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Title: The English Works of Thomas Hobbes
Author: Thomas Hobbes
Editor: Sir William Molesworth
Release date: November 26, 2025 [eBook #77338]
Language: English
Original publication: London: John Bohn, 1839
Credits: Emmanuel Ackerman, KD Weeks, and the Online Distributed Proofreading Team at https://www.pgdp.net (This book was produced from images made available by the HathiTrust Digital Library.)
*** START OF THE PROJECT GUTENBERG EBOOK THE ENGLISH WORKS OF THOMAS HOBBES ***
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THE
ENGLISH WORKS
OF
THOMAS HOBBES
OF MALMESBURY;
NOW FIRST COLLECTED AND EDITED
BY
SIR WILLIAM MOLESWORTH, BART.
-------
VOL. VI.
-------
LONDON:
JOHN BOHN,
HENRIETTA STREET, COVENT GARDEN.
--
MDCCCXL.
LONDON:
C. RICHARDS, PRINTER, ST. MARTIN’S LANE.
CONTENTS.
A Dialogue between a Philosopher and a Student of the Common Laws
of England 1
Behemoth: the History of the Causes of the Civil Wars of England 161
The Whole Art of Rhetoric 419
The Art of Rhetoric, plainly set forth with pertinent examples
for the more easy understanding of the same 511
The Art of Sophistry 529
A
DIALOGUE
BETWEEN
A PHILOSOPHER & A STUDENT
OF
THE COMMON LAWS OF ENGLAND.
A DIALOGUE
OF
THE COMMON LAW.
==========
[Sidenote: Of the law of reason.]
_Lawyer._ What makes you say, that the study of the law is less rational
than the study of the mathematics?
_Philosopher._ I say not that; for all study is rational, or nothing
worth: but I say, that the great masters of the _mathematics_ do not so
often err as the great professors of the law.
_L._ If you had applied your reason to the law, perhaps you would have
been of another mind.
_P._ In whatsoever study, I examine whether my inference be rational:
and have looked over the titles of the statutes from Magna Charta
downward to this present time. I left not one unread, which I thought
might concern myself; which was enough for me, that meant not to plead
for any but myself. But I did not much examine which of them was more or
less rational; because I read them not to dispute, but to obey them, and
saw in all of them sufficient reason for my obedience, and that the same
reason, though the Statutes themselves were changed, remained constant.
I have also diligently read over Littleton’s book of _Tenures_, with the
commentaries thereupon of the renowned lawyer Sir Edward Coke; in which
I confess I found great subtilty, not of the law, but of inference from
law, and especially from the law of human nature, which is the law of
reason: and I confess that it is truth which he says in the epilogue to
his book, that by arguments and reason in the law, a man shall sooner
come to the certainty and knowledge of the law: and I agree with Sir
Edward Coke, who upon that text farther says, that reason is the soul of
the law; and upon section 138, _nihil, quod est contra rationem, est
licitum_; that is to say, nothing is law that is against reason; and
that reason is the life of the law, nay the common law itself is nothing
else but reason; and upon section 21, _æquitas est perfecta quædam
ratio, quæ jus scriptum interpretatur et emendat, nulla scriptura
comprehensa, sed solum in vera ratione consistens_; _i. e._ Equity is a
certain perfect reason, that interpreteth and amendeth the law written,
itself being unwritten, and consisting in nothing else but right reason.
When I consider this, and find it to be true, and so evident as not to
be denied by any man of right sense, I find my own reason at a stand;
for it frustrates all the laws in the world. For upon this ground any
man, of any law whatsoever, may say it is against reason, and thereupon
make a pretence for his disobedience. I pray you clear this passage,
that we may proceed.
_L._ I clear it thus, out of Sir Edward Coke (I. Inst. sect. 138), that
this is to be understood of an artificial perfection of reason, gotten
by long study, observation, and experience, and not of every man’s
natural reason; for _nemo nascitur artifex_. This legal reason is _summa
ratio_; and therefore if all the reason that is dispersed into so many
several heads, were united into one, yet could he not make such a law as
the law of England is; because by so many successions of ages it hath
been fined and refined by an infinite number of grave and learned men.
_P._ This does not clear the place, as being partly obscure, and partly
untrue. That the reason which is the life of the law, should be not
natural, but artificial, I cannot conceive. I understand well enough,
that the knowledge of the law is gotten by much study, as all other
sciences are, which when they are studied and obtained, it is still done
by natural, and not by artificial reason. I grant you, that the
knowledge of the law is an art; but not that any art of one man, or of
many, how wise soever they be, or the work of one or more artificers,
how perfect soever it be, is law. It is not wisdom, but authority that
makes a law. Obscure also are the words _legal reason_. There is no
reason in earthly creatures, but human reason. But I suppose that he
means, that the reason of a judge, or of all the judges together without
the King, is that _summa ratio_, and the very law: which I deny, because
none can make a law but he that hath the legislative power. That the law
hath been fined by grave and learned men, meaning the professors of the
law, is manifestly untrue; for all the laws of England have been made by
the kings of England, consulting with the nobility and commons in
parliament, of which not one of twenty was a learned lawyer.
_L._ You speak of the statute law, and I speak of the common law.
_P._ I speak generally of law.
_L._ Thus far I agree with you, that statute law taken away, there would
not be left, either here, or any where, any law at all that would
conduce to the peace of a nation; yet equity and reason, (laws Divine
and eternal, which oblige all men at all times, and in all places),
would still remain, but be obeyed by few: and though the breach of them
be not punished in this world, yet they will be punished sufficiently in
the world to come. Sir Edward Coke, for drawing to the men of his own
profession as much authority as lawfully he might, is not to be
reprehended; but to the gravity and learning of the judges they ought to
have added in the making of laws, the authority of the King, which hath
the sovereignty: for of these laws of reason, every subject that is in
his wits, is bound to take notice at his peril, because reason is part
of his nature, which he continually carries about with him, and may read
it, if he will.
_P._ It is very true; and upon this ground, if I pretend within a month
or two to make myself able to perform the office of a judge, you are not
to think it arrogance; for you are to allow to me, as well as to other
men, my pretence to reason, which is the common law, (remember this,
that I may not need again to put you in mind, that reason is the common
law): and for statute law, seeing it is printed, and that there be
indexes to point me to every matter contained in them, I think a man may
profit in them very much in two months.
_L._ But you will be but an ill pleader.
_P._ A pleader commonly thinks he ought to say all he can for the
benefit of his client, and therefore has need of a faculty to wrest the
sense of words from their true meaning, and the faculty of _rhetoric_ to
seduce the jury, and sometimes the judge also, and many other arts which
I neither have, nor intend to study.
_L._ But let the judge, how good soever he thinks his reasoning, take
heed that he depart not too much from the letter of the statute: for it
is not without danger.
_P._ He may without danger recede from the letter, if he do not from the
meaning and sense of the law; which may be by a learned man, (such as
judges commonly are,) easily found out by the preamble, the time when it
was made, and the incommodities for which it was made. But I pray tell
me, to what end were statute laws ordained, seeing the law of reason
ought to be applied to every controversy that can arise.
_L._ You are not ignorant of the force of an irregular appetite to
riches, to power, and to sensual pleasures, how it masters the strongest
reason, and is the root of disobedience, slaughter, fraud, hypocrisy,
and all manner of evil habits; and that the laws of man, though they can
punish the fruits of them, which are evil actions, yet they cannot pluck
up the roots that are in the heart. How can a man be indicted of
avarice, envy, hypocrisy, or other vicious habit, till it be declared by
some action which a witness may take notice of? The root remaining, new
fruit will come forth, till you be weary of punishing, and at last
destroy all power that shall oppose it.
_P._ What hope then is there of a constant peace in any nation, or
between one nation and another?
_L._ You are not to expect such a peace between two nations; because
there is no common power in this world to punish their injustice. Mutual
fear may keep them quiet for a time; but upon every visible advantage
they will invade one another; and the most visible advantage is then,
when the one nation is obedient to their king, and the other not. But
peace at home may then be expected durable, when the common people shall
be made to see the benefit they shall receive by their obedience and
adhesion to their own sovereign, and the harm they must suffer by taking
part with them, who by promises of reformation, or change of government,
deceive them. And this is properly to be done by divines, and from
arguments not only from reason, but also from the Holy Scripture.
_P._ This that you say is true, but not very much to that I aim at by
your conversation, which is to inform myself concerning the laws of
England. Therefore I ask you again, what is the end of statute-laws?
[Sidenote: Of sovereign power.]
_L._ I say then that the scope of all human law is peace, and justice in
every nation amongst themselves, and defence against foreign enemies.
_P._ But what is justice?
_L._ Justice is giving to every man his own.
_P._ The definition is good, and yet it is Aristotle’s. What is the
definition agreed upon as a principle in the science of the common law?
_L._ The same with that of Aristotle.
_P._ See, you lawyers, how much you are beholden to the philosopher; and
it is but reason; for the more general and noble science and law of all
the world, is true philosophy, of which the common law of England is a
very little part.
_L._ It is so, if you mean by philosophy nothing but the study of
reason; as I think you do.
_P._ When you say that justice gives to every man his own, what mean you
by his own? How can that be given me, which is my own already? Or, if it
be not my own, how can justice make it mine?
_L._ Without law, every thing is in such sort every man’s, as he may
take, possess, and enjoy, without wrong to any man; every thing, lands,
beasts, fruits, and even the bodies of other men, if his reason tell him
he cannot otherwise live securely. For the dictates of reason are little
worth, if they tended not to the preservation and improvement of men’s
lives. Seeing then without human law all things would be common, and
this community a cause of encroachment, envy, slaughter, and continual
war of one upon another, the same law of reason dictates to mankind, for
their own preservation, a distribution of lands and goods, that each man
may know what is proper to him, so as none other might pretend a right
thereunto, or disturb him in the use of the same. This distribution is
justice, and this properly is the same which we say is one’s own; by
which you may see the great necessity there was of statute laws, for
preservation of all mankind. It is also a dictate of the law of reason,
that statute laws are a necessary means of the safety and well-being of
man in the present world, and are to be obeyed by all subjects, as the
law of reason ought to be obeyed, both by King and subjects, because it
is the law of God.
_P._ All this is very rational; but how can any laws secure one man from
another, when the greatest part of men are so unreasonable, and so
partial to themselves as they are, and the laws of themselves are but a
dead letter, which of itself is not able to compel a man to do otherwise
than himself pleaseth, nor punish or hurt him when he hath done a
mischief?
_L._ By the laws, I mean laws living and armed. For you must suppose,
that a nation that is subdued by war to an absolute submission to a
conqueror, may, by the same arm that compelled it to submission, be
compelled to obey his laws. Also, if a nation choose a man, or an
assembly of men, to govern them by laws, it must furnish him also with
armed men and money, and all things necessary to his office; or else his
laws will be of no force, and the nation remains, as before it was, in
confusion. It is not therefore the word of the law, but the power of a
man that has the strength of a nation, that make the laws effectual. It
was not Solon that made Athenian laws, though he devised them, but the
supreme court of the people; nor, the lawyers of Rome that made the
imperial law in Justinian’s time, but Justinian himself.
_P._ We agree then in this, that in England it is the King that makes
the laws, whosoever pens them; and in this, that the King cannot make
his laws effectual, nor defend his people against their enemies, without
a power to levy soldiers; and consequently, that he may lawfully, as oft
as he shall really think it necessary to raise an army, (which in some
occasions be very great) I say, raise it, and money to maintain it. I
doubt not but you will allow this to be according to the law, at least
of reason.
_L._ For my part I allow it. But you have heard how, in and before the
late troubles the people were of another mind. Shall the King, said
they, take from us what he pleases, upon pretence of a necessity whereof
he makes himself the judge? What worse condition can we be in from an
enemy? What can they take from us more than what they list?
_P._ The people reason ill. They do not know in what condition we were,
in the time of the Conqueror, when it was a shame to be an Englishman;
who, if he grumbled at the base offices he was put to by his Norman
masters, received no other answer than this, _thou art but an
Englishman_. Nor can the people, nor any man that humours their
disobedience, produce any example of a King that ever raised any
excessive sums, either by himself or by the consent of his Parliament,
but when they had great need thereof; nor can show any reason that might
move any of them so to do. The greatest complaint by them made against
the unthriftiness of their Kings, was for the enriching now and then a
favourite, which to the wealth of the kingdom was inconsiderable, and
the complaint but envy. But in this point of raising soldiers, what is,
I pray you, the statute law?
_L._ The last statute concerning it, is 13 _Car._ II. cap. 6, by which
the supreme government, command, and disposing of the militia of
England, is delivered to be, and always to have been, the ancient right
of the Kings of England. But there is also in the same act a proviso,
that this shall not be construed for a declaration, that the King may
transport his subjects, or compel them to march out of the kingdom; nor
is it, on the contrary, declared to be unlawful.
_P._ Why is not that also determined?
_L._ I can imagine cause enough for it, though I may be deceived. We
love to have our King amongst us, and not to be governed by deputies,
either of our own or another nation. But this I verily believe, that if
a foreign enemy should either invade us, or put himself into a readiness
to invade either England, Ireland, or Scotland, no Parliament then
sitting, and the King send English soldiers thither, the Parliament
would give him thanks for it. The subjects of those Kings who affect the
glory, and imitate the actions, of Alexander the Great, have not always
the most comfortable lives, nor do such Kings usually very long enjoy
their conquests. They march to and fro perpetually, as upon a plank
sustained only in the midst; and when one end rises, down goes the
other.
_P._ It is well. But where soldiers, in the judgment of the King’s
conscience, are indeed necessary, as in an insurrection, or rebellion at
home; how shall the kingdom be preserved without a considerable army
ready and in pay? How shall money be raised for this army, especially
when the want of public treasure inviteth neighbour Kings to encroach,
and unruly subjects to rebel?
_L._ I cannot tell. It is matter of polity, not of law. But I know, that
there be statutes express, whereby the King hath obliged himself never
to levy money upon his subjects without the consent of his Parliament.
One of which statutes is 25 _Edw._ I. c. 6, in these words: _We have
granted for us, and our heirs, as well to archbishops, bishops, abbots,
priors, and other folk of holy Church, as also to earls, barons, and to
all the commonalty of the land, that for no business from henceforth, we
shall take such aids, tasks, or prizes, but by the common consent of the
realm_. There is also another statute of _Edward_ I. (34 _Edw._ I. stat.
4) in these words: _No tallage, or aid shall be taken or levied by us or
our heirs in our realm, without the good will and assent of the
archbishops, bishops, earls, barons, knights, burgesses, and other
freemen of the land_; which statutes have been since that time confirmed
by divers other Kings, and lastly by the King that now reigneth.
_P._ All this I know, and am not satisfied. I am one of the common
people, and one of that almost infinite number of men, for whose welfare
Kings and other sovereigns were by God ordained: for God made Kings for
the people, and not people for Kings. How shall I be defended from the
domineering of proud and insolent strangers that speak another language,
that scorn us, that seek to make us slaves, or how shall I avoid the
destruction that may arise from the cruelty of factions in a civil war,
unless the King, to whom alone, you say, belongeth the right of levying
and disposing of the militia by which only it can be prevented, have
ready money, upon all occasions, to arm and pay as many soldiers, as for
the present defence, or the peace of the people, shall be necessary?
Shall not I, and you, and every man be undone? Tell me not of a
Parliament, when there is no Parliament sitting, or perhaps none in
being, which may often happen. And when there is a Parliament, if the
speaking and leading men should have a design to put down monarchy, as
they had in the Parliament which began to sit the third of November,
1640, shall the King, who is to answer to God Almighty for the safety of
the people, and to that end is intrusted with the power to levy and
dispose of the soldiery, be disabled to perform his office, by virtue of
these acts of Parliament which you have cited? If this be reason, it is
reason also that the people be abandoned, or left at liberty to kill one
another, even to the last man; if it be not reason, then you have
granted it is not law.
_L._ It is true, if you mean _recta ratio_; but _recta ratio_, which I
grant to be law, as Sir Edward Coke says, (1 _Inst._ sect. 138), is an
artificial perfection of reason, gotten by long study, observation, and
experience, and not every man’s natural reason; for _nemo nascitur
artifex_. This legal reason is _summa ratio_; and therefore, if all the
reason that is dispersed into so many several heads, were united into
one, yet could he not make such a law as the law of England is, because
by many successions of ages it hath been fined and refined by an
infinite number of grave and learned men. And this is it, he calls the
common law.
_P._ Do you think this to be good doctrine? Though it be true, that no
man is born with the use of reason, yet all men may grow up to it as
well as lawyers; and when they have applied their reason to the laws,
(which were laws before they studied them, or else it was not law they
studied), may be as fit for and capable of judicature, as Sir Edward
Coke himself, who whether he had more or less use of reason, was not
thereby a judge, but because the King made him so. And whereas he says,
that a man who should have as much reason as is dispersed in so many
several heads, could not make such a law as this law of England is; if
one should ask him who made the law of England, would he say a
succession of English lawyers or judges made it, or rather a succession
of kings? And that upon their own reason, either solely, or with the
advice of the Lords and Commons in Parliament, without the judges or
other professors of the law? You see therefore that the King’s reason,
be it more or less, is that _anima legis_, that _summa lex_, whereof Sir
Edward Coke speaketh, and not the reason, learning, or wisdom of the
judges. But you may see, that quite through his _Institutes of Law_, he
often takes occasion to magnify the learning of the lawyers, whom he
perpetually termeth the sages of the Parliament, or of the King’s
council. Therefore unless you say otherwise, I say, that the King’s
reason, when it is publicly upon advice and deliberation declared, is
that _anima legis_; and that _summa ratio_ and that equity, which all
agree to be the law of reason, is all that is or ever was law in
England, since it became Christian, besides the Bible.
_L._ Are not the Canons of the Church part of the law of England, as
also the imperial law used in the Admiralty, and the customs of
particular places, and the by-laws of corporations and courts of
judicature?
_P._ Why not? For they were all constituted by the Kings of England; and
though the civil law used in the Admiralty were at first the statutes of
the Roman empire, yet because they are in force by no other authority
than that of the King, they are now the King’s laws, and the King’s
statutes. The same we may say of the Canons; such of them as we have
retained, made by the Church of Rome, have been no law, nor of any force
in England, since the beginning of Queen Elizabeth’s reign, but by
virtue of the great seal of England.
_L._ In the said statutes that restrain the levying of money without
consent of Parliament, is there any thing you can take exceptions to?
_P._ No. I am satisfied that the kings that grant such liberties, are
bound to make them good, so far as it may be done without sin: but if a
King find that by such a grant he be disabled to protect his subjects,
if he maintain his grant, he sins; and therefore may, and ought to take
no notice of the said grant. For such grants, as by error or false
suggestion are gotten from him, are, as the lawyers do confess, void and
of no effect, and ought to be recalled. Also the King, as is on all
hands confessed, hath the charge lying upon him to protect his people
against foreign enemies, and to keep the peace betwixt them within the
kingdom: if he do not his utmost endeavour to discharge himself thereof,
he committeth a sin, which neither King nor Parliament can lawfully
commit.
_L._ No man, I think, will deny this. For if levying of money be
necessary, it is a sin in the Parliament to refuse; if unnecessary, it
is a sin both in King and Parliament to levy. But for all that, it may
be, and I think it is, a sin in any one that hath the sovereign power,
be he one man or one assembly, being intrusted with the safety of a
whole nation, if rashly, and relying upon his own natural sufficiency,
he make war or peace, without consulting with such, as by their
experience and employment abroad, and intelligence by letters, or other
means, have gotten the knowledge in some measure of the strength,
advantages, and designs of the enemy, and the manner and the degree of
the danger that may from thence arise. In like manner, in case of
rebellion at home, if he consult not with those of military condition;
which if he do, then I think he may lawfully proceed to subdue all such
enemies and rebels; and that the soldiers ought to go on without
inquiring whether they be within the country, or without. For who shall
suppress rebellion, but he that hath right to levy, command, and dispose
of the militia? The last Long Parliament denied this. But why? Because
by the major part of their votes the rebellion was raised with the
design to put down monarchy, and to that end maintained.
_P._ Nor do I hereby lay any aspersion upon such grants of the King and
his ancestors. Those statutes are in themselves very good for the King
and the people, as creating some kind of difficulty for such Kings as,
for the glory of conquest, might spend one part of their subjects' lives
and estates in molesting other nations, and leave the rest to destroy
themselves at home by factions. That which I here find fault with, is
the wresting of those, and other such statutes, to the binding of our
Kings from the use of their armies in the necessary defence of
themselves and their people. The late Long Parliament, that in 1648
murdered their King, (a King that sought no greater glory upon earth,
but to be indulgent to his people, and a pious defender of the Church of
England,) no sooner took upon them the sovereign power, than they levied
money upon the people at their own discretion. Did any of their subjects
dispute their power? Did they not send soldiers over the sea to subdue
Ireland, and others to fight against the Dutch at sea; or made they any
doubt but to be obeyed in all that they commanded, as a right absolutely
due to the sovereign power in whomsoever it resides? I say not this as
allowing their actions, but as a testimony from the mouths of those very
men that denied the same power to him whom they acknowledged to have
been their sovereign immediately before; which is a sufficient proof,
that the people of England never doubted of the King’s right to levy
money for the maintenance of his armies, till they were abused in it by
seditious teachers, and other prating men, on purpose to turn the State
and Church into popular government, where the most ignorant and boldest
talkers do commonly obtain the best preferments. Again, when their new
republic returned into monarchy by Oliver, who durst deny him money upon
any pretence of _Magna Charta_, or of these other acts of Parliament
which you have cited? You may therefore think it good law, for all your
books, that the King of England may at all times, that he thinks in his
conscience it will be necessary for the defence of his people, levy as
many soldiers and as much money as he please, and that himself is judge
of the necessity.
_L._ Is there nobody hearkening at the door?
_P._ What are you afraid of?
_L._ I mean to say the same that you say: but there be very many yet,
that hold their former principles, whom neither the calamities of the
civil wars, nor their former pardon, have thoroughly cured of their
madness.
_P._ The common people never take notice of what they hear of this
nature, but when they are set on by such as they think wise; that is, by
some sorts of preachers, or some that seem to be learned in the laws,
and withal speak evil of the governors. But what if the King, upon the
sight or apprehension of any great danger to his people, (as when their
neighbours are borne down by the current of a conquering enemy), should
think his own people might be involved in the same misery; may he not
levy, pay, and transport soldiers to help those weak neighbours, by way
of prevention to save his own people and himself from servitude? Is that
a sin?
_L._ First, if the war upon our neighbour be just, it may be questioned
whether it be equity or no to assist them against the right.
_P._ For my part, I make no question of that at all, unless the invader
will, and can, put me in security, that neither he nor his successors
shall make any advantage of the conquest of my neighbour, to do the same
to me in time to come. But there is no common power to bind them to the
peace.
_L._ Secondly, when such a thing shall happen, the Parliament will not
refuse to contribute freely to the safety of themselves and the whole
nation.
_P._ It may be so, and it may be not; for if a Parliament then sit not,
it must be called; that requires six weeks' time; debating and
collecting what is given requires as much, and in this time the
opportunity perhaps is lost. Besides, how many wretched souls have we
heard to say in the late troubles; what matter is it who gets the
victory? We can pay but what they please to demand, and so much we pay
now. And this they will murmur, as they have ever done, whosoever shall
reign over them, as long as their covetousness and ignorance hold
together; which will be till doomsday, if better order be not taken for
their instruction in their duty, both from reason and religion.
_L._ For all this I find it somewhat hard, that a King should have right
to take from his subjects, upon the pretence of necessity, what he
pleaseth.
_P._ I know what it is that troubles your conscience in this point. All
men are troubled at the crossing of their wishes; but it is our own
fault. First, we wish impossibilities; we would have our security
against all the world upon right of property, without paying for it;
this is impossible. We may as well expect that fish and fowl should
boil, roast, and dish themselves, and come to the table, and that grapes
should squeeze themselves into our mouths, and have all other the
contentments and ease which some pleasant men have related of the land
of Cocagne. Secondly, there is no nation in the world where he or they
that have the sovereignty, do not take what money they please for the
defence of those respective nations, when they think it necessary for
their safety. The late Long Parliament denied this; but why? Because
there was a design amongst them to depose the King. Thirdly, there is no
example of any King of England that I have read of, that ever pretended
any such necessity for levying money against his conscience. The
greatest sums that ever were levied, comparing the value of money, as it
was at that time, with what it is now, were levied by King Edward III
and King Henry V; kings in whom we glory now, and think their actions
great ornaments to the English history. Lastly, as to the enriching now
and then a favourite, it is neither sensible to the kingdom, nor is any
treasure thereby conveyed out of the realm, but so spent as it falls
down again upon the common people. To think that our condition being
human should be subject to no incommodity, were injuriously to quarrel
with God Almighty for our own faults.
_L._ I know not what to say.
_P._ If you allow this that I have said, then say, that the people never
were, shall be, or ought to be, free from being taxed at the will of one
or other; that if civil war come, they must levy all they have, and that
dearly, from the one or from the other, or from both sides. Say, that
adhering to the King, their victory is an end of their trouble; that
adhering to his enemies there is no end; for the war will continue by a
perpetual subdivision, and when it ends, they will be in the same estate
they were before. That they are often abused by men who to them seem
wise, when then their wisdom is nothing else but envy of those that are
in grace and in profitable employments; and that those men do but abuse
the common people to their own ends, that set up a private man’s
propriety against the public safety. But say withal, that the King is
subject to the laws of God, both written and unwritten, and to no other;
and so was William the Conqueror, whose right is all descended to our
present King.
_L._ As to the law of reason, which is equity, it is sure enough there
is but one legislator, which is God.
_P._ It followeth, then, that which you call the common law, distinct
from statute law, is nothing else but the law of God.
_L._ In some sense it is; but it is not Gospel, but natural reason, and
natural equity.
_P._ Would you have every man to every other man allege for law his own
particular reason? There is not amongst men a universal reason agreed
upon in any nation, besides the reason of him that hath the sovereign
power. Yet though his reason be but the reason of one man, yet it is set
up to supply the place of that universal reason, which is expounded to
us by our Saviour in the Gospel; and consequently our King is to us the
legislator both of statute-law, and of common-law.
_L._ Yes, I know that the laws spiritual, which have been law in this
kingdom since the abolishing of popery, are the King’s laws, and those
also that were made before. For the Canons of the Church of Rome were no
laws, neither here, nor anywhere else without the Pope’s temporal
dominions, farther than kings and states in their several dominions
respectively did make them so.
_P._ I grant that. But you must grant also, that those spiritual laws
were made by the legislators of the spiritual law. And yet not all kings
and states make laws by consent of the Lords and Commons; but our King
here is so far bound to their assents, as he shall judge conducing to
the good and safety of his people. For example, if the Lords and Commons
should advise him to restore those laws spiritual, which in Queen Mary’s
time were in force, I think the King were by the law of reason obliged,
without the help of any other law of God, to neglect such advice.
_L._ I grant you that the King is sole legislator; but with this
restriction, that if he will not consult with the Lords of Parliament,
and hear the complaints and informations of the Commons, that are best
acquainted with their own wants, he sinneth against God, though he
cannot be compelled to any thing by his subjects by arms and force.
_P._ We are agreed upon that already. Since therefore the King is sole
legislator, I think it also reason he should be sole supreme judge.
[Sidenote: The King is the supreme judge.]
_L._ There is no doubt of that; for otherwise there would be no
congruity of judgments with the laws. I grant also that he is the
supreme judge over all persons, and in all causes civil and
ecclesiastical within his own dominions; not only by act of Parliament
at this time, but that he has ever been so by the common law. For the
judges of both the Benches have their offices by the King’s
letters-patent; and so as to judicature have the bishops. Also the Lord
Chancellor hath his office by receiving from the King the Great Seal of
England. And, to say all at once, there is no magistrate, or
commissioner for public business, neither of judicature nor execution,
in State or Church, in peace or war, but he is made so by authority from
the King.
_P._ It is true; but perhaps you may think otherwise, when you read such
acts of parliament, as say, that the King shall have power and authority
to do this or that by virtue of that act, as _Elizabeth_ c. I. “that
your highness, your heirs, and successors, Kings, or Queens of this
realm, shall have full power and authority, by virtue of this act, by
letters-patent under the great seal of England, to assign, &c.” Was it
not this Parliament that gave this authority to the Queen?
_L._ No. For the statute in this clause is no more than, as Sir Edward
Coke useth to speak, an affirmance of the common-law. For she being head
of the Church of England, might make commissioners for the deciding of
matters ecclesiastical, as freely as if she had been Pope, who did, you
know, pretend his right from the law of God.
_P._ We have hitherto spoken of laws without considering anything of the
nature and essence of a law; and now unless we define the word _law_, we
can go no farther without ambiguity and fallacy, which will be but loss
of time; whereas, on the contrary, the agreement upon our words will
enlighten all we have to say hereafter.
_L._ I do not remember the definition of _law_ in any statute.
_P._ I think so: for the statutes were made by authority, and not drawn
from any other principles than the care of the safety of the people.
Statutes are not philosophy, as is the common-law, and other disputable
arts, but are commands or prohibitions, which ought to be obeyed,
because assented to by submission made to the Conqueror here in England,
and to whosoever had the sovereign power in other commonwealths; so that
the positive laws of all places are statutes. The definition of law was
therefore unnecessary for the makers of statutes, though very necessary
to them whose work it is to teach the sense of the law.
_L._ There is an accurate definition of a law in Bracton, cited by Sir
Edward Coke: _Lex est sanctio justa, jubens honesta, et prohibens
contraria_.
_P._ That is to say, law is a just statute, commanding those things
which are honest, and forbidding the contrary. From whence it followeth,
that in all cases it must be the honesty or dishonesty that makes the
command a law; whereas you know that but for the law we could not, as
saith St. Paul, have known what is sin. Therefore this definition is no
ground at all for any farther discourse of law. Besides, you know the
rule of honest and dishonest refers to honour, and that it is justice
only, and injustice, that the law respecteth. But that which I most
except against in this definition, is, that it supposes that a statute
made by the sovereign power of a nation may be unjust. There may indeed
in a statute-law, made by men, be found iniquity, but not injustice.
_L._ This is somewhat subtile. I pray deal plainly. What is the
difference between injustice and iniquity?
_P._ I pray you tell me first, what is the difference between a court of
justice, and a court of equity?
_L._ A court of justice is that which hath cognizance of such causes as
are to be ended by the positive laws of the land; and a court of equity
is that, to which belong such causes as are to be determined by equity;
that is to say, by the law of reason.
_P._ You see then that the difference between injustice and iniquity is
this; that injustice is the transgression of a statute-law, and iniquity
the transgression of the law of reason. But perhaps you mean by
common-law, not the law itself, but the manner of proceeding in the law,
as to matter of fact, by twelve men, freeholders; though those twelve
men are no court of equity, nor of justice, because they determine not
what is just or unjust, but only whether it be done or not done; and
their judgment is nothing else but a confirmation of that which is
properly the judgment of the witnesses. For to speak exactly, there
cannot possibly be any judge of fact besides the witnesses.
_L._ How would you have a law defined?
_P._ Thus; a law is the command of him or them that have the sovereign
power, given to those that be his or their subjects, declaring publicly
and plainly what every of them may do, and what they must forbear to do.
_L._ Seeing all judges in all courts ought to judge according to equity,
which is the law of reason, a distinct court of equity seemeth to me to
be unnecessary, and but a burthen to the people, since common-law and
equity are the same law.
_P._ It were so indeed, if judges could not err; but since they may err,
and that the King is not bound to any other law but that of equity, it
belongs to him alone to give remedy to them that, by the ignorance or
corruption of a judge, shall suffer damage.
_L._ By your definition of a law, the King’s proclamation under the
Great Seal of England is a law; for it is a command, and public, and of
the sovereign to his subjects.
_P._ Why not, if he think it necessary for the good of his subjects? For
this is a maxim at the common-law alleged by Sir Edward Coke himself, (I
Inst. sect. 306), _Quando lex aliquid concedit, concedere videtur et id
per quod devenitur ad illud_. And you know out of the same author, that
divers Kings of England have often, to the petitions in Parliament which
they granted, annexed such exceptions as these, _unless there be
necessity, saving our regality_; which I think should be always
understood, though they be not expressed; and are understood so by
common lawyers, who agree that the King may recall any grant wherein he
was deceived.
_L._ Again, whereas you make it of the essence of a law to be publicly
and plainly declared to the people, I see no necessity for that. Are not
all subjects bound to take notice of all acts of Parliament, when no act
can pass without their consent?
_P._ If you had said that no act could pass without their knowledge,
then indeed they had been bound to take notice of them; but none can
have knowledge of them but the members of the houses of Parliament;
therefore the rest of the people are excused. Or else the knights of the
shire should be bound to furnish people with a sufficient number of
copies, at the people’s charge, of the acts of Parliament, at their
return into the country; that every man may resort to them, and by
themselves, or friends, take notice of what they are obliged to. For
otherwise it were impossible they should be obeyed: and that no man is
bound to do a thing impossible, is one of Sir Edward Coke’s maxims at
the common-law. I know that most of the statutes are printed; but it
does not appear that every man is bound to buy the book of statutes, nor
to search for them at Westminster or at the Tower, nor to understand the
language wherein they are for the most part written.
_L._ I grant it proceeds from their own faults; but no man can be
excused by ignorance of the law of reason, that is to say, by ignorance
of the common-law, except children, madmen, and idiots. But you exact
such a notice of the statute-law, as is almost impossible. Is it not
enough that they in all places have a sufficient number of the penal
statutes?
_P._ Yes; if they have those penal statutes near them. But what reason
can you give me why there should not be as many copies abroad of the
statutes, as there be of the Bible?
_L._ I think it were well that every man that can read, had a
statute-book; for certainly no knowledge of those laws, by which men’s
lives and fortunes can be brought into danger, can be too much. I find a
great fault in your definition of law; which is, that every law either
forbiddeth or commandeth something. It is true that the moral law is
always a command or a prohibition, or at least implieth it. But in the
Levitical law, where it is said that he that stealeth a sheep shall
restore fourfold, what command or prohibition lieth in these words?
_P._ Such sentences as that are not in themselves general, but
judgments; nevertheless, there is in those words implied a commandment
to the judge, to cause to be made a fourfold restitution.
_L._ That is right.
_P._ Now define what justice is, and what actions and men are to be
called just.
_L._ Justice is the constant will of giving to every man his own; that
is to say, of giving to every man that which is his right, in such
manner as to exclude the right of all men else to the same thing. A just
action is that which is not against the law. A just man is he that hath
a constant will to live justly; if you require more, I doubt there will
no man living be comprehended within the definition.
_P._ Seeing then that a just action, according to your definition, is
that which is not against the law; it is manifest that before there was
a law, there could be no injustice; and therefore laws are in their
nature antecedent to justice and injustice. And you cannot deny but
there must be law-makers, before there were any laws, and consequently
before there was any justice, (I speak of human justice); and that
law-makers were before that which you call _own_, or property of goods
or lands, distinguished by _meum_, _tuum_, _alienum_.
_L._ That must be granted; for without statute-laws, all men have right
to all things; and we have had experience, when our laws were silenced
by civil war, there was not a man, that of any goods could say assuredly
they were his own.
_P._ You see then that no private man can claim a propriety in any
lands, or other goods, from any title from any man but the King, or them
that have the sovereign power; because it is in virtue of the
sovereignty, that every man may not enter into and possess what he
pleaseth; and consequently to deny the sovereign anything necessary to
the sustaining of his sovereign power, is to destroy the propriety he
pretends to. The next thing I will ask you is, how you distinguish
between law and right, or _lex_ and _jus_.
_L._ Sir Edward Coke in divers places makes _lex_ and _jus_ to be the
same, and so _lex communis_ and _jus communis_, to be all one; nor do I
find that he does in any place distinguish them.
_P._ Then will I distinguish them, and make you judge whether my
distinction be not necessary to be known by every author of the
common-law. For law obligeth me to do, or forbear the doing of
something; and therefore it lays upon me an obligation. But my right is
a liberty left me by the law to do any thing which the law forbids me
not, and to leave undone any thing which the law commands me not. Did
Sir Edward Coke see no difference between being bound and being free?
_L._ I know not what he saw, but he has not mentioned it. Though a man
may dispense with his own liberty, he cannot do so with the law.
_P._ But what are you better for your right, if a rebellious company at
home, or an enemy from abroad, take away the goods, or dispossess you of
the lands you have a right to? Can you be defended or repaired, but by
the strength and authority of the King? What reason therefore can be
given by a man that endeavours to preserve his propriety, why he should
deny or malignly contribute to the strength that should defend him or
repair him? Let us see now what your books say to this point, and other
points of the right of sovereignty. Bracton, the most authentic author
of the common law, (fol. 55), saith thus: _Ipse Dominus Rex habet omnia
jura in manu sua, sicut Dei vicarius; habet etiam ea quæ sunt pacis;
habet etiam coercionem, ut delinquentes puniat; item habet in potestate
sua leges. Nihil enim prodest jura condere, nisi sit qui jura tueatur._
That is to say: Our Lord the King hath all right in his own hands; is
God’s vicar; he has all that concerns the peace; he has the power to
punish delinquents; all the laws are in his power: to make laws is to no
purpose, unless there be somebody to make them obeyed. If Bracton’s law
be reason, as I and you think it is, what temporal power is there which
the King hath not? Seeing that at this day all the power spiritual,
which Bracton allows the Pope, is restored to the crown; what is there
that the King cannot do, excepting sin against the law of God? The same
Bracton, (_lib._ ii. _c._ 8, fol. 5), saith thus: _Si autem a Rege
petatur, cum breve non currat contra ipsum, locus erit supplicationi
quod factum suum corrigat et emendet; quod quidem si non fecerit, satis
sufficit ei ad pœnam, quod Dominum expectet ultorem: nemo quidem de
factis suis præsumat disputare, multo fortius contra factum suum
venire_. That is to say: If any thing be demanded of the King, seeing a
writ lieth not against him, he is put to his petition, praying him to
correct and amend his own fact; which if he will not do, it is a
sufficient penalty for him, that he is to expect a punishment from the
Lord: no man may presume to dispute of what he does, much less to resist
him. You see by this, that this doctrine concerning the rights of
sovereignty, so much cried down by the Long Parliament, is the ancient
common-law, and that the only bridle of the Kings of England, ought to
be the fear of God. And again, Bracton, (_lib._ ii. _c._ 24, fol. 55),
says, that the rights of the Crown cannot be granted away: _Ea vero quæ
jurisdictionis sunt et pacis, et ea quæ sunt justitiæ et paci annexa, ad
nullum pertinent nisi ad coronam et dignitatem Regiam, nec a corona
separari poterunt, nec a privata persona possideri_. This is to say:
those things which belong to jurisdiction and peace, and those things
that are annexed to justice and peace, appertain to none but to the
crown and dignity of the King, nor can be separated from the crown, nor
be possessed by a private person. Again, you will find in Fleta, a
law-book written in the time of Edward II, that liberties, though
granted by the King, if they tend to the hinderance of justice, or
subversion of the regal power, were not to be used, nor allowed; for in
that book, (_lib._ i. c. 20, §54) concerning articles of the crown,
which the justices itinerant are to enquire of, the 54th article is
this: You shall inquire, _de libertatibus concessis quæ impediunt
communem justitiam, et Regiam potestatem subvertunt_. Now what is a
greater hinderance to common justice, or a greater subversion of the
regal power, than a liberty in subjects to hinder the King from raising
money necessary to suppress or prevent rebellions, which doth destroy
justice, and subvert the power of the sovereignty? Moreover, when a
charter is granted by the King in these words: “_Dedita etc. ... coram
etc. ... pro me et hæredibus meis_:” the grantor by the common-law, as
Sir Edward Coke says in his Commentaries on Littleton, is to warrant his
gift; and I think it reason, especially if the gift be upon
consideration of a price paid. Suppose a foreign state should lay claim
to this kingdom, (it is no matter as to the question I am putting,
whether the claim be unjust), how would you have the King to warrant to
every freeholder in England the lands they hold of him by such a
charter? If he cannot levy money, their estates are lost, and so is the
King’s estate; and if the King’s estate be gone, how can he repair the
value due upon the warranty? I know that the King’s charters are not so
merely grants, as that they are not also laws; but they are such laws as
speak not to all the King’s subjects in general, but only to his
officers; implicitly forbidding them to judge or execute any thing
contrary to the said grants. There be many men that are able judges of
what is right reason, and what not; when any of these shall know that a
man has no superior nor peer in the kingdom, he will hardly be persuaded
he can be bound by any law of the kingdom, or that he who is subject to
none but God, can make a law upon himself, which he cannot also as
easily abrogate as he made it. The main argument, and that which so much
taketh with the throng of people, proceedeth from a needless fear put
into their minds by such men as mean to make use of their hands to their
own ends. For if, say they, the King may notwithstanding the law do what
he please, and nothing to restrain him but the fear of punishment in the
world to come, then, in case there come a king that fears no such
punishment, he may take away from us, not only our lands, goods, and
liberties, but our lives also if he will. And they say true; but they
have no reason to think he will, unless it be for his own profit; which
cannot be, for he loves his own power; and what becomes of his power
when his subjects are destroyed or weakened, by whose multitude and
strength he enjoys his power, and every one of his subjects his fortune?
And lastly, whereas they sometimes say the King is bound, not only to
cause his laws to be observed, but also to observe them himself; I think
the King causing them to be observed is the same thing as observing them
himself. For I never heard it taken for good law, that the King may be
indicted, or appealed, or served with a writ, till the Long Parliament
practised the contrary upon the good King Charles; for which divers of
them were executed, and the rest by this our present King pardoned.
_L._ Pardoned by the King and Parliament.
_P._ By the King in Parliament if you will, but not by the King and
Parliament. You cannot deny, but that the pardoning of injury belongs to
the person that is injured; treason, and other offences against the
peace and against the right of the sovereign, are injuries done to the
King; and therefore whosoever is pardoned any such offence, ought to
acknowledge he owes his pardon to the King alone: but as to such
murders, felonies, and other injuries as are done to any subject how
mean soever, I think it great reason that the parties endamaged ought to
have satisfaction before such pardon be allowed. And in the death of a
man, where restitution of life is impossible, what can any friend, heir,
or other party that may appeal, require more than reasonable
satisfaction some other way? Perhaps he will be content with nothing but
life for life; but that is revenge, and belongs to God, and under God to
the King, and none else; therefore if there be reasonable satisfaction
tendered, the King without sin, I think, may pardon him. I am sure, if
the pardoning him be a sin, that neither King, nor Parliament, nor any
earthly power can do it.
_L._ You see by this your own argument, that the Act of _Oblivion_,
without a Parliament, could not have passed; because, not only the King,
but also most of the Lords, and abundance of common people had received
injuries; which not being pardonable but by their own assent, it was
absolutely necessary that it should be done in Parliament, and by the
assent of the Lords and Commons.
_P._ I grant it; but I pray you tell me now what is the difference
between a general pardon, and an act of _oblivion_?
_L._ The word Act of _Oblivion_ was never in our books before; but I
believe it is in yours.
_P._ In the state of Athens long ago, for the abolishing of the civil
war, there was an act agreed on; that from that time forward, no man
should be molested for anything before that act done, whatsoever,
without exception; which act the makers of it called an act of
_oblivion_; not that all injuries should be forgotten (for then we could
never have had the story), but that they should not rise up in judgment
against any man. And in imitation of this act, the like was propounded,
though it took no effect, upon the death of Julius Cæsar, in the senate
of Rome. By such an act you may easily conceive that all accusations for
offences past were absolutely dead and buried; and yet we have no great
reason to think, that the objecting one to another of the injuries
pardoned, was any violation of those acts, except the same were so
expressed in the act itself.
_L._ It seems then that the act of _oblivion_ was here no more, nor of
other nature, than a general pardon.
[Sidenote: Of Courts.]
_P._ Since you acknowledge that in all controversies, the judicature
originally belongeth to the King, and seeing that no man is able in his
own person to execute an office of so much business: what order is taken
for deciding of so many and so various controversies?
_L._ There be divers sorts of controversies, some of which are
concerning men’s titles to lands and goods; and some goods are
corporeal, as lands, money, cattle, corn, and the like, which may be
handled or seen; and some incorporeal, as privileges, liberties,
dignities, offices, and many other good things, mere creatures of the
law, and cannot be handled or seen; and both of these kinds are
concerning _meum_ and _tuum_. Others there are concerning crimes
punishable divers ways: and amongst some of these, part of the
punishment is some fine or forfeiture to the King; and then it is called
a plea of the Crown, in case the King sue the party; otherwise it is but
a private plea, which they call an appeal. And though upon judgment in
an appeal the King shall have his forfeiture, yet it cannot be called a
plea of the Crown, but when the Crown pleadeth for it. There be also
other controversies concerning the government of the Church, in order to
religion and virtuous life. The offences both against the Crown and
against the laws of the Church, are crimes: but the offences of one
subject against another, if they be not against the Crown, the King
pretendeth nothing in those pleas but the reparation of his subjects
injured.
_P._ A crime is an offence of any kind whatsoever, for which a penalty
is ordained by the law of the land: but you must understand that damages
awarded to the party injured, has nothing common with the nature of a
penalty, but is merely a restitution or satisfaction, due to the party
grieved by the law of reason, and consequently is no more a punishment
than is the paying of a debt.
_L._ It seems by this definition of a crime, you make no difference
between a crime and a sin.
_P._ All crimes are indeed sins, but not all sins crimes. A sin may be
in the thought or secret purpose of a man, of which neither a judge, nor
a witness, nor any man can take notice; but a crime is such a sin as
consists in an action against the law, of which action he can be
accused, and tried by a judge, and be convinced or cleared by witnesses.
Farther; that which is no sin in itself, but indifferent, may be made
sin by a positive law: as when the statute was in force that no man
should wear silk in his hat, after the statute such wearing of silk was
a sin, which was not so before. Nay, sometimes an action that is good in
itself, by the statute law may be made a sin; as if a statute should be
made to forbid the giving of alms to a strong and sturdy beggar, such
alms, after that law, would be a sin, but not before; for then it was
charity, the object whereof is not the strength or other quality of the
poor man, but his poverty. Again, he that should have said in Queen
Mary’s time, that the Pope had no authority in England, should have been
burnt at a stake; but for saying the same in the time of Queen
Elizabeth, should have been commended. You see by this, that many things
are made crimes, and no crime, which are not so in their own nature, but
by diversity of law, made upon diversity of opinion or of interest by
them which have authority: and yet those things, whether good or evil,
will pass so with the vulgar, if they hear them often with odious terms
recited, for heinous crimes in themselves, as many of those opinions,
which are in themselves pious and lawful, were heretofore, by the Pope’s
interest therein, called detestable heresy. Again, some controversies
are of things done upon the sea, others of things done upon the land.
There need be many courts to the deciding of so many kinds of
controversies. What order is there taken for their distribution?
_L._ There be an extraordinary great number of courts in England. First,
there be the King’s courts, both for law and equity, in matters
temporal; which are the Chancery, the King’s Bench, the Court of Common
Pleas; and, for the King’s revenue, the Court of the Exchequer: and
there be subjects' courts by privilege, as the Courts in London and
other privileged places. And there be other courts of subjects, as the
Court of Landlords, called the Court of Barons, and the Courts of
Sheriffs. Also the Spiritual Courts are the King’s courts at this day,
though heretofore they were the Pope’s courts. And in the King’s courts,
some have their judicature by office, and some by commission; and some
authority to hear and determine, and some only to inquire, and to
certify into other courts. Now for the distribution of what pleas every
court may hold, it is commonly held, that all the pleas of the Crown,
and of all offences contrary to the peace, are to be holden in the
King’s Bench, or by commissioners. For Bracton saith: _Sciendum est,
quod si actiones sunt criminales, in Curia Domini Regis debent
determinari; cum sit ibi pœna corporalis infligenda, et hoc coram ipso
rege, si tangat personam suam, sicut crimen læsæ majestatis, vel coram
justitiariis ad hoc specialiter assignatis_: that is to say, that if the
plea be criminal, it ought to be determined in the Court of our Lord the
King, because there they have power to inflict corporal punishment; and
if the crime be against his person, as the crime of treason, it ought to
be determined before the King himself; or if it be against a private
person, it ought to be determined by justices assigned, that is to say,
before commissioners. It seems by this, that heretofore Kings did hear
and determine pleas of treason against themselves, by their own persons;
but it has been otherwise a long time, and is now; for it is now the
office of the Lord Steward of England, in the trial of a peer, to hold
that plea by a commission especially for the same. In causes concerning
_meum_ and _tuum_, the King may sue, either in the King’s Bench, or in
the Court of Common Pleas; as it appears by Fitzherbert in his Natura Brevium_, at the writ of escheat.
_P._ A king perhaps will not sit to determine of causes of treason
against his person, lest he should seem to make himself judge in his own
cause; but that it shall be judged by judges of his own making can never
be avoided, which is all one as if he were judge himself.
_L._ To the King’s Bench also, I think, belongeth the hearing and
determining of all manner of breaches of the peace whatsoever, saving
always to the King that he may do the same, when he pleaseth, by
commissioners. In the time of Henry III and Edward I (when Bracton
wrote) the King did usually send down every seven years into the
country, commissioners called justices itinerant, to hear and determine
generally all causes temporal, both criminal and civil; whose places
have been now a long time supplied by the justices of assize, with
commissions of the peace of _oyer_ and _terminer_, and of gaol-delivery.
_P._ But why may the King only sue in the King’s Bench or Court of
Common Pleas, which he will, and no other person may do the same?
_L._ There is no statute to the contrary, but it seemeth to be the
common-law. For Sir Edward Coke (IV_th Instit._), setteth down the
jurisdiction of the King’s Bench; which, he says, has: first,
jurisdiction in all pleas of the Crown. Secondly, the correcting of all
manner of errors of other justices and judges, both of judgments and
process, except of the Court of Exchequer, which, he says, is to this
court _proprium quarto modo_. Thirdly, that it has power to correct all
misdemeanours _extrajudicial_, tending to the breach of the peace, or
oppression of the subjects, or raising of factions, controversies,
debates, or any other manner of misgovernment. Fourthly, it may hold
plea by writ out of the Chancery of all trespasses done _vi et armis_.
Fifthly, it hath power to hold plea by bill for debt, detenue, covenant,
promise, and all other personal actions. But of the jurisdiction of the
King’s Bench in actions real he says nothing; save, that if a writ in a
real action be abated by judgment in the Court of Common Pleas, and that
the judgment be by a writ of error reversed in the King’s Bench, then
the King’s Bench may proceed upon the writ.
_P._ But how is the practice?
_L._ Real actions are commonly decided, as well in the King’s Bench, as
in the Court of Common Pleas.
_P._ When the King by authority in writing maketh a Lord Chief Justice
of the King’s Bench; does he not set down what he makes him for?
_L._ Sir Edward Coke sets down the letters-patent, whereby of ancient
time the Lord Chief Justice was constituted, wherein is expressed to
what end he hath his office; _viz. pro conservatione nostra et
tranquillitatis regni nostri, et ad justitiam universis et singulis de
regno nostro exhibendam, constituimus dilectum et fidelem nostrum_ P.B.
_Justitiarium Angliæ, quamdiu nobis placuerit, Capitalem, etc._: that is
to say, for the preservation of ourself, and of the peace of our realm,
and for the doing of justice to all and singular our subjects, we have
constituted our beloved and faithful P. B. during our pleasure, Chief
Justice of England, &c.
_P._ Methinks it is very plain by these letters-patent, that all causes
temporal within the kingdom, except the pleas that belong to the
Exchequer, should be decidable by this Lord Chief Justice. For as for
causes criminal, and that concern the peace, it is granted him in these
words, “for the conservation of our self, and peace of the kingdom,”
wherein are contained all pleas criminal; and, in the doing of justice
to all and singular the King’s subjects are comprehended all pleas
civil. And as to the Court of Common Pleas, it is manifest it may hold
all manner of civil pleas, except those of the Exchequer, by _Magna
Charta_, cap. ii. So that all original writs concerning civil pleas are
returnable into either of the said courts. But how is the Lord Chief
Justice made now?
_L._ By these words in their letters-patent: _Constituimus vos
Justitiarium nostrum Capitalem ad placita coram nobis tenenda, durante
beneplacito nostro_: that is to say, we have made you our Chief Justice,
to hold pleas before ourself, during our pleasure. But this writ, though
it be shorter, does not at all abridge the power they had by the former.
And for the letters-patent for the Chief Justice of the Common Pleas,
they go thus: _Constituimus dilectum et fidelem, etc., Capitalem
Justitiarium de Communi Banco, habendum, etc., quamdiu nobis placuerit,
cum vadiis et fœdis ab antiquo debitis et consuetis. Id est_, We have
constituted our beloved and faithful, &c., Chief Justice of the Common
Bench, to have, &c., during our pleasure, with the ways and fees
thereunto heretofore due, and usual.
_P._ I find in history, that there have been in England always a
Chancellor and a Chief Justice of England, but of a Court of Common
Pleas there is no mention before _Magna Charta_. Common pleas there were
ever both here, and, I think, in all nations; for common pleas and civil
pleas I take to be the same.
_L._ Before the statute of _Magna Charta_, common pleas, as Sir Edward
Coke granteth, (2 _Inst._ p. 21), might have been holden in the King’s
Bench; and that court being removeable at the King’s will, the returns
of writs were _Coram nobis ubicunque fuerimus in Anglia_; whereby great
trouble of jurors ensued, and great charges of the parties, and delay of
justice; and for these causes it was ordained, that the common pleas
should not follow the King, but be held in a place certain.
_P._ Here Sir Edward Coke declares his opinion, that no common plea can
be holden in the King’s Bench, in that he says they might have been
holden then. And yet this doth not amount to any probable proof, that
there was any Court of Common Pleas in England before _Magna Charta_.
For this statute being to ease the jurors, and lessen the charges of
parties, and for the expedition of justice, had been in vain, if there
had been a Court of Common Pleas then standing; for such a court was not
necessarily to follow the King, as was the Chancery and the King’s
Bench. Besides, unless the King’s Bench, wheresoever it was, held plea
of civil causes, the subject had not at all been eased by this statute.
For supposing the King at York, had not the King’s subjects about
London, jurors and parties, as much trouble and charge to go to York, as
the people about York had before to go to London? Therefore I can by no
means believe otherwise, than that the erection of the Court of Common
Pleas was the effect of that statute of _Magna Charta_, cap. 11; and
before that time not existent, though I think that for the multiplicity
of suits in a great kingdom there was need of it.
_L._ Perhaps there was not so much need of it as you think. For in those
times the laws, for the most part, were in settling, rather than
settled; and the old Saxon laws concerning inheritances were then
practised, by which laws speedy justice was executed by the King’s
writs, in the courts of Barons, which were landlords to the rest of the
freeholders; and suits of barons in County courts; and but few suits in
the King’s courts, but when justice could not be had in those inferior
courts. But at this day there be more suits in the King’s courts, than
any one court can despatch.
_P._ Why should there be more suits now, than formerly? For I believe
this kingdom was as well peopled then as now.
_L._ Sir Edward Coke (4 _Inst._ p. 76) assigneth for it six causes: 1.
Peace. 2. Plenty. 3. The dissolution of religious houses, and dispersing
of their lands among so many several persons. 4. The multitude of
informers. 5. The number of concealers. 6. The multitude of attorneys.
_P._ I see Sir Edward Coke has no mind to lay any fault upon the men of
his own profession, and that he assigns for causes of the mischiefs,
such things as would be mischief and wickedness to amend. For if peace
and plenty be the cause of this evil, it cannot be removed but by war
and beggary; and the quarrels arising about the lands of religious
persons cannot arise from the lands, but from the doubtfulness of the
laws. And for informers, they were authorized by statutes; to the
execution of which statutes they are so necessary, as that their number
cannot be too great; and if it be too great, the fault is in the law
itself. The number of concealers are indeed a number of cozeners, which
the law may easily correct. And lastly, for the multitude of attorneys,
it is the fault of them that have the power to admit or refuse them. For
my part, I believe that men at this day have better learned the art of
cavilling against the words of a statute, than heretofore they had, and
thereby encourage themselves and others to undertake suits upon little
reason. Also the variety and repugnancy of judgments of common-law, do
oftentimes put men to hope for victory in causes whereof in reason they
had no ground at all: also the ignorance of what is equity in their own
causes, which equity not one man in a thousand ever studied. And the
lawyers themselves seek not for their judgments in their own breasts,
but in the precedents of former judges: as the ancient judges sought the
same, not in their own reason, but in the laws of the empire. Another,
and perhaps the greatest cause of multitude of suits, is this, that for
want of registering of conveyances of land, which might easily be done
in the townships where the lands lay, a purchase cannot easily be had
which will not be litigious. Lastly, I believe the covetousness of
lawyers was not so great in ancient time, which was full of trouble, as
they have been since in time of peace; wherein men have leisure to study
fraud, and get employment from such men as can encourage to contention.
And how ample a field they have to exercise this mystery in, is manifest
from this, that they have a power to scan and construe every word in a
statute, charter, feoffment, lease, or other deed, evidence, or
testimony. But to return to the jurisdiction of this Court of the King’s
Bench, where, as you say, it hath power to correct and amend the errors
of all other judges, both in process and in judgments; cannot the judges
of the Common Pleas correct error in process in their own courts,
without a writ of error from another court?
_L._ Yes; and there be many statutes which command them so to do.
_P._ When a writ of error is brought out of the King’s Bench, be it
either error in process or in law, at whose charge is it to be done?
_L._ At the charge of the client.
_P._ I see no reason for that; for the client is not in fault, who never
begins a suit but by the advice of his counsel, learned in the law, whom
he pays for his counsel given. Is not this the fault of his counsellor?
Nor when a judge in the Common Pleas hath given an erroneous sentence,
is it always likely that the judge of the King’s Bench will reverse the
judgment, (though there be no question, but as you may find in Bracton
and other learned men, he has power to do it); because being professors
of the same common-law, they are persuaded, for the most part, to give
the same judgments. For example: if Sir Edward Coke, in the last term
that he sat as Lord Chief Justice in the Court of Common Pleas, had
given an erroneous judgment, is it likely that when he was removed, and
made Lord Chief Justice of the King’s Bench, he would therefore have
reversed the said judgment? It is possible he might, but not very
likely. And therefore I do believe there is some other power, by the
King constituted, to reverse erroneous judgments, both in the King’s
Bench and in the Court of Common Pleas.
_L._ I think not; for there is a statute to the contrary, made 4 _Henry
IV_, cap. 23, in these words: Whereas, as well in plea real, as in plea
personal, after judgment in the court of our Lord the King, the parties
be made to come upon grievous pain sometimes before the King himself,
sometimes before the King’s council, and sometimes to the Parliament, to
answer thereof anew, to the great impoverishing of the parties
aforesaid, and to the subversion of the common-law of the land, it is
ordained and established, that after judgment given in the court of our
Lord the King, the parties and their heirs shall be there in peace,
until the judgment be undone by attaint, or by error, if there be error,
as hath been used by the laws in the times of the King’s progenitors.
_P._ This statute is so far from being repugnant to that I say, as it
seemeth to me to have been made expressly to confirm the same. For the
substance of the statute is, that there shall be no suit made by either
of the parties for anything adjudged, either in the King’s Bench, or
Court of Common Pleas, before the judgment be undone by error, or
corruption proved; and that this was the common-law before the making of
this statute, which could not be, except there were before this statute
some courts authorized to examine and correct such errors as by the
plaintiff should be assigned. The inconvenience which by this statute
was to be remedied was this, that often judgment given in the King’s
courts, by which are meant in this place the King’s Bench and Court of
Common Pleas, the party against whom the judgment was given, did begin a
new suit, and cause his adversary to come before the King himself. Here,
by the King himself must be understood the King in person: for though in
a writ by the words _coram nobis_ is understood the King’s Bench, yet in
a statute it is never so; nor is it strange, seeing in those days the
King did usually sit in court with his council to hear causes, as
sometimes King James. And sometimes the same parties commenced their
suit before the Privy Council, though the King were absent, and
sometimes before the Parliament, the former judgment yet standing. For
remedy whereof, it was ordained by this statute, that no man should
renew his suit till the former judgment was undone by attaint or error;
which reversing of a judgment had been impossible, if there had been no
court besides the aforesaid two courts, wherein the errors might be
assigned, examined, and judged; for no court can be esteemed, in law or
reason, a competent judge of its own errors. There was therefore before
this statute, some other court existent for the hearing of errors, and
reversing of erroneous judgments. What court this was, I inquire not
yet; but I am sure it could not be either the Parliament or the Privy
Council, or the court wherein the erroneous judgment was given.
_L._ The _Doctor and Student_ discourses of this statute (cap. 18 et
seq.) much otherwise than you do. For the author of that book saith,
that against an erroneous judgment all remedy is by this statute taken
away. And though neither reason, nor the office of a King, nor any law
positive, can prohibit the remedying of any injury, much less of an
unjust sentence; yet he shows many statutes, wherein a man’s conscience
ought to prevail above the law.
_P._ Upon what ground can he pretend, that all remedy in this case is by
this statute prohibited?
_L._ He says it is thereby enacted, that judgment given by the King’s
Courts shall not be examined in the Chancery, Parliament, nor elsewhere.
_P._ Is there any mention of Chancery in this act? It cannot be examined
before the King and his council, nor before the Parliament; but you see
that before the statute it was examined somewhere, and that this statute
will have it examined there again. And seeing the Chancery was
altogether the highest office of judicature in the kingdom for matter of
equity, and that the Chancery is not here forbidden to examine the
judgments of all other courts, at least it is not taken from it by this
statute. But what cases are there in this chapter of the Doctor and
Student, by which it can be made probable, that when law and conscience,
or law and equity, seem to oppugn one another, the written law should be
preferred?
_L._ If the defendant wage his law in an action of debt brought upon a
true debt, the plaintiff hath no means to come to his debt by way of
compulsion, neither by _subpœna_, nor otherwise; and yet the defendant
is bound in conscience to pay him.
_P._ Here is no preferring, that I see, of the law above conscience or
equity. For the plaintiff in this case loseth not his debt for want
either of law, or equity, but for want of proof; for neither law nor
equity can give a man his right, unless he prove it.
_L._ Also if the grand jury in attaint affirm a false verdict given by
the petty jury, there is no further remedy, but the conscience of the
party.
_P._ Here again the want of proof is the want of remedy. For if he can
prove that the verdict given was false, the King can give him remedy
such way as himself shall think best, and ought to do it, in case the
party shall find surety, if the same verdict be again affirmed, to
satisfy his adversary for the damage and vexation he puts him to.
_L._ But there is a statute made since, _viz._ 27 _Eliz._ c. 8, by which
that statute of 4 _Hen. IV._ 23, is in part taken away. For by that
statute, erroneous judgments given in the King’s Bench, are by a writ of
error to be examined in the Exchequer-chamber, before the justices of
the Common Bench and the Barons of the Exchequer; and by the preamble of
this act it appears, that erroneous judgments are only to be reformed by
the High Court of Parliament.
_P._ But here is no mention, that the judgments given in the Court of
Common Pleas should be brought in to be examined in the
Exchequer-chamber. Why therefore may not the Court of Chancery examine a
judgment given in the Court of Common Pleas?
_L._ You deny not but, by the ancient law of England, the King’s Bench
may examine the judgment given in the Court of Common Pleas.
_P._ It is true. But why may not also the Court of Chancery do the same,
especially if the fault of the judgment be against equity, and not
against the letter of the law?
_L._ There is no necessity of that; for the same court may examine both
the letter and the equity of the statute.
_P._ You see by this, that the jurisdiction of courts cannot easily be
distinguished, but by the King himself in his Parliament. The lawyers
themselves cannot do it; for you see what contention there is between
courts, as well as between particular men. And whereas you say, that law
of 4 _Hen. IV._ 23, is by that of 27 _Eliz._ c. 8, taken away, I do not
find it so. I find indeed a diversity of opinion between the makers of
the former and the latter statute, in the preamble of the latter and
conclusion of the former. The preamble of the latter is, forasmuch as
erroneous judgments given in the Court called the King’s Bench, are only
to be reformed in the High Court of Parliament; and the conclusion of
the former is, that the contrary was law in the times of the King’s
progenitors. These are no parts of those laws, but opinions only
concerning the ancient custom in that case, arising from the different
opinions of the lawyers in those different times, neither commanding nor
forbidding anything; though of the statutes themselves, the one forbids
that such pleas be brought before the Parliament, the other forbids it
not. But yet, if after the act of _Hen. IV._ such a plea had been
brought before the Parliament, the Parliament might have heard and
determined it. For the statute forbids not that; nor can any law have
the force to hinder the Parliament of any jurisdiction whatsoever they
please to take upon them, seeing it is a court of the King and of all
the people together, both Lords and Commons.
_L._ Though it be, yet seeing the King (as Sir Edward Coke affirms, 4
_Inst._ p. 71) hath committed all his power judicial, some to one court,
and some to another, so as if any man would render himself to the
judgment of the King, in such case where the King hath committed all his
power judicial to others, such a render should be to no effect. And p.
73, he saith farther: that in this court, the Kings of this realm have
sitten on the high bench, and the judges of that court on the lower
bench, at his feet; but judicature belongeth only to the judges of that
court, and in his presence they answer all motions.
_P._ I cannot believe that Sir Edward Coke, how much soever he desired
to advance the authority of himself and other justices of the
common-law, could mean that the King in the King’s Bench sat as a
spectator only, and might not have answered all motions, which his
judges answered, if he had seen cause for it. For he knew that the King
was supreme judge then in all causes temporal, and is now in all causes
both temporal and ecclesiastical; and that there is an exceeding great
penalty ordained by the laws for them that shall deny it. But Sir Edward
Coke, as he had (you see) in many places before, hath put a fallacy upon
himself, by not distinguishing between committing and transferring. He
that transferreth his power, hath deprived himself of it: but he that
committeth it to another to be exercised in his name and under him, is
still in the possession of the same power. And therefore, if a man
render himself, that is to say, appealeth to the King from any judge
whatsoever, the King may receive his appeal; and it shall be effectual.
_L._ Besides these two courts, the King’s Bench for Pleas of the Crown,
and the Court of Common Pleas for causes civil, according to the
common-law of England, there is another court of justice, that hath
jurisdiction in causes both civil and criminal, and is as ancient a
court at least as the Court of Common Pleas, and this is the Court of
the Lord Admiral; but the proceedings therein are according to the laws
of the Roman empire, and the causes to be determined there are such as
arise upon the marine sea: for so it is ordained by divers statutes, and
confirmed by many precedents.
_P._ As for the statutes, they are always law, and reason also; for they
are made by the assent of all the kingdom; but precedents are judgments,
one contrary to another; I mean divers men in divers ages, upon the same
case give divers judgments. Therefore I will ask your opinion once more
concerning any judgments besides those of the King, as to their validity
in law. But what is the difference between the proceedings of the Court
of Admiralty, and the Court of Common-law?
_L._ One is, that the Court of Admiralty proceeded by two witnesses,
without any either grand-jury to indict, or petty to convict; and the
judge giveth sentence according to the laws imperial, which of old time
were in force in all this part of Europe, and now are laws, not by the
will of any other Emperor or foreign power, but by the will of the Kings
of England that have given them force in their own dominions; the reason
whereof seems to be, that the causes that arise at sea are very often
between us, and people of other nations, such as are governed for the
most part by the self-same laws imperial.
_P._ How can it precisely enough be determined at sea, especially near
the mouth of a very great river, whether it be upon the sea, or within
the land? For the rivers also are, as well as their banks, within or a
part of one country or other.
_L._ Truly the question is difficult; and there have been many suits
about it, wherein the question has been, whose jurisdiction it is in.
_P._ Nor do I see how it can be decided but by the King himself, in case
it be not declared in the Lord Admiral’s letters-patent.
_L._ But though there be in the letters-patent a power given to hold
plea in some certain cases, not contrary to any of the statutes
concerning the Admiralty, the justices of the common-law may send a
prohibition to that court, to proceed in the plea, though it be with a
_non-obstante_ of any statute.
_P._ Methinks that that should be against the right of the Crown, which
cannot be taken from it by any subject. For that argument of Sir Edward
Coke’s, that the King has given away all his judicial power, is worth
nothing: because, as I have said before, he cannot give away the
essential rights of his Crown, and because by a _non-obstante_ he
declares he is not deceived in his grant.
_L._ But you may see by the precedents alleged by Sir Edward Coke, the
contrary has been perpetually practised.
_P._ I see not that perpetually. For who can tell but there may have
been given other judgments, in such cases, which have either been not
preserved in the records, or else by Sir Edward Coke, because they were
against his opinion, not alleged? For this is possible, though you will
not grant it to be very likely. Therefore I insist only upon this, that
no record of a judgment is a law, save only to the party pleading until
he can by law reverse the former judgment. And as to the proceeding
without juries, by two sufficient witnesses, I do not see what harm can
proceed from it to the commonwealth, nor consequently any just quarrel
that the justice of the common-law can have against their proceedings in
the Admiralty. For the proof of the fact in both courts lieth merely on
the witnesses; and the difference is no more, but that in the imperial
law, the judge of the court judgeth of the testimony of the witnesses,
and the jury doth it in a court of common-law. Besides, if a court of
common-law should chance to encroach upon the jurisdiction of the
Admiral, may not he send a prohibition to the court of common-law to
forbid their proceeding? I pray you tell me what reason there is for the
one, more than for the other?
_L._ I know none but long custom, for I think it was never done. The
highest ordinary court in England is the Court of Chancery, wherein the
Lord Chancellor, or otherwise Keeper of the Great Seal, is the only
judge. This court is very ancient, as appears by Sir Edward Coke, 4
_Inst._ p. 78, where he nameth the Chancellors of King Edgar, King
Etheldred, King Edmund, and King Edward the Confessor. His office is
given to him, without letters-patent, by the King’s delivery to him of
the Great Seal of England; and whosoever hath the keeping of the Great
Seal of England, hath the same, and the whole jurisdiction that the Lord
Chancellor ever had by the statute of 5 _Eliz._ _c._ 18, wherein it is
declared, that such is, and always has been the common-law. And Sir
Edward Coke says, he has his name of Chancellor from the highest point
of his jurisdiction, viz. a _cancellando_; that is, from cancelling the
King’s letters-patent, by drawing strokes through it like a lattice.
_P._ Very pretty. It is well enough known that _Cancellarius_ was a
great officer under the Roman empire, whereof this island was once a
member, and that the office came into this kingdom, either with, or in
imitation of the Roman government. Also, it was long after the time of
the twelve Cæsars, that this officer was created in the state of Rome.
For till after Septimius Severus his time, the emperors did diligently
enough take cognizance of all causes and complaints for judgments given
in the Courts of the Prætors, which were in Rome the same that the
judges of the common-law are here. But by the continual civil wars in
after times for the choosing of Emperors, that diligence by little and
little ceased. And afterwards, as I have read in a very good author of
the Roman civil law, the number of complaints being much increased, and
being more than the Emperor could dispatch, he appointed an officer as
his clerk, to receive all such petitions; and that this clerk caused a
partition to be made in a room convenient, in which partition-wall, at
the heighth of a man’s reach, he placed at convenient distances certain
bars; so that when a suitor came to deliver his petition to the clerk,
who was sometimes absent, he had no more to do but to throw in his
petition between those bars, which in Latin are called properly
_cancelli_; not that any certain form of those bars, or any bars at all
were necessary, for they might have been thrown over, though the whole
space had been left open; but because they were _cancelli_, the clerk
attendant, and keeping his office there, was called _Cancellarius_. And
any court bar may properly enough be called _cancelli_, which does not
signify a lattice; for that is but a mere conjecture grounded upon no
history nor grammar, but taken up at first, as is likely, by some boy
that could find no other word in the dictionary for a lattice, but
_cancelli_. The office of this Chancellor was at first but to breviate
the matter of the petitions, for the easing of the Emperor; but
complaints increasing daily, they were too many, considering other
businesses more necessary for the Emperor to determine; and this caused
the Emperor to commit the determination of them to the Chancellor again.
What reason doth Sir Edward Coke allege to prove, that the highest point
of the Chancellor’s jurisdiction is to cancel his master’s
letters-patent, after they were sealed with his master’s seal; unless he
hold plea concerning the validity of them, or of his master’s meaning in
them, or of the surreptitious getting of them, or of the abusing of
them, which are all causes of equity? Also, seeing the Chancellor hath
his office only by the delivery of the Great Seal, without any
instruction, or limitation of the process of his court to be used; it is
manifest, that in all causes whereof he has the hearing, he may proceed
by such manner of hearing and examining of witnesses, with jury or
without jury, as he shall think fittest for the exactness, expedition,
and equity of the decrees. And therefore, if he think the custom of
proceeding by jury, according to the custom of England in Courts of
common-law, tend more to equity, which is the scope of all the judges in
the world, or ought to be, he ought to use that method; or if he think
better of another proceeding, he may use it, if it be not forbidden by a
statute.
_L._ As for this reasoning of yours, I think it well enough. But there
ought to be had also a reverend respect to customs not unreasonable; and
therefore, I think, Sir Edward Coke says not amiss, that in such cases
where the Chancellor will proceed by the rule of the common-law, he
ought to deliver the record in the King’s Bench; and also it is
necessary for the Lord Chancellor to take care of not exceeding as it is
limited by statutes.
_P._ What are the statutes by which his jurisdiction is limited? I know
that by the 27 _Eliz._ _c._ 8, he cannot reverse a judgment given in the
King’s Bench for debt, detinue, &c.; nor before the statute could he
ever, by virtue of his office, reverse a judgment in pleas of the Crown,
given by the King’s Bench, that hath the cognizance of such pleas. Nor
need he; for the judges themselves, when they think there is need to
relieve a man oppressed by ill witnesses, or power of great men
prevailing on the jury, or by error of the jury, though it be in case of
felony, may stay the execution and inform the King, who will in equity
relieve him. As to the regard we ought to have to custom, we will
consider of it afterwards.
_L._ First, in a Parliament holden the 13th of Richard II, the Commons
petitioned the King, that neither the Chancellor, nor other Chancellor,
do make any order against the common-law, nor that any judgment be given
without due process of law.
