Church-Papists In short they contriv'd so many shams and silly stories as made the very truth questionable and when they saw the English Plot was not like to embroil the Nation they invited a number of profligate wretches out of Ireland gave them Cloaths and Money in abundance and took so much pains to set up these unmanageable Tools that in fine they dash'd both Plots to pieces one against the other Are we not then beholding to our true-blew-Protestants after all these fine exploits for their abhorrence against Popery and the Plot and to Mr Hunt for his zealous vindication of their Proceedings He was formerly suspected to be a man of no Religion but now like a generous Soul he owns his Party in their greatest distress and openly declares against the Church of England as Betrayers of God's Cause and the Peoples Liberties Some of little understanding among you saith he that thus behave your selves are excusable as misguided by some of your Ministers who are in good earnest begging Preferments Dignities and Benefices for themselves by offering and betraying our Church to a voluntary Martyrdom p. 12. I need not comment upon this scurrilous Reflection 't is enough to say 't is the product of Mr. Hunt's own Brains who according to his Fee tho' against his conscience spoke for his Clyents for Lawyers he tells us and who more fit to know have Opinions to sell at any time tho' they have not the least colour of Reason to support them p. 19. If this Confounder both of Law and Gospel be thus for fouling his own Nest we need not wonder at his frequent snarlings at the Loyal and Christian Resolutions of our Reverend Clergy or expect better usage from a man that openly sides with the Enemies of our Church I come now to his second point which is so wild and so extravagant a paradox as deserves rather to be laugh'd at by men of sense than to be answer'd or confuted since besides several that have done it within these two years past there are not many Corporations in England whose Charters have not been surrendred by their Common-Council without so much as consulting their Common-halls and yet were never question'd for it as Betrayers of their Trust or of the Liberties of the People But he drives home the Nail in his 3d. assertion where he says that the Sherivalties of London and Middlesex or the right of choosing their Sheriffs the main point now in dispute and what most concerns the King after our late experience to have in His own disposal cannot be parted with without an Act of Parliament tho' with the consent of every individual Citizen But sure the Gentleman is not in earnest for I hope he will allow us that tho' alone they cannot yet with the consent and approbation of the Common-hall or of every Citizen the Common-Council may surrender the Charter who then the Charter being thus surrendred has the power of choosing the Sheriffs when the Corporation the City and the County is dissolv'd neither Mayor nor Alderman Citizen nor Free man to found The Inhabitants in general cannot choose them for they have no right now to do it neither do they receive any new power by the surrender of the Charter and yet the Free-men cannot when there is no such thing in being no more in London than in Westminster or any other Dissolv'd Corporation But to be short in a Case so plain since the Gentleman requires an Act of Parliament for displacing the Citizens Right of choosing their Sheriffs here is One ready to his hand for taking away upon their neglect or misgovernment all their Franchises and Liberties and consequently this power of electing their own Officers and Magistrates an Act found by the prudence of our Ancestors so necessary for to maintain the publick Peace and keep that over-grown City within the bounds of duty that Henry IV. tho' he sought occasions to ingratiate himself with the People of London the better to secure his Usurpation yet cou'd not be wrought upon by their intreaties to have any material part of it alter'd much less annull'd or repeal'd The Act take as followeth 280 Edwardi 3 i. cap. 10 o. BEcause that the Errors Defaults and Misprisions which be notoriously used in the City of London for default of good Governance of the Mayor of the Sheriffs and the Aldermen cannot be enquired nor found by people of the same City it is ordained and established That the said Mayor Sheriffs and Aldermen which have the Governance of the same City shall cause to be redressed and correated the Defaults Errors and Misprisions above-named and the same duly punish from time to time upon a certain pain that is to say at the first Default a Thousand Marks to the King and at the second Default two Thousand Marks and at the third default that the Franchise and Liberty of the City be taken into the King's hand And be it begun to enquire upon them at St. Michael next coming so that if they do not cause to be made due redress as afore is said it shall be enquired of their Defaults by Enquests of people of Foreign Counties