Chapter V: Front Matter (5)

_P._ That is to say, of the law of reason. From hence it follows, that where there are no juries, and where there are different laws from ours, that is to say, in all the world besides, neither King nor people have any inheritance, nor goods, nor any law of reason. I will examine his doctrine concerning cases criminal no further. He nowhere defineth a crime, that we may know what it is: an odious name sufficeth him to make a crime of any thing. He hath put heresy among the most odious crimes, not knowing what it signifies; and upon no other cause, but because the Church of Rome, to make their usurped power the more terrible, had made it, by long preaching against it, and cruelty shown towards many godly and learned men of this and other reformed Churches, appear to common people a thing detestable. He puts it in as a plea of the crown in the time of Queen Elizabeth; whereas in her time there was no doctrine heresy. But Justice Stamford leaves it out, because, when heresy was a crime, it was a plea of the _mitre_. I see also in this catalogue of causes criminal, he inserteth costly feeding, costly apparel, and costly building, though they were contrary to no statute. It is true, that by evil circumstances they become sins; but these sins belong to the judgment of the pastors spiritual. A justice of the temporal law (seeing the intention only makes them sins) cannot judge whether they be sins or no, unless he have power to take confessions. Also he makes flattery of the King to be a crime. How could he know when one man had flattered another? He meant therefore that it was a crime to please the King: and accordingly he citeth divers calamities of such as had been in times past in great favour of the Kings they served; as the favourites of Henry III, Edward II, Richard II, Henry VI; which favourites were some imprisoned, some banished, and some put to death by the same rebels that imprisoned, banished, and put to death the same King, upon no better ground than the Earl of Strafford, the Archbishop of Canterbury, and King Charles the First, by the rebels of that time. Empson and Dudley were no favourites of Henry the seventh, but spunges, which King Henry the eighth did well squeeze. Cardinal Wolsey was indeed for divers years a favourite of Henry the eighth, but fell into disgrace, not for flattering the King, but for not flattering him in the business of divorce from Queen Katherine. You see his reasoning here; see also his passion in the words following: we will for some causes descend no lower: _Qui eorum vestigiis insistunt, eorum exitus perhorrescant._ This is put in for the favourite, that then was, of King James. But let us give over this, and speak of the legal punishments to these crimes belonging.

[Sidenote: Of punishments.]

And in the first place I desire to know who it is that hath the power, for an offence committed, to define and appoint the special manner of punishment. For I suppose you are not of the opinion of the Stoics in old time, that all faults are equal, and that there ought to be the same punishment for killing a man, and for killing a hen.

_L._ The manner of punishment in all crimes whatsoever, is to be determined by the common-law. That is to say, if it be a statute that determines it, then the judgment must be according to the statute; if it be not specified by the statute, then the custom in such cases is to be followed: but if the case be new, I know not why the judge may not determine it according to reason.

_P._ But according to whose reason? If you mean the natural reason of this or that judge authorized by the King to have cognizance of the cause, there being as many several reasons, as there are several men, the punishment of all crimes will be uncertain, and none of them ever grow up to make a custom. Therefore a punishment certain can never be assigned, if it have its beginning from the natural reasons of deputed judges; no, nor from the natural reason of the supreme judge. For if the law of reason did determine punishments, then for the same offences there should be, through all the world and in all times, the same punishments; because the law of reason is immutable and eternal.

_L._ If the natural reason neither of the King, nor of any else, be able to prescribe a punishment, how can there be any lawful punishment at all?

_P._ Why not? For I think that in this very difference between the rational faculties of particular men, lieth the true and perfect reason that maketh every punishment certain. For, but give the authority of defining punishments to any man whatsoever, and let that man define them, and right reason has defined them, suppose the definition be both made, and made known before the offence committed. For such authority is to trump in card playing, save that in matter of government, when nothing else is turned up, clubs are trumps. Therefore seeing every man knoweth by his own reason what actions are against the law of reason, and knoweth what punishments are by this authority for every evil action ordained; it is manifest reason, that for breaking the known laws he should suffer the known punishments. Now the person to whom this authority of defining punishments is given, can be no other, in any place of the world, but the same person that hath the sovereign power, be it one man or one assembly of men. For it were in vain to give it to any person that had not the power of the militia to cause it to be executed; for no less power can do it, when many offenders be united and combined to defend one another. There was a case put to King David by Nathan, of a rich man that had many sheep, and of a poor man that had but one, which was a tame lamb: the rich man had a stranger in his house, for whose entertainment, to spare his own sheep he took away the poor man’s lamb. Upon this case the King gave judgment, “Surely the man that hath done this shall die.” What think you of this? Was it a royal, or tyrannical judgment?