_P._ This is no unreasonable petition; for the common-law is nothing
else but equity: and by this statute it appears, that the Chancellors,
before that statute, made bolder with the Courts of common-law than they
did afterward; but it does not appear that common-law in this statute
signifies any thing else but generally the law temporal of the realm,
nor was this statute ever printed, that such as I might take notice of
it. But whether it be a statute or not, I know not, till you tell me
what the Parliament answered to this petition.
_L._ The King’s answer was, the usages heretofore shall stand, so as the
King’s royalty be saved.
_P._ This is flatly against Sir Edward Coke, concerning the Chancery.
_L._ In another Parliament, 17 _Rich. II_, it is enacted, at the
petition of the Commons, that forasmuch as people were compelled to come
before the King’s Council, or in Chancery, by writs grounded upon untrue
suggestions, the Chancellor for the time being, presently after such
suggestions be duly found and proved untrue, shall have power to ordain
and award damages according to his discretion, to him which is so
travelled unduly as is aforesaid.
_P._ By this statute it appears, that when a complaint is made in
Chancery upon undue suggestions, the Chancellor shall have the
examination of the said suggestions, and as he may award damages when
the suggestions are untrue, so he may also proceed by process to the
determining of the cause, whether it be real or personal, so it be not
criminal.
_L._ Also the Commons petitioned in a Parliament of 2 _Hen. IV_, (not
printed) that no writs, nor privy seals, be sued out of Chancery,
Exchequer, or other places, to any man to appear at a day upon a pain,
either before the King and his Council, or in any other place, contrary
to the ordinary course of common-law.
_P._ What answer was given to this petition by the King?
_L._ That such writs should not be granted without necessity.
_P._ Here again, you see, the King may deny or grant any petitions in
Parliament, either as he thinks it necessary, as in this place, or as he
thinks it prejudicial or not prejudicial to his royalty; as in the
answer of the former petition, which is a sufficient proof that no part
of his legislative power, or any other essential part of royalty, can be
taken from him by a statute. Now seeing it is granted that equity is the
same thing with the law of reason, and seeing Sir Edward Coke (1 _Inst._
sec. xxi.), defines equity to be a certain reason comprehended in no
writing, but consisting only in right reason, which interpreteth and
amendeth the written law; I would fain know to what end there should be
any other Court of Equity at all, either before the Chancellor or any
other person, besides the Judges of the Civil or Common Pleas? Nay, I am
sure you can allege none but this, that there was a necessity for a
higher Court of Equity than the Courts of common-law, to remedy the
errors in judgment given by the justices of inferior courts; and the
errors in Chancery were irrevocable, except by Parliament, or by special
commission appointed thereunto by the King.
_L._ But Sir Edward Coke says, that seeing matters of fact by the
common-law are triable by a jury of twelve men, this court should not
draw the matter _ad aliud examen_, that is, to another kind of
examination, _viz._ deposition of witnesses, which should be but
evidence to a jury.
_P._ Is the deposition of witnesses any more or less, than evidence to
the Lord Chancellor? It is not therefore another kind of examination;
nor is a jury more capable of duly examining witnesses than a Lord
Chancellor. Besides, seeing all courts are bound to judge according to
equity, and that all judges in a case of equity may sometimes be
deceived, what harm is there to any man, or to the state, if there be a
subordination of judges in equity, as well as of judges in common-law?
Seeing it is provided by an Act of Parliament, to avoid vexation, that
_subpœnas_ shall not be granted till surety be found to satisfy the
party so grieved and vexed for his damages and expenses, if so be the
matter may not be made good which is contained in the bill.
_L._ There is another statute of 31 _Hen. VI._ c. 2, wherein there is a
proviso cited by Sir Edward Coke in these words: “_Provided that no
matter determinable by the laws of the realm, shall be by the said Act
determined in other form, than after the course of the same law in the
King’s Courts, having the determination of the same law_.”
_P._ This law was made but for seven years, and never continued by any
other Parliament, and the motive of this law was the great riots,
extortions, oppressions, &c. used during the time of the insurrection of
John Cade, and the indictments and condemnations wrongfully had by this
usurped authority. And thereupon the Parliament ordained, that for seven
years following no man should disobey any of the King’s writs under the
Great Seal, or should refuse to appear upon proclamation before the
King’s Council, or in the Chancery, to answer to riots, extortions, &c.;
for the first time he should lose, &c. Wherein there is nothing at all
concerning the jurisdiction of the Chancery or any other court, but an
extraordinary power given to the Chancery, and to the King’s Privy
Council, to determine of those crimes, which were not before that time
triable but only by the King’s Bench or special commission. For the Act
was made expressly for the punishment of a great multitude of crimes
committed by those who had acted under the said Cade’s authority; to
which Act the proviso was added which is here mentioned, that the
proceedings in those Courts of Chancery, and of the King’s Council,
should be such as should be used in the courts, to which the said
causes, before this Act was made, do belong: that is to say, such causes
as were criminal, should be after the order of the King’s Bench; and
such causes as were not criminal, but only against equity, should be
tried after the manner of the Chancery, or in some cases according to
the proceedings in the Exchequer. I wonder why Sir Edward Coke should
cite a statute, as this is, above two hundred years before expired, and
other two petitions, as if they were statutes, when they were not passed
by the King; unless he did it on purpose to diminish, as he endeavours
to do throughout his Institutes, the King’s authority, or to insinuate
his own opinions among the people for the law of the land; for that also
he endeavours by inserting Latin sentences, both in his text and in the
margin, as if they were principles of the law of reason, without any
authority of ancient lawyers, or any certainty of reason in themselves,
to make men believe they are the very grounds of the law of England. Now
as to the authority you ascribe to custom, I deny that any custom of its
own nature can amount to the authority of a law. For if the custom be
unreasonable, you must, with all other lawyers, confess that it is no
law, but ought to abolished; and if the custom be reasonable, it is not
the custom, but the equity that makes it law. For what need is there to
make reason law by any custom how long soever, when the law of reason is
eternal? Besides, you cannot find it in any statute, though _lex et
consuetudo_ be often mentioned as things to be followed by the judges in
their judgments, that _consuetudines_, that is to say, customs or
usages, did imply any long continuance of former time; but that it
signified such use and custom of proceeding, as was then immediately in
being before the making of such statute. Nor shall you find in any
statute the word common-law, which may not be there well interpreted for
any of the laws of England temporal; for it is not the singularity of
process used in any court that can distinguish it, so as to make it a
different law from the law of the whole nation.
_L._ If all the courts were, as you think, courts of equity, would it
not be incommodious to the commonwealth?
_P._ I think not; unless perhaps you may say, that seeing the judges,
whether they have many or few causes to be heard before them, have but
the same wages from the King, they may be too much inclined to put off
the causes they use to hear, for the easing of themselves, to some other
court, to the delay of justice, and damage of the parties suing.
_L._ You are very much deceived in that; for on the contrary, the
contention between the courts for jurisdiction is, of who shall have
most causes brought before them.
_P._ I cry you mercy, I smelt not that.
_L._ Seeing also all judges ought to give their sentence according to
equity, if it should chance that a written law should be against the law
of reason, which is equity, I cannot imagine in that case how any
judgment can be righteous.
_P._ It cannot be that a written law should be against reason; for
nothing is more reasonable than that every man should obey the law which
he hath himself assented to. But that is not always the law, which is
signified by _grammatical_ construction of the letter, but that which
the legislature thereby intended should be in force; which intention, I
confess, is a very hard matter many times to pick out of the words of
the statute, and requires great ability of understanding, and greater
meditations and consideration of such conjuncture of occasions and
incommodities, as needed a new law for a remedy. For there is scarce
anything so clearly written, that when the cause thereof is forgotten,
may not be wrested by an ignorant grammarian, or a cavilling logician,
to the injury, oppression, or perhaps destruction of an honest man. And
for this reason the Judges deserve that honour and profit they enjoy.
Since the determination of what particular causes every particular court
should have cognizance, is a thing not yet sufficiently explained, and
is in itself so difficult, as that the sages of the law themselves, (the
reason Sir Edward Coke will leave to law itself), are not yet agreed
upon it; how is it possible for a man who is no professed or no profound
lawyer, to take notice in what court he may lawfully begin his suit, or
give counsel in it to his client?
_L._ I confess that no man can be bound to take notice of the
jurisdiction of courts, till all the courts be agreed upon it amongst
themselves; but what rule to give judgment by, a judge can have, so as
never to contradict the law written, nor displease his legislator, I
understand not.
_P._ I think he may avoid both, if he take care by his sentence that he
neither punish an innocent man, nor deprive him of his damages due from
one that maliciously sueth him without reasonable cause, which to the
most of rational men and unbiassed, is not, in my opinion, very
difficult. And though a judge should, as all men may do, err in his
judgment, yet there is always such power in the laws of England, as may
content the parties, either in the Chancery, or by commissioners of
their own choosing, authorized by the King; for every man is bound to
acquiesce in the sentence of the judges he chooseth.
_L._ In what cases can the true construction of the letter be contrary
to the meaning of the lawmaker?
_P._ Very many, whereof Sir Edward Coke nameth three: fraud, accident,
and breach of confidence. But there be many more; for there be a very
great many reasonable exceptions almost to every general rule, which the
makers of the rule could not foresee; and very many words in every
statute, especially long ones, that are, as to _grammar_, of ambiguous
signification, and yet to them that know well to what end the statute
was made, perspicuous enough; and many connexions of doubtful reference,
which by a _grammarian_ may be cavilled at, though the intention of the
lawmaker be never so perspicuous. And these are the difficulties which
the judges ought to master, and can do it in respect of their ability
for which they are chosen, as well as can be hoped for; and yet there
are other men can do the same, or else the judges' places could not be
from time to time supplied. The bishops commonly are the most able and
rational men, and obliged by their profession to study equity, because
it is the law of God; and are therefore capable of being judges in a
court of equity. They are the men that teach the people what is sin;
that is to say, they are the doctors in cases of conscience. What reason
then can you show me, why it is unfit and hurtful to the commonwealth
that a bishop should be a Chancellor; as they were most often before the
time of Henry VIII, and since that time once in the reign of King James?
_L._ But Sir Edward says, that soon after that a Chancellor was made
which was no professor of the law, he finds in the rolls of the
Parliament a grievous complaint by the whole body of the realm, and a
petition that the most wise and able men within the realm might be
chosen Chancellors.
_P._ That petition was reasonable; but it does not say which are the
abler men, the judges of the common-law, or the bishops.
_L._ That is not the great question as to the ability of a judge; both
of one and the other, there are able men in their own way. But when a
judge of equity has need, almost in every case, to consider as well the
statute-law, as the law of reason, he cannot perform his office
perfectly, unless he be also ready in the statutes.
_P._ I see no great need he has to be ready in the statutes. In the
hearing of a cause, do the judges of the common-law inform the counsel
at the bar what the statute is, or the counsel the judges?
_L._ The counsel inform the judges.
_P._ Why may they not as well inform the Chancellor? Unless you will
say, that a bishop understands not as well as a lawyer what is sense,
when he hears it read in English. No, no; both the one and the other are
able enough: but to be able enough is not enough, when not the
difficulty of the case only, but also the passion of the judge is to be
conquered. I forgot to tell you of the statute of 36 _Edw.III_, c. 9,
that if any person thinking himself grieved contrary to any of the
articles above-written, or others contained in divers statutes, will
come to the Chancery, or any for him, and thereof make his complaint, he
shall presently there have remedy by force of the said articles and
statutes, without elsewhere pursuing to have remedy. By the words of
this statute it is very apparent, in my opinion, that the Chancery may
hold plea upon the complaint of the party grieved, in any case triable
at the common-law; because the party shall have present remedy in that
court, by force of this Act, without pursuing for remedy elsewhere.
_L._ Yes; but Sir Edward Coke (4 _Inst._ p. 82) answers this objection
in this manner. These words, says he, _he shall have remedy_, signify no
more but that he shall have presently there a remedial writ grounded
upon those statutes, to give him remedy at the common-law.
_P._ Very like Sir Edward Coke thought, as soon as the party had his
writ, he had his remedy, though he kept the writ in his pocket without
pursuing his complaint elsewhere: or else he thought, that the
Common-bench was not elsewhere than in the Chancery.
_L._ Then there is the Court of——
_P._ Let us stop here; for this which you have said satisfies me, that
seek no more than to distinguish between justice and equity; and from it
I conclude, that justice fulfils the law, and equity interprets the law,
and amends the judgments given upon the same law. Wherein I depart not
much from the definition of equity cited in Sir Edward Coke (1 _Inst._
sec. xxi.); _viz._ equity is a certain perfect reason, that interpreteth
and amendeth the law written; though I construe it a little otherwise
than he would have done; for no one can mend a law but he that can make
it, and therefore I say it amends not the law, but the judgments only
when they are erroneous. And now let us consider of crimes in
particular, the pleas whereof are commonly called the Pleas of the
Crown, and of the punishments belonging to them. And first of the
highest crime of all, which is high-treason. Tell me, what is
high-treason?
[Sidenote: Of crimes capital.]
_L._ The first statute that declareth what is high-treason, is the
statute of the 25 _Edw. III_, in these words: “Whereas divers opinions
have been before this time, in what case treason shall be said, and in
what not; the King, at the request of the Lords and of the Commons, hath
made declaration in the manner as hereafter follows: that is to say,
when a man doth compass or imagine the death of our Lord the King, of
our Lady the Queen, or of their eldest son and heir; or if a man doth
violate the King’s companion, or the King’s eldest daughter unmarried,
or the wife of the King’s eldest son and heir; or if a man do levy war
against our Lord the King in his realm, or be adherent to the King’s
enemies in his realm, giving to them aid and comfort in the realm or
elsewhere; and thereof be provably attainted by open deed by people of
their condition: and if a man counterfeit the King’s Great or Privy
Seal, or his money: and if a man bring false money into this realm
counterfeit to the money of England, as the money called Lushburgh, or
other like to the said money of England, knowing the money to be false,
to merchandize, and make payment in deceit of our said Lord the King,
and of his people: and if a man slay the Chancellor, Treasurer, or the
King’s Justices of one Bench or the other, Justices in Eyre, or Justices
of Assizes, and all other justices assigned to hear and determine, being
in their places and doing their offices. And is to be understood in the
cases above rehearsed, that that ought to be adjudged treason, which
extends to our royal Lord the King, and his royal Majesty; and of such
treason the forfeiture of the escheats pertains to our Lord the King, as
well the lands and tenements holden of others, as himself. And moreover
there is another manner of treason; that is to say, when a servant
slayeth his master, or a wife her husband; or when a man, secular or
religious, slayeth his prelate, to whom he oweth faith and obedience;
and of such treason the escheats ought to pertain to every Lord of his
own fee. And because many other like cases of treason may happen in time
to come, which a man cannot think nor declare at this present time, it
is accorded, that if any case supposed treason, which is not above
specified, doth happen before any justices, the justices shall tarry
without giving any judgment of the treason, till the cause be showed and
declared before the King and his Parliament, whether it ought to be
adjudged treason or other felony.”
_P._ I desired to understand what treason is, wherein no enumeration of
facts can give me satisfaction. Treason is a crime of itself, _malum in
se_, and therefore a crime at the common-law; and high-treason the
highest crime at the common-law that can be. And therefore not the
statute only, but reason without a statute makes it a crime. And this
appears by the preamble, where it is intimated, that all men, though of
divers opinions, did condemn it by the name of treason, though they knew
not what treason meant, but were forced to request the King to determine
it. That which I desire to know is, how treason might have been defined
without the statute, by a man that has no other faculty to make the
definition of it, than by mere natural reason.
_L._ When none of the lawyers have done it, you are not to expect that I
should undertake it on such a sudden.
_P._ You know that _salus populi_ is _suprema lex_, that is to say, the
safety of the people is the highest law; and that the safety of the
people of a kingdom consisteth in the safety of the King, and of the
strength necessary to defend his people, both against foreign enemies
and rebellious subjects. And from this I infer, that to compass, that
is, to design, the death of the then present King, was high treason
before the making of this statute, as being a designing of a civil war
and the destruction of the people. 2. That the design to kill the King’s
wife, or to violate her chastity, as also to violate the chastity of the
King’s heir-apparent, or of his eldest daughter unmarried, as tending to
the destruction of the certainty of the King’s issue, and by consequence
to the raising of contentions about the Crown, and destruction of the
people in succeeding time by civil war, was therefore high-treason
before this statute. 3. That to levy war against the King within the
realm, and aiding the King’s enemies, either within or without the
realm, are tending to the King’s destruction or disherison, and was
high-treason, before this statute, by the common-law. 4. That
counterfeiting the principal seals of the kingdom, by which the King
governeth his people, tendeth to the confusion of government, and
consequently to the destruction of the people, and was therefore treason
before the statute. 5. If a soldier design the killing of his general or
other officer in time of battle, or a captain hover doubtfully with his
troops, with intention to gain the favour of him that shall chance to
get the victory, it tendeth to the destruction both of King and people,
whether the King be present or absent, and was high-treason before the
statute. 6. If any man had imprisoned the King’s person, he had made him
incapable of defending his people, and it was therefore high-treason
before the statute. 7. If any man had, with design to raise rebellion
against the King, by words written or advisedly uttered, denied the King
regnant to be their lawful King, he that wrote, preached, or spoke such
words, living then under the protection of the King’s laws, it had been
high-treason before the statute, for the reasons aforesaid. And perhaps
there may be some other cases upon this statute, which I cannot
presently think upon. But the killing of a justice or other officer, as
is determined by the statute, is not otherwise high-treason, but by the
statute. And to distinguish that which is treason by the common-law from
all other inferior crimes, we are to consider, that if such high-treason
should take effect, it would destroy all laws at once; and being done by
a subject, it is a return to hostility by treachery; and consequently,
such as are traitors may, by the law of reason, be dealt withal as
ignoble and treacherous enemies: but the greatest of other crimes, for
the most part, are breaches of one only, or at least of very few laws.
_L._ Whether this you say be true or false, the law is now
unquestionable, by a statute made in the 1st and 2nd years of _Queen
Mary_, whereby there is nothing to be esteemed treason, besides those
few offences specially mentioned in the act of 25 _Edward III_.
_P._ Amongst these great crimes the greatest is that which is committed
by one that has been trusted and loved by him whose death he so
designeth: for a man cannot well take heed of those whom he thinks he
hath obliged, whereas an open enemy gives a man warning before he
acteth. And this it is for which the statute hath declared, that it is
another kind of treason, when a servant killeth his master or mistress,
or a wife killeth her husband, or a clerk killeth his prelate. And I
should think it petty treason also, though it be not within the words of
the statute, when a tenant in fee, that holdeth by homage and fealty,
shall kill the lord of his fee; for fealty is an oath of allegiance to
the lord of the fee; saving he may not keep his oath in any thing sworn
to, if it be against the King. For homage, as it is expressed in a
statute of 17 _Edw. II_, is the greatest submission that is possible to
be made to one man by another. For the tenant shall hold his hands
together between the hands of his landlord, and shall say thus; I become
your man from this day forth for life, for member, and for worldly
honour, and shall owe that my faith for the lands that I shall hold of
you, saving the faith that I owe unto our Sovereign Lord the King, and
to many other lords. Which homage, if made to the King, is equivalent to
a promise of simple obedience, and if made to another lord, there is
nothing excepted but the allegiance to the King; and that which is
called fealty, is but the same confirmed by an oath.
_L._ But Sir Edward Coke, (4 _Inst._ p. 11), denies that a traitor is in
legal understanding the King’s enemy. For enemies, saith he, be those
that be out of the allegiance of the King. And his reason is, because,
if a subject join with a foreign enemy, and come into England with him,
and be taken prisoner here, he shall not be ransomed, or proceeded with
as an enemy shall, but he shall be taken as a traitor to the King.
Whereas an enemy coming in open hostility, and taken, shall either be
executed by martial law, or ransomed; for he cannot be indicted of
treason, for that he never was in the protection and ligeance of the
King; and the indictment of the treason saith, _contra ligeantiam suam
debitam_.
_P._ This is not an argument worthy of the meanest lawyer. Did Sir
Edward Coke think it impossible for a King lawfully to kill a man, by
what death soever, without an indictment, when it is manifestly proved
he was his open enemy? Indictment is a form of accusation peculiar to
England, by the command of some King of England, and retained still, and
therefore a law to this country of England. But if it were not lawful to
put a man to death otherwise than by an indictment, no enemy could be
put to death at all in other nations, because they proceed not, as we
do, by indictment. Again, when an open enemy is taken and put to death
by judgment of martial-law; it is not the law of the general or council
of war, that an enemy shall be thus proceeded with, but the law of the
King contained in their commissions; such as from time to time the Kings
have thought fit, in whose will it always resteth, whether an open
enemy, when he is taken, shall be put to death, or no, and by what
death; and whether he shall be ransomed, or no, and at what price. Then
for the nature of treason by rebellion; is it not a return to hostility?
What else does rebellion signify? William the Conqueror subdued this
kingdom; some he killed; some upon promise of future obedience he took
to mercy, and they became his subjects, and swore allegiance to him. If
therefore they renew the war against him, are they not again open
enemies? Or if any of them lurking under his laws, seek occasion thereby
to kill him secretly, and come to be known, may he not be proceeded
against as an enemy, who, though he had not committed what he designed,
yet had certainly a hostile design? Did not the Long Parliament declare
all those for enemies to the state, that opposed their proceedings
against the late King? But Sir Edward Coke does seldom well distinguish,
when there are two divers names for one and the same thing: though one
contain the other, he makes them always different; as if it could not be
that one and the same man should be both an enemy and a traitor. But now
let us come to his comment upon this statute. The statute says (as it is
printed in English) when a man doth compass, or imagine, the death of
our Lord the King, &c. What is the meaning of the word compassing, or
imagining?
_L._ On this place Sir Edward Coke says, that before the making of this
act, _voluntas reputabatur pro facto_, the will was taken for the deed.
And so saith Bracton; _spectatur voluntas, et non exitus; et nihil
interest utrum quis occidat, aut causam præbeat_, that is to say, the
cause of the killing. Now Sir Edward Coke says, this was the law before
the statute; and that to be a cause of the killing, is to declare the
same by some open deed tending to the execution of his intent, or which
might be cause of death.
_P._ Is there any Englishman can understand, that to cause the death of
a man, and to declare the same, is all one thing? And if this were so,
and that such was the common-law before the statute, by what words in
the statute is it taken away?
_L._ It is not taken away, but the manner how it must be proved is thus
determined, that it must be proved by some open deed, as providing of
weapons, powder, poison, assaying of armour, sending of letters, &c.
_P._ But what is the crime itself, which this statute maketh treason?
For as I understand the words, to compass or imagine the King’s death,
&c. the compassing (as it is in the English) is the only thing which is
made high-treason. So that not only the killing, but the design, is made
high-treason; or, as it is in the French record, _fait compasser_, that
is to say, the causing of others to compass or design the King’s death
is high-treason; and the words _par overt fait_, are not added as a
specification of any treason, or other crime, but only of the proof that
is required by the law. Seeing then the crime is the design and purpose
to kill the King, or cause him to be killed, and lieth hidden in the
breast of him that is accused; what other proof can there be had of it
than words spoken or written? And therefore, if there be sufficient
witness that he by words declared that he had such a design, there can
be no question, but that he is comprehended within the statute. Sir
Edward Coke doth not deny, but, that if he confess this design, either
by word or writing, he is within the statute. As for that common saying,
that bare words may make a heretic but not a traitor, which Sir Edward
Coke on this occasion maketh use of, they are to little purpose; seeing
that this statute maketh not the words high-treason, but the intention,
whereof the words are but a testimony: and that common saying is false
as it is generally pronounced. For there were divers statutes made
afterwards, though now expired, which made bare words to be treason
without any other deed; as, 1 _Eliz. c. 6_, and 13 _Eliz. c. 1_, if a
man should publicly preach that the King were an usurper, or that the
right of the crown belonged to any other than the King that reigned,
there is no doubt but it were treason, not only within this statute of
Edward III, but also within the statute of 1 _Edw. VI, c. 12_, which are
both still in force.
_L._ Not only so; but if a subject should counsel any other man to kill
the King, Queen, or heir-apparent to the Crown, it would at this day be
adjudged high-treason; and yet it is no more than bare words. In the
third year of King James, Henry Garnet, a Jesuit priest, to whom some of
the gunpowder traitors had revealed their design by way of confession,
gave them absolution without any caution taken for their desisting from
their purpose, or other provision against the danger, and was therefore
condemned and executed as a traitor, though such absolution was nothing
else but bare words. Also I find in the reports of Sir John Davis,
Attorney-General for Ireland, that in the time of King Henry VI, a man
was condemned of treason for saying the King was a natural fool, and
unfit to govern. But yet this clause in the statute of _Edw. III_, viz.
that the compassing there mentioned ought to be proved by some _overt
act_, was by the framers of the statute not without great wisdom and
providence inserted; for as Sir Edward Coke very well observeth, when
witnesses are examined concerning words only, they never, or very
rarely, agree precisely about the words they swear to.
_P._ I deny not but that it was wisely enough done. But the question is
not here of the treason, which is either fact or design, but of the
proof, which when it is doubtful, is to be judged by a jury of twelve
lawful men. Now whether think you is it a better proof of a man’s
intention to kill, that he declare the same with his own mouth, so as it
may be witnessed, or that he provide weapons, powder, poison, or assay
arms? If he utter his design by words, the jury has no more to do than
to consider the legality of the witnesses, the harmony of their
testimonies, or whether the words were spoken advisedly. For they might
have been uttered in a disputation, for exercise only; or when he that
spake them, had not the use of reason, nor perhaps any design or wish at
all, towards the execution of what he talked of. But how a jury, from
providing or buying of armour, or buying of gunpowder, or from any other
overt act, not treason in itself, can infer a design of murdering the
King, unless there appear some words also signifying to what end he made
such provision, I cannot easily conceive. Therefore, as the jury on the
whole matter, words and deeds, shall ground their judgment concerning
design or not design, so, in reason, they ought to give verdict. But to
come to the treason of counterfeiting the great or privy-seal, seeing
there are so many ways for a cheating fellow to make use of these seals,
to the cozening of the King and his people; why are not all such abuses
high-treason, as well as the making of a false seal?
_L._ So they are; for Sir Edward Coke produceth a record of one that was
drawn and hanged for taking the great seal from an expired patent, and
fastening it to a counterfeit commission to gather money. But he
approveth not the judgment, because it is the judgment for petty
treason: also, because the jury did not find him guilty of the offence
laid in the indictment, which was, the counterfeiting of the great seal,
but found the special matter, for which the offender was drawn and
hanged.
_P._ Seeing this crime of taking the great seal from one writing, and
fastening it to another, was not found high-treason by the jury, nor
could be found upon special matter to be the other kind of treason
mentioned in the same statute; what ground had either the jury to find
it treason, or the judge to pronounce sentence upon it?
_L._ I cannot tell. Sir Edward Coke seems to think it a false record;
for hereupon he saith, by way of admonition to the reader, that hereby
it appeareth how dangerous it is to report a case by the ear.
_P._ True; but he does not make it apparent that this case was untruly
reported; but on the contrary, confesseth that he had perused the same
record; and a man may, if it may be done without proof of the falsity,
make the same objection to any record whatsoever. For my part, seeing
this crime produced the same mischief that ariseth from counterfeiting,
I think it reason to understand it as within the statute; and for the
difference between the punishments, which are both of them capital, I
think it is not worthy to be stood upon; seeing death, which is _ultimum
supplicium_, is a satisfaction to the law, as Sir Edward Coke himself
hath in another place affirmed. But let us now proceed to other crimes.
_L._ Appendant to this is another crime, called misprision of treason;
which is the concealing of it by any man that knows it; and is called
misprision from the French _mespriser_, which signifies to contemn or
undervalue. For it is no small crime in any subject, so little to take
to heart a known danger to the King’s person, and consequently to the
whole kingdom, as not to discover not only what he knows, but also what
he suspecteth of the same, that the truth therefore may be examined. But
for such discovery, though the thing prove false, the discoverer shall
not, as I think, be taken for a false accuser; if for what he directly
affirms, he produce a reasonable proof, and some probability for his
suspicion. For else the concealment will seem justifiable by the
interest, which is to every man allowed, in the preservation of himself
from pain and damage.
_P._ This I consent to.
_L._ All other crimes merely temporal, are comprehended under felony or
trespass.
_P._ What is the meaning of the word felony? Does it signify anything
that is in its own nature a crime, or that only which is made a crime by
some statute? For I remember some statutes that make it felony to
transport horses, and some other things, out of the kingdom; which
transportation, before such statutes were made, and after the repealing
of the same, was no greater crime than any other usual traffic of a
merchant.
_L._ Sir Edward Coke derives the word felony from the Latin word _fel_,
the gall of a living creature; and accordingly defines felony to be an
act done _animo felleo_; that is to say, a bitter, a cruel act.
_P._ Etymologies are no definitions, and yet when they are true, they
give much light towards the finding out of a definition. But this of Sir
Edward Coke’s carries with it very little of probability; for there be
many things made felony by the statute law, that proceed not from any
bitterness of mind at all, and many that proceed from the contrary.
_L._ This is matter for a critic, to be picked out of the knowledge of
history and foreign languages, and you may perhaps know more of it than
I do.
_P._ All that I, or I think any other, can say in this matter, will
amount to no more than a reasonable conjecture, insufficient to sustain
any point of controversy in law. The word is not to be found in any of
the old Saxon laws, set forth by Mr. Lambard, nor in any statute printed
before that of Magna Charta; there it is found. Now Magna Charta was
made in the time of Henry III, grandchild to Henry II, Duke of Anjou, a
Frenchman born, and bred in the heart of France, whose language might
very well retain many words of his ancestors the German Franks, as ours
doth of the German Saxons; as also many words of the language of the
Gauls, as the Gauls did retain many words of the Greek colony planted at
Marseilles. But certain it is, the French lawyers at this day use the
word felon, just as our lawyers use the same; whereas the common people
of France use the word _filou_ in the same sense. But _filou_
signifieth, not the man that hath committed such an act as they call
felony, but the man that maketh it his trade to maintain himself by the
breaking and contemning of all laws generally; and comprehendeth all
those unruly people called cheaters, cutpurses, picklocks, catchcloaks,
coiners of false money, forgers, thieves, robbers, murderers, and
whosoever make use of iniquity on land or sea as a trade or living. The
Greeks upon the coast of Asia, where Homer lived, were they that planted
the colony of Marseilles. They had a word that signified the same with
felon, which was φιλήτης, _filetes_; and this _filetes_ of Homer
signifies properly the same that a felon signifies with us. And
therefore Homer makes Apollo to call Mercury φιλήτην, _fileteen_, and
ἄρχον φιλήτων. I insist not upon the truth of this etymology, but it is
certainly more rational than the _animus felleus_ of Sir Edward Coke.
And for the matter itself, it is manifest enough, that which we now call
murder, robbery, theft, and other practices of felons, are the same that
we call felony, and crimes in their own nature without the help of
statute. Nor is it the manner of punishment, that distinguisheth the
nature of one crime from another; but the mind of the offender and the
mischief he intendeth, considered together with the circumstances of
person, time, and place.
_L._ Of felonies, the greatest crime is murder.
_P._ And what is murder?
_L._ Murder is the killing of a man upon malice forethought, as by a
weapon, or by poison, or any way, if it be done upon antecedent
meditation; or thus, murder is the killing of a man in cold blood.
_P._ I think there is a good definition of murder set down by statute,
52 _Henry III, c. 25_, in these words: Murder, from henceforth, shall
not be judged before our justices, where it is found misfortune only,
but it shall take place in such as are slain by felony, and not
otherwise. And Sir Edward Coke interpreting this statute, 2 _Inst._ p.
148, saith, that the mischief before this statute was, that he that
killed a man by misfortune, as by doing any act that was not against
law, and yet against his intent the death of a man ensued, this was
adjudged murder. But I find no proof of that he allegeth, nor find I any
such law among the laws of the Saxons set forth by Mr. Lambard. For the
word, it is, as Sir Edward Coke noteth, old Saxon, and amongst them it
signified no more than a man slain in the field or other place, the
author of his death not known. And according hereunto, Bracton, who
lived in the time of Magna Charta, defineth it, fol. 134, thus: Murder
is the secret killing of a man, when none besides the killer and his
companions saw or knew it; so that it was not known who did it, nor
fresh suit could be made after the doer. Therefore, every such killing
was called murder, before it could be known whether it could be by
felony or not; for a man may be found dead that kills himself, or was
lawfully killed by another. This name of murder came to be the more
horrid, when it was secretly done, for that it made every man to
consider of their own danger, and him that saw the dead body, to boggle
at it, as a horse will do at a dead horse. And to prevent the same, they
had laws in force, to amerce the hundred where it was done, in a sum
defined by law to be the price of his life. For in those days, the lives
of all sorts of men were valued by money, and the value set down in
their written laws. And therefore Sir Edward Coke was mistaken, in that
he thought that killing a man by misfortune before the statute of
Marlebridge, was adjudged murder. And those secret murders were
abominated by the people, for that they were liable to so great a
pecuniary punishment for suffering the malefactor to escape. But this
grievance was by Canutus, when he reigned, soon eased. For he made a
law, that the county in this case should not be charged, unless he were
an Englishman that was so slain; but if he were a Frenchman, (under
which name were comprehended all foreigners, and especially the
Normans,) though the slayer escaped, the county was not to be amerced.
And this law, though it were very hard and chargeable, when an
Englishman was so slain, for his friend to prove he was an Englishman,
and also unreasonable to deny the justice to a stranger, yet was it not
repealed till the 14th _Edw. III_. By this you see that murder is
distinguished from homicide by the statute laws, and not by any
common-law without the statute; and that it is comprehended under the
general name of felony.
_L._ And so also is petit treason: and I think so is high-treason also.
For in the abovesaid statute in the 25th _Edw. III_, concerning
treasons, there is this clause: And because that many other like cases
of treason may happen in time to come, which a man cannot think or
declare at the present time; it is accorded, that if any other case,
supposed treason, which is not above specified, doth happen before any
of the justices, the justices shall tarry without any going to judgment
of the treason, till the cause be shewed and declared before the King
and his Parliament, whether it be treason or other felony. Which thereby
shews that the King and Parliament thought that treason was one of the
sorts of felony.
_P._ And so think I.
_L._ But Sir Edward Coke denies it to be so at this day. For (_1 Inst.
sec. 745_) at the word felony, he saith, that in ancient time this word
_felony_ was of so large an extent, as that it included high-treason;
but afterwards it was resolved, that in the King’s pardon or charter,
this word _felony_ should extend only to common felonies; and at this
day, under the word felony, by law is included petite treason, murder,
homicide, burning of houses, burglary, robbery, rape, &c. chance medley,
_se defendendo_, and petite larceny.
_P._ He says it was resolved: but by whom?
_L._ By the justices of assize in the time of Henry IV, as it seems in
the margin.
_P._ Have justices of assize any power by their commission to alter the
language of the land and the received sense of words? Or in the question
in what case felony shall be said, is it referred to the judges to
determine; as in the question in what case treason shall be said, it is
referred by the statute of Edward III to the Parliament? I think not;
and yet perhaps they may be obliged to disallow a pardon of treason,
when mentioning all felonies it nameth not treason, nor specifies it by
any description of the fact.
_L._ Another kind of homicide there is, simply called so, or by the name
of manslaughter, and is not murder: and that is, when a man kills
another man upon sudden quarrel, during the heat of blood.
_P._ If two meeting in the street chance to strive who shall go nearest
to the wall, and thereupon fighting, one of them kills the other, I
believe verily he that first drew his sword, did it of malice
forethought, though not long forethought; but whether it be felony or
no, it may be doubted. It is true, that the harm done is the same as if
it had been done by felony; but the wickedness of the intention was
nothing near so great. And supposing it had been done by felony, then it
is manifest, by the statute of Marlebridge, that it was very murder. And
when a man for a word or a trifle shall draw his sword and kill another
man, can any man imagine that there was not some precedent malice?
_L._ It is very likely there was malice, more or less: and therefore the
law hath ordained for it a punishment equal to that of murder, saving
that the offender shall have the benefit of his clergy.
_P._ The benefit of clergy comes in upon another account, and importeth
not any extenuation of the crime. For it is but a relic of the old
usurped papal privilege, which is now by many statutes so pared off, as
to spread but to few offences, and is become a legal kind of conveying
mercy, not only to the clergy, but also to the laity.
_L._ The work of a judge, you see, is very difficult, and requires a man
that hath a faculty of well distinguishing of dissimilitudes in such
cases as common judgments think to be the same. A small circumstance may
make a great alteration; wherefore a man that cannot well discern, ought
not to take upon him the office of a judge.
_P._ You say very well; for if judges were to follow one another’s
judgments in precedent cases, all the justice in the world would at
length depend upon the sentence of a few learned, or unlearned, ignorant
men, and have nothing at all to do with the study of reason.
_L._ A third kind of homicide is when a man kills another, either by
misfortune, or in the necessary defence of himself, or of the King, or
of his laws; for such killing is neither felony nor crime, saving, as
Sir Edward Coke says (_3 Inst. p. 56_), that if the act that a man is
doing, when he kills another man, be unlawful, then it is murder. As, if
A meaning to steal a deer in the park of B, shooteth at the deer, and by
the glance of the arrow killeth a boy that is hidden in a bush, this is
murder, for that the act was unlawful; but if the owner of the park had
done the like, shooting at his own deer, it had been by misadventure,
and no felony.
_P._ This is not so distinguished by any statute, but is the
_common-law_ only of Sir Edward Coke. I believe not a word of it. If a
boy be robbing an appletree, and falleth thence upon a man that stands
under it and breaks his neck, but by the same chance saveth his own
life, Sir Edward Coke, it seems, will have him hanged for it, as if he
had fallen of prepensed malice. All that can be called crime in this
business is but a simple trespass, to the damage perhaps of sixpence or
a shilling. I confess the trespass was an offence against the law, but
the falling was none, nor was it by the trespass but by the falling that
the man was slain; and as he ought to be quit of the killing, so he
ought to make restitution for the trespass. But I believe the cause of
Sir Edward Coke’s mistake was his not well understanding of Bracton,
whom he cites in the margin. For, fol. 120 b. lib. iii. cap. 4, he saith
thus: _Sed hic erit distinguendum, utrum quis dederit operam rei licitæ,
vel illicitæ; si illicitæ, ut si lapidem projiciebat quis versus locum
per quem consueverunt homines transitum facere, vel dum insequitur quis
equum vel bovem, et aliquis a bove vel equo percussus fuerit, et
hujusmodi, hoc imputatur ei_. That is: But here we are to distinguish
whether a man be upon a lawful or unlawful business; if an unlawful, as
he that throws a stone into a place where men use to pass; or if he
chase a horse or an ox, and thereby the man be stricken by the horse or
the ox; this shall be imputed to him. And it is most reasonable; for the
doing of such an unlawful act as is here meant, is a sufficient argument
of a felonious purpose, or at least a hope to kill somebody or other,
and he cared not whom, which is worse than to design the death of a
certain adversary, which nevertheless is murder. Also, on the contrary,
though the business a man is doing be lawful, and it chanceth sometimes
that a man be slain thereby, yet may such killing be felony. For if a
carman drive his cart through Cheapside in a throng of people, and
thereby he kill a man, though he bare him no malice, yet because he saw
there was very great danger, it may reasonably be inferred, that he
meant to adventure the killing of somebody or other, though not of him
that was killed.
_L._ He is a felon also that killeth himself voluntarily, and is called,
not only by common lawyers, but also in divers statute laws, _felo de
se_.
_P._ And it is well so; for names imposed by statutes are equivalent to
definitions. But I conceive not how any man can bear _animum felleum_,
or so much malice towards himself, as to hurt himself voluntarily, much
less to kill himself. For naturally and necessarily the intention of
every man aimeth at somewhat which is good to himself, and tendeth to
his preservation. And therefore, methinks, if he kill himself, it is to
be presumed that he is not _compos mentis_, but by some inward torment
or apprehension of somewhat worse than death, distracted.
_L._ Nay, unless he be _compos mentis_, he is not _felo de se_, as Sir
Edward Coke saith, _3 Inst. p. 54_; and therefore he cannot be judged a
_felo de se_, unless it be first proved he was _compos mentis_.
_P._ How can that be proved of a man dead; especially if it cannot be
proved by any witness, that a little before his death he spake as other
men used to do? This is a hard place; and before you take it for
common-law, it had need to be cleared.
_L._ I will think on it. There is a statute of _3 Hen. VII, c. 14_,
which makes it felony in any of the King’s household servants, under the
degree of a Lord, to compass the death of any of the King’s Privy
Council. The words are these: That from henceforth the steward,
treasurer, and comptroller of the King’s house for the time being, or
one of them, have full authority and power, to inquire by twelve staid
men and discreet persons of the chequer-roll of the King’s honourable
household, if any servant, admitted to be his servant sworn, and his
name put into the chequer-roll, whatsoever he be, serving in any manner,
office, or room, reputed, had, or taken under the estate of a Lord, make
any confederacies, compassings, conspiracies, or imaginations with any
person, to destroy or murder the King, or any Lord of this realm, or any
other person sworn of the King’s council, steward, treasurer, or
comptroller of the King’s house. And if such misdoers shall be found
guilty by confession, or otherwise, that the said offence shall be
judged felony.
_P._ It appears by this statute, that not only the compassing the death,
as you say, of a privy-councillor, but also of any Lord of this realm,
is felony; if it be done by any of the King’s household servants, that
is not a Lord.
_L._ No; Sir Edward Coke upon these words, _any Lord of this realm, or
other person sworn of the King’s council_, infers (_3 Inst. p. 38_),
that it is to be understood of such a Lord only as is a
privy-councillor.
_P._ For barring of the Lords of Parliament from this privilege, he
strains this statute a little farther, in my opinion, than it reacheth
of itself. But how are such felonies to be tried?
_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._
_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 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.
_P._ I do so; nor do I see any reason to the contrary. For the subjects,
when they come into the family, have no title at all to demand any part
of the land, or anything else but security: to which also they are bound
to contribute their whole strength, and, if need be, their whole
fortunes. For it cannot be supposed that any one man can protect all the
rest with his own single strength; and for the practice, it is manifest,
in all conquests the land of the vanquished is in the sole power of the
victor, and at his disposal. Did not Joshua and the High-priest divide
the land of Canaan in such sort among the tribes of Israel as they
pleased? Did not the Roman and Grecian princes and states, according to
their own discretion, send out the colonies to inhabit such provinces as
they had conquered? Is there at this day among the Turks, any inheritor
of land besides the Sultan? And was not all the land in England once in
the hands of William the Conqueror? Sir Edward Coke himself confesses
it. Therefore it is an universal truth, that all conquered lands,
presently after victory, are the lands of him that conquered them.
_L._ But you know that all sovereigns are said to have a double
capacity, viz. a natural capacity, as he is a man; and a politic
capacity, as a king. In his politic capacity, I grant you, that King
William the Conqueror was the proper and only owner once of all the land
in England; but not in his natural capacity.
_P._ If he had them in his politic capacity, then they were so his own,
as not to dispose of any part thereof but only to the benefit of his
people; and that must be either by his own, or by the people’s
discretion, that is, by Act of Parliament. But where do you find that
the Conqueror disposed of his lands (as he did some to Englishmen, some
to Frenchmen, and some to Normans, to be holden by divers tenures, as
knight-service, soccage, &c.) by Act of Parliament? Or that he ever
called a Parliament, to have the assent of the Lords and Commons of
England in disposing of those lands he had taken from them? Or for
retaining of such and such lands in his own hands, by the name of
forrests, for his own recreation or magnificence? You have heard perhaps
that some lawyers, or other men reputed wise and good patriots, have
given out that all the lands which the Kings of England have possessed,
have been given them by the people, to the end that they should
therewith defray the charges of their wars, and pay the wages of their
ministers; and that those lands were gained by the people’s money. For
that was pretended in the late civil war, when they took from the King
his town of Kingston-upon-Hull. But I know you do not think that the
pretence was just. It cannot therefore be denied but that the lands,
which King William the Conqueror gave away to Englishmen and others, and
which they now hold by his letters-patent and other conveyances, were
properly and really his own, or else the titles of them that now hold
them, must be invalid.
_L._ I assent. As you have showed me the beginning of monarchies, so let
me hear your opinion concerning their growth.
_P._ Great monarchies have proceeded from small families. First, by war,
wherein the victor not only enlarged his territory, but also the number
and riches of his subjects. As for the other forms of commonwealths,
they have been enlarged other ways. First, by a voluntary conjunction of
many lords of families into one great aristocracy. Secondly, from
rebellion proceeded first anarchy, and from anarchy proceeded any form
that the calamities of them that lived therein did prompt them to;
whether it were, that they chose an hereditary King, or an elective King
for life; or that they agreed upon a council of certain persons, which
is _aristocracy_; or a council of the whole people to have the sovereign
power, which is _democracy_. After the first manner, which is by war,
grew up all the greatest kingdoms in the world, viz. the Egyptian,
Assyrian, Persian, and the Macedonian monarchy; and so did the great
kingdoms of England, France, and Spain. The second manner, was the
original of the Venetian Aristocracy. By the the third way, which is
rebellion, grew up divers great monarchies, perpetually changing from
one form to another: as in Rome, rebellion against Kings produced
democracy, upon which the senate usurped under Sylla, and the people
again upon the senate under Marius, and the Emperor usurped upon the
people under Cæsar and his successors.
_L._ Do you think the distinction between natural and politic capacity
is insignificant?
_P._ No. If the sovereign power be in an assembly of men, that assembly,
whether it be _aristocratical_ or _democratical_, may possess lands; but
it is in their politic capacity: because no natural man has any right to
those lands, or any part of them. In the same manner, they can command
an act by plurality of commands; but the command of any one of them is
of no effect. But when the sovereign power is in one man, the natural
and politic capacity are in the same person, and as to possession of
lands, undistinguishable. But as to the acts and commands, they may be
well distinguished in this manner. Whatsoever a monarch does command or
do, by consent of the people of his kingdom, may properly be said to be
done in his politic capacity; and whatsoever he commands by word of
mouth only, or by letters signed with his hand, or sealed with any of
his private seals, is done in his natural capacity. Nevertheless, his
public commands, though they be made in his politic capacity, have their
original from his natural capacity. For in the making of laws, which
necessarily requires his assent, his assent is natural. Also those acts
which are done by the King previously to the passing of them under the
Great Seal of England, either by word of mouth, or warrant under his
signet or private seal, are done in his natural capacity; but when they
have passed the Seal of England, they are to be taken as done in his
politic capacity.
_L._ I think verily your distinction is good. For natural capacity and
politic capacity signify no more than private and public right.
Therefore, leaving this argument, let us consider in the next place, as
far as history will permit, what were the laws and customs of our
ancestors.
_P._ The Saxons, as also all the rest of Germany not conquered by the
Roman Emperors nor compelled to use the imperial laws, were a savage and
heathen people, living only by war and rapine, and as some men learned
in the Roman antiquities affirm, had their name of Germans from that
their ancient trade of life, as if _Germans_ and _hommes de guerre_ were
all one. Their rule over their family, servants, and subjects, was
absolute; their laws, no other than natural equity; written law they had
little or none; and very few there were in the time of the Caesars that
could write or read. The right to the government was either paternal, or
by conquest, or by marriages. Their succession to lands was determined
by the pleasure of the master of the family, by gift or deed in his
lifetime; and what land they disposed not of in their lifetime,
descended after their death to their heirs. The heir was the eldest son.
The issue of the eldest son failing, they descended to the younger sons
in their order; and, for want of sons, to the daughters jointly as to
one heir, or to be divided amongst them, and so to descend to their
heirs in the same manner. And children failing, the uncle by the
father’s or mother’s side, according as the lands had been the father’s
or the mother’s, succeeded to the inheritance, and so continually to the
next of blood. And this was a natural descent, because naturally the
nearer in blood the nearer in kindness, and was held for the law of
nature, not only amongst the Germans, but also in most nations before
they had a written law. The right of government, which is called _jus
regni_, descended in the same manner, except only that after the sons it
came to the eldest daughter first, and her heirs; the reason whereof
was, that government is indivisible. And this law continues still in
England.
_L._ Seeing all the land, which any sovereign lord possessed, was his
own in propriety, how came a subject to have a propriety in their lands?
_P._ There be two sorts of propriety. One is, when a man holds his land
from the gift of God only, which lands civilians call _allodial_; which
in a kingdom, no man can have but the King. The other is, when a man
holds his land from another man, as given him in respect of service and
obedience to that man, as a fee. The first kind of propriety is
absolute; the other is in a manner conditional, because given for some
service to be done unto the giver. The first kind of propriety excludes
the right of all others; the second excludes the right of all other
subjects to the same land, but not the right of the sovereign, when the
common good of the people shall require the use thereof.
_L._ When those kings had thus parted with their lands, what was left
them for the maintenance of their wars, either offensive or defensive;
or for the maintenance of the royal family in such manner as not only
becomes the dignity of a sovereign king, but is also necessary to keep
his person and people from contempt?
_P._ They have means enough; and besides what they gave their subjects,
had much land remaining in their own hands, afforrested for their
recreation. For you know very well that a great part of the land of
England was given for military service to the great men of the realm,
who were for the most part of the King’s kindred or great favourites;
much more land than they had need of for their own maintenance; but so
charged with one or many soldiers, according to the quantity of land
given, as there could be no want of soldiers at all times ready to
resist an invading enemy: which soldiers those lords were bound to
furnish, for a time certain, at their own charges. You know also, that
the whole land was divided into hundreds, and those again into
decennaries; in which decennaries all men, even to children of twelve
years of age, were bound to take the oath of allegiance. And you are to
believe, that those men that hold their land by the service of
husbandry, were all bound with their bodies and fortunes to defend the
kingdom against invaders, by the law of nature. And so also such as they
called villains, and as held their land by baser drudgery, were obliged
to defend the kingdom to the utmost of their power. Nay, women and
children, in such a necessity, are bound to do such service as they can,
that is to say, to bring weapons and victuals to them that fight, and to
dig. But those that hold their land by service military, have lying upon
them a greater obligation. For read and observe the form of doing
homage, according as it is set down in the statute of 17 _Edw. II_,
which you doubt not was in use before that time, and before the
Conquest.
_L._ _I become your man for life, for member, and for worldly honour,
and shall owe you my faith for the lands that I hold of you._
_P._ I pray you expound it.
_L._ I think it is as much as if you should say, I promise you to be at
your command, to perform with the hazard of my life, limbs, and all my
fortune, as I have charged myself in the reception of the lands you have
given me, and to be ever faithful to you. This is the form of homage
done to the King immediately. But when one subject holdeth land of
another by the like military service, then there is an exception added,
viz. _saving the faith I owe to the King_.
_P._ Did he not also take an oath?
_L._ Yes, which is called the oath of fealty: _I shall be to you both
faithful, and lawfully shall do such customs and services, as my duty is
to you at the terms assigned, so help me God and all his Saints_. But
both these services, and the services of husbandry, were quickly after
turned into rents, payable either in money, as in England, or in corn or
other victuals, as in Scotland and France. When the service was
military, the tenant was for the most part bound to serve the King in
his wars, with one or more persons, according to the yearly value of the
land he held.
_P._ Were they bound to find horsemen, or footmen?
_L._ I do not find any law that requires any man, in respect of his
tenancy, to serve on horseback.
_P._ Was the tenant bound, in case he were called, to serve in person?
_L._ I think he was so in the beginning. For when lands were given for
service military, and the tenant dying left his son and heir, the lord
had the custody both of body and lands till the heir was twenty-one
years old. And the reason thereof was, that the heir, till that age of
twenty-one years, was presumed to be unable to serve the King in his
wars; which reason had been insufficient, if the heir had not been bound
to go to the wars in person. Which, methinks, should ever hold for law,
unless by some other law it come to be altered. These services, together
with other rights, as wardships, first possession of his tenants'
inheritance, licenses for alienation, felons' goods, felons' lands (if
they were holden of the King), and the first year’s profit of the lands,
of whomsoever they were holden, forfeitures, amercements, and many other
aids, could not but amount to a very great yearly revenue. Add to this
all that which the King might reasonably have imposed upon artificers
and tradesmen; for all men, whom the King protecteth, ought to
contribute towards their own protection; and consider then whether the
Kings of those times had not means enough, and to spare (if God were not
their enemy), to defend their people against foreign enemies, and also
to compel them to keep the peace amongst themselves.
_P._ And so had had the succeeding Kings, if they had never given their
rights away, and their subjects always kept their oaths and promises. In
what manner proceeded those ancient Saxons, and other nations of
Germany, especially the northern parts, to the making of their laws?
_L._ Sir Edward Coke, out of divers Saxon laws, gathered and published
in Saxon and Latin by Mr. Lambard, inferreth that the Saxon Kings, for
the making of their laws, called together the Lords and Commons, in such
manner as is used at this day in England. But by those laws of the
Saxons published by Mr. Lambard, it appeareth, that the Kings called
together the bishops, and a great part of the wisest and discreetest men
of the realm, and made laws by their advice.
_P._ I think so. For there is no King in the world, being of ripe years
and sound mind, that made any law otherwise. For it concerns them in
their own interest to make such laws as the people can endure, and may
keep them without impatience, and live in strength and courage to defend
their King and country, against their potent neighbours. But how was it
discerned, and by whom was it determined, who were those wisest and
discreetest men? It is a hard matter to know who is wisest in our times.
We know well enough who chooseth a knight of the shire, and what towns
are to send burgesses to the Parliament. Therefore if it were determined
also in those days, who those wise men should be, then I confess that
the Parliaments of the old Saxons, and the Parliaments of England since,
are the same thing, and Sir Edward Coke is in the right. Tell me
therefore, if you can, when those towns, which now send burgesses to the
Parliament, began to do so, and upon what cause one town had this
privilege, and another town, though much more populous, had not.
_L._ At what time began this custom I cannot tell; but I am sure it is
more ancient than the city of Salisbury. Because there come two
burgesses to Parliament for a place near to it, called Old Sarum, which,
as I rid in sight of it, if I should tell a stranger that knew not what
the word burgess meant, he would think it were a couple of rabbits; the
place looketh so like a long cony-borough. And yet a good argument may
be drawn from thence, that the townsmen of every town were the electors
of their own burgesses, and judges of their discretion; and that the
law, whether they be discreet or not, will suppose them to be discreet,
till the contrary be apparent. Therefore where it is said, that the King
called together the more discreet men of his realm; it must be
understood of such elections as are now in use. By which it is manifest,
that those great and general moots assembled by the old Saxon Kings,
were of the same nature with the Parliaments assembled since the
Conquest.
_P._ I think your reason is good. For I cannot conceive, how the King,
or any other but the inhabitants of the boroughs themselves, can take
notice of the discretion or sufficiency of those they were to send to
the Parliament. And for the antiquity of the burgess-towns, since it is
not mentioned in any history or certain record now extant, it is free
for any man to propound his conjecture. You know that this land was
invaded by the Saxons at several times, and conquered by pieces in
several wars; so that there were in England many Kings at once, and
every of them had his Parliament. And therefore according as there were
more, or fewer walled towns within each King’s dominion, his Parliament
had the more or fewer burgesses. But when all these lesser kingdoms were
joined into one, then to that one Parliament came burgesses from all the
boroughs of England. And this perhaps may be the reason, why there be so
many more such boroughs in the west, than in any other part of the
kingdom; the west being more populous, and also more obnoxious to
invaders, and for that cause having greater store of towns fortified.
This I think may be the original of that privilege which some towns
have, to send burgesses to the Parliament, and others have not.
_L._ The conjecture is not improbable, and for want of greater
certainty, may be allowed. But seeing it is commonly received, that for
the making of a law, there ought to be had the assent of the Lords
spiritual and temporal; whom do you account in the Parliaments of the
old Saxons for Lords temporal, and whom for Lords spiritual? For the
book called _The mode of holding Parliaments_, agreeth punctually with
the manner of holding them at this day, and was written, as Sir Edward
Coke says, in the time of the Saxons, and before the Conquest.
_P._ Mr. Selden, a greater antiquary than Sir Edward Coke, in the last
edition of his book of _Titles of Honour_, says, that that book called
_The mode of holding Parliaments_, was not written till about the time
of Richard II, and seems to me to prove it. But howsoever that be, it is
apparent by the Saxon laws set forth by Mr. Lambard, that there were
always called to the Parliament certain great persons called Aldermen,
_alias_ Earls. And so you have a House of Lords, and a House of Commons.
Also you will find in the same place, that after the Saxons had received
the faith of Christ, those bishops that were amongst them, were always
at the great moots in which they made their laws. Thus you have a
perfect English Parliament, saving that the name of Barons was not
amongst them, as being a French title, which came in with the Conqueror.
BEHEMOTH:
THE HISTORY OF THE CAUSES
OF
THE CIVIL WARS OF ENGLAND,
AND OF THE COUNSELS AND ARTIFICES BY WHICH
THEY WERE CARRIED ON FROM THE
YEAR 1640 TO THE YEAR 1660.
---
“Bella per Angliacos plusquam civilia campos,
Jusque datum sceleri loquimur.——”
THE BOOKSELLER TO THE READER.
My duty, as well to the public as to the memory of Mr. Hobbes, has
obliged me to procure with my utmost diligence, that these tracts should
come forth with the most correct exactness.[A]
I am compelled by the force of truth to declare, how much both the world
and the memory of Mr. Hobbes have been abused by the several spurious
editions of the _History of the Civil Wars_; wherein, by various and
unskilful transcriptions, are committed above a thousand faults, and in
above a hundred places whole lines left out, as I can make appear.
I must confess Mr. Hobbes, upon some considerations, was averse to the
publishing thereof; but since it is impossible to suppress it, no book
being more commonly sold by all booksellers, I hope I need not fear the
offence of any man by doing right to the world and this work, which I
now publish from the original manuscript, done by his own amanuensis,
and given me by himself above twelve years since.
To this I have joined the treatise against Archbishop Bramhall, to
prevent the like prejudice, which must certainly have fallen on it,
there being so many false copies abroad, if not thus prevented; as also
the Discourse of Heresy from a more correct copy; and have likewise
annexed his Physical Problems, as they were translated by himself and
presented to his Majesty, with the epistle prefixed, in the year 1662,
at the same time they came forth in Latin.
These things premised, there remains nothing but to wish for myself good
sale, to the buyer much pleasure and satisfaction.
Your humble servant,
WILLIAM CROOKE.
------------------------------------------------------------------------
Footnote A:
This preface is prefixed to the edition of 1682, in which the
_Behemoth_ is printed along with the _Answer to Archbishop Bramhall_,
the _Discourse of Heresy_, and the _Physical Problems_.
BEHEMOTH,
OR THE EPITOME OF
THE CIVIL WARS OF ENGLAND.
==========
_A._ If in time, as in place, there were degrees of high and low, I
verily believe that the highest of time would be that which passed
between 1640 and 1660. For he that thence, as from the Devil’s Mountain,
should have looked upon the world and observed the actions of men,
especially in England, might have had a prospect of all kinds of
injustice, and of all kinds of folly, that the world could afford, and
how they were produced by their hypocrisy and self-conceit, whereof the
one is double iniquity, and the other double folly.
_B._ I should be glad to behold that prospect. You that have lived in
that time and in that part of your age, wherein men used to see best
into good and evil, I pray you set me, that could not see so well, upon
the same mountain, by the relation of the actions you then saw, and of
their causes, pretensions, justice, order, artifice, and event.
_A._ In the year 1640, the government of England was monarchical; and
the King that reigned, Charles, the first of that name, holding the
sovereignty, by right of a descent continued above six hundred years,
and from a much longer descent King of Scotland, and from the time of
his ancestor Henry II, King of Ireland; a man that wanted no virtue,
either of body or mind, nor endeavoured anything more than to discharge
his duty towards God, in the well governing of his subjects.
_B._ How could he then miscarry, having in every county so many trained
soldiers, as would, put together, have made an army of 60,000 men, and
divers magazines of ammunition in places fortified?
_A._ If those soldiers had been, as they and all other of his subjects
ought to have been, at his Majesty’s command, the peace and happiness of
the three kingdoms had continued as it was left by King James. But the
people were corrupted generally, and disobedient persons esteemed the
best patriots.
_B._ But sure there were men enough, besides those that were
ill-affected, to have made an army sufficient to have kept the people
from uniting into a body able to oppose him.
_A._ Truly, I think, if the King had had money, he might have had
soldiers enough in England. For there were very few of the common people
that cared much for either of the causes, but would have taken any side
for pay or plunder. But the King’s treasury was very low, and his
enemies, that pretended the people’s ease from taxes, and other specious
things, had the command of the purses of the city of London, and of most
cities and corporate towns in England, and of many particular persons
besides.
_B._ But how came the people to be so corrupted? And what kind of people
were they that did so seduce them?
_A._ The seducers were of divers sorts. One sort were ministers;
ministers, as they called themselves, of Christ; and sometimes, in their
sermons to the people, God’s ambassadors; pretending to have a right
from God to govern every one his parish, and their assembly the whole
nation.
Secondly, there were a very great number, though not comparable to the
other, which notwithstanding that the Pope’s power in England, both
temporal and ecclesiastical, had been by Act of Parliament abolished,
did still retain a belief that we ought to be governed by the Pope, whom
they pretended to be the vicar of Christ, and, in the right of Christ,
to be the governor of all Christian people. And these were known by the
name of Papists; as the ministers I mentioned before, were commonly
called Presbyterians.
Thirdly, there were not a few, who in the beginning of the troubles were
not discovered, but shortly after declared themselves for a liberty in
religion, and those of different opinions one from another. Some of
them, because they would have all congregations free and independent
upon one another, were called Independents. Others that held baptism to
infants, and such as understood not into what they are baptized, to be
ineffectual, were called therefore Anabaptists. Others that held that
Christ’s kingdom was at this time to begin upon the earth, were called
Fifth-monarchy-men; besides divers other sects, as Quakers, Adamites,
&c., whose names and peculiar doctrines I do not well remember. And
these were the enemies which arose against his Majesty from the private
interpretation of the Scripture, exposed to every man’s scanning in his
mother-tongue.
Fourthly, there were an exceeding great number of men of the better
sort, that had been so educated, as that in their youth having read the
books written by famous men of the ancient Grecian and Roman
commonwealths concerning their polity and great actions; in which books
the popular government was extolled by that glorious name of liberty,
and monarchy disgraced by the name of tyranny; they became thereby in
love with their forms of government. And out of these men were chosen
the greatest part of the House of Commons, or if they were not the
greatest part, yet by advantage of their eloquence, were always able to
sway the rest.
Fifthly, the city of London and other great towns of trade, having in
admiration the prosperity of the Low Countries after they had revolted
from their monarch, the King of Spain, were inclined to think that the
like change of government here, would to them produce the like
prosperity.
Sixthly, there were a very great number that had either wasted their
fortunes, or thought them too mean for the good parts they thought were
in themselves; and more there were, that had able bodies, but saw no
means how honestly to get their bread. These longed for a war, and hoped
to maintain themselves hereafter by the lucky choosing of a party to
side with, and consequently did for the most part serve under them that
had greatest plenty of money.
Lastly, the people in general were so ignorant of their duty, as that
not one perhaps of ten thousand knew what right any man had to command
him, or what necessity there was of King or Commonwealth, for which he
was to part with his money against his will; but thought himself to be
so much master of whatsoever he possessed, that it could not be taken
from him upon any pretence of common safety without his own consent.
King, they thought, was but a title of the highest honour, which
gentleman, knight, baron, earl, duke, were but steps to ascend to, with
the help of riches; they had no rule of equity, but precedents and
custom; and he was thought wisest and fittest to be chosen for a
Parliament, that was most averse to the granting of subsidies or other
public payments.
_B._ In such a constitution of people, methinks, the King is already
ousted of his government, so as they need not have taken arms for it.
For I cannot imagine how the King should come by any means to resist
them.
_A._ There was indeed very great difficulty in the business. But of that
point you will be better informed in the pursuit of this narration.
_B._ But I desire to know first, the several grounds of the pretences,
both of the Pope and of the Presbyterians, by which they claim a right
to govern us, as they do, in chief: and after that, from whence and when
crept in the pretences of that Long Parliament, for a democracy.
_A._ As for the Papists, they challenge this right from a text in
_Deut._ xvii. 12, and other like texts, according to the old Latin
translation in these words: _And he that out of pride shall refuse to
obey the commandment of that priest, which shall at that time minister
before the Lord thy God, that man shall by the sentence of the judge be
put to death_. And because, as the Jews were the people of God then, so
is all Christendom the people of God now, they infer from thence, that
the Pope, whom they pretend to be the high-priest of all Christian
people, ought also to be obeyed in all his decrees by all Christians,
upon pain of death. Again, whereas in the New Testament (Matth. xxviii.
18-20) Christ saith: _All power is given unto me in heaven and in earth;
go therefore and teach all nations, and baptize them in the name of the
Father, and of the Son, and of the Holy Ghost, and teach them to observe
all these things which I have commanded you_: from thence they infer,
that the command of the apostles was to be obeyed, and by consequence
the nations were bound to be governed by them, and especially by the
prince of the apostles, St. Peter, and by his successors the Popes of
Rome.
_B._ For the text in the Old Testament, I do not see how the commandment
of God to the Jews, to obey their priests, can be interpreted to have
the like force in the case of other nations Christian, more than upon
nations unchristian (for all the world are God’s people); unless we also
grant, that a king cannot of an infidel be made Christian, without
making himself subject to the laws of that apostle, or priest, or
minister, that shall convert him. The Jews were a peculiar people of
God, a sacerdotal kingdom, and bound to no other law but what first
Moses, and afterwards every high-priest, did go and receive immediately
from the mouth of God in Mount Sinai, in the tabernacle of the ark, and
in the _sanctum sanctorum_ of the temple. And for the text in St.
Matthew, I know the words in the Gospel are not _go teach_, but _go and
make disciples_; and that there is a great difference between a subject
and a disciple, and between teaching and commanding. And if such texts
as these must be so interpreted, why do not Christian kings lay down
their titles of majesty and sovereignty, and call themselves the Pope’s
lieutenants? But the doctors of the Romish Church seem to decline that
title of absolute power, in their distinction of power spiritual and
temporal; but this distinction I do not very well understand.
_A._ By spiritual power they mean the power to determine points of
faith, and to be judges in the inner court of conscience of moral
duties, and a power to punish those men, that obey not their precepts,
by ecclesiastical censure, that is, by excommunication. And this power,
they say, the Pope hath immediately from Christ, without dependence upon
any king or sovereign assembly, whose subjects they be that stand
excommunicate. But for the power temporal, which consists in judging and
punishing those actions that are done against the civil laws, they say,
they do not pretend to it directly, but only indirectly, that is to say,
so far forth as such actions tend to the hindrance or advancement of
religion and good manners, which they mean when they say _in ordine ad
spiritualia_.
_B._ What power then is left to Kings and other civil sovereigns, which
the Pope may not pretend to be his _in ordine ad spiritualia_?
_A._ None, or very little. And this power not only the Pope pretends to
in all Christendom; but some of his bishops also, in their several
dioceses, _jure divino_, that is, immediately from Christ, without
deriving it from the Pope.
_B._ But what if a man refuse obedience to this pretended power of the
Pope and his bishops? What harm can excommunication do him, especially
if he be the subject of another sovereign?
_A._ Very great harm. For by the Pope’s or bishop’s signification of it
to the civil power, he shall be punished sufficiently.
_B._ He were in an ill case then, that adventured to write or speak in
defence of the civil power, that must be punished by him whose rights he
defended, like Uzza, that was slain because he would needs, unbidden,
put forth his hand to keep the ark from falling. But if a whole nation
should revolt from the Pope at once, what effect could excommunication
have upon the nation?
_A._ Why, they should have no more mass said, at least by any of the
Pope’s priests. Besides, the Pope would have no more to do with them,
but cast them off, and so they would be in the same case as if a nation
should be cast off by their king, and left to be governed by themselves,
or whom they would.
_B._ This would not be taken so much for a punishment to the people, as
to the King; and therefore when a Pope excommunicates a whole nation,
methinks he rather excommunicates himself than them. But I pray you tell
me, what were the rights that the Pope pretended to in the kingdoms of
other princes?
_A._ First, an exemption of all priests, friars, and monks, in criminal
causes, from the cognizance of civil judges. Secondly, collation of
benefices on whom he pleased, native or stranger, and exaction of
tenths, first fruits, and other payments. Thirdly, appeals to Rome in
all causes where the Church could pretend to be concerned. Fourthly, to
be the supreme judge concerning lawfulness of marriage, that is
concerning the hereditary succession of Kings, and to have the
cognizance of all causes concerning adultery and fornication.
_B._ Good! A monopoly of women.
_A._ Fifthly, a power of absolving subjects of their duties, and of
their oaths of fidelity to their lawful sovereigns, when the Pope should
think fit for the extirpation of heresy.
_B._ This power of absolving subjects of their obedience, as also that
other of being judge of manners and doctrine, is as absolute a
sovereignty as is possible to be; and consequently there must be two
kingdoms in one and the same nation, and no man be able to know which of
his masters he must obey.
_A._ For my part, I should rather obey that master that had the right of
making laws and of inflicting punishments, than him that pretendeth only
to a right of making canons, that is to say, rules, and no right of
co-action, or otherwise punishing, but by excommunication.
_B._ But the Pope pretends also that his canons are laws; and for
punishing, can there be greater than excommunication; supposing it true,
as the Pope saith it is, that he that dies excommunicate is damned?
Which supposition, it seems, you believe not; else you would rather have
chosen to obey the Pope, that would cast your body and soul into hell,
than the King, that can only kill the body.
_A._ You say true. For it were very uncharitable in me to believe that
all Englishmen, except a few Papists, that have been born and called
heretics ever since the Reformation of Religion in England, should be
damned.
_B._ But for those that die excommunicate in the Church of England at
this day, do you not think them also damned?
_A._ Doubtless, he that dies in sin without repentance is damned, and he
that is excommunicate for disobedience to the King’s laws, either
spiritual or temporal, is excommunicate for sin; and therefore, if he
die excommunicate and without desire of reconciliation, he dies
impenitent. You see what follows. But to die in disobedience to the
precepts and doctrines of those men that have no authority or
jurisdiction over us, is quite another case, and bringeth no such danger
with it.
_B._ But what is this heresy, which the Church of Rome so cruelly
persecutes, as to depose Kings that do not, when they are bidden, turn
all heretics out of their dominions?
_A._ Heresy is a word which, when it is used without passion, signifies
a private opinion. So the different sects of the old philosophers,
Academians, Peripatetics, Epicureans, Stoics, &c., were called heresies.
But in the Christian Church, there was in the signification of that
word, comprehended a sinful opposition to him, that was chief judge of
doctrines in order to the salvation of men’s souls; and consequently
heresy may be said to bear the same relation to the power spiritual,
that rebellion doth to the power temporal, and is suitable to be
persecuted by him that will preserve a power spiritual and dominion over
men’s consciences.
_B._ It would be very well, (because we are all of us permitted to read
the Holy Scriptures, and bound to make them the rule of our actions,
both public and private), that heresy were by some law defined, and the
particular opinions set forth, for which a man were to be condemned and
punished as a heretic; for else, not only men of mean capacity, but even
the wisest and devoutest Christian, may fall into heresy without any
will to oppose the Church; for the Scriptures are hard, and the
interpretations different of different men.
_A._ The meaning of the word heresy, is by law declared in an Act of
Parliament in the first year of Queen Elizabeth; wherein it is ordained,
that the persons who had by the Queen’s letters-patent the authority
spiritual, meaning the High Commission, shall not have authority to
adjudge any matter or cause to be heresy, but only such as heretofore
have been adjudged to be heresy by the authority of the canonical
Scriptures, or by the first four general Councils, or by any other
general Council, where the same was declared heresy by the express and
plain words of the said canonical Scriptures, or such as hereafter shall
be adjudged heresy by the high court of Parliament of this realm, with
the assent of the clergy in their convocation.
_B._ It seems therefore, if there arise any new error that hath not yet
been declared heresy, (and many such may arise), it cannot be judged
heresy without a Parliament. For how foul soever the error be, it cannot
have been declared heresy neither in the Scriptures nor in the Councils;
because it was never before heard of. And consequently there can be no
error, unless it fall within the compass of blasphemy against God or
treason against the King, for which a man can in equity be punished.
Besides, who can tell what is declared by the Scripture, which every man
is allowed to read and interpret to himself? Nay more, what Protestant,
either of the laity or clergy, if every general Council can be a
competent judge of heresy, is not already condemned? For divers Councils
have declared a great many of our doctrines to be heresy, and that, as
they pretend, upon the authority of the Scriptures.
_A._ What are those points, that the first four general Councils have
declared heresy?
_B._ The first general Council, held at Nicæa, declared all to be heresy
which was contrary to the Nicene Creed, upon occasion of the heresy of
Arius, which was the denying the divinity of Christ. The second general
Council, held at Constantinople, declared heresy the doctrine of
Macedonius; which was that the Holy Ghost was created. The third
Council, assembled at Ephesus, condemned the doctrine of Nestorius, that
there were two persons in Christ. The fourth, held at Chalcedon,
condemned the error of Eutyches, that there was but one nature in
Christ. I know of no other points condemned in these four Councils, but
such as concern church-government, or the same doctrines taught by other
men in other words. And these Councils were all called by the Emperors,
and by them their decrees confirmed at the petition of the Councils
themselves.
_A._ I see by this, that both the calling of the Council, and the
confirmation of their doctrine and church-government, had no obligatory
force but from the authority of the Emperor. How comes it then to pass,
that they take upon them now a legislative power, and say their canons
are laws? That text, _all power is given to me in heaven and earth_, had
the same force then as it hath now, and conferred a legislative power on
the Councils, not only over Christian men, but over all nations in the
world.
_B._ They say no; for the power they pretend to is derived from this,
that when a king was converted from Gentilism to Christianity, he did by
that very submission to the bishop that converted him, submit to the
bishop’s government and became one of his sheep; which right therefore
he could not have over any nation that was not Christian.
_A._ Did Sylvester, which was Pope of Rome in the time of Constantine
the Great, converted by him, tell the Emperor, his new disciple,
beforehand, that if he became a Christian he must be the Pope’s subject?
_B._ I believe not. For it is likely enough, if he had told him so
plainly, or but made him suspect it, he would either have been no
Christian at all, or but a counterfeit one.
