and accorded for the good governance of the Commons that no man be put to answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for error What are we the better I say to have these and several other Statutes to the same purpose if they are not of force to secure us on all sides from the slavish yoke of Arbitrary Power If a breach be once made in these great Bulwarks of our Liberties and that even by those Sentinels appointed to guard us from all Illegal Incroachments where is our Security What will it avail the flock that they are safe from Wolves if they are in danger to be devour'd by the very Dogs that shou'd defend them Or to what purpose shou'd people struggle to avoid Scylla if at the same time they suffer themselves to be swallow'd up in Charybdis 'T is an old saying Infeliciter aegrotat cui plus mali venit a medico â—uam a morbo and we have found this too true by a dear-bought experience God preserve us from receiving any further confirmations of it from those State-Empyricks that labour to make us exchange the reality for the name and the substance for the shadow or Liberty 'T is plain by the foregoing Statutes that no man ought to be taken or Imprison'd without being brought to Answer by due course of Law and that none can be brought thus to answer without Presenâ—ment before Justices or matter of Record or by due Process and Writ Original according to the old Law of the Land What pretence then have the House of Commons who can bring none to Answer in this manner to any right or legal power to take or Imprison any Criminal whatsoever 'T is true the Common and generally all men in Authority are inclin'd to enlarge their own Jurisdiction and stretch it as far as possible but sure a bare Vote of that House in favour of themselves or a late practice never heard of in former Ages shall not be of force enough in any Court of Justice to elude the solemn Acts of King and Parliament Besides these Statutes too plain to admit of any comment even by the Common Law of this Realm no Subject can Imprison another but our Ancient Courts of Record and such as have the Kings express Commission for so doing I say Courts of Record because as appears by divers adjudg'd Cases in our Law Reports no other Court can Fine or Imprison the Subject Courts saith Coke which are not of Record cannot impose a Fine or commit any to Prison lib. 8. f. 38. And again Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista tantummodo spectant ad Curias de Recordo Now our best Lawyers will tell us that the House of Commons is no Court of Record nay properly speaking is no Court at all 1. Because there is no Court but what is establish d by the Kings Patent by Act of Parliament or by the Common-Law i.e. the constant immemorial custom of former Ages Plowdens Comment fol. 319. and Coke 1 Instit. f. 260. But the House of Commons cannot pretend to have any Patent or Act of Parliament to be a Court and yet the Common-Law makes nothing for their purpose For they were never own'd as such nor ever had as much as a Journal-Book much less Records till Ed. 6's time And moreover it was never heard before Sir Edward Cokes fancy there were two distinct Courts in the same Parliament since therefore the House of Lords is undoubtedly the Supream Court of all England they are properly the High Court of Parliament and consequently the House of Commons is no Court in Law Secondly There is no Court without a power of Tryal but the House of Commons have no power to try any Crime or Offence for they cannot nor ever pretended to examine upon Oath And therefore since there can be no legal tryal without Witnesses nor are Witnesses of any force in Law unless examin'd upon Oath the House of Commons not claiming the power to administer Oaths cannot bring any matter to a Tryal and consequently can be no Court. I must confess Sir Edward Coke who in his latter days thinking himself disoblig'd was no friend to the Monarchy and therefore took a great deal of pains to extol the Power of the Commons in opposition to the Kings Prerogative and the Jurisdiction of the Lords is or at least pretends to be of another opinion In the 4th part of his Institutes he tells us That the House of Commons is to many purposes a distinct Court p 28. which he very Learnedly proves by this rare Demonstration That upon signification of the Kings pleasure to the Speaker they do and may Prorogue or Adjourn themselves and are not Prorogu'd or Adjourned by the House of Lords ib. Whereas to say nothing of Commissioners for examining Witnesses or regulating any publick business of Arbitrators Referees and the like every Committee of Lords and Commons tho never so few in number must upon this account be a distinct Court because they may thus