longer Confinement and 't was insolence in him to Arraign their Justice because they did not instantly leave all their great Debates to dispatch the business relating to him Thompson of Bristol was Guilty of divers great Breaches of Priviledge but yet his Commitment was only in order to an Impeachment and assoon as they had gone through with his Examination they ordered him to be set at Liberty giving security to answer the Impeachment which they had Voted against him But is it a thing so strange new to the Authors of the Declaration that the House of Commons should order men to be taken into Custody for matters not relating to Priviledge Have they not heard that in the 4. Edw. 6. Criketost was Commited for confederating in an Escape that 18. Jac. Sir Francis Michel was Committed for Misdemeanors in procuring a Patent for the forfeitures of Recognizances together with Fowles Gerrard and divers others none of which were Members of Parliament that 20. Jac. Dr. Harris was taken into Custody for Misbehaving himself in Preaching and that 3. Car. Burgesse was Committed for faults in Catechizing and Lâ—vet for presuming to exercise a Patent which had been adjudged a Greivance by a Committee of the Commons in a former Parliament There would be no end of giving instances of those Commitments which may be observed in almost every Parliament so that the House of Commons did but tread in the steps of their Predecessors and these sorts of Orders where not new though the Declaration take the Liberty to call them Arbitrary The Commons had betray'd their Trust if they had not Asserted the Right of Petitioning which had been just before shaken by such a strange Illegal and Arbritary Proclamation But now we come to the Transcendent monstrous Crimes which can never be forgiven by the Ministers the giving them their due Character which every man of understanding had fix'd upon them long before the whole current of their Councils being a full proof of the Truth of the Charge But what colour is there for calling these Votes illegal is it illegal for the Commons to Impeach Persons whom they have good reason to judge Enemies to the King and Kingdom Is it illegal to determine by a Vote which is the only way of finding the sence of the House who are wicked Counsellors deserve to be Impeached Could the Commons have called the parties accused to make their answer before themselves Had they not a proper time for their defence when they came to their Trals might they not have cleared their innocence much better if they durst have put that in issue by a Tryal then a Dissolution of the Parliamen But should we grant that these Votes were not made in order to an Impeachment yet still there is nothing illegal nothing extraordinary in them For the Commons in Parliament have ever used 2 ways of delivering their Country from pernicious powerful Favourites the one is in a Parliamentary course of Justice by Impeaching them which is used when they Judg it needful to make them publick Examples by Capital or other high Punishments for the terror of others The other is by immediate Address to the King to remove them as unfaithfnl or unprofitable Servants Their Lives their Liberties or Estates are never endangered but when they are proceeded against in the former of these ways Then legal evidence of their Guilt is necessary then there must be a proper time allowed for their defence In the other way the Parliament Act as the Kings great Council and when either House observe that Affairs are ill administred that the advice of Parliaments is rejected or slighted the Course of Justice perverted our Councels betray'd Greivances multiplyed the Government weakly and disorderly managed of all which our Laws have made it impossible for the King to be guilty They necessarily must and always have charg'd those who had the Administration of Affairs and the Kings Ear as the Authors of these mischeifs and have from time to time applyed themselves to him by Addresses for their Removal from his Presence and Councils There be many things plain and evident beyond the Testimony of any Witnesses which yet can never be proved in a legal way If the King will hearken to none but two or three of his Minions must we not conclude that every thing that is done comes from their Advice And yet if this way of representing things to the King were not allowed they might easily frustrate the enquiries of a Parliament It is but to whisper their Counsels and they are safe The Parliament may be busied in such great Affairs as will not suffer them to pursue every Offender through a long Process and besides there may be many reasons why a man should be turn'd out of a service which perhaps would not extend to subject him to punishment The People themselves are highly concern'd in the great Officers and Ministers of State who are Servants to the Kingdom as well as to the King And the Representatives of the People the Commons whose business it is to present all Greivances as they are most likely to observe soonest the Folly and Treachery of those publick Servants the greatest of all Greivances so this Representation ought to have no little weight with the Prince This was understood so well by H. 4. a Wise and brave Prince that when the Commons complain'd against four of his Servants and Councellors desiring they might be removed he came into Parliament