_A._ But if he did not tell him so, and that plainly, it was foul play,
not only in a priest, but in any Christian. And for this derivation of
their right from the Emperor’s consent, it proceeds only from this, that
they dare not challenge a legislative power, nor call their canons laws
in any kingdom in Christendom, further than the kings make them so. But
in Peru, when Atabalipa was King, the friar told him, that Christ being
King of all the world, had given the disposing of all the kingdoms
therein to the Pope, and that the Pope had given Peru to the Roman
Emperor Charles the Fifth, and required Atabalipa to resign it; and for
refusing it, seized upon his person by the Spanish army there present,
and murdered him. You see by this how much they claim, when they have
power to make it good.
_B._ When began the Popes to take this authority upon them first?
_A._ After the inundation of the northern people had overflowed the
western parts of the empire, and possessed themselves of Italy, the
people of the city of Rome submitted themselves, as well in temporals as
spirituals, to their bishop; and then first was the Pope a temporal
prince, and stood no more in so great fear of the Emperors, which lived
far off at Constantinople. In this time it was that the Pope began, by
pretence of his power spiritual, to encroach upon the temporal rights of
all other princes of the west; and so continued gaining upon them, till
his power was at the highest in that three hundred years, or thereabout,
which passed between the eighth and eleventh century, that is, between
Pope Leo the Third and Pope Innocent the Third. For in this time Pope
Zachary the First deposed Chilperic, then King of France, and gave the
kingdom to one of his subjects, Pepin; and Pepin took from the Lombards
a great part of their territory and gave it to the Church. Shortly
after, the Lombards having recovered their estate, Charles the Great
retook it, and gave it to the Church again; and Pope Leo the Third made
Charles Emperor.
_B._ But what right did the Pope then pretend for the creating of an
Emperor?
_A._ He pretended the right of being Christ’s vicar; and what Christ
could give, his vicar might give; and you know that Christ was King of
all the world.
_B._ Yes, as God; and so he gives all the kingdoms of the world, which
nevertheless proceed from the consent of people, either for fear or
hope.
_A._ But this gift of the empire was in a more special manner, in such a
manner as Moses had the government of Israel given him; or rather as
Joshua had it given him, to go in and out before the people as the
high-priest should direct him. And so the empire was understood to be
given him, on condition to be directed by the Pope. For when the Pope
invested him with the regal ornaments, the people all cried out _Deus
dat_, that is to say, it is God that gives it; and the Emperor was
contented so to take it. And from that time, all or most of the
Christian Kings do put into their titles the words _Dei gratia_, that
is, by the gift of God; and their successors use still to receive the
crown and sceptre from a bishop.
_B._ It is certainly a very good custom, for Kings to be put in mind by
whose gift they reign; but it cannot from that custom be inferred that
they receive the kingdom by mediation of the Pope, or by any other
clergy; for the Popes themselves received the Papacy from the Emperor.
The first that ever was elected Bishop of Rome after Emperors were
Christians, and without the Emperor’s consent, excused himself by
letters to the Emperor with this: that the people and clergy of Rome
forced him to take it upon him, and prayed the Emperor to confirm it,
which the Emperor did; but with reprehension of their proceedings, and
the prohibition of the like for the time to come. The Emperor was
Lotharius, and the Pope Calixtus the First.
_A._ You see by this the Emperor never acknowledged this gift of God was
the gift of the Pope, but maintained, the Popedom was the gift of the
Emperor. But in process of time, by the negligence of the Emperors, (for
the greatness of Kings makes them that they cannot easily descend into
the obscure and narrow mines of an ambitious clergy), they found means
to make the people believe, there was a power in the Pope and clergy,
which they ought to submit unto, rather than to the commands of their
own Kings, whensoever it should come into controversy: and to that end
devised and decreed many new articles of faith, to the diminution of the
authority of kings, and to the disjunction of them and their subjects,
and to a closer adherence of their subjects to the Church of Rome;
articles either not at all found in, or not well founded upon the
Scriptures; as first; that it should not be lawful for a priest to
marry.
_B._ What influence could that have upon the power of Kings?
_A._ Do you not see, that by this the King must of necessity either want
the priesthood, and therewith a great part of the reverence due to him
from the most religious part of his subjects, or else want lawful heirs
to succeed him: by which means, being not taken for the head of the
Church, he was sure, in any controversy between him and the Pope, that
his subjects would be against him?
_B._ Is not a Christian King as much a bishop now, as the heathen Kings
were of old? for among them _episcopus_ was a name common to all Kings.
Is not he a bishop now, to whom God hath committed the charge of all the
souls of his subjects, both of the laity and the clergy? And though he
be in relation to our Saviour, who is the chief pastor, but a sheep,
yet, compared to his own subjects, they are all sheep, both laic and
cleric, and he only shepherd. And seeing a Christian bishop is but a
Christian endued with power to govern the clergy, it follows that every
Christian king is not only a bishop, but an arch-bishop, and his whole
dominion his diocese. And though it were granted, that imposition of
hands is necessary from a priest; yet seeing Kings have the government
of the clergy, that are his subjects even before baptism; the baptism
itself, wherein he is received as a Christian, is a sufficient
imposition of hands, so that whereas before he was a bishop, now he is a
Christian bishop.
_A._ For my part I agree with you: this prohibition of marriage to
priests came in about the time of Pope Gregory the Seventh, and William
the First, King of England; by which means the Pope had in England, what
with secular and what with regular priests, a great many lusty bachelors
at his service.
Secondly, that auricular confession to a priest was necessary to
salvation. It is true, that before that time, confession to a priest was
usual, and performed for the most part by him that confessed, in
writing. But that use was taken away about the time of King Edward III,
and priests commanded to take confessions from the mouth of the
confitent: and men did generally believe, that without confession and
absolution before their departure out of the world, they could not be
saved; and having absolution from a priest, that they could not be
damned. You understand by this, how much every man would stand in awe of
the Pope and clergy, more than they would of the King; and what
inconvenience it is to a state for their subjects to confess their
secret thoughts to spies.
_B._ Yes, as much as eternal torture is more terrible than death, so
much they would fear the clergy more than the King.
_A._ And though perhaps the Roman clergy will not maintain, that a
priest hath power to remit sins absolutely, but only with a condition of
repentance, yet the people were never so instructed by them; but were
left to believe, that whensoever they had absolution, their precedent
sins were all discharged, when their penance, which they took for
repentance, was performed. Within the same time began the article of
transubstantiation. For it had been disputed a long time before, in what
manner a man did eat the body of our Saviour Jesus Christ, as being a
point very difficult for a man to conceive and imagine clearly; but now
it was made very clear, that the bread was transubstantiated into
Christ’s body, and so was become no more bread, but flesh.
_B._ It seems then that Christ had many bodies, and was in as many
places at once, as there were communicants. I think the priests then
were so wanton, as to insult upon the dulness, not only of common
people, but also of kings and their councillors.
_A._ I am now in a narration, not in a disputation; and therefore I
would have you at this time to consider nothing else, but what effect
this doctrine would work upon kings and their subjects, in relation to
the clergy, who only were able of a piece of bread to make our Saviour’s
body, and thereby at the hour of death to save their souls.
_B._ For my part, it would have an effect on me, to make me think them
gods, and to stand in awe of them as of God himself, if he were visibly
present.
_A._ Besides these, and other articles tending to the upholding of the
Pope’s authority, they had many fine points in their ecclesiastical
polity, conducing to the same end; of which I will mention only such as
were established within the same time. For then it was the order came up
of preaching friars, that wandered up and down, with power to preach in
what congregation they pleased, and were sure enough to instil into the
people nothing that might lessen the obedience to the Church of Rome;
but, on the contrary, whatsoever might give advantage to it against the
civil power. Besides, they privately insinuated themselves with women
and men of weak judgment, confirming their adherence to the Pope, and
urging them, in the time of their sickness, to be beneficial to it by
contribution of money, or building religious houses, or pious works and
necessary for the remission of their sins.
_B._ I do not remember that I have read of any kingdom or state in the
world, where liberty was given to any private man to call the people
together, and make orations frequently to them, or at all, without first
making the state acquainted, except only in Christendom. I believe the
heathen Kings foresaw, that a few such orators would be able to make a
great sedition. Moses did indeed command to read the Scriptures and
expound them in the Synagogues every Sabbath-day. But the Scriptures
then were nothing else but the laws of the nation, delivered unto them
by Moses himself. And I believe it would do no hurt, if the laws of
England also were often read and expounded in the several congregations
of Englishmen, at times appointed, that they may know what to do; for
they know already what to believe.
_A._ I think that neither the preaching of friars nor monks, nor of
parochial priests, tended to teach men what, but whom to believe. For
the power of the mighty hath no foundation but in the opinion and belief
of the people. And the end which the Pope had in multiplying sermons,
was no other but to prop and enlarge his own authority over all
Christian Kings and States.
Within the same time, that is, between the time of the Emperor Charles
the Great and of King Edward the Third of England, began their second
polity; which was, to bring religion into an art, and thereby to
maintain all the decrees of the Roman Church by disputation; not only
from the Scriptures, but also from the philosophy of Aristotle, both
moral and natural. And to that end the Pope exhorted the said Emperor by
letter, to erect schools of all kinds of literature; and from thence
began the institution of universities; for not long after, the
universities began in Paris and in Oxford. It is true, that there were
schools in England before that time, in several places, for the
instruction of children in the Latin tongue, that is to say, in the
tongue of the Church. But for an university of learning, there was none
erected till that time; though it be not unlikely there might be then
some that taught philosophy, logic, and other arts, in divers
monasteries, the monks having little else to do but to study. After some
colleges were built to that purpose, it was not long time before many
more were added to them, by the devotion of princes and bishops, and
other wealthy men: and the discipline therein was confirmed by the Popes
that then were; and abundance of scholars sent thither by their friends
to study, as to a place from whence the way was open and easy to
preferment both in Church and Commonwealth. The profit the Church of
Rome expected from them, and in effect received, was the maintenance of
the Pope’s doctrine, and of his authority over kings and their subjects,
by school-divines; who striving to make good many points of faith
incomprehensible, and calling in the philosophy of Aristotle to their
assistance, wrote great books of school-divinity, which no man else, nor
they themselves, were able to understand; as any man may perceive that
shall consider the writings of Peter Lombard, or Scotus, or of him that
wrote commentaries upon him, or of Suarez, or any other school-divine of
later times. Which kind of learning nevertheless hath been much admired
by two sorts of men, otherwise prudent enough. The one of which sorts
were of those that were already devoted and really affectionate to the
Roman Church; for they believed the doctrine before, but admired the
arguments because they understood them not, and yet found the
conclusions to their mind. The other sort were negligent men, that had
rather admire with others, than take the pains to examine. So that all
sorts of people were fully resolved, that both the doctrine was true,
and the Pope’s authority no more than what was due to him.
_B._ I see that a Christian king, or state, how well soever provided he
be of money and arms, where the Church of Rome hath such authority, will
have but a hard match of it, for want of men. For their subjects will
hardly be drawn into the field and fight with courage against their
consciences.
_A._ It is true that great rebellions have been raised by Church-men in
the Pope’s quarrel against kings, as in England against King John, and
in France against King Henry IV. Wherein the Kings had a more
considerable part on their sides, than the Pope had on his; and shall
always have so, if they have money. For there are but few whose
consciences are so tender as to refuse money when they want it. But the
great mischief done to kings upon pretence of religion is, when the Pope
gives power to one king to invade another.
_B._ I wonder how King Henry the Eighth could then so utterly extinguish
the authority of the Pope in England, and that without any rebellion at
home, or any invasion from abroad.
_A._ First, the priests, monks, and friars, being in the height of their
power, were now for the most part grown insolent and licentious; and
thereby the force of their arguments was now taken away by the scandal
of their lives, which the gentry and men of good education easily
perceived: and the Parliament consisting of such persons, were therefore
willing to take away their power: and generally the common people, which
from a long custom had been in love with Parliaments, were not
displeased therewith. Secondly, the doctrine of Luther beginning a
little before, was now by a great many men of the greatest judgment so
well received, as that there was no hope to restore the Pope to his
power by rebellion. Thirdly, the revenue of abbeys and all other
religious houses, falling thereby into the King’s hands, and by him
being disposed of to the most eminent gentlemen in every county, could
not but make them do their best to confirm themselves in the possession
of them. Fourthly, King Henry was of a nature quick and severe in the
punishing of such as should be the first to oppose his designs. Lastly,
as to invasion from abroad, in case the Pope had given the kingdom to
another prince, it had been in vain; for England is another manner of
kingdom than Navarre. Besides, the French and Spanish forces were
employed at that time one against another: and though they had been at
leisure, they would have found perhaps no better success than the
Spaniards found afterwards in 1588. Nevertheless, notwithstanding the
insolence, avarice, and hypocrisy of the then clergy, and
notwithstanding the doctrine of Luther, if the Pope had not provoked the
King by endeavouring to cross his marriage with his second wife, his
authority might have remained in England till there had risen some other
quarrel.
_B._ Did not the bishops, that then were, and had taken an oath, wherein
was, amongst other things, that they should defend and maintain the
legal rights of St. Peter: (the words are, _Regalia Sancti Petri_, which
nevertheless some have said are _regulas Sancti Petri_, that is to say,
St. Peter’s rules or doctrine; and that the clergy afterward did read
it, being perhaps written in short-hand, by a mistake to the Pope’s
advantage _regalia_): did not, I say, the bishops oppose that Act of
Parliament against the Pope, and against the taking of the oath of
supremacy?
_A._ No, I do not find that the bishops did many of them oppose the
King; for having no power without him, it had been great imprudence to
provoke his anger. There was besides a controversy in those times
between the Pope and the bishops, most of which did maintain that they
exercised their jurisdiction episcopal in the right of God, as
immediately as the Pope himself did exercise the same over the whole
Church. And because they saw that by this Act of the King in Parliament
they were to hold their power no more of the Pope, and never thought of
holding it of the King, they were perhaps better content to let that Act
of Parliament pass. In the reign of King Edward VI the doctrine of
Luther had taken so great root in England, that they threw out also a
great many of the Pope’s new articles of faith; which Queen Mary
succeeding him restored again, together with all that had been abolished
by Henry VIII, saving that which could not be restored, the religious
houses; and the bishops and clergy of King Edward were partly burnt for
heretics, partly fled, and partly recanted. And they that fled betook
themselves to those places beyond sea, where the reformed religion was
either protected or not persecuted; who, after the decease of Queen
Mary, returned again to favour and preferment under Queen Elizabeth,
that restored the religion of her brother King Edward. And so it hath
continued till this day, excepting the interruption made in this late
rebellion of the presbyterians and other democratical men. But though
the Romish religion were now cast out by the law, yet there were
abundance of people, and many of them of the nobility, that still
retained the religion of their ancestors, who as they were not much
molested in points of conscience, so they were not by their own
inclination very troublesome to the civil government; but by the secret
practice of the Jesuits and other emissaries of the Roman Church, they
were made less quiet than they ought to have been; and some of them to
venture on the most horrid act that ever had been heard of before, I
mean the Gunpowder Treason. And upon that account, the Papists of
England have been looked upon as men that would not be sorry for any
disorders here that might possibly make way to the restoring of the
Pope’s authority. And therefore I named them for one of the distempers
of the state of England in the time of our late King Charles.
_B._ I see that Monsieur Mornay du Plessis, and Dr. Morton, Bishop of
Durham, writing of the progress of the Pope’s power, and intituling
their books, one of them, _The Mystery of Iniquity_, the other, _The
Grand Imposture_, were both in the right. For I believe there was never
such another cheat in the world, and I wonder that the Kings and States
of Christendom never perceived it.
_A._ It is manifest they did perceive it. How else durst they make war
against the Pope, and some of them take him out of Rome itself and carry
him away prisoner? But if they would have freed themselves from his
tyranny, they should have agreed together, and made themselves every
one, as Henry VIII did, head of the Church within their own respective
dominions. But not agreeing, they let his power continue, every one
hoping to make use of it, when there should be cause, against his
neighbour.
_B._ Now, as to that other distemper by Presbyterians, how came their
power to be so great, being of themselves, for the most part, but so
many poor scholars?
_A._ This controversy between the Papist and the Reformed Churches,
could not choose but make every man, to the best of his power, examine
by the Scriptures, which of them was in the right; and to that end they
were translated into vulgar tongues; whereas before, the translation of
them was not allowed, nor any man to read them but such as had express
license so to do. For the Pope did concerning the Scriptures the same
that Moses did concerning Mount Sinai. Moses suffered no man to go up to
it to hear God speak or gaze upon him, but such as he himself took with
him; and the Pope suffered none to speak with God in the Scriptures,
that had not some part of the Pope’s spirit in him, for which he might
be trusted.
_B._ Certainly Moses did therein very wisely, and according to God’s own
commandment.
_A._ No doubt of it, and the event itself hath made it appear so. For
after the Bible was translated into English, every man, nay, every boy
and wench, that could read English, thought they spoke with God
Almighty, and understood what he said, when by a certain number of
chapters a day they had read the Scriptures once or twice over. The
reverence and obedience due to the Reformed Church here, and to the
bishops and pastors therein, was cast off, and every man became a judge
of religion, and an interpreter of the Scriptures to himself.
_B._ Did not the Church of England intend it should be so? What other
end could they have in recommending the Bible to me, if they did not
mean I should make it the rule of my actions? Else they might have kept
it, though open to themselves, to me sealed up in Hebrew, Greek, and
Latin, and fed me out of it in such measure as had been requisite for
the salvation of my soul and the Church’s peace.
_A._ I confess this licence of interpreting the Scripture was the cause
of so many several sects, as have lain hid till the beginning of the
late King’s reign, and did then appear to the disturbance of the
commonwealth. But to return to the story. Those persons that fled for
religion in the time of Queen Mary, resided, for the most part, in
places where the Reformed religion was professed and governed by an
assembly of ministers; who also were not a little made use of, for want
of better statesmen, in points of civil government. Which pleased so
much the English and Scotch Protestants that lived amongst them, that at
their return they wished there were the same honour and reverence given
to the ministry in their own countries. In Scotland, King James being
then young, soon with the help of some of the powerful nobility they
brought it to pass. Also they that returned into England in the
beginning of the reign of Queen Elizabeth, endeavoured the same here,
but could never effect it till this last rebellion, nor without the aid
of the Scots. And it was no sooner effected, but they were defeated
again by the other sects, which, by the preaching of the Presbyterians
and private interpretation of Scripture, were grown numerous.
_B._ I know indeed that in the beginning of the late war, the power of
the Presbyterians was so very great, that, not only the citizens of
London were almost all of them at their devotion, but also the greatest
part of all other cities and market-towns of England. But you have not
yet told me by what art and what degrees they became so strong.
_A._ It was not their own art alone that did it, but they had the
concurrence of a great many gentlemen, that did no less desire a popular
government in the civil state than these ministers did in the Church.
And as these did in the pulpit draw the people to their opinions, and to
a dislike of the Church-government, Canons, and Common-prayer-book, so
did the other make them in love with democracy by their harangues in the
Parliament, and by their discourses and communication with people in the
country, continually extolling liberty and inveighing against tyranny,
leaving the people to collect of themselves that this tyranny was the
present government of the state. And as the Presbyterians brought with
them into their churches their divinity from the universities, so did
many of the gentlemen bring their politics from thence into the
Parliament; but neither of them did this very boldly in the time of
Queen Elizabeth. And though it be not likely that all of them did it out
of malice, but many of them out of error, yet certainly the chief
leaders were ambitious ministers and ambitious gentlemen; the ministers
envying the authority of bishops, whom they thought less learned; and
the gentlemen envying the privy-council, whom they thought less wise
than themselves. For it is a hard matter for men, who do all think
highly of their own wits, when they have also acquired the learning of
the university, to be persuaded that they want any ability requisite for
the government of a commonwealth, especially having read the glorious
histories and the sententious politics of the ancient popular
governments of the Greeks and Romans, amongst whom kings were hated and
branded with the name of tyrants, and popular government (though no
tyrant was ever so cruel as a popular assembly) passed by the name of
liberty. The Presbyterian ministers, in the beginning of the reign of
Queen Elizabeth, did not, because they durst not, publicly preach
against the discipline of the Church. But not long after, by the favour
perhaps of some great courtier, they went abroad preaching in most of
the market-towns of England, as the preaching friars had formerly done,
upon working-days in the morning; in which sermons, these and others of
the same tenets, that had charge of souls, both by the manner and matter
of their preaching, applied themselves wholly to the winning of the
people to a liking of their doctrines and good opinion of their persons.
And first, for the manner of their preaching; they so framed their
countenance and gesture at their entrance into the pulpit, and their
pronunciation both in their prayer and sermon, and used the Scripture
phrase (whether understood by the people or not), as that no tragedian
in the world could have acted the part of a right godly man better than
these did; insomuch that a man unacquainted with such art, could never
suspect any ambitious plot in them to raise sedition against the state,
as they then had designed; or doubt that the vehemence of their voice
(for the same words with the usual pronunciation had been of little
force) and forcedness of their gesture and looks, could arise from
anything else but zeal to the service of God. And by this art they came
into such credit, that numbers of men used to go forth of their own
parishes and towns on working-days, leaving their calling, and on
Sundays leaving their own churches, to hear them preach in other places,
and to despise their own and all other preachers that acted not so well
as they. And as for those ministers that did not usually preach, but
instead of sermons did read to the people such homilies as the Church
had appointed, they esteemed and called them dumb dogs.
Secondly, for the matter of their sermons, because the anger of the
people in the late Roman usurpation was then fresh, they saw there could
be nothing more gracious with them than to preach against such other
points of the Romish religion as the bishops had not yet condemned; that
so receding further from popery than they did, they might with glory to
themselves leave a suspicion on the bishops, as men not yet well purged
from idolatry.
Thirdly, before their sermons, their prayer was or seemed to be
_extempore_, which they pretended to be dictated by the spirit of God
within them, and many of the people believed or seemed to believe it.
For any man might see, that had judgment, that they did not take care
beforehand what they should say in their prayers. And from hence came a
dislike of the common-prayer-book, which is a set form, premeditated,
that men might see to what they were to say _amen_.
Fourthly, they did never in their sermons, or but lightly, inveigh
against the lucrative vices of men of trade or handicraft; such as are
feigning, lying, cozening, hypocrisy, or other uncharitableness, except
want of charity to their pastors and to the faithful: which was a great
ease to the generality of citizens and the inhabitants of market-towns,
and no little profit to themselves.
Fifthly, by preaching up an opinion that men were to be assured of their
salvation by the testimony of their own private spirit, meaning the Holy
Ghost dwelling within them. And from this opinion the people that found
in themselves a sufficient hatred towards the Papists, and an ability to
repeat the sermons of these men at their coming home, made no doubt but
that they had all that was necessary, how fraudulently and spitefully
soever they behaved themselves to their neighbours that were not
reckoned amongst the saints, and sometimes to those also.
Sixthly, they did, indeed, with great earnestness and severity, inveigh
often against two sins, carnal lusts and vain swearing; which, without
question, was very well done. But the common people were thereby
inclined to believe, that nothing else was sin, but that which was
forbidden in the third and seventh commandments (for few men do
understand by the name of lust any other concupiscence, than that which
is forbidden in that seventh commandment; for men are not ordinarily
said to lust after another man’s cattle, or other goods or possessions):
and therefore never made much scruple of the acts of fraud and malice,
but endeavoured to keep themselves from uncleanness only, or at least
from the scandal of it. And, whereas they did, both in their sermons and
writings, maintain and inculcate, that the very first motions of the
mind, that is to say, the delight men and women took in the sight of one
another’s form, though they checked the proceeding thereof so that it
never grew up to be a design, was nevertheless a sin, they brought young
men into desperation and to think themselves damned, because they could
not (which no man can, and is contrary to the constitution of nature)
behold a delightful object without delight. And by this means they
became confessors to such as were thus troubled in conscience, and were
obeyed by them as their spiritual doctors in all cases of conscience.
_B._ Yet divers of them did preach frequently against oppression.
_A._ It is true, I had forgot that; but it was before such as were free
enough from it; I mean the common people, who would easily believe
themselves oppressed, but never oppressors. And therefore you may reckon
this among their artifices, to make the people believe they were
oppressed by the King, or perhaps by the bishops, or both; and incline
the meaner sort to their party afterwards, when there should be
occasion. But this was but sparingly done in the time of Queen
Elizabeth, whose fear and jealousy they were afraid of. Nor had they as
yet any great power in the Parliament-house, whereby to call in question
her prerogative by petitions of right and other devices, as they did
afterwards, when democratical gentlemen had received them into their
counsels for the design of changing the government from monarchical to
popular, which they called liberty.
_B._ Who would think that such horrible designs as these could so easily
and so long remain covered with the cloak of godliness? For that they
were most impious hypocrites, is manifest enough by the war these
proceedings ended in, and by the impious acts in that war committed. But
when began first to appear in Parliament the attempt of popular
government, and by whom?
_A._ As to the time of attempting the change of government from
monarchical to democratical, we must distinguish. They did not challenge
the sovereignty in plain terms, and by that name, till they had slain
the King; nor the rights thereof altogether by particular heads, till
the King was driven from London by tumults raised in that city against
him, and retired for the security of his person to York; where he had
not been many days, when they sent unto him nineteen propositions,
whereof above a dozen were demands of several powers, essential parts of
the power sovereign. But before that time they had demanded some of them
in a petition which they called a Petition of Right; which nevertheless
the King had granted them in a former Parliament, though he deprived
himself thereby, not only of the power to levy money without their
consent, but also of his ordinary revenue by custom of tonnage and
poundage, and of the liberty to put into custody such men as he thought
likely to disturb the peace and raise sedition in the kingdom. As for
the men that did this, it is enough to say they were members of the last
Parliament, and of some other Parliaments in the beginning of King
Charles and the end of King James his reign; to name them all is not
necessary, further than the story shall require. Most of them were
members of the House of Commons; some few also, of the Lords; but all,
such as had a great opinion of their sufficiency in politics, which they
thought was not sufficiently taken notice of by the King.
_B._ How could the Parliament, when the King had a great navy, and a
great number of trained soldiers, and all the magazines of ammunition in
his power, be able to begin the war?
_A._ The King had these things indeed in his right; but that signifies
little, when they that had the custody of the navy and magazines, and
with them all the trained soldiers, and in a manner all his subjects,
were, by the preaching of Presbyterian ministers, and the seditious
whisperings of false and ignorant politicians, made his enemies; and
when the King could have no money but what the Parliament should give
him, which you may be sure should not be enough to maintain his regal
power, which they intended to take from him. And yet, I think, they
never would have ventured into the field, but for that unlucky business
of imposing upon the Scots, who were all Presbyterians, our book of
Common-prayer. For I believe the English would never have taken well
that the Parliament should make war upon the King, upon any provocation,
unless it were in their own defence, in case the King should first make
war upon them; and, therefore, it behoved them to provoke the King, that
he might do something that might look like hostility. It happened in the
year 1637, that the King, by the advice, as it is thought, of the
Archbishop of Canterbury, sent down a book of Common-prayer into
Scotland, not differing in substance from ours, nor much in words
besides the putting of the word Presbyter for that of Minister,
commanding it to be used, for conformity to this kingdom, by the
ministers there, for an ordinary form of Divine service. This being read
in the church at Edinburgh, caused such a tumult there, that he that
read it had much ado to escape with his life; and gave occasion to the
greatest part of the nobility and others to enter, by their own
authority, into a covenant amongst themselves, which impudently they
called a covenant with God, to put down episcopacy, without consulting
with the King: which they presently did, animated thereto by their own
confidence, or by assurance from some of the democratical Englishmen
that in former Parliaments had been the greatest opposers of the King’s
interest, that the King would not be able to raise an army to chastise
them without calling a Parliament, which would be sure to favour them.
For the thing which those democraticals chiefly then aimed at, was to
force the King to call a Parliament, which he had not done for ten years
before, as having found no help, but hindrance to his designs in the
Parliaments he had formerly called. Howsoever, contrary to their
expectation, by the help of his better-affected subjects of the nobility
and gentry, he made a shift to raise a sufficient army to have reduced
the Scots to their former obedience, if it had proceeded to battle. And
with this army he marched himself into Scotland; where the Scotch army
was also brought into the field against him, as if they meant to fight.
But then the Scotch sent to the King for leave to treat by commissioners
on both sides; and the King, willing to avoid the destruction of his own
subjects, condescended to it. The issue was peace; and the King
thereupon went to Edinburgh, and passed an Act of Parliament there to
their satisfaction.
_B._ Did he not then confirm episcopacy?
_A._ No, but yielded to the abolishing of it: but by this means the
English were crossed in their hope of a Parliament. But the said
democraticals, formerly opposers of the King’s interest, ceased not to
endeavour still to put the two nations into a war; to the end the King
might buy the Parliament’s help at no less a price than sovereignty
itself.
_B._ But what was the cause that the gentry and nobility of Scotland
were so averse from the episcopacy? For I can hardly believe that their
consciences were extraordinarily tender, nor that they were so very
great divines, as to know what was the true Church-discipline
established by our Saviour and his apostles; nor yet so much in love
with their ministers, as to be over-ruled by them in the government
either ecclesiastical or civil. For in their lives they were just as
other men are, pursuers of their own interests and preferments, wherein
they were not more opposed by the bishops than by their Presbyterian
ministers.
_A._ Truly I do not know; I cannot enter into other men’s thoughts,
farther than I am led by the consideration of human nature in general.
But upon this consideration I see first, that men of ancient wealth and
nobility are not apt to brook, that poor scholars should (as they must,
when they are made bishops) be their fellows. Secondly, that from the
emulation of glory between the nations, they might be willing to see
this nation afflicted by civil war, and might hope, by aiding the rebels
here, to acquire some power over the English, at least so far as to
establish here the Presbyterian discipline; which was also one of the
points they afterwards openly demanded. Lastly, they might hope for, in
the war, some great sum of money, as a reward of their assistance,
besides great booty, which they afterwards obtained. But whatsoever was
the cause of their hatred to bishops, the pulling of them down was not
all they aimed at: if it had, now that episcopacy was abolished by act
of Parliament, they would have rested satisfied, which they did not. For
after the King was returned to London, the English Presbyterians and
democraticals, by whose favour they had put down bishops in Scotland,
thought it reason to have the assistance of the Scotch for the pulling
down of bishops in England. And in order thereunto, they might perhaps
deal with the Scots secretly, to rest unsatisfied with that
pacification, which they were before contented with. Howsoever it was,
not long after the King was returned to London, they sent up to some of
their friends at court a certain paper, containing, as they pretended,
the articles of the said pacification; a false and scandalous paper,
which was by the King’s command burnt, as I have heard, publicly. And so
both parties returned to the same condition they were in, when the King
went down with his army.
_B._ And so there was a great deal of money cast away to no purpose. But
you have not told me who was general of that army.
_A._ I told you the King was there in person. He that commanded under
him was the Earl of Arundel, a man that wanted not either valour or
judgment. But to proceed to battle or to treaty, was not in his power,
but in the King’s.
_B._ He was a man of a most noble and loyal family, and whose ancestors
had formerly given a great overthrow to the Scots, in their own country;
and in all likelihood he might have given them the like now, if they had
fought.
_A._ He might indeed: but it had been but a kind of superstition to have
made him general upon that account, though many generals heretofore have
been chosen for the good luck of their ancestors in like occasions. In
the long war between Athens and Sparta, a general of the Athenians by
sea won many victories against the Spartans; for which cause, after his
death, they chose his son for general with ill success. The Romans that
conquered Carthage by the valour and conduct of Scipio, when they were
to make war again in Afric against Cæsar, chose another Scipio for
general; a man valiant and wise enough, but he perished in the
employment. And to come home to our own nation, the Earl of Essex made a
fortunate expedition to Cadiz; but his son, sent afterwards to the same
place, could do nothing. It is but a foolish superstition, to hope that
God has entailed success in war upon a name or family.
_B._ After the pacification broken, what succeeded next?
_A._ The King sent Duke Hamilton with commission and instructions into
Scotland, to call a Parliament there, and to use all the means he could
otherwise; but all was to no purpose. For the Scots were now resolved to
raise an army and to enter into England, to deliver, as they pretended,
their grievances to his majesty in a petition; because the King, they
said, being in the hands of evil councillors, they could not otherwise
obtain their right. But the truth is, they were animated to it by the
democratical and Presbyterian English, with a promise of reward and hope
of plunder. Some have said, that Duke Hamilton also did rather encourage
them to, than deter them from, the expedition; as hoping by the disorder
of the two kingdoms, to bring to pass that which he had formerly been
accused to endeavour, to make himself King of Scotland. But I take this
to have been a very uncharitable censure, upon so little ground to judge
so hardly of a man, that afterwards lost his life in seeking to procure
the liberty of the King his master. This resolution of the Scots to
enter England being known, the King wanting money to raise an army
against them, was now, as his enemies here wished, constrained to call a
parliament, to meet at Westminster the 13th day of April 1640.
_B._ Methinks a Parliament of England, if upon any occasion, should
furnish the King with money now in war against the Scots, out of an
inveterate disaffection to that nation that had always anciently taken
part with their enemies the French, and which always esteemed the glory
of England for an abatement of their own.
_A._ It is indeed commonly seen that neighbour nations envy one
another’s honour, and that the less potent bears the greater malice; but
that hinders them not from agreeing in those things which their common
ambition leads them to. And therefore the King found not the more, but
the less help from this Parliament: and most of the members thereof, in
their ordinary discourses, seemed to wonder why the King should make a
war upon Scotland; and in that Parliament sometimes called them _their
brethren the Scots_. But instead of taking the King’s business, which
was the raising of money, into their consideration, they fell upon the
redressing of grievances, and especially such ways of levying money as
in the late intermission of Parliaments the King had been forced to use;
such as were ship-money, for knighthood, and such other vails (as one
may call them) of the regal office, which lawyers had found justifiable
by the ancient records of the kingdom. Besides, they fell upon the
actions of divers ministers of state, though done by the King’s own
command and warrant. Insomuch, that before they were to come to the
business for which they were called, the money which was necessary for
this war (if they had given any, as they never meant to do) had come too
late. It is true, there was mention of a sum of money to be given the
King, by way of bargain, for the relinquishing of his right to
ship-money, and some other of his prerogatives, but so seldom, and
without determining any sum, that it was in vain for the King to hope
for any success; and therefore upon the 5th of May following he
dissolved it.
_B._ Where then had the King money to raise and pay his army?
_A._ He was forced the second time to make use of the nobility and
gentry, who contributed some more, some less, according to the greatness
of their estates; but amongst them all they made up a very sufficient
army.
_B._ It seems then that the same men, that crossed his business in the
Parliament, now out of Parliament advanced it all they could. What was
the reason of that?
_A._ The greatest part of the Lords in Parliament, and of the gentry
throughout England, were more affected to monarchy than to a popular
government, but so as not to endure to hear of the King’s absolute
power; which made them in time of Parliament easily to condescend to
abridge it, and bring the government to a mixed monarchy, as they called
it; wherein the absolute sovereignty should be divided between the King,
the House of Lords, and the House of Commons.
_B._ But how, if they cannot agree?
_A._ I think they never thought of that; but I am sure they never meant
the sovereignty should be wholly either in one or both houses. Besides,
they were loath to desert the King, when he was invaded by foreigners;
for the Scotch were esteemed by them as a foreign nation.
_B._ It is strange to me, that England and Scotland being but one
island, and their language almost the same, and being governed by one
King, should be thought foreigners to one another. The Romans were
masters of many nations, and to oblige them the more to obey the edicts
and laws sent unto them from the city of Rome, they thought fit to make
them all Romans; and out of divers nations, as Spain, Germany, Italy,
and France, to advance some, that they thought worthy, even to be
senators of Rome, and to give every one of the common people the
privileges of the city of Rome, by which they were protected from the
contumelies of other nations where they resided. Why were not the Scotch
and English in like manner united into one people?
_A._ King James at his first coming to the crown of England did
endeavour it, but could not prevail. But for all that, I believe the
Scotch have now as many privileges in England as any nation had in Rome,
of those which were so as you say made Romans. For they are all
naturalized, and have right to buy land in England to themselves and
their heirs.
_B._ It is true of them, that were born in Scotland after the time that
King James was in possession of the kingdom of England.
_A._ There be very few now that were born before. But why have they a
better right that were born after, than they that were born before?
_B._ Because they were born subjects to the King of England, and the
rest not.
_A._ Were not the rest born subjects to King James? And was not he King
of England?
_B._ Yes, but not then.
_A._ I understand not the subtilty of that distinction. But upon what
law is that distinction grounded? Is there any statute to that purpose?
_B._ I cannot tell; I think not; but it is grounded upon equity.
_A._ I see little equity in this; that those nations that are bound to
equal obedience to the same King, should not have equal privileges. And
now seeing there be so very few born before King James’s coming in, what
greater privilege had those ingrafted Romans by their naturalization in
the state of Rome, or in the state of England the English themselves,
more than the Scotch?
_B._ Those Romans, when any of them were in Rome, had their voice in the
making of laws.
_A._ And the Scotch have their Parliaments, wherein their assent is
required to the laws there made, which is as good. Have not many of the
provinces of France their several parliaments and several constitutions?
And yet they are all equally natural subjects of the King of France. And
therefore for my part I think they were mistaken, both English and
Scotch, in calling one another foreigners. Howsoever that be, the King
had a very sufficient army, wherewith he marched towards Scotland; and
by the time he was come to York, the Scotch army was drawn up to the
frontiers and ready to march into England; which also they presently
did; giving out all the way, that their march should be without damage
to the country, and that their errand was only to deliver a petition to
the King, for the redress of many pretended injuries they had received
from such of the court, whose counsel the King most followed. So they
passed through Northumberland quietly, till they came to a ford in the
river of Tyne, a little above Newcastle, where they found some little
opposition from a party of the King’s army sent thither to stop them,
whom the Scotch easily mastered; and as soon as they were over, seized
upon Newcastle, and coming further on, upon the city of Durham; and sent
to the King to desire a treaty, which was granted; and the commissioners
on both sides met at Ripon. The conclusion was, that all should be
referred to the Parliament, which the King should call to meet at
Westminster on the 3rd of November following, being in the same year
1640; and thereupon the King returned to London.
_B._ So the armies were disbanded?
_A._ No; the Scotch army was to be defrayed by the counties of
Northumberland and Durham, and the King was to pay his own, till the
disbanding of both should be agreed upon in Parliament.
_B._ So in effect both the armies were maintained at the King’s charge,
and the whole controversy to be decided by a Parliament almost wholly
Presbyterian, and as partial to the Scotch as themselves could have
wished.
_A._ And yet for all this they durst not presently make war upon the
King: there was so much yet left of reverence to him in the hearts of
the people, as to have made them odious, if they had declared what they
intended. They must have some colour or other to make it believed that
the King made war first upon the Parliament. And besides, they had not
yet sufficiently disgraced him in sermons and pamphlets, nor removed
from about him those they thought could best counsel him. Therefore they
resolved to proceed with him like skilful hunters; first to single him
out, by men disposed in all parts to drive him into the open field; and
then in case he should but seem to turn head, to call that a making of
war against the Parliament.
And first they called in question such as had either preached or written
in defence of any of those rights, which, belonging to the Crown, they
meant to usurp, and take from the King to themselves: whereupon some few
preachers and writers were imprisoned, or forced to fly. The King not
protecting these, they proceeded to call in question some of the King’s
own actions in his ministers, whereof they imprisoned some, and some
went beyond sea. And whereas certain persons, having endeavoured by
books and sermons to raise sedition, and committed other crimes of high
nature, had therefore been censured by the King’s council in the
Star-chamber, and imprisoned; the Parliament by their own authority, to
try, it seems, how the King and the people would take it, (for their
persons were inconsiderable), ordered their setting at liberty; which
was accordingly done, with great applause of the people, that flocked
about them in London, in manner of a triumph. This being done without
resistance, the King’s right to ship-money—
_B._ Ship-money! what’s that?
_A._ The Kings of England, for the defence of the sea, had power to tax
all the counties of England, whether they were maritime or not, for the
building and furnishing of ships; which tax the King had then lately
found cause to impose, and the Parliament exclaimed against it as an
oppression. And by one of their members that had been taxed but 20_s._
(mark the oppression; a Parliament-man of 500_l._ a year, land-taxed at
20_s._!) they were forced to bring it to a trial at law, he refusing
payment; and he was cast. Again, when all the judges of Westminster were
demanded their opinions concerning the legality of it, of twelve that
there are, it was judged legal by ten; for which though they were not
punished, yet they were affrighted by the Parliament.
_B._ What did the Parliament mean, when they did exclaim against it as
illegal? Did they mean it was against statute-law, or against the
judgments of lawyers given heretofore, which are commonly called
reports; or did they mean it was against equity, which I take to be the
same with the law of nature?
_A._ It is a hard matter, or rather impossible, to know what other men
mean, especially if they be crafty: but sure I am, equity was not their
ground for this pretence of immunity from contributing to the King but
at their own pleasure. For when they have laid the burthen of defending
the whole kingdom, and governing it, upon any person whatsoever, there
is very little equity he should depend on others for the means of
performing it; or if he do, they are his Sovereign, not he theirs. And
as for the common law contained in reports, they have no force but what
the King gives them. Besides, it were more unreasonable, that a corrupt
or foolish judge’s unjust sentence should by any time, how long soever,
obtain the authority and force of a law. But amongst the statute laws
there is one, called Magna Charta, or the Great Charter of the liberties
of Englishmen, in which there is one article, wherein a King heretofore
hath granted that no man shall be distrained, that is, have his goods
taken from him, otherwise than by the law of the land.
_B._ Is not that a sufficient ground for their purpose?
_A._ No: that leaves us in the same doubt, which you think it clears.
For where was that law of the land then? Did they mean another Magna
Charta, that was made by some King more ancient yet? No: that statute
was made, not to exempt any man from payments to the public, but for
securing every man from such as abused the King’s power by
surreptitiously obtaining the King’s warrants, to the oppressing of
those against whom he had any suit in law. But it was conducing to the
ends of some rebellious spirits in this Parliament, to have it
interpreted in the wrong sense, and suitable enough to the understanding
of the rest, or most part of them, to let it pass.
_B._ You make the members of that Parliament very simple men; and yet
the people chose them for the wisest of the land.
_A._ If craft be wisdom, they were wise enough. But wise, as I define
it, is he that knows how to bring his business to pass, without the
assistance of knavery and ignoble shifts, by the sole strength of his
good contrivance. A fool may win from a better gamester by the advantage
of false dice, and packing of cards.
_B._ According to your definition, there be few wise men now-a-days.
Such wisdom is a kind of gallantry, that few are brought up to, and most
think folly. Fine cloaths, great feathers, civility towards men that
will not swallow injuries, and injury towards them that will, is the
present gallantry. But when the Parliament afterwards, having gotten the
power into their hands, levied money for their own use; what said the
people to that?
_A._ What else, but that it was legal and to be paid, as being imposed
by consent of Parliaments.
_B._ I have heard often that they ought to pay what was imposed by
consent of Parliaments to the use of the King, but to their own use
never before. I see by this, it is easier to gull the multitude, than
any one man amongst them. For what one man, that has not his natural
judgment depraved by accident, could be so easily cozened in a matter
that concerns his purse, had he not been passionately carried away by
the rest to change of government, or rather to a liberty of every one to
govern himself?
_A._ Judge then, what kind of men such a multitude of ignorant people
were like to elect for their burgesses and knights of shires.
_B._ I can make no other judgment, but that they who were then elected,
were just such as had been elected for former Parliaments, and as are
like to be elected for Parliaments to come. For the common people have
been, and always will be, ignorant of their duty to the public, as never
meditating any thing but their particular interest; in other things
following their immediate leaders; which are either the preachers, or
the most potent of the gentlemen that dwell amongst them: as common
soldiers for the most part follow their immediate captains, if they like
them. If you think the late miseries have made them wiser, that will
quickly be forgot, and then we shall be no wiser than we were.
_A._ Why may not men be taught their duty, that is, the science of just
and unjust, as divers other sciences have been taught, from true
principles and evident demonstration; and much more easily than any of
those preachers and democratical gentlemen could teach rebellion and
treason?
_B._ But who can teach what none have learned? Or, if any man hath been
so singular, as to have studied the science of justice and equity; how
can he teach it safely, when it is against the interest of those that
are in possession of the power to hurt him?
_A._ The rules of just and unjust sufficiently demonstrated, and from
principles evident to the meanest capacity, have not been wanting; and
notwithstanding the obscurity of their author, have shined, not only in
this, but also in foreign countries, to men of good education. But they
are few, in respect of the rest of the men, whereof many cannot read;
many, though they can, have no leisure; and of them that have leisure,
the greatest part have their minds wholly employed and taken up by their
private businesses or pleasures. So that it is impossible that the
multitude should ever learn their duty, but from the pulpit and upon
holidays; but then, and from thence, it is, that they learned their
disobedience. And, therefore, the light of that doctrine has been
hitherto covered and kept under here by a cloud of adversaries, which no
private man’s reputation can break through, without the authority of the
Universities. But out of the Universities, came all those preachers that
taught the contrary. The Universities have been to this nation, as the
wooden horse was to the Trojans.
_B._ Can you tell me why and when the Universities here, and in other
places, first began?
_A._ It seems, for the time, they began in the reign of the Emperor
Charles the Great. Before which time, I doubt not, but that there were
many grammar schools for the Latin tongue, which was the natural
language of the Roman Church; but for Universities, that is to say,
schools for the sciences in general, and especially for divinity, it is
manifest that the institution of them was recommended by the Pope’s
letter to the Emperor Charles the Great, and recommended further by a
Council held in his time, I think, at Chalons-sur-Saone; and not long
after was erected an University at Paris, and the college called
University College at Oxford. And so by degrees several bishops,
noblemen, and rich men, and some Kings and Queens, contributing
thereunto, the Universities obtained at last their present splendour.
_B._ But what was the Pope’s design in it?
_A._ What other design was he like to have, but what you heard before,
the advancement of his own authority in the countries where the
Universities were erected? There they learned to dispute for him, and
with unintelligible distinctions to blind men’s eyes, whilst they
encroached upon the rights of kings. And it was an evident argument of
that design, that they fell in hand with the work so quickly. For the
first Rector of the University of Paris, as I have read somewhere, was
Peter Lombard, who first brought in them the learning called
School-divinity; and was seconded by John Scot of Duns, who lived in, or
near the same time; whom any ingenious reader, not knowing what was the
design, would judge to have been two of the most egregious blockheads in
the world, so obscure and senseless are their writings. And from these
the schoolmen that succeeded, learnt the trick of imposing what they
list upon their readers, and declining the force of true reason by
verbal forks; I mean, distinctions that signify nothing, but serve only
to astonish the multitude of ignorant men. As for the understanding
readers, they were so few, that these new sublime doctors cared not what
they thought. These schoolmen were to make good all the articles of
faith, which the Popes from time to time should command to be believed:
amongst which, there were very many inconsistent with the rights of
kings, and other civil sovereigns, as asserting to the Pope all
authority whatsoever they should declare to be necessary _in ordine ad
spiritualia_, that is to say, in order to religion.
From the Universities also it was, that all preachers proceeded, and
were poured out into city and country, to terrify the people into an
absolute obedience to the Pope’s canons and commands, which, for fear of
weakening kings and princes too much, they durst not yet call laws.
From the Universities it was, that the philosophy of Aristotle was made
an ingredient in religion, as serving for a salve to a great many absurd
articles, concerning the nature of Christ’s body, and the estate of
angels and saints in heaven; which articles they thought fit to have
believed, because they bring, some of them profit, and others reverence
to the clergy, even to the meanest of them. For when they shall have
made the people believe that the meanest of them can make the body of
Christ; who is there that will not both show them reverence, and be
liberal to them or to the Church, especially in the time of their
sickness, when they think they make and bring unto them their Saviour?
_B._ But, what advantage to them, in these impostures, was the doctrine
of Aristotle?
_A._ They have made more use of his obscurity than of his doctrine. For
none of the ancient philosophers' writings are comparable to those of
Aristotle, for their aptness to puzzle and entangle men with words, and
to breed disputation, which must at last be ended in the determination
of the Church of Rome. And yet in the doctrine of Aristotle, they made
use of many points; as, first, the doctrine of separated essences.
_B._ What are separated essences?
_A._ Separated beings.
_B._ Separated from what?
_A._ From every thing that is.
_B._ I cannot understand the being of any thing, which I understand not
to be. But what can they make of that?
_A._ Very much, in questions concerning the nature of God, and
concerning the estate of man’s soul after death, in heaven, hell, and
purgatory; by which you and every man know, how great obedience, and how
much money they gain from the common people. Whereas Aristotle holdeth
the soul of man to be the first giver of motion to the body, and
consequently to itself; they make use of that in the doctrine of free
will. What, and how they gain by that, I will not say. He holdeth forth,
that there be many things that come to pass in this world from no
necessity of causes, but mere contingency, casuality, and fortune.
_B._ Methinks, in this they make God stand idle, and to be a mere
spectator of the games of fortune; for what God is the cause of, must
needs come to pass, and, in my opinion, nothing else. But, because there
must be some ground for the justice of the eternal torment of the
damned; perhaps it is this, that men’s wills and propensions are not,
they think, in the hands of God, but of themselves; and in this also I
see somewhat conducing to the authority of the Church.
_A._ This is not much; nor was Aristotle of such credit with them, but
that when his opinion was against theirs, they could slight him.
Whatsoever he says is impossible in nature, they can prove well enough
to be possible, from the Almighty power of God, who can make many bodies
to be in one and the self-same place, and one body to be in many places
at the same time, if the doctrine of transubstantiation require it,
though Aristotle deny it. I like not the design of drawing religion into
an art, whereas it ought to be a law; and though not the same in all
countries, yet in every country indisputable; nor that they teach it
not, as arts ought to be taught, by shewing first the meaning of their
terms, and then deriving from them the truth they would have us believe:
nor that their terms are for the most part unintelligible; though, to
make it seem rather want of learning in the reader, than want of fair
dealing in themselves, they are, for the most part, Latin and Greek
words, wryed a little at the point, towards the native language of the
several countries where they are used. But that which is most
intolerable is, that all clerks are forced to make as if they believed
them, if they mean to have any Church preferment, the keys whereof are
in the Pope’s hands; and the common people, whatsoever they believe of
those subtile doctrines, are never esteemed better sons of the Church
for their learning. There is but one way there to salvation; that is,
extraordinary devotion and liberality to the Church, and readiness for
the Church’s sake, if it be required, to fight against their natural and
lawful sovereigns.
_B._ I see what use they make of Aristotle’s logic, physics, and
metaphysics; but I see not yet how his politics can serve their turn.
_A._ Nor I. It has, I think, done them no good, though it has done us
here much hurt by accident. For men, grown weary at last of the
insolence of the priests, and examining the truth of these doctrines
that were put upon them, began to search the sense of the Scriptures, as
they are in the learned languages; and consequently studying Greek and
Latin, became acquainted with the democratical principles of Aristotle
and Cicero, and from the love of their eloquence fell in love with their
politics, and that more and more, till it grew into the rebellion we now
talk of, without any other advantage to the Roman Church but that it was
a weakening to us, whom, since we broke out of their net in the time of
Henry VIII, they have continually endeavoured to recover.
_B._ What have they gotten by the teaching of Aristotle’s ethics?
_A._ It is some advantage to them, that neither the morals of Aristotle,
nor of any other, have done them any harm, nor us any good. Their
doctrines have caused a great deal of dispute concerning virtue and
vice, but no knowledge of what they are, nor any method of obtaining
virtue nor of avoiding vice. The end of moral philosophy is, to teach
men of all sorts their duty, both to the public and to one another. They
estimate virtue, partly by a mediocrity of the passions of men, and
partly by that that they are praised. Whereas, it is not the much or
little praise that makes an action virtuous, but the cause; nor much or
little blame that makes an action vicious, but its being unconformable
to the laws in such men as are subject to the law, or its being
unconformable to equity or charity in all men whatsoever.
_B._ It seems you make a difference between the ethics of subjects, and
the ethics of sovereigns.
_A._ So I do. The virtue of a subject is comprehended wholly in
obedience to the laws of the commonwealth. To obey the laws, is justice
and equity, which is the law of nature, and, consequently, is civil law
in all nations of the world; and nothing is injustice or iniquity,
otherwise, than it is against the law. Likewise, to obey the laws, is
the prudence of a subject; for without such obedience the commonwealth
(which is every subject’s safety and protection) cannot subsist. And
though it be prudence also in private men, justly and moderately to
enrich themselves, yet craftily to withhold from the public or defraud
it of such part of their wealth, as is by law required, is no sign of
prudence, but of want of knowledge of what is necessary for their own
defence.
The virtues of sovereigns are such as tend to the maintenance of peace
at home, and to the resistance of foreign enemies. Fortitude is a royal
virtue; and though it be necessary in such private men as shall be
soldiers, yet, for other men, the less they dare, the better it is both
for the commonwealth and for themselves. Frugality (though perhaps you
will think it strange) is also a royal virtue: for it increases the
public stock, which cannot be too great for the public use, nor any man
too sparing of what he has in trust for the good of others. Liberality
also is a royal virtue: for the commonwealth cannot be well served
without extraordinary diligence and service of ministers, and great
fidelity to their Sovereign; who ought therefore to be encouraged, and
especially those that do him service in the wars. In sum, all actions
and habits are to be esteemed good or evil by their causes and
usefulness in reference to the commonwealth, and not by their
mediocrity, nor by their being commended. For several men praise several
customs, and that which is virtue with one, is blamed by others; and,
contrarily, what one calls vice, another calls virtue, as their present
affections lead them.
_B._ Methinks you should have placed among the virtues that, which, in
my opinion, is the greatest of all virtues, religion.
_A._ So I have, though, it seems, you did not observe it. But whither do
we digress from the way we were in?
_B._ I think you have not digressed at all; for I suppose, your purpose
was, to acquaint me with the history, not so much of those actions that
passed in the time of the late troubles, as of their causes, and of the
councils and artifice by which they were brought to pass. There be
divers men that have written the history, out of whom I might have
learned what they did, and somewhat also of the contrivance; but I find
little in them of what I would ask. Therefore, since you were pleased to
enter into this discourse at my request, be pleased also to inform me
after my own method; and for the danger of confusion that may arise from
that, I will take care to bring you back to the place from whence I drew
you; for I well remember where it was.
_A._ Well then, to your question concerning religion, inasmuch as I told
you, that all virtue is comprehended in obedience to the laws of the
commonwealth, whereof religion is one, I have placed religion amongst
the virtues.
_B._ Is religion then the law of a commonwealth?
_A._ There is no nation in the world, whose religion is not established,
and receives not its authority from the laws of that nation. It is true,
that the law of God receives no evidence from the laws of men. But
because men can never by their own wisdom come to the knowledge of what
God hath spoken and commanded to be observed, nor be obliged to obey the
laws whose author they know not, they are to acquiesce in some human
authority or other. So that the question will be, whether a man ought in
matter of religion, that is to say, when there is question of his duty
to God and the King, to rely upon the preaching of his fellow-subjects
or of a stranger, or upon the voice of the law?
_B._ There is no great difficulty in that point. For there are none that
preach here or anywhere else, or at least ought to preach, but such as
have authority so to do from him or them that have the sovereign power.
So that if the King gives us leave, you or I may as lawfully preach as
they that do; and I believe we should perform that office a great deal
better, than they that preached us into the rebellion.
_A._ The Church morals are in many points very different from these,
that I have here set down, for the doctrine of virtue and vice; and yet
without any conformity with that of Aristotle. For in the Church of
Rome, the principal virtues are, to obey their doctrine, though it be
treason, and that is to be religious; to be beneficial to the clergy,
that is their piety and liberality; and to believe upon their word that
which a man knows in his conscience to be false, which is the faith they
require. I could name a great many more such points of their morals, but
that I know you know them already, being so well versed in the cases of
conscience written by their schoolmen, who measure the goodness and
wickedness of all actions, by their congruity with the doctrine of the
Roman clergy.
_B._ But what is the moral philosophy of the Protestant clergy in
England?
_A._ So much as they show of it in their life and conversation, is for
the most part very good, and of very good example; much better than
their writings.
_B._ It happens many times that men live honestly for fear, who, if they
had power, would live according to their own opinions; that is, if their
opinions be not right, unrighteously.
_A._ Do the clergy in England pretend, as the Pope does, or as the
Presbyterians do, to have a right from God immediately, to govern the
King and his subjects in all points of religion and manners? If they do,
you cannot doubt but that if they had number and strength, which they
are never like to have, they would attempt to obtain that power, as the
others have done.
_B._ I would be glad to see a system of the present morals, written by
some divine of good reputation and learning, of the late King’s party.
_A._ I think I can recommend unto you the best that is extant, and such
a one as (except a few passages that I mislike) is very well worth your
reading. The title of it is, _The whole Duty of Man laid down in a plain
and familiar way_. And, yet, I dare say, that if the Presbyterian
ministers, even those of them which were the most diligent preachers of
the late sedition, were to be tried by it, they would go near to be
found not guilty. He has divided the duty of man into three great
branches; which are, his duty to God, to himself, and to his neighbour.
In his duty to God, he puts the acknowledgment of him in his essence and
his attributes, and in the believing of his word. His attributes are
omnipotence, omniscience, infiniteness, justice, truth, mercy, and all
the rest that are found in Scripture. Which of these did not those
seditious preachers acknowledge equally with the best of Christians? The
word of God are the books of Holy Scripture, received for canonical in
England.
_B._ They receive the word of God; but it is according to their own
interpretation.
_A._ According to whose interpretation was it received by the bishops
and the rest of the loyal party, but their own? He puts for another
duty, obedience and submission to God’s will. Did any of them, nay, did
any man living, do any thing, at any time, against God’s will?
_B._ By God’s will, I suppose, he means there his revealed will, that is
to say, his commandments, which I am sure they did most horribly break,
both by their preaching and otherwise.
_A._ As for their own actions, there is no doubt but all men are guilty
enough, if God deal severely with them, to be damned. And for their
preaching, they will say, they thought it agreeable to God’s revealed
will in the Scriptures. If they thought it so, it was not disobedience,
but error. And how can any man prove they thought otherwise?
_B._ Hypocrisy hath this great prerogative above other sins, that it
cannot be accused.
_A._ Another duty he sets down is, to honour Him in his house (that is,
the Church), in his possessions, in his day, in his word and sacraments.
_B._ They perform this duty as well, I think, as any other ministers, I
mean the loyal party; and the Presbyterians have always had an equal
care to have God’s house free from profanation; to have tithes duly
paid, and offerings accepted; to have the sabbath day kept holy, the
word preached, and the Lord’s supper and baptism duly administered. But
is not keeping of the feasts and fasts, one of those duties that belong
to the honour of God? If it be, the Presbyterians fail in that.
_A._ Why so? They kept some holidays, and they had fasts amongst
themselves, though not upon the same days that the Church ordains, but
when they thought fit; as when it pleased God to give the King any
notable victory. And they governed themselves in this point by the Holy
Scripture, as they pretend to believe. And who can prove they do not
believe so?
_B._ Let us pass over all other duties, and come to that duty which we
owe to the King, and consider whether the doctrine taught by those
divines which adhered to the King, be such in that point, as may justify
the Presbyterians, that incited the people to rebellion. For that is the
thing you call in question.
_A._ Concerning our duty to our rulers, he hath these words: “An
obedience we must pay, either active or passive; the active, in the case
of all lawful commands, that is, whenever the magistrate commands
something which is not contrary to some command of God, we are then
bound to act according to that command of the magistrate, to do the
things he requires; but when he enjoins any thing contrary to what God
hath commanded, we are not then to pay him this active obedience; we
may, nay we must, refuse thus to act (yet, here we must be very well
assured, that the thing is so contrary, and not pretend conscience for a
cloak of stubbornness); we are, in that case, to obey God rather than
men; but even this is a season for the passive obedience; we must
patiently suffer what he inflicts on us for such refusal, and not, to
secure ourselves, rise up against him.”
_B._ What is there in this, to give colour to the late rebellion?
_A._ They will say they did it in obedience to God, inasmuch as they did
believe it was according to the Scripture; out of which they will bring
examples, perhaps of David and his adherents, that resisted King Saul,
and of the prophets afterward, that vehemently from time to time
preached against the idolatrous Kings of Israel and Judah. Saul was
their lawful King, and yet they paid him neither active nor passive
obedience; for they did put themselves into a posture of defence against
him, though David himself spared his person. And so did the
Presbyterians put into their commissions to their general, that they
should spare the King’s person. Besides, you cannot doubt but that they,
who in the pulpit did animate the people to take arms in the defence of
the then Parliament, alleged Scripture, that is, the word of God for it.
If it be lawful then for subjects to resist the King, when he commands
anything that is against the Scripture, that is, contrary to the command
of God, and to be judge of the meaning of the Scripture, it is
impossible that the life of any King, or the peace of any Christian
kingdom, can be long secure. It is this doctrine that divides a kingdom
within itself, whatsoever the men be, loyal or rebels, that write or
preach it publicly. And thus you see that if those seditious ministers
be tried by this doctrine, they will come off well enough.
_B._ I see it; and wonder at people that have never spoken with God
Almighty, nor knowing one more than another what he hath said, when the
laws and the preacher disagree, should so keenly follow the minister,
(for the most part an ignorant, though a ready-tongued, scholar), rather
than the laws, that were made by the King with the consent of the peers
and the commons of the land.
_A._ Let us examine his words a little nearer. First, concerning passive
obedience. When a thief hath broken the laws, and according to the law
is therefore executed, can any man understand that this suffering of his
is in obedience to the law? Every law is a command to do, or to forbear:
neither of these is fulfilled by suffering. If any suffering can be
called obedience, it must be such as is voluntary; for no involuntary
action can be counted a submission to the law. He that means that his
suffering should be taken for obedience, must not only not resist, but
also not fly, nor hide himself to avoid his punishment. And who is there
amongst them that discourse of passive obedience, when his life is in
extreme danger, that will voluntarily present himself to the officers of
justice? Do not we see that all men, when they are led to execution, are
both bound and guarded, and would break loose if they could, and get
away? Such is their passive obedience. Christ saith (Matth. xxiii, 2,
3): _The Scribes and Pharisees sit in Moses' chair; all therefore,
whatsoever they bid you observe, that observe and do_: which is a doing
an active obedience. And yet the Scribes and Pharisees appear not by the
Scripture to have been such godly men, as never to command any thing
against the revealed will of God.
_B._ Must tyrants also be obeyed in every thing actively? Or is there
nothing wherein a lawful King’s command may be disobeyed? What if he
should command me with my own hands to execute my father, in case he
should be condemned to die by the law?
_A._ This is a case that need not be put. We never have read nor heard
of any King or tyrant so inhuman as to command it. If any did, we are to
consider whether that command were one of his laws. For by disobeying
Kings, we mean the disobeying of his laws, those his laws that were made
before they were applied to any particular person; for the King, though
as a father of children, and a master of domestic servants, yet he
commands the people in general never but by a precedent law, and as a
politic, not a natural person. And if such a command as you speak of
were contrived into a general law (which never was, nor never will be),
you were bound to obey it, unless you depart the kingdom after the
publication of the law, and before the condemnation of your father.
_B._ Your author says further, in refusing active obedience to the King,
that commanded anything contrary to God’s law, we must be very well
assured that the thing is so contrary. I would fain know how it is
possible to be assured.
_A._ I think you do not believe that any of those refusers do,
immediately from God’s own mouth, receive any command contrary to the
command of the King, who is God’s lieutenant, nor any other way than you
and I do, that is to say, than by the Scriptures. And because men do,
for the most part, rather draw the Scripture to their own sense, than
follow the true sense of the Scripture, there is no other way to know,
certainly, and in all cases, what God commands, or forbids us to do, but
by the sentence of him or them that are constituted by the King to
determine the sense of the Scripture, upon hearing of the particular
case of conscience which is in question. And they that are so
constituted, are easily known in all Christian commonwealths, whether
they be bishops, or ministers, or assemblies, that govern the Church
under him or them that have the sovereign power.
_B._ Some doubts may be raised from this that you now say. For if men be
to learn their duty from the sentence which other men shall give
concerning the meaning of the Scriptures, and not from their own
interpretation, I understand not to what end they were translated into
English, and every man not only permitted, but also exhorted, to read
them. For what could that produce, but diversity of opinion, and
consequently, as man’s nature is, disputation, breach of charity,
disobedience, and at last rebellion? Again, since the Scripture was
allowed to be read in English, why were not the translations such as
might make all that is read, understood even by mean capacities? Did not
the Jews, such as could read, understand their law in the Jewish
language, as well as we do our statute laws in English? And as for such
places of the Scripture, as had nothing of the nature of a law, it was
nothing to the duty of the Jews, whether they were understood or not,
seeing nothing is punishable but the transgression of some law. The same
question I may ask concerning the New Testament. For, I believe, that
those men to whom the original language was natural, did understand
sufficiently what commands and councils were given them by our Saviour
and his apostles, and his immediate disciples. Again, how will you
answer that question which was put by St. Peter and St. John (_Acts_ iv,
19), when by Annas the high-priest, and others of the Council of
Jerusalem, they were forbidden to teach any more in the name of Jesus:
_Whether it is right in the sight of God, to hearken unto you more than
unto God?_
_A._ The case is not the same. Peter and John had seen and daily
conversed with our Saviour; and by the miracles he wrought, did know he
was God, and consequently knew certainly that their disobedience to the
high-priest’s present command was just. Can any minister now say, that
he hath immediately from God’s own mouth received a command to disobey
the King, or know otherwise than by the Scripture, that any command of
the King, that hath the form and nature of a law, is against the law of
God, which in divers places, directly and evidently, commandeth to obey
him in all things? The text you cite does not tell us, that a minister’s
authority, rather than a Christian King’s, shall decide the questions
that arise from the different interpretations of the Scripture. And
therefore, where the King is head of the Church, and by consequence (to
omit that the Scripture itself was not received but by the authority of
Kings and States) chief judge of the rectitude of all interpretations of
the Scripture, to obey the King’s laws and public edicts, is not to
disobey, but to obey God. A minister ought not to think that his skill
in the Latin, Greek, or Hebrew tongues, if he have any, gives him a
privilege to impose upon all his fellow subjects his own sense, or what
he pretends to be his sense, of every obscure place of Scripture: nor
ought he, as oft as he hath found out some fine interpretation, not
before thought on by others, to think he had it by inspiration: for he
cannot be assured of that; no, nor that his interpretation, as fine as
he thinks it, is not false: and then all his stubbornness and contumacy
towards the King and his laws, is nothing but pride of heart and
ambition, or else imposture. And whereas you think it needless, or
perhaps hurtful, to have the Scriptures in English, I am of another
mind. There are so many places of Scripture easy to be understood, that
teach both true faith and good morality (and that as fully as is
necessary to salvation), of which no seducer is able to dispossess the
mind of any ordinary reader, that the reading of them is so profitable
as not to be forbidden without great damage to them and the
commonwealth.
_B._ All that is required, both in faith and manners, for man’s
salvation, is, I confess, set down in Scripture as plainly as can be.
_Children obey your parents in all things: Servants obey your masters:
Let all men be subject to the higher powers, whether it be the King or
those that are sent by him_: _Love God with all your soul, and your
neighbour as yourself_: are words of the Scripture, which are well
enough understood; but neither children, nor the greatest part of men,
do understand why it is their duty to do so. They see not that the
safety of the commonwealth, and consequently their own, depends upon
their doing it. Every man by nature, without discipline, does in all his
actions look upon, as far as he can see, the benefit that shall redound
to himself from his obedience. He reads that covetousness is the root of
all evil; but he thinks, and sometimes finds, it is the root of his
estate. And so in other cases the Scripture says one thing, and they
think another, weighing the commodities or incommodities of this present
life only, which are in their sight, never putting into the scales the
good and evil of the life to come, which they see not.
_A._ All this is no more than happens where the Scripture is sealed up
in Greek and Latin, and the people taught the same things out of them by
preachers. But they that are of a condition and age fit to examine the
sense of what they read, and that take a delight in searching out the
grounds of their duty, certainly cannot choose but by their reading of
the Scriptures come to such a sense of their duty, as not only to obey
the laws themselves, but also to induce others to do the same. For
commonly men of age and quality are followed by their inferior
neighbours, that look more upon the example of those men whom they
reverence, and whom they are unwilling to displease, than upon precepts
and laws.
_B._ These men, of the condition and age you speak of, are, in my
opinion, the unfittest of all others to be trusted with the reading of
the Scriptures. I know you mean such as have studied the Greek or Latin,
or both tongues, and that are withal such as love knowledge, and
consequently take delight in finding out the meaning of the most hard
texts, or in thinking they have found it, in case it be new and not
found out by others. These are therefore they, that prætermitting the
easy places which teach them their duty, fall to scanning only of the
mysteries of religion. Such as are: _How it may be made out with wit,
that there be three that bear rule in heaven, and those three but one?
How the Deity could be made flesh? How that flesh could be really
present in many places at once? Where is the place, and what the
torments, of hell?_ And other metaphysical doctrines: _Whether the will
of man be free, or governed by the will of God? Whether sanctity comes
by inspiration or education? By whom Christ now speaks to us, whether by
the King, or by the clergy, or by the Bible, to every man that reads it
and interprets it to himself, or by a private spirit to every private
man?_ These and the like points are the study of the curious, and the
cause of all our late mischief, and the cause that makes the plainer
sort of men, whom the Scripture had taught belief in Christ, love
towards God, obedience to the King, and sobriety of behaviour, forget it
all, and place their religion in the disputable doctrines of these your
wise men.
_A._ I do not think these men fit to interpret the Scripture to the
rest, nor do I say that the rest ought to take their interpretation for
the word of God. Whatsoever is necessary for them to know, is so easy,
as not to need interpretation: whatsoever is more, does them no good.
But in case any of those unnecessary doctrines shall be authorized by
the laws of the King or other state, I say it is the duty of every
subject not to speak against them: in as much as it is every man’s duty
to obey him or them that have the sovereign power, and the wisdom of all
such powers to punish such as shall publish or teach their private
interpretations, when they are contrary to the law, and likely to
incline men to sedition or disputing against the law.
_B._ They must punish then the most of those that have had their
breeding in the Universities. For such curious questions in divinity are
first started in the Universities, and so are all those politic
questions concerning the rights of civil and ecclesiastic government;
and there they are furnished with arguments for liberty out of the works
of Aristotle, Plato, Cicero, Seneca, and out of the histories of Rome
and Greece, for their disputation against the necessary power of their
sovereigns. Therefore I despair of any lasting peace amongst ourselves,
till the Universities here shall bend and direct their studies to the
settling of it, that is, to the teaching of absolute obedience to the
laws of the King, and to his public edicts under the Great Seal of
England. For I make no doubt, but that solid reason, backed with the
authority of so many learned men, will more prevail for the keeping of
us in peace within ourselves, than any victory can do over the rebels.
But I am afraid that it is impossible to bring the Universities to such
a compliance with the actions of state, as is necessary for the
business.
_A._ Seeing the Universities have heretofore from time to time
maintained the authority of the Pope, contrary to all laws divine,
civil, and natural, against the right of our Kings, why can they not as
well, when they have all manner of laws and equity on their side,
maintain the rights of him that is both sovereign of the kingdom, and
head of the Church?
_B._ Why then were they not in all points for the King’s power,
presently after that King Henry VIII was in Parliament declared head of
the Church, as much as they were before for the authority of the Pope?
_A._ Because the clergy in the Universities, by whom all things there
are governed, and the clergy without the Universities, as well bishops
as inferior clerks, did think that the pulling down of the Pope was the
setting up of them, as to England, in his place, and made no question,
the greatest part of them, but that their spiritual power did depend not
upon the authority of the King, but of Christ himself, derived to them
by a successive imposition of hands from bishop to bishop;
notwithstanding they knew that this derivation passed through the hands
of popes and bishops whose authority they had cast off. For though they
were content that the divine right, which the Pope pretended to in
England, should be denied him, yet they thought it not so fit to be
taken from the Church of England, whom they now supposed themselves to
represent. It seems they did not think it reasonable that a woman, or a
child, or a man that could not construe the Hebrew, Greek, or Latin
Bible, nor know perhaps the declensions and conjugations of Greek or
Latin nouns and verbs, should take upon him to govern so many learned
doctors in matters of religion; meaning matters of divinity: for
religion has been for a long time, and is now by most people, taken for
the same thing with divinity, to the great advantage of the clergy.
_B._ And especially now amongst the Presbyterians. For I see few that
are by them esteemed very good Christians, besides such as can repeat
their sermons, and wrangle for them about the interpretation of the
Scripture, and fight for them also with their bodies or purses, when
they shall be required. To believe in Christ is nothing with them,
unless you believe as they bid you. Charity is nothing with them, unless
it be charity and liberality to them, and partaking with them in
faction. How we can have peace while this is our religion, I cannot
tell. _Hæret lateri lethalis arundo._ The seditious doctrine of the
Presbyterians has been stuck so hard in the people’s heads and memories,
(I cannot say into their hearts; for they understand nothing in it, but
that they may lawfully rebel), that I fear the commonwealth will never
be cured.
_A._ The two great virtues, that were severally in Henry VII and Henry
VIII, when they shall be jointly in one King, will easily cure it. That
of Henry VII was, without much noise of the people to fill his coffers;
that of Henry VIII was an early severity; but this without the former
cannot be exercised.
_B._ This that you say looks, methinks, like an advice to the King, to
let them alone till he have gotten ready money enough to levy and
maintain a sufficient army, and then to fall upon them and destroy them.
