the same fate that Aristotle, Avicen, and Averroes did in France, some five hundred years ago, which was excommunicated by Stephen, bishop of Paris, (by that very name, excommunicated,) because that kind of learning puzzled and troubled1 their divinity: but finding themselves at a loss, some forty years after (which is much about the time since I writ my history), they were called in again, and so have continued ever since.

CXXXVI.

TRADE.

1. THERE is no prince in Christendom but is directly 10 a tradesman, though in another way than an ordinary tradesman. For the purpose, I have a man; I bid him lay out twenty shillings in such a commodity; but I tell

1 Troubled, H. 2] trouble, H.

confusion on the part of Selden's reporter, Milward. The controversy in which Stephen figures had to do with the nature and origin of the higher form of intelligence, Aristotle's voûs toinτikós, Roger Bacon's intellectus agens. The authority of Aristotle and of his Arabian commentators, Avicenna, Averroes, and others, had been used, not unfairly, to support the theory that this intelligence was no constituent part of each human mind, but that it was of a divine nature, infused into the mind, and the same in all minds, being a pre-existent entity distinct from the human faculties properly so called, and quickening them to the discovery of truth. This, which had long been the accepted view, began to be called in question in the thirteenth century, and was publicly condemned at Paris by Bishop Stephen in 1270. The objections made to it, and the terms of compromise by which the dispute was finally adjusted, are very fully set down in Selden's De Jure Naturali et Gentium, lib. i. cap. 9 (Works, i. 154157).

It is clear, from Langbaine's letter, that the discourse reported in the text must have been towards the close of 1653 or in 1654, the year of Selden's death.

him for every shilling he lays out I will have a penny: I trade as well as he. This every prince does in his customs. 2. That which a man is bred up in, he thinks no cheating; as your tradesman thinks not so of his profession, but calls it a mystery. Whereas if you would teach a mercer some other way to make his silks heavy than what he has been used to, he would peradventure think that to be cheating.

3. Every tradesman professes to cheat me, that asks for 10 his commodity twice as much as 'tis worth.

CXXXVII.

TRADITION.

SAY what you will against tradition, we know the signification of words by nothing but tradition. You will say the Scripture was written by the Holy Spirit, but do you understand that language 'twas writ in? No. Then for example, take these words, In principio erat verbum. How do you know those words signify, In the beginning was the word, but by tradition, because somebody has told you so?

20

CXXXVIII.

TRANSUBSTANTIATION.

I. THE fathers using to speak rhetorically, brought up transubstantiation: as if because 'tis commonly said, amicus est alter idem, one should go about to prove that a man and his friend are all one. That opinion is only rhetoric turned into logic.

2. There is no greater argument (though not used) against transubstantiation, than the Apostles, at their first council,

forbidding blood and suffocation. Would they forbid blood, and yet enjoin the eating of blood too?

3. The best way for a pious man1 is to address himself to the sacrament with that reverence and devotion, as if Christ were really there present.

CXXXIX.

TRAITOR.

'Tis not seasonable to call a man traitor, who has an army at his heels. One with an army is a gallant man. My Lady Cotton was in the right, when she laughed at the Duchess of Richmond for taking such state upon her, when 10 she could command no forces. She a duchess! there is in Flanders a duchess indeed; meaning the arch-duchess.

CXL.
TRIAL.

I. TRIALS are one of these three ways; by confession; or by demurrer, that is, confessing the fact, but denying it to be that wherewith a man is charged; for example, denying it to be treason, if a man be charged with treason: or by a jury.

2. Ordalium was a trial, and was either by going over

1 The best way for a pious man, &c.] with heading 'Transubstantiation' to This section appears in H. under which subject it seems more properly heading 'Sacrament.' In H. 2, it to belong. appears as an appendix to the MS.