Adjourn and Prorogue themselves without their respective Houses But he goes on and to prove the House of Commons is not only a Court but a Court of Judicature and Record he says p. 23. That the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. Whereas that House as I have already hinted had no such Book as a Journal much less any Authentick Record before the first year of Edward the sixth all their material Proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entr'd of Record in the House of Lords And therefore the words of the Statute are That the Speakers License for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House Which undoubtedly must be meant not of the Commons tho order'd now and then to wait upon them but of the Lords Clerk who alone is stil'd Clerk of the Parliament I omit that altho the Act had expresly call'd the Commons Book a Record yet this cou'd no more make it so than the words of the Common-Law Recordari facias loquelam in Curia Comitatus vel Baronis tui Recordum illud habere coram Justiciariâ—s nostris c. us'd in the Writt for removing a Plaint out of the Court-Baron or County-Court to the Common-Pleas can prove the County-Court and Court-Baron to be Courts of Record which yet Coke himself denyes in several places of his Institutes See 1 Inst. f. 117. and 260. and Rolls in his Abridg. f. 527. This is not all the Lords and Commons must be made all Fellows
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-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
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
Popish Plotters and Whiggish Associators 'T is true some of the best People in England have had for the King's sake and in some measure for his own Merits sufficient kindness for his Grace and still wish him more Grace and consideration than to continue obstinately disobedient contrary to common Prudence and to all the ties and obligations of Nature of Duty and of Gratitude But as for Mr. Hunt's best People of England tho' pretended his only Friends they have been upon all occasions his real Enemies made a Property and a Tool of him to set him up like another Perkin Warbeck in opposition to the Royal Line and if that succeeded to kick him down again as they did Richard Cromwell to make room for Themselves and their darling Commonwealth But to return from this digression and examine what is left yet unanswer'd of this idle Pamphlet I find our Chief-Baron wouâ—d-be has stumbl'd at last on those two famous Statutes of Edward III to prove that Parliaments must be held once every year which saith he is confirm'd by an Act of this King call'd the Trienial Act p. 21. But by his Lordships good leave these Statutes if well consider'd will be found to have been made rather to oblige the Commons who then grumbl'd no less at the frequent calling than the Factious do now at the long intermission of Parliaments to send their Representatives to the King 's Great Councel than to bind the King to summon them when there was no occasion for their meeting and therefore to make the case more plain the conditional Clause If need be which may aptly refer to the whole period is expresly provided in the said Statutes For to affirm it was absolutely enacted that a Parliament shou'd be held once every year whether there was any or no need of their meeting when the choosing of Members was so troublesom and their expences eundo morando ad propria redeundo so chargeable to the people besides the great Taxes they usually granted is altogether unreasonable As for the Triennial Act of this King it makes more against than for his Lordships design since it requires but to have a Parliament once in three years and not sooner without some extraordinary occasion which I doubt not but His Majesty according to His late most Gracious Declaration will see punctually observ'd as He has been pleas'd to do in the whole course of His Reign And the Statute of Provisors 25 Ed 3. is no less impertinent to his purpose for tho' it be the Right of the Crown of England and that the Law of the said Realm is such that upon the mischiefs and damages which happen to His Realm the King ought and is bound by Oath with the accord of His People in Parliament to make remedy and Law in removing the mischiefs and damages which thereof ensue Yet if His People in Parliament prove peevish and obstinate and will not accept of His Majesty's gracious Condescensions nor of the expedients by Him propos'd who then is to be blam'd the King or His People How many Proposals and Overtures of accomodation have been made by His Majesty to His last Parliament at Westminster and how undutifully they were rejected by some Leading-Members in the House of Commons How often did he offer to