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
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-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
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
Lawyer Outlaw'd Or a BRIEF ANSWER To Mr. HUNTS Defence of the CHARTER With some Useful REMARKS ON THE Commons Proceedings IN THE LAST PARLIAMENT At WESTMINSTER In a Letter to a Friend Printed by N. T. for the Author MDCLXXXIII SIR YOur importunities have at last prevail'd and since abler Pens have hitherto declin'd to espouse the quarrel I will for once force my own inclination to silence and reservedness and briefly give you my thoughts on that unlucky Pamphlet call'd A Defence of the Charter and Municipal Rights of London The Author I find is a Gentleman of the long Robe a person so well known of late for his unweary'd diligence and extraordinary faculty in scribling that I need not give you any other Character of him but that some three years ago he writ a Book in vindication of the Bishops Right of Judicature in Parliament and for this piece of service expected no less than to be made Lord-Chief-Baron of the Exchequer in Ireland But missing of that Preferment he grows peevish and angry with the Court and Clergy and to be even with both and perhaps to appease his angry Brethren of the Separation for his former Mercenary undertaking he adds a Baboons Tail to his Picture a Postscript to his Book the most virulent and malicious that has yet escap'd the hands of Justice Ever since he has continu'd firm to the Cause laid aside his useless Law and zealously imploy'd his better Talent against the Church and State in favour of the Faction and this about the Charter is the last effort of that wise Head-piece which he has stuff'd with such a miscellany of wild Paradoxes interwoven with some impertinent Truths that 't is far more difficult to digest them into method than to answer and confute them First to lay a solid foundation for his great design he tells us That Monarchs as well as Republicks have often erected Municipal Cities and by their Charters bestow'd upon them several Franchises and Priviledges as to choose their own Magistrates and governby their own Laws while subservient to the publick Laws of the Sovereign Authority pag. 1. This is certainly very true but how far it makes for the Charter of London against the Quo Warranto is a Mystery not to be comprehended by every vulgar capacity for 't is no less plain in History that not only Tyrants and Vsurpers as he mentions but just and lawful Sovereigns have divers times suppress'd such Municipal Cities for good and necessary causes as for being disloyal to their Prince or factious and seditious against the Government and then the main Question will be How far the City of London has of late been guilty of such Crimes as by Law deserve the like Punishment This in short is the plain state of the Question for 't is most unreasonable to think that any King or Republick ever gave their Municipal Cities any such Liberties or Immunities as were not forfeitable upon their abusing the Power they receiv'd when otherwise neither Prince nor People cou'd be secure from the insolence of such uncontroulable Citizens without a standing Army to keep them in awe But our Gentleman it seems is unwilling to touch upon this critical point of speculation and as the Defence of the Charter is the least part of his Pamphlet so now he runs quite from the purpose to tell the King like a dutiful Subject He may if He please take His Quietus-est and let His people govern themselves For it is impossible saith he that mankind should miscarry in their own hands pag. 2. Now since they have often miscarry'd in the hands of Princes is it not more expedient for the publick good if this Maxim will hold that the Prince shou'd mind his own private business and not trouble himself with the Government which the People can do better without Him This is Mr. Hunt's new Model of Government who out of pure love and kindness to the Monarchy chalks out a ready way for his Sovereign to ease Himself of all the thorns and prickles of His Crown and become a glorious King like His Father And therefore seems very angry that the Court i. e. the King should be troubl'd with the Power of appointing Officers in any City or Corporation in the Kingdom tho' it be found of absolute necessity for the keeping His Crown upon His Head and protecting His best Subjects from a Band of Associators and Ignoramus-Juries Oh! But by this new form of Corporations it will be in the power of a Popish Successor to put the Government of all Corporated Towns in England into the hands of Papists p 5. And without it I say it will be no less in the power of the Faction to put the same Government into the hands of Fanaticks What a Bugbear is this Popish Successor whose very Name turns the brains of a Whig into a Magnifying-glass that will transform Ants into Gyants and Mole-hills into Mountains We have as good Laws as the wit of man can devise to secure us from the encroachments of Popery