_L._ I will not contradict the canons of the Church of England, which acknowledge the King of England within his own dominions hath the same rights, which the good Kings of Israel had in theirs; nor deny King David to have been one of those good Kings. But to punish with death without a precedent law, will seem but a harsh proceeding with us, who unwillingly hear of arbitrary laws, much less of arbitrary punishments, unless we were sure that all our Kings would be as good as David. I will only ask you, by what authority the clergy may take upon them to determine or make a canon concerning the power of their own King, or to distinguish between the right of a good and an evil King.

_P._ It is not the clergy that make their canons to be law, but it is the King that doth it by the great seal of England; and it is the King that giveth them power to teach their doctrines, in that, that he authorized them publicly to teach and preach the doctrine of Christ and his apostles, according to the Scriptures, wherein this doctrine is perspicuously contained. But if they had derogated from the royal power in any of their doctrines published, then certainly they had been to blame; nay, I believe that they had been more within the statute of præmunire of 16 _Rich. II_, _c._ 5, than any judge of a Court of Equity for holding pleas of common-law. I cite not this precedent of King David, as approving the breach of the great charter, or justifying the punishment with loss of life or member, of every man that shall offend the King; but to show you that before the charter was granted, in all cases where the punishments were not prescribed, it was the King only that could prescribe them; and that no deputed judge could punish an offender but by force of some statute, or by the words of some commission, and not _ex officio_. They might for a contempt of their courts, because it is a contempt of the King, imprison a man during the King’s pleasure, or fine him to the King according to the greatness of the offence: but all this amounteth to no more, than to leave him to the King’s judgment. As for cutting off of ears, and for the pillory, and the like corporal punishments usually inflicted heretofore in the Star-chamber, they were warranted by the statute of _Hen. VII_, that giveth them power to punish sometimes by discretion. And generally it is a rule of reason, that every judge of crimes, in case the positive law appoint no punishment, and he have no other command from the King, then do consult the King before he pronounce sentence of any irreparable damage on the offender: for otherwise he doth not pronounce the law, which is his office to do, but makes the law, which is the office of the King. And from this you may collect, that the custom of punishing such and such a crime, in such and such a manner, hath not the force of law in itself, but from an assured presumption that the original of the custom was the judgment of some former King. And for this cause the judges ought not to run up, for the customs by which they are warranted, to the time of the Saxon Kings, nor to the time of the Conquest. For the most immediate antecedent precedents are the fairest warrants of their judgments; as the most recent laws have commonly the greatest vigour, as being fresh in the memory of all men, and tacitly confirmed, because not disapproved, by the sovereign legislator. What can be said against this?

_L._ Sir Edward Coke, (3 _Inst._ _p._ 210), in the chapter of judgments and executions, saith, that of judgments some are by the common-law, some by statute-law, and some by custom; wherein he distinguisheth common-law both from statute-law and from custom.

_P._ But you know, that in other places he makes the common-law, and the law of reason, to be all one; as indeed they are, when by it is meant the King’s reason. And then his meaning in this distinction must be, that there be judgments by reason without statute-law, and judgments neither by statute-law nor by reason, but by custom without reason. For if a custom be reasonable, then, both he and other learned lawyers say, it is common-law; and if unreasonable, no law at all.

_L._ I believe Sir Edward Coke’s meaning was no other than yours in this point, but that he inserted the word _custom_, because there be not many that can distinguish between customs reasonable and unreasonable.

_P._ But custom, so far forth as it hath the force of a law, hath more of the nature of a statute, than of the law of reason, especially where the question is not of lands and goods, but of punishments, which are to be defined only by authority. Now to come to particulars, what punishment is due by law for high-treason?

_L._ To be drawn upon a hurdle from the prison to the gallows, and there to be hanged by the neck, and laid upon the ground alive, and have his bowels taken out and burnt whilst he is yet living; to have his head cut off, his body to be divided into four parts, and his head and quarters to be placed as the King shall assign.

_P._ Seeing a judge ought to give judgment according to the law, and that this judgment is not appointed by any statute, how does Sir Edward Coke warrant it by reason, or how by custom?

_L._ Only thus: reason it is, that his body, lands, goods, posterity, &c. should be torn, pulled asunder, and destroyed, that intended to destroy the majesty of government.

_P._ See how he avoids the saying the majesty of the King. But does not this reason make as much for punishing a traitor, as Mettius Fuffetius in old time was executed by Tullus Hostilius, King of Rome, or as Ravaillac, not many years ago in France, who were torn in pieces by four horses, as it does for drawing, hanging, and quartering?

_L._ I think it does. But he confirms it also in the same chapter, by holy Scripture. Thus Joab for treason (1 _Kings_ ii. 28), was drawn from the horns of the altar; that is proof for drawing upon a hurdle: _Esth._ ii. 22; Bigthan for treason was hanged; there is proof for hanging: _Acts_ i. 18; Judas hanged himself and his bowels were poured out; there is for hanging and embowelling alive: 2 _Sam._ xviii. 14; Joab pierced Absalom’s heart; that is proof for pulling out a traitor’s heart: _Sam._ xx. 22; Sheba the son of Bichri had his head cut off; which is proof that a traitor’s head ought to be cut off: 2 _Sam._ iv. 12; they slew Baanah and Rechab, and hung up their heads over the pool of Hebron; this is for setting up of quarters: and lastly for forfeiture of lands, and goods, _Psalms_ cix. 9-15: _Let their children be driven out, and beg, and other men make spoil of their labours, and let their memory be blotted out of the land._

_P._ Learnedly said; and no record is to be kept of the judgment. Also the punishments divided between those traitors, must be joined in one judgment for a traitor here.