consent to any reasonable expedient they cou'd find out for securing the establish'd Religion in case of a Popish Successor But all was slighted as if nothing but the Subversion of the Monarchy was able to secure some Gentlemen in their Religion that were shrewdly suspected to have none to lose This discourse I know will not relish with our Irish Chief-Baron who seems already very angry that a Cabal as he calls the Loyal Addressers of the Nation shou'd take upon themselves to arraign the Proceedings of our latest Parliaments p. 8. And yet his unmannerly Worship because he thinks 't is a Priviledge peculiar to the Godly to speak evil of Dignities scruples not to rail at the best Parliament that ever met in his time which really was what he scoffingly calls it a Parliament of famous Loyalty tho' in their latter days when by the Death of several good Members too many of the old Leaven had crept in that vigor was much abated which they always express'd in their former resolutions and for which this Factious Lawyer presumes to say that obliquely they gave the Papists many assistances p. 14. and in plain terms calls them the corrupt Villains of the late Long-Parliament Considerations consider'd p. 19. But to clear this point without insisting upon retortions and recriminations I say to arraign the Proceedings of the Parliament in its true and legal sense that is of King Lords and Commons is a very great and a very hainous Crime not to be conniv'd at or endur'd in any Subject whatsoever because it tends to the vilifying and consequently to the subverting the Government for as Seneca well observ'd Nihil valet Regum potestas nisi prius valeat authorit as If Princes lose their Authority the awe and reverence due to them from the People they have lost their Power and Command and are in effect more than half Depos'd But to arraign the Proceedings of the Parliament when this Name is abusively appropriated to the House of Commons to whom this lawless Scribler attributes a high and uncontroulable Power p. 9. as if the King and Lords were only Cyphers the Crime is not near so unpardonable as some people wou'd have us believe I am sure Mr. Justice Hutton in his Argument against Ship-money which so pleas'd even that Rebellious Conventicle of Forty-One who swallow'd up the King's Prerogative and the Peoples Liberties in their Parliament-Priviledges that they gave express Orders to get it printed thought it no such Crime to say I know not whether the last meeting in Parliament either by ill choice of the Members of the House or by the great encrease of the number or by the ambitious humour of some Members of that House who aim'd more at their own ends and designs than the good of the Commonwealth things were so carry'd not as was us'd in ancient times but so disastrously that it hath wrought such a distast of this course of Parliaments as we and all that love the Commonwealth have just cause to be sorry for it p. 33. Nevertheless I must confess that even in this sense 't is not becoming every private Pen to censure or condemn them upon every slight occasion and the motives must be very extraordinary when such practices are allowable Yet when we consider that matters have been so carry'd on for some years past that of necessity we must eâ—ther mislike our Princes Wisdom and Councils for Proroguing and Dissolving so many Parliaments or conclude as undoubtedly we must that the unseasonable heat of the Leading-Members in the House of Commons necessitated His Majesty to take such unwelcom resolutions And withal when we find not only the King but the
look'd upon by our Laws as persons of no less Integrity than Honour in the distribution of Justice and besides are assisted by all the Judges of England by the 12 Masters of Chancery by the Kings Learned Council and by His Attorney and Solicitor General in consideration whereof the same Laws have repos'd that extraordinary trust in this August Assembly that to them alone it belongs to redress delays and reform the erroneous Judgments of other Courts of Justice and give a final decision to all manner of Appeals Now by the Laws of other Nations as well as ours 't is the nature of Superior Courts that they may determine matters tryable by an Inferior and therefore it must be allow'd that tho the House of Commons cannot because no Court of Judicature yet the House of Lords the dernier resort of all Suits and Actions may if they please punish the Invaders of their Priviledges notwithstanding that the Law directs them to be try'd in Inferiour Courts Having thus sufficiently demonstrated that the House of Commons have neither Common nor Statute-Law nor yet any legal Precedents to warrant their Fining or Imprisoning the meanest of their