_A._ God forbid that so horrible, unchristian, and inhuman a design
should ever enter into the King’s heart. I would have him have money
enough readily to raise an army able to suppress any rebellion, and to
take from his enemies all hope of success, that they may not dare to
trouble him in the reformation of the Universities; but to put none to
death without the actual committing such crimes as are already made
capital by the laws. The core of rebellion, as you have seen by this,
and read of other rebellions, are the Universities; which nevertheless
are not to be cast away, but to be better disciplined: that is to say,
that the politics there taught be made to be, as true politics should
be, such as are fit to make men know, that it is their duty to obey all
laws whatsoever that shall by the authority of the King be enacted, till
by the same authority they shall be repealed; such as are fit to make
men understand, that the civil laws are God’s laws, as they that make
them are by God appointed to make them; and to make men know, that the
people and the Church are one thing, and have but one head, the King;
and that no man has title to govern under him, that has it not from him;
that the King owes his crown to God only, and to no man, ecclesiastic or
other; and that the religion they teach there, be a quiet waiting for
the coming again of our blessed Saviour, and in the mean time a
resolution to obey the King’s laws, which also are God’s laws; to injure
no man, to be in charity with all men, to cherish the poor and sick, and
to live soberly and free from scandal; without mingling our religion
with points of natural philosophy, as freedom of will, incorporeal
substance, everlasting nows, ubiquities, hypostases, which the people
understand not, nor will ever care for. When the Universities shall be
thus disciplined, there will come out of them, from time to time,
well-principled preachers, and they that are now ill-principled, from
time to time fall away.
_B._ I think it a very good course, and perhaps the only one that can
make our peace amongst ourselves constant. For if men know not their
duty, what is there that can force them to obey the laws? An army, you
will say. But what shall force the army? Were not the trained bands an
army? Were they not the janissaries, that not very long ago slew Osman
in his own palace at Constantinople? I am therefore of your opinion,
both that men may be brought to a love of obedience by preachers and
gentlemen that imbibe good principles in their youth at the
Universities, and also that we never shall have a lasting peace, till
the Universities themselves be in such manner, as you have said,
reformed; and the ministers know they have no authority but what the
supreme civil power gives them; and the nobility and gentry know that
the liberty of a state is not an exemption from the laws of their own
country, whether made by an assembly or by a monarch, but an exemption
from the constraint and insolence of their neighbours.
And now I am satisfied in this point, I will bring you back to the place
from whence my curiosity drew you to this long digression. We were upon
the point of ship-money; one of those grievances which the Parliament
exclaimed against as tyrannical and arbitrary government; thereby to
single out, as you called it, the King from his subjects, and to make a
party against him, when they should need it. And now you may proceed, if
it please you, to such other artifices as they used to the same purpose.
_A._ I think it were better to give over here our discourse of this
business, and refer it to some other day that you shall think fit.
_B._ Content. That day I believe is not far off.
PART II.
==========
_A._ You are welcome; yet, if you had staid somewhat longer, my memory
would have been so much the better provided for you.
_B._ Nay, I pray you give me now what you have about you; for the rest I
am content you take what time you please.
_A._ After the Parliament had made the people believe that the exacting
of ship-money was unlawful, and the people thereby inclined to think it
tyrannical; in the next place, to increase their disaffection to his
Majesty, they accused him of a purpose to introduce and authorize the
Roman religion in this kingdom: than which nothing was more hateful to
the people; not because it was erroneous, which they had neither
learning nor judgment enough to examine, but because they had been used
to hear it inveighed against in the sermons and discourses of the
preachers whom they trusted to. And this was indeed the most effectual
calumny, to alienate the people’s affections from him, that could
possibly be invented. The colour they had for this slander was, first,
that there was one Rosetti, Resident, at and a little before that time,
from the Pope, with the Queen; and one Mr. George Con, Secretary to the
Cardinal Francisco Barberini, nephew to Pope Urban VIII, sent over,
under favour and protection of the Queen, as was conceived, to draw as
many persons of quality about the court, as he should be able, to
reconcile themselves to the Church of Rome: with what success I cannot
tell; but it is likely he gained some, especially of the weaker sex; if
I may say, they were gained by him, when not his arguments, but hope of
favour from the Queen, in all probability prevailed upon them.
_B._ In such a conjuncture as that was, it had perhaps been better they
had not been sent.
_A._ There was exception also taken at a convent of friars-capucins in
Somerset-House, though allowed by the articles of marriage: and it was
reported, that the Jesuits also were shortly after to be allowed a
convent in Clerkenwell. And in the mean time, the principal secretary,
Sir Francis Windebank, was accused for having by his warrant set at
liberty some English Jesuits, that had been taken and imprisoned for
returning into England after banishment, contrary to the statute which
had made it capital. Also the resort of English Catholics to the Queen’s
chapel, gave them colour to blame the Queen herself, not only for that,
but also for all the favours that had been shown to the Catholics; in so
much that some of them did not stick to say openly, that the King was
governed by her.
_B._ Strange injustice! The Queen was a Catholic by profession, and
therefore could not but endeavour to do the Catholics all the good she
could: she had not else been truly that which she professed to be. But
it seems they meant to force her to hypocrisy, being hypocrites
themselves. Can any man think it a crime in a devout lady, of what sect
soever, to seek the favour and benediction of that Church whereof she is
a member?
_A._ To give the Parliament another colour for their accusation on foot
of the King, as to introducing of Popery, there was a great controversy
between the Episcopal and Presbyterian clergy about free-will. The
dispute began first in the Low Countries, between Gomar and Arminius, in
the time of King James, who foreseeing it might trouble the Church of
England, did what he could to compose the difference. And an assembly of
divines was thereupon got together at Dort, to which also King James
sent a divine or two, but it came to nothing; the question was left
undecided, and became a subject to be disputed of in the universities
here. All the Presbyterians were of the same mind with Gomar: but a very
great many others not; and those were called here Arminians, who,
because the doctrine of free-will had been exploded as a Papistical
doctrine, and because the Presbyterians were far the greater number, and
already in favour with the people, were generally hated. It was easy,
therefore, for the Parliament to make that calumny pass currently with
the people, when the Archbishop of Canterbury, Dr. Laud, was for
Arminius, and had a little before, by his power ecclesiastical,
forbidden all ministers to preach to the people of predestination; and
when all ministers that were gracious with him, and hoped for any Church
preferment, fell to preaching and writing for free-will, to the
uttermost of their power, as a proof of their ability and merit.
Besides, they gave out, some of them, that the Archbishop was in heart a
Papist; and in case he could effect a toleration here of the Roman
religion, was to have a cardinal’s hat: which was not only false, but
also without any ground at all for a suspicion.
_B._ It is a strange thing, that scholars, obscure men that could
receive no clarity but from the flame of the state, should be suffered
to bring their unnecessary disputes, and together with them their
quarrels, out of the universities into the commonwealth; and more
strange, that the state should engage in their parties, and not rather
put them both to silence.
_A._ A state can constrain obedience, but convince no error, nor alter
the mind of them that believe they have the better reason. Suppression
of doctrines does but unite and exasperate, that is, increase both the
malice and power of them that have already believed them.
_B._ But what are the points they disagree in? Is there any controversy
between Bishop and Presbyterian concerning the divinity or humanity of
Christ? Do either of them deny the Trinity, or any article of the creed?
Does either party preach openly, or write directly, against justice,
charity, sobriety, or any other duty necessary to salvation, except only
the duty to the King; and not that neither, but when they have a mind
either to rule or destroy the King? Lord have mercy upon us! Can nobody
be saved that understands not their disputations? Or is there more
requisite, either of faith or honesty, for the salvation of one man than
another? What needs so much preaching of faith to us that are no
heathens, and that believe already all that Christ and his apostles have
told us is necessary to salvation, and more too? Why is there so little
preaching of justice? I have indeed heard righteousness often
recommended to the people, but I have seldom heard the word justice in
their sermons; nay, though in the Latin and Greek Bible the word justice
occur exceeding often, yet in the English, though it be a word that
every man understands, the word righteousness (which few understand to
signify the same, but take it rather for rightness of opinion, than of
action or intention), is put in the place of it.
_A._ I confess I know very few controversies amongst Christians, of
points necessary to salvation. They are the questions of authority and
power over the Church, or of profit, or of honour to Churchmen, that for
the most part raise all the controversies. For what man is he, that will
trouble himself and fall out with his neighbours for the saving of my
soul, or the soul of any other than himself? When the Presbyterian
ministers and others did so seriously preach sedition, and animate men
to rebellion in these late wars; who was there that had not a benefice,
or having one feared not to lose it, or some other part of his
maintainance, by the alteration of the Government, that did voluntary,
without any eye to reward, preach so earnestly against sedition, as the
other party preached for it? I confess, that for aught I have observed
in history, and other writings of the heathens, Greek and Latin, that
those heathens were not at all behind us in point of virtue and moral
duties, notwithstanding that we have had much preaching, and they none
at all. I confess also, that considering what harm may proceed from a
liberty that men have, upon every Sunday and oftener, to harangue all
the people of a nation at one time, whilst the state is ignorant of what
they will say; and that there is no such thing permitted in all the
world out of Christendom, nor therefore any civil wars about religion; I
have thought much preaching an inconvenience. Nevertheless, I cannot
think that preaching to the people the points of their duty, both to God
and man, can be too frequent; so it be done by grave, discreet, and
ancient men, that are reverenced by the people; and not by light
quibbling young men, whom no congregation is so simple as to look to be
taught by (as being a thing contrary to nature), or to pay them any
reverence, or to care what they say, except some few that may be
delighted with their jingling. I wish with all my heart, there were
enough of such discreet and ancient men, as might suffice for all the
parishes of England, and that they would undertake it. But this is but a
wish; I leave it to the wisdom of the State to do what it pleaseth.
_B._ What did they next?
_A._ Whereas the King had sent prisoners into places remote from London,
three persons that had been condemned for publishing seditious doctrine,
some in writing, some in public sermons; the Parliament (whether with
his Majesty’s consent or no, I have forgotten), caused them to be
released and to return to London; meaning, I think, to try how the
people would be pleased therewith, and, by consequence, how their
endeavours to draw the people’s affections from the King had already
prospered. When these three came through London, it was a kind of
triumph, the people flocking together to behold them, and receiving them
with such acclamations, and almost adoration, as if they had been let
down from heaven; insomuch as the Parliament was now sufficiently
assured of a great and tumultuous party, whensoever they should have
occasion to use it. On confidence whereof they proceeded to their next
plot, which was to deprive the King of such ministers as by their
wisdom, courage, and authority, they thought most able to prevent, or
oppose their further designs against the King. And first, the House of
Commons resolved to impeach the Earl of Strafford, Lord Lieutenant of
Ireland, of high-treason.
_B._ What was that Earl of Strafford before he had that place? And how
had he offended the Parliament or given them cause to think he would be
their enemy? For I have heard that in former Parliaments he had been as
parliamentary as any other.
_A._ His name was Sir Thomas Wentworth, a gentleman both by birth and
estate very considerable in his own county, which was Yorkshire; but
more considerable for his judgment in the public affairs, not only of
that county, but generally of the kingdom; and was therefore often
chosen for the Parliament, either as burgess for some borough, or knight
of the shire. For his principles of politics, they were the same that
were generally proceeded upon by all men else that were thought fit to
be chosen for the Parliament; which are commonly these: to take for the
rule of justice and government the judgments and acts of former
Parliaments, which are commonly called precedents; to endeavour to keep
the people from being subject to extra-parliamentary taxes of money, and
from being with parliamentary taxes too much oppressed; to preserve to
the people their liberty of body from the arbitrary power of the King
out of Parliament; to seek redress of grievances.
_B._ What grievances?
_A._ The grievances were commonly such as these; the King’s too much
liberality to some favourite; the too much power of some minister or
officer of the commonwealth; the misdemeanour of judges, civil or
spiritual; but especially all unparliamentary raising of money upon the
subjects. And commonly of late, till such grievances be redressed, they
refuse, or at least make great difficulty, to furnish the King with
money necessary for the most urgent occasions of the commonwealth.
_B._ How then can a King discharge his duty as he ought to do, or the
subject know which of his masters he is to obey? For here are manifestly
two powers, which, when they chance to differ, cannot both be obeyed.
_A._ It is true; but they have not often differed so much to the danger
of the commonwealth, as they have done in this Parliament, 1640. In all
the Parliaments of the late King Charles before the year 1640, my Lord
of Strafford did appear in opposition to the King’s demands as much as
any man, and was for that cause very much esteemed and cried up by the
people as a good patriot, and one that courageously stood up in defence
of their liberties; and for the same cause was so much the more hated,
when afterwards he endeavoured to maintain the royal and just authority
of his Majesty.
_B._ How came he to change his mind so much as it seems he did?
_A._ After the dissolution of the Parliament holden in the years 1627
and 1628, the King, finding no money to be gotten from Parliaments which
he was not to buy with the blood of such servants and ministers as he
loved best, abstained a long time from calling any more, and had
abstained longer if the rebellion of the Scotch had not forced him to
it. During that Parliament the King made Sir Thomas Wentworth a baron,
recommended to him for his great ability, which was generally taken
notice of by the disservice he had done the King in former Parliaments,
but which might be useful for him in the times that came on: and not
long after he made him of the Council, and after that again Lieutenant
of Ireland, which place he discharged with great satisfaction and
benefit to his Majesty, and continued in that office, till, by the envy
and violence of the Lords and Commons of that unlucky Parliament of
1640, he died. In which year he was made general of the King’s forces
against the Scots that then entered into England, and the year before,
Earl of Strafford. The pacification being made, and the forces on both
sides disbanded, and the Parliament at Westminster now sitting, it was
not long before the House of Commons accused him to the House of Lords
for high-treason.
_B._ There was no great probability of his being a traitor to the King,
from whose favour he had received his greatness, and from whose
protection he was to expect his safety. What was the treason they laid
to his charge?
_A._ Many articles were drawn up against him, but the sum of them was
contained in these two: first, that he had traitorously endeavoured to
subvert the fundamental laws and government of the realm; and in stead
thereof to introduce an arbitrary and tyrannical government against law:
secondly, that he had laboured to subvert the rights of Parliaments, and
the ancient course of Parliamentary proceedings.
_B._ Was this done by him without the knowledge of the King?
_A._ No.
_B._ Why then, if it were treason, did not the King himself call him in
question by his attorney? What had the House of Commons to do, without
his command, to accuse him in the House of Lords? They might have
complained to the King, if he had not known it before. I understand not
this law.
_A._ Nor I.
_B._ Had this been by any former statutes made treason?
_A._ Not that I ever heard of; nor do I understand how anything can be
treason against the King, that the King, hearing and knowing, does not
think treason. But it was a piece of that Parliament’s artifice, to put
the word _traiterously_ to any article exhibited against any man whose
life they meant to take away.
_B._ Was there no particular instance of action or words, out of which
they argued that endeavour of his to subvert the fundamental laws of
Parliament, whereof they accused him?
_A._ Yes; they said he gave the King counsel to reduce the Parliament to
their duty by the Irish army, which not long before my Lord of Strafford
himself had caused to be levied there for the King’s service. But it was
never proved against him, that he advised the King to use it against the
Parliament.
_B._ What are those laws that are called fundamental? For I understand
not how one law can be more fundamental than another, except only that
law of nature that binds us all to obey him, whosoever he be, whom
lawfully and for our own safety, we have promised to obey; nor any other
fundamental law to a King, but _salus populi_, the safety and well-being
of his people.
_A._ This Parliament, in the use of their words, when they accused any
man, never regarded the signification of them, but the weight they had
to aggravate their accusation to the ignorant multitude, which think all
faults heinous that are expressed in heinous terms, if they hate the
person accused, as they did this man not only for being of the King’s
party, but also for deserting the Parliament’s party as an apostate.
_B._ I pray you tell me also what they meant by arbitrary government,
which they seemed so much to hate? Is there any governor of a people in
the world that is forced to govern them, or forced to make this and that
law, whether he will or no? I think not: or if any be, he that forces
him does certainly make laws, and govern arbitrarily.
_A._ That is true; and the true meaning of the Parliament was, that not
the King, but they themselves, should have the arbitrary government, not
only of England, but of Ireland, and, as it appeared by the event, of
Scotland also.
_B._ How the King came by the government of Scotland and Ireland by
descent from his ancestors, everybody can tell; but if the King of
England and his heirs should chance (which God forbid) to fail, I cannot
imagine what title the Parliament of England can acquire thereby to
either of those nations.
_A._ Yes; they will say they had been conquered anciently by the English
subjects' money.
_B._ Like enough, and suitable to the rest of their impudence.
_A._ Impudence in democratical assemblies does almost all that is done;
it is the goddess of rhetoric, and carries proof with it. For what
ordinary man will not, from so great boldness of affirmation, conclude
there is great probability in the thing affirmed? Upon this accusation
he was brought to his trial in Westminster Hall before the House of
Lords, and found guilty, and presently after declared traitor by a bill
of attainder, that is, by Act of Parliament.
_B._ It is a strange thing that the Lords should be induced, upon so
light grounds, to give a sentence, or give their assent to a bill, so
prejudicial to themselves and their posterity.
_A._ It was not well done, and yet, as it seems, not ignorantly; for
there is a clause in the bill, that it should not be taken hereafter for
an example, that is for a prejudice, in the like case hereafter.
_B._ That is worse than the bill itself, and is a plain confession that
their sentence was unjust. For what harm is there in the examples of
just sentences? Besides, if hereafter the like case should happen, the
sentence is not at all made weaker by such a provision.
A, Indeed I believe that the Lords, most of them, were not of themselves
willing to condemn him of treason; they were awed to it by the clamour
of common people that came to Westminster, crying out, _Justice, Justice
against the Earl of Strafford!_ The which were caused to flock thither
by some of the House of Commons, that were well assured, after the
triumphant welcome of Prynne, Burton, and Bastwick, to put the people
into tumult upon any occasion they desired. They were awed unto it
partly also by the House of Commons itself, which if it desired to undo
a Lord, had no more to do but to vote him a delinquent.
_B._ A delinquent; what is that? A sinner is it not? Did they mean to
undo all sinners?
_A._ By delinquent they meant only a man to whom they would do all the
hurt they could. But the Lords did not yet, I think, suspect they meant
to cashier their whole House.
_B._ It is a strange thing the whole House of Lords should not perceive
that the ruin of the King’s power, and the weakening of it, was the
ruin, or weakening of themselves. For they could not think it likely
that the people ever meant to take the sovereignty from the King to give
it to them, who were few in number, and less in power than so many
Commoners, because less beloved by the people.
_A._ But it seems not so strange to me. For the Lords, for their
personal abilities, as they were no less, so also they were no more
skilful in the public affairs, than the knights and burgesses. For there
is no reason to think, that if one that is to-day a knight of the shire
in the lower House, be to-morrow made a Lord and a member of the higher
House, he is therefore wiser than he was before. They are all, of both
Houses, prudent and able men as any in the land, in the business of
their private estates, which require nothing but diligence and natural
wit to govern them. But for the government of a commonwealth, neither
wit, nor prudence, nor diligence, is enough, without infallible rules
and the true science of equity and justice.
_B._ If this be true, it is impossible any commonwealth in the world,
whether monarchy, aristocracy, or democracy, should continue long
without change, or sedition tending to change, either of the government
or of the governors.
_A._ It is true; nor have any the greatest commonwealths in the world
been long free from sedition. The Greeks had for awhile their petty
kings, and then by sedition came to be petty commonwealths; and then
growing to be greater commonwealths, by sedition again became
monarchies; and all for want of rules of justice for the common people
to take notice of; which if the people had known in the beginning of
every of these seditions, the ambitious persons could never have had the
hope to disturb their government after it had been once settled. For
ambition can do little without hands, and few hands it would have, if
the common people were as diligently instructed in the true principles
of their duty, as they are terrified and amazed by preachers, with
fruitless and dangerous doctrines concerning the nature of man’s will,
and many other philosophical points that tend not at all to the
salvation of the soul in the world to come, nor to their ease in this
life, but only to the direction towards the clergy of that duty which
they ought to perform to the King.
_B._ For aught I see, all the states of Christendom will be subject to
these fits of rebellion, as long as the world lasteth.
_A._ Like enough; and yet the fault, as I have said, may be easily
mended, by mending the Universities.
_B._ How long had the Parliament now sitten?
_A._ It began November the 3d, 1640. My Lord of Strafford was impeached
of treason before the Lords, November the 12th, sent to the Tower
November the 22d, his trial began March the 22d, and ended April the
13th. After his trial he was voted guilty of high-treason in the House
of Commons, and after that in the House of Lords, May the 6th, and on
the 12th of May beheaded.
_B._ Great expedition; but could not the King, for all that, have saved
him by a pardon?
_A._ The King had heard all that passed at his trial, and had declared
he was unsatisfied concerning the justice of their sentence. And, I
think, notwithstanding the danger of his own person from the fury of the
people, and that he was counselled to give way to his execution, not
only by such as he most relied on, but also by the Earl of Strafford
himself, he would have pardoned him, if that could have preserved him
against the tumult raised and countenanced by the Parliament itself, for
the terrifying of those they thought might favour him. And yet the King
himself did not stick to confess afterwards, that he had done amiss, in
that he did not rescue him.
_B._ It was an argument of good disposition in the King. But I never
read that Augustus Cæsar acknowledged that he had done a fault, in
abandoning Cicero to the fury of his enemy Antonius: perhaps because
Cicero, having been of the contrary faction to his father, had done
Augustus no service at all out of favour to him, but only out of enmity
to Antonius, and out of love to the senate, that is indeed out of love
to himself that swayed the senate; as it is very likely the Earl of
Strafford came over to the King’s party for his own ends, having been so
much against the King in former Parliaments.
_A._ We cannot safely judge of men’s intentions. But, I have observed
often, that such as seek preferment, by their stubbornness have missed
of their aim; and on the other side, that those princes that with
preferment are forced to buy the obedience of their subjects, are
already, or must be soon after, in a very weak condition. For in a
market where honour and power is to be bought with stubbornness, there
will be a great many as able to buy as my Lord Strafford was.
_B._ You have read, that when Hercules fighting with the Hydra, had cut
off any one of his many heads, there still arose two other heads in its
place; and yet at last he cut them off all.
_A._ The story is told false. For Hercules at first did not cut off
those heads, but bought them off; and afterwards, when he saw it did him
no good, then he cut them off, and got the victory.
_B._ What did they next?
_A._ After the first impeachment of the Earl of Strafford, the House of
Commons, upon December the 18th, accused the Archbishop of Canterbury
also of high-treason, that is, of design to introduce arbitrary
government, &c.; for which he was, February the 18th, sent to the Tower;
but his trial and execution were deferred a long time, till January the
10th, 1643, for the entertainment of the Scots, that were come into
England to aid the Parliament.
_B._ Why did the Scots think there was so much danger in the Archbishop
of Canterbury? He was not a man of war, nor a man able to bring an army
into the field; but he was perhaps a very great politician.
_A._ That did not appear by any remarkable event of his counsels. I
never heard but he was a very honest man for his morals, and a very
zealous promoter of the Church-government by bishops, and that desired
to have the service of God performed, and the house of God adorned, as
suitably as was possible to the honour we ought to do to the Divine
Majesty. But to bring, as he did, into the State his former
controversies, I mean his squabblings in the University about free-will,
and his standing upon punctilios concerning the service-book and its
rubrics, was not, in my opinion, an argument of his sufficiency in
affairs of state. About the same time they passed an act, which the King
consented to, for a triennial Parliament, wherein was enacted, that
after the present Parliament there should be a Parliament called by the
King within the space of three years, and so from three years to three
years, to meet at Westminster upon a certain day named in the act.
_B._ But what if the King did not call it, finding it perhaps
inconvenient, or hurtful to the safety or peace of his people, which God
hath put into his charge? For I do not well comprehend how any sovereign
can well keep a people in order when his hands are tied, or when he hath
any other obligation upon him than the benefit of those he governs; and
at this time, for any thing you have told me, they acknowledged the King
for their sovereign.
_A._ I know not; but such was the act. And it was further enacted, that
if the King did it not by his own command, then the Lord Chancellor or
the Lord Keeper for the time being, should send out the writs of
summons; and if the Chancellor refused, then the Sheriffs of the several
counties should of themselves, in their next county-courts before the
day set down for the Parliament’s meeting, proceed to the election of
the members for the said Parliament.
_B._ But what if the sheriffs refused?
_A._ I think they were to be sworn to it: but for that, and other
particulars, I refer you to the act.
_B._ To whom should they be sworn, when there is no Parliament?
_A._ No doubt but to the King, whether there be a Parliament sitting or
no.
_B._ Then the King may release them of their oath.
_A._ Besides, they obtained of the King the putting down the
Star-chamber, and the High-Commission Courts.
_B._ Besides, if the King, upon the refusal, should fall upon them in
anger; who shall (the Parliament not sitting) protect either the
Chancellor or the sheriffs in their disobedience?
_A._ I pray you do not ask me any reason of such things I understand no
better than you. I tell you only an act passed to that purpose, and was
signed by the King in the middle of February, a little before the
Archbishop was sent to the Tower. Besides this bill, the two Houses of
Parliament agreed upon another, wherein it was enacted, that the present
Parliament should continue till both the Houses did consent to the
dissolution of it; which bill also the King signed the same day he
signed the warrant for the execution of the Earl of Strafford.
_B._ What a great progress made the Parliament towards the ends of the
most seditious Members of both Houses in so little time! They sat down
in November, and now it was May; in this space of time, which is but
half a year, they won from the King the adherence which was due to him
from his people; they drove his faithfullest servants from him; beheaded
the Earl of Strafford; imprisoned the Archbishop of Canterbury; obtained
a triennial Parliament after their own dissolution, and a continuance of
their own sitting as long as they listed: which last amounted to a total
extinction of the King’s right, in case that such a grant were valid;
which I think it is not, unless the Sovereignty itself be in plain terms
renounced, which it was not. But what money, by way of subsidy or
otherwise, did they grant the King, in recompense of all these his large
concessions?
_A._ None at all; but often promised they would make him the most
glorious King that ever was in England; which were words that passed
well enough for well meaning with the common people.
_B._ But the Parliament was contented now? For I cannot imagine what
they should desire more from the King, than he had now granted them.
_A._ Yes; they desired the whole and absolute sovereignty, and to change
the monarchical government into an oligarchy; that is to say, to make
the Parliament, consisting of a few Lords and about four hundred
Commoners, absolute in the sovereignty, for the present, and shortly
after to lay the House of Lords aside. For this was the design of the
Presbyterian ministers, who taking themselves to be, by divine right,
the only lawful governors of the Church, endeavoured to bring the same
form of Government into the civil state. And as the spiritual laws were
to be made by their synods, so the civil laws should be made by the
House of Commons; who, as they thought, would no less be ruled by them
afterwards, than they formerly had been: wherein they were deceived, and
found themselves outgone by their own disciples, though not in malice,
yet in wit.
_B._ What followed after this?
_A._ In August following, the King supposing he had now sufficiently
obliged the Parliament to proceed no further against him, took a journey
into Scotland, to satisfy his subjects there, as he had done here;
intending, perhaps, so to gain their good wills, that in case the
Parliament here should levy arms against him, they should not be aided
by the Scots: wherein he also was deceived. For though they seemed
satisfied with what he did, whereof one thing was his giving way to the
abolition of episcopacy; yet afterwards they made a league with the
Parliament, and for money, when the King began to have the better of the
Parliament, invaded England in the Parliament’s quarrel. But this was a
year or two after.
_B._ Before you go any further, I desire to know the ground and original
of that right, which either the House of Lords, or House of Commons, or
both together, now pretend to.
_A._ It is a question of things so long past, that they are now
forgotten. Nor have we any thing to conjecture by, but the records of
our own nation, and some small and obscure fragments of Roman histories:
and for the records, seeing they are of things done only, sometimes
justly, sometimes unjustly, you can never by them know what right they
had, but only what right they pretended.
_B._ Howsoever, let me know what light we have in this matter from the
Roman histories.
_A._ It would be too long, and an useless digression, to cite all the
ancient authors that speak of the forms of those commonwealths, which
were amongst our first ancestors the Saxons and other Germans, and of
other nations, from whom we derive the titles of honour now in use in
England; nor will it be possible to derive from them any argument of
right, but only examples of fact, which, by the ambition of potent
subjects, have been oftener unjust than otherwise. And for those Saxons
or Angles, that in ancient times by several invasions made themselves
masters of this nation, they were not in themselves one body of a
commonwealth, but only a league of divers petty German lords and states,
such as was the Grecian army in the Trojan war, without other obligation
than that which proceeded from their own fear and weakness. Nor were
those lords, for the most part, the sovereigns at home in their own
country, but chosen by the people for the captains of the forces they
brought with them. And therefore it was not without equity, when they
had conquered any part of the land, and made some one of them king
thereof, that the rest should have greater privileges than the common
people and soldiers: amongst which privileges, a man may easily
conjecture this to be one; that they should be made acquainted, and be
of council, with him that hath the sovereignty in matter of government,
and have the greatest and most honourable offices both in peace and war.
But because there can be no government where there is more than one
sovereign, it cannot be inferred that they had a right to oppose the
King’s resolutions by force, nor to enjoy those honours and places
longer than they should continue good subjects. And we find that the
Kings of England did, upon every great occasion, call them together by
the name of discreet and wise men of the kingdom, and hear their
counsel, and make them judges of all causes, that during their sitting
were brought before them. But as he summoned them at his own pleasure,
so had he also ever the power at his pleasure to dissolve them. The
Normans also, that descended from the Germans, as we did, had the same
customs in this particular; and by this means, this privilege of the
lords to be of the King’s great council, and when they were assembled,
to be the highest of the King’s courts of justice, continued still after
the Conquest to this day. But though there be amongst the lords divers
names or titles of honour, yet they have their privilege only by the
name of baron, a name received from the ancient Gauls; amongst whom,
that name signified the King’s man, or rather one of his great men: by
which it seems to me, that though they gave him counsel when he required
it, yet they had no right to make war upon him if he did not follow it.
_B._ When began first the House of Commons to be part of the King’s
great council?
_A._ I do not doubt but that before the Conquest some discreet men, and
known to be so by the King, were called by special writ to be of the
same council, though they were not lords; but that is nothing to the
House of Commons. The knights of shires and burgesses were never called
to Parliament, for aught that I know, till the beginning of the reign of
Edward I, or the latter end of the reign of Henry III, immediately after
the misbehaviour of the barons; and, for aught any man knows, were
called on purpose to weaken that power of the lords, which they had so
freshly abused. Before the time of Henry III, the lords were descended,
most of them, from such as in the invasions and conquests of the Germans
were peers and fellow-kings, till one was made king of them all; and
their tenants were their subjects, as it is at this day with the lords
of France. But after the time of Henry III, the kings began to make
lords in the place of them whose issue failed, titulary only, without
the lands belonging to their title; and by that means, their tenants
being no longer bound to serve them in the wars, they grew every day
less and less able to make a party against the King, though they
continued still to be his great council. And as their power decreased,
so the power of the House of Commons increased; but I do not find they
were part of the King’s council at all, nor judges over other men;
though it cannot be denied, but a King may ask their advice, as well as
the advice of any other. But I do not find that the end of their
summoning was to give advice, but only, in case they had any petitions
for redress of grievances, to be ready there with them whilst the King
had his great council about him. But neither they nor the lords could
present to the King, as a grievance, that the King took upon him to make
the laws; to choose his own privy-counsellors; to raise money and
soldiers; to defend the peace and honour of the kingdom; to make
captains in his army; to make governors of his castles, whom he pleased.
For this had been to tell the King, that it was one of their grievances
that he was King.
_B._ What did the Parliament do, whilst the King was in Scotland?
_A._ The King went in August; after which, the Parliament, September the
8th, adjourned till the 20th of October; and the King returned about the
end of November following. In which time the most seditious of both
Houses, and which had designed the change of government and to cast off
monarchy, but yet had not wit enough to set up any other government in
its place, and consequently left it to the chance of war, made a cabal
amongst themselves; in which they projected how, by seconding one
another, to govern the House of Commons, and invented how to put the
kingdom, by the power of that House, into a rebellion, which they then
called a posture of defence against such dangers from abroad, as they
themselves should feign and publish. Besides, whilst the King was in
Scotland, the Irish Papists got together a great party, with an
intention to massacre the Protestants there, and had laid a design for
the seizing, on October the 23rd, of Dublin Castle, where the King’s
officers of the government of that country made their residence; and had
effected it, had it not been discovered the night before. The manner of
the discovery, and the murders they committed in the country afterwards,
I need not tell you, since the whole story of it is extant.
_B._ I wonder they did not expect and provide for a rebellion in
Ireland, as soon as they began to quarrel with the King in England. For
was there any body so ignorant, as not to know that the Irish Papists
did long for a change of religion there, as well as the Presbyterians in
England? Or, that in general, the Irish nation did hate the name of
subjection to England, nor would longer be quiet, than they feared an
army out of England to chastise them? What better time then could they
take for their rebellion than this, wherein they were encouraged, not
only by our weakness caused by this division between the King and his
Parliament, but also by the example of the Presbyterians, both of the
Scotch and English nation? But what did the Parliament do upon this
occasion, in the King’s absence?
_A._ Nothing; but consider what use they might make of it to their own
ends; partly, by imputing it to the King’s evil counsellors, and partly,
by occasion thereof to demand of the King the power of pressing and
ordering soldiers; which power whosoever has, has also, without doubt,
the whole sovereignty.
_B._ When came the King back?
_A._ He came back the 25th of November; and was welcomed with the
acclamations of the common people, as much as if he had been the most
beloved of all the Kings that were before him; but found not a reception
by the Parliament, answerable to it. They presently began to pick new
quarrels against him, out of every thing he said to them. December the
2nd, the King called together both Houses of Parliament, and then did
only recommend unto them the raising of succours for Ireland.
_B._ What quarrel could they pick out of that?
_A._ None: but in order thereto, as they may pretend, they had a bill in
agitation to assert the power of levying and pressing soldiers to the
two Houses of the Lords and Commons; which was as much as to take from
the King the power of the militia, which is in effect the whole
sovereign power. For he that hath the power of levying and commanding
the soldiers, has all other rights of sovereignty which he shall please
to claim. The King, hearing of it, called the Houses of Parliament
together again, on December the 14th, and then pressed again the
business of Ireland: (as there was need; for all this while the Irish
were murdering the English in Ireland, and strengthening themselves
against the forces they expected to come out of England): and withal,
told them he took notice of the bill in agitation for pressing of
soldiers, and that he was contented it should pass with a _salvo jure_
both for him and them, because the present time was unseasonable to
dispute it in.
_B._ What was there unreasonable in this?
_A._ Nothing: what is unreasonable is one question, what they quarrelled
at is another. They quarrelled at this: that his Majesty took notice of
the bill, while it was in debate in the House of Lords, before it was
presented to him in the course of Parliament; and also that he showed
himself displeased with those that propounded the said bill; both which
they declared to be against the privileges of Parliament, and petitioned
the King to give them reparation against those by whose evil counsel he
was induced to it, that they might receive condign punishment.
_B._ This was cruel proceeding. Do not the Kings of England use to sit
in the Lords' House when they please? And was not this bill in debate
then in the House of Lords? It is a strange thing that a man should be
lawfully in the company of men, where he must needs hear and see what
they say and do, and yet must not take notice of it so much as to the
same company; for though the King was not present at the debate itself,
yet it was lawful for any of the Lords to make him acquainted with it.
Any one of the House of Commons, though not present at a proposition or
debate in the House, nevertheless hearing of it from some of his
fellow-members, may certainly not only take notice of it, but also speak
to it in the House of Commons: but to make the King give up his friends
and counsellors to them, to be put to death, banishment, or
imprisonment, for their good-will to him, was such a tyranny over a
king, no king ever exercised over any subject but in cases of treason or
murder, and seldom then.
_A._ Presently hereupon began a kind of war between the pens of the
Parliament and those of the secretaries, and other able men that were
with the King. For upon the 15th of December they sent to the King a
paper called _A Remonstrance of the State of the Kingdom_, and with it a
petition; both which they caused to be published. In the remonstrance
they complained of certain mischievous designs of a malignant party,
then, before the beginning of the Parliament, grown ripe; and did set
forth what means had been used for the preventing of it by the wisdom of
the Parliament; what rubs they had found therein; what course was fit to
be taken for restoring and establishing the ancient honour, greatness,
and safety, of the Crown and nation.
And first, of these designs the promoters and actors were, they said,
Jesuited Papists:
Secondly, the bishops, and that part of the clergy that cherish
formality as a support of their own ecclesiastical tyranny and
usurpation:
Thirdly, counsellors and courtiers, that for private ends, they said,
had engaged themselves to further the interests of some foreign princes.
_B._ It may very well be, that some of the bishops, and also some of the
court, may have, in pursuit of their private interest, done something
indiscreetly, and perhaps wickedly. Therefore I pray you tell me in
particular what their crimes were: for methinks the King should not have
connived at anything against his own supreme authority.
_A._ The Parliament were not very keen against them that were against
the King; they made no doubt but all they did was by the King’s command;
but accused thereof the bishops, counsellors, and courtiers, as being a
more mannerly way of accusing the King himself, and defaming him to his
subjects. For the truth is, the charge they brought against them was so
general as not to be called an accusation, but railing. As first, they
said they nourished questions of prerogative and liberty between the
King and his people, to the end that seeming much addicted to his
Majesty’s service, they might get themselves into places of greatest
trust and power in the kingdom.
_B._ How could this be called an accusation, in which there is no fact
for any accusers to apply their proofs to, or their witnesses. For
granting that these questions of prerogative had been moved by them, who
can prove that their end was to gain to themselves and friends the
places of trust and power in the kingdom?
_A._ A second accusation was, that they endeavoured to suppress the
purity and power of religion.
_B._ That is canting; it is not in man’s power to suppress the power of
religion.
_A._ They meant that they suppressed the doctrine of the Presbyterians;
that is to say, the very foundation of the then Parliament’s treacherous
pretensions.
A third, that they cherished Arminians, Papists, and libertines (by
which they meant the common Protestants, which meddle not with
disputes), to the end they might compose a body fit to act according to
their counsels and resolutions.
A fourth, that they endeavoured to put the King upon other courses of
raising money, than by the ordinary way of Parliaments.
Judge whether these may be properly called accusations, or not rather
spiteful reproaches of the King’s government.
_B._ Methinks this last was a very great fault. For what good could
there be in putting the King upon an odd course of getting money, when
the Parliament was willing to supply him, as far as to the security of
the kingdom, or to the honour of the King, should be necessary?
_A._ But I told you before, they would give him none, but with a
condition he should cut off the heads of whom they pleased, how
faithfully soever they had served him. And if he would have sacrificed
all his friends to their ambition, yet they would have found other
excuses for denying him subsidies; for they were resolved to take from
him the sovereign power to themselves; which they could never do without
taking great care that he should have no money at all. In the next
place, they put into the remonstrance, as faults of them whose counsel
the King followed, all those things which since the beginning of the
King’s reign were by them misliked, whether faults or not, and whereof
they were not able to judge for want of knowledge of the causes and
motives that induced the King to do them, and were known only to the
King himself and such of his privy-council as he revealed them to.
_B._ But what were those particular pretended faults?
_A._ 1. The dissolution of his first Parliament at Oxford. 2. The
dissolution of his second Parliament, being in the second year of his
reign. 3. The dissolution of his Parliament in the fourth year of his
reign. 4. The fruitless expedition against Calais. 5. The peace made
with Spain, whereby the Palatine’s cause was deserted, and left to
chargeable and hopeless treaties. 6. The sending of commissions to raise
money by way of loan. 7. Raising of ship-money. 8. Enlargement of
forests, contrary to Magna Charta. 9. The design of engrossing all the
gunpowder into one hand, and keeping it in the Tower of London. 10. A
design to bring in the use of brass money. 11. The fines, imprisonments,
stigmatizings, mutilations, whippings, pillories, gags, confinements,
and banishments, by sentence in the Court of Star-chamber. 12. The
displacing of judges. 13. Illegal acts of the Council-table. 14. The
arbitrary and illegal power of the Earl Marshal’s Court. 15. The abuses
in Chancery, Exchequer-chamber, and Court of Wards. 16. The selling of
titles of honour, of judges, and serjeants' places, and other offices.
17. The insolence of bishops and other clerks, in suspensions,
excommunications, deprivations, and degradations, of divers painful, and
learned, and pious ministers.
_B._ Were there any such ministers degraded, deprived, or
excommunicated?
_A._ I cannot tell. But I remember I have heard threatened divers
painful, unlearned, and seditious ministers.
18. The excess of severity of the High Commission-Court. 19. The
preaching before the King against the property of the subject, and for
the prerogative of the King above the law. And divers other petty
quarrels they had to the government, which though they were laid upon
this faction, yet they knew they would fall upon the King himself in the
judgment of the people, to whom, by printing, it was communicated.
Again, after the dissolution of the Parliament May the 5th, 1640, they
find other faults; as the dissolution itself; the imprisoning some
members of both Houses; a forced loan of money attempted in London; the
continuance of the Convocation, when the Parliament was ended; and the
favour shewed to Papists by Secretary Windebank and others.
_B._ All this will go current with common people for misgovernment, and
for faults of the King, though some of them were misfortunes; and both
the misfortunes and the misgovernment, if any were, were the faults of
the Parliament; who, by denying to give him money, did both frustrate
his attempts abroad, and put him upon those extraordinary ways, which
they call illegal, of raising money at home.
_A._ You see what a heap of evils they have raised to make a show of
ill-government to the people, which they second with an enumeration of
the many services they have done the King in overcoming a great many of
them, though not all, and in divers other things; and say, that though
they had contracted a debt to the Scots of 220,000_l._ and granted six
subsidies, and a bill of poll-money worth six subsidies more, yet that
God had so blessed the endeavours of this Parliament, that the kingdom
was a gainer by it: and then follows the catalogue of those good things
they had done for the King and kingdom. For the kingdom they had done,
they said, these things: they had abolished ship-money; they had taken
away coat and conduct money, and other military charges, which, they
said, amounted to little less than the ship-money; that they suppressed
all monopolies, which they reckoned above a million yearly saved by the
subject; that they had quelled living grievances, meaning evil
counsellors and actors, by the death of my Lord of Strafford, by the
flight of the Chancellor Finch, and of Secretary Windebank, by the
imprisonment of the Archbishop of Canterbury, and of Judge Bartlet, and
the impeachment of other bishops and judges; that they had passed a bill
for a triennial Parliament, and another for the continuance of the
present Parliament, till they should think fit to dissolve themselves.
_B._ That is to say, for ever, if they be suffered. But the sum of all
these things, which they had done for the kingdom, is, that they had
left it without government, without strength, without money, without
law, and without good counsel.
_A._ They reckoned, also, putting down of the High-Commission, and the
abating of the power of the Council-table, and of the bishops and their
courts; the taking away of unnecessary ceremonies in religion; removing
of ministers from their livings, that were not of their faction, and
putting in such as were.
_B._ All this was but their own, and not the kingdom’s business.
_A._ The good they had done the King, was first, they said, the giving
of 25,000_l._ a month for the relief of the northern counties.
_B._ What need of relief had the northern counties, more than the rest
of the counties of England?
_A._ Yes; in the northern counties were quartered the Scotch army, which
the Parliament called in to oppose the King, and consequently their
quarter was to be discharged.
_B._ True; but by the Parliament that called them in.
_A._ But they say no; and that this money was given to the King, because
he is bound to protect his subjects.
_B._ He is no further bound to that, than they to give him money
wherewithal to do it. This is very great impudence; to raise an army
against the King, and with that army to oppress their fellow-subjects;
and then require that the King should relieve them, that is to say, be
at the charge of paying the army that was raised to fight against him.
_A._ Nay, further; they put to the King’s account the 300,000_l._ given
to the Scots, without which they would not have invaded England; besides
many other things, that I now remember not.
_B._ I did not think there had been so great impudence and villainy in
mankind.
_A._ You have not observed the world long enough to see all that is ill.
Such was their remonstrance, as I have told you. With it they sent a
petition, containing three points: 1. That his Majesty would deprive the
bishops of their votes in Parliament, and remove such oppressions in
religion, church-government, and discipline, as they had brought in; 2.
That he should remove from his council all such as should promote the
people’s grievances, and employ in his great and public affairs such as
the Parliament should confide in; 3. That he would not give away the
lands escheated to the Crown by the rebellion in Ireland.
_B._ This last point, methinks, was not wisely put in at this time: it
should have been reserved till they had subdued the rebels, against whom
there were yet no forces sent over. It is like selling the lion’s skin
before they had killed him. But what answer was made to the other two
propositions?
_A._ What answer should be made, but a denial? About the same time the
King himself exhibited articles against six persons of the Parliament,
five whereof were of the House of Commons and one of the House of Lords,
accusing them of high-treason; and upon the 4th of January, went himself
to the House of Commons to demand those five of them. But private notice
having been given by some treacherous person about the King, they had
absented themselves; and by that means frustrated his Majesty’s
intentions. And after he was gone, the House making a heinous matter of
it, and a high breach of their privileges, adjourned themselves into
London, there to sit as a general committee, pretending they were not
safe at Westminster: (for the King, when he went to the House to demand
those persons, had somewhat more attendance with him, but not otherwise
armed than his servants used to be, than he ordinarily had): and would
not be pacified, though the King did afterwards waive the prosecution of
those persons, unless he would also discover to them those that gave him
counsel to go in that manner to the Parliament House, to the end they
might receive condign punishment; which was the word they used instead
of cruelty.
_B._ This was a harsh demand. Was it not enough that the King should
forbear his enemies, but also that he must betray his friends? If they
thus tyrannize over the King before they have gotten the sovereign power
into their hands, how will they tyrannize over their fellow subjects
when they have gotten it?
_A._ So as they did.
_B._ How long stayed that committee in London?
_A._ Not above two or three days; and then were brought from London to
the Parliament House by water in great triumph, guarded with a
tumultuous number of armed men, there to sit in security in despite of
the King, and make traitorous acts against him, such and as many as they
listed; and under favour of these tumults, to frighten away from the
House of Peers all such as were not of their own faction. For at this
time the rabble was so insolent, that scarce any of the bishops durst go
to the House for fear of violence upon their persons: in so much as
twelve of them excused themselves of coming thither; and by way of
petition to the King, remonstrated that they were not permitted to go
quietly to the performance of that duty, and protesting against all
determinations, as of none effect, that should pass in the House of
Lords during their forced absence. Which the House of Commons taking
hold of, sent up to the Peers one of their members, to accuse them of
high-treason. Whereupon ten of them were sent to the Tower; after which
time there were no more words of their high-treason; but there passed a
bill by which they were deprived of their votes in Parliament, and to
this bill they got the King’s assent. And, in the beginning of September
after, they voted that the bishops should have no more to do in the
government of the Church; but to this they had not the King’s assent,
the war being now begun.
_B._ What made the Parliament so averse to episcopacy; and especially
the House of Lords, whereof the bishops were members? For I see no
reason why they should do it to gratify a number of poor parish priests,
that were Presbyterians, and that were never likely any way to serve the
Lords; but, on the contrary, to do their best to pull down their power,
and subject them to their synods and classes.
_A._ For the Lords, very few of them did perceive the intentions of the
Presbyterians; and, besides that, they durst not, I believe, oppose the
Lower House.
_B._ But why were the Lower House so earnest against them?
_A._ Because they meant to make use of their tenets, and with pretended
sanctity to make the King and his party odious to the people, by whose
help they were to set up democracy and depose the King, or to let him
have the title only so long as he should act for their purposes. But not
only the Parliament, but in a manner all the people of England, were
their enemies, upon the account of their behaviour, as being, they said,
too imperious. This was all that was colourably laid to their charge;
the main cause of pulling them down, was the envy of the Presbyterians,
that incensed the people against them, and against episcopacy itself.
_B._ How would the Presbyterians have the Church to be governed?
_A._ By national and provincial synods.
_B._ Is not this to make the national assembly an archbishop, and the
provincial assemblies so many bishops?
_A._ Yes; but every minister shall have the delight of sharing the
government, and consequently of being able to be revenged on them that
do not admire their learning and help to fill their purses, and win to
their service them that do.
_B._ It is a hard case, that there should be two factions to trouble the
commonwealth, without any interest in it of their own, other than every
particular man may have; and that their quarrels should be only about
opinions, that is, about who has the most learning; as if their learning
ought to be the rule of governing all the world. What is it they are
learned in? Is it politics and rules of state? I know, it is called
divinity; but I hear almost nothing preached but matter of philosophy.
For religion in itself admits no controversy. It is a law of the
kingdom, and ought not to be disputed. I do not think they pretend to
speak with God and know his will by any other way than reading the
Scriptures, which we also do.
_A._ Yes, some of them do, and give themselves out for prophets by
extraordinary inspiration. But the rest pretend only, for their
advancement to benefices and charge of souls, a greater skill in the
Scriptures than other men have, by reason of their breeding in the
Universities, and knowledge there gotten of the Latin tongue, and some
also of the Greek and Hebrew tongues, wherein the Scripture was written;
besides their knowledge of natural philosophy, which is there publicly
taught.
_B._ As for the Latin, Greek, and Hebrew tongues, it was once, to the
detection of Roman fraud, and to the ejection of the Romish power, very
profitable, or rather necessary; but now that is done, and we have the
Scripture in English, and preaching in English, I see no great need of
Latin, Greek, and Hebrew. I should think myself better qualified by
understanding well the languages of our neighbours, French, Dutch, and
Italian. I think it was never seen in the world, before the power of
popes was set up, that philosophy was much conducing to power in a
commonwealth.
_A._ But philosophy, together with divinity, have very much conduced to
the advancement of the professors thereof to places of the greatest
authority, next to the authority of kings themselves, in most of the
ancient kingdoms of the world; as is manifestly to be seen in the
history of those times.
_B._ I pray you cite me some of the authors and places.
_A._ First, what were the Druids of old time in Britanny and France?
What authority these had you may see in Cæsar, Strabo, and others, and
especially in Diodorus Siculus, the greatest antiquary perhaps that ever
was; who speaking of the Druids, whom he calls Sarovides, in France,
says thus:—“There be also amongst them certain philosophers and
theologians, that are exceedingly honoured, whom they also use as
prophets. These men, by their skill in augury and inspection into the
bowels of the beasts sacrificed, foretell what is to come, and have the
multitude obedient to them.” And a little after,—“It is a custom amongst
them, that no man may sacrifice without a philosopher; because, say
they, men ought not to present their thanks to the Gods, but by them
that know the divine nature, and are as it were of the same language
with them; and that all good things ought by such as these to be prayed
for.”
_B._ I can hardly believe that those Druids were very skilful, either in
natural philosophy, or moral.
_A._ Nor I; for they held and taught the transmigration of souls from
one body to another, as did Pythagoras; which opinion whether they took
from him, or he from them, I cannot tell.
What were the Magi in Persia, but philosophers and astrologers? You know
how they came to find our Saviour by the conduct of a star, either from
Persia itself, or from some country more eastward than Judea. Were not
these in great authority in their country? And are they not in most
parts of Christendom thought to have been Kings?
Egypt hath been thought by many, the most ancient kingdom and nation of
the world, and their priests had the greatest power in civil affairs,
that any subjects ever had in any nation. And what were they but
philosophers and divines? Concerning whom, the same Diodorus Siculus
says thus: “The whole country of Egypt being divided into three parts,
the body of the priests have one, as being of most credit with the
people both for their devotion towards the Gods, and also for their
understanding gotten by education;” and presently after, “For generally
these men, in the greatest affairs of all, are the King’s counsellors,
partly executing, and partly informing and advising; foretelling him
also, by their skill in astrology and art in the inspection of
sacrifices, the things that are to come, and reading to him out of their
holy books such of the actions there recorded as are profitable for him
to know. It is not there as in Greece, one man or one woman that has the
priesthood; but they are many that attend the honours and sacrifices of
the Gods, and leave the same employment to their posterity, which, next
to the King, have the greatest power and authority.”
Concerning the judicature amongst the Egyptians, he saith thus: “From
out of the most eminent cities, Hieropolis, Thebes, and Memphis, they
choose judges, which are a council not inferior to that of Areopagus in
Athens, or that of the senate in Lacedæmon. When they are met, being in
number thirty, they choose one from amongst themselves to be
chief-justice, and the city whereof he is, sendeth another in his
place.” This chief-justice wore about his neck, hung in a gold chain, a
jewel of precious stones, the name of which jewel was _truth_; which,
when the chief-justice had put on, then began the pleading, &c.; and
when the judges had agreed on the sentence, then did the chief-justice
put this jewel of truth to one of the pleas. You see now what power was
acquired in civil matters by the conjuncture of philosophy and divinity.
Let us come now to the commonwealth of the Jews. Was not the priesthood
in a family, namely, the Levites, as well as the priesthood of Egypt?
Did not the high-priest give judgment by the breast-plate of Urim and
Thummim? Look upon the kingdom of Assyria, and the philosophers and
Chaldeans. Had they not lands and cities belonging to their family, even
in Abraham’s time, who dwelt, you know, in Ur of the Chaldeans. Of these
the same author says thus: “The Chaldeans are a sect in politics, like
to that of the Egyptian priests; for being ordained for the service of
the Gods, they spend the whole time of their life in philosophy; being
of exceeding great reputation in astrology, and pretending much also to
prophecy, foretelling things to come by purifications and sacrifices,
and to find out by certain incantations the preventing of harm, and the
bringing to pass of good. They have also skill in augury, and in the
interpretation of dreams and wonders, nor are they unskilful in the art
of foretelling by the inwards of beasts sacrificed; and have their
learning not as the Greeks; for the philosophy of the Chaldeans goes to
their family by tradition, and the son receives it from his father.”
From Assyria let us pass into India, and see what esteem the
philosophers had there. “The whole multitude,” says Diodorus, “of the
Indians, is divided into seven parts; whereof the first, is the body of
philosophers; for number the least, but for eminence the first; for they
are free from taxes, and as they are not masters of others, so are no
others masters of them. By private men they are called to the sacrifices
and to the care of burials of the dead, as being thought most beloved of
the Gods and skilful in the doctrine concerning hell; and for this
employment receive gifts and honours very considerable. They are also of
great use to the people of India; for being taken at the beginning of
the year into the great assembly, they foretell them of great droughts,
great rains, also of winds, and of sicknesses, and of whatsoever is
profitable for them to know beforehand.”
The same author, concerning the laws of the Æthiopians, saith thus: “The
laws of the Æthiopians seem very different from those of other nations,
and especially about the election of their Kings. For the priests
propound some of the chief men amongst them, named in a catalogue, and
whom the God (which, according to a certain custom, is carried about to
feastings) does accept of; him the multitude elect for their King, and
presently adore and honour him as a God, put into the government by
divine providence. The King being chosen, he has the manner of his life
limited to him by the laws, and does all other things according to the
custom of the country, neither rewarding nor punishing any man otherwise
than from the beginning is established amongst them by law. Nor use they
to put any man to death, though he be condemned to it, but to send some
officer to him with a token of death; who seeing the token, goes
presently to his house, and kills himself presently after. But the
strangest thing of all is, that which they do concerning the death of
their Kings. For the priests that live in Meroe, and spend their time
about the worship and honour of the Gods, and are in greatest authority;
when they have a mind to it, send a messenger to the King to bid him
die, for that the Gods have given such order, and that the commandments
of the immortals are not by any means to be neglected by those who are,
by nature, mortal; using also other speeches to him, which men of simple
judgment, and that have not reason enough to dispute against those
unnecessary commands, as being educated in an old and indelible custom,
are content to admit of. Therefore in former times the Kings did obey
the priests, not as mastered by force and arms, but as having their
reason mastered by superstition. But in the time of Ptolemy II,
Ergamenes, King of the Æthiopians, having had his breeding in philosophy
after the manner of the Greeks, being the first that durst dispute their
power, took heart as befitted a King; came with soldiers to a place
called Abaton, where was then the golden temple of the Æthiopians;
killed all the priests, abolished the custom, and rectified the kingdom
according to his will.”
_B._ Though they that were killed were most damnable impostors, yet the
act was cruel.
_A._ It was so. But were not the priests cruel, to cause their Kings,
whom a little before they adored as Gods, to make away themselves? The
King killed them, for the safety of his person; they him, out of
ambition or love of change. The King’s act may be coloured with the good
of his people; the priests had no pretence against their kings, who were
certainly very godly, or else would never have obeyed the command of the
priests by a messenger unarmed, to kill themselves. Our late King, the
best King perhaps that ever was, you know, was murdered, having been
first persecuted by war, at the incitement of Presbyterian ministers;
who are therefore guilty of the death of all that fell in that war;
which were, I believe, in England, Scotland, and Ireland, near 100,000
persons. Had it not been much better that those seditious ministers,
which were not perhaps 1000, had been all killed before they had
preached? It had been, I confess, a great massacre; but the killing of
100,000 is a greater.
_B._ I am glad the bishops were out of this business. As ambitious as
some say they are, it did not appear in that business, for they were
enemies to them that were in it.
_A._ But I intend not by these quotations to commend either the divinity
or the philosophy of those heathen people; but to show only what the
reputation of those sciences can effect among the people. For their
divinity was nothing but idolatry; and their philosophy, (excepting the
knowledge which the Egyptian priests, and from them the Chaldeans, had
gotten by long observation and study in astronomy, geometry, and
arithmetic), very little; and that in great part abused in astrology and
fortune-telling. Whereas the divinity of the clergy of this nation,
(considered apart from the mixture that has been introduced by the
Church of Rome, and in part retained here, of the babbling philosophy of
Aristotle and other Greeks, that has no affinity with religion, and
serves only to breed disaffection, dissension, and finally sedition and
civil war, as we have lately found by dear experience in the differences
between the Presbyterians and Episcopals), is the true religion. But for
these differences both parties, as they came in power, not only
suppressed the tenets of one another, but also whatsoever doctrine
looked with an ill aspect upon their interest; and consequently all true
philosophy, especially civil and moral, which can never appear
propitious to ambition, or to an exemption from their obedience due to
the sovereign power.
After the King had accused the Lord Kimbolton, a member of the House of
Lords, and Hollis, Haslerigg, Hampden, Pym, and Stroud, five members of
the Lower House, of high-treason; and after the Parliament had voted out
the bishops from the House of Peers; they pursued especially two things
in their petitions to his Majesty. The one was, that the King would
declare who were the persons that advised him to go, as he did, to the
Parliament-house to apprehend them, and that he would leave them to the
Parliament to receive condign punishment; and this they did, to stick
upon his Majesty the dishonour of deserting his friends, and betraying
them to his enemies. The other was, that he would allow them a guard out
of the city of London, to be commanded by the Earl of Essex; for which
they pretended, they could not else sit in safety; which pretence was
nothing but an upbraiding of his Majesty for coming to Parliament better
accompanied than ordinary, to seize the said five seditious members.
_B._ I see no reason, in petitioning for a guard, they should determine
it to the city of London in particular, and the command by name to the
Earl of Essex, unless they meant the King should understand it for a
guard against himself.
_A._ Their meaning was, that the King should understand it so, and, as I
verily believe, they meant he should take it for an affront: and the
King himself understanding it so, denied to grant it; though he were
willing, if they could not otherwise be satisfied, to command such a
guard to wait upon them as he would be responsible for to God Almighty.
Besides this, the city of London petitioned the King (put upon it, no
doubt, by some members of the Lower House) to put the Tower of London
into the hands of persons of trust, meaning such as the Parliament
should approve of, and to appoint a guard for the safety of his Majesty
and the Parliament. This method of bringing petitions in a tumultuary
manner, by great multitudes of clamorous people, was ordinary with the
House of Commons, whose ambition could never have been served by way of
prayer and request, without extraordinary terror.
After the King had waived the prosecution of the five members, but
denied to make known who had advised him to come in person to the House
of Commons, they questioned the Attorney-General, who by the King’s
command had exhibited the articles against them, and voted him a breaker
of the privilege of Parliament; and no doubt had made him feel their
cruelty, if he had not speedily fled the land.
About the end of January, they made an order of both Houses of
Parliament, to prevent the going over of popish commanders into Ireland;
not so much fearing that, as that by this the King himself choosing his
commanders for that service, might aid himself out of Ireland against
the Parliament. But this was no great matter, in respect of a petition
they sent his Majesty about the same time, that is to say, about the
27th or 28th of January, 1641,^† [Sidenote: † Feb. 2nd, 1641.] wherein
they desired in effect the absolute sovereignty of England; though by
the name of sovereignty they challenged it not whilst the King was
living. For to the end that the fears and dangers of this kingdom might
be removed, and the mischievous designs of those who are enemies to the
peace of it, might be prevented, they pray, that his Majesty would be
pleased to put forthwith, first, the Tower of London, second, all other
forts, third, the whole militia of the kingdom, into the hands of such
persons as should be recommended to him by both the Houses of
Parliament. And this they style a necessary petition.
_B._ Were there really any such fears and dangers generally conceived
here? Or did there appear any enemies at that time with such designs as
are mentioned in the petition?
_A._ Yes. But no other fear of danger, but such as any discreet and
honest man might justly have of the designs of the Parliament itself;
who were the greatest enemies to the peace of the kingdom that could
possibly be. It is also worth observing, that this petition began with
these words, _Most gracious Sovereign_: so stupid they were as not to
know, that he that is master of the militia, is master of the kingdom,
and consequently is in possession of a most absolute sovereignty. The
King was now at Windsor, to avoid the tumults of the common people
before the gates of Whitehall, together with their clamours and affronts
there. The 9th of February after, he came to Hampton Court, and thence
he went to Dover with the Queen, and the Princess of Orange, his
daughter; where the Queen with the Princess of Orange embarked for
Holland, but the King returned to Greenwich, whence he sent for the
Prince of Wales and the Duke of York, and so went with them towards
York.
_B._ Did the Lords join with the Commons in this petition for the
militia?
_A._ It appears so by the title; but I believe they durst not but do it.
The House of Commons took them but for a cypher; men of title only,
without real power. Perhaps also the most of them thought, that the
taking of the militia from the King would be an addition to their own
power; but they were very much mistaken, for the House of Commons never
intended they should be sharers in it.
_B._ What answer made the King to this petition?
_A._ The following: “His Majesty having well considered of this
petition, and being desirous to express how willing he is to apply a
remedy, not only to your _dangers_, but even to your _doubts_ and
_fears_, he therefore returns this answer, That when he shall know the
extent of power which is intended to be established in those persons,
whom you desire to be the commanders of the militia in the several
counties, and likewise to what time it shall be limited, that no power
shall be executed by his Majesty alone without the advice of Parliament,
then he will declare, that (for the securing you from all dangers or
jealousies of any) his Majesty will be content to put in all the places,
both of forts and militia in the several counties, such persons as both
the Houses of Parliament shall either approve, or recommend unto him; so
that you declare before unto his Majesty the names of the persons whom
you approve or recommend, unless such persons shall be named, against
whom he shall have just and unquestionable exception.”
_B._ What power, for what time, and to whom, did the Parliament grant,
concerning the militia?
_A._ The same power which the King had before planted in his lieutenants
and deputy-lieutenants, in the several counties, and without other
limitation of time but their own pleasure.
_B._ Who were the men that had this power?
_A._ There is a catalogue of them printed. They are very many, and most
of them lords; nor is it necessary to have them named; for to name them
is, in my opinion, to brand them with the mark of disloyalty or of
folly. When they had made a catalogue of them, they sent it to the King,
with a new petition for the militia. Also presently after, they sent a
message to his Majesty, praying him to leave the Prince at Hampton
Court; but the King granted neither.
_B._ Howsoever, it was well done of them to get hostages, if they could,
of the King, before he went from them.
_A._ In the meantime, to raise money for the reducing of Ireland, the
Parliament invited men to bring in money by way of adventure, according
to these propositions. 1. That two millions and five hundred thousand
acres of land in Ireland, should be assigned to the adventurers, in this
proportion:
For an adventure of 200_l._ 1,000 acres Ulster.
in
300_l._ 1,000 acres in Connaught.
450_l._ 1,000 acres in Munster.
600_l._ 1,000 acres in Leinster.
All according to English measure, and consisting of meadow, arable, and
profitable pasture; bogs, woods, and barren mountains, being cast in
over and above. 2. A revenue was reserved to the Crown, from one penny
to three-pence on every acre. 3. That commissions should be sent by the
Parliament, to erect manors, settle wastes, and commons, maintain
preaching ministers, create corporations, and regulate plantations. The
rest of the propositions concern only the times and manner of payment of
the sums subscribed by the adventurers. And to these propositions his
Majesty assented; but to the petition of the militia, his Majesty denied
his assent.
_B._ If he had not, I should have thought it a great wonder. What did
the Parliament after this?
_A._ They sent him another petition, which was presented to him when he
was at Theobald’s, in his way to York; wherein they tell him plainly,
that unless he be pleased to assure them by those messengers then sent,
that he would speedily apply his royal assent to the satisfaction of
their former desires, they shall be enforced, for the safety of his
Majesty and his kingdoms, to dispose of the militia by the authority of
both Houses, &c. They petition his Majesty also to let the Prince stay
at St. James’s, or some other of his Majesty’s houses near London. They
tell him also, that the power of raising, ordering, and disposing of the
militia, cannot be granted to any corporation, without the authority and
consent of the Parliament, and that those parts of the kingdom, which
have put themselves into a posture of defence, have done nothing therein
but by direction of both Houses, and what is justifiable by the laws of
this kingdom.
_B._ What answer made the King to this?
_A._ It was a putting of themselves into arms, and under officers such
as the Parliament should approve of. 4. They voted that his Majesty
should be again desired that the Prince might continue about London.
Lastly, they voted a declaration to be sent to his Majesty by both the
Houses; wherein they accuse his Majesty of a design of altering
religion, though not directly him, but them that counselled him; whom
they also accused of being the inviters and fomenters of the Scotch war,
and framers of the rebellion in Ireland; and upbraid the King again for
accusing the Lord Kimbolton and the five members, and of being privy to
the purpose of bringing up his army, which was raised against the Scots,
to be employed against the Parliament. To which his Majesty sent his
answer from Newmarket. Whereupon it was resolved by both Houses, that in
this case of extreme danger and of his Majesty’s refusal, the ordinance
agreed upon by both Houses for the militia doth oblige the people by the
fundamental laws of this kingdom; and also, that whosoever shall execute
any power over the militia, by colour of any commission of lieutenancy,
without consent of both Houses of Parliament, shall be accounted a
disturber of the peace of the kingdom. Whereupon his Majesty sent a
message to both Houses from Huntingdon, requiring obedience to the laws
established, and prohibiting all subjects, upon pretence of their
ordinance, to execute anything concerning the militia which is not by
those laws warranted. Upon this, the Parliament vote a standing to their
former votes; as also, that when the Lords and Commons in Parliament,
which is the supreme court of judicature in the kingdom, shall declare
what the law of the land is, to have this not only questioned, but
contradicted, is a high breach of the privilege of Parliament.
_B._ I thought that he that makes the law, ought to declare what the law
is. For what is it else to to make a law, but to declare what it is? So
that they have taken from the King, not only the militia, but also the
legislative power.
_A._ They have so; but I make account that the legislative power, and
indeed all power possible, is contained in the power of the militia.
After this, they seize such money as was due to his Majesty upon the
bill of tonnage and poundage, and upon the bill of subsidies, that they
might disable him every way they possibly could. They sent him also many
other contumelious messages and petitions after his coming to York;
amongst which one was: “That whereas the Lord Admiral, by indisposition
of body, could not command the fleet in person, he would be pleased to
give authority to the Earl of Warwick to supply his place;” when they
knew the King had put Sir John Pennington in it before.
_B._ To what end did the King entertain so many petitions, messages,
declarations and remonstrances, and vouchsafe his answers to them, when
he could not choose but clearly see they were resolved to take from him
his royal power, and consequently his life? For it could not stand with
their safety to let either him or his issue live, after they had done
him so great injuries.
_A._ Besides this, the Parliament had at the same time a committee
residing at York, to spy what his Majesty did, and to inform the
Parliament thereof, and also to hinder the King from gaining the people
of that county to his party: so that when his Majesty was courting the
gentlemen there, the committee was instigating the yeomanry against him.
To which also the ministers did very much contribute; so that the King
lost his opportunity at York.
_B._ Why did not the King seize the committee into his hands, or drive
them out of town?
_A._ I know not; but I believe he knew the Parliament had a greater
party than he, not only in Yorkshire but also in York. Towards the end
of April, the King, upon petition of the people of Yorkshire to have the
magazine of Hull to remain still there, for the greater security of the
northern parts, thought fit to take it into his own hands. He had a
little before appointed governor of that town the Earl of Newcastle. But
the townsmen, having been already corrupted by the Parliament, refused
to receive him, but refused not to receive Sir John Hotham, appointed to
be governor by the Parliament. The King therefore coming before the
town, guarded only by his own servants and a few gentlemen of the
country thereabouts, was denied entrance by Sir John Hotham, that stood
upon the wall; for which act he presently caused Sir John Hotham to be
proclaimed traitor, and sent a message to the Parliament, requiring
justice to be done upon the said Hotham, and that the town and magazine
might be delivered into his hands. To which the Parliament made no
answer, but instead thereof published another declaration, in which they
omitted nothing of their former slanders against his Majesty’s
government, but inserted certain propositions declarative of their own
pretended right: viz. 1. That whatsoever they declare to be law, ought
not to be questioned by the King: 2. That no precedents can be limits to
bound their proceedings: 3. That a Parliament, for the public good, may
dispose of anything wherein the King or subject hath a right; and that
they, without the King, are this Parliament, and the judge of this
public good, and that the King’s consent is not necessary: 4. That no
member of either House ought to be troubled for treason, felony, or any
other crime, unless the cause be first brought before the Parliament,
that they may judge of the fact and give leave to proceed, if they see
cause: 5. That the sovereign power resides in both Houses, and that the
King ought to have no negative voice: 6. That the levying of forces
against the personal commands of the King (though accompanied with his
presence) is not levying war against the King, but the levying war
against his laws and authority (which they have power to declare and
signify), though not against his person, is levying war against the
King; and that treason cannot be committed against his person, otherwise
than as he is entrusted with the kingdom and discharging that trust; and
that they have a power to judge whether he discharge this trust or not:
7. That they may depose the King when they will.
_B._ This is plain dealing and without hypocrisy. Could the city of
London swallow this?
_A._ Yes; and more too, if need be. London, you know, has a great belly,
but no palate nor taste of right and wrong. In the Parliament-roll of
Henry IV, amongst the articles of the oath the King at his coronation
took, there is one runs thus: _Concedes justas leges et consuetudines
esse tenendas; et promittes per te eas esse protegendas, et ad honorem
Dei corroborandas, quas vulgus elegerit_. Which the Parliament urged for
their legislative authority, and therefore interpret _quas vulgus
elegerit_, which the people shall choose; as if the King should swear to
protect and corroborate laws before they were made, whether they be good
or bad; whereas the words signify no more, but that he shall protect and
corroborate such laws as they have chosen, that is to say, the Acts of
Parliament then in being. And in the records of the Exchequer it is
thus: _Will you grant to hold and keep the laws and rightful customs
which the commonalty of this your kingdom have, and will you defend and
uphold them? &c._ And this was the answer his Majesty made to that
point.
_B._ And I think this answer very full and clear. But if the words were
to be interpreted in the other sense, yet I see no reason why the King
should be bound to swear to them. For Henry IV came to the Crown by the
votes of a Parliament not much inferior in wickedness to this Long
Parliament, that deposed and murdered their lawful King; saving that it
was not the Parliament itself, but the usurper that murdered King
Richard II.
_A._ About a week after, in the beginning of May, the Parliament sent
the King another paper, which they styled the humble petition and advice
of both Houses, containing nineteen propositions; which when you shall
hear, you shall be able to judge what power they meant to leave to the
King more than to any one of his subjects. The first of them is this:
1. That the Lords and others of his Majesty’s privy-council, and all
great officers of state, both at home and abroad, be put from their
employments and from his council, save only such as should be approved
of by both Houses of Parliament; and none put into their places but by
approbation of the said Houses. And that all privy-councillors take an
oath for the due execution of their places, in such form as shall be
agreed upon by the said Houses.
2. That the great affairs of the kingdom be debated, resolved, and
transacted only in Parliament; and such as shall presume to do any thing
to the contrary, be reserved to the censure of the Parliament; and such
other matters of the state as are proper for his Majesty’s
privy-council, shall be debated and concluded by such as shall from time
to time be chosen for that place by both Houses of Parliament; and that
no public act concerning the affairs of the kingdom, which is proper for
his Majesty’s privy-council, be esteemed valid, as proceeding from the
royal authority, unless it be done by the advice and consent of the
major part of the council, attested under their hands; and that the
council be not more than twenty-five, nor less than fifteen; and that
when a councillor’s place falls void in the interval of Parliament, it
shall not be supplied without the assent of the major part of the
council; and that such choice also shall be void, if the next Parliament
after confirm it not.
3. That the Lord High Steward of England, Lord High Constable, Lord
Chancellor, or Lord Keeper of the Great Seal, Lord Treasurer, Lord
Privy-Seal, Earl Marshal, Lord Admiral, Warden of the Cinque Ports,
Chief Governor of Ireland, Chancellor of the Exchequer, Master of the
Wards, Secretaries of State, two Chief Justices and Chief Baron, be
always chosen with the approbation of both Houses of Parliament; and in
the intervals of Parliament, by the major part of the privy-council.
4. That the government of the King’s children shall be committed to such
as both Houses shall approve of; and in the intervals of Parliament,
such as the privy-council shall approve of; that the servants then about
them, against whom the Houses have just exception, should be removed.
5. That no marriage be concluded or treated of for any of the King’s
children, without consent of Parliament.
6. That the laws in force against Jesuits, priests, and popish
recusants, be strictly put in execution.
7. That the votes of Popish lords in the House of Peers be taken away,
and that a bill be passed for the education of the children of Papists
in the Protestant religion.
8. That the King will be pleased to reform the Church-government and
liturgy in such manner as both Houses of Parliament shall advise.
9. That he would be pleased to rest satisfied with that course that the
Lords and Commons have appointed for ordering the militia, and recal his
declarations and proclamations against it.
10. That such members as have been put out of any place or office since
this Parliament began, may be restored, or have satisfaction.
11. That all privy-councillors and judges take an oath, (the form
whereof shall be agreed on and settled by act of Parliament), for the
maintaining of the Petition of Right, and of certain statutes made by
the Parliament.
12. That all the judges and officers placed by approbation of both
Houses of Parliament, may hold their places _quam diu bene se
gesserint._
13. That the justice of Parliament may pass upon all delinquents,
whether they be within the kingdom or fled out of it; and that all
persons cited by either House of Parliament, may appear and abide the
censure of Parliament.
14. That the general pardon offered by his Majesty, be granted with such
exceptions as shall be advised by both Houses of Parliament.