_L._ He meant none of this, but intended (his hand being in) to show his reading, or his chaplain’s, in the Bible.

_P._ Seeing then for the specifying of the punishment in case of treason, he brings no argument from natural reason, that is to say, from the common-law; and that it is manifest that it is not the general custom of the land, the same being rarely or never executed upon any peer of the realm, and that the King may remit the whole penalty, if he will: it follows, that the specifying of the punishment depends merely upon the authority of the King. But this is certain, that no judge ought to give other judgment, than has been usually given and approved either by a statute, or by consent express or implied of the sovereign power. For otherwise it is not the judgment of the law, but of a man subject to the law.

_L._ In petit treason the judgment is, to be drawn to the place of execution, and hanged by the neck; or if it be a woman, to be drawn and burnt.

_P._ Can you imagine that this so nice a distinction can have any other foundation than the wit of a private man?

_L._ Sir Edward Coke upon this place says, that she ought not to be beheaded or hanged.

_P._ No, not by the judge, who ought to give no other judgment than the statute or the King appoints; nor the sheriff to make other execution than the judge pronounceth; unless he have a special warrant from the King. And this I should have thought he had meant, had he not said before, that the King had given away all his right of judicature to his courts of justice.

_L._ The judgment for felony is—

_P._ Heresy is before felony in the catalogue of the pleas of the Crown.

_L._ He has omitted the judgment against a heretic, because, I think, no jury can find heresy, nor no judge temporal did ever pronounce judgment upon it. For the statute of 2 _Hen. V_, _c._ 7, was, that the bishop having convicted any man of heresy, should deliver him to the sheriff, and that the sheriff should believe the bishop. The sheriff therefore was bound by the statute of 2 _Hen. IV_, after he was delivered to him, to burn him; but that statute being repealed, the sheriff could not burn him, without a writ _de heretico comburendo_, and therefore the sheriff burnt Legat (9 King James) by that writ, which was granted by the judges of the common-law at that time, and in that writ the judgment is expressed.

_P._ This is strange reasoning. When Sir Edward Coke knew and confessed, that the statutes upon which the writ _de hæretico comburendo_ was grounded, were all repealed, how could he think the writ itself could be in force? Or that the statute, which repealeth the statutes for burning heretics, was not made with an intent to forbid such burning? It is manifest he understood not his books of common-law. For in the time of Henry IV and Henry V, the word of the bishop was the sheriff’s warrant, and there was need of no such writ; nor could be till the 25 _Hen. VIII_, when those statutes were repealed, and a writ made for that purpose and put into the register, which writ Fitzherbert cites in the end of his <cite lang="la">Natura Brevium_. Again, in the latter end of the reign of Queen Elizabeth, was published a correct register of original and judicial writs, and the writ _de hæretico comburendo_ left out; because that statute of 25 _Hen. VIII_, and all statutes against heretics, were repealed, and burning forbidden. And whereas he citeth for the granting of this writ, in the ninth year of James I, the Lord Chief Justice, the Lord Chief Baron, and two Justices of the Common-Pleas, it is, as to all but the Lord Chief Justice, against the law. For neither the judges of Common-Pleas, nor of the Exchequer, can hold pleas of the Crown without special commission; and if they cannot hold plea, they cannot condemn.

_L._ The punishment for felony is, that the felon be hanged by the neck till he be dead. And to prove that it ought to be so, he cites a sentence, from whence I know not, _Quod non licet felonem pro felonia decollare._.

_P._ It is not indeed lawful for the sheriff of his own head to do it, or to do otherwise than is commanded in the judgment, nor for the judge to give any other judgment than according to statute-law, or the usage consented to by the King; but this hinders not the King from altering his law concerning judgments, if he see good cause.

_L._ The King may do so, if he please: and Sir Edward Coke tells you how he altered particular judgments in case of felony, and showeth that judgment being given upon a lord in Parliament, that he should be hanged, he was nevertheless beheaded; and that another lord had the like judgment for another felony, and was not hanged but beheaded: and withal he shows you the inconveniency of such proceeding, because, saith he, if hanging might be altered to beheading, by the same reason it might be altered to burning, stoning to death, &c.

_P._ Perhaps there might be inconveniency in it; but it is more than I see, or he shows, nor did there happen any inconveniency from the execution he citeth: besides he granteth, that death, being _ultimum supplicium_, is a satisfaction to the law. But what is all this to the purpose, when it belongeth not to consider such inconveniences of government but to the King and Parliament? Or who, from the authority of a deputed judge, can derive a power to censure the actions of a King that hath deputed him?