Fellow-subjects 't is high time I think tho a great deal more might be said on this subject very useful to be known to give you a brief account of other Particulars and examine whether the Remedies propos'd in Parliament by our late Mountebanks of State be not equally dangerous if not really worse than our Disease But to expose the designs of some ill men there and the unwarrantable Votes and Resolves they got pass'd in the Lower House is a task no less tedious than difficult for me to undertake I will therefore tell you in short that notwithstanding all the noise and clamour they made about the Protestant Religion and the Liberty of the Subject the Nation had too much reason to believe they minded more their own ends than the common good of the People The Kings best Subjects who having so many years experience of His Majesties most happy Government declar'd themselves satisfi'd with His prudent management of Affairs and in Obedience to His Royal Proclamation express'd their aversion to all Tumultuous Petitions were no more run down on the one side than the Factious Fanaticks even such as signaliz'd themselves in the late Rebellion were countenanc'd and favour'd on the other insomuch that many were of opinion people had no surer way to ingratiate themselves with some of the Leading Memberr than openly to asperse the Government and reflect upon the King and His Ministers as Favorers of Popery and Designers of Arbitrary Power 'T is almost incredible what pains they took to get the Notorious Anabaptist Ben. Harris discharg'd out of Prison for no other reason that I find but because a Dissenter who with a great deal of favour was condemn'd only to the Pillory instead of Tyburn for publishing that Treasonable Pamphlet The Appeal Neither is this all the main Bulwark of our Church must be broke down the Penal Laws against the Non-conformists Repeal'd to let in a Deluge of Sectaries the scandal of the Reformation who have nothing of Christianity but the Name to Profane the Temple of God And because this Project luckily miscarry'd their Friends in the House endeavour'd to leave them a new kind of Dispensation and the very last day of their sitting that with their dying breath they might testify to the World their great zeal for the Dissenters in general of what sect or perswasion soever to the admiration of most men they pass'd the following Vote Resolved That it is the Opinion of this House that the Prosecution of Protestant Dissenters upon the Penal Laws is at this time grievous to the Subject a weakening of the Protestant Interest an encouragement to Popery and dangerous to the Peace of the Kingdom I need not comment upon this unwarrantable Resolve by which our worthy Patriots even without the King and House of Lords once more were pleas'd to assume to themselves a Power of suspending and consequently of making Acts of Parliament The encouragement this gave to the Republicans to pursue their wicked Designs against the Crown and the Church like to have prov'd fatal to both is enough to convince the World they cou'd hardly do the Nation a greater mischief and that their confining several Gentlemen tho contrary to Law and Reason was not near so dangerous to the Government as their breaking down the Rails of the Church to let a swarm of Sectaries creep in at the Windows It was observ'd with some admiration how during this Session of Parliament there was not one Fanatick Imprison'd nor so much as question'd by the Commons for any Crime or Insolence whatsoever very few Papists molested but the true Sons of the Church of England daily Prosecuted in vast numbers to their great loss and vexation tho it prov'd at last the eternal shame and confusion of the Authors I cou'd not but smile to see the perplexity they were in when one of the Judges to his never-dying fame for giving the first Precedent of that kind made application to the House of Commons about the Execution of his Trust and desir'd their Opinion whether he shou'd do Justice to one of their Prisoners by granting the Writ of Habeas Corpus to Mr. Sheridan then in the Custody of Serjeant Topham Three several days the Case was stifly debated in the House the Act read twice or thrice over and yet no resolution taken The Warrant of Committment which order'd the Gentleman to be confin'd without any Cause shown During the Will and Pleasure of the House of Commons was look'd upon so Illegal and Arbitrary a Procedure even by several Members of the House that Serjeant M. till he heard it was already made publick wou'd have them immediately recal the Old and grant a New Warrant more conformable to Law Besides the words of the Statute were so full as admitted of no Comment and so plain for the Liberty of the Subject as