that is to say of Kent Essex Sussex Hertford Buckingham and Berk as well at the King's Suit as others that will complain And if the Mayor Sheriffs and Aldermen be by such Enquests thereto assigned Indiaed they shall be caused to come by due Process before the King's Justices which shall be to the same assigned out of the said City before whom they shall have their Answer as well to the King as to the Party And if they put them in Enquests such Enquests shall be taken by Foreign People as afore is said And if they be Attainsed the said pain shall incurr and be levied of the said Mayor Sheriffs and Aldermen for default of their Governance And nevertheless the Plaintiffs shall recover the treble Damages against the said Mayor Sheriffs and Aldermen And because that the Sheriffs of London be Parties to this business the Constable of the Tower or his Lieutenant shall serve in the place of the Sheriffs to receive the Writs as well Originals of the Chancery as Judicials under the Seal of the Justices to do thereof execution in the said City And Process shall be made by Attachment and Distress and by Exigent if need be so that at the King's Suit the Exigent shall be awarded after the first Capias returned and at the third Capias returned at the Suit of the Party And if the Mayor Sheriffs and Aldermen have Lands or Tenements out of the City Process shall be made against them by Attachments and Distresses in the same Counties where the Lands or Tenements be And that every of the said Mayors Sheriffs and Aldermen which do appear before the said Justices shall answer particularly for himself as well at the peril of other which be absent as of himself And this Ordinance shall be holden firm and stable notwithstanding any manner
Franchise Priviledges or Customs And this Ordinance shall extend to all Cities and Boroughs of the Realm where such Defaults or Misprisions be used and not duly corrected nor redressed saving that the Enquests shall be taken by Foreign people of the same County where such Cities or Boroughs be And that the pain of those of the said Boroughs and Tolws which shall be thereof Attainted shall be judged by the Discretion of the Justices which shall be thereto assigned This Act was a great Curb to the people of London and kept them for many years after very obsequious and dutiful to their Sovereign but in process of time finding it was not duly put in execution they began to forget it at last and wou'd now and then break out into some extravagance which afterwards cost them very dear Finding therefore themselves very uneasie under this restraint tho' neither in Edward III. nor his Successor's Reign they durst motion to have that Statute repeal d yet when the Vsurper Henry IV. came to the Crown they labour'd hard to get themselves rid of it but cou'd gain no more than the following Clause which many in London who always think ill of the King and His Ministers will think of no great advantage to the Defence of the Charter OUR Lord the king considering the good and lawful Behaviour of the Mayor Sheriffs and Aldermen and of all the Commonalty of the same City of London towards him and therefore willing to ease and mitigate the Penalty aforesaid by the assent of the Lords Spiritual and Temporal and of the Commons aforesaid hath Ordained and Established That the Penalty aforesaid as well of the Thousand Marks and of the two Thousand Marks and of the seizure of the Franchise comprized in the said Statute shall not be limited in a certainty but that the Penalties in this case be by the advice and discretion of the Justices thereto assigned as other Cities and Boroughs be within the Realm And that the Remnant of the same Statute and the Process thereof stand in their force 1 H. 4. cap. 15. Now I appeal to Mr. Hunt's own Judgment provided he has so much moral honesty to speak nothing of his skill in the Laws as will qualifie him for an Irish Chief-Baron Whether or no these two Statutes be not as plain against the Charter supposing the Mayor Sheriffs and Aldermen to have been negligent in their duty and a fortiori if they and the Common-Council be found guilty of the Crimes laid to their charge as Magna Charta or the Petition of Right is for the Liberty and Property of the Subject For that 't is neither Treason nor Felony nor yet the Subversion of the Government but Crimes of a far inferiour nature that are meant by the Errors and Misdemeanors mentioned in the said Acts is apparent by another Statute made some three years after by the same King Edward III. where it is Enacted That the Mayor and Aldermen of London shall rule and redress the defaults of Fishers Butchers and Poulters and put the same in execution upon the pain late ordained touching the City of London 31 Ed. 3. cap. 10. Now if the whole City for a bare neglect of duty in their Officers as for omitting to punish the Misdemeanors of silly Trades-men were by these Acts of Edward III. so grievously punishable as for the first Offence to