1. 19. Ordalium was a trial] There were several forms of the ordeal. In the aquae frigidae judicium-una ex purgationibus vulgaribus quas judicia Dei appellabant-the suspected or accused person was plunged into deep water; if he swam he was held guilty, if he sank innocent. In the aquae ferventis judicium, the accused had

nine red hot ploughshares, (as in the case of Queen Emma, accused for lying with the bishop of Winchester, over which she being led blindfold, and having passed all her irons, asked when she should come to her trial;) or 'twas by taking a red hot coulter in a man's hand, and carrying it so many steps, and then casting it from him. As soon as this was done, the feet or the hands were to be bound up, and certain charms to be said, and a day or two after to be opened; if the parts were whole, the party was judged 10 to be innocent; and so on the contrary.

3. The rack is used nowhere as in England. In other countries 'tis used in judicature, when there is a semiplena probatio, a half proof against a man; then to see if they can make it full, they rack him if he will not confess. But here in England they take a man and rack him, I do not

to plunge his bare hand and arm into boiling water. Of the same kind was the judgment by hot iron, to which Selden here refers. See Ducange, Gloss., under Aquae and Ferrum Candens.

Muratori adds, under 'Judicium ferri candentis,' the passing blindfold over hot ploughshares, and a further form known as the judicium crucis, in which the accused had to stand with his arms held out in the form of a cross, while a chapter in the Bible or some of the Psalms were read. If he could maintain the posture he was pronounced innocent, if he gave way he was guilty. See Muratori, Antiq. Ital. Dissert. 38, p. 611 ff.

1. I. as in the case of Queen Emma] The account of Queen Emma's trial is given, as in the text, in Fabyan's Chronicle, pp. 224-5 (Ellis's ed. 1811). The ordeal, as might be assumed, was under the management of her episcopal friends. The Archbishop, Robert, who had declared against her, was not present.

1. 14. But here in England they take a man &c.] The infliction of torture was certainly against the English common law and against the Magna Charta, but it was no less certainly of regular and frequent occurrence. As to its illegality, we have, e. g., the statement of Chief Justice Fortescue, quoted and endorsed by Coke, and we have the declared opinion of the judges in Felton's case (November, 1628): 'That he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law.' 'And yet' (says Jardine, in his Reading on the use of torture in England) 'it is an historical fact that, anterior to the Commonwealth, torture was

know why, nor when; not in time of judicature, but when somebody bids.

4. Some men before they come to their trial, are cozened to confess upon examination, upon this trick. They are made to believe somebody has confessed before them; and then they think it a piece of honour to be clear and ingenuous1, and that destroys them.

CXLI.

TRINITY.

THE Second Person is made of a piece of bread by the Papist; the Third Person is made of his own frenzy, malice, 10 ignorance and folly, by the Roundhead. To all these the spirit is intituled 2. One the baker makes, the other the cobbler; and betwixt these two, I think the First Person is sufficiently abused.

1 Ingenuous] ingenious, MSS.

2 Intituled, H. 2] intitled, H.

always used, as a matter of course, in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law besides the prerogative of the sovereign.' He traces the practice from Henry VIII's reign down to May 1640, Archer's case, which is (he says) 'the last recorded instance of the infliction of torture in England, and as far as I have been able to discover the last instance of its occurrence.' Jardine holds that, though not lawful by the common law, it was lawful as an act of prerogative, a power superior to the laws and able to suspend the laws; but it may be fairly questioned whether this strain of prerogative over law can be allowed to have been lawful in any sense. See 'Prerogative,' sec. I. It is curious to find Grotius and other foreign jurists praising the law of England for its singular humanity in conducting criminal proceedings without the use of torture, and devising ingenious reasons to account for it; while Selden, well acquainted with the facts, compares English practice disadvantageously with that of other countries -an opinion which Jardine confirms by contrasting in detail the arbitrary and uncontrolled licence of the English method with the limitations and definite rules which prevailed in countries whose code was based on the Roman law. Reading, &c., p. 67.