_L._ For the death of a man by misfortune, there is, he saith, no express judgment, nor for killing a man in one’s own defence; but he saith, that the law hath in both cases given judgment that he, that so killeth a man, shall forfeit all his goods and chattels, debts and duties.

_P._ If we consider what Sir Edward Coke saith (1 _Inst._ _sec._ 745), at the word _felony_, these judgments are very favourable; for there he saith, that killing a man by _chance medley_, or _se defendendo_, is _felony_. His words are: “wherefore by the law at this day, under the word _felony_ in commissions, &c. is included petite treason, murder, homicide, burning of houses, burglary, robbery, rape, &c. _chance-medley_, and _se defendendo_.” But if we consider only the intent of him that killeth a man by misfortune or in his own defence, the same judgments will be thought both cruel and sinful judgments. And how they can be _felony_, at this day cannot be understood, unless there be a statute to make them so. For the statute of 25 _Hen. III_, _c._ 25, the words whereof, “murder from henceforth shall not be judged before our justices, where it is found misfortune only, but it shall take place in such as are slain by felony, and not otherwise,” make it manifest, if they be felonies, they must also be murders, unless they have been made felonies by some later statute.

_L._ There is no such later statute, nor is it to say in commission; nor can a commission, or anything but another statute, make a thing felony that was not so before.

_P._ See what it is for a man to distinguish _felony_ into several sorts, before he understands the general name of felony, what it meaneth. But that a man, for killing another man by misfortune only, without any evil purpose, should forfeit all his goods and chattels, debts and duties, is a very hard judgment, unless perhaps they were to be given to the kindred of the man slain, by way of amends for damage. But the law is not that. Is it the common-law, which is the law of reason, that justifies this judgment, or the statute-law? It cannot be called the law of reason, if the case be mere misfortune. If a man be upon his appletree to gather his apples, and by ill-fortune fall down, and lighting on the head of another man, kill him, and by good fortune save himself; shall he for this mischance be punished with the forfeiture of his goods to the King? Does the law of reason warrant this? He should, you will say, have looked to his feet; that is true; but so should he, that was under, have looked up to the tree. Therefore in this case the law of reason, as I think, dictates that they ought each of them to bear his own misfortune.

_L._ In this case I agree with you.

_P._ But this case is the true case of mere misfortune, and a sufficient reprehension of the opinion of Sir Edward Coke.

_L._ But what if this had happened to be done by one, that had been stealing apples upon the tree of another man? Then, as Sir Edward Coke says (3 _Inst._ _p._ 56), it had been murder.

_P._ There is indeed great need of good distinction in a case of killing by misfortune. But in this case the unlawfulness of stealing apples cannot make it murder, unless the falling itself be unlawful. It must be a voluntary unlawful act that causeth the death, or else it is no murder by the law of reason. Now the death of the man that was under the tree, proceeded not from that, that the apples were not his that fell, but from the fall. But if a man shoot with a bow or a gun at another man’s deer, and by misfortune kill a man, such shooting being both voluntary and unlawful, and also the immediate cause of the man’s death, may be drawn, perhaps well enough sometimes, to murder by a judge of the common-law. So likewise if a man shoot an arrow over a house, and by chance kill a man in the street, there is no doubt but by the law of reason it is murder: for though he meant no malice to the man slain, yet it is manifest that he cared not whom he slew. In this difficulty of finding out what it is that the law of reason dictates, who is it that must decide the question?

_L._ In the case of misfortune, I think it belongs to the jury; for it is matter of fact only. But when it is doubtful whether the action from which the misfortune came, were lawful or unlawful, it is to be judged by the judge.

_P._ But if the unlawfulness of the action, as the stealing of the apples, did not cause the death of the man; then the stealing, be it trespass or felony, ought to be punished alone, as the law requireth.

_L._ But for the killing of a man _se defendendo_, the jury, as Sir Edward Coke here says, shall not in their verdict say it was _se defendendo_, but shall declare the manner of the fact in special, and clear it to the judge to consider how it is to be called, whether _se defendendo_, manslaughter, or murder.

_P._ One would think so; for it is not often within the capacity of a jury, to distinguish the signification of the different hard names which are given by lawyers to the killing of a man: as murder and felony, which neither the laws, nor the makers of the laws, have yet defined. The witnesses say, that thus and thus the person did, but not that it was murder or felony; no more can the jury say, who ought to say nothing but what they hear from the witnesses or from the prisoner. Nor ought the judge to ground his sentence upon anything else besides the special matter found, which, according as it is contrary or not contrary to the statute, ought to be pronounced.

_L._ But I have told you, that when the jury has found misfortune or _se defendendo_, there is no judgment at all to be given, and the party is to be pardoned of course, saving that he shall forfeit his goods and chattels, debts and duties, to the King.