forfeit a Thousand 〈…〉 no less in the 〈◊〉 value than 2000 l of our now 〈…〉 so much in the 〈◊〉 use and price of things 〈…〉 for the second offence and for the third to forfeit their Franchise and Liberties to the King what shall be thought of others if they are found not only to have laid an Illegal Arbitrary Tax upon their fellow-Subjects and in a tumultuous manner invaded their Properties but wink'd at if not encourag'd the publishing of Treasonable Papers and Pamphlets and instead of suppressing others presented their Prince with a most Scurrilous one of their own by way of Petition to tax His Majesty with misgovernment and endeavour to bring Him into hatred and contempt with his People As for the aforesaid Clause of 1 H. 4. tho' intended for as really it was a great favour to the City that they shou'd not for every trisling fault be oblig'd to pay such a vast Fine as a Thousand Marks twenty times greater than that sum now yet if their Crimes had been found of a transcendent nature striking at the very Root and Life of the Government we may be sure the Justices by vertue of this very Clause wou'd have immediately seiz'd their Charter without bringing them to any further Tryal So that this Clause tho' in small inferiour misdemeanors it be a great advantage to the City yet in Crimes of State where the Crown and the Monarchy are concern'd 't is no less an advantage to the King Thus Sir you have seen how well Mr. Hunt has defended the Charter against all the Power both of Law and Reason and you will find him altogether as happy in the rest of his undertakings I omit his impertinence on the Play call'd The Duke of Guise his unmannerly application of the Characters and his framing of Parallels where little or no similitude can be found Yet en passent I cannot but pity the condition our Lawyers INNOCENT and GENTLE PRINCE is reduc'd to by the slie insinuations and bewitching flatteries of this and such other Sycophants of the Faction who puff'd him up and possess'd him with such chymerical hopes of a Crown as made him forget his Obedidence to his Princes will and the positive command of his Natural Father Natural I say because in our Laws the Maxim is Qui ex damnato coitu nascuntur inter liberos non computantur i.e. Bastards are not counted amongst Sons Coke 1 Instit. f. 3. or as Littleton says A Bastard is quasi nullius filius because he cannot be Heir to any apud Coke 2 Instit. § 188. Now if by Law this Prince can be Heir to none what a madness it was to advise him to aspire to Three Hereditary Kingdoms or think to carry them tamely by Popular Applause when nothing but the Sword can establish a crack'd Title But the best people of England says this non-sensical Scribler have no other way left to shew their Loyalty to the King and love to their Religion and Government in the long intervals of Parliament than by Prosecuting His Son for the sake of the King and his own Merit with all the demonstrations of the highest esteem p. 28. They are certainly very hard put to it if this not to PROSECUTE his silly Latinism be the only shift they can make to express their Loyalty when Children can tell they might if they had any better shew it by prostrating themselves at His Majesty's feet and declaring their readiness to venture their Lives and Fortunes in defence of His Sacred Person and the Rights of His Crown against all the attempts of the
against any of their Pretensions yet I must say the power they claim now-a-days to punish all sorts of misdemeanors and what they please to term a breach of Priviledge is not to be endur'd by any free-born Subject For besides that 't is needless because such offences may and by Law ought to be try'd in the ordinary Courts of Justice 't is very dangerous to the Publick least the Grand Inquest of the Nation appointed to represent the Peoples Grievances and pray redress shou'd upon this account be diverted from pursuing those weighty affairs by every sawcy Footman belonging to the meanest Burgess in their House I confess it were somewhat tolerable in the Commons to imprison and punish their own Members for words by them spoken or misdemeanors committed in the House 1. Because by 4 H. 8. c. 8. they are not punishable elsewhere for any rashness in Parliament that does not amount to Treason Felony or breach of the Peace which the Commons neither can nor I hope will as in Forty-One endeavour to protect 2ly Because 't is suppos'd the Members upon their entring into that Assembly unanimously agreed the lesser number shou'd always submit to the greater and the major Vote be observ'd as the Act and Sense of the whole House if therefore by consent and original compact every single Member submits himself to the rest he cannot complain tho' otherwise they had no authority if they imprison him for his misdemeanors because scienti volenti non fit injuria provided always they exceed not the common Rules of Justice nor the bounds of our establish'd Laws for then no private Act can bind