_B._ What a spiteful article was this! All the rest proceeded from
ambition, which many times well-natured men are subject to; but this
proceeded from an inhuman and devilish cruelty.
_A._ 15. That the forts and castles be put under the command of such
persons as, with the approbation of the Parliament, the King shall
appoint.
16. That the extraordinary guards about the King be discharged; and for
the future none raised but according to the law, in case of actual
rebellion or invasion.
_B._ Methinks these very propositions sent to the King are an actual
rebellion.
_A._ 17. That his Majesty enter into a more strict alliance with the
United Provinces, and other neighbour Protestant Princes and States.
18. That his Majesty be pleased, by act of Parliament, to clear the Lord
Kimbolton and the five members of the House of Commons, in such manner
as that future Parliaments may be secured from the consequence of that
evil precedent.
19. That his Majesty be pleased to pass a bill for restraining peers
made hereafter from sitting or voting in Parliament, unless they be
admitted with consent of both Houses of Parliament.
These propositions granted, they promise to apply themselves to regulate
his Majesty’s revenue to his best advantage, and to settle it to the
support of his royal dignity in honour and plenty; and also to put the
town of Hull into such hands as his Majesty shall appoint with consent
of Parliament.
_B._ Is not that to put it into such hands as his Majesty shall appoint
by the consent of the petitioners, which is no more than to keep it in
their hands as it is? Did they want, or think the King wanted,
common-sense, so as not to perceive that their promise herein was worth
nothing?
_A._ After the sending of these propositions to the King, and his
Majesty’s refusal to grant them, they began, on both sides, to prepare
for war. The King raised a guard for his person in Yorkshire, and the
Parliament, thereupon having voted that the King intended to make war
upon his Parliament, gave order for the mustering and exercising the
people in arms, and published propositions to invite and encourage them
to bring in either ready money or plate, or to promise under their hands
to furnish and maintain certain numbers of horse, horsemen, and arms,
for the defence of the King and Parliament, (meaning by King, as they
had formerly declared, not his person, but his laws); promising to repay
their money with interest of 8_l._ in the 100_l._ and the value of their
plate with twelve-pence the ounce for the fashion. On the other side,
the King came to Nottingham, and there did set up his standard royal,
and sent out commissions of array to call those to him, which by the
ancient laws of England were bound to serve him in the wars. Upon this
occasion there passed divers declarations between the King and
Parliament concerning the legality of this array, which are too long to
tell you at this time.
_B._ Nor do I desire to hear any mooting about this question. For I
think that general law of _salus populi_, and the right of defending
himself against those that had taken from him the sovereign power, are
sufficient to make legal whatsoever he should do in order to the
recovery of his kingdom, or to the punishing of the rebels.
_A._ In the meantime the Parliament raised an army, and made the Earl of
Essex general thereof; by which act they declared what they meant
formerly, when they petitioned the King for a guard to be commanded by
the said Earl of Essex. And now the King sends out his proclamations,
forbidding obedience to the orders of the Parliament concerning the
militia; and the Parliament send out orders against the execution of the
commissions of array. Hitherto, though it were a war before, yet there
was no blood shed; they shot at one another nothing but paper.
_B._ I understand now, how the Parliament destroyed the peace of the
kingdom; and how easily, by the help of seditious Presbyterian ministers
and of ambitious ignorant orators, they reduced this government into
anarchy. But I believe it will be a harder task for them to bring in
peace again, and settle the government, either in themselves, or any
other governor, or form of government. For, granting that they obtained
the victory in this war, they must be beholden for it to the valour,
good conduct, or felicity of those to whom they give the command of
their armies; especially to the general, whose good success will,
without doubt, draw with it the love and admiration of the soldiers; so
that it will be in his power, either to take the government upon
himself, or to place it where himself thinks good. In which case, if he
take it not to himself, he will be thought a fool; and if he do, he
shall be sure to have the envy of his subordinate commanders, who look
for a share either in the present government, or in the succession to
it. For they will say: “Has he obtained his power by his own, without
our danger, valour, and counsel; and must we be his slaves, whom we have
thus raised? Or, is not there as much justice on our side against him,
as was on his side against the King?”
_A._ They will, and did; insomuch, that it was the reason why Cromwell,
after he had gotten into his own hands the absolute power of England,
Scotland, and Ireland, by the name of Protector, did never dare to take
upon him the title of King, nor was ever able to settle it upon his
children. His officers would not suffer it, as pretending after his
death to succeed him; nor would the army consent to it, because he had
ever declared to them against the government of a single person.
_B._ But to return to the King. What means had he to pay, what provision
had he to arm, nay, means to levy, an army able to resist the army of
the Parliament, maintained by the great purse of the city of London and
contributions of almost all the towns corporate in England, and
furnished with arms as fully as they could require?
_A._ It is true, the King had great disadvantages, and yet by little and
little he got a considerable army, with which he so prospered as to grow
stronger every day, and the Parliament weaker, till they had gotten the
Scotch with an army of 21,000 men to come into England to their
assistance. But to enter into the particular narration of what was done
in the war, I have not now time.
_B._ Well then, we will talk of that at next meeting.
------------------------------------
PART III.
==========
_B._ We left at the preparations on both sides for war; which when I
considered by myself, I was mightily puzzled to find out what
possibility there was for the King to equal the Parliament in such a
course, and what hopes he had of money, men, arms, fortified places,
shipping, counsel, and military officers, sufficient for such an
enterprise against the Parliament, that had men and money as much at
command, as the city of London, and other corporation towns, were able
to furnish, which was more than they needed. And for the men they should
set forth for soldiers, they were almost all of them spitefully bent
against the King and his whole party, whom they took to be either
papists, or flatterers of the King, or that had designed to raise their
fortunes by the plunder of the city and other corporation towns. And
though I believe not that they were more valiant than other men, nor
that they had so much experience in the war as to be accounted good
soldiers; yet they had that in them, which in time of battle is more
conducing to victory than valour and experience both together; and that
was spite.
And for arms, they had in their hands the chief magazines, the Tower of
London, and the town of Kingston-upon-Hull; besides most of the powder
and shot that lay in several towns for the use of the trained bands.
Fortified places, there were not many then in England, and most of them
in the hands of the Parliament.
The King’s fleet was wholly in their command, under the Earl of Warwick.
Counsellors, they needed no more than such as were of their own body.
So that the King was every way inferior to them, except it were,
perhaps, in officers.
_A._ I cannot compare their chief officers. For the Parliament, the Earl
of Essex, after the Parliament had voted the war, was made general of
all their forces both in England and Ireland, from whom all other
commanders were to receive their commissions.
_B._ What moved them to make general the Earl of Essex? And for what
cause was the Earl of Essex so displeased with the King, as to accept
that office?
_A._ I do not certainly know what to answer to either of those
questions; but the Earl of Essex had been in the wars abroad, and wanted
neither experience, judgment, nor courage, to perform such an
undertaking. And besides that, you have heard, I believe, how great a
darling of the people his father had been before him, and what honour he
had gotten by the success of his enterprise upon Calais, and in some
other military actions. To which I may add, that this Earl himself was
not held by the people to be so great a favourite at court as that they
might not trust him with their army against the King. And by this, you
may perhaps conjecture the cause for which the Parliament made choice of
him for general.
_B._ But why did they think him discontented with the Court?
_A._ I know not that; nor indeed that he was so. He came to the court,
as other noblemen did, when occasion was, to wait upon the King; but had
no office, till a little before this time, to oblige him to be there
continually. But I believe verily, that the unfortunateness of his
marriages, had so discountenanced his conversation with the ladies, that
the court could not be his proper element, unless he had had some
extraordinary favour there to balance that calamity. But for some
particular discontent from the King, or intention of revenge for any
supposed disgrace, I think he had none, nor that he was any ways
addicted to Presbyterian doctrines, or other fanatic tenets in Church or
State; saving only that he was carried away with the stream, in a
manner, of the whole nation, to think that England was not an absolute,
but a mixed monarchy; not considering that the supreme power must always
be absolute, whether it be in the King or in the Parliament.
_B._ Who was the general of the King’s army?
_A._ None yet but himself; nor indeed had he yet any army. But there
coming to him at that time his two nephews, the Princes Rupert and
Maurice, he put the command of his horse into the hands of Prince
Rupert, a man than whom no man living has a better courage, nor was more
active and diligent in prosecuting his commissions; and, though but a
young man then, was not without experience in the conducting of
soldiers, as having been an actor in part of his father’s wars in
Germany.
_B._ But how could the King find money to pay such an army as was
necessary for him against the Parliament?
_A._ Neither the King nor Parliament had much money at that time in
their own hands, but were fain to rely upon the benevolence of those
that took their parts. Wherein, I confess, the Parliament had a mighty
great advantage. Those that helped the King in that kind, were only
lords and gentlemen, which, not approving the proceedings of the
Parliament, were willing to undertake the payment, every one, of a
certain number of horse; which cannot be thought any very great
assistance, the persons that payed them being so few. For other moneys
that the King then had, I have not heard of any, but what he borrowed
upon jewels in the Low Countries. Whereas the Parliament had a very
plentiful contribution, not only from London, but generally from their
faction in all other places of England, upon certain propositions,
published by the Lords and Commons in June 1642, (at what time they had
newly voted that the King intended to make war upon them), for bringing
in of money or plate to maintain horse and horsemen, and to buy arms for
the preservation of the public peace, and for the defence of the King
and both Houses of Parliament; for the re-payment of which money and
plate, they were to have the public faith.
_B._ What public faith is there, when there is no public? What is it
that can be called public, in a civil war, without the King?
_A._ The truth is, the security was nothing worth, but served well
enough to gull those seditious blockheads, that were more fond of change
than either of their peace or profit.
Having by this means gotten contributions from those that were
well-affected to their cause, they made use of it afterwards to force
the like contribution from others. For in November following, they made
an ordinance for assessing also of those that had not contributed then,
or had contributed, but not proportionably to their estates. And yet
this was contrary to what the Parliament promised and declared in the
propositions themselves. For they declared, in the first proposition,
that no man’s affections should be measured by the proportion of his
offer, so that he expressed his good will to the service in any
proportion whatsoever.
Besides this, in the beginning of March following, they made an
ordinance, to levy weekly a great sum of money upon every county, city,
town, place, and person of any estate almost, in England; which weekly
sum, as may appear by the ordinance itself, printed and published in
March 1642 by order of both Houses, comes to almost 33,000_l._, and
consequently to above 1,700,000_l._ for the year. They had, besides all
this, the profits of the King’s lands and woods, and whatsoever was
remaining unpaid of any subsidy formerly granted him, and the tonnage
and poundage usually received by the King; besides the profit of the
sequestrations of great persons, whom they pleased to vote delinquents,
and the profits of the bishops' lands, which they took to themselves a
year, or a little more, after.
_B._ Seeing then the Parliament had such advantage of the King in money
and arms and multitude of men, and had in their hands the King’s fleet,
I cannot imagine what hope the King could have, either of victory
(unless he resigned into their hands the sovereignty), or subsisting.
For I cannot well believe he had any advantage of them either in
counsellors, conductors, or in the resolutions of his soldiers.
_A._ On the contrary, I think he had also some disadvantage in that; for
though he had as good officers at least as any then served the
Parliament, yet I doubt he had not so useful counsel as was necessary.
And for his soldiers, though they were men as stout as theirs, yet,
because their valour was not sharpened so with malice as theirs was on
the other side, they fought not so keenly as their enemies did: amongst
whom there were a great many London apprentices, who, for want of
experience in the war, would have been fearful enough of death and
wounds approaching visibly in glistering swords; but, for want of
judgment, scarce thought of such death as comes invisibly in a bullet,
and therefore were very hardly to be driven out of the field.
_B._ But what fault do you find in the King’s counsellors, lords, and
other persons of quality and experience?
_A._ Only that fault, which was generally in the whole nation, which
was, that they thought the government of England was not an absolute,
but a mixed monarchy; and that if the King should clearly subdue this
Parliament, that his power would be what he pleased, and theirs as
little as he pleased: which they counted tyranny. This opinion, though
it did not lessen their endeavour to gain the victory for the King in a
battle, when a battle could not be avoided, yet it weakened their
endeavour to procure him an absolute victory in the war. And for this
cause, notwithstanding that they saw that the Parliament was firmly
resolved to take all kingly power whatsoever out of his hands, yet their
counsel to the King was upon all occasions, to offer propositions to
them of treaty and accommodation, and to make and publish declarations;
which any man might easily have foreseen would be fruitless; and not
only so, but also of great disadvantage to those actions by which the
King was to recover his crown and preserve his life. For it took off the
courage of the best and forwardest of his soldiers, that looked for
great benefit by their service out of the estates of the rebels, in case
they could subdue them; but none at all, if the business should be ended
by a treaty.
_B._ And they had reason: for a civil war never ends by treaty, without
the sacrifice of those who were on both sides the sharpest. You know
well enough how things passed at the reconciliation of Augustus and
Antonius in Rome. But I thought that after they once began to levy
soldiers one against another, that they would not any more have returned
of either side to declarations, or other paper war, which, if it could
have done any good, would have done it long before this.
_A._ But seeing the Parliament continued writing, and set forth their
declarations to the people against the lawfulness of the King’s
commission of array, and sent petitions to the King as fierce and
rebellious as ever they had done before, demanding of him that he would
disband his soldiers, and come up to the Parliament, and leave those
whom the Parliament called delinquents (which were none but the King’s
best subjects) to their mercy, and pass such bills as they should advise
him; would you not have the King set forth declarations and
proclamations against the illegality of their ordinances, by which they
levied soldiers against him, and answer those insolent petitions of
theirs?
_B._ No; it had done him no good before, and therefore was not likely to
do him any afterwards. For the common people, whose hands were to decide
the controversy, understood not the reasons of either party; and for
those that by ambition were once set upon the enterprise of changing the
government, they cared not much what was reason and justice in the
cause, but what strength they might procure by reducing the multitude
with remonstrances from the Parliament House, or by sermons in the
churches. And to their petitions, I would not have had any answer made
at all, more than this; that if they would disband their army, and put
themselves upon his mercy, they should find him more gracious than they
expected.
_A._ That had been a gallant answer indeed, if it had proceeded from him
after some extraordinary great victory in battle, or some extraordinary
assurance of a victory at last in the whole war.
_B._ Why, what could have happened to him worse than at length he
suffered, notwithstanding his gentle answers and all his reasonable
declarations?
_A._ Nothing; but who knew that?
_B._ Any man might see that he was never likely to be restored to his
right without victory: and such his stoutness being known to the people,
would have brought to his assistance many more hands than all the
arguments of law or force of eloquence, couched in declarations and
other writings, could have done by far. And I wonder what kind of men
they were, that hindered the King from taking this resolution?
_A._ You may know by the declarations themselves, which are very long
and full of quotations of records and of cases formerly reported, that
the penners of them were either lawyers by profession, or such gentlemen
as had the ambition to be thought so. Besides, I told you before, that
those which were then likeliest to have their counsel asked in this
business, were averse to absolute monarchy, as also to absolute
democracy or aristocracy; all which governments they esteemed tyranny,
and were in love with monarchy which they used to praise by the name of
mixed monarchy, though it were indeed nothing else but pure anarchy. And
those men, whose pens the King most used in these controversies of law
and politics, were such, if I have not been misinformed, as having been
members of this Parliament, had declaimed against ship-money and other
extra-parliamentary taxes, as much as any; but who when they saw the
Parliament grow higher in their demands than they thought they would
have done, went over to the King’s party.
_B._ Who were those?
_A._ It is not necessary to name any man, seeing I have undertaken only
a short narration of the follies and other faults of men during this
trouble; but not, by naming the persons, to give you, or any man else,
occasion to esteem them the less, now that the faults on all sides have
been forgiven.
_B._ When the business was brought to this height, by levying of
soldiers and seizing of the navy and arms and other provisions on both
sides, that no man was so blind as not to see they were in an estate of
war one against another; why did not the King, by proclamation or
message, according to his undoubted right, dissolve the Parliament, and
thereby diminish in some part the authority of their levies, and of
other their unjust ordinances?
_A._ You have forgotten that I told you, that the King himself, by a
bill that he passed at the same time when he passed the bill for the
execution of the Earl of Strafford, had given them authority to hold the
Parliament till they should by consent of both Houses dissolve
themselves. If therefore he had, by any proclamation or message to the
Houses, dissolved them, they would to their former defamations of his
Majesty’s actions have added this, that he was a breaker of his word:
and not only in contempt of him have continued their session, but also
have made an advantage of it to the increase and strengthening of their
own party.
_B._ Would not the King’s raising of an army against them be interpreted
as a purpose to dissolve them by force? And was it not as great a breach
of promise to scatter them by force, as to dissolve them by
proclamation? Besides, I cannot conceive that the passing of that act
was otherwise intended than conditionally; so long as they should not
ordain any thing contrary to the sovereign right of the King; which
condition they had already by many of their ordinances broken. And I
think that even by the law of equity, which is the unalterable law of
nature, a man that has the sovereign power, cannot, if he would, give
away the right of anything which is necessary for him to retain for the
good government of his subjects, unless he do it in express words,
saying, that he will have the sovereign power no longer. For the giving
away that, which by consequence only, draws the sovereignty along with
it, is not, I think, a giving away of the sovereignty; but an error,
such as works nothing but an invalidity in the grant itself. And such
was the King’s passing of this bill for the continuing of the Parliament
as long as the two Houses pleased. But now that the war was resolved on
on both sides, what needed any more dispute in writing?
_A._ I know not what need they had. But on both sides they thought it
needful to hinder one another, as much as they could, from levying of
soldiers; and, therefore, the King did set forth declarations in print,
to make the people know that they ought not to obey the officers of the
new militia set up by ordinance of Parliament, and also to let them see
the legality of his own commissions of array. And the Parliament on
their part did the like, to justify to the people the said ordinance,
and to make the commission of array appear unlawful.
_B._ When the Parliament were levying of soldiers, was it not lawful for
the King to levy soldiers to defend himself and his right, though there
had been no other title for it but his own preservation, and that the
name of commission of array had never before been heard of?
_A._ For my part, I think there cannot be a better title for war, than
the defence of a man’s own right. But the people, at that time, thought
nothing lawful for the King to do, for which there was not some statute
made by Parliament. For the lawyers, I mean the judges of the courts at
Westminster, and some few others, though but advocates, yet of great
reputation for their skill in the common-laws and statutes of England,
had infected most of the gentry of England with their maxims and cases
prejudged, which they call precedents; and made them think so well of
their own knowledge in the law, that they were very glad of this
occasion to shew it against the King, and thereby to gain a reputation
with the Parliament of being good patriots, and wise statesmen.
_B._ What was this commission of array?
_A._ King William the Conqueror had gotten into his hands by victory all
the land in England, of which he disposed some part as forests and
chases for his recreation, and some part to lords and gentlemen that had
assisted him or were to assist him in the wars. Upon which he laid a
charge of service in his wars, some with more men, and some with less,
according to the lands he had given them: whereby, when the King sent
men unto them with commission to make use of their service, they were
obliged to appear with arms, and to accompany the King to the wars for a
certain time at their own charges: and such were the commissions by
which this King did then make his levies.
_B._ Why then was it not legal?
_A._ No doubt but it was legal. But what did that amount to with men,
that were already resolved to acknowledge for law nothing that was
against their design of abolishing monarchy, and placing a sovereign and
absolute arbitrary power in the House of Commons.
_B._ To destroy monarchy, and set up the House of Commons, are two
businesses.
_A._ They found it so at last, but did not think it so then.
_B._ Let us now come to the military part.
_A._ I intended only the story of their injustice, impudence, and
hypocrisy; therefore, for the proceeding of the war, I refer you to the
history thereof written at large in English. I shall only make use of
such a thread as is necessary for the filling up of such knavery, and
folly also, as I shall observe in their several actions.
From York the King went to Hull, where was his magazine of arms for the
northern parts of England, to try if they would admit him. The
Parliament had made Sir John Hotham governor of the town, who caused the
gates to be shut, and presenting himself upon the walls flatly denied
him entrance: for which the King caused him to be proclaimed traitor,
and sent a message to the Parliament to know if they owned the action.
_B._ Upon what grounds?
_A._ Their pretence was this; that neither this nor any other town in
England was otherwise the King’s, than in trust for the people of
England.
_B._ But what was that to the Parliament?
_A._ Yes, say they; for we are the representatives of the people of
England.
_B._ I cannot see the force of this argument: we represent the people,
_ergo_, all that the people has is ours. The mayor of Hull did represent
the King. Is therefore all that the King had in Hull, the mayor’s? The
people of England may be represented with limitations, as to deliver a
petition or the like. Does it follow that they, who deliver the
petition, have right to all the towns in England? When began this
Parliament to be a representative of England? Was it not November 3,
1640? Who was it the day before, that is November 2, that had the right
to keep the King out of Hull and possess it for themselves? For there
was then no Parliament. Whose was Hull then?
_A._ I think it was the King’s, not only because it was called the
King’s town upon Hull, but because the King himself did then and ever
represent the person of the people of England. If he did not, who then
did, the Parliament having no being?
_B._ They might perhaps say, the people had then no representative.
_A._ Then there was no commonwealth; and consequently, all the towns of
England being the people’s, you, and I, and any man else, might have put
in for his share. You may see by this what weak people they were, that
were carried into the rebellion by such reasoning as the Parliament
used, and how impudent they were that did put such fallacies upon them.
_B._ Surely they were such as were esteemed the wisest men in England,
being upon that account chosen to be of the Parliament.
_A._ And were they also esteemed the wisest men of England, that chose
them?
_B._ I cannot tell that. For I know it is usual with the freeholders in
the counties, and the tradesmen in the cities and boroughs, to choose,
as near as they can, such as are most repugnant to the giving of
subsidies.
_A._ The King in the beginning of August, after he had summoned Hull,
and tried some of the counties thereabout what they would do for him,
sets up his standard at Nottingham; but there came not in thither men
enough to make an army sufficient to give battle to the Earl of Essex.
From thence he went to Shrewsbury, where he was quickly furnished; and
appointing the Earl of Lindsey to be general, he resolved to march
towards London. The Earl of Essex was now at Worcester with the
Parliament’s army, making no offer to stop him in his passage; but as
soon as he was gone by, marched close after him.
The King, therefore, to avoid being enclosed between the army of the
Earl of Essex and the city of London, turned upon him and gave him
battle at Edgehill: where though he got not an entire victory, yet he
had the better, if either had the better; and had certainly the fruit of
a victory, which was to march on in his intended way towards London: in
which the next morning he took Banbury-castle, and from thence went to
Oxford, and thence to Brentford, where he gave a great defeat to three
regiments of the Parliament’s forces, and so returned to Oxford.
_B._ Why did not the King go on from Brentford?
_A._ The Parliament, upon the first notice of the King’s marching from
Shrewsbury, caused all the trained-bands and the auxiliaries of the city
of London (which was so frightened as to shut up all their shops) to be
drawn forth; so that there was a most complete and numerous army ready
for the Earl of Essex, that was crept into London just at the time to
head it. And this was it that made the King retire to Oxford. In the
beginning of February after, Prince Rupert took Cirencester from the
Parliament, with many prisoners and many arms: for it was newly made a
magazine. And thus stood the business between the King’s and the
Parliament’s greatest forces. The Parliament in the meantime caused a
line of communication to be made about London and the suburbs, of twelve
miles in compass; and constituted a committee for the association, and
the putting into a posture of defence, of the counties of Essex,
Cambridge, Suffolk, and some others; and one of these commissioners was
Oliver Cromwell, from which employment he came to his following
greatness.
_B._ What was done during this time in other parts of the country?
_A._ In the west, the Earl of Stamford had the employment of putting in
execution the ordinance of Parliament for the militia; and Sir Ralph
Hopton for the King executed the commission of array. Between these two
was fought a battle at Liskeard in Cornwall, wherein Sir Ralph Hopton
had the victory, and presently took a town called Saltash, with many
arms and much ordnance and many prisoners. Sir William Waller in the
meantime seized Winchester and Chichester for the Parliament. In the
north, for the commission of array, my Lord of Newcastle, and for the
militia of the Parliament was my Lord Fairfax. My Lord of Newcastle took
from the Parliament Tadcaster, in which were a great part of the
Parliament’s forces for that country, and had made himself, in a manner,
master of all the north. About this time, that is to say in February,
the Queen landed at Burlington, and was conducted by my Lord of
Newcastle and the Marquis of Montrose to York, and not long after to the
King. Divers other little advantages, besides these, the King’s party
had of the Parliament’s in the north.
There happened also between the militia of the Parliament and the
Commission of Array in Staffordshire, under my Lord Brook for the
Parliament and my Lord of Northampton for the King, great contention,
wherein both these commanders were slain. For my Lord Brook, besieging
Litchfield-Close, was killed with a shot; notwithstanding which they
gave not over the siege till they were masters of the Close. But
presently after, my Lord of Northampton besieged it again for the King;
which to relieve, Sir William Brereton and Sir John Gell advanced
towards Litchfield, and were met at Hopton Heath by the Earl of
Northampton, and routed. The Earl himself was slain; but his forces with
victory returned to the siege again; and shortly after, seconded by
Prince Rupert, who was then abroad in that country, carried the place.
These were the chief actions of this year, 1642; wherein the King’s
party had not much the worse.
_B._ But the Parliament had now a better army; insomuch that if the Earl
of Essex had immediately followed the King to Oxford, not yet well
fortified, he might in all likelihood have taken it. For he could not
want either men or ammunition, whereof the city of London, which was
wholly at the Parliament’s devotion, had store enough.
_A._ I cannot judge of that. But this is manifest, considering the
estate the King was in at his first marching from York, when he had
neither money nor men nor arms enough to put them in hope of victory,
that this year, take it altogether, was very prosperous.
_B._ But what great folly or wickedness do you observe in the
Parliament’s actions for this first year?
_A._ All that can be said against them in that point, will be excused
with the pretext of war, and come under one name of rebellion; saving
that when they summoned any town, it was always in the name of King and
Parliament, the King being in the contrary army, and many times beating
them from the siege. I do not see how the right of war can justify such
impudence as that. But they pretended that the King was always virtually
in the two Houses of Parliament; making a distinction between his person
natural and politic; which made the impudence the greater, besides the
folly of it. For this was but an university quibble, such as boys make
use of in maintaining in the schools such tenets as they cannot
otherwise defend.
In the end of this year they solicited also the Scots to enter England
with an army, to suppress the power of the Earl of Newcastle in the
North; which was a plain confession, that the Parliament’s forces were,
at this time, inferior to the King’s. And most men thought, that if the
Earl of Newcastle had then marched southward, and joined his forces with
the King’s, most of the members of Parliament would have fled out of
England.
In the beginning of 1643 the Parliament, seeing the Earl of Newcastle’s
power in the North grown so formidable, sent to the Scots to hire them
to an invasion of England, and (to compliment them in the meantime) made
a covenant amongst themselves, such as the Scots had before taken
against episcopacy, and demolished crosses and church-windows, such as
had in them any images of saints, throughout all England. Also in the
middle of the year, they made a solemn league with the nation, which was
called the Solemn League and Covenant.
_B._ Are not the Scots as properly to be called foreigners as the Irish?
Seeing then they persecuted the Earl of Strafford even to death, for
advising the King to make use of Irish forces against the Parliament,
with what face could they call in a Scotch army against the King?
_A._ The King’s party might easily here have discerned their design, to
make themselves absolute masters of the kingdom and to dethrone the
King. Another great impudence, or rather a bestial incivility, it was of
theirs, that they voted the Queen a traitor, for helping the King with
some ammunition and English forces from Holland.
_B._ Was it possible that all this could be done, and men not see that
papers and declarations must be useless; and that nothing could satisfy
them but the deposing of the King, and setting up of themselves in his
place?
_A._ Yes; very possible. For who was there of them, though knowing that
the King had the sovereign power, that knew the essential rights of
sovereignty? They dreamt of a mixed power, of the King and the two
Houses. That it was a divided power, in which there could be no peace,
was above their understanding. Therefore they were always urging the
King to declarations and treaties, for fear of subjecting themselves to
the King in an absolute obedience; which increased the hope and courage
of the rebels, but did the King little good. For the people either
understand not, or will not trouble themselves with controversies in
writing, but rather, by his compliance and messages, go away with an
opinion that the Parliament was likely to have the victory in the war.
Besides, seeing the penners and contrivers of these papers were formerly
members of the Parliament, and of another mind, and now revolted from
the Parliament because they could not bear that sway in the House which
they expected, men were apt to think they believed not what they writ.
As for military actions (to begin at the head quarters) Prince Rupert
took Birmingham, a garrison of the Parliament’s. In July after, the
King’s forces had a great victory over the Parliament’s, near Devizes on
Roundway-Down, where they took 2,000 prisoners, four brass pieces of
ordnance, twenty-eight colours, and all their baggage; and shortly
after, Bristol was surrendered to Prince Rupert for the King; and the
King himself marching into the west, took from the Parliament many other
considerable places.
But this good fortune was not a little allayed by his besieging of
Gloucester, which after it was reduced to the last gasp, was relieved by
the Earl of Essex; whose army was before greatly wasted, but now
suddenly recruited with the trained bands and apprentices of London.
_B._ It seems not only by this, but also by many examples in history,
that there can hardly arise a long or dangerous rebellion, that has not
some such overgrown city with an army or two in its belly to foment it.
_A._ Nay more; those great capital cities, when rebellion is upon
pretence of grievances, must needs be of the rebel party: because the
grievances are but taxes, to which citizens, that is, merchants, whose
profession is their private gain, are naturally mortal enemies; their
only glory being to grow excessively rich by the wisdom of buying and
selling.
_B._ But they are said to be of all callings the most beneficial to the
commonwealth, by setting the poorer sort of people on work.
_A._ That is to say, by making poor people sell their labour to them at
their own prices; so that poor people, for the most part, might get a
better living by working in Bridewell, than by spinning, weaving, and
other such labour as they can do; saving that by working slightly they
may help themselves a little, to the disgrace of our manufacture. And as
most commonly they are the first encouragers of rebellion, presuming of
their strength; so also are they, for the most part, the first to
repent, deceived by them that command their strength.
But to return to the war; though the King withdrew from Gloucester, yet
it was not to fly from, but to fight with the Earl of Essex, which
presently after he did at Newbury, where the battle was bloody, and the
King had not the worst, unless Cirencester be put into the scale, which
the Earl of Essex had in his way a few days before surprised.
But in the north and the west, the King had much the better of the
Parliament. For in the north, at the very beginning of the year, March
29th, the Earls of Newcastle and Cumberland defeated the Lord Fairfax,
who commanded in those parts for the Parliament, at Bramham Moor; which
made the Parliament to hasten the assistance of the Scots.
In June following the Earl of Newcastle routed Sir Thomas Fairfax, son
to the Lord Fairfax, upon Adderton Heath, and, in pursuit of them to
Bradford, took and killed 2,000 men, and the next day took the town and
2,000 prisoners more (Sir Thomas himself hardly escaping) with all their
arms and ammunition; and besides this, made the Lord Fairfax quit
Halifax and Beverley. Lastly, Prince Rupert relieved Newark, besieged by
Sir John Meldrun for the Parliament with 7,000 men, whereof 1,000 were
slain; the rest upon articles departed, leaving behind them their arms,
bag and baggage.
To balance in part this success, the Earl of Manchester, whose
lieutenant-general was Oliver Cromwell, got a victory over the royalists
near Horncastle, of whom he slew 400, took 800 prisoners and 1,000 arms,
and presently after took and plundered the city of Lincoln.
In the West, May the 16th, Sir Ralph Hopton at Stratton, in Cornwall,
had a victory over the Parliamentarians, wherein he took 1700 prisoners,
thirteen brass pieces of ordnance, and all their ammunition, which was
seventy barrels of powder; and the magazine of their other provisions in
the town.
Again at Lansdown, between Sir Ralph Hopton and the Parliamentarians
under Sir William Waller, was fought a fierce battle, wherein the
victory was not very clear on either side; saving that the
Parliamentarians might seem to have the better, because presently after
Sir William Waller followed Sir Ralph Hopton to Devizes, in Wiltshire,
though to his cost; for there he was overthrown, as I have already told
you.
After this the King in person marched into the West, and took Exeter,
Dorchester, Barnstable, and divers other places; and had he not at his
return besieged Gloucester, and thereby given the Parliament time for
new levies, it was thought by many he might have routed the House of
Commons. But the end of this year was more favourable to the Parliament.
For in January the Scots entered England, and, March the 1st, crossed
the Tyne; and whilst the Earl of Newcastle was marching to them, Sir
Thomas Fairfax gathered together a considerable party in Yorkshire, and
the Earl of Manchester from Lyn advanced towards York; so that the Earl
of Newcastle having two armies of the rebels behind him, and another
before him, was forced to retreat to York; which those three armies
joining presently besieged. And these are all the considerable military
actions of the year 1643.
In the same year the Parliament caused to be made a new Great Seal. The
Lord Keeper had carried the former seal to Oxford. Hereupon the King
sent a messenger to the judges at Westminster, to forbid them to make
use of it. This messenger was taken, and condemned at a council of war,
and hanged for a spy.
_B._ Is that the law of war?
_A._ I know not: but it seems, when a soldier comes into the enemies'
quarters without address or notice given to the chief commander, that it
is presumed he comes as a spy. The same year, when certain gentlemen at
London received a commission of array from the King to levy men for his
service in that city, being discovered, they were condemned, and some of
them executed. This case is not much unlike the former.
_B._ Was not the making of a new Great Seal a sufficient proof that the
war was raised, not to remove evil counsellors from the King, but to
remove the King himself from the government? What hope then could there
be had in messages and treaties?
_A._ The entrance of the Scots was a thing unexpected to the King, who
was made to believe by continual letters from his commissioner in
Scotland, Duke Hamilton, that the Scotch never intended any invasion.
The Duke being then at Oxford, the King, assured that the Scotch were
now entered, sent him prisoner to Pendennis Castle in Cornwall.
In the beginning of the year 1644, the Earl of Newcastle being, as I
told you, besieged by the joint forces of the Scots, the Earl of
Manchester and Sir Thomas Fairfax, the King sent Prince Rupert to
relieve the town, and as soon as he could to give the enemy battle.
Prince Rupert passing through Lancashire, and by the way having stormed
that seditious town of Bolton, and taken Stockford and Liverpool, came
to York July the 1st, and relieved it; the enemy being risen thence to a
place called Marston Moor, about four miles off; and there was fought
that unfortunate battle, which lost the King in a manner all the north.
Prince Rupert returned by the way he came, and the Earl of Newcastle to
York, and thence with some of his officers over the sea to Hamburgh.
The honour of this victory was attributed chiefly to Oliver Cromwell,
the Earl of Manchester’s lieutenant-general. The Parliamentarians
returned from the field to the siege of York, which not long after, upon
honourable articles, was surrendered; not that they were favoured, but
because the Parliament employed not much time nor many men in sieges.
_B._ This was a great and sudden abatement of the King’s prosperity.
_A._ It was so; but amends was made him for it within five or six weeks
after. For Sir William Waller, after the loss of his army at
Roundway-Down, had another raised for him by the city of London; who for
the payment thereof imposed a weekly tax of the value of one meal’s meat
upon every citizen. This army, with that of the Earl of Essex, intended
to besiege Oxford; which the King understanding, sent the Queen into the
west, and marched himself towards Worcester. This made them to divide
again, and the Earl to go into the west, and Waller to pursue the King.
By this means, as it fell out, both their armies were defeated. For the
King turned upon Waller, routed him at Cropredy-bridge, took his train
of artillery and many officers; and then presently followed the Earl of
Essex into Cornwall, where he had him at such advantage, that the Earl
himself was fain to escape in a small boat to Plymouth; his horse broke
through the King’s quarters by night, but the infantry were all forced
to lay down their arms, and upon condition never more to bear arms
against the King were permitted to depart.
In October following was fought a second and sharp battle at Newbury.
For this infantry, making no conscience of the conditions made with the
King, being now come towards London as far as Basingstoke, had arms put
again into their hands; to whom some of the trained-bands being added,
the Earl of Essex had suddenly so great an army, that he attempted the
King again at Newbury; and certainly had the better of the day, but the
night parting them, had not a complete victory. And it was observed
here, that no part of the Earl’s army fought so keenly as they who had
laid down their arms in Cornwall.
These were the most important fights in the year 1644, and the King was
yet, as both himself and others thought, in as good condition as the
Parliament, which despaired of victory by the commanders they then used.
Therefore they voted a new modelling of the army, suspecting the Earl of
Essex, though I think wrongfully, to be too much a royalist, for not
having done so much as they looked for in this second battle at Newbury.
The Earls of Essex and Manchester, perceiving what they went about,
voluntarily laid down their commissions; and the House of Commons made
an ordinance, that no member of either House should enjoy any office or
command, military or civil; with which oblique blow they shook off those
that had hitherto served them too well. And yet out of this ordinance
they excepted Oliver Cromwell, in whose conduct and valour they had very
great confidence (which they would not have done, if they had known him
as well then as they did afterwards), and made him lieutenant-general to
Sir Thomas Fairfax, their new-made general. In the commission to the
Earl of Essex, there was a clause for the preservation of his Majesty’s
person, which in this new commission was left out; though the Parliament
as well as the general were as yet Presbyterian.
_B._ It seems the Presbyterians also in order to their ends would fain
have had the King murdered.
_A._ For my part I doubt it not. For a rightful king living, an usurping
power can never be sufficiently secured.
In this same year the Parliament put to death Sir John Hotham and his
son, for tampering with the Earl of Newcastle about the rendition of
Hull; and Sir Alexander Carew, for endeavouring to deliver up Plymouth,
where he was governor for the Parliament; and the Archbishop of
Canterbury, for nothing but to please the Scots; for the general article
of going about to subvert the fundamental laws of the land, was no
accusation, but only foul words. They then also voted down the Book of
Common-prayer, and ordered the use of a Directory, which had been newly
composed by an Assembly of Presbyterian ministers. They were also then,
with much ado, prevailed with for a treaty with the King at Uxbridge;
where they remitted nothing of their former demands. The King had also
at this time a Parliament at Oxford, consisting of such discontented
members as had left the Houses at Westminster; but few of them had
changed their old principles, and therefore that Parliament was not much
worth. Nay rather, because they endeavoured nothing but messages and
treaties, that is to say, defeating of the soldiers' hope of benefit by
the war, they were thought by most men to do the King more hurt than
good.
The year 1645 was to the King very unfortunate; for by the loss of one
great battle, he lost all he had formerly gotten, and at length his
life. The new modelled army, after consultation whether they should lay
siege to Oxford or march westward to the relief of Taunton, (then
besieged by the Lord Goring, and defended by Blake, famous afterwards
for his actions at sea), resolved for Taunton; leaving Cromwell to
attend the motions of the King, though not strong enough to hinder him.
The King upon this advantage drew his forces and artillery out of
Oxford. This made the Parliament to call back their general, Fairfax,
and order him to besiege Oxford. The King in the meantime relieved
Chester, which was besieged by Sir William Brereton, and coming back
took Leicester by force; a place of great importance, and well provided
of artillery and provision.
Upon this success it was generally thought that the King’s party was the
stronger. The King himself thought so; and the Parliament in a manner
confessed the same, by commanding Fairfax to rise from the siege, and
endeavour to give the King battle. For the successes of the King, and
the divisions and treacheries growing now amongst themselves, had driven
them to rely upon the fortune of one day; in which, at Naseby, the
King’s army was utterly overthrown, and no hope left him to raise
another. Therefore after the battle he went up and down, doing the
Parliament here and there some shrewd turns, but never much increasing
his number.
Fairfax in the meantime first recovered Leicester, and then marching
into the west subdued it all, except only a few places, forcing with
much ado my Lord Hopton upon honourable conditions to disband his army,
and with the Prince of Wales to pass over to Scilly; whence not long
after they went to Paris.
In April 1646 General Fairfax began to march back to Oxford. In the
meantime Rainsborough, who besieged Woodstock, had it surrendered. The
King therefore, who was now also returned to Oxford, from whence
Woodstock is but six miles, not doubting but that he should there by
Fairfax be besieged, and having no army, to relieve him, resolved to get
away disguised to the Scotch army about Newark; and thither he came the
4th of May; and the Scotch army, being upon remove homewards, carried
him with them to Newcastle, whither he came May 13th.
_B._ Why did the King trust himself with the Scots? They were the first
that rebelled. They were Presbyterians, that is, cruel; besides, they
were indigent, and consequently might be suspected would sell him to his
enemies for money. And lastly, they were too weak to defend him, or keep
him in their country.
_A._ What could he have done better? For he had in the winter before
sent to the Parliament to get a pass for the Duke of Richmond and
others, to bring them propositions of peace; it was denied. He sent
again; it was denied again. Then he desired he might come to them in
person; this also was denied. He sent again and again to the same
purpose; but instead of granting it, they made an ordinance, that the
commanders of the militia of London, in case the King should attempt to
come within the line of communication, should raise what force they
thought fit to suppress tumults, to apprehend such as came with him, and
to secure, that is to imprison, his person from danger. If the King had
adventured to come, and had been imprisoned, what could the Parliament
have done with him? They had dethroned him by their votes, and therefore
could have no security whilst he lived, though in prison. It may be they
would not have put him to death by a high court of justice publicly, but
secretly some other way.
_B._ He should have attempted to get beyond sea.
_A._ That had been from Oxford very difficult. Besides, it was generally
believed that the Scotch army had promised him, that not only his
Majesty, but also his friends that should come with him, should be in
their army safe; not only for their persons, but also for their honours
and consciences. It is a pretty trick, when the army and the particular
soldiers of the army are different things, to make the soldiers promise
what the army means not to perform.
July the 11th the Parliament sent their propositions to the King at
Newcastle; which propositions they pretended to be the only way to a
settled and well grounded peace. They were brought by the Earl of
Pembroke, the Earl of Suffolk, Sir Walter Earle, Sir John Hippisley, Mr.
Goodwin, and Mr. Robinson; whom the King asked if they had power to
treat; and when they said no, why they might not as well have been sent
by a trumpeter. The propositions were the same dethroning ones which
they used to send, and therefore the King would not assent to them. Nor
did the Scots swallow them at first, but made some exceptions against
them; only, it seems, to make the Parliament perceive they meant not to
put the King into their hands gratis. And so at last the bargain was
made between them; and upon the payment of 200,000_l._ the King was put
into the hands of the commissioners, which the English Parliament sent
down to receive him.
_B._ What a vile complexion has this action, compounded of feigned
religion and very covetousness, cowardice, perjury, and treachery!
_A._ Now the war, that seemed to justify many unseemly things, is ended,
you will see almost nothing else in these rebels but baseness and
falseness besides their folly.
By this time the Parliament had taken in all the rest of the King’s
garrisons; whereof the last was Pendennis Castle, whither Duke Hamilton
had been sent prisoner by the King.
_B._ What was done during this time in Ireland and Scotland?
_A._ In Ireland there had been a peace made by order from his Majesty
for a time, which by divisions amongst the Irish was ill kept. The
Popish party, the Pope’s nuncio being then there, took this to be the
time for delivering themselves from their subjection to the English.
Besides, the time of the peace was now expired.
_B._ How were they subject to the English, more than the English to the
Irish? They were subject to the King of England; but so also were the
English to the King of Ireland.
_A._ This distinction is somewhat too subtile for common understandings.
In Scotland the Marquis of Montrose for the King, with very few men and
miraculous victories, had overrun all Scotland, where many of his
forces, out of too much security, were permitted to be absent for
awhile; of which the enemy having intelligence, suddenly came upon them,
and forced them to fly back into the Highlands to recruit; where he
began to recover strength, when he was commanded by the King, then in
the hands of the Scots at Newcastle, to disband; and he departed from
Scotland by sea.
In the end of the same year, 1646, the Parliament caused the King’s
Great Seal to be broken; also the King was brought to Holmeby, and there
kept by the Parliament’s commissioners. And here was an end of that war
as to England and Scotland, but not to Ireland. About this time also
died the Earl of Essex, whom the Parliament had discarded.
_B._ Now that there was peace in England, and the King in prison, in
whom was the sovereign power?
_A._ The right was certainly in the King, but the exercise was yet in
nobody; but contended for as in a game at cards, without fighting, all
the years 1647 and 1648, between the Parliament and Oliver Cromwell,
lieutenant-general to Sir Thomas Fairfax.
You must know, that when King Henry VIII abolished the pope’s authority
here, and took upon him to be the head of the Church, the bishops, as
they could not resist him, so neither were they discontented with it.
For whereas before the pope allowed not the bishops to claim
jurisdiction in their diocesses _jure divino_, that is of right
immediately from God, but by the gift and authority of the pope, now
that the pope was ousted, they made no doubt but that the divine right
was in themselves. After this, the city of Geneva, and divers other
places beyond sea, having revolted from the papacy, set up presbyteries
for the government of their several churches. And divers English
scholars, that went beyond sea during the persecution in the time of
Queen Mary, were much taken with this government, and at their return in
the time of Queen Elizabeth, and ever since, have endeavoured, to the
great trouble of the Church and nation, to set up that government here,
wherein they might domineer and applaud their own wit and learning. And
these took upon them not only a Divine right, but also a Divine
inspiration. And having been connived at, and countenanced sometimes in
their frequent preaching, they introduced many strange and many
pernicious doctrines, out-doing the Reformation, as they pretended, both
of Luther and Calvin; receding from the former divinity or church
philosophy (for religion is another thing), as much as Luther and Calvin
had receded from the pope; and distracted their auditors into a great
number of sects, as Brownists, Anabaptists, Independents,
Fifth-monarchy-men, Quakers, and divers others, all commonly called by
the name of fanatics: insomuch as there was no so dangerous an enemy to
the Presbyterians, as this brood of their own hatching.
These were Cromwell’s best cards, whereof he had a very great number in
the army, and some in the House, whereof he himself was thought one;
though he were nothing certain, but, applying himself always to the
faction that was strongest, was of a colour like it.
There were in the army a great number, if not the greatest part, that
aimed only at rapine and sharing the lands and goods of their enemies;
and these also, upon the opinion they had of Cromwell’s valour and
conduct, thought they could not any way better arrive at their ends than
by adhering to him. Lastly, in the Parliament itself, though not the
major part, yet a considerable number were fanatics enough to put in
doubts, and cause delay in the resolutions of the House, and sometimes
also by advantage of a thin House to carry a vote in favour of Cromwell,
as they did upon the 26th of July. For whereas on the 4th of May
precedent the Parliament had voted that the militia of London should be
in the hands of a committee of citizens, whereof the Lord Mayor for the
time being should be one; shortly after, the Independents, chancing to
be the majority, made an ordinance, by which it was put into hands more
favourable to the army.
The best cards the Parliament had, were the city of London and the
person of the King. The General, Sir Thomas Fairfax, was right
Presbyterian, but in the hands of the army, and the army in the hands of
Cromwell; but which party should prevail, depended on the playing of the
game. Cromwell protested still obedience and fidelity to the Parliament;
but meaning nothing less, bethought him and resolved on a way to excuse
himself of all that he should do to the contrary upon the army.
Therefore he and his son-in-law, Commissary-General Ireton (as good at
contriving as himself, and at speaking and writing better), contrive how
to mutiny the army against the Parliament. To this end they spread a
whisper through the army, that the Parliament, now they had the King,
intended to disband them, to cheat them of their arrears, and to send
them into Ireland to be destroyed by the Irish. The army being herewith
enraged, were taught by Ireton to erect a council amongst themselves of
two soldiers out of every troop and every company, to consult for the
good of the army, and to assist at the council of war, and to advise for
the peace and safety of the kingdom. These were called adjutators; so
that whatsoever Cromwell would have to be done, he needed nothing to
make them do it but secretly to put it into the head of these
adjutators. The effect of the first consultation was to take the King
from Holmeby and to bring him to the army.
The general hereupon, by letter to the Parliament, excuses himself and
Cromwell, and the body of the army, as ignorant of the fact; and that
the King came away willingly with those soldiers that brought him:
assuring them withal, that the whole army intended nothing but peace,
nor opposed Presbytery, nor affected Independency, nor did hold any
licentious freedom in religion.
_B._ It is strange that Sir Thomas Fairfax could be so abused by
Cromwell as to believe this which he himself here writes.
_A._ I cannot believe that Cornet Joyce could go out of the army with
1,000 soldiers to fetch the King, and neither the general nor the
lieutenant-general, nor the body of the army take notice of it. And that
the King went willingly, appears to be false by a message sent on
purpose from his Majesty to the Parliament.
_B._ Here is perfidy upon perfidy: first, the perfidy of the Parliament
against the King, and then the perfidy of the army against the
Parliament.
_A._ This was the first trick Cromwell played, whereby he thought
himself to have gotten so great an advantage that he said openly, “That
he had the Parliament in his pocket,” as indeed he had, and the city
too. For upon the news of it they were, both one and the other, in very
great disorder, and the more, because there came with it a rumour that
the army was marching up to London.
The King in the meantime, till his residence was settled at Hampton
Court, was carried from place to place, not without some ostentation;
but with much more liberty, and with more respect shewn him by far, than
when he was in the hands of the Parliament’s commissioners; for his own
chaplains were allowed him, and his children and some friends permitted
to see him. Besides that, he was much complimented by Cromwell, who
promised him, in a serious and seeming passionate manner, to restore him
to his right against the Parliament.
_B._ How was he sure he could do that?
_A._ He was not sure; but he was resolved to march up to the city and
Parliament, to set up the King again, and be the second man, unless in
the attempt he found better hope, than yet he had, to make himself the
first man by dispossessing the King.
_B._ What assistance against the Parliament and the city could Cromwell
expect from the King?
_A._ By declaring directly for him he might have had all the King’s
party, which were many more now since his misfortune than ever they were
before. For in the Parliament itself, there were many that had
discovered the hypocrisy and private aims of their fellows: many were
converted to their duty by their own natural reason; and their
compassion for the King’s sufferings had begot generally an indignation
against the Parliament: so that if they had been by the protection of
the present army brought together and embodied, Cromwell might have done
what he had pleased, in the first place for the King, and in the second
for himself. But it seems he meant first to try what he could do without
the King; and if that proved enough, to rid his hands of him.
_B._ What did the Parliament and city do to oppose the army?
_A._ First, the Parliament sent to the general to redeliver the King to
their commissioners. Instead of an answer to this, the army sent
articles to the Parliament, and with them a charge against eleven of
their members, all of them active Presbyterians: of which articles these
are some: 1. That the House may be purged of those, who, by the
self-denying ordinance, ought not to be there; 2. That such as abused
and endangered the kingdom, might be disabled to do the like hereafter;
3. That a day might be appointed to determine this Parliament; 4. That
they would make an account to the kingdom of the vast sums of money they
had received; 5. That the eleven members might presently be suspended
sitting in the House. These were the articles that put them to their
trumps; and they answered none of them, but that of the suspension of
the eleven members, which they said they could not do by law till the
particulars of the charge were produced: but this was soon answered with
their own proceeding against the Archbishop of Canterbury and the Earl
of Strafford.
The Parliament being thus somewhat awed, and the King made somewhat
confident, he undertakes the city, requiring the Parliament to put the
militia of London into other hands.
_B._ What other hands? I do not well understand you.
_A._ I told you that the militia of London was, on the 4th of May, put
into the hands of the lord-mayor and other citizens, and soon after put
into the hands of other men more favourable to the army. And now I am to
tell you, that on July the 26th, the violence of certain apprentices and
disbanded soldiers forced the Parliament to re-settle it as it was, in
the citizens; and hereupon the two speakers and divers of the members
ran away to the army, where they were invited and contented to sit and
vote in the council of war in nature of a Parliament. And out of the
citizens' hands they would have the militia taken away, and put again
into those hands out of which it was taken the 26th of July.
_B._ What said the city to this?
_A._ The Londoners manned their works, viz: the line of communication;
raised an army of valiant men within the line; chose good officers, all
being desirous to go out and fight whensoever the city should give them
order; and in that posture stood expecting the enemy.
The soldiers in the meantime enter into an engagement to live and die
with Sir Thomas Fairfax, and the Parliament, and the army.
_B._ That is very fine. They imitate that which the Parliament did, when
they first took up arms against the King, styling themselves the King
and Parliament, maintaining that the King was always virtually in his
Parliament: so the army now, making war against the Parliament, called
themselves the Parliament and the army: but they might, with more
reason, say, that the Parliament, since it was in Cromwell’s pocket, was
virtually in the army.
_A._ Withal they send out a declaration of the grounds of their march
towards London; wherein they take upon them to be judges of the
Parliament, and of who are fit to be trusted with the business of the
kingdom, giving them the name, not of the Parliament, but of the
gentlemen at Westminster. For since the violence they were under July
the 26th, the army denied them to be a lawful Parliament. At the same
time they sent a letter to the mayor and aldermen of London, reproaching
them with those late tumults; telling them they were enemies to the
peace, treacherous to the Parliament, unable to defend either the
Parliament or themselves; and demanded to have the city delivered into
their hands, to which purpose, they said, they were now coming to them.
The general also sent out his warrants to the counties adjacent,
summoning their trained soldiers to join with them.
_B._ Were the trained soldiers part of the general’s army?
_A._ No, nor at all in pay, nor could be without an order of Parliament.
But what might an army not do, after it had mastered all the laws of the
land? The army being come to Hounslow Heath, distant from London but ten
miles, the Court of Aldermen was called to consider what to do. The
captains and soldiers of the city were willing, and well provided, to go
forth and give them battle. But a treacherous officer, that had charge
of a work on Southwark side, had let in within the line a small party of
the enemies, who marched as far as to the gate of London-bridge; and
then the Court of Aldermen, their hearts failing them, submitted on
these conditions: to relinquish their militia; to desert the eleven
members; to deliver up the forts and line of communication, together
with the Tower of London, and all magazines and arms therein, to the
army; to disband their forces and turn out all the reformadoes, that is,
all Essex’s old soldiers; to draw off the guards from the Parliament.
All which was done, and the army marched triumphantly through the
principal streets of the city.
_B._ It is strange that the mayor and aldermen, having such an army,
should so quickly yield. Might they not have resisted the party of the
enemy at the bridge, with a party of their own; and the rest of the
enemies, with the rest of their own?
_A._ I cannot judge of that: but to me it would have been strange if
they had done otherwise. For I consider the most part of rich subjects,
that have made themselves so by craft and trade, as men that never look
upon anything but their present profit; and who, to every thing not
lying in that way, are in a manner blind, being amazed at the very
thought of plundering. If they had understood what virtue there is to
preserve their wealth in obedience to their lawful sovereign, they would
never have sided with the Parliament; and so we had had no need of
arming. The mayor and aldermen therefore, being assured by this
submission to save their goods, and not sure of the same by resisting,
seem to me to have taken the wisest course. Nor was the Parliament less
tame than the city. For presently, August the 6th, the general brought
the fugitive speakers and members to the House with a strong guard of
soldiers, and replaced the speakers in their chairs. And for this they
gave the general thanks, not only there in the House, but appointed also
a day for a holy thanksgiving; and not long after made him Generalissimo
of all the forces of England and Constable of the Tower. But in effect
all this was the advancement of Cromwell; for he was the usufructuary,
though the property were in Sir Thomas Fairfax. For the Independents
immediately cast down the whole line of communication; divided the
militia of London, Westminster and Southwark, which were before united;
displaced such governors of towns and forts as were not for their turn,
though placed there by ordinance of Parliament; instead of whom, they
put in men of their own party. They also made the Parliament to declare
null all that had passed in the Houses from July the 26th to August the
6th, and clapped in prison some of the lords, and some of the most
eminent citizens, whereof the lord mayor was one.
_B._ Cromwell had power enough now to restore the King. Why did he not?
_A._ His main end was to set himself in his place. The restoring of the
King was but a reserve against the Parliament, which being in his
pocket, he had no more need of the King, who was now an impediment to
him. To keep him in the army was a trouble; to let him fall into the
hands of the Presbyterians had been a stop to his hopes; to murder him
privately, besides the horror of the act, now whilst he was no more than
lieutenant-general, would have made him odious without furthering his
design. There was nothing better for his purpose than to let him escape
from Hampton Court, where he was too near the Parliament, whither he
pleased beyond the sea. For though Cromwell had a great party in the
Parliament House whilst they saw not his ambition to be their master,
yet they would have been his enemies as soon as that had appeared. To
make the King attempt an escape, some of those that had him in custody,
by Cromwell’s direction told him that the adjutators meant to murder
him; and withal caused a rumour of the same to be generally spread, to
the end it might that way also come to the King’s ear, as it did.
The King, therefore, in a dark and rainy night, his guards being
retired, as it was thought, on purpose, left Hampton Court and went to
the sea-side about Southampton, where a vessel had been bespoken to
transport him but failed; so that the King was forced to trust himself
with Colonel Hammond, then governor of the Isle of Wight; expecting
perhaps some kindness from him, for Dr. Hammond’s sake, brother to the
colonel and his Majesty’s much favoured chaplain. But it proved
otherwise; for the colonel sent to his masters of the Parliament, to
receive their orders concerning him. This going into the Isle of Wight
was not likely to be any part of Cromwell’s design, who neither knew
whither nor which way he would go; nor had Hammond known any more than
other men, if the ship had come to the appointed place in due time.
_B._ If the King had escaped into France, might not the French have
assisted him with forces to recover his kingdom, and so frustrated the
designs both of Cromwell and all the King’s other enemies?
_A._ Yes, much; just as they assisted his son, our present most gracious
Sovereign, who two years before fled thither out of Cornwall.
_B._ It is methinks no great polity in neighbouring princes to favour,
so often as they do, one another’s rebels, especially when they rebel
against monarchy itself. They should rather, first, make a league
against rebellion, and afterwards, if there be no remedy, fight one
against another. Nor will that serve the turn amongst Christian
sovereigns, till preaching be better looked to, whereby the
interpretation of a verse in the Hebrew, Greek, or Latin Bible, is
oftentimes the cause of civil war and the deposing and assassinating of
God’s anointed. And yet, converse with those divinity-disputers as long
as you will, you will hardly find one in a hundred discreet enough to be
employed in any great affair either of war or peace. It is not the right
of the sovereign, though granted to him by every man’s express consent,
that can enable him to do his office; it is the obedience of the
subject, that must do that. For what good is it to promise allegiance,
and then by and by to cry out, as some ministers did in the pulpit, _To
your tents, O Israel!_? Common people know nothing of right or wrong by
their own meditation; they must therefore be taught the grounds of their
duty, and the reasons why calamities ever follow disobedience to their
lawful sovereigns. But to the contrary, our rebels were publicly taught
rebellion in the pulpits; and that there was no sin, but the doing of
what the preachers forbade, or the omission of what they advised. But
now the King was the Parliament’s prisoner, why did not the
Presbyterians advance their own interest by restoring him?
_A._ The Parliament, in which there were more Presbyterians yet than
Independents, might have gotten what they would of the King during his
life, if they had not by an unconscionable and sottish ambition
obstructed the way to their ends. They sent him four propositions, to be
signed and passed by him as Acts of Parliament; telling him, when these
were granted, they would send commissioners to treat with him of any
other articles.
The propositions were these: First, that the Parliament should have the
militia, and the power of levying money to maintain it, for twenty
years; and after that term, the exercise thereof to return to the King,
in case the Parliament think the safety of the kingdom concerned in it.
_B._ The first article takes from the King the militia, and consequently
the whole sovereignty for ever.
_A._ The second was, that the King should justify the proceedings of the
Parliament against himself; and declare void all oaths and declarations
made by him against the Parliament.
_B._ This was to make him guilty of the war, and of all the blood spilt
therein.
_A._ The third was, to take away all titles of honour conferred by the
King since the Great Seal was carried to him in May 1642.
The fourth was, that the Parliament should adjourn themselves, when, and
to what place, and for what time they pleased.
These propositions the King refused to grant, as he had reason; but sent
others of his own, not much less advantageous to the Parliament, and
desired a personal treaty with the Parliament for the settling of the
peace of the kingdom. But the Parliament denying them to be sufficient
for that purpose, voted that there should be no more addresses made to
him, nor messages received from him; but that they would settle the
kingdom without him. And this they voted partly upon the speeches and
menaces of the army-faction then present in the House of Commons,
whereof one advised these three points: 1. To secure the King in some
inland castle with guards; 2. To draw up articles of impeachment against
him; 3. To lay him by, and settle the kingdom without him.
Another said, that his denying of the four bills was the denying
protection to his subjects; and that therefore they might deny him
subjection; and added, that till the Parliament forsook the army, the
army would never forsake the Parliament. This was threatening.
Last of all, Cromwell himself told them, it was now expected that the
Parliament should govern and defend the kingdom, and not any longer let
the people expect their safety from a man whose heart God had hardened;
nor let those, that had so well defended the Parliament, be left
hereafter to the rage of an irreconcilable enemy, lest they seek their
safety some other way. This again was threatening; as also the laying
his hand upon his sword when he spake it.
And hereupon the vote of non-addresses was made an ordinance; which the
House would afterwards have recalled, but was forced by Cromwell to keep
their word.
The Scotch were displeased with it; partly, because their brethren the
Presbyterians had lost a great deal of their power in England; and
partly also, because they had sold the King into their hands.
The King now published a passionate complaint to his people of this hard
dealing with him; which made them pity him, but not yet rise in his
behalf.
_B._ Was not this, think you, the true time for Cromwell to take
possession?
_A._ By no means. There were yet many obstacles to be removed. He was
not general of the army. The army was still for a Parliament. The city
of London discontented about their militia. The Scots expected with an
army to rescue the King. His adjutators were levellers, and against
monarchy, who though they had helped him to bring under the Parliament,
yet, like dogs that are easily taught to fetch, and not easily taught to
render, would not make him king. So that Cromwell had these businesses
following to overcome, before he could formally make himself a sovereign
prince: 1. To be Generalissimo: 2. To remove the King: 3. To suppress
all insurrections here: 4. To oppose the Scots: and lastly, to dissolve
the present Parliament. Mighty businesses, which he could never promise
himself to overcome. Therefore I cannot believe he then thought to be
King; but only by well serving the strongest party, which was always his
main polity, to proceed as far as that and fortune would carry him.
_B._ The Parliament were certainly no less foolish than wicked, in
deserting thus the King, before they had the army at a better command
than they had.
_A._ In the beginning of 1648 the Parliament gave commission to Philip
Earl of Pembroke, then made Chancellor of Oxford, together with some of
the doctors there as good divines as he, to purge the University. By
virtue whereof they turned out all such as were not of their faction,
and all such as had approved the use of the Common-prayer-book; as also
divers scandalous ministers and scholars, that is, such as customarily
and without need took the name of God into their mouths, or used to
speak wantonly, or use the company of lewd women: and for this last I
cannot but commend them.
_B._ So shall not I; for it is just such another piece of piety, as to
turn men out of an hospital because they are lame. Where can a man
probably learn godliness, and how to correct his vices, better than in
the universities erected for that purpose?
_A._ It may be, the Parliament thought otherwise. For I have often heard
the complaints of parents, that their children were debauched there to
drunkenness, wantonness, gaming, and other vices consequent to these.
Nor is it a wonder amongst so many youths, if they did corrupt one
another in despite of their tutors, who oftentimes were little elder
than themselves. And therefore I think the Parliament did not much
reverence that institution of universities, as to the bringing up of
young men to virtue; though many of them learned there to preach, and
became thereby capable of preferment and maintenance; and some others
were sent thither by their parents, to save themselves the trouble of
governing them at home, during that time wherein children are least
governable. Nor do I think the Parliament cared more for the clergy than
other men did. But certainly an university is an excellent servant to
the clergy; and the clergy, if it be not carefully looked to, by their
dissensions in doctrines and by the advantage to publish their
dissensions, is an excellent means to divide a kingdom into factions.
_B._ But seeing there is no place in this part of the world, where
philosophy and other human sciences are not highly valued; where can
they be learned better than in the Universities?
_A._ What other sciences? Do not divines comprehend all civil and moral
philosophy within their divinity? And as for natural philosophy, is it
not removed from Oxford and Cambridge to Gresham College in London, and
to be learned out of their gazettes? But we are gone from our subject.
_B._ No; we are indeed gone from the greater businesses of the kingdom;
to which, if you please, let us return.
_A._ The first insurrection, or rather tumult, was that of the
apprentices, on the 9th of April. But this was not upon the King’s
account, but arose from a customary assembly of them for recreation in
Moorfields, whence some zealous officers of the trained soldiers would
needs drive them away by force; but were themselves routed with stones;
and had their ensign taken away by the apprentices, which they carried
about in the streets, and frighted the lord mayor into his house; where
they took a gun called a drake; and then they set guards at some of the
gates, and all the rest of the day childishly swaggered up and down: but
the next day the general himself marching into the city, quickly
dispersed them. This was but a small business, but enough to let them
see that the Parliament was ill-beloved of the people.
Next, the Welch took arms against them. There were three colonels in
Wales, Langhorne, Poyer, and Powel, who had formerly done the Parliament
good service, but now were commanded to disband; which they refused to
do; and the better to strengthen themselves, declared for the King; and
were about 8,000.
About the same time, in Wales also, was another insurrection, headed by
Sir Nicholas Keymish, and another under Sir John Owen; so that now all
Wales was in rebellion against the Parliament: and yet all these were
overcome in a month’s time by Cromwell and his officers; but not without
store of bloodshed on both sides.
_B._ I do not much pity the loss of those men, that impute to the King
that which they do upon their own quarrel.
_A._ Presently after this, some of the people of Surrey sent a petition
to the Parliament for a personal treaty between the King and Parliament;
but their messengers were beaten home again by the soldiers that were
quartered about Westminster and the mews. And then the Kentish men
having a like petition to deliver, and seeing how ill it was like to be
received, threw it away and took up arms. They had many gallant
officers, and for general the Earl of Norwich; and increased daily by
apprentices and old disbanded soldiers. Insomuch as the Parliament was
glad to restore to the city their militia, and to keep guards on the
Thames side: and then Fairfax marched towards the enemy.
_B._ And then the Londoners, I think, might easily and suddenly have
mastered, first the Parliament, and next Fairfax his 8,000, and lastly
Cromwell’s army; or at least have given the Scotch army opportunity to
march unfoughten to London.
_A._ It is true: but the city was never good at venturing; nor were they
or the Scots principled to have a King over them, but under them.
Fairfax marching with his 8,000 against the royalists, routed a part of
them at Maidstone; another part were taking in other places in Kent
further off; and the Earl of Norwich with the rest came to Blackheath,
and thence sent to the city to get passage through it, to join with
those which were risen in Essex under Sir Charles Lucas and Sir George
Lisle; which being denied, the greatest part of his Kentish men deserted
him. With the rest, not above 500, he crossed the Thames into the Isle
of Dogs, and so to Bow, and thence to Colchester. Fairfax having notice
of this, crossed the Thames at Gravesend; and overtaking them, besieged
them in Colchester. The town had no defence but a breastwork, and yet
held out, upon hope of the Scotch army to relieve them, the space of two
months. Upon the news of the defeat of the Scots they were forced to
yield. The Earl of Norwich was sent prisoner to London. Sir Charles
Lucas and Sir George Lisle, two loyal and gallant persons, were shot to
death. There was also another little insurrection, headed by the Earl of
Holland, about Kingston; but quickly suppressed, and he himself taken
prisoner.
_B._ How came the Scots to be so soon dispatched?
_A._ Merely, as it is said, for want of conduct. Their army was led by
Duke Hamilton, who was then set at liberty, when Pendennis Castle, where
he was prisoner, was taken by the Parliamentarians. He entered England
with horse and foot 15,000, to which came above 3,000 English royalists.
Against these Cromwell marched out of Wales with horse and foot 11,000,
and near to Preston in Lancashire, in less than two hours, defeated
them. And the cause of it is said to be, that the Scotch army was so
ordered as they could not all come to the fight, nor relieve their
fellows. After the defeat, they had no way to fly but further into
England; so that in the pursuit they were almost all taken, and lost all
that an army can lose; for the few that got home, did not all bring home
their swords. Duke Hamilton was taken, and not long after sent to
London. But Cromwell marched on to Edinburgh, and there, by the help of
the faction which was contrary to Hamilton’s, he made sure not to be
hindered in his designs; the first whereof was to take away the King’s
life by the hand of the Parliament.
Whilst these things passed in the north, the Parliament, Cromwell being
away, came to itself, and recalling their vote of non-addresses, sent to
the King new propositions, somewhat, but not much, easier than formerly.
And upon the King’s answer to them, they sent commissioners to treat
with him at Newport in the Isle of Wight; where they so long dodged with
him about trifles, that Cromwell was come to London before they had
done, to the King’s destruction. For the army was now wholly at the
devotion of Cromwell, who set the adjutators on work again to make a
remonstrance to the House of Commons, wherein they require: 1. That the
King be brought to justice: 2. That the Prince and the Duke of York be
summoned to appear at a day appointed, and proceeded with, according as
they should give satisfaction: 3. That the Parliament settle the peace
and future government, and set a reasonable period to their own sitting,
and make certain future Parliaments annual or biennial: 4. That a
competent number of the King’s chief instruments be executed. And this
to be done both by the House of Commons and by a general agreement of
the people testified by their subscriptions. Nor did they stay for an
answer, but presently set a guard of soldiers at the Parliament-house
door, and other soldiers in Westminster Hall, suffering none to go into
the House but such as would serve their turns. All others were frighted
away, or made prisoners, and some upon divers quarrels suspended; above
ninety of them, because they had refused to vote against the Scots; and
others, because they had voted against the vote of non-addresses: and
the rest were a House for Cromwell. The fanatics also in the city being
countenanced by the army, pack a new common-council, whereof any forty
was to be above the mayor; and their first work was to frame a petition
for justice against the King, which Tichborne, the mayor, involving the
city in the regicide, delivered to the Parliament.
At the same time, with the like violence, they took the King from
Newport in the Isle of Wight, to Hurst Castle, till things were ready
for his trial. The Parliament in the meantime, to avoid perjury, by an
ordinance declared void the oaths of supremacy and allegiance, and
presently after made another to bring the King to his trial.
_B._ This is a piece of law that I understood not before, that when many
swear singly, they may, when they are assembled, if they please, absolve
themselves.
_A._ The ordinance being drawn up was brought into the House, where
after three several readings it was voted, “that the Lords and Commons
of England, assembled in Parliament, do declare, that by the fundamental
laws of the realm, it is treason in the King of England to levy war
against the Parliament.” And this vote was sent up to the Lords; and
they denying their consent, the Commons in anger made another vote;
“That all members of committees should proceed and act in any ordinance,
whether the Lords concurred or no; and that the people, under God, are
the original of all just power; and that the House of Commons have the
supreme power of the nation; and that whatsoever the House of Commons
enacteth, is law.” All this passed _nemine contradicente_.
_B._ These propositions fight not only against the King of England, but
against all the kings of the world. It were good they thought on it. But
yet, I believe, under God the original of all laws was in the people.
_A._ But the people, for them and their heirs, by consent and oaths,
have long ago put the supreme power of the nation into the hands of
their kings, for them and their heirs; and consequently into the hands
of this King, their known and lawful heir.
_B._ But does not the Parliament represent the people?
_A._ Yes, to some purposes; as to put up petitions to the King, when
they have leave, and are grieved; but not to make a grievance of the
King’s power. Besides, the Parliament never represents the people but
when the King calls them; nor is it to be imagined that he calls a
Parliament to depose himself. Put the case, every county and borough
should have given this Parliament for a benevolence a sum of money; and
that every county, meeting in their county-court or elsewhere, and every
borough in their town-hall, should have chosen men to carry their
several sums respectively to the Parliament. Had not these men
represented the whole nation?
_B._ Yes, no doubt.
_A._ Do you think the Parliament would have thought it reasonable to be
called to account by this representative?
_B._ No, sure; and yet I must confess the case is the same.
_A._ This ordinance contained, first, a summary of the charge against
the King, in substance this; that not content with the encroachments of
his predecessors upon the freedom of the people, he had designed to set
up a tyrannical government; and to that end, had raised and maintained
in the land a civil war against the Parliament, whereby the country hath
been miserably wasted, the public treasure exhausted, thousands of
people murdered, and infinite other mischiefs committed. Secondly, a
constitution passed of a high court of justice, that is, of a certain
number of commissioners, of whom any twenty had power to try the King,
and to proceed to sentence according to the merit of the cause, and see
it speedily executed.
The commissioners met on Saturday, January 20th, in Westminster Hall,
and the King was brought before them; where, sitting in a chair, he
heard the charge read, but denied to plead to it either guilty or not
guilty, till he should know by what lawful authority he was brought
thither. The president told him that the Parliament affirmed their own
authority; and the King still persevered in his refusal to plead. Though
many words passed between him and the president, yet this was the
substance of it all.
On Monday January 22nd the court met again, and the solicitor moved that
if the King persisted in denying the authority of the court, the charge
might be taken _pro confesso_: but the King still denied their
authority.
They met again January the 23rd, and then the solicitor moved the court
for judgment; whereupon the King was required to give his final answer;
which was again a denial of their authority.
Lastly, they met again January the 27th, where the King desired to be
heard before the Lords and Commons in the Painted Chamber, and promising
after that to abide the judgment of the court. The commissioners retired
for half an hour to consider of it, and then returning caused the King
to be brought again to the bar, and told him that what he proposed was
but another denial of the court’s jurisdiction; and that if he had no
more to say, they would proceed. Then the King answering that he had no
more to say, the president began a long speech in justification of the
Parliament’s proceedings, producing the examples of many kings killed or
deposed by wicked Parliaments, ancient and modern, in England, Scotland,
and other parts of the world. All which he endeavoured to justify from
this only principle; that the people have the supreme power, and the
Parliament is the people. This speech ended, the sentence of death was
read; and the same upon Tuesday after, January 30th, executed at the
gate of his own palace of Whitehall. He that can delight in reading how
villainously he was used by the soldiers between the sentence and
execution, may go to the chronicle itself; in which he shall see what
courage, patience, wisdom, and goodness was in this prince, whom in
their charge the members of that wicked Parliament styled tyrant,
traitor, and murderer.
The King being dead, the same day they made an act of Parliament, that
whereas several pretences might be made to the crown, &c. it is enacted
by this present Parliament and by authority of the same, that no person
presume to declare, proclaim, or publish, or any way promote Charles
Stuart, son of Charles late King of England, commonly called Prince of
Wales, or any other person, to be King of England or Ireland, &c.
