raise their Court so high, to set it above all reach or controul, especially if they did promise to themselves Impunity, if not Reward, which they might have expected, had it been in the Reign of an arbitrary Prince, who would be a great gainer by the fall of this Court, because then the Skreen betwixt the King and People is taken away.

This is the first time that an inferiour Court did take upon it to invalid the Priviledges of a fuperiour. Superiour Courts do sometimes fet afide the Orders and Proceedings of Inferiour Courts, and yet in that case they proceed with that caution, that it is never done but when there is manifeft Error, and the Law not duly purfued and obferved; but in no cafe was it known that they ever meddled with their priviledges.

If what the Judges have done is good, I cannot tell what Power and Jurifdiction they may not pretend to, for no bounds nor limits can be fet to the King's Bench; it may affume as great a power in Civil Affairs as the High Commiffion does in Ecclefiaftical, in their Actings not to be tyed up to any Rules or Method, but to vary and alter them as well as the Law, when occafion or humor ferves, the proceedings fhall be as fummary, or as delatory as they think fit, and your Lordships shall no more than other people be exempted from the exercise of that power.

Therefore if your Lordships will not prevent the Mischief from fpreading it felf over the whole Nation, yet I hope you will take notice of the Injury you have fuffer'd in the Cafe of my Lord Devonshire, and to do your felves Right.

The

The Law has for the most part left Fines to the Difcretion of the Judges, yet it is to be fuch a Di Jcretion as is defin'd by my Lord Coke, fol. 56. Diferetio eft difcernere per legem quid fit Juftans; not to proceed according to their own Will and private Affection, for Talis difcretio, difcretionem confundit, as Wing at fays, fol. 201. So that the Queftion is not Whether the Judges could fine my Lord Devonshire, but Whether they have kept themselves within the bounds and limits which the Law has fet them.

It is fo very evident, as not to be made a Queftion, whether in those things which are left to the Discretion of the Judges, that the Law has fet them bounds and limits, which, as God fays to the Waves of the Sea, Hitherto shalt thou go,and no farther for either they are fo reftrained, or elfe the Law does fuppofe them to be exempted from thofe Frailties and Paffions which do attend the reft of Mankind: But as they cannot be fuppos'd to be void of Paffions and Infirmities, no less than other Men, fo it cannot be imagin'd, that the Law has left Men to fo wild a Justice as is guided by Paffion and Affection, for it had been fo great a Defect in the Conftitution of this Government, that long before this it would have been reform'd. And as it is most clear, that they are thus reftrain'd, so those bounds and limits are no lefs known to them that are acquainted with the Law; there are two things which have heretofore been look❜d upon as very good Guides, 1ft, What has formerly been exprefly done in the like Cafe; 2ly, For want of fuch particular Direction, then to confider that which comes the nearest to it, and fo proportionably to add or abate, as the manner and circumftance of the Ease do require. Cccc These

Thefe were thought very good and fafe Directions, till it was declared, and ever fince has been praifed in the King's Bench, that they did not regard Prefidents, but would make them; and for ought that I can learn or find, this of my Lord Devonshire is an Original.

What Obfcurity foever may be pretended in other Cafes, yet in this the Law has given fo pofitive and plain a Direction, that it seems very ftrange how they came to lay a Fine of 30000 1. upon my Lord Devonshire.

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The Court of Starchamber was taken away, becaufe of the unmeasurable Fines which it impos'd, which alone was a plain and direct prohibition for any other Court to do the like, for otherwife the Mischief remain'd; for what Advantage was it to the Nation, if it had not been wholly fuppreft? the hifting of Hands gave the People no Eafe in the Burden that lay upon them; it was all one whether the Starchamber or King's Bench did crush them by immoderate Fines. But to put all out of difpute, the Statute 17 Car. fays exprefly, That from henceforth no Court, Council, or place of Judica. ture shall be erected, ordained, constituted, or appointed within this Realm of England, or Dominion of Wales, which shall have, ufe, or exercife the fame, or the like Jurifdiction, as is or hath been used, practifed, or exercifed in the faid Court of Starchamber: And this was upon very good reason, because thofe great Fines impofed in that Court, were inconfitent with the Law of England, which is a Lam of Mercy, and concludes every Fine which is left at difcretion, with Salvo Contenimento. If the Fines impofed in the Starchamber were an intole rable Burden to the Subject, and the means to intro

duce

duce an Arbitrary Power and Government, as that Statute recites, the like proceeding in the King's Bench can be no lefs grievous, and muft produce the fame Evil. Laws that are made upon new occafions, or fudden immergencies, the Reafon upon which they were made may cease, and confequently they do ceafe alfo; but Laws that are grounded upon the ancient Principles of the Government cannot cease, because the Reason of them will ever continue; and this Statute of 17 Car. being fuch, no doubt holds good, and is now in as much force as the firft moment in which it was made; and therefore this Finé impofed on my Lord Devonshire is in open defiance of that Sta

tute.

I think no man can altogether excufe my Lord Devonshire for my part I don't, but think it was a very inconfiderate rafh act, and I believe the Indifcretion of it abstracted from the Fine is a very fenfible trouble to him; yet if those things were wanting which may be urgd in his excufe, the Offence and Punishment don't seem to bear proportion. Could not the Merits of his Father be laid in the balance, nor the Surprize of meeting Coll. Culpepper for my Lord having been abused by him, a man of fo great Courage and Honcur as my Lord Devonshire, muft needs feel and remember it a long time, having received no fatisfaction or reparation made him for it; but if there were nothing of this in the Cafe, could all that may be faid to alleviate his Offence be ùrg'd against him with a double weight, were the Circumftacces of the Fact as foul and aggravating as the Malice. of his Enemies could wifh, yet furely a lefs Fine might have ferv'd, for the Law calls in a great Cccc 2

many

many grains of Mercy into every Judgment, and has ever look'd upon a over-rigid profecution of the Guilty to be no lefs Tyranny than the profecution of the Not guilty, becaufe it is Summum jus, and has declar'd that to be Summa Injuria.

But befides all this, I do conceive with fubmiffion, that where the Law has intrusted the Judges with a power to fine, it is in a much leẞ degree than they have done in this Cafe: Firft, becaufe the Law is very cautious whom and with what it does intrutt it repofes a great confidence in the King, yet in fome cafes his Acts are not regarded by it, as the King can do no Ministerial A&t, a Commitment per fpeciale mandatum Dom. regis, is a void Commitment: Where there lies an Action in cafe of Wrong done to the Party, the Acts of the King in thofe cafes, according to the old Law Phrafe, are to be bolden for none.

Secondly, Because Liberty is fo precious in the eye of the Law, it is of fo tender a regard, that it has referv'd the whole difpofe thereof to its own immediate direction, and left no part of it to the Difcretion of the Judges, and what the Law will not fuffer to be done directly, it does forbid that it be done indire&ly or by a fide-wind; and fo confequently the Judges cannot impofe a greater Fine than what the Party may be capable of paying immediately into Court: but if the Judges may commit the Party to Prifon till the Fine be paid, and withal fet fo great a Fine as is impoffible for the Party to pay into Court, then it will depend upon the Judges pleasure, whether he fhall ever have his Liberty, becaufe the Fine may be fuch as he fhall never be able to pay: And thus every Man's Liberty is wrefted