a Subject tho' made with his own free consent as appears by Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. I cannot therefore but think the power assum'd of late years by the House of Commons over their fellow-Members to expel them the House when and for what they please without any legal Tryal which the Lords never practic'd against any of their Peers is in it self most unreasonable and of very dangerous consequence as Mr. Prynne tho' otherwise a great Champion for the Priviledges of Parliament proves at large in divers of his Treatises The practice saith he of sequestring and expelling Commons by their fellow-Commons only is a late dangerous unparliamentary Usurpation unknown to our Ancestors destructive to the Priviledges and Freedom of Parliaments and injurious to those Counties Cities and Boroughs whose Trustees are secluded the House of Commons being no Court of Justice to give either Oath or final Sentence and having no more authority to dismember their fellow-Members than any Judges Justices of the Peace or Committees have to Dis-judge Dis-justice or Dis-committee their fellow Judges Justices or Committee-men being all of equal Authority and made Members only by the King 's Writ and the Peoples Election not by the Houses or other Members Votes who yet now presume both to make and unmake seclude and recal expel and restore their fellow-Members at their pleasure contrary to the practice and resolution of former Ages to patch up a Factious Conventicle instead of an English Parliament In his legal Vindication of the Liberties of England p. 10. But whatever Power the Commons can pretend to have over their own Members to say they can lawfully punish others tho for a breach of Priviledge much less for any other Crime seems to me a very groundless Assertion not warrantable by the Ancient Law and Custom of Parliament but rather contrary to the Fundamental Constitutions of our Government First because 't is impossible to make out from whom this Power is deriv'd From the King The Factious will not own it and none can prove it For they have neither Patent nor Statute to shew for 't nor yet any Legal Prescription which is a constant immemorial Custom such as the Lords have in point of Judicature to warrant it the Ancientest President they can alledge being that of 4 Ed. 6. or the Case of Ferrers referr'd to them by the Lords in the 34 H. 8 about sevenscore years ago Do they deriâ—e it then from the People from the Freeholders and Freemen their Electors These have no such Power of themselves they can Imprison none without His Majesties Commission and what they have not sure they cannot give Nemo dat quod non habet As for the Power given by the Electors to their chosen Members who are order'd by the Writ of Summons to have from the persons they represent Plenam sufficientem potestatem 't is no Judicial Power nor Political Jurisdiction which the People have not and consequently cannot give but only a Power of consenting as well for their Principals as for themselves to the Kings Laws and Ordinances And certainly if the King be the Suprem and the only Suprem Governour of this Realm as we affirm in the Oath of Supremacy and if all Authority and Jurisdiction Spiritual and Temporal be derived and deducted from the Kings Majesty as 't is expresly declarâ—d 1 Ed. 6. c. 2. § 3. Or as Old Bracton saith Ea quae sunt Jurisdictionis pacis ad nullum pertinent nisi ad regiam dignitatem lib. 3. c. 24. Unless the Commons can make out they have their Power from the King they can have no manner of Jurisdiction and by consequence cannot lawfully Punish or Imprison any Criminal if not perchance their own Members in the Cases aforesaid Besides in the first Parliament of Queen Mary 't is declar'd That the most Ancient Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King 1 Mar. Sess. 3. c. What then are the breakers of the Commons Priviledges are they Offenders against the Dignity of the Crown or the Laws of the Realm If so they ought according to this Act to be punish'd by the King if not they are not punishable at all for to trouble any that does not offend against the Crown or the Law of the Land is very Illegal and Arbitrary and a high breach of the Liberty of the Subject Secondly because the Law has expresly provided where and how breaches of Priviledge ought to be punish'd and gives the House of Commons no power to take any cognizance of them for by several Statutes it appears that if a Parliament-man or his Menial-servant be Assaulted Beaten or Wounded in Parliament-time Proclamation shall be made where the deed is done that the Offendor shall render himself to the Kings-Bench within half a year after there to be tryed and if the Offendor will not appear he shall be Attainted of the Deed and pay to the Party griev'd his double Damages to be tax'd by the discretion of the Judges of the said Bench for the time being or by Inquest if need be and also make Fine and Ransom at the Kings will Moreover it is