_B._ Seeing the King was dead, and his successor barred; by what
declared authority was the peace maintained?
_A._ They had, in their anger against the Lords, formerly declared the
supreme power of the nation to be in the House of Commons; and now, on
February the 5th, they vote the House of Lords to be useless and
dangerous. And thus the kingdom is turned into a democracy, or rather an
oligarchy: for presently they made an act, that none of those members,
who were secluded for opposing the vote of non-addresses, should ever be
re-admitted. And these were commonly called the secluded members; and
the rest were by some styled a Parliament, and by others the Rump.
I think you need not now have a catalogue, either of the vices, or of
the crimes, or of the follies of the greatest part of them that composed
the Long Parliament; than which greater cannot be in the world. What
greater vices than irreligion, hypocrisy, avarice and cruelty; which
have appeared so eminently in the actions of Presbyterian members, and
Presbyterian ministers? What greater crimes than blaspheming and killing
God’s anointed; which was done by the hands of the Independents; but by
the folly and first treason of the Presbyterians who betrayed and sold
him to his murderers? Nor was it a little folly in the Lords, not to see
that by the taking away of the King’s power they lost withal their own
privileges; or to think themselves, either for number or judgment, any
way a considerable assistance to the House of Commons. And for those men
who had skill in the laws, it was no great sign of understanding not to
perceive that the laws of the land were made by the King, to oblige his
subjects to peace and justice, and not to oblige himself that made them.
And lastly and generally, all men are fools which pull down anything
which does them good, before they have set up something better in its
place. He that would set up democracy with an army, should have an army
to maintain it; but these men did it, when those men had the army that
were resolved to pull it down. To these follies I might add the folly of
those fine men, which out of their reading of Tully, Seneca, or other
anti-monarchics, think themselves sufficient politicians, and show their
discontents when they are not called to the management of the state, and
turn from one side to another upon every neglect they fancy from the
King or his enemies.
PART IV.
==========
_A._ You have seen the Rump in possession, as they believed, of the
supreme power over the two nations of England and Ireland, and the army
their servant; though Cromwell thought otherwise, serving them
diligently for the advancement of his own purposes. I am now therefore
to show you their proceedings.
_B._ Tell me first, how this kind of government under the Rump or relic
of a House of Commons is to be called?
_A._ It is doubtless an oligarchy. For the supreme authority must needs
be in one man or in more. If in one, it is monarchy; the Rump therefore
was no monarchy. If the authority were in more than one, it was in all,
or in fewer than all. When in all, it is democracy; for every man may
enter into the assembly which makes the Sovereign Court; which they
could not do here. It is therefore manifest, that the authority was in a
few, and consequently the state was an oligarchy.
_B._ Is it not impossible for a people to be well governed, that are to
obey more masters than one?
_A._ Both the Rump and all other sovereign assemblies, if they have but
one voice, though they be many men, yet are they but one person. For
contrary commands cannot consist in one and the same voice, which is the
voice of the greatest part; and therefore they might govern well enough,
if they had honesty and wit enough.
The first act of the Rump was the exclusion of those members of the
House of Commons, which had been formerly kept out by violence for the
procuring of an ordinance for the King’s trial; for these men had
appeared against the ordinance of non-addresses, and therefore were
excluded, because they might else be an impediment to their future
designs.
_B._ Was it not rather, because in the authority of few they thought the
fewer the better, both in respect of their shares and also of a nearer
approach in every one of them to the dignity of king?
_A._ Yes certainly, that was their principal end.
_B._ When these were put out, why did not the counties and boroughs
choose others in their places?
_A._ They could not do that without order from the House.
After this they constituted a council of forty persons, which they
termed a Council of State, whose office was to execute what the Rump
should command.
_B._ When there was neither King nor House of Lords, they could not call
themselves a Parliament; for a Parliament is a meeting of the King,
Lords, and Commons, to confer together about the businesses of the
commonwealth. With whom did the Rump confer?
_A._ Men may give to their assembly what name they please, what
signification soever such name might formerly have had; and the Rump
took the name of Parliament, as most suitable to their purpose, and such
a name, as being venerable amongst the people for many hundred years,
had countenanced and sweetened subsidies and other levies of money,
otherwise very unpleasant to the subject. They took also afterwards
another name, which was _Custodes Libertatis Angliæ_, which title they
used only in their writs issuing out of the courts of justice.
_B._ I do not see how a subject that is tied to the laws, can have more
liberty in one form of government than another.
_A._ Howsoever to the people, that understand by liberty nothing but
leave to do what they list, it was a title not ingrateful.
Their next work was to set forth a public declaration, that they were
fully resolved to maintain the fundamental laws of the nation, as to the
preservation of the lives, liberties, and proprieties of the people.
_B._ What did they mean by the fundamental laws of the nation?
_A._ Nothing but to abuse the people. For the only fundamental law in
every commonwealth, is to obey the laws from time to time, which he
shall make to whom the people have given the supreme power. How likely
then are they to uphold the fundamental laws, that had murdered him who
was by themselves so often acknowledged for their lawful sovereign?
Besides, at the same time that this declaration came forth, they were
erecting that High Court of Justice which took away the lives of Duke
Hamilton, the Earl of Holland, and the Lord Capel. Whatsoever they meant
by a fundamental law, the erecting of this court was a breach of it, as
being warranted by no former law or example in England.
At the same time also they levied taxes by soldiers, and to soldiers
permitted free quarter, and did many other actions, which if the King
had done, they would have said had been done against the liberty and
propriety of the subject.
_B._ What silly things are the common sort of people, to be cozened as
they were so grossly!
_A._ What sort of people, as to this matter, are not of the common sort?
The craftiest knaves of all the Rump were no wiser than the rest whom
they cozened. For the most of them did believe that the same things
which they imposed upon the generality, were just and reasonable; and
especially the great haranguers, and such as pretended to learning. For
who can be a good subject in a monarchy, whose principles are taken from
the enemies of monarchy, such as were Cicero, Seneca, Cato, and other
politicians of Rome, and Aristotle of Athens, who seldom spake of kings
but as of wolves and other ravenous beasts? You may perhaps think a man
has need of nothing else to know the duty he owes to his governor, and
what right he has to order him, but a good natural wit; but it is
otherwise. For it is a science, and built upon sure and clear
principles, and to be learned by deep and careful study, or from masters
that have deeply studied it. And who was there in the Parliament or in
the nation, that could find out those evident principles, and derive
from them the necessary rules of justice, and the necessary connexion of
justice and peace? The people have one day in seven the leisure to hear
instruction, and there are ministers appointed to teach them their duty.
But how have those ministers performed their office? A great part of
them, namely, the Presbyterian ministers, throughout the whole war,
instigated the people against the King; so did also Independents and
other fanatic ministers. The rest, contented with their livings,
preached in their parishes points of controversy, to religion
impertinent, but to the breach of charity among themselves very
effectual; or else eloquent things, which the people either understood
not, or thought themselves not concerned in. But this sort of preachers,
as they did little good, so they did little hurt. The mischief proceeded
wholly from the Presbyterian preachers, who, by a long practised,
histrionic faculty, preached up the rebellion powerfully.
_B._ To what end?
_A._ To the end that the State becoming popular, the Church might be so
too, and governed by an Assembly; and by consequence, as they thought,
seeing politics are subservient to religion, they might govern, and
thereby satisfy not only their covetous humour with riches, but also
their malice with power to undo all men that admired not their wisdom.
Your calling the people silly things, obliged me by this digression to
show you, that it is not want of wit, but want of the science of
justice, that brought them into these troubles. Persuade, if you can,
that man that has made his fortune, or made it greater, or an eloquent
orator, or a ravishing poet, or a subtle lawyer, or but a good hunter or
a cunning gamester, that he has not a good wit; and yet there were of
all these a great many so silly, as to be deceived by the Rump and
members of the same Rump. They wanted not wit, but the knowledge of the
causes and grounds upon which one person has a right to govern, and the
rest an obligation to obey; which grounds are necessary to be taught the
people, who without them cannot live long in peace amongst themselves.
_B._ Let us return, if you please, to the proceedings of the Rump.
_A._ In the rest of this year they voted a new stamp for the coin of
this nation. They considered also of agents to be sent to foreign
states; and having lately received applause from the army for their work
done by the High Court of Justice, and encouragement to extend the same
further, they perfected the said High Court of Justice, in which were
tried Duke Hamilton, the Earl of Holland, Lord Capel, the Earl of
Norwich, and Sir John Owen; whereof, as I mentioned before, the three
first were beheaded. This affrighted divers of the King’s party out of
the land; for not only they, but all that had borne arms for the King,
were at that time in very great danger of their lives. For it was put to
the question by the army at a council of war, whether they should be all
massacred or no; where the noes carried it but by two voices. Lastly,
March the 24th, they put the Mayor of London out of his office, fined
him 2,000_l._, disfranchised him, and condemned him to two months
imprisonment in the Tower, for refusing to proclaim the act for
abolishing the kingly power. And thus ended the year 1648 and the
monthly fast; God having granted that which they fasted for, the death
of the King and the possession of his inheritance. By these their
proceedings they had already lost the hearts of the generality of the
people, and had nothing to trust to but the army; which was not in their
power, but in Cromwell’s; who never failed, when there was occasion, to
put them upon all exploits that might make them odious to the people, in
order to his future dissolving them whensoever it should conduce to his
ends.
In the beginning of 1649 the Scots, discontented with the proceedings of
the Rump against the late King, began to levy soldiers in order to a new
invasion of England. The Irish rebels, for want of timely resistance
from England, were grown terrible; and the English army at home,
infected by the adjutators, were casting how to share the land amongst
the godly, meaning themselves and such others as they pleased, who were
therefore called Levellers. Also the Rump for the present were not very
well provided of money, and, therefore, the first thing they did, was
the laying of a tax upon the people of 90,000_l._ a month for the
maintenance of the army.
_B._ Was it not one of their quarrels with the King, that he had levied
money without the consent of the people in Parliament?
_A._ You may see by this, what reason the Rump had to call itself a
Parliament. For the taxes imposed by Parliament were always understood
to be by the people’s consent, and consequently legal. To appease the
Scots, they sent messengers with flattering letters to keep them from
engaging for the present King: but in vain: for they would hear nothing
from a House of Commons, as they called it, at Westminster, without a
King and Lords. But they sent commissioners to the King, to let him know
what they were doing for him: for they were resolved to raise an army of
17,000 foot and 6,000 horse for themselves.
To relieve Ireland, the Rump had resolved to send eleven regiments
thither out of the army in England. This happened well for Cromwell. For
the levelling soldiers, which were in every regiment many, and in some
the major part, finding that instead of dividing the land at home they
were to venture their lives in Ireland, flatly denied to go; and one
regiment, having cashiered their colonel about Salisbury, was marching
to join with three regiments more of the same resolution; but both the
general and Cromwell falling upon them at Burford, utterly defeated
them, and soon after reduced the whole army to their obedience. And thus
another of the impediments to Cromwell’s advancement was soon removed.
This done, they came to Oxford, and thence to London: and at Oxford,
both the general and Cromwell were made doctors of the civil law; and at
London, feasted and presented by the city.
_B._ Were they not first made masters, and then doctors?
_A._ They had made themselves already masters, both of the laws and
Parliament. The army being now obedient, the Rump sent over those eleven
regiments into Ireland, under the command of Dr. Cromwell, intituled
governor of that kingdom, the Lord Fairfax being still general of all
the forces, both here and there.
The Marquis, now Duke, of Ormond was the King’s lieutenant of Ireland;
and the rebels had made a confederacy amongst themselves; and these
confederates had made a kind of league with the lieutenant, wherein they
agreed, upon liberty given them in the exercise of their religion, to be
faithful to and assist the King. To these also were joined some forces
raised by the Earls of Castlehaven and Clanricarde and my Lord
Inchiquin; so that they were the greatest united strength in the island.
But there were amongst them a great many other Papists, that would by no
means subject themselves to Protestants; and these were called the
Nuntio’s party, as the others were called the confederate party. These
parties not agreeing, and the confederate party having broken their
articles, the lord-lieutenant seeing them ready to besiege him in
Dublin, and not able to defend it, did, to preserve the place for the
Protestants, surrender it to the Parliament of England; and came over to
the King at that time when he was carried from place to place by the
army. From England he went over to the Prince, now King, residing then
at Paris.
But the confederates, affrighted with the news that the Rump was sending
over an army thither, desired the Prince by letters, to send back my
Lord of Ormond, engaging themselves to submit absolutely to the King’s
authority, and to obey my Lord of Ormond as his lieutenant. And hereupon
he was sent back. This was about a year before the going over of
Cromwell.
In which time, by the dissensions in Ireland between the confederate
party and the Nuntio’s party, and discontents about command, this
otherwise sufficient power effected nothing; and was at last defeated,
August the 2nd, by a sally out of Dublin, which they were besieging.
Within a few days after arrived Cromwell, who with extraordinary
diligence and horrid executions, in less than a twelvemonth that he
stayed there, subdued in a manner the whole nation; having killed or
exterminated a great part of them, and leaving his son-in-law Ireton to
subdue the rest. But Ireton died there before the business was quite
done, of the plague. This was one step more towards Cromwell’s
exaltation to the throne.
_B._ What a miserable condition was Ireland reduced to by the learning
of the Roman, as well as England was by the learning of the Presbyterian
clergy.
_A._ In the latter end of the preceding year the King was come from
Paris to the Hague; and shortly after came thither from the Rump their
agent Dorislaus, doctor of civil law, who had been employed in the
drawing up of the charge against the late King. But the first night he
came, as he was at supper, a company of cavaliers, near a dozen, entered
his chamber, killed him, and got away. Not long after also their agent
at Madrid, one Ascham, one that had written in defence of his masters,
was killed in the same manner. About this time came out two books, one
written by Salmasius, a Presbyterian, against the murder of the King;
another written by Milton, an English Independent, in answer to it.
_B._ I have seen them both. They are very good Latin both, and hardly to
be judged which is better; and both very ill reasoning, hardly to be
judged which is worse; like two declamations, _pro_ and _con_, made for
exercise only in a rhetoric school by one and the same man. So like is a
Presbyterian to an Independent.
_A._ In this year the Rump did not much at home; save that in the
beginning they made England a free state by an act which runs thus: “Be
it enacted and declared by this present Parliament, and by the authority
thereof, that the people of England, and all the dominions and
territories thereunto belonging, are, and shall be, and are hereby
constituted, made, and declared a commonwealth and free state, &c.”
_B._ What did they mean by a free state and commonwealth? Were the
people no longer to be subject to laws? They could not mean that: for
the Parliament meant to govern them by their own laws, and punish such
as broke them. Did they mean that England should not be subject to any
foreign kingdom or commonwealth? That needed not be enacted, seeing
there was no king nor people pretended to be their masters. What did
they mean then?
_A._ They meant that neither this king, nor any king, nor any single
person, but only that they themselves would be the people’s masters, and
would have set it down in those plain words, if the people could have
been cozened with words intelligible, as easily as with words not
intelligible.
After this they gave one another money and estates out of the lands and
goods of the loyal party. They enacted also an engagement to be taken by
every man, in these words: _You shall promise to be true and faithful to
the commonwealth of England, as it is now established, without King or
House of Lords._
They banished also from within twenty miles of London all the royal
party, forbidding also every one of them to depart more than five miles
from his dwelling-house.
_B._ They meant perhaps to have them ready, if need were, for a
massacre. But what did the Scots in this time?
_A._ They were considering of the officers of the army which they were
levying for the King, how they might exclude from command all such as
had loyally served his father, and all Independents, and all such as
commanded in Duke Hamilton’s army; and these were the main things that
passed this year.
The Marquis of Montrose, that in the year 1645 had with a few men and in
little time done things almost incredible against the late King’s
enemies in Scotland, landed now again, in the beginning of the year
1650, in the north of Scotland, with commission from the present King,
hoping to do him as good service as he had formerly done his father. But
the case was altered; for the Scotch forces were then in England in the
service of the Parliament; whereas now they were in Scotland, and many
more for their intended invasion newly raised. Besides, the soldiers
which the Marquis brought over were few, and foreigners; nor did the
Highlanders come in to him, as he expected; insomuch as he was soon
defeated, and shortly after taken, and, with more spiteful usage than
revenge required, executed by the Covenanters of Edinburgh, May the 2nd.
_B._ What good could the King expect from joining with these men, who
during the treaty discovered so much malice to him in one of his best
servants?
_A._ No doubt, their churchmen being then prevalent, they would have
done as much to this King as the English Parliament had done to his
father, if they could have gotten by it that which they foolishly
aspired to, the government of the nation. I do not believe that the
Independents were worse than the Presbyterians: both the one and the
other were resolved to destroy whatsoever should stand in the way to
their ambition. But necessity made the King pass over both this and many
other indignities from them, rather than suffer the pursuit of his right
in England to cool, and be little better than extinguished.
_B._ Indeed I believe a kingdom, if suffered to become an old debt, will
hardly ever be recovered. Besides, the King was sure, wheresoever the
victory lighted, he could lose nothing in the war but enemies.
_A._ About the time of Montrose’s death, which was in May, Cromwell was
yet in Ireland, and his work unfinished. But finding, or by his friends
advertised, that his presence in the expedition now preparing against
the Scots would be necessary to his design, he sent to the Rump to know
their pleasure concerning his return. But for all that, he knew, or
thought it was not necessary to stay for their answer, but came away,
and arrived at London the 6th of June following, and was welcomed by the
Rump. Now General Fairfax, who was truly what he pretended to be, a
Presbyterian, had been so catechised by the Presbyterian ministers here,
that he refused to fight against the brethren in Scotland; nor did the
Rump nor Cromwell go about to rectify his conscience in that point. And
thus Fairfax laying down his commission, Cromwell was now made general
of all the forces in England and Ireland; which was another step to the
sovereign power.
_B._ Where was the King?
_A._ In Scotland, newly come over. He landed in the north, and was
honourably conducted to Edinburgh, though all things were not yet well
agreed on between the Scots and him. For though he had yielded to as
hard conditions as the late King had yielded to in the Isle of Wight,
yet they had still somewhat to add, till the King, enduring no more,
departed from them towards the north again. But they sent messengers
after him to pray him to return, but they furnished these messengers
with strength enough to bring him back, if he should have refused. In
fine they agreed; but would not suffer either the King, or any royalist,
to have command in the army.
_B._ The sum of all is, the King was there a prisoner.
_A._ Cromwell from Berwick sends a declaration to the Scots, telling
them he had no quarrel against the people of Scotland, but against the
malignant party that had brought in the King, to the disturbance of the
peace between the two nations; and that he was willing, either by
conference to give and receive satisfaction, or to decide the justice of
the cause by battle. To which the Scots answering, declare, that they
will not prosecute the King’s interest before and without his
acknowledgment of the sins of his house and his former ways, and
satisfaction given to God’s people in both kingdoms. Judge by this
whether the present King were not in as bad a condition here, as his
father was in the hands of the Presbyterians of England.
_B._ Presbyterians are everywhere the same: they would fain be absolute
governors of all they converse with; and have nothing to plead for it,
but that where they reign, it is God that reigns, and nowhere else. But
I observe one strange demand, that the King should acknowledge the sins
of his house; for I thought it had been certainly held by all divines,
that no man was bound to acknowledge any man’s sins but his own.
_A._ The King having yielded to all that the Church required, the Scots
proceeded in their intended war. Cromwell marched on to Edinburgh,
provoking them all he could to battle; which they declining, and
provisions growing scarce in the English army, Cromwell retired to
Dunbar, despairing of success; and intending by sea or land to get back
into England. And such was the condition which this general Cromwell, so
much magnified for conduct, had brought his army to, that all his
glories had ended in shame and punishment, if fortune and the faults of
his enemies had not relieved him. For as he retired, the Scots followed
him close all the way till within a mile of Dunbar. There is a ridge of
hills, that from beyond Edinburgh goes winding to the sea, and crosses
the highway between Dunbar and Berwick, at a village called
Copperspeith, where the passage is so difficult, that had the Scots sent
timely thither a very few men to guard it, the English could never have
gotten home. For the Scots kept the hills, and needed not have fought
but upon great advantage, and were almost two to one. Cromwell’s army
was at the foot of those hills, on the north side; and there was a great
ditch or channel of a torrent between the hills and it; so that he could
never have got home by land, nor without utter ruin of the army
attempted to ship it; nor have stayed where he was, for want of
provisions. Now Cromwell knowing the pass was free, and commanding a
good party of horse and foot to possess it, it was necessary for the
Scots to let them go, whom they bragged they had impounded, or else to
fight; and therefore with the best of their horse they charged the
English, and made them at first shrink a little. But the English foot
coming on, the Scots were put to flight; and the flight of the horse
hindered the foot from engaging; who therefore fled, as did also the
rest of their horse. Thus the folly of the Scottish commanders brought
all their odds to an even lay between two small and equal parties;
wherein fortune gave the victory to the English, who were not many more
in number than those that were killed and taken prisoners of the Scots;
and the Church lost their cannon, bag and baggage, with 10,000 arms, and
almost their whole army. The rest were got together by Lesley to
Stirling.
_B._ This victory happened well for the King. For had the Scots been
victors, the Presbyterians, both here and there, would have domineered
again, and the King been in the same condition his father was in at
Newcastle, in the hands of the Scottish army. For in pursuit of this
victory, the English at last brought the Scots to a pretty good habit of
obedience for the King, whensoever he should recover his right.
_A._ In pursuit of this victory the English marched to Edinburgh
(quitted by the Scots), fortified Leith, and took in all the strength
and castles they thought fit on this side the Frith, which now was
become the bound betwixt the two nations. And the Scotch ecclesiastics
began to know themselves better; and resolved in their new army, which
they meant to raise, to admit some of the royalists into command.
Cromwell from Edinburgh marched towards Stirling, to provoke the enemy
to fight, but finding danger in it returned to Edinburgh and besieged
the castle. In the meantime he sent a party into the west of Scotland to
suppress Strachan and Kerr, two great Presbyterians that were there
levying forces for their new army. And in the same time the Scots
crowned the King at Scone.
The rest of this year was spent in Scotland, on Cromwell’s part, in
taking of Edinburgh Castle and in attempts to pass the Frith, or any
other ways to get over to the Scottish forces; and on the Scots' part,
in hastening their levies for the north.
_B._ What did the Rump at home during this time?
_A._ They voted liberty of conscience to the sectaries; that is, they
plucked out the sting of Presbytery, which consisted in a severe
imposing of odd opinions upon the people, impertinent to religion, but
conducing to the advancement of the power of the Presbyterian ministers.
Also they levied more soldiers, and gave the command of them to
Harrison, now made major-general, a Fifth-monarchy-man; and of these
soldiers two regiments of horse and one of foot were raised by the
Fifth-monarchy-men and other sectaries, in thankfulness for this their
liberty from the Presbyterian tyranny. Also they pulled down the late
King’s statue in the Exchange, and in the niche where it stood, caused
to be written these words: _Exit tyrannus, Regum ultimus, etc._
_B._ What good did that do them, and why did they not pull down the
statues of all the rest of the Kings?
_A._ What account can be given of actions that proceed not from reason,
but spite and such-like passions? Besides this, they received
ambassadors from Portugal and from Spain, acknowledging their power. And
in the very end of the year they prepared ambassadors to the Netherlands
to offer them friendship. All they did besides, was persecuting and
executing of royalists.
In the beginning of the year 1651 General Dean arrived in Scotland; and
on the 11th of April the Scottish Parliament assembled, and made certain
acts in order to a better uniting of themselves, and better obedience to
the King, who was now at Stirling with the Scottish forces he had,
expecting more now in levying. Cromwell from Edinburgh went divers times
towards Stirling to provoke the Scots to fight. There was no ford there
to pass over his men; at last boats being come from London and
Newcastle, Colonel Overton (though it was long first, for it was now
July) transported 1,400 foot of his own, besides another regiment of
foot and four troops of horse, and entrenched himself at Northferry on
the other side; and before any help could come from Stirling,
Major-General Lambert also was got over with as many more. By this time
Sir John Browne was come to oppose them with 4,500 men, whom the English
there defeated, killing about 2,000 and taking prisoners 1,600. This
done, and as much more of the army transported as was thought fit,
Cromwell comes before St. Johnstone’s (from whence the Scottish
Parliament, upon the news of his passing the Frith, was removed to
Dundee) and summons it; and the same day had news brought him that the
King was marching from Stirling towards England; which was true. But
notwithstanding the King was three days' march before him, he resolved
to have the town before he followed him; and accordingly had it the next
day by surrender.
_B._ What hopes had the King in coming into England, having before and
behind him none, at least none armed, but his enemies?
_A._ Yes; there was before him the city of London, which generally hated
the Rump, and might easily be reckoned for 20,000 well-armed soldiers;
and most men believed they would take his part, had he come near the
city.
_B._ What probability was there of that? Do you think the Rump was not
sure of the services of the mayor and those that had command of the city
militia? And if they had been really the King’s friends, what need had
they to stay for his coming up to London? They might have seized the
Rump, if they had pleased, which had no possibility of defending
themselves; at least they might have turned them out of the House.
_A._ This they did not; but on the contrary, permitted the recruiting of
Cromwell’s army, and the raising of men to keep the country from coming
in to the King. The King began his march from Stirling the last of July,
and August the 22nd came to Worcester by way of Carlisle with a weary
army of about 13,000, whom Cromwell followed, and joining with the new
levies environed Worcester with 40,000, and on the 3rd of September
utterly defeated the King’s army. Here Duke Hamilton, brother of him
that was beheaded, was slain.
_B._ What became of the King?
_A._ Night coming on, before the city was quite taken he left it; it
being dark and none of the enemy’s horse within the town to follow him,
the plundering foot having kept the gates shut, lest the horse should
enter and have a share of the booty. The King before morning got into
Warwickshire, twenty-five miles from Worcester, and there lay disguised
awhile, and afterwards went up and down in great danger of being
discovered, till at last he got over into France, from Brighthelmstone
in Sussex.
_B._ When Cromwell was gone, what was further done in Scotland?
_A._ Lieutenant-General Monk, whom Cromwell left there with 7,000, took
Stirling August 14th by surrender, and Dundee the 3rd of September, by
storm, because it resisted. This the soldiers plundered, and had good
booty, because the Scots for safety had sent thither their most precious
goods from Edinburgh and St. Johnstone’s. He took likewise by surrender
Aberdeen, and the place where the Scottish ministers first learned to
play the fool, St. Andrew’s. Also in the Highlands, Colonel Alured took
a knot of lords and gentlemen, viz. four earls and four lords and above
twenty knights and gentlemen, whom he sent prisoners into England. So
that there was nothing more to be feared from Scotland: all the trouble
of the Rump being to resolve what they should do with it. At last they
resolved to unite and incorporate it into one commonwealth with England
and Ireland. And to that end sent thither St. John, Vane, and other
commissioners, to offer them this union by public declaration, and to
warn them to choose their deputies of shires and burgesses of towns, and
send them to Westminster.
_B._ This was a very great favour.
_A._ I think so: and yet it was by many of the Scots, especially by the
ministers and other Presbyterians, refused. The ministers had given way
to the levying of money for the payment of the English soldiers; but to
comply with the declaration of the English commissioners they absolutely
forbad.
_B._ Methinks this contributing to the pay of their conquerors was some
mark of servitude; whereas entering into the union made them free, and
gave them equal privilege with the English.
_A._ The cause why they refused the union, rendered by the Presbyterians
themselves, was this: that it drew with it a subordination of the Church
to the civil state in the things of Christ.
_B._ This is a downright declaration to all kings and commonwealths in
general, that a Presbyterian minister will be a true subject to none of
them in the things of Christ; which things what they are, they will be
judges themselves. What have we then gotten by our deliverance from the
Pope’s tyranny, if these petty men succeed in the place of it, that have
nothing in them that can be beneficial to the public, except their
silence? For their learning, it amounts to no more than an imperfect
knowledge of Greek and Latin, and an acquired readiness in the Scripture
language, with a gesture and tone suitable thereunto; but of justice and
charity, the manners of religion, they have neither knowledge nor
practice, as is manifest by the stories I have already told you. Nor do
they distinguish between the godly and the ungodly but by conformity of
design in men of judgment, or by repetition of their sermons in the
common sort of people.
_A._ But this sullenness of the Scots was to no purpose. For they at
Westminster enacted the union of the two nations and the abolition of
monarchy in Scotland, and ordained punishment for those that should
transgress that act.
_B._ What other business did the Rump this year?
_A._ They sent St. John and Strickland ambassadors to the Hague, to
offer league to the United Provinces; who had audience March the 3rd;
St. John in a speech showing those states what advantage they might have
by this league in their trade and navigations, by the use of the English
ports and harbours. The Dutch, though they showed no great forwardness
in the business, yet appointed commissioners to treat with them about
it. But the people were generally against it, calling the ambassadors
and their followers, as they were, traitors and murderers, and made such
tumults about their house that their followers durst not go abroad till
the States had quieted them. The Rump advertised hereof, presently
recalled them. The compliment which St. John gave to the commissioners
at their taking leave, is worth your hearing. _You have_, said he, _an
eye upon the event of the affairs of Scotland, and therefore do refuse
the friendship we have offered. Now I can assure you, many in the
Parliament were of opinion that we should not have sent any ambassadors
to you till we had separated those matters between them and that king,
and then expected your ambassadors to us. I now perceive our error, and
that those gentlemen were in the right. In a short time you shall see
that business ended; and then you will come and seek what we have freely
offered, when it shall perplex you that you have refused our proffer._
_B._ St. John was not sure that the Scottish business would end as it
did. For though the Scots were beaten at Dunbar, he could not be sure of
the event of their entering England, which happened afterward.
_A._ But he guessed well: for within a month after the battle at
Worcester, an act passed forbidding the importing of merchandize in
other than English ships. The English also molested their fishing upon
our coast. They also many times searched their ships (upon occasion of
our war with France), and made some of them prize. And then the Dutch
sent their ambassadors hither to desire what they before refused; but
partly also to inform themselves what naval forces the English had
ready, and how the people here were contented with the government.
_B._ How sped they?
_A._ The Rump showed now as little desire of agreement as the Dutch did
then; standing upon terms never likely to be granted. First, for the
fishing on the English coast, that they should not have it without
paying for it. Secondly, that the English should have free trade from
Middleburgh to Antwerp, as they had before their rebellion against the
King of Spain. Thirdly, they demanded amends for the old, but never to
be forgotten business of Amboyna. So that the war was already certain,
though the season kept them from action till the spring following. The
true quarrel, on the English part, was that their proffered friendship
was scorned, and their ambassadors affronted; on the Dutch part, was
their greediness to engross all traffic, and a false estimate of our and
their own strength.
Whilst these things were doing, the relics of the war, both in Ireland
and Scotland, were not neglected, though those nations were not fully
pacified till two years after. The persecution also of royalists still
continued, amongst whom was beheaded one Mr. Love, for holding
correspondence with the King.
_B._ I had thought a Presbyterian minister, whilst he was such, could
not be a royalist, because they think their assembly have the supreme
power in the things of Christ; and by consequence they are in England,
by a statute, traitors.
_A._ You may think so still: for though I called Mr. Love a royalist, I
meant it only for that one act for which he was condemned. It was he who
during the treaty at Uxbridge, preaching before the commissioners there,
said, it was as possible for heaven and hell, as for the King and
Parliament, to agree. Both he and the rest of the Presbyterians are and
were enemies to the King’s enemies, Cromwell and his fanatics, for their
own and not for the King’s sake. Their loyalty was like that of Sir John
Hotham’s, that kept the King out of Hull, and afterwards would have
betrayed the same to the Marquis of Newcastle. These Presbyterians
therefore cannot be rightly called loyal, but rather doubly perfidious,
unless you think that as two negatives make an affirmative, so two
treasons make loyalty.
This year also were reduced to the obedience of the Rump the islands of
Scilly and Man, and the Barbadoes, and St. Christopher’s. One thing fell
out that they liked not, which was, that Cromwell gave them warning to
determine their sitting, according to the bill for triennial
Parliaments.
_B._ That I think indeed was harsh.
_A._ In the year 1652, May the 14th, began the Dutch war, in this
manner. Three Dutch men-of-war, with divers merchants from the
straights, being discovered by one Captain Young, who commanded some
English frigates, the said Young sent to their admiral to bid him strike
his flag, a thing usually done in acknowledgment of the English dominion
in the narrow seas; which accordingly he did. Then came up the
vice-admiral, and being called to as the other was, to take down his
flag, he answered plainly he would not: but after the exchange of four
or five broadsides and mischief done on either part, he took it down.
But Captain Young demanded also, either the vice-admiral himself or his
ship to make good the damage already sustained; to which the
vice-admiral answered that he had taken in his flag, but would defend
himself and his ship. Whereupon Captain Young consulting with the
captains of his other ships, lest the beginning of the war in this time
of treaty should be charged upon himself, and night also coming on,
thought fit to proceed no further.
_B._ The war certainly began at this time. But who began it?
_A._ The dominion of the seas belonging to the English, there can be no
question but the Dutch began it: and that the said dominion belonged to
the English, it was confessed at first by the admiral himself peaceably,
and at last by the vice-admiral taking in their flags.
About a fortnight after there happened another fight upon the like
occasion. Van Tromp, with forty-two men-of-war, came to the back of
Goodwin Sands, Major Bourne being then with a few of the Parliament
ships in the Downs, and Blake with the rest further westward; and sent
two captains of his to Bourne, to excuse his coming thither. To whom
Bourne returned this answer, that the message was civil, but that it
might appear real he ought to depart. So Van Tromp departed, meaning,
now Bourne was satisfied, to sail towards Blake, and he did so; but so
did also Bourne, for fear of the worst. When Van Tromp and Blake were
near one another, Blake made a shot over Van Tromp’s ship, as a warning
to him to take in his flag. This he did thrice, and then Van Tromp gave
him a broadside; and so began the fight, (at the beginning whereof
Bourne came in), and lasted from two o’clock till night, the English
having the better, and the flag, as before, making the quarrel.
_B._ What needs there, when both nations were heartily resolved to
fight, to stand so much upon this compliment of who should begin? For as
to the gaining of friends and confederates thereby, I think it was in
vain; seeing princes and states in such occasions look not much upon the
justice of their neighbours, but upon their own concernment in the
event.
_A._ It is commonly so; but in this case, the Dutch knowing the dominion
of the narrow seas to be a gallant title, and envied by all the nations
that reach the shore, and consequently that they were likely to oppose
it, did wisely enough in making this point the state of the quarrel.
After this fight the Dutch ambassadors residing in England sent a paper
to the council of state, wherein they styled this last encounter a rash
action, and affirmed it was done without the knowledge and against the
will of their lords the States-general, and desired them that nothing
might be done upon it in heat, which might become irreparable. The
Parliament hereupon voted: 1. That the States-general should pay the
charges they were at, and for the damages they sustained upon this
occasion. 2. That this being paid, there should be a cessation of all
acts of hostility, and a mutual restitution of all ships and goods
taken. 3. And both these agreed to, that there should be made a league
between the two commonwealths. These votes were sent to the Dutch
ambassadors in answer of the said paper; but with a preamble setting
forth the former kindnesses of England to the Netherlands, and taking
notice of their new fleet of 150 men-of-war, without any other apparent
design than the destruction of the English fleet.
_B._ What answer made the Dutch to this?
_A._ None. Van Tromp sailed presently to Zealand, and Blake with seventy
men-of-war to the Orkney Islands to seize their busses, and to wait for
five Dutch ships from the East Indies. And Sir George Askew, newly
returned from the Barbadoes, came into the Downs with fifteen
men-of-war, where he was commanded to stay for a recruit out of the
Thames.
Van Tromp being recruited now to 120 sail, made account to get in
between Sir George Askew and the mouth of the river, but was hindered so
long by contrary winds, that the merchants calling for his convoy he
could stay no longer; and so he went back into Holland, and thence to
Orkney, where he met with the said five East India ships and sent them
home. And then he endeavoured to engage with Blake, but a sudden storm
forced him to sea, and so dissipated his fleet that only forty-two came
home in a body, the rest singly as well as they could. Blake also came
home (but went first to the coast of Holland) with 900 prisoners and six
men-of-war taken, which were part of twelve which he found and took
guarding their busses. This was the first bout after the war declared.
In August following there happened a fight between De Ruyter, the
admiral of Zealand, with fifty men-of-war, and Sir George Askew, near
Plymouth, with forty, wherein Sir George had the better, and might have
got an entire victory had the whole fleet engaged. Whatsoever was the
matter, the Rump, though they rewarded him, never more employed him
after his return in their service at sea: but voted for the year to come
three generals, Blake that was one already, and Dean, and Monk.
About this time the Archduke Leopold besieging Dunkirk, and the French
sending a fleet to relieve it, General Blake lighting on the French at
Calais, and taking seven of their ships, was cause of the town’s
surrender.
In September they fought again, De Witt and De Ruyter commanding the
Dutch, and Blake the English; and the Dutch were again worsted.
Again, in the end of November, Van Tromp with eighty men-of-war shewed
himself at the back of Goodwin Sands; where Blake, though he had with
him but forty, adventured to fight with him, and had much the worst, and
night parting the fray, retired into the river Thames; whilst Van Tromp
keeping the sea, took some inconsiderable vessels from the English, and
thereupon, as it was said, with a childish vanity hung out a broom from
the main-top-mast, signifying he meant to sweep the seas of all English
shipping.
After this, in February, the Dutch with Van Tromp were encountered by
the English under Blake and Dean near Portsmouth, and had the worst. And
these were all the encounters between them in this year in the narrow
seas. They fought also once at Leghorn, where the Dutch had the better.
_B._ I see no great odds yet on either side; if there were any, the
English had it.
_A._ Nor did either of them the more incline to peace. For the
Hollanders, after they had sent ambassadors into Denmark, Sweden,
Poland, and the Hanse Towns whence tar and cordage are usually had, to
signify the declaration of the war, and to get them to their party,
recalled their ambassadors from England. And the Rump without delay,
gave them their parting audience, without abating a syllable of their
former severe propositions; and presently, to maintain the war for the
next year, laid a tax upon the people of 120,000_l._ _per mensem_.
_B._ What was done in the mean time at home?
_A._ Cromwell was now quarrelling with the last and greatest obstacle to
his design, the Rump. And to that end there came out daily from the army
petitions, addresses, remonstrances, and other such papers; some of them
urging the Rump to dissolve themselves and make way for another
Parliament. To which the Rump, unwilling to yield and not daring to
refuse, determined for the end of their sitting the 5th of November
1654. But Cromwell meant not to stay so long.
In the meantime the army in Ireland was taking submissions, and granting
transportations of the Irish, and condemning whom they pleased in a High
Court of Justice erected there for that purpose. Amongst those that were
executed, was hanged Sir Phelim O’Neale, who first began the rebellion.
In Scotland the English built some citadels for the bridling of that
stubborn nation. And thus ended the year 1652.
_B._ Come we then to the year 1653.
_A._ Cromwell wanted now but one step to the end of his ambition, and
that was to set his foot upon the neck of this Long Parliament; which he
did April the 23rd of this present year 1653, a time very seasonable.
For though the Dutch were not mastered yet, they were much weakened; and
what with prizes from the enemy and squeezing the royal party, the
treasury was pretty full, and the tax of 120,000_l._ a month began to
come in; all which was his own in right of the army.
Therefore, without more ado, attended by the Major-Generals Lambert and
Harrison, and some other officers, and as many soldiers as he thought
fit, he went to the Parliament House, and dissolved them, turning them
out, and locked up the doors. And for this action he was more applauded
by the people than for any of his victories in the war, and the
Parliament men as much scorned and derided.
_B._ Now that there was no Parliament, who had the supreme power?
_A._ If by power you mean the right to govern, nobody had it. If you
mean the supreme strength, it was clearly in Cromwell, who was obeyed as
general of all the forces in England, Scotland, and Ireland.
_B._ Did he pretend that for title?
_A._ No: but presently after he invented a title, which was this; that
he was necessitated for the defence of the cause, for which at first the
Parliament had taken up arms, that is to say, rebelled, to have recourse
to extraordinary actions. You know the pretence of the Long Parliament’s
rebellion was _salus populi_, the safety of the nation against a
dangerous conspiracy of Papists and a malignant party at home; and that
every man is bound, as far as his power extends, to procure the safety
of the whole nation, which none but the army were able to do, and the
Parliament had hitherto neglected. Was it not then the general’s duty to
do it? Had he not therefore right? For that law of _salus populi_ is
directed only to those that have power enough to defend the people; that
is, to them that have the supreme power.
_B._ Yes, certainly, he had as good a title as the Long Parliament. But
the Long Parliament did represent the people; and it seems to me that
the sovereign power is essentially annexed to the representative of the
people.
_A._ Yes, if he that makes a representative, that is in the present case
the King, do call them together to receive the sovereign power, and he
divest himself thereof; otherwise not. Nor was ever the Lower House of
Parliament the representative of the whole nation, but of the commons
only; nor had that House the power to oblige by their acts or
ordinances, any lord or any priest.
_B._ Did Cromwell come in upon the only title of _salus populi_?
_A._ This is a title that very few men understand. His way was to get
the supreme power conferred upon him by Parliament. Therefore he called
a Parliament, and gave it the supreme power, to the end that they should
give it to him again. Was not this witty? First, therefore, he published
a declaration of the causes why he dissolved the Parliament. The sum
whereof was, that instead of endeavouring to promote the good of God’s
people, they endeavoured, by a bill then ready to pass, to recruit the
House and perpetuate their own power. Next he constituted a council of
state of his own creatures, to be the supreme authority of England; but
no longer than till the next Parliament should be called and met.
Thirdly, he summoned 142 persons, such as he himself or his trusty
officers made choice of; the greatest part of whom were instructed what
to do; obscure persons, and most of them fanatics, though styled by
Cromwell men of approved fidelity and honesty. To these the council of
state surrendered the supreme authority, and not long after these men
surrendered it to Cromwell. July the 4th this Parliament met, and chose
for their Speaker one Mr. Rous, and called themselves from that time
forward the Parliament of England. But Cromwell, for the more surety,
constituted also a council of state; not of such petty fellows as most
of these were, but of himself and his principal officers. These did all
the business, both public and private; making ordinances, and giving
audiences to foreign ambassadors. But he had now more enemies than
before. Harrison, who was the head of the Fifth-monarchy-men, laying
down his commission, did nothing but animate his party against him; for
which afterwards he was imprisoned. This little Parliament in the
meantime were making of acts so ridiculous and displeasing to the
people, that it was thought he chose them on purpose to bring all ruling
Parliaments into contempt, and monarchy again into credit.
_B._ What acts were these?
_A._ One of them was, that all marriages should be made by a justice of
peace, and the banns asked three several days in the next market: none
were forbidden to be married by a minister, but without a justice of
peace the marriage was to be void: so that divers wary couples, to be
sure of one another, howsoever they might repent it afterwards, were
married both ways. Also they abrogated the engagement, whereby no man
was admitted to sue in any court of law that had not taken it, that is,
that had not acknowledged the late Rump.
_B._ Neither of these did any hurt to Cromwell.
_A._ They were also in hand with an act to cancel all the present laws
and law-books, and to make a new code more suitable to the humour of the
Fifth-monarchy-men; of whom there were many in this Parliament. Their
tenet being, that there ought none to be sovereign but King Jesus, nor
any to govern under him but the saints. But their authority ended before
this act passed.
_B._ What is this to Cromwell?
_A._ Nothing yet. But they were likewise upon an act, now almost ready
for the question, that Parliaments henceforward, one upon the end of
another, should be perpetual.
_B._ I understand not this; unless Parliaments can beget one another
like animals, or like the phœnix.
_A._ Why not like the phœnix? Cannot a Parliament at the day of their
expiration send out writs for a new one?
_B._ Do you think they would not rather summon themselves anew; and to
save the labour of coming again to Westminster, sit still where they
were? Or if they summon the country to make new elections, and then
dissolve themselves, by what authority shall the people meet in their
county courts, there being no supreme authority standing?
_A._ All they did was absurd, though they knew not that; no nor this,
whose design was upon the sovereignty, the contriver of this act, it
seems, perceived not; but Cromwell’s party in the House saw it well
enough. And therefore, as soon as it was laid, there stood up one of the
members and made a motion, that since the commonwealth was like to
receive little benefit by their sitting, they should dissolve
themselves. Harrison and they of his sect were troubled hereat, and made
speeches against it; but Cromwell’s party, of whom the speaker was one,
left the House, and with the mace before them went to Whitehall, and
surrendered their power to Cromwell that had given it to them. And so he
got the sovereignty by an act of Parliament; and within four days after,
December the 16th, was installed Protector of the three nations, and
took his oath to observe certain rules of governing, engrossed in
parchment and read before him. The writing was called _the instrument_.
_B._ What were the rules he swore to?
_A._ One was, to call a Parliament every third year, of which the first
was to begin September the 3rd following.
_B._ I believe he was a little superstitious in the choice of September
the 3rd, because it was lucky to him in 1650 and 1651, at Dunbar and
Worcester; but he knew not how lucky the same would be to the whole
nation in 1658 at Whitehall.
_A._ Another was, that no Parliament should be dissolved till it had
sitten five months; and those bills that they presented to him, should
be passed by him within twenty days, or else they should pass without
him.
A third, that he should have a council of state of not above twenty-one,
nor under thirteen; and that upon the Protector’s death this council
should meet, and before they parted choose a new Protector. There were
many more besides, but not necessary to be inserted.
_B._ How went on the war against the Dutch?
_A._ The generals for the English were Blake, and Dean, and Monk; and
Van Tromp for the Dutch; between whom was a battle fought the 2nd of
June, which was a month before the beginning of this little Parliament;
wherein the English had the victory, and drove the enemies into their
harbours, but with the loss of General Dean, slain by a cannon-shot.
This victory was great enough to make the Dutch send over ambassadors
into England, in order to a treaty; but in the meantime they prepared
and put to sea another fleet, which likewise, in the end of July, was
defeated by General Monk, who got now a greater victory than before; and
this made the Dutch descend so far as to buy their peace with the
payment of the charge of the war, and with the acknowledgment, amongst
other articles, that the English had the right of the flag.
This peace was concluded in March, being the end of this year, but not
proclaimed till April; the money, it seems, being not paid till then.
The Dutch war being now ended, the Protector sent his youngest son Henry
into Ireland, whom also some time after he made lieutenant there; and
sent Monk lieutenant-general into Scotland, to keep those nations in
obedience. Nothing else worth remembering was done this year at home;
saving the discovery of a plot of royalists, as was said, upon the life
of the Protector, who all this while had intelligence of the King’s
designs from a traitor in his court, who afterwards was taken in the
manner and killed.
_B._ How came he into so much trust with the King?
_A._ He was the son of a colonel that was slain in the wars on the late
King’s side. Besides, he pretended employment from the King’s loyal and
loving subjects here, to convey to his Majesty money as they from time
to time should send him; and to make this credible, Cromwell himself
caused money to be sent to him.
The following year, 1654, had nothing of war, but was spent in civil
ordinances, in appointing of judges, preventing of plots (for usurpers
are jealous), and in executing the King’s friends and selling their
lands. The 3rd of September, according to the instrument, the Parliament
met; in which there was no House of Lords, and the House of Commons was
made, as formerly, of knights and burgesses; but not as formerly, of two
burgesses for a borough and two knights for a county; for boroughs for
the most part had but one burgess, and some counties six or seven
knights. Besides, there were twenty members for Scotland, and as many
for Ireland. So that now Cromwell had nothing else to do but to show his
art of government upon six coach-horses newly presented to him, which,
being as rebellious as himself, threw him out of the coach-box and
almost killed him.
_B._ This Parliament, which had seen how Cromwell had handled the two
former, the long one and the short one, had surely learned the wit to
behave themselves better to him than those had done?
_A._ Yes, especially now that Cromwell in his speech at their first
meeting had expressly forbidden them to meddle either with the
government by a single person and Parliament, or with the militia, or
with perpetuating of Parliaments, or taking away liberty of conscience;
and told them also that every member of the House, before they sat, must
take a recognition of his power in divers points. Whereupon, of above
400 there appeared not above 200 at first; though afterwards some
relenting, there sat about 300. Again, just at their sitting down he
published some ordinances of his own, bearing date before their meeting;
that they might see he took his own acts to be as valid as theirs. But
all this could not make them know themselves. They proceeded to debate
of every article of the recognition.
_B._ They should have debated that before they had taken it.
_A._ But then they had never been suffered to sit. Cromwell being
informed of their stubborn proceedings, and out of hope of any supply
from them, dissolved them.
All that passed besides in this year, was the exercise of the High Court
of Justice upon some royalists for plots.
In the year 1655 the English, to the number of near 10,000, landed in
Hispaniola, in hope of the plunder of the gold and silver, whereof they
thought there was great abundance in the town of Santo Domingo; but were
well beaten by a few Spaniards, and with the loss of near 1,000 men,
went off to Jamaica and possessed it.
This year also the royal party made another attempt in the west; and
proclaimed there King Charles the Second; but few joining with them, and
some falling off, they were soon suppressed, and many of the principal
persons executed.
_B._ In these many insurrections, the royalists, though they meant well,
yet they did but disservice to the King by their impatience. What hope
had they to prevail against so great an army as the Protector had ready?
What cause was there to despair of seeing the King’s business done
better by the dissension and ambition of the great commanders in that
army, whereof many had the favour to be as well esteemed amongst them as
Cromwell himself?
_A._ That was somewhat uncertain. The Protector, being frustrated of his
hope of money at Santo Domingo, resolved to take from the royalists the
tenth part yearly of their estates. And to this end chiefly, he divided
England into eleven major-generalships, with commission to every
major-general to make a roll of the names of all suspected persons of
the King’s party, and to receive the tenth part of their estates within
his precinct; as also to take caution from them not to act against the
state, and to reveal all plots that should come to their knowledge; and
to make them engage the like for their servants. They had commission
also to forbid horse-races and concourse of people, and to receive and
account for this decimation.
_B._ By this the usurper might easily inform himself of the value of all
the estates in England, and of the behaviour and affection of every
person of quality; which has heretofore been taken for very great
tyranny.
_A._ The year 1656 was a Parliament-year by the instrument. Between the
beginning of this year and the day of the Parliament’s sitting, which
was September 17, these major-generals, resided in several provinces,
behaving themselves most tyrannically. Amongst other of their tyrannies
was the awing of elections, and making themselves and whom they pleased
to be returned members for the Parliament; which was also thought a part
of Cromwell’s design in their constitution: for he had need of a giving
Parliament, having lately, upon a peace made with the French, drawn upon
himself a war with Spain.
This year it was that Captain Stainer set upon the Spanish Plate-fleet,
being eight in number, near Cadiz; whereof he sunk two, and took two,
there being in one of them two millions of pieces of eight, which
amounts to 400,000_l._ sterling.
This year also it was that James Naylor appeared at Bristol, and would
be taken for Jesus Christ. He wore his beard forked, and his hair
composed to the likeness of that in the _Volto Santo_; and being
questioned, would sometimes answer _Thou sayest it_. He had also his
disciples, that would go by his horse’s side to the mid-leg in dirt.
Being sent for by the Parliament, he was sentenced to stand on the
pillory, to have his tongue bored through, and to be marked on the
forehead with the letter B, for blasphemy, and to remain in Bridewell.
Lambert, a great favourite of the army, endeavoured to save him, partly
because he had been his soldier, and partly to curry favour with the
sectaries of the army; for he was now no more in the Protector’s favour,
but meditating how he might succeed him in his power.
About two years before this, there appeared in Cornwall a prophetess,
much famed for her dreams and visions, and hearkened to by many, whereof
some were eminent officers. But she and some of her accomplices being
imprisoned, we heard no more of her.
_B._ I have heard of another, one Lilly, that prophecied all the time of
the Long Parliament. What did they to him?
_A._ His prophecies were of another kind; he was a writer of almanacs,
and a pretender to a pretended art of judicial astrology; a meer cozener
to get maintenance from a multitude of ignorant people; and no doubt had
been called in question, if his prophecies had been any way
disadvantageous to that Parliament.
_B._ I understand not how the dreams and prognostications of madmen (for
such I take to be all those that foretell future contingencies) can be
of any great disadvantage to the commonwealth.
_A._ Yes, yes: know, there is nothing that renders human counsels
difficult, but the uncertainty of future time; nor that so well directs
men in their deliberations, as the foresight of the sequels of their
actions; prophecy being many times the principal cause of the event
foretold. If, upon some prediction, the people should have been made
confident that Oliver Cromwell and his army should be, upon a day to
come, utterly defeated; would not every one have endeavoured to assist,
and to deserve well of the party that should give him that defeat? Upon
this account it was that fortune-tellers and astrologers were so often
banished out of Rome.
The last memorable thing this year, was a motion made by a member of the
House, an alderman of London, that the Protector might be petitioned and
advised by the House to leave the title of Protector, and take upon him
that of King.
_B._ That was indeed a bold motion, and which would, if prosperous, have
put an end to many men’s ambition, and to the licentiousness of the
whole army. I think the motion was made on purpose to ruin both the
Protector himself and his ambitious officers.
_A._ It may be so. In the year 1657 the first thing the Parliament did,
was the drawing up of this petition to the Protector, to take upon him
the government of the three nations, with the title of King. As of other
Parliaments, so of this, the greatest part had been either kept out of
the House by force, or else themselves had forborne to sit and become
guilty of setting up this King Oliver. But those few that sat, presented
their petition to the Protector, April the 9th, in the Banquetinghouse
at Whitehall; where Sir Thomas Widdrington, the Speaker, used the first
arguments, and the Protector desired some time to seek God, the business
being weighty. The next day they sent a committee to him to receive his
answer; which answer being not very clear, they pressed him again for a
resolution; to which he made answer in a long speech, that ended in a
peremptory refusal. And so retaining still the title of Protector, he
took upon him the government according to certain articles contained in
the said petition.
_B._ What made him refuse the title of King?
_A._ Because he durst not take it at that time; the army being addicted
to their great officers, and amongst their great officers many hoping to
succeed him, and, the succession having been promised to Major-General
Lambert, would have mutinied against him. He was therefore forced to
stay for a more propitious conjuncture.
_B._ What were those articles?
_A._ The most important of them were: 1. That he would exercise the
office of chief-magistrate of England, Scotland, and Ireland, under the
title of Protector, and govern the same according to the said petition
and advice: and that he would in his life-time name his successor.
_B._ I believe the Scots, when they first rebelled, never thought of
being governed absolutely, as they were by Oliver Cromwell.
_A._ 2. That he should call a Parliament every three years at farthest.
3. That those persons which were legally chosen members, should not be
secluded without consent of the House. In allowing this clause, the
Protector observed not that the secluded members of this same
Parliament, are thereby re-admitted. 4. The members were qualified. 5.
The power of the other House was defined. 6. That no law should be made
but by act of Parliament. 7. That a constant yearly revenue of a million
of pounds should be settled for the maintenance of the army and navy;
and 300,000_l._ for the support of the government, besides other
temporary supplies as the House of Commons should think fit. 8. That all
the officers of state should be chosen by the Parliament. 9. That the
Protector should encourage the ministry. Lastly, that he should cause a
profession of religion to be agreed on and published. There are divers
others of less importance. Having signed the articles, he was presently
with great ceremony installed anew.
_B._ What needed that, seeing he was still but Protector?
_A._ But the articles of this petition were not all the same with those
of his former instrument. For now there was to be another House; and
whereas before, his council was to name his successor, he had power now
to do it himself; so that he was an absolute monarch, and might leave
the succession to his son if he would, and so successively, or transfer
it to whom he pleased.
The ceremony being ended, the Parliament adjourned to the 20th of
January following; and then the other House also sat with their fellows.
The House of Commons being now full, took little notice of the other
House, wherein there were not of sixty persons above nine lords; but
fell a questioning all that their fellows had done, during the time of
their seclusion; whence had followed the avoidance of the power newly
placed in the Protector. Therefore, going to the House, he made a speech
to them, ending in these words; _By the living God, I must, and do
dissolve you_.
In this year, the English gave the Spaniard another great blow at Santa
Cruz, not much less than they had given him the year before at Cadiz.
About the time of the dissolution of this Parliament, the royalists had
another design against the Protector; which was, to make an insurrection
in England, the King being in Flanders ready to second them with an army
thence. But this also was discovered by treachery, and came to nothing
but the ruin of those that were engaged in it; whereof many in the
beginning of the next year were by a High Court of Justice imprisoned,
and some executed.
This year also was Major-General Lambert put out of all employment, a
man second to none but Oliver in the favour of the army. But because he
expected by that favour, or by promise from the Protector, to be his
successor in the supreme power, it would have been dangerous to let him
have command in the army; the Protector having designed for his
successor his eldest son Richard.
In the year 1658, September the 3rd, the Protector died at Whitehall;
having ever since his last establishment been perplexed with fear of
being killed by some desperate attempt of the royalists.
Being importuned in his sickness by his privy-council to name his
successor, he named his son Richard; who, encouraged thereunto, not by
his own ambition, but by Fleetwood, Desborough, Thurlow, and other of
his council, was content to take it upon him; and presently, addresses
were made to him from the armies in England, Scotland and Ireland. His
first business was the chargeable and splendid funeral of his father.
Thus was Richard Cromwell seated on the imperial throne of England,
Ireland, and Scotland, successor to his father; lifted up to it by the
officers of the army then in town, and congratulated by all the parts of
the army throughout the three nations; scarce any garrison omitting
their particular flattering addresses to him.
_B._ Seeing the army approved of him, how came he so soon cast off?
_A._ The army was inconstant; he himself irresolute, and without any
military glory. And though the two principal officers had a near
relation to him; yet neither of them, but Lambert, was the great
favourite of the army; and by courting Fleetwood to take upon him the
Protectorship, and by tampering with the soldiers, he had gotten again
to be a colonel. He and the rest of the officers had a council at
Wallingford House, where Fleetwood dwelt, for the dispossessing of
Richard; though they had not yet considered how the nations should be
governed afterwards. For from the beginning of the rebellion, the method
of ambition was constantly this, first to destroy, and then to consider
what they should set up.
_B._ Could not the Protector, who kept his court at Whitehall, discover
what the business of the officers was at Wallingford House, so near him?
_A._ Yes, he was by divers of his friends informed of it; and counselled
by some of them, who would have done it, to kill the chief of them. But
he had not courage enough to give them such a commission. He took,
therefore, the counsel of some milder persons, which was to call a
Parliament. Whereupon writs were presently sent to those, that were in
the last Parliament, of the other House, and other writs to the sheriffs
for the election of knights and burgesses, to assemble on the 27th of
January following. Elections were made according to the ancient manner,
and a House of Commons now of the right English temper, and about four
hundred in number, including twenty for Scotland and as many for
Ireland. Being met, they take themselves, without the Protector and
other House, to be a Parliament, and to have the supreme power of the
three nations.
For the first business, they intended the power of that other House: but
because the Protector had recommended to them for their first business
an act, already drawn up, for the recognition of his Protectoral power,
they began with that; and voted after a fortnight’s deliberation, that
an act should be made whereof this act of recognition should be part;
and that another part should be for the bounding of the Protector’s
power, and for the securing the privileges of Parliament and liberties
of the subject; and that all should pass together.
_B._ Why did these men obey the Protector at first, in meeting upon his
only summons? Was not that as full a recognition of his power as was
needful? Why by this example did they teach the people that he was to be
obeyed, and then by putting laws upon him, teach them the contrary? Was
it not the Protector that made the Parliament? Why did they not
acknowledge their maker?
_A._ I believe it is the desire of most men to bear rule; but few of
them know what title one has to it more than another, besides the right
of the sword.
_B._ If they acknowledged the right of the sword, they were neither just
nor wise to oppose the present government, set up and approved by all
the forces of the three kingdoms. The principles of this House of
Commons were, no doubt, the very same with theirs that began the
rebellion; and would, if they could have raised a sufficient army, have
done the same against the Protector; and the general of their army
would, in like manner, have reduced them to a Rump. For they that keep
an army, and cannot master it, must be subject to it as much as he that
keeps a lion in his house. The temper of all the Parliaments, since the
time of Queen Elizabeth, has been the same with the temper of this
Parliament; and shall always be such, as long as the Presbyterians and
men of democratical principles have the like influence upon the
elections.
_A._ After, they resolved concerning the other House, that during this
Parliament they would transact with it, but without intrenching upon the
right of the peers, to have writs sent to them in all future
Parliaments. These votes being passed, they proceed to another, wherein
they assume to themselves the power of the militia. Also to show their
supreme power, they delivered out of prison some of those that had been,
they said, illegally committed by the former Protector. Other points
concerning civil rights and concerning religion, very pleasing to the
people, were now also under their consideration. So that at the end of
this year the Protector was no less jealous of the Parliament, than of
the council of officers at Wallingford House.
_B._ Thus it is when ignorant men will undertake reformation. Here are
three parties, the Protector, the Parliament, and the Army. The
Protector against Parliament and army, the Parliament against army and
Protector, and the army against Protector and Parliament.
_A._ In the beginning of 1659 the Parliament passed divers other acts.
One was, to forbid the meetings in council of the army-officers without
order from the Protector and both houses. Another, that no man shall
have any command or trust in the army, who did not first, under his
hand, engage himself never to interrupt any of the members, but that
they might freely meet and debate in the House. And to please the
soldiers, they voted to take presently into their consideration the
means of paying them their arrears. But whilst they were considering
this, the Protector, according to the first of those acts, forbad the
meeting of officers at Wallingford House. This made the government,
which by the disagreement of the Protector and army was already loose,
to fall in pieces. For the officers from Wallingford House, with
soldiers enough, came over to Whitehall, and brought with them a
commission ready drawn, giving power to Desborough to dissolve the
Parliament, for the Protector to sign; which also, his heart and his
party failing him, he signed. The Parliament nevertheless continued
sitting; but at the end of the week the House adjourned till the Monday
after, being April the 25th. At their coming on Monday morning, they
found the door of the House shut up, and the passages to it filled with
soldiers, who plainly told them they must sit no longer. Richard’s
authority and business in town being thus at an end, he retired into the
country; where within a few days, upon promise of the payment of his
debts, which his father’s funeral had made great, he signed a
resignation of his Protectorship.
_B._ To whom?
_A._ To nobody. But after ten days' cessation of the sovereign power,
some of the Rumpers that were in town, together with the old Speaker Mr.
William Lenthal, resolved amongst themselves, and with Lambert,
Hazlerig, and other officers, who were also Rumpers, in all forty-two,
to go into the House; which they did, and were by the army declared to
be the Parliament.
There were also in Westminster Hall at that time, about their private
business, some few of those whom the army had secluded in 1648, and were
called the secluded members. These knowing themselves to have been
elected by the same authority, and to have the same right to sit,
attempted to get into the House, but were kept out by the soldiers. The
first vote of the Rump reseated was, that such persons as, heretofore
members of this Parliament, have not sitten in this Parliament since the
year 1648, shall not sit in this House till further order of the
Parliament. And thus the Rump recovered their authority May the 7th
1659, which they lost in April 1653.
_B._ Seeing there had been so many shiftings of the supreme authority, I
pray you, for memory’s sake, repeat them briefly in times and order.
_A._ First, from 1640 to 1648, when the King was murdered, the
sovereignty was disputed between King Charles I and the Presbyterian
Parliament. Secondly, from 1648 to 1653, the power was in that part of
the Parliament which voted the trial of the King, and declared
themselves, without King or House of Lords, to have the supreme
authority of England and Ireland. For there were in the Long Parliament
two factions, the Presbyterian and Independent; the former whereof
sought only the subjection of the King, not his destruction directly;
the latter sought directly his destruction; and this part is it, which
was called the Rump. Thirdly, from April the 20th to July the 4th, the
supreme power was in the hands of a council of state constituted by
Cromwell. Fourthly, from July the 4th to December the 12th of the same
year, it was in the hands of men called unto it by Cromwell, whom he
termed men of fidelity and integrity, and made them a Parliament; which
was called, in contempt of one of the members, Barebone’s Parliament.
Fifthly, from December the 12th 1653 to September the 3rd 1658, it was
in the hands of Oliver Cromwell, with the title of Protector. Sixthly,
from September the 3rd 1658 to April the 25th 1659, Richard Cromwell had
it as successor to his father. Seventhly, from April the 25th 1659 to
May the 7th of the same year, it was nowhere. Eighthly, from May the 7th
1659, the Rump, which was turned out of doors in 1653, recovered it
again; and shall lose it again to a committee of safety, and again
recover it, and again lose it to the right owner.
_B._ By whom, and by what art, came the Rump to be turned out the second
time?
_A._ One would think them safe enough. The army in Scotland, which when
it was in London had helped Oliver to put down the Rump, submitted now,
begged pardon, and promised obedience. The soldiers in town had their
pay mended, and the commanders everywhere took the old engagement,
whereby they had acknowledged their authority heretofore. They also
received their commissions in the House itself from the speaker, who was
generalissimo. Fleetwood was made lieutenant-general, with such and so
many limitations as were thought necessary by the Rump, that remembered
how they had been served by the general, Oliver. Also Henry Cromwell,
lord-lieutenant of Ireland, having resigned his commission by command,
returned into England.
But Lambert, to whom, as was said, Oliver had promised the succession,
and who as well as the Rump knew the way to the Protectorship by
Oliver’s own footsteps, was resolved to proceed in it upon the first
opportunity; which presented itself presently after. Besides some plots
of royalists, whom after the old fashion they again persecuted, there
was an insurrection made against them by Presbyterians in Cheshire,
headed by Sir George Booth, one of the secluded members. They were in
number about 3,000, and their pretence was for a free Parliament. There
was a great talk of another rising, or endeavour to rise, in Devonshire
and Cornwall at the same time. To suppress Sir George Booth, the Rump
sent down more than a sufficient army under Lambert; which quickly
defeated the Cheshire party, and recovered Chester, Liverpool, and all
the other places they had seized. Divers also of their commanders in and
after the battle were taken prisoners, whereof Sir George Booth himself
was one.
This exploit done, Lambert, before his return, caressed his soldiers
with an entertainment at his own house in Yorkshire, and got their
consent to a petition to be made to the House, that a general might be
set up in the army; as being unfit that the army should be judged by any
power extrinsic to itself.
_B._ I do not see that unfitness.
_A._ Nor I. But it was, as I have heard, an axiom of Sir Henry Vane’s.
But it so much displeased the Rump, that they voted, that the having of
more generals in the army than were already settled, was unnecessary,
burthensome, and dangerous to the commonwealth.
_B._ This was not Oliver’s method; for though this Cheshire victory had
been as glorious as that of Oliver at Dunbar, yet it was not the victory
that made Oliver general, but the resignation of Fairfax, and the
proffer of it to Cromwell by the Parliament.
_A._ But Lambert thought so well of himself, as to expect it. Therefore,
at his return to London, he and the other officers assembling at
Wallingford House, drew their petition into form, and called it a
representation; wherein the chief point was to have a general, but many
others of less importance were added; and this they represented to the
House, October the 4th, by Major-General Desborough. And this so far
awed them, as to teach them so much good manners as to promise to take
it presently into debate. Which they did; and October the 12th, having
recovered their spirits, voted “that the commissions of Lambert,
Desborough, and others of the council at Wallingford House, should be
void: item, that the army should be governed by a commission to
Fleetwood, Monk, Hazlerig, Walton, Morley, and Overton, till February
the 12th following.” And to make this good against the force they
expected from Lambert, they ordered Hazlerig and Morley to issue
warrants to such officers as they could trust, to bring their soldiers
next morning into Westminster; which was done somewhat too late. For
Lambert had first brought his soldiers thither, and beset the House, and
turned back the Speaker, which was then coming to it; but Hazlerig’s
forces marching about St. James’s park-wall, came into St. Margaret’s
churchyard; and so both parties looked all day one upon another, like
enemies, but offered not to fight: whereby the Rump was put out of
possession of the House; and the officers continued their meeting as
before, at Wallingford House.
There they chose from among themselves, with some few of the city, a
committee, which they called a committee of safety, whereof the chief
were Lambert and Vane; who, with the advice of a general council of
officers, had power to call delinquents to trial, to suppress
rebellions, to treat with foreign states, &c. You see now the Rump cut
off, and the supreme power, which is charged with _salus populi_,
transferred to a council of officers. And yet Lambert hopes for it in
the end. But one of their limitations was, that they should within six
weeks present to the army a new model of the government. If they had
done so, do you think they would have preferred Lambert or any other to
the supreme authority therein, rather than themselves?
_B._ I think not. When the Rump had put into commission, amongst a
few others, for the government of the army, that is to say, for
the government of the three nations, General Monk, already
commander-in-chief of the army in Scotland, and that had done much
greater things in this war than Lambert, how durst they leave him
out of this committee of safety? Or how could Lambert think that
General Monk would forgive it, and not endeavour to fasten the
Rump again?
_A._ They thought not of him; his gallantry had been shown on remote
stages, Ireland and Scotland. His ambition had not appeared here in
their contentions for the government, but he had complied both with
Richard and the Rump. After General Monk had signified by letter his
dislike of the proceedings of Lambert and his fellows, they were much
surprised, and began to think him more considerable than they had done;
but it was too late.
_B._ Why? His army was too small for so great an enterprise.
_A._ The general knew very well his own and their forces, both what they
were then, and how they might be augmented, and what generally city and
country wished for, which was the restitution of the King: which to
bring about, there needed no more but to come with his army, though not
very great, to London: to the doing whereof, there was no obstacle but
the army with Lambert. What could he do in this case? If he had declared
presently for the King or for a free Parliament, all the armies in
England would have joined against him, and assuming the title of a
Parliament would have furnished themselves with money.
General Monk, after he had thus quarrelled by his letter with the
council-officers, secured first those officers of his own army, which
were Anabaptists and therefore not to be trusted, and put others into
their places; then drawing his forces together, marched to Berwick.
Being there, he indicted a convention of the Scots, of whom he desired
that they would take order for the security of that nation in his
absence, and raise some maintenance for his army in their march. The
convention promised for the security of the nation their best endeavour,
and raised him a sum of money, not great, but enough for his purpose,
excusing themselves upon their present wants. On the other side, the
committee of safety with the greatest and best part of their army sent
Lambert to oppose him; but at the same time, by divers messages and
mediators urged him to a treaty; which he consented to, and sent three
officers to London to treat with as many of theirs. These six suddenly
concluded, without power from the general, upon these articles: that the
King be excluded; a free state settled; the ministry and universities
encouraged; with divers others. Which the general liked not, and
imprisoned one of his commissioners for exceeding his commission.
Whereupon another treaty was agreed on, of five to five. But whilst
these treaties were in hand, Hazlerig, a member of the Rump, seized on
Portsmouth, and the soldiers sent by the committee of safety to reduce
it, instead of that, entered into the town and joined with Hazlerig.
Secondly, the city renewed their tumults for a free Parliament. Thirdly,
the Lord Fairfax, a member also of the Rump, and greatly favoured in
Yorkshire, was raising forces there behind Lambert, who being now
between two armies, his enemies would gladly have fought with the
general. Fourthly, there came news that Devonshire and Cornwall were
listing of soldiers. Lastly, Lambert’s army wanting money, and sure they
should not be furnished from the council of officers, which had neither
authority nor strength to levy money, grew discontented, and for their
free quarters were odious to the northern countries.
_B._ I wonder why the Scots were so ready to furnish General Monk with
money; for they were no friends to the Rump.
_A._ I know not; but I believe the Scots would have parted with a
greater sum, rather than the English should not have gone together by
the ears amongst themselves. The council of officers being now beset
with so many enemies, produced speedily their model of government; which
was to have a free Parliament, which should meet December the 15th, but
with such qualifications of no King, no House of Lords, as made the city
more angry than before. To send soldiers into the west to suppress those
that were rising there, they durst not, for fear of the city; nor could
they raise any other for want of money. There remained nothing but to
break, and quitting Wallingford House to shift for themselves. This
coming to the knowledge of their army in the north, they deserted
Lambert; and the Rump, the 26th of December, repossessed the House.
_B._ Seeing the Rump was now reseated, the business pretended by General
Monk for his marching to London, was at an end.
_A._ The Rump, though seated, was not well settled, but in the midst of
so many tumults for a free Parliament had as much need of the general’s
coming up now as before. He therefore sent them word, that because he
thought them not yet secure enough, he would come up to London with his
army; which they not only accepted, but also intreated him to do, and
voted him for his services 1000_l._ a year.
The general marching towards London, the country every where petitioned
him for a free Parliament. The Rump, to make room in London for his
army, dislodged their own. The general for all that, had not let fall a
word in all this time that could be taken for a declaration of his final
design.
_B._ How did the Rump revenge themselves on Lambert?
_A._ They never troubled him; nor do I know any cause of so gentle
dealing with him: but certainly Lambert was the ablest of any officer
they had to do them service, when they should have means and need to
employ him. After the general was come to London, the Rump sent to the
city for their part of a tax of 100,000_l._ a month, for six months,
according to an act which the Rump had made formerly before their
disseisin by the committee of safety. But the city, who were adverse to
the Rump, and keen upon a free Parliament, could not be brought to give
their money to their enemies and to purposes repugnant to their own.
Hereupon the Rump sent order to the general to break down the city gates
and their portcullises, and to imprison certain obstinate citizens. This
he performed, and it was the last service he did them.
About this time the commission, by which general Monk with others had
the government of the army put into their hands by the Rump before the
usurpation of the council of officers, came to expire; which the present
Rump renewed.
_B._ He was thereby the sixth part of the general of the whole forces of
the commonwealth. If I had been as the Rump, he should have been sole
general. In such cases as this, there cannot be a greater vice than
pinching. Ambition should be liberal.
_A._ After the pulling down of the city gates, the general sent a letter
to the Rump, to let them know that that service was much against his
nature, and to put them in mind how well the city had served the
Parliament throughout the whole war.
_B._ Yes. But for the city the Parliament never could have made the war,
nor the Rump ever have murdered the King.