made it undenyable that Prisoners unless for Treason or Felony were still Bailable by what Person or Persons soever Committed not excepting the King and Council much less the House of Commons who had no Legal Power to Commit any Criminal But still the point was very nice and the Leading Members no less uncertain what resolution to take for if they openly declar'd against the Habeas Corpus the Nation wou'd be much alarm'd and suspect these Gentleman instead of securing intended to invade the Subjects Liberty but if they allow'd the Writ the delicious power of Imprisoning such as they had a picque to was utterly lost and all persons referr'd to the ordinary Courts of Justice or upon their failure to the House of Lords the suprem Tribunal of England At last Sir William Jones like an Imperious Dictator starts up to decide the matter and having made a bawling Harangue concerning the Power of the House and their Intention of not
binding themselves by that Act which yet must bind the King tho it might as well be alleadg'd He did not intend it he boldly concludes with threatning and daring the Judges to do their duty Precibusque minas regaliter addit The same reasons says he which may be given for discharging such as are not Committed for breach of Priviledge if it be grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons Committed for breach of Priviledge and so consequently deprive this House of all its Power and Dignity and make it insignificant This is so plain and obvious that all the Judges ought to know it and I think it below you to make any Resolve therein but rather leave the Judges to do otherwise at their Peril and let the Debate fall without any question See the Debates of the House pag. 217. Was not this a rare Assertor of our Liberties who instead of allowing us the benefit of the Laws wou'd have us all made Beasts of burden to maintain the Grandeur of some Arbitrary Demagogues in the House of Commons and be content to turn Gally-Slaves rather than their Power shou'd become useless or insignificant But I find this daring Speech did not frighten all the Judges for Baron Weston to his immortal Renown had still the courage to grant the Habeas Corpus and rather expose himself to the malice of the Faction than deny or delay Justice contrary to his Oath Our Religion and Liberty being thus secur'd have we not reason to be fond of these worthy Patriots who tugg'd so hard against Popery the better to bring in Presbytery and to make sure that the Prince shou'd not use Arbitrary Power took all possible care to keep it in their own possession It was the Kings Prerogative in the days of yore to have the Power of making War and Peace and declaring who shou'd be counted Friends and who reputed Enemies to the Kingdom But now the Tribunes of the People are willing to ease him of that trouble and take upon themselves by the following Vote to declare some of His Majesties best Subjects and most Faithful Friends Enemies to the King and Kingdom Resolved That all persons who advis'd His Majesty in His last Message to this House to insist upon an Opinion against the Bill for excluding the Duke of York have given pernicious Councel to His Majesty and are promoters of Popery and Enemies to the King and Kingdom And this extravagant Vote they are pleas'd particularly to apply to four Noble Peers of the Realm exposing them to the Rable without the least colour of proof for Promoters of Popery and Enemies to their Soveraign for no other reason but because they were truly Loyal and free from the contagious leaven of the Faction What a happiness it is to live within the Walls of the House of Commons where the Knave becomes Honest and the Fool a Politician where People are sure never to be in the wrong but always impeccable and may freely rail and reflect upon their Betters which without doors wou'd cost them very dear Yet I cannot but wonder why these Noblemen unless they as well as many others took that Character for a mark of Honour from the givers have taken no course at least with the Printer and Bookseller if not with the then Speaker for ordering such Scandalous Votes to be publish'd contrary to express Acts of Parliament For if the Kings immediate Command cannot be allow'd as a good excuse in Law for any Illegal Act so that altho the Prince be unaccountable yet the Minister is to suffer for his Obedience sure a Vote of the House of Commons shall not be thought of force at least out of Parliament-time to Protect any Offender from Justice because whatever Title the Members within the sacred Walls of the House may claim in some Cases to impunity their Officers and Servants who execute their Illegal Commands abroad cannot in the least pretend to have any But how shou'd