_P._ But I understand not how there can be a crime for which there is no judgment, nor how any punishment can be inflicted without a precedent judgment, nor upon what ground the sheriff can seize the goods of any man, till it be judged that they be forfeited. I know that Sir Edward Coke saith, that in the judgment of hanging, the judgment of forfeiture is implied, which I understand not; though I understand well enough, that the sheriff by his office may seize the goods of a felon convicted; much less do I conceive how the forfeiture of goods can be implied in a no-judgment; nor do I conceive, that when the jury has found the special manner of the fact to be such as is really no other than _se defendendo_, and consequently no fault at all, why he should have any punishment at all. Can you show me any reason for it?

_L._ The reason lies in the custom.

_P._ You know that unreasonable customs are not law, but ought to be abolished; and what custom is there more unreasonable, than that a man should be punished without a fault?

_L._ Then see the statute of 24 _Hen. VIII_, _c._ 5.

_P._ I find here, that at the making of this statute there was a question amongst the lawyers, in case one man should kill another, that attempted feloniously to rob or murder him in or near any common highway, courtway, horseway, or footway, or in his mansion, messuage, or dwelling place; whether for the death of such a man one shall forfeit his goods and chattels, as a man should do for killing another by chance medley or in his own defence. This is the preamble, and penned as well as Sir Edward Coke could have wished. But this statute does not determine that a man should forfeit his goods for killing a man _se defendendo_, or for killing him by misfortune; but supposeth it only upon the opinion of the lawyers that then were. The body of the statute is, that if a man be indicted or appealed for the death of such person so attempting as aforesaid, and the same by verdict be so found and tried, he shall not forfeit anything, but shall be discharged as if he had been found not guilty. You see the statute; now consider thereby, in the case of killing _se defendendo_. First, if a man kill another in his own defence, it is manifest that the man slain did either attempt to rob, or to kill, or to wound him; for else it were not done in his own defence. If then it were done in the street, or near the street, as in a tavern, he forfeits nothing, because the street is a highway. So likewise it is to be said of all other common-ways. In what place therefore can a man kill another in his own defence, but that this statute will discharge him of the forfeiture?

_L._ But the statute says the attempt must be felonious.

_P._ When a man assaults me with a knife, sword, club, or other mortal weapon, does any law forbid me to defend myself, or command me to stay so long as to know whether he have a felonious intent, or no? Therefore by this statute, in case it be found _se defendendo_, the forfeiture is discharged; if it be found otherwise, it is capital. If we read the statute of _Glocester_, _cap._ 9, I think it will take away the difficulty. For by that statute, in case it be found by the country that he did it in his own defence or by misfortune, then by the report of the justices to the King, the King shall take him to his grace, if it please him. From whence it followeth, first, that it was then thought law, that the jury may give the general verdict of _se defendendo_; which Sir Edward Coke denies. Secondly, that the judge ought to report especial matter to the King. Thirdly, that the King may take him to his grace, if he please; and consequently, that his goods are not to be seized, till the King, after the report of the judge heard, give the sheriff command to do it. Fourthly, that the general verdict of the King hinders not the King but that he may judge of it upon the special matter; for it often happens that an ill-disposed person provokes a man with words or otherwise, on purpose to make him draw his sword, that he may kill him, and pretend it done in his own defence; which appearing, the King may, without any offence to God, punish him, as the cause shall require. Lastly, contrary to the doctrine of Sir Edward Coke, he may in his own person be judge in the case, and annul the verdict of the jury; which a deputed judge cannot do.

_L._ There be some cases wherein a man, though by the jury he be found not guilty, shall nevertheless forfeit his goods and chattels to the King. For example; a man is slain, and one A, hating B, giveth out that it was B that slew him; B hearing thereof, fearing if he be tried for it, that through the great power of A, and others that seek his hurt, he should be condemned, flieth, and afterwards is taken and tried; and upon sufficient evidence is by the jury found not guilty; yet because he fled, he shall forfeit his goods and chattels, notwithstanding there be no such judgment given by the judge, nor appointed by any statute; but the law itself authoriseth the sheriff to seize them to the use of the King.

_P._ I see no reason (which is common-law) for it, and am sure it is grounded upon no statute.

_L._ See Sir Edward Coke, 1 _Inst._ _s._ 709, and read.

_P._ “If a man that is innocent be accused of felony, and for fear flieth for the same; albeit that he be judicially acquitted of the felony, yet if it be found that he fled for the same, he shall, notwithstanding his innocence, forfeit all his goods and chattels, debts and duties.” O unchristian and abominable doctrine! which also he in his own words following contradicteth: “for,” saith he, “as to the forfeiture of them, the law will admit no proof against the presumption of the law grounded upon his flight, and so it is in many other cases: but that the general rule is, _Quod stabitur præsumptioni, donec probetur in contrarium_; but you see it hath many exceptions.” This general rule contradicts what he said before; for there can be no exceptions to a general rule in law, that is not expressly made an exception by some statute, and to a general rule of equity there can be no exception at all.