and there declared openly that though he knew nothing against them in particular yet he was assured that what the Lords and Commons desired of him was for the good of himself and his Kingdom and therefore he did comply with them and banish'd those four Persons from his Presence and Councils declaring at the same time that he would do so by any others who should be near His Royal Person if they were so unhappy to fall under the Hatred and Indignation of his People The Records and Histories of the Reigns of Edward the first Edw. II Edw. III. and indeed of all other succeeding Kings are full of such Addresses as these but no History or Record can shew that ever they were called illegal or Un-Parliamentary till now Then the Ministers durst not appeal to the People against their own Representatives but ours at present have either got some new Law in the point or have attained to a greater degree of Confidence then any that went before them The best of our Princes have with thanks acknowledged the Care and Duty of their Parliaments in telling them of their Corruption and Folly of their Favourites E. I. E. II. H. VI. H. V. and Q. El. never faild to do it and no Names are remembred with greater Honour in the English Annals Whilst the disorderly the Troublesom and Unfortunate Reigns of H. III. Ed. II. R. II. and H. the VI. ought to serve as Land Marks to warn succeeding Kings from preferring
and Authority of the King and some Prosecutors who earnestly pressed the Lords thereunto upon pretence of speedily avenging the blood of the former King and his Uncle So that the judgement was given at the Kings suit in a way not warranted by the Law and Custom of Parliament or any other Law of the Kingdom Surely when the Lords blood was suffered to cool they had reason to desire something might be left upon Record to preserve them for the future from being put upon such shameful work though such a case as the Murder of a King should again happen as it seems they did not fear to be pressed in any other so to violate the Laws But Thirdly There is not a word in the Record that imports a restriction of that lawful Jurisdiction which our Constitution placeth in the Lords to try Commoners when their cases should come before them lawfully at the suit of the Commons by Impeachment There is no mark of an intention to change any part of the ancient Government but to provide against the violation of it and that the Law might stand as before notwithstanding the unlawful Judgment they had lately given So that the question is still the same whether by the Law of the Land that is the Law and Custom of Parliament or any other Law the Lords ought to try Commoners Impeached by the Commons in Parliament as if that Record had never been And we cannot think that any man of sence will from that Record make an argument in this point since it could be no better than to infer that because the Lords are no more to be pressed by the the King or at his suit to give Judgement against Commoners contrary to the Law of the Land when they are not Impeached in Parliament therefore they must give no Judgment against them at the suit of the Commons in Parliament when they are by them Impeached according to the Laws and Customs of Parliament But if such as delight in these cavils had searched into all the Records relating unto that of the 4 Edw. 3. They might have found in the 19 of the same King a Writ issued out to suspend the Execution of the Judgment against Matrevers because it had been illegally passed And the chief reason therein given is that he had not been Impeached and suffered to make his defence But it was never suggested nor imagined that the Lords who judged him had no Jurisdiction over him because he was a Commoner or ought not to have exercised it if he had been Impeached Nor was it pretended that by Magna Charta he ought to have been tryed only by his Peers the Laws of the Land therein mentioned and the Laws and Customs of Parliaments being better known and more reverenced in those dayes than to give way to such a mistake They might also have found by another Record of the 26. of the same King that by undoubted Act of Parliament Matravers was pardon'd and the Judgment is therein agreed by the Lords and Commons to have been illegal and unjustly passed by the violent Prosecution of his Enemies but it is not alledged that it was coram non judice as if the Lords might not have judged him if the proceedings before them had been legal But as the sence and proceedings of all Parliaments have ever been best known by their practice The objectors might have found by all the Records since the 4 Edw. 3. that Commoners as well as Lords might be and have been Impeached before Lords and judged by them to Capital or other punishments as appears undenyably to every man that hath read our Histories or Records And verily the concurrent sence and practice of Parliaments for so many Ages will be admitted to be a better interpretation of their own Acts than the sense that these men have lately put upon them to encrease our Disorders But to silence the most malicious in this point let the famous Act of the 25 of Edw. 3. be considered which hath ever since limited all inferior Courts in their Jurisdiction unto the Tryal of such Treasons only as are therein particularly specified and reserved all other Treasons to the tryal and