these Noblemen be enemies to the King and Kingdom for their advising His Majesty against the Bill of Exclusion when the whole House of Peers few discontented Lords Dissenting who by their Lives and Conversation never shew'd themselves the truest Protestants nor the best Subjects openly declar'd against it and upon the first reading threw it out of doors is a Mystery not easily to be understood His Majesty in His Message to the Commons declar'd He was confirm'd in His Opinion against that Bill by the Judgment of the House of Lords who rejected it why then are four Lords singl'd out and not the whole House declar'd Promoters of Popery and Enemies to the King and Kingdom The reason some will guess that the Leading Members saw matters were not yet ripe to shew themselves bare-fac'd or discover the bottom of their Designs and once more to Vote the House of Lords dangerous and useless and therefore to be laid aside But why the Opposers of the Bill of Exclusion enemies to the King and Kingdom When 't is made plain even to Demonstration in several Treatises publish'd these four years past about the Succession that the Promoters of that Bill tho some perhaps meant otherwise were in fact Enemies to the Monarchy and no Friends to the King nor to the True Protestant Religion 'T is strange that such as loudly exclaim against Popery shou'd have the face at the same time to practice the worst of Popish or rather Jesuitical Principles and endeavour to force their Soveraign to disinherit His only Brother upon a bare suspicion of his being of another Religion which Henry the 3. of France being tender of the Monarchy and of the Hereditary Right of Succession was so far from offering to the King of Navarre tho a known Protestant and but a remote Kinsman that he cou'd never be perswaded to give the Royal Assent to the Bill which the powerful influence of the Factious Duke of Guise got pass'd by the three Estates for his Exclusion Oh! but say they Popery and Slavery will break in upon us if the Duke succeeds And I am sure Anarchy and Presbytery and an Intestine Civil War will undoubtedly follow if he be excluded the King expos'd to danger and the Kingdom to ruine How fatal it prov'd to Henry 6. that he suffer'd the good Duke of Gloucester to be made away by his Prosecutors which made way for his own Deposition and consequently for his untimely end Historians do abundantly testify and Baker tells us how the great Duke of Somerset then Protector by Sacrificing his Brother the Lord Admiral to the malice of his Enemies in hopes to stop their mouths by yielding to their demands clear'd the way for himself to the Scaffold A Warrant saith this Historian was sent under the hand of his Brother the Protector to cut off his Head wherein as afterwards it prov'd he did as much as if he had laid his own Head upon the Block For
His Crown and His Regalty in the cases aforesaid and in all other cases attempted against Him His Crown and His Regalty in all points to live and to die These and several other Statutes too tedious 〈◊〉 to be inserted have been provided in former ages when the Pope's power was at the highest and provided even by Popish Kings and Popish Parliaments to secure themselves and the Nation from all Papal encroachments Neither have our Judges been less severe against the Popes unwarrantable pretensions who in pursuance of the Common-Law of the Land tho' no Statute had been made to that purpose judg'd it a very hainous Crime in any Subject of England to obey or put them in execution In the Reign of King Edward I when a Subject brought a Bull of Excommunication from Rome against another Subject of this Realm and publish'd it to the Lord Treasurer of England this was by the Common-Law of the Land adjudg'd Treason against the King his Crown and Dignity 30 lib. Ass. pla 19. Brook tit Praemunire pl◠10. An Excommunication by the Archbishop albeit it be disallow'd by the Pope or his Legate is to be allow'd neither ought the Judges give any allowance of any such Sentence of the Pope or his Legate 16 E. 3. tit Excom 4. An Excommunication under the Popes Bull is of no force to disable any man in England And the Judges said That he that pleadeth such Bulls tho they concern the Excommunication of a Subject were in a hard Case if the King would extend his Justice against him 30 E. 3. lib. Ass. pl. 19. The King presented to a Benefice and his Presentee was disturb'd by one that had obtain'd Bulls from Rome for which offence he was confin'd to perpetual Imprisonment 21 Ed. 3. f. 40. One Morris being elected Abbot of Waltham sent to Rome for a Bull of confirmation But it was resolved by all the Judges that this Bull was against the Laws of England and that the Abbot for obtaining the same