[Sidenote: Of pardoning.]

From the power of punishing, let us proceed to the power of pardoning.

_L._ Touching the power of pardoning, Sir Edward Coke says, (3 _Inst._ _p._ 236), that no man shall obtain charter of pardon out of Parliament; and cites for it the statute of 2 _Edw. III_, _c._ 2; and says further, that accordingly in a Parliament roll it is said, that for the peace of the land it would help that no pardon were granted but by Parliament.

_P._ What lawful power would he have left to the King, that thus disableth him to practise mercy? In the statute which he citeth, to prove that the King ought not to grant charters of pardon but in Parliament, there are no such words, as any man may see; for that statute is in print; and that which he says is in the Parliament roll, is but a wish of he tells not whom, and not a law; and it is strange that a private wish should be enrolled among acts of Parliament. If a man do you an injury, to whom, think you, belongeth the right of pardoning it?

_L._ Doubtless to me alone, if to me alone be done that injury; and to the King alone, if to him alone be done the injury; and to both together, if the injury be done to both.

_P._ What part then has any man in the granting of a pardon, but the King and the party wronged. If you offend no member of either House, why should you ask their pardon? It is possible that a man may deserve a pardon; or he may be such a one sometimes as the defence of the kingdom hath need of. May not the King pardon him, though there be no Parliament then sitting? Sir Edward Coke’s law is too general in this point; and I believe, if he had thought on it, he would have excepted some persons, if not all the King’s children and his heir-apparent; and yet they are all his subjects, and subject to the law as other men.

_L._ But if the King shall grant pardons of murder and felony of his own head, there would be very little safety for any man, either out of his house or in it, either by night or by day. And for that very cause there have been many good statutes provided, which forbid the justices to allow of such pardons as do not specially name the crime.

_P._ Those statutes, I confess, are reasonable, and very profitable, which forbid the judge to pardon murders. But what statute is there that forbids the King to do it? There is a statute of 13 _Rich. II_, _c._ 1, wherein the King promiseth not to pardon murder; but there is in it a clause for the saving of the King’s regality. From which may be inferred that the King did not grant away that power, when he thought good to use it for the commonwealth. Such statutes are not laws to the King, but to his judges, and though the judges be commanded by the King not to allow pardons in many cases, yet if the King by writing command the judges to allow them, they ought to do it. I think, if the King think in his conscience it be for the good of the commonwealth, he sinneth not in it: but I hold not that the King may pardon him without sin, if any other man be damnified by the crime committed, unless he cause reparation to be made as far as the party offending can do it. And howsoever, be it sin or not sin, there is no power in England that may resist him or speak evil of him lawfully.

_L._ Sir Edward Coke denies not that; and upon that ground it is that the King, he says, may pardon high-treason; for there can be no high-treason but against the King.

_P._ That is well; therefore he confesseth, that whatsoever the offence be, the King may pardon so much of it as is an injury to himself, and that by his own right, without breach of any law positive or natural, or of any grant, if his conscience tell him that it be not to the damage of the commonwealth; and you know that to judge of what is good or evil to the commonwealth, belongeth to the King only. Now tell me, what it is which is said to be pardoned?

_L._ What can it be, but only the offence? If a man hath done a murder, and be pardoned for the same, is it not the murder that is pardoned?

_P._ Nay, by your favour, if a man be pardoned for murder or any other offence, it is the man that is pardoned; the murder still remains murder. But what is pardon?

_L._ Pardon, as Sir Edward Coke says, (3 _Inst._ _p._ 233), is derived of _per_ and _dono_, and signifies thoroughly to remit.

_P._ If the King remit the murder, and pardon not the man that did it, what does the remission serve for?

_L._ You know well enough that when we say a murder, or any thing else, is pardoned, all Englishmen understand thereby, that the punishment due to the offence is the thing remitted.

_P._ But for our understanding of one another, you ought to have said so at first. I understand now, that to pardon murder or felony is thoroughly to save the offender from all the punishment due unto him by the law for his offence.

_L._ Not so; for Sir Edward Coke in the same chapter, p. 238, saith thus: “a man commits felony, and is attainted thereof, or is abjured; the King pardoneth the felony without any mention of the attainder or abjuration: the pardon is void.”

_P._ What is it to be attainted?

_L._ To be attainted is, that his blood be held in law as stained and corrupted; so that no inheritance can descend from him to his children, or to any that make claim by him.

_P._ Is this attaint a part of the crime or of the punishment?

_L._ It cannot be a part of the crime, because it is none of his own act; it is therefore a part of the punishment, viz. a disherison of the offender.

_P._ If it be a part of the punishment due, and yet not pardoned together with the rest, then a pardon is not a thorough remitting of the punishment, as Sir Edward Coke says it is. And what is abjuration?