and to disable Papists from bearing any Office Civil or Military either in or out of Corporations and yet this Popish Successor who possibly may never succeed this great Goliah can break through all those Laws and will certainly do it to curry favour with a handful of Papists and make himself a Slave to the Pope This is not all For this mode saith he of incorporating Cities and Towns doth ipso facto change the Government for that One of the Three States an essential part of the Government which is made up of the Representatives of the People and ought to be chosen by the People will by this means have five sixth parts of such Representatives upon the matter of the Courts nomination and not of the Peoples choice and at the next turn we shall have a Parliament of Papists and Red-coats pag. 6. O profound Politician has not our Government been Regal and Monarchical from the beginning how then can the House of Commons in comparison but a late Institution necessary not for the Being but for the Well-being of the Monarchy be an Essential part of it Or how can any Rulâ—r be term'd a Monarch that has 500 Demagogues Joynt-Governours with Him These and such other Republican Maxims have been in a great measure the main foundation of all the miseries and confusions we suffer'd under the late Tyranny of the Rump-Parliament and after our sad experience of those Tragical times surely we have reason to think that none but such as wou'd bring us back to the same calamities and sing the second part to the same Tune would now endeavour to assert or maintain them yet they are so very familiar to our Irish Chief-Baron that there is hardly a page in most of his Pamphlets but has a strong tincture of them In his great and weighty Considerations considered he says The Parliament derive Their Authority from the same Original the King derives His The
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
4. c. 1. and 8 H. 6. c. 7. and 23 H. 6. c. 15. These are the Laws for regulating Elections and pursuant to them Queen Elizabeth in whose time the Commons busi'd themselves too much in that matter sent a notable check to the House in the 28 year of her Reign for their medling with choosing and returning Knights of the Shire for Norfolk a thing said she impertinent for the House to deal withall and only belonging to the Office and charge of the Lord Chancellor from whom the Writs Issue and are return'd D'ewes Journal p. 393. Which Message wrought then so far upon the House that for some years after they forbore to medle much in any thing of that nature but apply'd themselves when occasion requir'd to the Lord Chancellor or Keeper who proceeded therein as the Law directed without taking any great notice of the Commons Votes or Resolves as we find by a remarkable Instance in the 35 of this Queen when Sir Edward Coke then Speaker was order'd by the House to attend upon my Lord Keeper to move his Lordship to direct a New Writ for choosing a Burgess for Southwark instead of Richard Hutton suppos'd to have been unduly elected and another for allowing Sir George Carew who was duely elected but not return'd to be Burgess for Camelsford in Cornwall and a third for changing the name of John Dudley return'd Burgess for New-Town in the County of Southampton into the Name of Thomas Dudley alleadg'd to be the same person but his Name mistaken My Lord Keeper answer'd that the Returns for Southwark and Camelsford shou'd stand good but as for the said John Dudley he wou'd direct a new Writ for choosing another Burgess in his stead for Newtown D'ewes Journals p. 494. Now if this was the legal way of Proceeding in Queen Elizabeth's Reign warranted by the Statutes lately quoted and allow'd by the great Lawyer Sir Edward Coke and the whole House of Commons at that time by what Authority cou'd it be alter'd in succeeding Parliaments or is it just that the Ancient Precedents of former Ages shou'd be avoided by unwarrantable new-ones of later times Without question had the House of Commons then known they had any Power to mend the said Returns or punish the Offendors they wou'd never have sent their Speaker to wait on the Lord Keeper's pleasure about it and if that House had no such Authority 't is strange how can their Successors pretend to have any Thus we see the House of Commons was not in former times allow'd to regulate the Election of their own Members nor to Imprison any for undue Elections or Returns nor yet for a breach of Priviledge much less for any other Crime or Misdemeanor Nothing was heard in those better days of that terrible Sentence Take him Topham not a word of the Subjects Imprisonment during the Will and Pleasure of the House of Commons The sitting of Parliaments then was short and sweet dispatching more business in three days than of late they have done in so many months Their Study was to Redress not Create Grievances and preserve or procure a good understanding betwixt the King and His People and not like Banbury-Tinkers instead of mending one hole make a great many Oh! but say some the Connivance