was fallen into the King's mercy whereupon all his Possessions were seiz'd into the King's hands 46 Ed. 3. tit Praemunire 6. In the Reign of Ed. 4. the Pope granted to the Prior of St. Johns to have Sanctuary within his Priory But it was resolved by the Judges that the Pope had no power to grant Sanctuary within this Realm and therefore by judgment of the Law the same was disallowed 1 H. 7. f 20. In the same King's Reign a Legate from the Pope came to Callis to have come into England But the King and his Councel would not suffer him to come within the Kingdom until he had taken an Oath that he should attempt nothing against the King or his Crown 1 H. 7. f. 10. And in the Reign of H. 7. the Pope had excommunicated all such persons whatsoever as had bought Allom of the Florentines But it was resolved by all the Judges of England that the Popes Excommunication ought not to be obeyed or to be put in execution within the Realm of England 1 H. 7. f. 10. These and many other such Cases you may see in the first part of Coke's 5 th Reports Now if not only the Judges but the Representative-wisdom of the Nation even King Lords and Commons in the thickest mist of Popish ignorance were so resolute against the Bishop of Rome and so careful to preserve their own Rights and Liberties inviolable who can be so silly as to believe that a Popish Prince in this Kingdom and at this time of the day when Popery it self is much refin'd and the whole Nation irreconcilably bent against it will ever submit to any Papal Usurpation much less make himself or his People Slaves to the Court of Rome Alas says one but our sweet Abbey-Lands are in danger to be lost and reassum'd by the Popish Clergy what course then shall we take to secure them Believe me if the Law will not do it I know no other way but a project I hear shortly to be set on foot for Insuring all the Church-Lands in the Kingdom these 40 years to come The parties concern'd will propose very reasonable terms and will undertake the squinting Trimmer who maliciously whispers about he wou'd take seven years purchase for his Church-Lands in case of a Popish Successor shall have fourteen well secur'd whenever the Duke succeeds But why our Abbey-Lands more in danger than any other part of our Estates since we have the same security for the one as for the other and both as firmly secur'd as the Law can make them or the wit of man devise 'T is well known that the Popish Clergy in Queen Maries time the better to forward the peoples reconciliation with the Church of Rome by their Petition to the Queen consented that all the Church-Lands dispos'd of to Lay-men shou'd be settl'd on the Possessors and their Heirs for ever without any danger of revocation And this was approv'd of by the Pope's Legate a latere Cardinal Pool willing and ordaining as he says that the present possessors of Ecclesiastical Goods as well movable as immovable shall not at this time nor in time to come be disquieted nor molested in the possession of the said Goods either by the disposal or order of any General or Provincial Councils or by the Decretal Epistles of the Bishop of Rome or by any other Ecclesiastical Censure whatsoever And besides this to crown the work beyond all exception and bind it with a triple Cord which is not easily broken all is confirm'd in full Parliament by the Queen by the Cardinal and Clergy and by the Lords and Commons by whom 't is enacted That all and every Article Clause Sentence and Proviso contained or specified in any Act or Acts of Parliament concerning or touching the assurance or conveyance of any the said Monasteries Priories Nunneries Commandries Deanries Prebends Colledges Chantries Hospitals Houses of Fryers Rectories Vicarages Churches Chappels Archbishopricks Bishopricks and other Religious and Ecclesiastical houses and places or any of them or in any ways concerning any Manors Lands Tenements Profits Commodities Hereditaments or other the things before specified to the said K. H. 8. or K. Ed. 6. or either of them or any other person or persons or Body-politick or Corporate and every of them and all and every Writing Deed and Instrument concerning the assurance of any the same shall stand remain and be in as good force effect and strength and shall be pleaded and taken advantage of to all intents constructions and purposes as the same should might or could have been by the Laws and Statutes of this Realm in case this present Act had never been had or made 1. 2 Phil. Mar. c. 8 § 39. And 't is further enacted That whosoever shall by any Process obtained out of any Ecclesiastical Court within this Realm or without or by pretence of any spiritual Jurisdiction or otherwise contrary to the Laws of this Realm inquiet or molest