_L._ When a clerk heretofore was convicted of felony, he might have saved his life by abjuring the realm; that is, by departing the realm within a certain time appointed, and taking an oath never to return. But at this day all statutes for abjuration are repealed.

_P._ That also is a punishment, and by a pardon of the felony pardoned, unless a statute be in force to the contrary. There is also somewhat in the statute of 13 _Rich. II_, _c._ 1, concerning the allowance of charters of pardons, which I understand not well. The words are these: “No charter of pardon for henceforth shall be allowed before our justices for murder, or for the death of a man by await, or malice prepensed, treason, or rape of a woman, unless the same be specified in the same charter.” For I think it follows thence, that if the King say in his charter that he pardoneth the murder, then he breaketh not the statute, because he specifies the offence: or if he saith he pardoneth the killing by await or of malice prepensed, he breaketh not the statute, he specifies the offence. Also if he say so much as that the judge cannot doubt of the King’s meaning to pardon him, I think the judge ought to allow it, because the statute saveth the King’s liberty and regality in that point; that is to say, the power to pardon him, such as are these words, “notwithstanding any statute to the contrary,” are sufficient to cause the charter to be allowed; for these words make it manifest that the charter was not granted upon surprise, but to maintain and claim the King’s liberty and power to show mercy when he seeth cause. The like meaning have these words, _perdonavimus omnimodam interfectionem_; that is to say, we have pardoned the killing, in what manner soever it was done. But here we must remember that the King cannot pardon, without sin, any damage thereby done to another man, unless he causes satisfaction to be made as far as the offender possibly can; but he is not bound to satisfy men’s thirst of revenge; for all revenge ought to proceed from God, and under God from the King. Now, besides in charters, how are these offences specified?

_L._ They are specified by their names, as treason, petite treason, murder, rape, felony, and the like.

_P._ Petite treason is felony, murder is felony; so is rape, robbery, and theft; and, as Sir Edward Coke says, petite larceny is felony. Now if in a Parliament-pardon, or in a Coronation-pardon, all felonies be pardoned, whether is petite larceny pardoned, or not?

_L._ Yes, certainly, it is pardoned.

_P._ And yet you see it is not specified; and yet it is a crime that hath less in it of the nature of felony, than there is in robbery. Do not therefore rape, robbery, theft, pass under the pardon of all felonies?

_L._ I think they are all pardoned by the words of the statute, but those that are by the same statute excepted; so that specification is needful only in charters of pardon, but in general pardons not so. For the statute 13 _Rich. II_, _c._ 1, forbids not the allowance of Parliament-pardons, or Coronation-pardons; and therefore the offences pardoned need not be specified, but may pass under the general word of _all felonies_. Nor is it likely that the members of the Parliament, who drew up their own pardons, did not mean to make them as comprehensive as they could. And yet Sir Edward Coke (1 _Inst._ _sec._ 745), at the word _felony_, seemeth to be of another mind. For piracy is one species of felony; and yet when certain Englishmen had committed piracy in the last year of Queen Elizabeth, and came home into England in the beginning of the reign of King James, trusting to his coronation-pardon of all felonies, they were indicted (Sir Edward Coke was then Attorney-general) of the piracy before commissioners, according to the statute of 28 _Hen. VIII_, and being found guilty were hanged. The reason he allegeth for it is, that it ought to have been specified by the name of _piracy_ in the pardon, and therefore the pardon was not to be allowed.

_P._ Why ought it to have been specified more than any other felony? He should therefore have drawn his argument from the law of reason.

_L._ Also he does that; for the trial, he says, was by the common-law, and before commissioners, not in the Court of the Lord Admiral, by the civil law; therefore, he says, it was an offence whereof the common-law could not take any notice, because it could not be tried by twelve men.

_P._ If the common-law could not, or ought not, to take notice of such offences, how could the offenders be tried by twelve men, and found guilty, and hanged as they were? If the common-law take no notice of piracy, what other offence was it for which they were hanged? Is piracy two felonies, for one of which a man shall be hanged by the civil-law, and for the other by the common-law? Truly I never read weaker reasoning in any author of the law of England, than in Sir Edward Coke’s Institutes, how well soever he could plead.

_L._ Though I have heard him much reprehended by others as well as by you, yet there be many excellent things, both for subtilty and for truth, in these his Institutes.

_P._ No better things than other lawyers have, that write of the law as of a science. His citing of Aristotle, and of Homer, and of other books which are commonly read by gownmen, do, in my opinion, but weaken his authority; for any man may do it by a servant. But seeing the whole scene of that time is gone and past, let us proceed to somewhat else. Wherein doth an _Act of Oblivion_ differ from a Parliament-pardon?

_L._ This word _Act of Oblivion_ was never in our law-books before the 12 _Car. II._ _c._ 11, and I wish it may never come again; but from whence it came, you may better know perhaps than I.