_A._ The Rump considered not the merit of the city, nor the good-nature
of the general. They were busy. They were giving out commissions, making
of acts for abjuration of the King and his line, and for the old
engagement, and conferring with the city to get money. The general also
desired to hear conference between some of the Rump and some of the
secluded members, concerning the justice of their seclusion, and of the
hurt that could follow from their readmission: and it was granted, after
long conference. The general finding the Rump’s pretences unreasonable
and ambitious, declared himself with the city for a free Parliament, and
came to Westminster with the secluded members, (whom he had appointed to
meet and stay for him at Whitehall), and replaced them in the House
amongst the Rumpers; so that now the same cattle that were in the House
of Commons in 1640, except those that were dead and those that went from
them to the late King at Oxford, are all there again.
_B._ But this, methinks, was no good service to the King, unless they
had learned better principles.
_A._ They had learned nothing. The major part was now again
Presbyterian. It is true they were so grateful to General Monk as to
make him general of all the forces in the three nations. They did well
also to make void the engagement; but it was because those acts were
made to the prejudice of their party; but recalled none of their own
rebellious ordinances, nor did anything in order to the good of the
present King; but on the contrary, they declared by a vote, that the
late King began the war against his two Houses.
_B._ The two Houses considered as two persons, were they not two of the
King’s subjects? If a king raise an army against his subject, is it
lawful for that subject to resist with force, when, as in this case, he
might have had peace upon his submission?
_A._ They knew they had acted vilely and sottishly; but because they had
always pretended to greater than ordinary wisdom and godliness, they
were loath to confess it. The Presbyterians now saw their time to make a
Confession of their Faith, and presented it to the House of Commons to
show they had not changed their principles; which, after six readings in
the House, was voted to be printed, and once a year to be read publicly
in every church.
_B._ I say again, this re-establishing of the Long Parliament was no
good service to the King.
_A._ Have a little patience. They were re-established with two
conditions; one to determine their sitting before the end of March;
another to send out writs before their rising for new elections.
_B._ That qualifies.
_A._ That brought in the King: for few of this Long Parliament, the
country having felt the smart of their former service, could get
themselves chosen again. This New Parliament began to sit April the 25th
1660. How soon these called in the King; with what joy and triumph he
was received; how earnestly his Majesty pressed the Parliament for the
act of oblivion, and how few were excepted out of it; you know as well
as I.
_B._ But I have not yet observed in the Presbyterians any oblivion of
their former principles. We are but returned to the state we were in at
the beginning of the sedition.
_A._ Not so: for before that time, though the Kings of England had the
right of the militia in virtue of the sovereignty, and without dispute,
and without any particular act of Parliament directly to that purpose;
yet now, after this bloody dispute, the next, which is the present,
Parliament, in proper and express terms hath declared the same to be the
right of the King only, without either of his Houses of Parliament;
which act is more instructive to the people, than any arguments drawn
from the title of sovereign, and consequently fitter to disarm the
ambition of all seditious haranguers for the time to come.
_B._ I pray God it prove so. Howsoever, I must confess that this
Parliament has done all that a Parliament can do for the security of our
peace: which I think also would be enough, if preachers would take heed
of instilling evil principles into their auditory. I have seen in this
revolution a circular motion of the sovereign power through two
usurpers, from the late King to this his son. For (leaving out the power
of the council of officers, which was but temporary, and no otherwise
owned by them but in trust) it moved from King Charles I to the Long
Parliament; from thence to the Rump; from the Rump to Oliver Cromwell;
and then back again from Richard Cromwell to the Rump; thence to the
Long Parliament; and thence to King Charles II, where long may it
remain.
_A._ Amen. And may he have as often as there shall be need such a
general.
_B._ You have told me little of the general till now in the end: but
truly, I think the bringing of his little army entirely out of Scotland
up to London, was the greatest stratagem that is extant in history.
==========
THE
WHOLE ART OF RHETORIC.
Di, majorum umbris tenuem, et sine pondere terram,
Spirantesque crocos, et in urna perpetuum ver,
Qui præceptorem sancti voluere parentis
Esse loco.
JUVENAL, VII. 207-210.
[The following is the Preface prefixed, in the 8vo. edition of 1681, to
this piece and the Discourse of the Laws of England.]
==========
TO THE READER.
Although these pieces may appear fully to express their own real
intrinsic value, as bearing the image and inscription of that great man
Mr. Hobbes; yet since common usage has rendered a preface to a book as
necessary as a porch to a church, and that in all things some ceremonies
cannot be avoided, mode and custom in this point is dutifully to be
obeyed.
That they are genuine, credible testimony might be produced, did not the
peculiar fineness of thought and expression, and a constant undaunted
resolution of maintaining his own opinions, sufficiently ascertain their
author. Besides which, they are now published from his own true copies;
an advantage which some of his works have wanted.
The first of them, being an abridgment containing the most useful part
of Aristotle’s rhetoric, was written some thirty years since. Mr. Hobbes
in his book of _Human Nature_ had already described man, with an
exactness almost equal to the original draught of nature; and in his
_Elements of Law_ laid down the constitution of government, and shown by
what armed reason it is maintained: and having demonstrated in the state
of nature the primitive art of fighting to be the only medium whereby
men procured their ends, did in this design to show what power in
societies has succeeded to reign in its stead, I mean the art of
speaking; which by use of common places of probability, and knowledge in
the manners and passions of mankind, through the working of belief is
able to bring about whatsoever interest.
How necessary this art is to that of politic, is clearly evident from
that mighty force whereby the eloquence of the ancient orators
captivated the minds of the people. Mr. Hobbes chose to recommend by his
translation the rhetoric of Aristotle, as being the most accomplished
work on that subject which the world has yet seen; having been admired
in all ages, and in particular highly approved by the father of the
Roman eloquence, a very competent judge. To this he thought fit to add
some small matter relating to that part which concerns tropes and
figures; as also a short discovery of some little tricks of false and
deceitful reasoning.
The other piece is a discourse concerning the laws of England, and has
been finished many years. Herein he has endeavoured to accommodate the
general notions of his politic to the particular constitution of the
English monarchy: a design of no small difficulty; wherein to have
succeeded deserves much honour; to have perchance miscarried, deserves
easy pardon. It has had the good fortune to be much esteemed by the
greatest men of the profession of the law, and therefore may be presumed
to contain somewhat excellent. However it is not to be expected that all
men should submit to his opinions, yet it is hoped none will be offended
at the present publishing of these papers; since they will not find here
any new fantastic notions, but only such things as have been already
asserted with strength of argument by himself and other persons of
eminent learning. To the public at least this benefit may accrue, that
some able pen may undertake the controversy, being moved with the desire
of that reputation which will necessarily attend victory over so
considerable an adversary.
THE
WHOLE ART OF RHETORIC.
BOOK I.
CHAPTER I.
THAT RHETORIC IS AN ART CONSISTING NOT ONLY IN MOVING THE PASSIONS OF
THE JUDGE, BUT CHIEFLY IN PROOFS: AND THAT THIS ART IS PROFITABLE.
We see that all men naturally are able in some sort to _accuse_ and
_excuse_: some by chance; but some by method. This method may be
discovered; and to discover method is all one with teaching an art. If
this art consisted in criminations only, and the skill to stir up the
judge’s anger, envy, fear, pity, or other affections; a rhetorician in
well ordered commonwealths and states, where it is forbidden to digress
from the cause in hearing, could have nothing at all to say. For all
these perversions of the judge are beside the question. And that which
the pleader is to shew, and the judge to give sentence on, is this only:
_It is so_, or _not so_. The rest hath been decided already by the
law-maker; who judging of universals and future things, could not be
corrupted. Besides, it is an absurd thing for a man to make crooked the
ruler he means to use.
It consisteth therefore chiefly in proofs, which are inferences: and all
inferences being _syllogisms_, a _logician_, if he would observe the
difference between a plain syllogism and an enthymeme, which is a
rhetorical syllogism, would make the best _rhetorician_. For all
syllogisms and inferences belong properly to logic, whether they infer
truth or probability. And because without this art it would often come
to pass that evil men, by the advantage of natural abilities, would
carry an evil cause against a good; it brings with it at least this
profit, that making the pleaders even in skill, it leaves the odds only
in the merit of the cause. Besides, ordinarily those that are judges,
are neither patient, nor capable of long scientifical proofs drawn from
the principles through many syllogisms; and therefore had need to be
instructed by the rhetorical and shorter way. Lastly, it were ridiculous
to be ashamed of being vanquished in exercises of the body, and not to
be ashamed of being inferior in the virtue of well expressing the mind.
==========
CHAPTER II
THE DEFINITION OF RHETORIC.
Rhetoric is that faculty, by which we understand what will serve our
turn concerning any subject to win belief in the hearer.
Of those things that beget belief, some require not the help of art, as
witnesses, evidences, and the like, which we invent not, but make use
of; and some require art, and are invented by us.
The belief that proceeds from our invention, comes partly from the
behaviour of the speaker, partly from the passions of the hearer; but
especially from the proofs of what we allege.
Proofs are, in rhetoric, either _examples_ or _enthymemes_; as in logic,
_inductions_ or _syllogisms_. For an example is a short induction, and
an enthymeme a short syllogism; out of which are left, as superfluous,
that which is supposed to be necessarily understood by the hearer; to
avoid prolixity, and not to consume the time of public business
needlessly.
==========
CHAPTER III.
OF THE SEVERAL KINDS OF ORATIONS: AND OF THE PRINCIPLES OF RHETORIC.
In all orations, the hearer does either hear only, or judge also.
If he hear only, that is one kind of oration, and is called
_demonstrative_.
If he judge, he must judge either of that which is to come, or of that
which is past.
If of that which is to come, there is another kind of oration, and is
called _deliberative_.
If of that which is past, then it is a third kind of oration,
_judicial_.
So there are three kinds of orations; _demonstrative_, _judicial_, and
_deliberative_.
To which belong their proper times. To the demonstrative, the _present_;
to the judicial, the _past_; and to the deliberative, the _time to
come_.
And their proper offices. To the deliberative, _exhortation_ and
_dehortation_. To the judicial, _accusation_ and _defence_. And to the
demonstrative, _praising_ and _dispraising_.
And their proper ends. To the deliberative, to prove a thing
_profitable_ or _unprofitable_. To the judicial, _just_ or _unjust_. To
the demonstrative, _honourable_ or _dishonourable_.
The principles of rhetoric out of which _enthymemes_ are to be drawn,
are the _common opinions_ that men have concerning _profitable_ and
_unprofitable_; _just_ and _unjust_; _honourable_ and _dishonourable_;
which are the points in the several kinds of orations questionable. For
as in _logic_, where certain and infallible knowledge is the scope of
our proof, the principles must be all _infallible truths_: so in
_rhetoric_ the principles must be _common opinions_, such as the judge
is already possessed with. Because the end of rhetoric is victory; which
consists in having gotten _belief_.
And because nothing is profitable, unprofitable, just, unjust,
honourable or dishonourable, but what has been _done_, or _is to be
done_; and nothing is _to be done_, that is not _possible_; and because
there be degrees of profitable, unprofitable, just, unjust, honourable
and dishonourable; an orator must be ready in other principles, namely,
of what is _done_ and _not done_, _possible_ and _not possible_, _to
come_ and _not to come_, and what is _greater_ and what is _lesser_,
both in general, and particularly applied to the thing in question; as
what is _more_ and _less_, generally; and what is _more profitable_ and
_less profitable_, &c. particularly.
==========
CHAPTER IV.
OF THE SUBJECT OF DELIBERATIVES; AND THE ABILITIES THAT ARE REQUIRED OF
HIM THAT WILL DELIBERATE OF BUSINESS OF STATE.
In _deliberatives_ there are to be considered the _subject_ wherein, and
the _ends_ whereto, the orator exhorteth, or from which he dehorteth.
The _subject_ is always something in our own power, the knowledge
whereof belongs not to rhetoric, but for the most part to the politics;
and may be referred in a manner to these five heads.
1. _Of levying of money._ To which point he that will speak as he ought
to do, ought to know beforehand the revenue of the state, how much it
is, and wherein it consisteth, and also how great are the necessary
charges and expenses of the same. This knowledge is gotten partly by a
man’s own experience, partly by relations and accounts in writing.
2. _Of peace and war._ Concerning which the counsellor or deliberator
ought to know the strength of the commonwealth, how much it both now is,
and hereafter may be, and wherein that power consisteth. Which knowledge
is gotten, partly by experience and relations at home, and partly by the
sight of wars and of their events abroad.
3. _Of the safeguard of the country._ Wherein he only is able to give
counsel, that knows the forms, and number, and places of the garrisons.
4. _Of provision._ Wherein to speak well, it is necessary for a man to
know what is sufficient to maintain the state, what commodities they
have at home growing, what they must fetch in through need, and what
they may carry out through abundance.
5. _Of making laws._ To which is necessary so much political or civil
philosophy, as to know what are the several kinds of governments, and by
what means, either from without or from within, each of those kinds is
preserved or destroyed. And this knowledge is gotten, partly by
observing the several governments in times past by history, and partly
by observing the government of the times present in several nations, by
travel.
So that to him that will speak in a council of state, there is necessary
this; history, sight of wars, travel, knowledge of the revenue,
expenses, forces, havens, garrisons, wares, and provisions in the state
he lives in, and what is needful for that state either to export or
import.
==========
CHAPTER V.
OF THE ENDS WHICH THE ORATOR IN DELIBERATIVES PROPOUNDETH, WHEREBY TO
EXHORT OR DEHORT.
An orator, in _exhorting_, always propoundeth _felicity_, or some _part_
of _felicity_, to be attained by the actions he exhorteth unto: and in
_dehortation_, the contrary.
By _felicity_ is meant commonly prosperity with virtue, or a continual
content of the life with surety.
And the _parts_ of it are such things as we call good in _body_, _mind_,
or fortune; such as these that follow.
1. _Nobility_, which to a state or nation is to have been ancient
inhabitants; and to have had most anciently, and in most number, famous
generals in the wars, or men famous for such things as fall under
emulation. And to a private man, to have been descended lawfully of a
family, which hath yielded most anciently, and in most number, men known
to the world for virtue, riches, or any thing in general estimation.
2. _Many and good children._ Which is also _public_ and _private_.
_Public_, when there is much youth in the state endued with virtue;
namely, of the _body_, stature, beauty, strength, and dexterity; of the
_mind_, valour and temperance: _private_, when a man hath many such
children, both male and female. The virtues commonly respected in women,
are of the _body_, beauty and stature; of the _mind_, temperance and
housewifery without sordidness.
3. _Riches._ Which is money, cattle, lands, household-stuff, with the
power to dispose of them.
4. _Glory._ Which is the reputation of virtue, or of the possession of
such things as all, or most men, or wise men desire.
5. _Honour._ Which is the glory of benefiting, or being able to benefit
others. _To benefit others_, is to contribute somewhat, not easily had,
to another man’s safety or riches. The parts of _honour_ are sacrifices,
monuments, rewards, dedication of places, precedence, sepulchres,
statues, public pensions, adorations, presents.
6. _Health._ Which is the being free from diseases, with strength to use
the body.
7. _Beauty._ Which is to different ages different. To youth, strength of
body and sweetness of aspect. To full men, strength of body fit for the
wars, and countenance sweet with a mixture of terror. To old men,
strength enough for necessary labours, with a countenance not
displeasing.
8. _Strength._ Which is the ability to move any thing at pleasure of the
mover. To move, is to pull, to put off, to lift, to thrust down, to
press together.
9. _Stature._ Which is then _just_, when a man in height, breadth, and
thickness of body doth so exceed the most, as nevertheless it be no
hindrance to the quickness of his motion.
10. _Good old age._ Which is that which comes late, and with the least
trouble.
11. _Many and good friends._ Which is to have many that will do for his
sake that which they think will be for his good.
12. _Prosperity._ Which is to have all, or the most, or the greatest of
those goods which we attribute to fortune.
13. _Virtue._ Which is then to be defined, when we speak of _praise_.
These are the grounds from whence we _exhort_.
_Dehortation_ is from the contraries of these.
==========
CHAPTER VI.
OF THE COLOURS OR COMMON OPINIONS CONCERNING GOOD AND EVIL.
In _deliberatives_, the principles or elements from whence we draw our
proofs, are common opinions concerning good and evil. And these
principles are either _absolute_ or _comparative_. And those that are
_absolute_, are either _disputable_ or _indisputable_.
The _indisputable principles_ are such as these: _Good_, is that which
we love for itself. And that for which we love somewhat else. And that
which all things desire. And that to every man which his reason
dictates. And that which when we have, we are well or satisfied. And
that which satisfies. And the cause or effect of any of these. And that
which preserves any of these. And that which keeps off or destroys the
contrary of any of these.
Also to take the _good_ and reject the _evil_, is _good_. And to take
the greater _good_, rather than the less; and the lesser _evil_ rather
than the greater. Further, all virtues are _good_. And pleasure. And all
things beautiful. And justice, valour, temperance, magnanimity,
magnificence, and other like habits. And health, beauty, strength, &c.
And riches. And friends. And honour and glory. And ability to say or do:
also towardliness, will, and the like. And whatsoever art or science.
And life. And whatsoever is just.
The _disputable principles_ are such as follow:
That is _good_, whose contrary is _evil_. And whose contrary is _good_
for our enemies. And whose contrary our enemies are glad of. And of
which there cannot be too much. And upon which much labour and cost hath
been bestowed. And that which many desire. And that which is praised.
And that which even our enemies and evil men praise. And what good we
prefer. And what we do advise. And that which is possible, is _good_ to
undertake. And that which is easy. And that which depends on our own
will. And that which is proper for us to do. And what no man else can
do. And whatsoever is extraordinary. And what is suitable. And that
which wants a little of being at an end. And what we hope to master. And
what we are fit for. And what evil men do not. And what we love to do.
==========
CHAPTER VII.
OF THE COLOURS OR COMMON OPINIONS CONCERNING GOOD AND EVIL,
COMPARATIVELY.
The _colours_ of _good comparatively_ depend, partly, upon the following
definitions of _comparatives_.
1. _More_, is _so much and somewhat besides_.
2. _Less_, is _that, which and somewhat else is so much_.
3. _Greater_ and _more in number_ are said only _comparatively_ to
_less_ and _fewer in number_.
4. _Great_ and _little_, _many_ and _few_, are taken _comparatively_ to
the _most of the same kind_. So that _great_ and _many_, is that which
_exceeds_; _little_ and _few_, is that which is _exceeded by, the most
of the same kind_.
Partly, from the precedent definitions of _good absolutely_.
Common opinions concerning _good comparatively_, then are these.
_Greater good_ is many than fewer, or one of those many.
And _greater_ is the kind, in which the greatest is greater than the
greatest of another kind. And _greater_ is that good than another good,
whose kind is _greater_ than another’s kind. And _greater_ is that from
which another good follows, than the good which follows. And of two
which exceed a third, _greater_ is that which exceeds it most. And that
which _causes_ the greater good. And that which _proceeds from_ a
greater good. And _greater_ is that which is chosen for itself, than
that which is chosen for somewhat else. And the _end_ greater than that
which is _not_ the end. And that which _less_ needs other things, than
that which _more_. And that which is _independent_, than that which is
_dependent_ of another. And the _beginning_, than _not_ the beginning.
(Seeing the _beginning_ is a greater good or evil, than that which is
_not_ the beginning; and the _end_, than that which is _not_ the end;
one may argue from this _colour_ both ways: as Leodamas against
Chabrias, would have the actor more to blame than the adviser; and
against Callistratus, the adviser more than the actor.)
And the _cause_, than _not_ the cause. And that which hath a _greater_
beginning or cause. And the beginning or cause of a _greater good or
evil_. And that which is _scarce_, greater than that which is
_plentiful_; because harder to get. And that which is _plentiful_, than
that which is _scarce_; because oftener in use. And that which is
_easy_, than that which is _hard_. And that whose _contrary_ is greater.
And that whose _want_ is greater. And _virtue_ than _not_ virtue, a
greater good. _Vice_ than _not_ vice, a greater evil. And greater good
or evil is that, the _effects_ whereof are more _honourable_ or more
_shameful_. And the _effects_ of greater virtues or vices. And the
excess whereof is more tolerable, a greater good. And those things which
may with more honour be desired. And the desire of better things. And
those things whereof the knowledge is better. And the knowledge of
better things. And that which wise men prefer. And that which is in
better men. And that which better men choose. And that which is more,
than that which is less _delightful_. And that which is more, than that
which is less _honourable_. And that which we would have for ourselves
and friends, a greater good; and the contrary, a greater evil. And that
which is _lasting_, than that which is _not_ lasting. And that which is
_firm_, than that which is _not_ firm. And what _many_ desire, than what
_few_. And what the adversary or judge confesseth to be greater, is
greater. And _common_ than _not_ common. And _not_ common than _common_.
And what is more laudable. And that which is more honoured, a greater
good. And that which is more punished, a greater evil. And both good and
evil divided than undivided, _appear_ greater. And compounded than
simple, _appear_ greater. And that which is done with opportunity, age,
place, time, means disadvantageous, greater than otherwise. And that
which is _natural_, than that which is _attained unto_. And the same
part of that which is great, than of that which is less. And that which
is nearest to the end designed. And that which is good or evil to _one’s
self_, than that which is _simply_ so. And _possible_, than _not_
possible. And that which comes toward the end of our life. And that
which we do _really_, than that which we do _for show_. And that which
we would _be_, rather than what we would _seem_ to be. And that which is
good _for more purposes_, is the greater good. And that which serves us
in great necessity. And that which is joined with less trouble. And that
which is joined with more delight. And of the two, that which added to a
third makes the whole the greater. And that which having, we are more
sensible of. And in every thing, that which we most esteem.
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CHAPTER VIII.
OF THE SEVERAL KINDS OF GOVERNMENTS.
Because _hortation_ and _dehortation_ concern the commonwealth, and are
drawn from the elements of good and evil; as we have spoken of them
already in the _abstract_, so we must speak of them also in the
_concrete_, that is, of what is good or evil to each sort of
commonwealth in special.
The government of a commonwealth is either _democracy_, or
_aristocracy_, or _oligarchy_, or _monarchy_.
_Democracy_ is that, wherein all men with equal right are preferred to
the highest magistracy by lot.
_Aristocracy_ is that, wherein the highest magistrate is chosen out of
those that have had the best education, according to what the laws
prescribe for best.
_Oligarchy_ is that, where the highest magistrate is chosen for wealth.
_Monarchy_ is that, wherein one man hath the government of all; which
government, if he limit it by law, is called _kingdom_; if by his own
will, _tyranny_.
The end of _democracy_, or the people’s government, is _liberty_.
The end of _oligarchy_, is the _riches of those that govern_.
The end of _aristocracy_, is _good laws_ and _good ordering of the
city_.
The end of _monarchy_ or _kings_, is _the safety of the people and
conservation of his own authority_.
_Good_ therefore in each sort of government, is that which conduceth to
these their ends.
And because _belief_ is not gotten only by _proofs_, but also from
_manners_; the _manners_ of each sort of commonwealth ought to be well
understood by him that undertaketh to persuade or dissuade in matter of
state. Their _manners_ may be known by their _designs_; and their
_designs_ by their _ends_; and their _ends_ by what we see them take
_pleasure_ in. But of this more accurately in the politics.
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CHAPTER IX.
OF THE COLOURS OF HONOURABLE AND DISHONOURABLE.
In a demonstrative oration, the subject whereof is _praise_ or
_dispraise_, the proofs are to be drawn from the elements of
_honourable_ and _dishonourable_.
In this place we anticipate the second way of getting _belief_; which is
from the _manners_ of the speaker. For _praise_, whether it come in as
the principal business, or upon the by, depends still upon the same
_principles_; which are these:
_Honourable_, is that which we love for itself, and is withal laudable;
and that _good_, which pleaseth us only because it is good; and virtue.
_Virtue_ is the faculty of getting and preserving that which is good;
and the faculty of doing many and great things well.
The kinds of it are these:
1. _Justice_, which is a virtue whereby every man obtains what by law is
his.
2. _Fortitude_, which is a virtue by which a man carries himself
honourably and according to the laws, in time of danger.
3. _Temperance_, which is a virtue whereby a man governs himself in
matter of pleasure according to the law.
4. _Liberality_, which is a virtue by which we benefit others in matter
of money.
5. _Magnanimity_, which is a virtue by which a man is apt to do great
benefits.
6. _Magnificence_, which is a virtue by which a man is apt to be at
great cost.
7. _Prudence_, which is an _intellectual_ virtue, by which a man is able
to deliberate well concerning any good leading to felicity.
And _honourable_ are the causes and effects of things honourable. And
the works of virtue. And the signs of virtue. And those actions the
reward whereof is _honour_. And the reward whereof is rather _honour_
than _money_. And that which we do not for our sakes. And what we do for
our country’s good, neglecting our own. And those things are
_honourable_ which, good of themselves, are not so to the owner. And
those things which happen to the dead, rather than to the living. And
what we do for other men, especially for benefactors. And bestowing of
benefits. And the contrary of those things we are ashamed of. And those
things which men strive for earnestly, but without fear of adversary.
And of the more _honourable_ and better men, the virtues are more
_honourable_. And more _honourable_ are the virtues that tend to other
men’s benefit, than those which tend to one’s own.
And _honourable_ are those things which are just. And revenge is
_honourable_. And victory. And honour. And monuments. And those things
which happen not to the living. And things that excel. And what none can
do but we. And possessions we reap no profit by. And those things which
are _had in honour_, particularly in several places. And the signs of
praise. And to have nothing of the servile, mercenary, or mechanic.
And that which _seems_ honourable; namely, such as follow: Vices
confining upon virtue. And the extremes of virtues. And what the
auditors _think_ honourable. And that which is in estimation. And that
which is done according to custom.
Besides, in a _demonstrative_ oration, the orator must show that he whom
he praiseth, did what he praiseth unconstrainedly and willingly. And he
does so, who does the same often.
_Praise_ is speech, declaring the magnitude of a virtue, action, or
work. But to praise the work from the virtue of the worker, is a
circular proof.
_To magnify_ and _to praise_, differ in themselves as _felicity_ and
_virtue_. For praise declares a man’s _virtue_; and _magnifying_
declares his _felicity_.
Praise is a kind of inverted precept. For to say, “_Do it because it is
good_,” is a precept; but to say, “_He is good because he did it_,” is
praise. An orator in _praising_, must also use the forms of
_amplification_; such as these: He was the first that did it. The only
man that did it. The special man that did it. He did it with
disadvantage of time. He did it with little help. He was the cause that
the law ordained rewards and honours for such actions.
Further, he that will _praise_ a man, must compare him with others, and
his actions with the actions of others, especially with such as are
renowned.
And _amplification_ is more proper to a _demonstrative_ oration, than to
any other. For here the actions are confessed; and the orator’s part is
only this, to contribute unto them magnitude and lustre.
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CHAPTER X.
OF ACCUSATION AND DEFENCE, WITH THE DEFINITION OF INJURY.
In a _judicial_ oration, which consists in _accusation_ and _defence_,
the thing to be proved is, that _injury_ has been done: and the heads
from whence the proofs are to be drawn are these three:—
1. The causes that move to injury.
2. The persons apt to do injury.
3. The persons obnoxious or apt to suffer injury.
An injury is a voluntary offending of another man contrary to the law.
_Voluntary_ is that which a man does with knowledge, and without
compulsion.
The causes of _voluntary_ actions are intemperance, and a vicious
disposition concerning things desirable. As the covetous man does
against the law out of an intemperate desire of money.
All actions proceed either from the doer’s disposition, or not. Those
that proceed not from the doer’s disposition, are such as he does by
_chance_, by _compulsion_, or by _natural necessity_. Those that proceed
from the doer’s disposition, are such as he does by _custom_, or _upon
premeditation_, or in _anger_, or out of _intemperance_.
_By chance_ are said to be done those things, whereof neither the cause
nor the scope is evident; and which are done neither orderly, nor
always, nor most commonly after the same manner.
_By nature_ are said to be done those things, the causes whereof are in
the doer; and are done orderly, and always or for the most part after
the same manner.
_By compulsion_ are done those things, which are against the appetite
and ordination of the doer.
_By custom_ those actions are said to be done, the cause whereof is
this, that the doer has done them often.
_Upon premeditation_ are said to be done those things, which are done
for profit, as the end or the way to the end.
_In anger_ are said to be done those things, which are done with a
purpose of revenge.
_Out of intemperance_ are said to be done those things, which are
delightful.
In sum, every _voluntary_ action tends either to _profit_ or _pleasure_.
The _colours_ of _profitable_, are already set down. The _colours_ of
that which is _pleasing_, follow next.
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CHAPTER XI.
OF THE COLOURS OR COMMON OPINIONS CONCERNING PLEASURE.
_Pleasure_ is a sudden and sensible motion of the soul, towards that
which is natural. _Grief_ is the contrary.
_Pleasant_ therefore is that, which is the cause of such motion. And to
return to one’s own nature. And customs. And those things that are not
violent.
_Unpleasant_ are those things which proceed from necessity, as cares,
study, contentions. The contrary whereof, ease, remission from labour
and care, also play, rest, sleep; are _pleasant_.
_Pleasant_ also is that to which we have an appetite. Also the appetites
themselves, if they be sensual; as thirst, hunger, and lust. Also those
things to which we have an appetite upon persuasion and reason. And
those things we remember, whether they pleased or displeased then when
they were present. And the things we hope for. And anger. And to be in
love. And revenge. And victory: therefore also contentious games; as
tables, chess, dice, tennis, &c.; and hunting; and suits in law. And
honour and reputation amongst men in honour and reputation. And to love.
And to be beloved and respected. And to be admired. And to be flattered.
And a flatterer: for he seems both to love and admire. And the same
thing often. And change or variety. And what we return to afresh. And to
learn. And to admire. And to do good. And to receive good. And to help
up again one that is fallen. And to finish that which is unperfect. And
imitation; and therefore the art of painting; and the art of carving
images; and the art of poetry; and pictures and statues. And other men’s
dangers, so they be near. And to have escaped hardly.
And things of a kind please one another. And every one himself. And
one’s own pleases him. And to bear sway. And to be thought wise. And to
dwell upon that which he is good at. And ridiculous actions, sayings,
and persons.
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CHAPTER XII.
PRESUMPTIONS OF INJURY DRAWN FROM THE PERSONS THAT DO IT: OR COMMON
OPINIONS CONCERNING THE APTITUDE OF PERSONS TO DO INJURY.
Of the _causes_ which move to _injury_, namely, _profit and pleasure_,
has been already spoken (chap. VI, VII, XI). It follows next, to speak
of the _persons_ that are apt to do injury.
The _doers of injury_ are: such as think they can do it. And such as
think to be undiscovered, when they have done it. And such as think,
though they be discovered, they shall not be called in question for it.
And such as think, though they be called in question for it, that their
mulct will be less than their gain, which either themselves or their
friends receive by the _injury_.
_Able to do injury_ are: such as are eloquent. And such as are practised
in business. And such as have skill in process. And such as have many
friends. And rich men. And such as have rich friends, or rich servants,
or rich partners.
_Undiscovered when they have done it_, are: such as are not apt to
commit the crimes whereof they are accused: as feeble men, slaughter;
poor and not beautiful men, adultery. And such as one would think could
not chuse but be discovered. And such as do injuries, whereof there hath
been no example. And such as have none or many enemies. And such as can
easily conceal what they do. And such as have somebody to transfer the
fault upon.
They that do injury _openly_ are: such, whose friends have been injured.
And such as have the judges for friends. And such as can escape their
trial at law. And such as can put off their trial. And such as can
corrupt the judges. And such as can avoid the payment of their fine. And
such as can defer the payment. And such as cannot pay at all. And such
as by the injury get manifestly much, and presently; when the fine is
uncertain, little, and to come. And such as get by the injury money, by
the penalty shame only. And such on the contrary as get honour by the
injury, and suffer the mulct of money only, or banishment, or the like.
And such as have often escaped or been undiscovered. And such as have
often attempted in vain. And such as consider present pleasure more than
pain to come, and so intemperate men are apt to do injury. And such as
consider pleasure to come more than present pain, and so temperate men
are apt to do injury. And such as may seem to have done it by fortune,
nature, necessity, or custom; and by error, rather than by injustice.
And such as have means to get pardon. And such as want necessaries, as
poor men; or unnecessaries, as rich men. And such as are of very good or
very bad reputation.
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CHAPTER XIII.
PRESUMPTIONS OF INJURY DRAWN FROM THE PERSONS THAT SUFFER, AND FROM THE
MATTER OF THE INJURY.
Of those that do injury, and why they do it, it hath been already
spoken. Now of the _persons_ that suffer, and of the _matter_ wherein
they suffer, the _common opinions_ are these.
_Persons_ obnoxious to injury are: such as have the things that we want,
either as necessary, or as delightful. And such as are far from us. And
such as are at hand. And such as are unwary and credulous. And such as
are lazy. And such as are modest. And such as have swallowed many
injuries. And such as we have injured often before; and such as never
before. And such as are in our danger. And such as are ill-beloved
generally. And such as are envied. And our friends; and our enemies. And
such as, wanting friends, have no great ability either in speech or
action. And such as shall be losers by going to law: as strangers and
workmen. And such as have done the injuries they suffer. And such as
have committed a crime, or would have done, or are about to do. And such
as, by doing them an injury, we shall gratify our friends or superiors.
And such whose friendship we have newly left, and accuse. And such as
another would do the injury to, if we should not. And such as by
injuring, we get greater means of doing good.
The _matters_ wherein men are obnoxious to injury are: those things
wherein all, or most men use to deal unjustly. And those things which
are easily hid, and put off into other hands, or altered. And those
things which a man is ashamed to have suffered. And those things wherein
prosecution of injury, may be thought a love of contention.
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CHAPTER XIV.
OF THOSE THINGS WHICH ARE NECESSARY TO BE KNOWN FOR THE DEFINITION OF
JUST AND UNJUST.
When the fact is evident, the next inquiry is, whether it be _just_ or
_unjust_. For the definition of _just_ and _unjust_, we must know what
_law_ is; that is, what the _law of nature_, what the _law of nations_,
what the _law civil_, what _written law_, and what _unwritten law_ is:
and what _persons_, that is, what a _public person_ or the _city_ is,
and what a _private person_ or _citizen_ is.
_Unjust_, in the opinion of all men, is that which is contrary to the
_law of nature_.
_Unjust_, in the opinion of all men of those nations which traffic and
come together, is that which is contrary to the _law common to those
nations_.
_Unjust_, only in one commonwealth, is that which is contrary to the
_law civil_, or law of that commonwealth.
He that is accused to have done anything against the _public_, or a
_private person_, is accused to do it either _ignorantly_, or
_unwillingly_, or _in anger_, or _upon premeditation_.
And because the defendant does many times confess the _fact_, but deny
the _unjustice_; as that he _took_, but did not _steal_; and _did_, but
not _adultery_; it is necessary to know the definitions of _theft_,
_adultery_, and all other crimes.
What facts are contrary to the _written laws_, may be known by the _laws
themselves_.
Besides _written laws_, whatsoever is _just_ proceeds from _equity_ or
_goodness_.
From _goodness_ proceeds, that which we are praised or honoured for.
From _equity_ proceed those actions, which though the written law
command not, yet, being interpreted reasonably and supplied, seems to
require at our hands.
Actions of _equity_ are such as these:—Not too rigorously to punish
errors, mischances, or injuries. To pardon the faults that adhere to
mankind. And not to consider the _law_, so much as the _law maker’s
mind_; and not the _words_, so much as the _meaning_ of the law. And not
to regard so much the fact, as the intention of the doer; nor part of
the fact, but the whole; nor what the doer _is_, but what he _has been_
always or for the most part. And to remember better the good received,
than the ill. And to endure injuries patiently. And to submit rather to
the sentence of a judge, than of the sword. And to the sentence of an
arbitrator, rather than of a judge.
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CHAPTER XV.
OF THE COLOURS OR COMMON OPINIONS CONCERNING INJURIES, COMPARATIVELY.
_Common opinions_ concerning injuries _comparatively_, are such as
these.
Greater is the injury, which proceedeth from greater iniquity. And from
which proceedeth greater damage. And of which there is no revenge. And
for which there is no remedy. And by occasion of which he that hath
received the injury hath done some mischief to himself.
He does greater injury, that does it first, or alone, or with few; and
he that does it often.
Greater injury is that, against which laws and penalties were first
made. And that, which is more brutal or more approaching to the actions
of beasts. And that, which is done upon more premeditation. And by which
more laws are broken. And which is done in the place of execution. And
which is of greatest shame to him that receives the injury. And which is
committed against well deservers. And which is committed against the
_unwritten_ law; because good men should observe the law for justice,
and not for fear of punishment. And which is committed against the
_written_ law; because he that will do injury, neglecting the penalty
set down in the _written_ law, is much more likely to transgress the
_unwritten_ law, where there is no penalty at all.
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CHAPTER XVI.
OF PROOFS INARTIFICIAL.
Of _artificial proofs_ we have already spoken.
_Inartificial proofs_, which we invent not, but make use of, are of five
sorts.
1. _Laws._ And those are _civil_ or _written law_: the _law or custom of
nations_; and the _universal law of nature_.
2. _Witnesses._ And those are such as concern _matter_, and such as
concern _manners_. Also they be _ancient_ or _present_.
3. _Evidences_ or writings.
4. _Question_ or torture.
5. _Oaths._ And those be either _given_ or _taken_, or both, or neither.
For _laws_, we use them thus: when the _written law_ makes against us,
we appeal to the _law of nature_, alleging that to be greatest justice,
which is greatest equity. That the _law of nature_ is immutable, the
_written law_ mutable. That the _written law_ is but seeming justice;
the _law of nature_ very justice; and justice is among those things
which are, and not which seem to be. That the judge ought to discern
between true and adulterate justice. That they are better men that obey
unwritten than written laws. That the law against us does contradict
some other law. And when the law has a double interpretation, that is
the true one which makes for us. And that the cause of the law being
abolished, the law is no more of validity.
But when the _written law_ makes for us, and _equity_ for the adversary,
we must allege: That a man may use equity, not as a liberty to judge
against the law; but only as a security against being forsworn, when he
knows not the law. That men seek not equity because it is good simply,
but because good for them. That it is the same thing not to make, and
not to use the law. That as in other arts, and namely, in physic,
fallacies are pernicious; so in a common-wealth it is pernicious to use
pretexts against the law. And that in common-wealths well instituted, to
seem wiser than the laws is prohibited.
For _witnesses_, we must use them thus. When we have them not, we must
stand for _presumptions_, and say: That in equity, sentence ought to be
given according to the most probability. That presumptions are the
testimony of the things themselves, and cannot be bribed. That they
cannot lie.
When we have witnesses against him that has them not, we must say: That
presumptions, if they be false, cannot be punished. That if presumptions
were enough, witnesses were superfluous.
For _writings_, when they favour us, we must say: That _writings_ are
private and particular laws; and he that takes away the use of
evidences, abolisheth the law. That since contracts and negociations
pass by _writings_, he that bars their use dissolves human society.
Against them, if they favour the adversary, we may say: That since laws
do not bind that are fraudulently made to pass, much less writings; and
that the judge being to dispense justice, ought rather to consider what
is just than what is in the writing. That writings may be gotten by
fraud or force, but justice by neither. That the writing is repugnant to
some law, civil or natural; or to justice; or to honesty. That it is
repugnant to some other writing, before or after. That it crosses some
commodity of the judge; which must not be said directly, but implied
cunningly.
For the _torture_, if the giving of it make for us, we must say: That it
is the only testimony that is certain. But if it make for the adversary,
we may say: That men enforced by torture, speak as well that which is
false as that which is true. That they, who can endure, conceal the
truth; and they who cannot, say that which is false, to be delivered
from pain.
For _oaths_, he that will not put his adversary to his oath, may allege:
That he makes no scruple to be forsworn. That by swearing he will carry
the cause, which, not swearing, he must lose. That he had rather trust
his cause in the hands of the judge, than of the adversary.
He that _refuseth_ to take the oath may say: That the matter is not
worth so much. That if he had been an evil man, he had _sworn_, and
carried his cause. That to try it by _swearing_, for a religious man
against an irreligious is as hard a match, as to set a weak man against
a strong in combat.
He that is _willing_ to take the oath, may pretend: That he had rather
trust himself, than his adversary; and that it is equal dealing for an
irreligious man to _give_, and for a religious man to _take_ the oath.
That it is his duty to take the oath, since he has required to have
_sworn judges_.
He that _offers_ the oath, may pretend: That he does piously commit his
cause to the Gods. That he makes his adversary himself judge. That it
were absurd for him not to swear, that has required the judges to be
sworn.
And of these are to be compounded the forms we are to use, when we would
_give_, and _not take_ the oath; or _take_ and _not give_; or _both
give_ and _take_; or _neither give nor take_.
But if one have sworn contrary to a former oath, he may pretend: That he
was forced: that he was deceived; and that neither of these is
_perjury_, since _perjury_ is voluntary.
But if the adversary do so, he may say: That he that stands not to what
he hath _sworn_, subverteth human society. And (turning to the judge):
What reason have we to require, that you should be _sworn_ that judge
our cause; when we will not stand to that we _swear_ ourselves?
And so much for _proofs inartificial_.
BOOK II.
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CHAPTER I.
THE INTRODUCTION.
Of _belief_ proceeding from our _invention_, that part which consisteth
in _proof_ is already spoken of.
The other two parts follow; whereof one ariseth from the _manners_ of
the _speaker_, the other from the _passions_ of the _hearer_.
The _principles_, _colours_, or _common opinions_ upon which a man’s
belief is grounded concerning the manners of him that speaks, are to be
had, partly out of that which hath before been said of _virtue_ (Book I.
chap. 9); partly out of those things which shall be said by-and-by
concerning the _passions_. For a man is _believed_, either for his
_prudence_ or for his _probity_, which are _virtues_; or for _good
will_, of which among the _passions_.
The _principles_ concerning belief, arising from the passion of the
hearer, are to be gathered from that which shall now be said of the
several passions in order.
In every one of which, three things are to be considered.
1. First, _how_ men are affected.
2. Secondly, _towards whom_.
3. Thirdly, _for what_.
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CHAPTER II.
OF ANGER.
_Anger_ is desire of revenge, joined with grief, for that he, or some of
his, is, or seems to be, _neglected_.
The object of anger is always some particular or individual thing.
In anger there is also pleasure proceeding from the imagination of
revenge to come.
To _neglect_, is to esteem little or nothing; and of three kinds: 1
_Contempt_, 2 _Crossing_, 3 _Contumely_.
_Contempt_, is when a man thinks another of little worth in comparison
to himself.
_Crossing_, is the hinderance of another man’s will without design to
profit himself.
_Contumely_, is the disgracing of another for his own pastime.
The _common opinions_ concerning anger are therefore such as follow.
They are easily angry, that think they are neglected. That think they
excel others; as the rich with the poor; the noble with the obscure, &c.
And such as think they deserve well. And such as grieve to be hindered,
opposed, or not assisted; and therefore sick men, poor men, lovers, and
generally all that desire and attain not, are angry with those that,
standing by, are not moved by their wants. And such as having expected
good, find evil.
Those that men are angry with, are: such as mock, deride, or jest at
them. And such as shew any kind of contumely towards them. And such as
despise those things which we spend most labour and study upon; and the
more, by how much we seem the less advanced therein. And our friends,
rather than those that are not our friends. And such as have honoured
us, if they continue not. And such as requite not our courtesy. And such
as follow contrary courses, if they be our inferiors. And our friends,
if they have said or done us evil, or not good. And such as give not ear
to our entreaty. And such as are joyful or calm in our distress. And
such as troubling us, are not themselves troubled. And such as willingly
hear or see our disgraces. And such as neglect us in the presence of our
competitors, of those we admire, of those we would have admire us, of
those we reverence, and of those that reverence us. And such as should
help us, and neglect it. And such as are in jest, when we are in
earnest. And such as forget us, or our names.
An orator therefore must so frame his judge or auditor by his oration,
as to make him apt to _anger_: and then make his adversary appear such
as men use to be _angry withal_.
==========
CHAPTER III.
OF RECONCILING, OR PACIFYING ANGER.
_Reconciliation_ is the appeasing of anger.
Those to whom men are easily reconciled, are: such as have not offended
out of neglect. And such as have done it against their will. And such as
wish done the contrary of what they have done. And such as have done as
much to themselves. And such as confess and repent. And such as are
humbled. And such as do seriously the same things, that they do
seriously. And such as have done them more good heretofore, than now
hurt. And such as sue to them for any thing. And such as are not
insolent, nor mockers, nor slighters of others in their own disposition.
And generally such as are of a contrary disposition to those whom men
are usually angry withal. And such as they fear or reverence. And such
as reverence them. And such as have offended their anger.
_Reconcileable_ are: such as are contrarily affected to those, whom we
have said before to be easily angry. And such as play, laugh, make
merry, prosper, live in plenty; and, in sum, all that have no cause of
grief. And such as have given their anger time.
Men lay down their anger for these causes. Because they have gotten the
victory. Because the offender has suffered more than they meant to
inflict. Because they have been revenged of another. Because they think
they suffer justly. And because they think the revenge will not be felt,
or not known that the revenge was theirs, and for such an injury. And
because the offender is dead.
Whosoever therefore would _assuage_ the anger of his _auditor_, must
make himself appear such as men use to be _reconciled_ unto: and beget
in his _auditor_ such opinions as make him _reconcileable_.
==========
CHAPTER IV.
OF LOVE AND FRIENDS.
To _love_ is to will well to another, and that for others, not for our
own sake.
A _friend_ is he that _loves_, and he that is _beloved_.
_Friends_ one to another, are they that naturally _love_ one another.
A _friend_ therefore is he; that rejoiceth at another’s good. And that
grieves at his hurt. And that wishes the same with us to a third,
whether good or hurt. And that is _enemy_ or _friend_ to the same man.
We _love_ them: that have done good to us, or ours; especially if much,
readily, or in season. That are our friends' _friends_. That are our
enemies' _enemies_. That are liberal. That are valiant. That are just.
And that we would have love us. And good companions. And such as can
abide jests. And such as break jests. And such as praise us, especially
for somewhat that we doubt of in ourselves. And such as are neat. And
such as upbraid us not with our vices, or with their own benefits. And
such as quickly forget injuries. And such as least observe our errors.
And such as are not of ill tongue. And those that are ignorant of our
vices. And such as cross us not when we are busy or angry. And such as
are officious towards us. And those that are like us. And such as follow
the same course or trade of life, where they impeach not one another.
And such as labour for the same thing, when both may be satisfied. And
such as are not ashamed to tell us freely their faults, so it be not in
contempt of us, and the faults such as the world, rather than their own
consciences, condemns. And such as are ashamed to tell us of their very
faults. And such as we would have honour us, and not envy, but imitate
us. And such as we would do good to, except with greater hurt to
ourselves. And such as continue their friendship to the dead. And such
as speak their mind. And such as are not terrible. And such as we may
rely on.
The several _kinds_ of _friendship_, are _society_, _familiarity_,
_consanguinity_, _affinity_ _&c._
The things that _beget love_, are, the bestowing of benefits, _gratis_;
_unasked_; _privately_.
==========
CHAPTER V.
OF ENMITY AND HATRED.
The _colours_ or _common opinions_ concerning _hatred_, are to be taken
from the _contrary_ of those which concern love and friendship.
_Hatred_ differs from anger in this; that anger regards only what is
done to oneself; but _hatred_ not. And in this, that anger regards
particulars only; the other, universals also. And in this, that anger is
curable; hatred not. And in this, that anger seeks the vexation, hatred
the damage, of one’s adversary. That with anger there is always joined
grief; with hatred, not always. That anger may at length be satiated;
but hatred never.
Hence it appears how the judge or auditor may be made _friend_ or
_enemy_ to us, and how our adversary may be made appear _friend_ or
_enemy_ to the judge; and how we may answer to our adversary, that would
make us appear _enemies_ to him.
==========
CHAPTER VI.
OF FEAR.
_Fear_ is a trouble or vexation of the mind, arising from the
apprehension of an evil at hand, which may hurt or destroy. _Danger_ is
the nearness of the evil feared.
The _things_ to be feared are: such as have power to hurt. And the signs
of will to do us hurt; as anger and hatred of powerful men. And
injustice joined with power. And valour provoked, joined with power. And
the fear of powerful men.
The _men_ that are to be feared, are: such as know our faults. And such
as can do us injury. And such as think they are injured by us. And such
as have done us injury. And our competitors in such things as cannot
satisfy both. And such as are feared by more powerful men than we are.
And such as have destroyed greater men than we are. And such as use to
invade their inferiors. And men not passionate, but dissemblers and
crafty, are more to be feared than those that are hasty and free.
The things _especially_ to be feared, are: such, wherein if we err, the
error cannot be repaired; at least, not according to ours, but our
adversary’s pleasure. And such as admit either none, or not easy help.
And such as being done, or about to be done to others, make us pity
them.
They that _fear not_ are: such as expect not evil; or not now; or not
this; or not from these. And therefore men fear little in _prosperity_.
And men fear little, that think they have suffered already.
An orator therefore that would put _fear_ into the auditor, must let him
see that he is obnoxious; and that greater than he do suffer and have
suffered from those, and at those times, they least thought.
==========
CHAPTER VII.
OF ASSURANCE.
_Assurance_ is hope, arising from an imagination that the help is near,
or the evil afar off.
The things therefore that beget assurance are: the remoteness of those
things that are to be feared, and the nearness of their contraries. And
the facility of great or many helps or remedies. And neither to have
done, nor received injury. And to have no competitors, or not great
ones; or if great ones, at least friends, such as we have obliged, or
are obliged to. And that the danger is extended to more or greater than
us.
_Assured_ or _confident_, are: they that have oft escaped danger. And
they, to whom most things have succeeded well. And they, that see their
equals or inferiors not afraid. And they, that have wherewith to make
themselves feared; as wealth, strength, &c. And such as have done others
no wrong. And such as think themselves in good terms with God Almighty.
And such as think they will speed well, that are gone before.
==========
CHAPTER VIII.
OF SHAME.
_Shame_ is a perturbation of the mind arising from the apprehension of
evil, past, present, or to come, to the prejudice of a man’s own, or his
friends' reputation.
The things therefore which men are _ashamed of_, are those actions which
proceed from vice: as to throw away one’s arms, to run away, signs of
cowardliness. To deny that which is committed to one’s trust, a sign of
injustice. To have lain with whom, where, and when, we ought not, signs
of intemperance. To make gain of small and base things; not to help with
money whom and how much we ought; to receive help from meaner men; to
ask money at use from such as one thinks will borrow of him; to borrow
of him that expects payment of somewhat before lent; and to re-demand
what one has lent, of him that one thinks will borrow more; and so to
praise as one may be thought to ask; signs of wretchedness. To praise
one to his face; to praise his virtues too much, and colour his vices;
signs of flattery. To be unable to endure such labours as men endure
that are elder, tenderer, greater in quality, and of less strength than
he; signs of effeminacy. To be beholden often to another; and to upbraid
those that are beholden to him; signs of pusillanimity. To speak and
promise much of one’s self, more than is due; signs of arrogance. To
want those things which one’s equals, all or most of them, have attained
to, is also a thing to be ashamed of. And to suffer things ignominious;
as to serve about another’s person, or to be employed in his base
actions.
In actions of intemperance, whether willingly or unwillingly committed,
there is _shame_; in actions of force, only when they are done
unwillingly.
The men _before whom_ we are ashamed, are such as we respect: namely,
those that admire us. And those whom we desire should admire us. And
those whom we admire. Those that contend with us for honour. Those whose
opinion we contemn not. And therefore men are most ashamed in the
presence: of old and well bred men. Of those we are always to live with.
Of those that are not guilty of the same fault. Of those that do not
easily pardon. And of those that are apt to reveal our faults; such as
are men injured, backbiters, scoffers, comic poets. And of those before
whom we have had always good success. And of those who never asked
anything of us before. And of such as desire our friendship. And of our
familiars, that know none of our crimes. And of such as will reveal our
faults to any of those that are named before.
But in the presence of such whose judgment most men despise, men are not
ashamed. Therefore we are ashamed also in the presence of those whom we
reverence. And of those who are concerned in our own, or ancestors', or
kinsfolk’s, actions or misfortunes, if they be shameful. And of their
rivals. And of those that are to live with them that know their
disgrace.
The _common opinions_ concerning _impudence_, are taken from the
contrary of these.
==========
CHAPTER IX.
OF GRACE OR FAVOUR.
_Grace_ is that virtue, by which a man is said to do a good turn or to
do service to a man in need, not for his own, but for his cause to whom
he does it.
_Great_ grace is when the need is great; or when they are hard or
difficult things that are conferred; or when the time is seasonable; or
when he that confers the _favour_, is the only or first man that did it.
_Need_ is a desire, joined with grief, for the absence of the thing
desired. _Grace_ therefore it is not, if it be done to one that needs
not. Whosoever therefore would prove that he has done a _grace_ or
_favour_, must show that he needeth it to whom it was done.
_Grace_ it is not, which is done by chance. Nor which is done by
necessity. Nor which has been requited. Nor that which is done to one’s
enemy. Nor that which is a trifle. Nor that which is nought, if the
giver know the fault.
And in this manner a man may go over the predicaments, and examine a
benefit, whether it be a _grace_ for being _this_, or for being _so
much_, or for being _such_, or for being _now_, &c.
==========
CHAPTER X.
OF PITY OR COMPASSION.
_Pity_ is a perturbation of the mind, arising from the apprehension of
hurt or trouble to another that doth not deserve it, and which he thinks
may happen to himself or his.
And because it appertains to _pity_ to think that he, or his, may fall
into the misery he pities in others; it follows that they be _most
compassionate_: who have passed through misery. And old men. And weak
men. And timorous men. And learned men. And such as have parents, wife
and children. And such as think there be honest men.
And that they are _less compassionate_: who are in great despair. Who
are in great prosperity. And they that are angry; for they consider not.
And they that are very confident; for they also consider not. And they
that are in the act of contumely; for neither do these consider. And
they that are astonished with fear. And they that think no man honest.
The _things_ to be pitied are: such as grieve, and withal hurt. Such as
destroy. And calamities of fortune, if they be great: as none or few
friends, deformity, weakness, lameness, &c. And evil that arrives where
good is expected. And after extreme evil, a little good. And through a
man’s life to have no good offer itself; or being offered, not to have
been able to enjoy it.
_Men_ to be pitied are: such as are known to us, unless they be so near
to us, as their hurt be our own. And such as be of our own years. Such
as are like us in manners. Such as are of the same, or like stock. And
our equals in dignity. Those that have lately suffered, or are shortly
to suffer injury: and those that have the marks of injury past. And
those that have the words or actions of them that be in present misery.
==========
CHAPTER XI.
OF INDIGNATION.
Opposite in a manner to pity in _good_ men, is _indignation_; which is
grief for the prosperity of a man unworthy.
With _indignation_ there is always joined a joy for the prosperity of a
man worthy; as _pity_ is always with contentment in the adversity of
them that deserve it.
In _wicked_ men the opposite of pity is _envy_; as also the companion
thereof, _delight in the harm of_ _others_, which the Greeks in one word
have called ἐπιχαιρεκακία. But of these in the next chapter.
Men conceive _indignation_ against others, not for their virtues, as
justice, &c.; for these make men worthy; and in _indignation_ we think
men unworthy: but for those goods which men indued with virtue, and
noble men, and handsome men are worthy of. And for newly-gotten power
and riches, rather than for ancient; and especially if by these he has
gotten other goods, as by riches, command. The reason why we conceive
greater _indignation_ against new than ancient riches, is that the
former seem to possess that which is none of theirs, but the ancient
seem to have but their own: for with common people, to have been so
long, is to be so by right. And for the bestowing of goods
incongruously: as when the arms of the most valiant Achilles were
bestowed on the most eloquent Ulysses. And for the comparison of the
inferior in the same thing, as when one valiant is compared with a more
valiant; or whether absolutely superior, as when a good scholar is
compared with a good man.
_Apt_ to indignation are: they that think themselves worthy of the
greatest goods, and do possess them. And they that are good. And they
that are ambitious. And such as think themselves deserve better what
another possesseth, than he that hath it.
_Least apt_ to indignation are, such as are of a poor, servile, and not
ambitious nature.
Who they are, that rejoice or grieve not at the adversity of him that
suffers worthily, and in what occasions, may be gathered from the
contrary of what has been already said.
Whoever therefore would turn away the _compassion_ of the judge, he must
make him apt to _indignation_; and shew that his adversary is unworthy
of the good, and worthy of the evil which happens to him.
==========
CHAPTER XII.
OF ENVY.
_Envy_ is grief for the prosperity of such as ourselves, arising not
from any hurt that we, but from the good that they receive.
Such as ourselves, I call those that are equal to us in blood, in age,
in abilities, in glory, or in means.
They are apt to _envy_: that are within a little of the highest. And
those that are extraordinarily honoured for some quality that is
singular in them, especially wisdom or good fortune. And such as would
be thought wise. And such as catch at glory in every action. And men of
poor spirits; for every thing appears great to them.
The _things_ which men envy in others are: such as bring glory. And
goods of fortune. And such things as we desire for ourselves. And things
in the possession whereof we exceed others, or they us, a little.
Obnoxious to _envy_ are: men of our own time, of our own country, of our
own age, and competitors of our glory; and therefore, those whom we
strive with for honour. And those that covet the same things that we do.
And those that get quickly, what we hardly obtain, or not at all. And
those that attain unto, or do the things that turn to our reproach, not
being done by us. And those that possess what we have possessed
heretofore; so old and decayed men envy the young and lusty. And those
that have bestowed little, are subject to be envied by such as have
bestowed much upon the same thing.
From the contraries of these may be derived the principles concerning
joy for other men’s hurt.
He therefore that would not have his enemy prevail, when he craves
_pity_ or other favour, must dispose the judge to _envy_; and make his
adversary appear such as are above described to be subject to the _envy_
of others.
==========
CHAPTER XIII.
OF EMULATION.
_Emulation_ is grief arising from that our equals possess such goods as
are had in honour, and whereof we are capable, but have them not; not
because they have them, but because not we also. No man therefore
_emulates_ another in things whereof himself is not capable.
Apt to _emulate_ are: such as esteem themselves worthy of more than they
have. And young and magnanimous men. And such as already possess the
goods for which men are honoured: for they measure their worth by their
having. And those that are esteemed worthy by others. And those whose
ancestors, kindred, familiars, nation, city, have been eminent for some
good, do _emulate_ others for that good.
_Objects_ of emulation are, for _things_; virtues. And things whereby we
may profit others. And things whereby we may please others.
For _persons_: they that possess such things. And such as many desire to
be friends or acquainted with, or like unto. And they whose praises fly
abroad.
The contrary of _emulation_ is _contempt_. And they that _emulate_ such
as have the goods aforementioned, _contemn_ such as have them not. And
thence it is, that men who live happily enough, unless they have the
goods which men honour, are nevertheless _contemned_.
==========
CHAPTER XIV.
OF THE MANNERS OF YOUTH.
Of _passions_ we have already spoken. We are next to speak of _manners_.
_Manners_ are distinguished by _passions_, _habits_, _ages_, and
_fortunes_.
What kind of _manners_ proceed from _passions_, and from _virtues_ and
_vices_, which are _habits_, hath been already shewed. There remains to
be spoken of the _manners_ that are peculiar to several _ages_ and
_fortunes_.
The _ages_ are _youth_, _middle-age_, _old age_. And first of _youth_.
_Young men_ are: violent in their desires. Prompt to execute their
desires. Incontinent. Inconstant, easily forsaking what they desired
before. Longing mightily, and soon satisfied. Apt to anger, and in their
anger violent; and ready to execute their anger with their hands. Lovers
of honour and of victory more than money, as having not been yet in
want. Well-natured, as having not been acquainted with much malice. Full
of hope, both because they have not yet been often frustrated, and
because they have by natural heat that disposition that other ages have
by wine; youth being a kind of natural drunkenness; besides, hope is of
the time to come, whereof youth hath much, but of the time past little.
Credulous, because not yet often deceived. Easily deceived, because full
of hope. Valiant, because apt to anger and full of hope; whereof this
begets confidence, the other keeps off fear. Bashful, because they
estimate the honour of actions by the precepts of the law. Magnanimous,
because not yet dejected by the misfortunes of human life. And lovers of
honour more than of profit, because they live more by custom than by
reason; and by reason we acquire profit, but virtue by custom. Lovers of
their friends and companions. Apt to err in the excess rather than the
defect, contrary to that precept of Chilon, _Ne quid nimis_; for they
overdo every thing: they love too much and hate too much; because
thinking themselves wise, they are obstinate in the opinion they have
once delivered. Doers of injury, rather for contumely than for damage.
Merciful, because, measuring others by their own innocence, they think
them better than they be, and therefore less to merit what they suffer;
which is a cause of pity. And lovers of mirth, and by consequence such
as love to jest at others.
_Jesting_ is witty contumely.
==========
CHAPTER XV.
OF THE MANNERS OF OLD MEN.
The manners of _old_ men are in a manner the contraries of those of
_youth_. They determine nothing. They do everything less vehemently than
is fit. They never say, they know; but to everything they say, perhaps
and peradventure; which comes to pass from that, having lived long, they
have often mistaken and been deceived. They are peevish, because they
interpret everything to the worst. And suspicious through incredulity,
and incredulous by reason of their experience. They love and hate, as if
they meant to continue in neither. Are of poor spirits, as having been
humbled by the chances of life. And covetous, as knowing how easy it is
to lose, and how hard to get. And timorous, as having been cooled by
years. And greedy of life; for good things seem greater by the want of
them. And lovers of themselves, out of pusillanimity. And seek profit
more than honour, because they love themselves; and profit is among the
goods that are not simply good, but good for one’s self. And without
bashfulness, because they despise seeming. And hope little; knowing by
experience that many times good counsel has been followed with ill
event; and because also they be timorous. And live by memory rather than
hope; for memory is of the time past, whereof old men have good store.
And are full of talk, because they delight in their memory. And vehement
in their anger, but not stout enough to execute it. They have weak or no
desires, and thence seem temperate. They are slaves to gain. And live
more by reason than custom; because reason leads to profit, as custom to
that which is honourable. And do injury to endamage, and not in
contumely. And are merciful by compassion, or imagination of the same
evils in themselves; which is a kind of infirmity, and not humanity, as
in _young men_, proceeding from a good opinion of those that suffer
evil. And full of complaint, as thinking themselves not far from evil
because of their infirmity.
Seeing then every man loves such men and their discourses which are most
agreeable to their own manners; it is not hard to collect, how the
orator and his oration may be made acceptable to the hearer, whether
_young_ or _old_.
==========
CHAPTER XVI.
OF THE MANNERS OF MIDDLE-AGED MEN.
The manners of _middle-aged_ men, are between those of _youth_ and _old
men_. And therefore they neither dare, nor fear too much; but both as is
fit. They neither believe all, nor reject all; but judge. They seek not
only what is honourable, nor only what is profitable; but both. They are
neither covetous, nor prodigal; but in the mean. They are neither easily
angry, nor yet stupid; but between both. They are valiant and withal
temperate.
And in general, whatsoever is divided in _youth_ and _old men_, is
compounded in _middle-age_. And whereof the excess or defect is in
_youth_ or _old men_, the mediocrity is in those of _middle-age_.
Middle-age for the _body_, I call the time from thirty to five and
thirty years: for the _mind_, the nine-and-fortieth, or thereabouts.
==========
CHAPTER XVII.
OF THE MANNERS OF THE NOBILITY.
Of manners that proceed from the several _ages_ we have already spoken.
We are next to speak of those that rise from several _fortunes_.
The manners of the _nobility_ are: to be ambitious. To undervalue their
ancestors' equals; for the goods of fortune seem the more precious for
their antiquity.
_Nobility_ is the virtue of a stock. And _generosity_, is not to
degenerate from the virtue of his stock. For as in plants, so in the
races of men, there is a certain progress; and they grow better and
better to a certain point; and change, viz. subtile wits into madness,
and staid wits into stupidity and blockishness.
==========
CHAPTER XVIII.
OF THE MANNERS OF THE RICH.
_Rich_ men are contumelious, and proud; this they have from their
riches; for seeing everything may be had for money, having money they
think they have all that is good. And effeminate: because they have
wherewithal to subminister to their lust. And boasters of their wealth,
and speak in high terms foolishly; for men willingly talk of what they
love and admire, and think others affect the same that they do; and the
truth is, all sorts of men submit to the rich. And think themselves
worthy to command, having that by which men attain command. And in
general they have the manners of fortunate fools. They do injury, with
intention not to hurt, but to disgrace; and partly also through
incontinence.
There is a difference between _new_ and _ancient_ riches. For they that
are _newly_ come to wealth, have the same faults in a greater degree;
for _new riches_ are a kind of rudeness and apprenticeship of _riches_.
==========
CHAPTER XIX.
OF THE MANNERS OF MEN IN POWER, AND OF SUCH AS PROSPER.
The manners of men _in power_, are the same, or better than those of the
_rich_. They have a greater sense of honour than the rich, and their
manners are more manly. They are more industrious than the rich, for
_power_ is sustained by industry. They are grave, but without
austereness; for being in place conspicuous, they carry themselves the
more modestly; and have a kind of gentle and comely gravity, which the
_Greeks_ call σεμνότης. When they do injuries, they do great ones.
The manners of men that _prosper_, are compounded of the manners of the
_nobility_, the _rich_, and those that are _in power_; for to some of
these all _prosperity_ appertains.
_Prosperity_ in children, and goods of the body, make men desire to
exceed others in the goods of fortune.
Men that _prosper_ have this ill; to be more proud and inconsiderate
than others. And this good; that they worship God, trusting in him, for
that they find themselves to receive more good than proceeds from their
industry.
The manners of _poor_ men, _obscure_ men, men _without power_, and men
_in adversity_, may be collected from the contrary of what has been
said.
==========
CHAPTER XX.
COMMON PLACES OR PRINCIPLES CONCERNING WHAT MAY BE DONE, WHAT HAS BEEN
DONE, AND WHAT SHALL BE DONE; OR OF FACT POSSIBLE, PAST AND FUTURE.
ALSO OF GREAT AND LITTLE.
We have hitherto set down such _principles_ as are peculiar to several
kinds of orations. Now we are to speak of such _places_ as are _common_
to them all; as these: _possible_, _done_, or _past_, _future_, _great_,
_small_.
_Possible_ is that: the contrary whereof is possible. And the like
whereof is possible. And than which some harder thing is possible. And
the beginning whereof is possible. And the end whereof is possible. And
the usual consequent whereof is possible. And whatsoever we desire. And
the beginning whereof is in the power of those whom we can either compel
or persuade. And part whereof is possible. And part of the whole that is
possible. And the general, if a particular. And a particular, if the
general. And of relatives, if one, the other. And that which without art
and industry is possible, is much more so with art and industry. And
that which is possible to worse, weaker, and more unskilful men, is much
more so to better, stronger, and more skilful.
The principles concerning _impossible_ are the contraries of these.
That _has been done_: than which a harder thing has been done. And the
consequent whereof has been done. And that which being possible, he had
a will to do, and nothing hindered. And that which was possible to him
in his anger. And that which he longed to do. And that which was before
upon the point of doing. And whose antecedent has been done; or that for
which it uses to be done. And if that for whose cause we do this, then
this.
The principles concerning _not done_ are the contraries of these.
That _shall be done_: which some man can, and means to do. And which
some man can, and desires to do. And which is in the way, and upon the
point to be done. And the antecedents whereof are past. And the motive
whereof is past.
Of _great_ and _small_, _more_ and _less_, see Chapter VII. of Book I.
==========
CHAPTER XXI.
OF EXAMPLE, SIMILITUDE, AND FABLES.
Of the _principles_, both general and special, from whence _proofs_ are
to be drawn, has been already spoken. Now follow the _proofs_
themselves, which are _examples_ or _enthymemes_.
An _example_, is either an example _properly so called_, as some action
past; or a _similitude_, which also is called a parable; or a _fable_,
which contains some action feigned.
An example, _properly so called_, is this: _Darius came not into Greece
till he had first subdued Egypt; Xerxes also conquered Egypt first; then
afterwards crossed the Hellespont; we ought therefore to hinder the King
of Persia from conquering Egypt_.
A _similitude_, or _parable_, is such as followeth: _They who choose
their magistrates by lot, are like them that choose for their champions
those on whom the lot shall fall, rather than those who have the
greatest strength; and for their pilot, not him that hath skill, but him
whose name is drawn out of the urn_.
A _fable_ is in this manner: _The horse desiring to drive out the stag
from his common pasture, took a man to assist him; and having received
into his mouth a bridle, and a rider upon his back, obtained his intent,
but became subject to the man. So you of Himera, having, in hope to be
revenged of your enemies, given unto Phalaris sovereign authority, that
is to say, taken a bridle into your mouths; if you shall also give him a
guard to his person, that is, let him get up upon your backs, you become
his slaves presently, past recovery._
To find out _examples_, that is, actions done that may serve our
purpose, is therefore hard, because not in our power. But to find
_fables_ and _similitudes_, is easier; because, by conversing in
philosophy, a man may feign somewhat in nature like to the case in hand.
_Examples_, _similitudes_, and _fables_, where _enthymemes_ are wanting,
may serve us in the beginning of an oration for inductions; otherwise
are to be alleged after enthymemes, for testimonies.
==========
CHAPTER XXII.
OF A SENTENCE.
A _sentence_ is an universal proposition concerning those things which
are to be desired or avoided in the actions or passions of the common
life. As, _A wise man will not suffer his children to be over-learned_.
And is to an _enthymeme_ in _rhetoric_, as any proposition is to a
_syllogism_ in _logic_. And therefore a _sentence_, if the reason be
rendered, becomes a _conclusion_; and both together make an _enthymeme_.
As for example: _To be over-learned, besides that it begets effeminacy,
procures envy. Therefore he that is wise will not suffer his children to
be over-learned._
Of _sentences_ there be four sorts. For they either require proofs or
not, that is, are manifest or not.
Such as are manifest, are either so as soon as they are uttered; as,
_Health is a great good_. Or as soon as they are considered; as, _Men
use to hate whom they have hurt_.
Such as are not manifest, are either conclusions of _enthymemes_; as,
_He that is wise will not suffer his children, &c._ Or else are
_enthymematical_; that is, have in themselves the force of an
_enthymeme_; as _Mortal men ought not to carry immortal anger_.
A _sentence_ not manifest, ought to be either _inferred_ or _confirmed_.
_Inferred_ thus: _It is not good to be effeminately minded, nor to be
envied by one’s fellow-citizens. A wise man, therefore, will not have
his children over-learned._ _Confirmed_ thus: _A wise man will not have
his children over-learned; seeing too much learning both softens a man’s
mind, and procures him envy among his fellow-citizens_.
If a reason be added to a manifest _sentence_, let it be short.
_Sentences_ become not every man; but only old men, and such as be
well-versed in business. For to hear a young man speak sentences, is
ridiculous; and to hear an ignorant man speak sentences, is absurd.
_Sentences_ generally received, when they are for our purpose, ought not
to be neglected; because they pass for truths. And yet they may be
denied, when any laudable custom or humour may thereby be made appear in
the denier.
The commodities of _sentences_, are two. One proceeding from the vanity
of the hearer, who takes for true universally affirmed, that which he
has found for true only in some particular; and therefore a man ought to
consider in every thing what opinion the hearer holds. Another is, that
sentences do discover the manners and disposition of the speaker; so
that if they be esteemed good sentences, he shall be esteemed a good
man; and if evil, an evil man.
Thus much of _sentences_, what they be; of how many sorts; how to be
used; whom they become; and what is their profit.
==========
CHAPTER XXIII.
OF THE INVENTION OF ENTHYMEMES.
Seeing an enthymeme differs from a logical syllogism, in that it neither
concludes out of every thing, nor out of remote principles; the _places_
of it, from whence a man may argue, ought to be certain and determinate.
And because whosoever makes a _syllogism_, rhetorical or other, should
know all or the most part of that which is in question; as, whosoever is
to advise the Athenians in the question, whether they are to make war or
no, must know what their revenues be, what and what kind of power they
have: and he that will praise them, must know their acts at Salamis,
Marathon, &c.: it will be necessary for a good speaker to have in
readiness the choicest particulars of whatsoever he foresees he may
speak of.
He that is to speak _ex tempore_, must comprehend in his speech as much
as he can of what is most _proper_ in the matter in hand.
_Proper_, I call those things which are least common to others: as, he
that will praise Achilles, is not to declare such things as are common
both to him and Diomedes; as that he was a prince, and warred against
the Trojans: but such things as are proper only to Achilles; as that he
killed Hector and Cygnus; went to the war young and voluntary.
Let this therefore be one general _place; from that which is proper_.
==========
CHAPTER XXIV.
OF THE PLACES OF ENTHYMEMES OSTENSIVE.
Forasmuch as enthymemes either infer truly, or seem only so to do; and
they which do infer indeed, be either _ostensive_, or such as bring a
man to some _impossibility_; we will first set down the places of
enthymemes _ostensive_.
An _ostensive_ enthymeme is, wherein a man concludes the question from
somewhat granted.
That enthymeme which brings a man to an _impossibility_, is an enthymeme
wherein from that which the adversary maintaineth, we conclude that
which is manifestly _impossible_.
All _places_ have been already set down in a manner in the precedent
propositions of _good_, _evil_, _just_, _unjust_, _honourable_, and
_dishonourable_: namely, they have been set down as applied to
_particular_ subjects, or in _concrete_. Here they are to be set down in
another manner; namely in the _abstract_ or _universal_.
The first _place_, then, let be from _contraries_; which in the
_concrete_ or particulars is exemplified thus. _If intemperance be
hurtful, temperance is profitable: and if intemperance be not hurtful,
neither is temperance profitable._
Another _place_ may be from _cognomination_, or affinity of words: as in
this particular. _If what is just, be good; then what is justly, is
well: but justly to die, is not well: therefore not all that is just, is
good._
A third from _relatives_; as, _This man has justly done, therefore the
other has justly suffered._ But this _place_ sometimes deceives; for a
man may suffer _justly_, yet not from _him_.
A fourth from _comparison_, three ways.
