need to expound this.

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

_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._