judgment of Parliament So that if any such be committed by Commoners they must be so Tryed or not at all And if the last should be allowed it will follow that the same fact which in a Peer is Treason and punishable with death in a Commoner is no Crime and Subject to no punishment Nor doth Magna Charta confine all Trials to common Juries for it ordains that they shall be Tryed by the Judgement of Peers or by the Law of the Land And will any man say the Law of Parliament is not the Law of the Land Nor are these words in Magna Charta superfluous or insignificant for then there would be no Tryal before the Constable or Marshal where is no Jury at all There could be no Tryal of a Peer of the Realm upon an Appeal of Murder who according to the Law ought in such cases to be tried by a common Jury and not by his Peers And since the Records of Parliaments are full of Impeachment of Commons and no instance can be given of the rejection of any such Impeachment it is the Commons who have reason to cite Magna Charta upon this occasion which provides expresly against the denyal of Justice And indeed it looks like a denyal of Justice when a Court that hath undoubted Cognisance of a Cause regularly brought before them shall refuse to hear it But most especially when as in this case the Prosecutors could not be so in any other Court so as a final stop was put to their suit though the Lords could not judicially know whether any body else would prosecute else-where This proceeding of the Lords looks the more odly because they rejected the Cause before they knew as Judges what it was and referred it to the ordinary Course of Law without staying to hear whether it were a matter whereof an inferior Court could take Cognisance There are Treasons which can only be adjudged in Parliament and if we may collect the sense of the House of Commons from their debates they thought there was a mixture of those kind of Treasons in Fitz-Harris's case And therefore there was little reason for that severe suggestion that the Impeachment was only designed to delay a Trial since a compleat examination of his Crime could be had no where buâ— in Parliament But it seems somewhat strange that the delaying of a Tryal and that against a professed Papist charged with Treason should be a matter so extreamly sensible For might it not be well retorted by the People that it had been long a matter extreamly sensible to them that so many Prorogations so many Dissolutions so many other Arts had been used to delay the Trials which His majesty had often desired and the Parliament prepared for against five professed Popish Lords charged
House pursuant to this Vote had it not been prevented by a Dissolution Nor was there the least direction or signification to the Judges which might give any occasion for the Reflection which follows in the Declaration The due and impartial Execution of the Laws is the unquestionable Duty of the Judges we hope they will always remember that duty so well as not to necessitate a H. of Commons to do theirs by calling them to Account for making private Instructions the rule of their Judgments and acting as men who have more regard to their Places then their Oaths 'T is too well known who it is that sollicites and manages in favor of Judges when a H. of Commons does demand Justice against them for breaking their Oaths And therefore the Publishers of this Declaration had said something well if when they tell us the Judges ought not to break their Oaths in Reverence to the Votes of either H. they had been pleased to add not in respect of any Command from the K. or Favorites Then we should have no more Letters from Secretaries of State to Judges sitting upon the Bench. Then we should have no more Proclamations like that of the 14th Oct. 1662. Forbidding the Execution of the Laws concerning High-ways Nor that of the 10th of May 1672. Dispencing with divers clauses in the Acts of Parliament for increase of Shipping Nor any more Declarations like that of the 15. of March 1672. Suspending the penal Laws in matters Ecclesiastical But the Judges are sworn to execute all Laws yet their is no obligation upon any man to inform against another And therefore though the Ministers prevented the Repeal of those Laws 't is to be hop'd that this Vote will restrain every Englishman from prosecuting Protestants when so wise and great a body have declared the pernicious effects of such aprosecution 'T is most true that in England no Law is abrogated by desuetude but it is no less true that there are many Laws still unrepealed which are never Executed nor can be without publick detriment The Judges know of many such dormant Laws yet they do not quicken the People to put them in Execution nor think themselves Guilty of Perjury that they do not such are the Laws for wearing Caps for keeping Lent those concerning Bowes and Arrows about killing Calves and Lambs and many others And those who vex men by Information on such antiquated Laws have been ever lookt upon as Infamous and Disturbers of the publick quiet Hence it is that there are no Names remembred with greater detestation than those of Empson and Dudley the whole Kingdom abhor'd them as Monsters in the time of H. VII and they were punish'd as Traitors in the Reign of his Son The alteration of the circumstances whereupon a Law was made or if it be against the genius