of King and Lords is a strong Argument that the Commons have done nothing herein contrary to Law I Answer 't is rather a very weak and frivolous Plea first because tho the King be oblig'd by His Coronation-Oath to govern by Law yet all knowing men will allow He has a Prudential Power to suspend the Execution of such Laws as he thinks prejudicial to the publick Interest and consequently may when he sees occasion wink at some illegal attempts of His Subjects to avoid a great Inconvenience If thefore of late times the King and if you will the House of Lords did connive at some unwarrantable resolutions of the Commons rather than exasperate the whole House too Jealous of their own Priviledges and thereby frustrate the chief end of Calling His Parliament the Security of the Publick it was Policy and great Prudence to wave it at that time tho now 't is the height of Folly to make this a warrant for doing the like again contrary to so many legal Presidents and express Acts of Parliament Secondly because the gathering of Peter-pence in this Kingdom has been conniv'd at by King Lords and Commons for divers Centuries of years yet it was an Illegal Tax upon the Subject contrary to Magna Charta and the Fundamental Laws of the Nation 25 H. 8. c. 21. Likewise the Clergy made divers Canons and Constitutions which have been conniv'd at for several Ages both by King and Parliament yet are declar'd by 25 H. 8. c. 19 To be much prejudicial to the Kings Prerogative Royal and repugnant to the Laws and Statutes of this Realm The same may be said of the Ancient Custom of Archbishops and Bishops declar'd by 1 Ed. 6. c. 2. to be contrary to the Common-Law of of the Land tho practic'd and conniv'd at time out of mind And to omit several other Instances Cardinal Wolsey for exercising his Legantine Power and the whole Clergy for receiving it tho conniv'd at for many years as well in as out of Parliament were nevertheless found guilty in a Premunire in His Majesties Court of Kings-Bench Connivance therefore is no good Argument of any things being legal and the tolerating of a Custom tho never so long cannot warrant its continuance while the Law is against it Presidents indeed of former Ages when legal and just from the beginning are of great force in Judicial Proceedings but no new President of late days can have that weight in any Court of Justice and to be sure will never be allow'd if contrary to Law and the Authentick Records of Antiquity But the House of Lords say they use to punish the Breaches of their Priviledges and several other Misdemeanors why then may not the House of Commons do the like A most ridiculous parity for they might argue as well the Court of Kings-Bench Fines and Imprisons Delinquents therefore the Grand-Jury may do the like when they please For the Commons in Parliament are really the Grand-Jury of the Nation appointed to enquire after Briberyes Extortions Monopolies and other publick Oppressions and complain thereof to the King and Lords and humbly pray redress yet they are no Judges in any Case themselves but are Parties as being the Attorneys and Representatives of those that are injur'd So far they are from having any Judicial Power that they cannot as much as administer an Oath upon any occasion whatsoever which undoubtedly the Law wou'd not have deny'd them but that they were never design'd for Judges or punishers of any Criminal because qui negat Medium negat finem But the House of Lords is not only a Court of Judicature but the Supream Court of the whole Kingdom they are
accorded in the same Parliamenti that likewise it be done in time to come in like Case 5 H. 4. c. 6. and 11 H. 6. c. 11. As for the Commons freedom from Arrests 't is certainly a very Ancient Priviledge granted by our Kings to that House the better to enable them to attend the publick service to which they were summon'd as appears by Edward the first 's Answer to the Templars who having some Tenants in the Parliament that were behind with their Rents Petition'd the King to have leave to Distrain for the said Arrears in Parliament-time which he utterly refus'd saying Non videtur honestum quod Rex concedat quod illi de Consilio suo distring antur tempore Parliament 18 Ed. 1. Rot. 7. in Thesaur Receptoris Scaccar Yet that it was not formerly held so sacred nor did extend near so far as some people now imagine is plain from the Case of Thorpe 31 H. 6. Who tho Speaker of the House of Commons at that time was Imprison'd in the Fleet during the Prorogation of the Parliament for a 1000. Marks Damages given against him for a Trespass done to the Duke of York And the Parliament being Re-assembled the Commons earnestly desir'd to have their Speaker discharg'd but it was adjudg'd by the Lords that he shou'd remain in Prison according to his Sentence and they choose another Speaker whereupon they elected Sir Thomas Charlton and made no further clamours as some now wou'd do that their Priviledges were invaded 31 H. 6 Rot. Parliam n. 25 26 c. Seldens Baronage fol. 115. Now for the Tryal of a breach of this