_P._ The first and only Act of Oblivion that ever passed into a law, in any state that I have read of, was that _amnestia_ or _oblivion_ of all quarrels between any of the citizens of Athens, at any time before that act, without all exception of crime or person. The occasion whereof was this. The Lacedæmonians having totally subdued the Athenians, entered into the city of Athens, and ordained that the people should choose thirty people of their own city to have the sovereign power over them. These being chosen, behaved themselves so outrageously, as caused a sedition, in which the citizens on both sides were daily slain. There was then a discreet person that propounded to each of the parties this proposition, that every man should return to his own and forget all that was past; which proposition was made, by consent on both sides, into a public act, which for that cause was called an _oblivion_. Upon the like disorder happening in Rome by the murder of Julius Cæsar, the like act was propounded by Cicero, and indeed passed, but was within a few days after broken again by Marcus Antonius. In imitation of this act was made the act of 12 _Car. II._ _c._ 11.

_L._ By this it seems, that the Act of Oblivion made by King Charles was no other than a Parliament-pardon, because it containeth a great number of exceptions, as the other Parliament-pardons do, and the act of Athens did not.

_P._ But yet there is a difference between the late Act of Oblivion made here, and an ordinary Parliament-pardon. For concerning a fault pardoned in Parliament by a general word, a suit in law may arise about this, whether the offender be signified by the word or not, as whether the pardon of all felonies be a pardon of piracy or not. For you see by Sir Edward Coke’s reports, that notwithstanding a pardon of felony, a sea-felony, when he was Attorney-General, was not pardoned. But by the late Act of Oblivion, which pardoned all manner of offences committed in the late civil war, no question could arise concerning crimes excepted. First, because no man can by law accuse another man of a fact, which by law is to be forgotten. Secondly, because all crimes may be alleged as proceeding from the licentiousness of the time, and from the silence of the law occasioned by the civil war, and consequently (unless the offender’s person also were excepted, or unless the crime were committed before the war began) are within the pardon.

_L._ Truly I think you say right. For if nothing had been pardoned but what was done by the occasion of the war, the raising of the war itself had not been pardoned.

[Sidenote: Of the laws of _meum_ and _tuum_.]

_P._ I have done with crimes and punishments; let us come now the laws of _meum_ and _tuum_.

_L._ We must then examine the statutes.

_P._ We must so, what they command and forbid; but not dispute of their justice. For the law of reason commands that every one observe the law which he hath assented to, and obey the person to whom he hath promised obedience and fidelity. Then let us consider next the commentaries of Sir Edward Coke upon Magna Charta and other statutes. For the understanding of Magna Charta it will be very necessary to run up into ancient times, as far as history will give us leave, and consider not only the customs of our ancestors the Saxons, but also the law of nature, the most ancient of all laws, concerning the original of government and acquisition of property, and concerning courts of judicature. And first, it is evident that dominion, government, and laws, are far more ancient than history or any other writing, and that the beginning of all dominion amongst men was in families. In which, first, the father of the family by the law of nature was absolute lord of his wife and children: secondly, made what laws amongst them he pleased: thirdly, was judge of all their controversies: fourthly, was not obliged by any law of man to follow any counsel but his own: fifthly, what land soever the lord sat down upon and made use of for his own and his family’s benefit, was his propriety by the law of first possession, in case it was void of inhabitants before, or by the law of war, in case they conquered it. In this conquest what enemies they took and saved, were their servants. Also such men as wanting possessions of lands, but furnished with arts necessary for man’s life, came to dwell in the family for protection, became their subjects, and submitted themselves to the laws of the family. And all this is consonant, not only to the law of nature, but also to the practice of mankind set forth in history, sacred and profane.

_L._ Do you think it lawful for a lord, that is the sovereign ruler of his family, to make war upon another like sovereign lord, and dispossess him of his lands?

_P._ It is lawful or not lawful, according to the intention of him that does it. For, first, being a sovereign ruler, he is not subject to any law of man; and as to the law of God, where the intention is justifiable, the action is so also. The intention may be lawful in divers cases by the right of nature; one of those cases is, when he is constrained to it by the necessity of subsisting. So the children of Israel, besides that their leaders, Moses and Joshua, had an immediate command from God to dispossess the Canaanites, had also a just pretence to do what they did, from the right of nature which they had to preserve their lives, being unable otherwise to subsist. And as their preservation, so also is their security a just pretence of invading those whom they have just cause to fear, unless sufficient caution be given to take away their fear: which caution, for anything I can yet conceive, is utterly impossible. Necessity and security are the principal justifications before God, of beginning war. Injuries received justify a war defensive; but for reparable injuries, if reparation be tendered, all invasion upon that title is iniquity. If you need examples, either from Scripture or other history, concerning this right of nature in making war, you are able enough of your own reading to find them out at your leisure.

_L._ Whereas you say, that the lands so won by the sovereign lord of a family, are his in propriety, you deny, methinks, all property to the subjects, how much soever any of them have contributed to the victory.