of the People or have effects contrary to the intent of the makers will soon cause any Law to be disused and after a little disuse the reviving of it will be thought Oppression Especially if experience has shewn that by the non Execution the quiet the safety and Trade of the Nation have been promoted of all which the Commons who are sent from every part of the Kingdom are able to make the clearest Judgment Therefore after they have declared their Opinions of the Inconvenience of reviving the Execution of these Laws which have lain asleep for divers years tho the Judges must proceed if any forward Informers should give them the trouble yet they would not act wisely or honestly if they should Encourage Informers or quicken Juries by strict and severe charges Especially if it be considered that the Lords also were preparing Bills in favor of Dissenters and that the King has wish'd often it was in his power to ease them So that tho there be no Act of Repeal formerly passed we have the consent and desire of all who have any share in making Acts. But let this Vote have what consequence it will yet sure the Ministers had forgot that the Black Rod was at the door of the House to require them to attend His Majesty at the very time when it was made otherwise they would not have numbred it amongst the causes which occasioned the King to part with that Parliament And those that knew His Majesty was putting on his Robes before that Vote passed might imagine a Dissolution thus forseen might occasion it but cannot be brought to believe that the Vote which was not in being could occasion the Dissolution These are the proceedings which the Ministers judg unwarrantable in the Parliament at Westminster and for which they prevailed with His Majesty to part with it But since it is evident upon Examination that the principles of our Constitution the method of Parliaments and the precedents of every Age were their Guide and Warrant in all those things surely the K. must needs be alike offended with the Men about him for perswading him to Dissolve that Parliament without any Cause and for setting forth in his Name a Declaration of such pretended cause as every man almost sees through contrived only to cover those Reasons which they durst not Own But with what face can they object to the House of Commons their strange Illegal Votes declaring divers Eminent Persons to be Enemies to the King and Kingdom when at the same time they arrogate to themselves an unheard of Authority to Arraign one of the three Estates in the face of the World for usurping power over the Laws Imprisoning their fellow Subjects Arbitrarily exposing the Kingdom to the greatest dangers and endeavoring to deprive the King of all possibility of supporting the Government and all this without any order or process of Law without hearing of their defence and as much without any reason as Precedent We have had Ministers heretofore so bold yet ever with ill success as to accuse a pretended Factious party in the House but never did any go so high as openly to Represent the whole H. of Commons as a Faction much less to cause them to be denounced in all the Churches of the Kingdom that so the People might look upon it as a kind of Excommunication But if they erred in the things they judged rightly in the choice of the Persons who were to publish it Blind Obedience was requisite where such unjustifiable things were imposed and that could be no where so entire as amongst those Clergy men whose preferment depended upon it Therefore it was ordered that this Declaration should be read by them being pretty well assured that they would not unwillingly read in the Desk a Paper so suitable to the Doctrin w ch some of them had often declared in the Pulpit It did not become them to enquire whether they had sufficient Authority for what they did since the Printer called it the Ks. Declaration whether they might not one day be call'd to account for publishing it nor once to ask if what His Majesty
with Treasons of an extraordinary nature But above all that it was a matter extreamly sensible to the whole Kingdom to see such Un-Parliamentary mean Solicitations used to promote this pretended Rejection of the Commons Accusation as are not fit to be remembred 'T is there that the delay of the Tryal is to be laid for had the impeachment been proceeded upon and the Parliament suffered to Sit Fâ—tz-Harris had been long since executed or deserved Mercy by a full Discovery of the secret Authors of these malicious designs against the King People For though the Declaration says a Tryal was directed yet we are sure nothing was done in order to it till above a month after the Dissolution And it hath since raised such questions as we may venture to say were never talk't of before in Westminster Hall Questions which touch the judicature of the Lords the Priviledges of the Commons in such a degree that they will never be determined by the decision of any inferior Court but will assuredly at one time or other have a farther Examination We have seen now that the Commons did it not without some ground when they Voted the Refusal of the Lords to proceed upon an Impeachment to be a denial â—f Iustice and a violation of the Constitution of Parliaments and the second Vote was but an application of this Opinion to the present case The third Vote made upon that occasion