From the _great to the less_; as, _He has stricken his father; and
therefore this man._
From the _less to the greater_: as, _The Gods know not all things; much
less man._
From _equality_: as, _If captains be not always the worse esteemed for
losing a victory; why should sophisters?_
Another from the time: as Philip to the Thebans: _If I had required to
pass through your country with my army, before I had aided you against
the Phocæans, there is no doubt but you would have promised it me. It is
absurd therefore to deny it me now, after I have trusted you._
A sixth from _what the adversary says of himself_: as, _Iphicrates asked
Aristophon, whether he would take a bribe to betray the army; and he
answering no; What, says he, is it likely that Iphicrates would betray
the army, and Aristophon not?_
This _place_ would be ridiculous, where the _defendant_ were not in much
more estimation than the _accuser_.
A seventh from the _definition_; as that of Socrates; _A spirit is
either God, or the creature of God; and therefore he denies not that
there is a God, that confesses there are spirits_.
An eighth from the _distinction of an ambiguous word_.
A ninth from _division_: as, _If all men do what they do for one of
three causes, whereof two are impossible; and the accuser charge not the
defendant with the third; it follows that he has not done it_.
A tenth from _induction_: as, _At Athens, at Thebes, at Sparta, &c.; and
therefore every where_.
An eleventh from _authority_, or precedent sentence; as that of Sappho,
that _Death is evil; for that the gods have judged it so, in excepting
themselves from mortality_.
A twelfth from the _consequence_; as, _It is not good to be envied;
therefore neither to be learned. It is good to be wise, therefore also
to be instructed._
A thirteenth from _two contrary consequences_; as, _It is not good to be
an orator; because if he speak the truth, he shall displease men, if he
speak falsely, he shall displease God_.
Here is to be noted, that sometimes this argument may be retorted: as
thus, _If you speak truth, you shall please God; if you speak untruth,
you shall please men; therefore by all means be an orator_.
A fourteenth from the _quality that men have to praise one thing and
approve another_: as, _We ought not to war against the Athenians upon no
precedent injury; for all men discommend injustice_. Again, _We ought to
war against the Athenians; for otherwise our liberty is at their mercy,
that is, is no liberty: but the preservation of liberty is a thing that
all men will approve_.
A fifteenth from _proportion_: as, _Seeing we naturalize strangers for
their virtues, why should we not banish this stranger for his vices?_
A sixteenth from _the similitude of consequents_: as _He that denies the
immortality of the gods, is no worse than he that has written the
generation of the gods: for the same consequence follows of both, that
sometimes there are none_.
A seventeenth from that, _that men change their mind_: as, _If when we
were in banishment, we fought to recover our country, why should we not
fight now to retain it?_
An eighteenth from _a feigned end_: as that _Diomedes chose Ulysses to
go with him, not as more valiant than another, but as one that would
partake less of the glory_.
A nineteenth from the _cause_; as if he would infer he did it from this,
_that he had cause to do it_.
A twentieth from _that which is incredible, but true_: as that _laws may
need a law to mend them, as well as fish bred in the salt water may need
salting_.
==========
CHAPTER XXV.
OF THE PLACES OF ENTHYMEMES THAT LEAD TO
IMPOSSIBILITY.
Let the first place be from inspection of _times_, _actions_, or
_words_, either of the adversary, or of the speaker, or both. Of the
adversary: as, _He says he loves the people, and yet he was in the
conspiracy of the Thirty_. Of the speaker; as, _He says I am
contentious, and yet I never began suit_. Of both; as, _He never
conferred any thing to the benefit of the commonwealth; whereas I have
ransomed divers citizens with mine own money_.
A second is from _shewing the cause which seemed amiss_, and serves for
men of good reputation that are accused; as, The mother that was accused
of incest for being seen embracing her son, was absolved as soon as she
made appear that she embraced him upon his arrival from far by way of
salutation.
A third, from _rendering of the cause_; as, Leodamas, to whom it was
objected, that he had, under the thirty tyrants, defaced the
inscription, which the people had set up in a pillar, of his ignominy;
answered, _He had not done it; because it would have been more to his
commodity to let it stand; thereby to endear himself to the tyrants by
the testimony of the people’s hatred_.
A fourth from _better counsel_; as _He might have done better for
himself, therefore he did not this_. But this place deceives, when the
_better counsel_ comes to mind after the fact.
A fifth from _the incompatibility of the things to be done_; as, They
that did deliberate whether they should both mourn and sacrifice at the
funeral of Leucothea, were told that, _if they thought her a goddess,
they ought not to mourn; and if they thought her a mortal, they ought
not to sacrifice_.
A sixth (which is proper to judicial orations) from an _inference of
error_; as, _If he did it not, he was not wise; therefore he did it_.
Enthymemes that lead to _impossibility_, please more than _ostensive_.
For they compare and put contraries together, whereby they are the
better set off and more conspicuous to the auditor.
Of all enthymemes, they be best which we assent to as soon as hear. For
such consent pleaseth us, and makes us favourable to the speaker.
==========
CHAPTER XXVI.
OF THE PLACES OF SEEMING ENTHYMEMES.
Of _seeming_ enthymemes, one place may be from _the form of speaking_.
As when a man has repeated divers sentences, he brings in his conclusion
as if it followed necessarily, though it do not.
A second from _an ambiguous word_.
A third from that which is _true, divided_, to that which is _false,
joined_; as that of Orestes, _It was justice that I should revenge my
father’s death, and it was justice my mother should die for killing my
father: therefore I justly killed my mother_. Or from that which is
_true, joined_, to that which is _false, divided_; as, _one cup of wine,
and one cup of wine, are hurtful; therefore one cup of wine is hurtful_.
A fourth, from _amplification of the crime_. For neither is the
_defendant_ likely to have committed the crime he _amplifies_; nor does
the _accuser_ seem, when he is passionate, to want ground for his
accusation.
A fifth from _signs_; as, when a man concludes the doing of the fact
from the manner of his life.
A sixth from _that which comes by chance_. As if from this, that the
tyranny of Hipparchus came to be overthrown from the love of
Aristogeiton to Harmodius, a man should conclude that in a free
commonwealth loving of boys were profitable.
A seventh from the _consequence_; as, _Banishment is to be desired,
because a banished man has choice of places to dwell in_.
An eighth from _making that the cause which is not_; as, _In
Demosthenes' government the war began; therefore Demosthenes governed
well. With the Peloponnesian war began the plague, therefore Pericles,
that persuaded that war, did ill._
A ninth from _the omission of some circumstance_; as, _Helen did what
was lawful when she ran away with Paris, because she had her father’s
consent to choose her own husband_; which was true only during the time
that she had not chosen.
A tenth from that which is _probable_, in _some case_, to that which is
_probable simply_; as, _It is probable he foresaw that if he did it he
should be suspected; therefore it is probable he did it not_. From this
place one may infer both ways that _he did it not_. For if he be not
likely to do it, it may be thought _he did it not_: again, if he were
likely to do it, it may be thought _he did it not_, for this, _that he
knew he should be suspected_.
Upon this place was grounded the art which was so much detested in
Protagoras, of making the better cause seem the worse, and the worse the
better.
==========
CHAPTER XXVII.
OF THE WAYS TO ANSWER THE ARGUMENTS OF THE ADVERSARY.
An _argument_ is answered by an _opposite syllogism_, or by an
_objection_.
The places of _opposite syllogisms_ are the same with the places of
syllogisms, or enthymemes; for a rhetorical syllogism is an enthymeme.
The places of _objections_ are four.
First, from _the same_. As, to the adversary that proves love to be good
by an enthymeme, may be _objected_, that, _No want is good, and yet love
is want_; or particularly thus, _The love of Myrrha to her father was
not good_.
The second from _contraries_. As, if the adversary say, _A good man does
good to his friends_, an _objection_ might be made, that then _an evil
man will do also evil to his friends_.
The third from _similitude_. As thus, if the adversary say, all men that
are injured do hate those that have injured them, it may be _objected_,
that then _all men that had received benefits should love their
benefactors_, that is to say, be grateful.
The fourth from the _authority of famous men_. As when a man shall say,
that drunken men ought to be pardoned those acts they do in their
drunkenness, because they know not what they do; the _objection_ may be,
that _Pittacus was of another mind, that appointed for such acts a
double punishment; one for the act, another for the drunkenness_.
And forasmuch as all enthymemes are drawn from _probability_, or
_example_, or from a _sign fallible_, or from a _sign infallible_: an
enthymeme from _probability_ may be confuted _really_, by showing that
for the most part it falls out otherwise; but _apparently_ or
_sophistically_, by showing only that it does not fall out so always;
whereupon the judge thinks the _probability_ not sufficient to ground
his sentence upon. The reason whereof is this, that the judge, while he
hears the fact proved _probable_, conceives it as true. For the
understanding has no object but _truth_. And therefore, by-and-by, when
he shall hear _an instance_ to the contrary, and thereby find that he
had no necessity to think it _true_, presently changes his opinion, and
thinks it _false_, and consequently not so much as _probable_. For he
cannot at one time think the same thing both _probable_ and _false_; and
he that says a thing is _probable_, the meaning is, he thinks it _true_,
but finds not arguments enough to prove it.
An enthymeme, from a _fallible sign_, is answered by _showing_ the sign
to be fallible.
An enthymeme from an _example_, is answered as an enthymeme from
_probability_; _really_ by showing _more examples_ to the contrary;
_apparently_, if he bring _examples_ enough to make it seem _not
necessary_.
If the adversary have more examples than we, we must make it appear that
they are not applicable to the case.
An enthymeme from an _infallible_ sign, if the proposition be _true_, is
unanswerable.
==========
CHAPTER XXVIII.
AMPLIFICATION AND EXTENUATION ARE NOT COMMON PLACES. ENTHYMEMES, BY
WHICH ARGUMENTS ARE ANSWERED, ARE THE SAME WITH THOSE BY WHICH THE
MATTER IN QUESTION IS PROVED OR DISPROVED. OBJECTIONS ARE NOT
ENTHYMEMES.
The first, that _amplification_ and _extenuation_ are not _common
places_, appears by this, that amplification and extenuation do prove a
fact to be _great_ or _little_; and are therefore enthymemes to be
_drawn from_ common places, and therefore are not the _places_
themselves.
The second, that enthymemes, by which arguments are answered, are of the
same kind with those by which the matter in question is proved, is
manifest by this, that these infer the opposite of what was proved by
the other.
The third, that an _objection_ is no _enthymeme_, is apparent by this,
that an _objection_ is no more but an _opinion_, _example_, or other
_instance_, produced to make appear that the adversary’s argument does
not conclude.
Thus much of _examples_, _sentences_, _enthymemes_, and generally of all
things that belong to _argumentation_; from what _places_ they may be
drawn or answered.
There remain _elocution_ and _disposition_ to be spoken of in the next
book.
BOOK III.
==========
CHAPTER I.
OF THE ORIGINAL OF ELOCUTION AND PRONUNCIATION.
Three things being necessary to an oration, namely _proof_, _elocution_,
and _disposition_; we have done with the first, and shall speak of the
other two in that which follows.
As for _action_ or _pronunciation_, so much as is necessary for an
orator may be fetched out of the book of the _Art of Poetry_, in which
we have treated of the _action_ of the _stage_. For _tragedians_ were
the first that invented such _action_, and that but of late; and it
consisteth in governing well the _magnitude_, _tone_, and _measure_ of
the _voice_; a thing less subject to _art_, than is either _proof_ or
_elocution_.
And yet there have been rules delivered concerning it, as far forth as
serve for _poetry_. But _oratorical action_ has not been hitherto
reduced to _art_. And _orators_ in the beginning, when they saw that the
_poets_ in barren and feigned arguments nevertheless attained great
reputation; supposing it had proceeded from the choice or connexion of
words, fell into a style, by imitation of them, approaching to verse,
and made choice of words. But when the _poets_ changed their style, and
laid by all words that were not in common use, the _orators_ did the
same, and lighted at last upon words and a government of the voice and
measures proper to themselves.
Seeing therefore _pronunciation_ or _action_ are in some degree
necessary also for an _orator_, the precepts thereof are to be fetched
from the _Art of Poetry_.
In the meantime this may be one general rule. If the _words_, _tone_,
_greatness_ of the voice, _gesture_ of the body and countenance, seem to
proceed all from one passion, then it is well pronounced. Otherwise not.
For when there appear more passions than one at once, the mind of the
speaker appears unnatural and distracted. Otherwise, as the mind of the
speaker, so the mind of the hearer always.
==========
CHAPTER II.
OF THE CHOICE OF WORDS AND EPITHETS.
The virtues of a _word_ are two; the first, that it be _perspicuous_;
the second, that it be _decent_, that is, neither _above_ nor _below_
the thing signified, or, neither too humble nor too fine.
_Perspicuous_ are all words that be _proper_.
_Fine_ words are those, that are _borrowed_, or _translated_ from other
significations; of which in the _Art of Poetry_.
The reason why _borrowed_ words please, is this. Men are affected with
_words_, as they are with _men_; admiring in both that which is
_foreign_ and _new_.
To make a _poem_ graceful, many things help; but few an _oration_. For
to a _poet_ it sufficeth, with what _words_ he can, to set out his
_poem_. But an _orator_ must not only do that, but also seem not to do
it: for else he will be thought to speak unnaturally, and not as he
thinks; and thereby be the less believed; whereas _belief_ is the scope
of his oration.
The _words_ that an _orator_ ought to use are of three sorts; _proper_,
such as are _received_, and _metaphors_.
_Words_ taken from foreign languages, words compounded, and words new
coined, are seldom to be used.
_Synonymes_ belong to _poets_, and _equivocal_ words to _sophisters_.
An orator if he use _proper_ words, and _received_ and _good metaphors_,
shall both make his oration _beautiful_, and not seem to intend it; and
shall speak _perspicuously_. For in a _metaphor_ alone there is
_perspicuity_, _novity_, and _sweetness_.
Concerning _metaphors_ the rules are these:
1. He that will make the best of a thing, let him draw his _metaphor_
from somewhat that is better. As for example, let him call a _crime_ an
_error_. On the other side, when he would make the worst of it, let him
draw his _metaphor_ from somewhat worse; as, calling _error_, _crime_.
2. A _metaphor_ ought not to be so far-fetched, as that the similitude
may not easily appear.
3. A _metaphor_ ought to be drawn from the noblest things; as the
_poets_ do, that choose rather to say _rosy-fingered_, than
_red-fingered Aurora_.
In like manner the rule of _epithets_ is, that he that will adorn,
should use those of the better sort; and he that will disgrace, should
use those of the worse. As Simonides being to write an _ode_ in honour
of the victory gotten in a course by certain mules, being not well paid,
called them by their name, Ἡμιόνους, that signifies their propinquity to
asses: but having received a greater reward, styles them the _sons of
swift-footed coursers_.
==========
CHAPTER III.
OF THE THINGS THAT MAKE AN ORATION FLAT.
The things that make an oration _flat_ or _insipid_, are four:
1. _Words compounded._ And yet a man may compound a word, when the
composition is necessary for want of a simple word, and easy, and seldom
used.
2. _Foreign words._ As for example, such as are newly derived from the
Latin; which though they were proper among them whose tongue it is, are
foreign in another language: and yet these may be used, so it be
moderately.
3. _Long_, _impertinent_, and _often epithets_.
4. _Metaphors indecent_ and _obscure_. _Obscure_ they are, when they are
far-fetched. _Indecent_, when they are _ridiculous_, as in _comedies_;
or _too grave_, as in _tragedies_.
==========
CHAPTER IV.
OF A SIMILITUDE.
A _similitude_ differs from a _metaphor_ only by such particles of
comparison as these; _as_; _even_ _as_; _so_; _even so_, &c.
A _similitude_ therefore is a _metaphor dilated_; and a _metaphor_ is a
_similitude contracted_ into one word.
A _similitude_ does well in an oration, so it be not too frequent; for
it is poetical.
An example of the _similitude_, is this of Pericles, that said in his
oration, _that the Bœotians were like so many oaks in a wood, that did
nothing but beat one another_.
==========
CHAPTER V.
OF THE PURITY OF LANGUAGE.
Four things are necessary to make language pure.
1. The right rendering of those _particles_, which some antecedent
_particle_ does require; as to a _not only_, a _not also_; and then they
are rendered right, when they are not suspended too long.
2. _The use of proper words_, rather than _circumlocutions_; unless
there be motive to make one do it of purpose.
3. That there be nothing of _double construction_, unless there be cause
to do it of purpose; as the prophets of the heathen, who speak in
general terms, to the end they may the better maintain the truth of
their prophecies; which is easier maintained in _generals_, than in
_particulars_. For it is easier to divine whether a number be _even_ or
_odd_, than _how many_; and that a thing _will be_, than _what_ it will
be.
4. Concordance of gender, number, and person; as not to say _him_ for
_her_, _man_ for _men_, _hath_ for _have_.
In sum, a man’s language ought to be easy for another to read,
pronounce, and point.
Besides, to divers _antecedents_, let divers _relatives_, or one common
to them all, be correspondent; as, he _saw_ the colour, he _heard_ the
sound; or he _perceived_ both colour and sound: but by no means, _he
heard or saw_ both.
Lastly, that which is to be interposed by _parenthesis_, let it be done
quickly: as, _I purposed, having spoken to him_ (_to this, and to this
purpose_), _afterward to be gone_. For to put it off thus; _I resolved,
after I had spoken to him, to be gone; but the subject of my speech was
to this and this purpose_; is vicious.
==========
CHAPTER VI.
OF THE AMPLITUDE AND TENUITY OF LANGUAGE.
A man shall add _amplitude_ or _dignity_ to his language, but by such
means as these.
1. By changing the _name_ with the _definition_, as occasion shall
serve. As, when the _name_ shall be indecent, by using the _definition_;
or contrary.
2. By _metaphors_.
3. By using the _plural_ number for the _singular_.
4. By _privative epithets_.
==========
CHAPTER VII.
OF THE CONVENIENCE OR DECENCY OF ELOCUTION.
_Elocutions_ are made _decent_:
1. By speaking _feelingly_; that is, with such passion as is fit for the
matter he is in; as, _angerly_ in matter of _injury_.
2. By speaking as becomes the _person_ of the _speaker_; as for a
_gentleman_ to speak _eruditely_.
3. By speaking _proportionably_ to the matter; as of _great affairs_ to
speak in a _high_, and of _mean_, in a _low_ style.
4. By abstaining from _compounded_, and from _out-landish words_: unless
a man speak _passionately_, and have already moved, and, as it were,
inebriated his hearers; or _ironically_.
It confers also to persuasion very much, to use these ordinary forms of
speaking; _all men know_, _it is confessed by all_, _no man will deny_,
and the like. For the hearer consents, surprised with the fear to be
esteemed the only ignorant man.
It is good also, having used a word that signifies more than the matter
requires, to abstain from the _pronunciation_ and _countenance_ that to
such a word belongs; that the disproportion between it and the matter
may the less appear. And when a man has said too much, it will show well
to correct himself: for he will get belief by seeming to consider what
he says. But in this a man must have a care not to be too precise in
showing of this consideration. For the ostentation of carefulness is an
argument oftentimes of lying; as may be observed in such as tell
particularities not easily observed, when they would be thought to speak
more precise truth than is required.
==========
CHAPTER VIII.
OF TWO SORTS OF STYLES.
There be two sorts of _styles_. The one _continued_, or to be
_comprehended at once_; the other _divided_, or _distinguished_ by
periods.
The first sort was in use with ancient writers; but is now out of date.
An example of this _style_ is in the history of Herodotus; wherein there
is no period till the end of the whole history.
In the other kind of _style_, that is distinguished by periods, a
_period_ is such a part as is perfect in itself; and has such length, as
may easily be comprehended by the understanding.
This latter kind is pleasant, the former unpleasant; because this
appears finite, the other infinite. In this the hearer has always
somewhat set out, and terminated to him; in the other he foresees no
end, and has nothing finished to him. This may easily be committed to
memory, because of the measure and cadence; which is the cause that
verses be easily remembered: the other not.
Every sentence ought to end with the _period_, and nothing to be
interposed.
_Period_ is either _simple_, or _divided into parts_.
_Simple_, is that which is _indivisible_; as, _I wonder you fear not
their ends, whose actions you imitate_.
A _period divided_, is that which not only has perfection and length
convenient for respiration, but also _parts_. As, _I wonder you are not
afraid of their ends; seeing you imitate their actions_: where in these
words, _I wonder you are not afraid of their ends_, is one _colon_ or
_part_; and in these, _seeing you imitate their actions_, another: and
both together make the period.
The _parts or members_, and _periods_, of speech, ought neither be _too
long_, nor _too short_.
_Too long_, are they which are produced beyond the expectation of the
hearer. _Too short_, are they that end before he expects it.
Those that be _too long_, leave the hearer behind; like him that walking
goes beyond the usual end of the walk, and thereby out-goes him that
walks with him.
They that be _too short_, make the hearer stumble; for when he looks far
before him, the end stops him before he be aware.
A _period_ that is _divided_ into parts, is either _divided only_; or
has also an _opposition_ of the _parts_ one to another.
_Divided only_ is such as this; _This the senate knows, the consul sees;
and yet the man lives_.
A _period_ with _opposition of parts_, called also _antithesis_, and the
parts _antitheta_, is when _contrary parts_ are put together, or also
joined by a third.
Contrary parts are put together as here; _The one has obtained glory,
the other riches; both by my benefit_.
_Antitheta_ are therefore acceptable, because not only the _parts_
appear the better for the _opposition_, but also for that they carry
with them a certain appearance of that kind of enthymeme, which leads to
_impossibility_.
_Parts_ or _members_ of a _period_, are said to be _equal_, when they
have altogether, or almost, equal number of syllables.
_Parts_ or _members_ of a _period_, are said to be _like_, when they
_begin_ or _end_ alike: and the more _similitudes_, and the greater
_equality_ there is of syllables, the more graceful is the period.
==========
CHAPTER IX.
OF THOSE THINGS THAT GRACE AN ORATION, AND MAKE IT DELIGHTFUL.
Forasmuch as there is nothing more delightful to a man, than to find
that he apprehends and learns easily; it necessarily follows, that those
_words_ are most _grateful_ to the ear, that make a man seem to see
before his eyes the things signified.
And therefore _foreign_ words are unpleasant, because _obscure_; and
_plain_ words, because _too manifest_, making us learn nothing new. But
_metaphors_ please; for they beget in us, by the _genus_, or by some
_common_ thing to that with another, a kind of _science_. As when an
_old man_ is called _stubble_; a man suddenly learns that he grows up,
flourisheth, and withers like grass, being put in mind of it by the
qualities common to _stubble_ and to _old men_.
That which a _metaphor_ does, a _similitude_ does the same; but with
less _grace_, because with more _prolixity_.
Such enthymemes are the most _graceful_, which neither are presently
very manifest, nor yet very hard to be understood; but are comprehended
while they are uttering, or presently after, though not understood
before.
The things that make a speech _graceful_, are these; _antitheta_,
_metaphors_, and _animation_.
Of _antitheta_ and _antithesis_ hath been spoken in the precedent
chapter.
Of _metaphors_, the most _graceful_ is that which is drawn from
_proportion_.
Aristotle, in the twelfth chapter of his _Poetry_, defines a _metaphor_
to be the translation of a name from one signification to another;
whereof he makes four kinds, 1. From the _general_ to the _particular_.
2. From the _particular_ to the _general_. 3. From one _particular_ to
another. 4. From _proportion_.
A metaphor from proportion is such as this; _A state without youth, is a
year without a spring_.
_Animation_ is that expression which makes us seem to see the thing
before our eyes. As he that said, _The Athenians poured out their city
into Sicily_; meaning, they sent thither the greatest army they could
make. And this is the greatest grace of an oration.
If therefore in the same sentence there concur both _metaphor_ and this
_animation_, and also _antithesis_, it cannot choose but be very
_graceful_.
That an oration is _graced_ by metaphor, animation, and antithesis, hath
been said: but _how_ it is graced, is to be said in the next chapter.
==========
CHAPTER X.
IN WHAT MANNER AN ORATION IS GRACED BY THE THINGS AFORESAID.
It is graced by _animation_, when the actions of living creatures are
attributed to things without life; as when the _sword_ is said to
_devour_.
Such _metaphors_ as these come into a man’s mind by the observation of
things that have similitude and proportion one to another. And the more
unlike and unproportionable the things be otherwise, the more _grace_
hath the _metaphor_.
A _metaphor_ without _animation_, adds _grace_ then, when the hearer
finds he learns somewhat by such use of the word.
Also _paradoxes_ are _graceful_, so men inwardly do believe them. For
they have in them somewhat like to those jests that are grounded upon
the similitude of words, which have usually one sense, and in the
present another; and somewhat like to those jests which are grounded
upon the deceiving of a man’s expectation.
And _paragrams_, that is, allusions of words, are graceful, if they be
well placed, and in periods not too long, and with _antithesis_. For by
these means the ambiguity is taken away.
And the more of these, namely, _metaphor_, _animation_, _antithesis_,
_equality of members_, a period hath, the more graceful it is.
_Similitudes_ grace an oration, when they contain also a _metaphor_.
And _proverbs_ are graceful, because they are _metaphors_, or
translations of words from one species to another.
And _hyperboles_, because they also are _metaphors_. But they are
youthful, and bewray vehemence; and are used with most grace by them
that be angry; and for that cause are not comely in old men.
==========
CHAPTER XI.
OF THE DIFFERENCE BETWEEN THE STYLE TO BE USED IN WRITING, AND THE STYLE
TO BE USED IN PLEADING.
The _style_ that should be _read_, ought to be more exact and accurate.
But the _style_ of a _pleader_, ought to be suited to action and
pronunciation.
Orations of them that _plead_, pass away with the hearing. But those
that are _written_, men carry about them, and are considered at leisure;
and consequently must endure to be sifted and examined.
_Written_ orations appear flat in _pleading_. And orations made for the
_bar_, when the action is away, appear in _reading_ insipid.
In _written_ orations repetition is justly condemned. But in
_pleadings_, by the help of action, and by some change in the _pleader_,
repetition becomes amplification.
In _written_ orations disjunctives do ill; as, _I came_, _I found him_,
_I asked him_: for they seem superfluous, and but one thing, because
they are not distinguished by action. But in _pleadings_ it is
amplification; because that which is but one thing, is made to seem
many.
Of _pleadings_, that which is _judicial_ ought to be more accurate than
that which is _before the people_.
And an oration _to the people_ ought to be more accommodate to action,
than a _judicial_.
And of _judicial_ orations, that ought to be more accurate, which is
uttered to _few_ judges; and that ought to be more accommodate to
action, which is uttered to _many_. As in a _picture_, the further he
stands off that beholds it, the less need there is that the colours be
fine; so in _orations_, the further the hearer stands off, the less need
there is for his oration to be elegant.
Therefore _demonstrative_ orations are most proper for _writing_, the
end whereof is to be _read_.
==========
CHAPTER XII.
OF THE PARTS OF AN ORATION, AND THEIR ORDER.
The _necessary_ parts of an oration are but two; _propositions_ and
_proof_; which are, as it were, the _problem_ and _demonstration_.
The _proposition_ is the explication or opening of the matter to be
_proved_. And _proof_ is the _demonstration_ of the matter _propounded_.
To these _necessary parts_ are sometimes added two other, the _proem_
and the _epilogue_; neither of which is any _proof_.
So that in some there be _four parts_ of an oration; the _proem_; the
_proposition_, or as others call it, the _narration_; the _proofs_,
which contain _confirmation_, _confutation_, _amplification_, and
_diminution_; and the _epilogue_.
==========
CHAPTER XIII.
OF THE PROEM.
The _proem_ is the beginning of an oration, and, as it were, the
preparing of the way before one enter into it.
In some kinds of orations it resembles the _prelude_ of _musicians_, who
first play what they list, and afterwards the tune they intended. In
other kinds it resembles the _prologue_ of a _play_, that contains the
argument.
Proems of the first sort, are most proper for _demonstrative_ orations;
in which a man is free to foretell, or not, what points he will insist
upon. And for the most part it is better not; because when a man has not
obliged himself to a certain matter, _digression_ will seem _variety_;
but if he have engaged himself, _variety_ will be accounted
_digression_.
In _demonstratives_, the matter of the _proem_ consisteth in the
_praise_ or _dispraise_ of some _law_ or _custom_, or in _exhortation_
or _dehortation_, or in something that serves to incline the hearer to
the purpose.
Proems of the second kind are most proper for _judicial_ orations. For
as the _prologue_ in a _dramatic_, and the _exordium_ in an _epic_ poem,
setteth forth in few words the argument of the poem; so in a _judicial
oration_, the orator ought to exhibit a model of his oration, that the
mind of the hearer may not be suspended, and for want of foresight err
or wander.
Whatsoever else belongs to a _proem_, is drawn from one of these four:
from the _speaker_, from the _adversary_, from the _hearer_, or from the
_matter_.
From the _speaker_ and _adversary_, are drawn into proems such
criminations and purgations as belong not to the cause.
To the _defendant_, it is necessary in the proem to answer to the
accusations of his _adversary_; that those being cleared, he may have a
more favourable entrance to the rest of his oration.
But to the _plaintiff_, it is better to cast his criminations all into
the _epilogue_; that the judge may the more easily remember them.
From the _hearer_ and from the _matter_, are drawn into the proem such
things as serve to make the _hearer_ favourable or angry, attentive or
not attentive, as need shall require.
And _hearers_ use to be attentive to _persons_ that are reputed _good_;
to _things_ that are of _great consequence_, or that _concern
themselves_, or that are _strange_, or that _delight_.
But to make the _hearer_ attentive, is not the part of the _proem_ only,
but of any other part of the oration, and rather of any other part than
of the proem. For the _hearer_ is everywhere more remiss than in the
beginning. And therefore wheresoever there is need, the orator must make
appear both the _probity_ of his own _person_, and that the _matter_ in
hand is of _great consequence_; or that it concerns the _hearer_, or
that it is _new_, or that it is _delightful_.
He that will have the hearer attentive to _him_, but not to the _cause_,
must on the other side make it seem that the _matter_ is a _trifle_
without relation to the _hearer_, _common_ and _tedious_.
That the _hearer_ may be favourable to the _speaker_, one of two things
is required: that he _love_ him, or that he _pity_ him.
In _demonstrative_ orations, he that _praises_ shall have the _hearer_
favourable, if he think himself or his own manners, or course of life,
or anything he loves, comprehended in the same _praise_.
On the contrary, he that _dispraises_ shall be heard favourably, if the
_hearer_ find his _enemies_, or _their courses_, or anything he _hates_,
involved in the same _dispraise_.
The _proem_ of a _deliberative_ oration is taken from the same things
from which are taken the _proems_ of _judicial_ orations. For the matter
of a _deliberative_ oration needeth not that natural _proem_, by which
is shown what we are to speak of, for that is already known; the _proem_
in these being made only for the _speaker’s_ or _adversary’s_ sake, or
to make the _matter_ appear _great_ or _little_, as one would have it;
and is therefore to be taken from the _persons_ of the _plaintiff_ or
_defendant_, or from the _hearer_, or from the _matter_, as in orations
_judicial_.
==========
CHAPTER XIV.
PLACES OF CRIMINATION AND PURGATION.
One, from the _removal of ill opinion_ in the hearer, imprinted in him
by the adversary or otherwise.
Another from this: that the thing done is _not hurtful_, or _not to
him_, or _not so much_, or _not unjust_, or _not great_, or _not
dishonourable_.
A third from the _recompense_: as, _I did him harm, but withal I did him
honour_.
A fourth from the _excuse_; as, _It was error_, _mischance_, or
_constraint_.
A fifth from the _intention_; as, _One thing was done, another meant_.
A sixth from the _comprehension_ of the accuser; as, _What I have done,
the accuser has done the same_, or _his father_, _kinsman_, or _friend_.
A seventh from the _comprehension_ of those that are in reputation; as,
_What I did, such and such have done the same, who nevertheless are good
men_.
An eighth from _comparison_ with such as have been falsely accused or
wrongfully suspected, and nevertheless found upright.
A ninth from _recrimination_; as, _The accuser is a man of ill life, and
therefore not to be believed_.
A tenth from that the _judgment_ belongs to another place, or time; as,
_I have already answered_, or _am to answer elsewhere to this matter_.
An eleventh from _crimination_ of the crimination: as, _It serves only
to pervert judgment_.
A twelfth, which is common both to crimination and purgation, and is
taken from _some sign_; as, _Teucer is not to be believed, because his
mother was Priam’s sister_. On the other side, _Teucer is to be
believed, because his father was Priam’s enemy_.
A thirteenth, proper to crimination only, from _praise and dispraise
mixed_; as, to praise small things, and blame great ones; or to praise
in many words, and blame with effectual ones; or to praise many things
that are good, and then add one evil, but a great one.
A fourteenth, common both to _crimination_ and _purgation_, is taken
from the _interpretation of the fact_. For he that _purgeth_ himself,
_interpreteth the fact_ always in the best sense; and he that
_criminates_, always in the worst; as when Ulysses said, _Diomedes chose
him for his companion, as the most able of the Grecians, to aid him in
his exploit_: but his adversary said, _he chose him for his cowardice,
as the most unlikely to share with him in the honour_.
==========
CHAPTER XV.
OF THE NARRATION.
The _narration_ is not always continued, and of one piece; but
sometimes, as in _demonstratives_, interrupted, and dispersed through
the whole oration.
For there being in a _narration_, something that falls not under art; as
namely, the actions themselves, which the orator inventeth not; he must
therefore bring in the _narration_ of them where he best may. As for
example, if being to praise a man, you would make a _narration_ of all
his acts immediately from the beginning, and without interruption, you
will find it necessary afterwards to repeat the same acts again, while
from some of them you praise his valour, and from others his wisdom;
whereby your oration shall have less variety, and shall less please.
It is not necessary always that the _narration_ be short. The true
measure of it must be taken from the _matter_ that is to be laid open.
In the _narration_, as oft as may be, it is good to insert somewhat
commendable in one’s self, and blameable in one’s adversary: as, _I
advised him, but he would take no counsel_.
In _narrations_, a man is to leave out whatsoever breeds compassion,
indignation, &c. in the hearer beside the purpose; as Ulysses in Homer,
relating his travels to Alcinous, to move compassion in him, is so long
in it that it consists of divers books: but when he comes home, tells
the same to his wife in thirty verses, leaving out what might make her
sad.
The _narration_ ought also to be in such words as argue the _manners_,
that is some virtuous or vicious habit in him of whom we speak, although
it be not expressed; as, _setting his arms a-kimbo, he answered, &c._;
by which is insinuated the pride of him that so answered.
In an _oration_ a man does better to shew his affection than his
judgment; that is, it is better to say, _I like this_, than to say,
_this is better_. For by the one you would seem _wise_, by the other
_good_. But _favour_ follows _goodness_; whereas _wisdom_ procures
_envy_.
But if this affection seem incredible, then either a reason must be
rendered, as did Antigone. For when she had said, _she loved her brother
better than her husband or children_; she added, _for husband and
children I may have more; but another brother I cannot, my parents being
both dead_. Or else a man must use this form of speaking; _I know this
affection of mine seems strange to you; but nevertheless it is such_.
For it is not easily believed that any man has a mind to do any thing
that is not for his own good.
Besides in a _narration_, not only the actions themselves, but the
passions and signs that accompany them, are to be discovered.
And in his _narration_ a man should make himself and his adversary be
considered for such and such, as soon and as covertly as he can.
A _narration_ may have need sometimes not to be in the beginning. In
_deliberative_ orations, that is, wheresoever the question is of things
to come, a _narration_, which is always of things past, has no place.
And yet things past may be recounted, that men may _deliberate_ better
of the future. But that is not as _narration_, but _proof_; for it is
_example_.
There may also be _narration_ in _deliberatives_, in that part where
crimination and praise come in. But that part is not _deliberative_, but
_demonstrative_.
==========
CHAPTER XVI.
OF PROOF OR CONFIRMATION, AND REFUTATION.
_Proofs_ are to be applied to something controverted.
The controversy in _judicial_ orations is, whether it has been _done_;
whether it has been _hurtful_; whether the matter be _so great_; and
whether it be _just, or no_.
In a question of _fact_, one of the parties of necessity is faulty; for
ignorance of the _fact_ is no excuse; and therefore the _fact_ is
chiefly to be insisted on.
In _demonstratives_, the _fact_ for the most part is supposed: but the
_honour_ and _profit_ of the fact are to be _proved_.
In _deliberatives_, the question is, whether the thing _be like to be,
or likely to be so great_; or whether it be _just_; or whether it be
_profitable_.
Besides the application of the _proof_ to the question, a man ought to
observe whether his adversary have lied in any point without the cause.
For it is a sign he does the same in the cause.
The _proofs_ themselves are either _examples_, or _enthymemes_.
A _deliberative_ oration, because it is of things to come, requireth
rather _examples_ than _enthymemes_.
But a _judicial_ oration, being of things past, which have a necessity
in them, and may be concluded syllogistically, requireth rather
_enthymemes_.
_Enthymemes_ ought not to come too thick together: for they hinder one
another’s force by confounding the hearer.
Nor ought a man to endeavour to prove everything by enthymeme, lest like
some philosophers he collect what is _known_, from what is _less known_.
Nor ought a man to use enthymemes, when he would move the hearer to some
affection. For seeing divers motions do mutually destroy or weaken one
another, he will lose either the _enthymeme_, or the _affection_ that he
would move.
For the same reason, a man ought not to use enthymemes when he would
express _manners_.
But whether he would move _affection_, or insinuate his _manners_, he
may withal use _sentences_.
A _deliberative_ oration is more difficult than a _judicial_, because it
is of the _future_; whereas a _judicial_ is of that which is _past_, and
that consequently may be known; and because it has _principles_, namely,
the _law_; and it is easier to _prove_ from _principles_, than without.
Besides, a _deliberative_ oration wants those helps of _turning to the
adversary_, of _speaking of himself_, of _raising passion_.
He therefore that wants matter in a deliberative oration, let him bring
in some person to praise or dispraise. And in demonstratives, he that
has nothing to say in _commendation_ or _discommendation_ of the
_principal party_, let him _praise_ or _dispraise_ somebody else, as his
_father_ or _kinsman_, or the very _virtues_ or _vices_ themselves.
He that wants not _proofs_, let him not only _prove_ strongly, but also
insinuate his _manners_: but he that has no _proof_, let him
nevertheless insinuate his _manners_. For a _good man_ is as acceptable
as an _exact oration_.
Of _proofs_, those that _lead to an absurdity_, please better than those
that are _direct_ or _ostensive_; because from the comparison of
contraries, namely, _truth_ and _falsity_, the force of the syllogism
does the better appear.
_Confutation_ is also a part of _proof_. And he that speaks first, puts
it _after_ his own proofs; unless the controversy contain many and
different matters. And he that speaks last, puts it _before_. For it is
necessary to make way for his own oration, by removing the objections of
him that spake before. For the mind abhors both the man and his oration,
that is damned beforehand.
If a man desire his _manners_ should appear well, lest speaking of
himself, he become odious, or troublesome, or obnoxious to obtrectation;
or speaking of another, he seem contumelious or scurrilous; let him
introduce another person.
Last of all, lest he cloy his hearer with _enthymemes_, let him vary
them sometimes with _sentences_, but such as have the same force. As
here is an _enthymeme_: _If it be then the best time to make peace, when
the best conditions of peace may be had; then the time is now, while our
fortune is entire_. And this is a _sentence_ of equal force to it: _Wise
men make peace, while their fortune is entire_.
==========
CHAPTER XVII.
OF INTERROGATIONS, ANSWERS, AND JESTS.
The times when it is fit to ask one’s adversary a _question_, are
chiefly four.
The first is, when of two propositions that conclude an absurdity, he
has already uttered one; and we would by _interrogation_ draw him to
confess the other.
The second, when of two propositions that conclude an absurdity, one is
manifest of itself, and the other likely to be fetched out by a
_question_; then the _interrogation_ will be seasonable; and the absurd
conclusion is presently to be inferred without adding that proposition
which is manifest.
The third, when a man would make appear that his adversary does
contradict himself.
The fourth, when a man would take from his adversary such shifts as
these: _In some sort, it is so; in some sort, it is not so_.
Out of these cases, it is not fit to _interrogate_. For he whose
question succeeds not, is thought vanquished.
To equivocal _questions_ a man ought to answer fully, and not to be too
brief.
To _interrogations_, which we foresee tend to draw from us an _answer_
contrary to our purpose, we must, together with our _answer_, presently
give an _answer_ to the objection which is implied in the _question_.
And where the question exacteth an answer that concludeth against us, we
must, together with our _answer_, presently _distinguish_.
_Jests_ are dissolved by serious and grave discourse; and grave
discourse is deluded by _jests_.
The several kinds of _jests_ are set down in the _Art of Poetry_.
Whereof one kind is _ironia_, and tends to please one’s self. The other
is _scurrility_, and tends to please others.
The latter of these has in it a kind of baseness: the former may become
a man of good breeding.
==========
CHAPTER XVIII.
OF THE EPILOGUE.
The _epilogue_ must consist of one of these four things.
Either of _inclining the judge to favour his own_, or _disfavour the
adversary’s side_. For then, when all is said in the cause, is the best
season to _praise_ or _dispraise_ the parties.
Or of _amplification_ or _diminution_. For when it appears what is good
or evil, then is the time to show _how great_ or _how little_ that good
or evil is.
Or in _moving the judge to anger, love_, or other passion. For when it
is manifest of what kind, and how great the good or evil is, then it
will be opportune to _excite_ the judge.
Or of _repetition_, that the judge may remember what has been said.
_Repetition_ consisteth in the _matter_ and the _manner_. For the orator
must show that he has performed what he promised in the beginning of his
oration; and _how_, namely, by comparing his arguments one by one with
his adversary’s, repeating them in the same order they were spoken.
==========
THE
ART OF RHETORIC
PLAINLY SET FORTH.
WITH PERTINENT EXAMPLES
FOR THE MORE EASY UNDERSTANDING AND
PRACTICE OF THE SAME.
BY
THOMAS HOBBES OF MALMSBURY.
THE
ART OF RHETORIC.
==========
CHAPTER I.
Rhetoric is an art of speaking finely. It hath two parts:
1. Garnishing of speech, called _elocution_;
2. Garnishing of the manner of utterance, called _pronunciation_.
Garnishing of speech is the first part of rhetoric; whereby the speech
itself is beautified and made fine. It is either the fine manner of
words, called a trope; or the fine shape or frame of speech, called a
figure.
The fine manner of words is a garnishing of speech, whereby one word is
drawn from its first proper signification to another; as in this
sentence: _sin lieth at the door_: where _sin_ is put for the punishment
of sin adjoined unto it: _lieth at the door_, signifieth at hand; as
that which lieth at the door, is ready to be brought in.
This changing of words was first found out by necessity, for the want of
words; afterwards confirmed by delight, because such words are pleasant
and gracious to the ear. Therefore this change of signification must be
shamefaced, and, as it were, maidenly, that it may seem rather to be led
by the hand to another signification, than to be driven by force unto
the same.
Yet sometimes this fine manner of speech swerveth from this perfection;
and then it is, either the abuse of this fine speech, called
_katachresis_, or the excess of this fineness, called _hyperbole_.
_Be not too just nor too wicked_; which speech, although it seem very
hard, yet it doth, not without some fineness of speech, utter thus much;
_That one seek not a righteousness beyond the law of God; and that when
none can live without all sin, yet that they take heed that sin bear not
dominion over them_.
As, _My tears are my meat day and night. Those that hate me are more in
number than the hairs of my head_. Both which do utter by an express of
speech, a great sorrow, and a great number of enemies.
The abuse of speech is, when the change of speech is hard, strange, and
unwonted, as in the first example.
The excess of speech is, when the change of signification is very high
and lofty, as in the second example, and Psalms vi. vii.
But the excellency or fineness of words or tropes, is most excellent,
when divers are _shut up in one_, or _continued in many_.
An example of the first sort is in 2 Kings ii. 9: _I pray thee, let me
have a double portion of thy Spirit_: where by _Spirit_ is meant the
gift of the Spirit; and by _thy Spirit_, the gift of the spirit like to
thine.
The _continuance_ of tropes, called an allegory, is, when one kind of
trope is so continued, as, look with what kind of matter it be begun,
with the same it be ended. So in Psalm xxiii. _the care of God towards
his church_ is set forth in the words proper to _a shepherd_. So in the
whole book of Canticles, _the sweet conference of Christ and his
church_, is set down by the words proper to _the husband and the wife_.
So old age is set down by this garnishing of speech, in Ecclesiastes
xii. 5, 6.
Hitherto of the properties of a fine manner of words, called a trope.
Now the divers sorts do follow. They are those which note out, 1, no
comparison, or are with some comparison; or, 2, no respect of division,
or some respect.
The first is double: 1. The change of name, called a _metonymy_. 2. The
mocking speech, called an _irony_.
The change of name is where the name of a thing is put for the name of a
thing agreeing with it. It is double: 1. When the cause is put for the
thing caused; and contrarywise. 2. When the thing to which anything is
adjoined, is put for the thing adjoined; and contrarywise.
The change of name of the cause is when either the name of the _maker_,
or the name of the _matter_, is put for the _thing made_.
Of the _maker_, when the finder out, or the author of the thing, or the
instrument whereby the thing is done, is put for the _thing made_. So
Moses is put for his writings: so love is put for liberality, or
bestowing benefits, the fruit of love; so (Rom. i. 8): faith, the cause,
is put for religious serving of God, the thing caused. So (James iii.)
the tongue, the instrument of speech, is put for the speech itself.
_Rule thy tongue._
Of the _matter_: _Thou art dust, and to dust shalt thou return_; that
is, _one made of dust_.
Now, on the other side, when the thing caused, or the effect, is put for
any of these causes. So _the Gospel of God_ is called _the power of God
to salvation_; that is, the instrument of the power of God. So _love_ is
said to be _bountiful_, because it causeth one to be bountiful. St. Paul
saith, _The bread that we break, is it not in the communion of the body
and blood of Christ?_ That is, an instrument of the communion of the
body of Christ. So _the body_ is said to be an _earthly tabernacle_;
that is, a tabernacle made of earth.
The change of name, or _metonymy_, where the subject, or that which hath
anything adjoined, is put for the thing adjoined, or adjunct. So the
place is put for those, or that in the place: _set thine house in
order_; that is, thy household matters. _It shall be easier for Sodom
and Gomorrha_; that is, the people in Sodom and Gomorrha. So _Moses'
chair_ is put for the _doctrine_ taught in _Moses' chair_. So _all
Jericho and Jerusalem came out_; that is, all the men in Jericho and
Jerusalem. So before, _sin_ was put for the _punishment of sin_. _Let
his blood rest upon us and our children_; that is, the punishment which
shall follow his death. So Christ said, _This is my body_; that is, a
sign or sacrament of my body. _This wine is the new testament in my
blood_; that is, a sign or seal of the new testament in my blood. So
John saith, _I saw the Spirit descending in the likeness of a dove_;
that is, the sign of the Spirit.
On the other side, the adjunct is put for the thing to which it is
adjoined. As Christ (1 Tim. i. 1) is called _our hope_; that is, on whom
our hope did depend. So, _we are justified by faith_; that is, by Christ
applied by faith. So, _love is the fulfilling of the law_; that is,
those things to which it is adjoined. _Hope_ for the _things hoped for_;
as Rom. viii. 24. So in the Epistle to the Ephesians, v. 16: _The days
are evil_; that is, the manner, conversation, and deeds of men in the
days.
Hitherto the _metonymy_, or change of name. Now followeth the mocking
speech, or _irony_.
==========
CHAPTER II.
The _mocking_ trope is, when one contrary is signified by another; as
God said, _Man is like to one of us_. So Christ saith, _Sleep on_; and
yet by-and-by, _Arise, let us go_. So Paul saith, _You are wise, and I
am a fool_.
This trope is conceived either by the contrariety of the matter, or the
manner of utterance, or both. So Elijah said to the prophets of Baal,
_Cry aloud_, &c. So the Jews said unto Christ, _Hail, King of the Jews!_
Hitherto appertaineth the passing by a thing, which yet with a certain
elegance noteth it. So Philemon 19: _That I say not, thou owest thyself
unto me_.
Hitherto of the fineness of words which respect no division. Now
followeth that which respecteth division, called _synechdoche_.
A _synechdoche_ is when the name of the whole is given to the part; or
the name of the part to the whole. And it is double. 1. When the whole
is put for the member, and contrarily. 2. When the general, or whole
kind, is put for the special; or contrarily.
So St. John: _Not only for our sins, but for the sins of the whole
world_. So righteousness, a member of goodness, is put for all goodness;
so unrighteousness is put for all manner of sins.
Examples of the second sort, as these: So _Israel_ is put for _those of
Juda_ sometimes. So _nations_ for _the heathen_. _A minister_ of Christ
for _an apostle_ of Christ, as Rom. xv. 16. _A minister_ put for _a
distributer_, as Rom. xii. 7.
On the other side, one sort or special is put for the whole sort or
general, in the examples following. In the Lord’s prayer, _bread_, _one_
help of life, is put for _all_ helps; _this day_, _one_ time for _all_
times. So Solomon saith, _the thing of the day in his day_; that is, the
thing of the time in his time.
So sometimes less is spoken, and yet more is understood; which is called
diminution, or _meiosis_. As James saith to him _that knoweth how to do
well and doth it not, it is sin_; that is a great sin. So our Saviour
Christ saith, _If they had not known, they had had no sin_; that is, no
such great sin as they have now. Likewise the denial by comparison.
So Solomon saith, _Receive my words, and not silver_; that is, my words
rather than silver. So Paul saith, _I was sent to preach, and not to
baptize_; that is, not so much to baptize as to preach.
Hitherto of the fineness of words, which note out no comparison. Now
followeth the fineness of words which noteth out comparison, called a
_metaphor_.
==========
CHAPTER III.
A _metaphor_ is when the like is signified by the like: as (1 Cor. iii.
13) the Apostle saith, _doctrine must be tried by fire_; that is, the
evidence of the word, spirit, _trying doctrine_, as fire doth metals. So
Christ is said to _baptize with fire_; where _fire_ is put for the power
of the Holy Ghost, purging as fire. So Christ saith, _none shall enter
into the kingdom of God but he that is born of the Holy Ghost and
water_. So Paul calleth himself the _father_ of the Corinthians, and
said, _that he begat them in Christ_. So he calleth Timothy and Titus
his natural _sons in the faith_.
Hitherto of a trope or garnishing of speech in one word, where the
metaphor is most usual; then the change of name; then the _synechdoche_;
and last of all, the _irony_. Now followeth the fine frame or shape of
speech, called a figure.
A figure is a garnishing of speech wherein the course of the same is
changed, from the more simple and plain manner of speaking unto that
which is more full of excellency and grace. For as in the fineness of
words, or a trope, words are considered asunder by themselves; so in the
fine shape or frame of speech, or a figure, the apt and pleasant joining
together of many words is noted.
The garnishing of the shape of speech, or a figure, is garnishing of
speech in words, or in a sentence.
The garnishing of speech in words, called _figura dictionis_, is wherein
the speech is garnished by the pleasant and sweet sound of words joined
together.
This is either in the _measure_ of sounds; or in the _repetition_ of
sounds.
The _measure_ of sounds is belonging either to poets, with us called
rhymers; or orators, with us called eloquent pleaders.
The first is the measure of sounds by certain and continual spaces; and
it is either rhyme or verse.
Rhyme is the first sort, containing a certain measure of syllables
ending alike; and these in the mother tongues are most fit for psalms,
songs, or sonnets.
Verses are the second sort, containing certain feet fitly placed.
A foot is a measure framed by the length and shortness of syllables; for
the several sorts whereof, as also of the verses of them, because we
have no worthy examples in our English tongue, we judge the large
handling of them should be more curious than necessary.
The measure of sounds belonging to orators, is that which, as it is not
uncertain, so it differeth altogether from rhyme and verse, and is very
changeable with itself. Therefore in that eloquent speech you must
altogether leave rhyme and verse, unless you allege it for authority and
pleasure.
In the beginning of the sentence little care is to be had, in the middle
least of all, and in the end chiefest regard is to be had; because the
fall of the sentence is most marked, and therefore lest it fall out to
be harsh and unpleasant both to the mind and ear, there must be most
variety and change.
Now this change must not be above six syllables from the end, and that
must be set down in feet of two syllables.
And thus much of garnishing of speech by the _measure_ of sounds, rather
to give some taste of the same to the readers, than to draw any to the
curious and unnecessary practice of it.
Now followeth the _repeating_ of sounds.
==========
CHAPTER IV.
_Repetition_ of sounds is either of the _like_, or the _unlike_ sound.
Of the _like_, is either _continued_ to the end of, or _broken_ off
from, the _same_, or a _diverse_ sentence.
_Continued_ to the end of the _same_ sentence is, when the same sound is
repeated without anything coming between, except a parenthesis; that is,
something put in, without the which, notwithstanding, the sentence is
full. And it is a joining of the same sound, as Rom. i. 29: _All
unrighteousness, fornication, wickedness_. And in the prayer of Christ,
_My God, my God_. _From men by thine hand, O Lord, from men_, &c. (Psalm
xvii. 14.)
_Continued_ in a _diverse_ sentence is, either a redoubling, called
_anadyplosis_; or a pleasant climbing, called _climax_.
Redoubling is when the same sound is repeated in the end of the former
sentence, and the beginning of the sentence following. As Psalm ix. 9:
_The Lord also will be a refuge to the poor, a refuge, I say, in due
time_. Psalm xlviii. 14: _For this God is our God_. But more plain in
Psalm xlviii. 8: _As we have heard, so have we seen in the city of our
God: God will establish it for ever_.
A pleasant climbing, is a redoubling continued by divers degrees or
steps of the same sounds; as Rom. viii. 17: _If we be children, we be
heirs, even heirs of God, annexed with Christ_. Rom. viii. 30: _Whom he
predestinated, them also he called; and whom he called, them also he
justified; and whom he justified, them also he glorified_. Also Rom. ix.
14, 15.
And hitherto of the same sound _continued to the end_. Now followeth the
same sound _broken off_.
==========
CHAPTER V.
The same sound _broken off_, is a repetition of the same in the
_beginning_ or in the _end_.
In the _beginning_, it is called _anaphora_, a bringing of the same
again; as Rom. viii. 38, 39: _Nor death, nor life, nor angels, &c. nor
any other creature, shall be able to separate us, &c._ So likewise
Ephes. iv. 11: _Some to be apostles, some preachers, &c._ So Galatians
ii. 14: _Nor Jew, Gentile, &c._ So likewise Hebrews xi. 1, 2.
Repetition of the same sound _in the end_, is called _epistrophe_, a
turning to the same sound in the end. So Ezekiel viii. 15: _Behold
greater abominations than these_. Lament. iii. 41, &c.: _Let us lift up
our hearts with our hands unto God in the heavens; we have sinned and
have rebelled; therefore thou hast not spared_.
When both of these are joined together, it is called a coupling or
symplote. As 2 Cor. vi. 4-11: _But in all things we approve ourselves as
the ministers of God, in much patience, in afflictions, &c._ See also 2
Cor. xi. 23.
Hitherto of the repetitions in the _same place_. Now of those that do
interchange their place.
They are either _epanalepsis_, which signifieth to take back; or
_epanados_, which signifies the turning to the same tune.
The first is when the same sound is repeated in the beginning and the
ending; as, 2 Sam. xviii. 33: _My son Absolom, my son_.
_Epanados_ is when the same sound is repeated in the beginning and the
middle, in the middle and the end. Ezekiel xxxv, 6: _I will prepare thee
unto blood, and blood shall pursue thee: except thou hate blood, even
blood shall pursue thee_. And 2 Thes. ii. 4: _So that he that doth sit
as God, in the temple of God, sheweth himself that he is God_.
Hitherto of the repetition of those sounds which are _like_. Now of
those that are _unlike_.
==========
CHAPTER VI.
_Unlike_; a small changing of the name, as παρονομασια; a small changing
of the end or case, as πολυπτωτον.
A small change of name is, when a word, by the change of one letter or
syllable, the signification also is changed; as, Rom. v. 4: _Patience,
experience; and experience, hope_. 2 Cor. x. 3: _We walk after the
flesh, not war in the flesh_. 2 Cor. vi. 8-9: _So by honour and
dishonour, as unknown and yet known_.
A small changing of the end or case, is when words of the same beginning
rebound by divers ends: _Christ being raised from the dead, dieth no
more, death hath no more power over him. He that doth righteousness, is
righteous. If ye know that he is righteous, know ye that he that doeth
righteously, is born of him._ And of both these there are many in the
Scripture; but the translations cannot reach them.
Hitherto of the garnishing of the shape of speech, in _words_. Now
followeth the garnishing of the shape of speech, in a _sentence_.
==========
CHAPTER VII.
Garnishing of the frame of speech in a _sentence_, is a garnishing of
the shape of speech, or a figure; which for the forcible moving of
affections, doth after a sort beautify the sense and very meaning of a
sentence. Because it hath in it a certain manly majesty, which far
surpasseth the soft delicacy or dainties of the former figures.
It is either the garnishing of speech _alone_, or _with others_.
The garnishing of speech _alone_, is when as the sentence is garnished
without speech had to other. And it is either in regard of the _matter_;
or of the _person_.
In regard of the _matter_; it is either a crying out, called
_exclamation_; or a pulling or calling back of himself, called
_revocation_.
A crying out, or _exclamation_, is the first, which is set forth by a
word of calling out. Sometimes of wonder, as, Rom. xi. 33: _O the depth
of the judgments of God!_ Psal. viii. 1: _O Lord, how excellent is thy
name!_ Sometimes of pity; also these words, _Behold_, _Alas_, _Oh_, be
signs of this figure, as, _O Jerusalem, Jerusalem, which stonest the
prophets_. Sometimes of desperation; as, _My sin is greater than can be
forgiven. Behold, thou drivest me out, &c._ Sometimes of wishing: as,
Psalm lxxxiv. 1: _O Lord of hosts, how amiable are thy tabernacles!_
Sometimes of disdaining: as, Rom. vii. 24: _O miserable wretch that I
am, who shall deliver me from this body of sin!_ Sometimes of mocking:
as they which said to our Saviour Christ, _Ah, thou that, &c._ Sometimes
of cursing and detestation; as in David, _Let their table be made a
snare, and bow down their back always_.
Also when this figure is used in the end of a sentence, it is called a
shooting out of the voice or επιφωνημα; as when the sins of Jezebel were
spoken against, this is added at the end, _Seemed it a little to her to
do thus and thus_.
So after the high setting forth of the name of God, David shutteth up
his praise with this: _Blessed be his glorious name, and let all the
earth be filled with his glory_. Sometimes here is used a certain
liberty of speech, wherein is a kind of secret crying out: as Peter
(Acts iii. 12,) saith: _Ye men of Israel, hear these words_. And Paul,
(2 Cor. xi. 1): _Would to God you could suffer a little my foolishness,
and indeed ye suffer me_.
Thus much of crying out. Now followeth the figure of calling back, or
_revocation_.
_Revocation_ is when any thing is called back; and it is as it were a
cooling and quenching of the heat of the exclamation that went before.
And this is either a _correction_ of one’s self, called επανορθωσις; or
a _holding_ of one’s _peace_, called αποσιωπησις.
Επανορθωσις is correction, when something is called back that went
before: as Paul correcteth his doubtfulness of Agrippa’s belief, when he
saith, _Believest thou, King Agrippa? I know thou believest._ So, 1 Cor.
xv. 10: _I laboured more abundantly than they all, yet not I_, &c.
A _keeping of silence_, or αποσιωπησις, is when the course of the
sentence bygone is so stayed, as thereby some part of the sentence, not
being uttered, may be understood. So our Saviour Christ (John xii. 27)
saith, _My soul is heavy: what shall I say?_
Thus much of a figure garnishing the speech alone, in regard of the
_matter_. Now followeth the garnishing of the speech alone, in regard of
the _person_.
==========
CHAPTER VIII.
Garnishing of the speech alone in regard of the _person_, is double:
either in turning to the person called _apostrophe_; or feigning of the
person, called _prosopopœia_.
_Apostrophe_, or turning to the person, is when the speech is turned to
another person than the speech appointed did intend or require. And this
_apostrophe_ or turning is diversely seen, according to the diversity of
persons. Sometimes it turneth to a man’s person; as David in the sixth
Psalm, where having gathered arguments of his safety, turneth hastily to
the wicked, saying, _Away from me, all ye workers of iniquity; for the
Lord hath heard the voice of my petition_.
Sometimes from a man to God, as Psalm iii. 3. David being dismayed with
the number of his enemies, turneth himself to God, saying: _But thou art
my buckler_, &c.
Sometimes to unreasonable creatures without sense; as Isaiah i. and
Isaiah xxi.
_Prosopopœia_, or a feigning of the person, is whereby we do feign
another person speaking in our speech. And it is double; _imperfect_ and
_perfect_.
_Imperfect_ is when the speech of another person is set down lightly and
indirectly. As in Psalm. xi. 1. David bringeth in the wicked, _Who say
unto my soul, fly as the bird unto yonder hill_.
A perfect _prosopopœia_, is when the whole feigning of the person is set
down in our speech, with a fit entering into the same, and a leaving it
off. So Wisdom, (Prov. viii.); where the entrance is in the first
verses, her speech in the rest of the chapter.
Hitherto of the figures of sentences concerning one speaking alone. Now
follow the other, which concern the speeches of two.
==========
CHAPTER IX.
They which concern the speeches of two, are either in _asking_, or in
_answering_.
That of _asking_, is either in _deliberation_; or in _preventing an
objection_.
_Deliberation_ is when we do every now and then ask, as it were, reasons
of our consultation, whereby the mind of the hearers wavering in doubt,
doth set down some great thing.
This deliberation is either in _doubting_, or in _communication_.
A _doubting_ is a deliberating with ourselves, as Paul (1 Philipp. i.
23, 24), doubting whether it were better to die than to live, he
garnisheth his speech in this manner: _For I am greatly in doubt on both
sides, desiring to be loosed, and to be with Christ, which is best of
all: nevertheless, to abide in the flesh is more needful for you_.
_Communication_ is a deliberation with others. As, Galatians iii. 1, 2:
_O foolish Galatians, who hath bewitched you, &c._
And hitherto of the figure of speech between two, called _deliberation_.
Now followeth the figure of speech between two, called the _preventing
of an objection_, or _occupation_.
_Occupation_ is, when we do bring an objection, and yield an answer unto
it. Therefore this speech between two, in the first part, is called the
setting down of the objection or occupation: in the latter part, an
answering of the objection or the subjection: as Rom. vi. 1: _What shall
we say then? Shall we continue still in sin, that grace may abound?_ In
which words is set down the objection: the answering in these words,
_God forbid_. And here this must be marked, that the objection is many
times wanting, which must be wisely supplied by considering the occasion
and answer of it: as 1 Tim. v. 11, 12: _They will marry, having
condemnation_. Now lest any might say, what, _for marrying?_ He
answereth: _No, for denying their first faith_.
Hitherto of the figures of _asking_. Now followeth the figures of
_answering_. They are either in _suffering_ of a deed, called
_permission_; or, _granting_ of an argument, called _concession_.
_Suffering_ of a deed or permission is, when mockingly we give liberty
to any deed, being never so filthy; as Rev. xxii. 11: _Let him that is
filthy, be filthy still_. And 1 Cor. xiv. 38: _If any be ignorant, let
him be ignorant_.
Concession or granting of an argument is, when an argument is mockingly
yielded unto, as Ecclesiastes xi. 9: _Rejoice, O young man, in thy
youth, and let thy heart cheer thee, &c._
THE ART OF SOPHISTRY.
==========
Although the rules of Sophistry be needless for them that be perfect in
logic; yet because the knowledge of them bringeth some profit to the
young beginners, both for the ready answering of the subtle
arguments, and the better practising of logic and rhetoric, we have
thought good to turn it into the English tongue.
_Sophistry_ is the feigned art of _elenches_, or coloured reasons.
A coloured reason, or _elench_, is a show of reason to deceive withal.
It is either when the deceit lieth in the _words_; or in the default of
logic, called a _sophism_.
In _words_, is either when the deceit lieth in _one word_; or in _words
joined together_. _If it were, it should be, whosoever._
In _one word_, is either the _darkness_ of a word; or, the
_doubtfulness_ of a word.
The _darkness_ of a word, or an insolence, deceiveth, when by a reason
the meaning is not understood, whether the strangeness be through the
oldness, newness, or swelling vanity of the words; and of the last sort
is that spoken of in 2 Peter ii. 18.
By this fallacy the Papists conclude, the Fathers to be on their side
for deserving by good works.
_Whosoever saith man’s merits are crowned, they say man’s works do
deserve._
_But the Fathers say, man’s merits are crowned._
_Therefore the Fathers say, man’s works do deserve._
Where _merits_ is an old word, put for any works done under the hope of
reward, whether it come by desert or freedom of promise.
_Doubtfulness_ of a word, _likeness_ of name, is either called
_homonymia_; or by a trope or fineness of speech.
The _likeness_ of name, or _homonymia_, is when one word is given to
signify divers things: as,
_He that believeth shall be saved._
_The hypocrites to whom our Saviour Christ would not commit himself,
believed,_
_Therefore they shall be saved._
Where faith doth note out both a justifying faith, and a dead faith.
Doubtfulness by a trope, is when a word is taken properly, which is
meant figuratively or contrarily: As, _That which Christ saith is true_.
_Christ saith that bread is his body._
_Therefore it is true._
Where by _body_ is meant the sign or sacrament of his body.
Unto the first, a perfect logician would answer, that the proposition is
not an axiom necessarily true, according to the rule of truth, because
of the doubtfulness of the old and new signification of _merit_. And if
the word be far worn out of use, that it be not understood, then the
answer must be, I understand it not, or put your axiom in plain words.
To the second he would answer, that the proposition or first part is not
according to the rule of righteousness, because the proper subject and
adjunct are not joined together: which _hath justifying faith, or
believing sincerely, shall be saved_; and then the assumption being in
the same sense inferred is false.
Unto the third he would answer, that the assumption is not necessarily
true; because if the word _body_ be taken properly, it is not then true
that is set down; but if it be taken figuratively, it is true, and
therefore would bid him make the assumption necessarily true, and then
say, Christ saith in proper words, _it is my body_; and then it is
false.
Hitherto of the fallacies in single words. Now of those that are joined
together.
It is either _amphibolia_, or the doubtfulness of speech: or
_exposition_, or unapt setting down of the reason.
The first is, when there is doubtfulness in the frame of speech; as
thus, _if any obey not our word by a letter, note him_: where some refer
_by a letter_, to the first part of the sentence, and some to the
latter; where the signification of the word and right pointing doth show
that it must be referred to the first.
The answer is, that the right and wise placing of the sentence is
perverted.
Unapt setting down of the reason, is when the parts of the question and
the reasons entreated, are not set down in fit words: as,
_All sin is evil._
_Every child of God doth sin._
_Therefore every child of God is evil._
Here the answer according to logic, is that the assumption doth not take
the argument out of the proposition, but putteth in another thing; and
so it is no right frame of concluding, as appeareth by the definition of
the assumption.
Hitherto of the deceits of reason, which lie in _words_. Now of the
default of logic, called _sophism_.
It is either _general_ or _special_. The _general_ are those which
cannot be referred to any _part of logic_. They are either begging of
the question, called the petition of the principle; or bragging of no
proof.
Begging of the question, is when nothing is brought to prove but the
question, or that which is doubtful: as,
_That righteousness, which is both by faith and works, doth justify._
_But this righteousness, is inherent righteousness_: Ergo.
Here the proposition in effect is nothing but a question.
_If together with the blood of Christ, we must make perfect satisfaction
for our sins before we come to heaven; then there must be purgatory for
them that die without perfection._
_But the first is so_: Ergo.
Where the argument they bring is as doubtful, and needeth as much proof,
as the question.
The answer is this, out of the definition of the syllogism; that there
is no new argument invented; therefore it cannot be a certain frame of
concluding.
Bragging of no proof, is when that which is brought is too much, called
_redounding_.
It is either impertinent to another matter, called _heterogenium_; or a
vain repetition, called _tautologia_.
Impertinent, or not to the purpose, is when anything is brought for a
proof, which is nothing near to the matter in hand; whereunto the common
proverb giveth answer, _I ask you of cheese, you answer me of chalk_.
A vain repetition, is when the same thing in effect, though not in
words, is repeated; as they that after a long time of prayer say, _Let
us pray_. And this fallacy our Saviour Christ (Matt. vi. 5) condemneth
in prayer. And this is a fault in method.
_Special_ are those, which may be referred to certain parts of logic,
and they are of two sorts. Such as are referred to the spring of
reasons, called _invention_; or to judgment.
Those referred to invention, are when anything is put for a reason,
which is not; as no cause for a cause, no effect for an effect; and so
of the rest.
In the distribution this is a proper fallacy, when anything simply or
generally granted, thereby is inferred a certain respect or special not
meant nor intended: as,
_He that saith there are not seven sacraments, saith true._
_He that saith there are only three, saith there are not seven._
_Therefore he that saith there are three, saith true._
The right answer is, that the proposition is not necessarily true; for
there may be a way to say there are not seven, and yet affirm an
untruth.
Fallacies of judgment, are those that are referred to the judgment of
one sentence, or of more.
Of one sentence, either to the proprieties of an axiom, or to the sorts.
To the proprieties, as when a true is put for a false, and contrarily:
an affirmative for a negative, and contrarily. So some take the words of
St. John, _I do not say concerning it, that you shall not pray_, for no
denial; when as it doth deny to pray for that sin.
To the sorts, are referred either to the simple or compound.
The first, when the general is taken for the special, and contrarily. So
the Papists, by this fallacy, do answer to that general saying of Paul;
_We are justified with faith without the works of the law_: which they
understand of works done before faith, when that was never called in
doubt.
The fallacies which are referred to a compound axiom, are those which
are referred either to a _disjoined_, or _knitting_ axiom. To a
_disjoined_ axiom, when the parts indeed are not _disjoined_: as,
_Solomon was either a king, or did bear rule_.
To a _knitting_ axiom, is when the parts are not necessarily knit
together; as, _If Rome be on fire, the Pope’s chair is burnt_.
And hitherto of the first sort of fallacies referred to judgment. Now
followeth the second.
And they be either those that are referred to a _syllogism_; or to
_method_. And they again are _general_, and _special_. _General_, which
are referred to the general properties of a syllogism. It is either when
all the parts are _denied_; or are _particular_. All parts denied: as,
_No pope is a devil._
_No man is a devil._
_Therefore no man is a pope._
And this must be answered, that it is not according to the definition of
a negative syllogism, which must always have one affirmative.
All particular: as, _some unlawful thing must be suffered; as, namely,
that which cannot be taken away_,
_The stews is some unlawful thing._
_Therefore the stews must be suffered._
This is answered, by the definition of a special syllogism; which is,
that hath one part general.
The _special_, are those which are simple or compound.
The _simple_ is of two sorts. The first is more plain. The second less
plain.
More plain, is when the assumption is denied, or the question is not
particular: as,
_Every apostle may preach abroad_:
_Some apostle is not a pope_,
_Therefore some pope may not preach abroad_.
Also, _every pope is a lord_:
_Some pope may give an universal license._
_Therefore every lord may give an universal license_.
Less plain, hath one fallacy in common, when the proposition is special:
as,
_Some player is a rogue_:
_Every vagabond is a rogue_,
_Therefore every player is a vagabond_.
Also, _some player is a rogue_:
_Every vagabond is a player_,
_Therefore every player is a rogue_.
The fallacy of the first kind, is when all the parts be affirmative: as,
_All Paul’s bishops were ordained for unity._
_All archbishops be ordained for unity._
_Therefore all archbishops are Paul’s bishops._
The fallacy of the second kind is when the assumption is denied: as,
_Every puritan is a Christian._
_No Lord Bishop is a puritan_,
_Therefore no Lord Bishop is a Christian_.
Hitherto of the fallacies referred to a _simple_ syllogism. Now follow
those which are referred to a _compound_; which are those which are
referred either to the _connexive_, or to the _disjoined_.
Of the first sort, one is when the first part or antecedent is denied,
that the second or consequent may be so likewise: as,
_If any man have two benefices, he may escape unpunished at the bishop’s
hands._
_But he may not have two benefices_,
_Therefore he may not escape unpunished at the bishop’s hands_.
The second part is affirmed, that the first may be so also: as,
_If every ignorant minister were put out of the church, and a preacher
in his place, we should have good order_,
_But we have good order_.
_Therefore every ignorant minister is put out of the church, and a
preacher in his place._
Of those referred to the disjoined, the first is when all the parts of
the disjunction or proposition are not affirmed: as,
_Every ignorant minister is to be allowed, or not._
_But he is not._
_Therefore he is._
The second kind, is when the second part of the copulative negative
axiom is denied, that the first may be so: as,
_A non-resident is either a faithful, or unfaithful minister._
_But he is unfaithful. Ergo, &c._
And thus much of the fallacies in a syllogism.
The fallacy in method is when, to deceive withal, the end is set in the
beginning, the special before the general; good order be gone,
confounded; and finally when darkness, length, and hardness, is laboured
after.
END OF VOL. VI.
------------------------------------------------------------------------
Transcriber’s Note
In the Table of Contents, the third section of this volume is entitled
“The Whole Art of Rhetoric”. This title also serves as page header at p.
#421. However, at p. 419, the title page contains “The Art of Rhetoric”
(also the title of the following fourth section). To avoid confusion,
the word “WHOLE” has been added to p. 419.
At 70.34 “_[2. ]That the design...”_ The number ‘2’ has no preceding
‘1’.
Errors deemed most likely to be the printer’s have been corrected, and
are noted here. The references are to the page and line in the original.
22.18 of the spiritual law[.] Added.
40.15 which he wi[./l]l, Replaced.
41.9 as in the Court of Common Pleas[.] Added.
60.20 there was a ne[e/c]essity Replaced.
108.5 was this here[it/ti]c Legat burnt? Transposed.
175.23 It seems therefo[ re,/re, ]if Shifted.
240.26 St[r]ange injustice! Inserted.
270.1 frustrate h[sa/is a]ttempts Replaced.
276.28 _[B./A.]_ But philosophy Replaced.
293.7 _quas vulgus eleger[e/i]t_ Replaced.
321.4 most benefica[i]l to the commonwealth Inserted.
388.33 there was no Parli[r/a]ment Replaced.
419.1 THE [WHOLE ]ART OF RHETORIC. Added.
423.9 to _accuse_ and _ex[s/c]use_ Replaced.
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