Priviledge tho I find no positive or express Statute that orders it to be decided in the ordinary Courts of Justice yet that they may lawfully do it is a plain consequence of the foregoing Acts of Parliament For to argue a majori ad minus since Assaults upon Parliament-men are far more Criminal than Arrests if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime And accordingly they have often taken cognizance as well of this as other Priviledges of Parliament as appears in the Case of Done against Welsh and of River against Cosyn Skewish against Trewynnard and many others But the most usual practice of former times was to make application to the King and Lords for redress in this particular for as Sir Edward Coke himself confesses The determination and knowledge of this Priviledge belongs to the Lords of Parliament in his select Cases 63. And therefore the House of Commons upon the restraint of any of their Members or Menial Servants of which themselves took no cognizance till of very late days always made their humble request to the King and Lords for his enlargement Thus when William Lake Servant to William Milred a Member of the House was taken in Execution of Debt and Committed to the Fleet the Commons Petition'd the King and Lords for his Liberty The like they did in Walter Clarks Case and in the Case of William Hide And to omit several other Precedents even in the 43 Eliz. when a Bill was preferr'd in the Star-Chamber against Belgrave a Member of that House the Parliament then sitting for Misdemeanors by him committed against the Earl of Huntington the Commons well knowing they had no Authority of themselves to protect their Member made their earnest but ineffectual Application to the Lords for relief Sir Simon D' Ewes Journals p. 612 And in the same Parliament a great asserter of Priviledges upon a debate about Subpaena's said openly in the House Our use at this day is not warranted by Ancient course of Precedents for if a man had been Arrested upon a Subpaena upon notice given he shou'd have had a Writ of Priviledge which of course Her Majesty must have allow'd D'ewes Journals pag. 655. which is conformable to the Report made 18 Eliz. by Mr. Attourney of the Dutchy upon a Committee appointed for setting Mr. Halls man at Liberty That the Committee found no Precedent for setting at large by the Mace any person in Arrest but only by Writ and that by divers Precedents of Records perus'd by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Priviledge hath us'd in that Case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the Party for whom such Writ is pray'd came up with him and was his Servant at the time of the Arrest made D'ewes p. 249. The famous Case of Ferrers Burgess of Plimouth 34 H. 8. tho often alleadg'd in favour of the Commons is so far from making any thing for their purpose that it plainly shews they never offer'd till then to punish any breach of Priviledge for altho they found not only that the Sheriffs of London deny'd to deliver their Burgess but that the Officers of the Counter beat their Serjeant and broke his Mace yet knowing they had no coactive Power of themselves they were forc'd to repair to the upper House which they wou'd never have done had their own Authority been sufficient and complain to the Lords of the injury they receiv'd who judging the contempt to be very high for the Commons greater satisfaction referr'd the punishment thereof wholly to themselves which condescension it seems gave such encouragement to that House in succeeding Parliaments who have been always sure never to loose but still to gain ground upon the Prerogative and the House of Peers that now and then they made bold even without any Warrant or direction from the Lords to punish some breaches of Priviledge and at last other misdemeanors For King Edward the sixth because of his Minority and his two Sisters by reason of their Sex being not so active nor so fit for business as their Predecessors the Commons took hold on this opportunity to get themselves into Power and endeavour'd by punishing Offenders to render themselves the more formidable to the People From hence they proceeded to regulate Elections and tho the Law is very plain and positive in this Case also yet the Commons have taken upon them of late days not only to decide who is duely chosen and who unduly return'd but have further assum'd the Power to punish the Offenders contrary to divers Acts of Parliament in that Case provided For by several Statutes it appears That if the Sheriff makes an undue Return his punishment is 200 l. one to the King and the other to the party duely Elected besides a years Imprisonment without Bail or Mainprise And the person unduely return'd is to continue a Member of the House but at his own Charges without any allowance from the place for which he serves As for the return if any makes complaint thereof It ought to be tryed not by a Committee of Elections but before the Justices of Assizes in the proper County or by Action of Debt in any Court of Record as appears 11 H.