was no more than what the King himself had allowed and all the Judges of England had agreed to be Law in the case of the five impeached Lords who were only generally impeached the Parliament Dissolved before any Articles were sent up against them Yet they had been first indicted in an Inferior Court and preparations made for their tryal but the Judges thought at that time that a prosecution of all the Commons was enough to stop all prosecutions of an Inferior Nature The Commons had not Impeached Fitz Harris but that they judged his case required so publick an Examinaon and for any other Court to go about to try condemn him tho it should be granted to be for another Crime is as far as in them lies to stifle that Examination By this time every man will begin to question whether the Lords did themselves or the commons Right in the refusing to countenance such a proceeding But one of the penmen of this Declaration has done himself and the Nation Right and has discovered himself by using his ordinary phrase upon this occasion The Person is well known without naming him who always tells men they have done themselves no Right when he is resolved to do them none As for the Commons nothing was carried on to extremity by them nothing done but what was Parliamentary They could not desire a conference till they had first stated their own case and asserted by Votes the matter which they were to maintain at a conference And so far were those Votes from putting the Two Houses beyond a possibility of Reconciliation that they were made in order to it and there was no other way to attain it And so far was the House of Commons from thinking themselves to be out of a capacity of transacting with the Lords any farther that they were preparing to send a Message for a conference to accommodate this difference at the very instant that the Black Rod called them to their Dissolution If every difference in Opinion or Vote should be said to put the two Houses out of capacity of transacting business together every Parliament almost must be dissolved as soon as called However our Ministers might know well enough that there was no possibilty of Reconciling the Two Houses because they had before resolved to put them out of a capacity of transacting together by a suddain Dissolution But that very thing justifies the Commons to the world who cannot but perceive that there was solemn and good ground for them to desire an inquiry into Fitz Harris's Treason since they who influence our affairs were so startled at it that in order to prevent it they first promoted this difference between the two Houses and then broke the Parliament lest it should be composed There is another thing which must not be past over without observation that the Ministers in this Paper take upon them to decide this great dispute between the two Houses and to give iudgment on the side of the Lords We may well demand what Person is by our Law Constituted a Judge of their Priviledges or hath authority to censure the Votes of one House made with reference to matters wherein they were contesting with the other House as the greatest violation oâ— the Constitution of Parliaments They ought certainly to have excepted the power which is here assumed of giving such a judgment and publishing such a Charge as being not only the highest violation of the Constitution but directly tending to the destruction of it This was the Case and a few days continuance being like to produce a good understanding between the Two Houses to the advancing all those great and publick ends for which the Nation hop'd they were called the Ministers found it necessary to put an end to that Parliament likewise We have followed the Writers of the Declaration through the several parts of it wherein the House of Commons are Reproached with any particular Miscarriages and now they come to speak more at large and to give caution against two sorts of ill Men. One sort they say are men fond of their old beloved Common-wealth Principles and others are angry at being disappointed in designs they had for accomplâ—shing their own Ambition and Greatness Surely if they know any such Persons the only way to have prevented the mischiefs which they pretend to fear from them had been to have discovered them and suffered the Parliament to Sit to provide against the evils they would bring upon the Nation by prosecuting of them But if they mean by these lovers of Common-wealth Principles men passionately devoted to the Publick good and to the common service of their Country who believe that Kings were instituted for the good of the People and Government ordained for the sake of those that are to be governed and therefore complain or grieve when it is used to contrary ends every Wise Honest man will be proud to be ranked in that number And if Common-wealth signifies the Common Good in which sence it hath in all Ages been used by all good Authors and which Bodin puts upon it when he speaks of the Government of France which he calls a Republick no good man will be asham'd of it Our own Authors The Mirror of Justice Bracton Fleta Fortescue and others in former times And of latter years Sir Thomas Smith Secretary of State in the Reign of Queen Elizabeth in his Discourses of the Common-wealth of England Sir Francis Bacon Cook and others take it in the same sence And not only divers of our