Rich. II. the Arch-Bishop of Canterbury made a solemn protestation in the Parliament for himself and the Clergy of his Province for that Matters of Treason were to be entreated of whereat by the Canonical Law they ought not to be present they therefore absented themselves But in regard I have hitherto voucht my Lord Cook for what I have said I desire that it may be observed that he wrote since the Reformation and what was Law when he wrote is Law at this day unless it be changed by some Act of Parliament made since and therefore he that denies my Lord Cook to have written Law must produce some Act of Parliament whereby it does appear that the Law is altered since his time Besides this the Bishops and other Clergy were called to Parliament very uncertainly sometimes more sometimes fewer and sometimes none at all as it was in Edw. I. time Therefore seeing the case to be thus That the Bishops are not Peers but only Lords of Parliament That an Act of Parliament is good though they be absent That they are to be tried by Commoners And that when Capital Matters were to be debated they have withdrawn themselves declaring at the same time that they ought not to have to do in such things And also that they have not so absolute a Right to sit and Vote in the House as the Temporal Lords have because they are called to Parliament so uncertainly I shall be glad to hear what can be said to make their Right unquestionable But if all this were set aside yet it remains on their part to prove that they have sate in Judgment upon the Peers I am apt to believe they will be hardly put to it to produce any President out of good Times when the Nation was in quiet and the Law had its course Nay I think they can scarcey find any that the Proceeds of that Parliament when it was done were not repealed by Act of Parliament and stand so at this day And I should also be glad to see that when a Peer has been tried out of Parliament that any Bishop was ever nominated to sit upon that Lord accused for out of Parliament if a Peer be tryed for his life it is by a select Number named by the King and if the Bishops have Right to sit and Vote upon the Peers it is strange methinks that there is not any Instance to be found where the Bishops or any of them have been named to Judge a Lord out of Parliament Now the reason as I conceive how this comes to pass is because it was never known that a Bishop was tried by the Lords out of Parliament and therefore they cannot try a Lord out of Parliament because they are not Peers for the Lords have never tryed any Bishop but in Parliament and that was always upon Impeachments and not otherwise And upon an Impeachment they may try other Commoners as well as Bishops Besides this it is plain that the Clergy even in the time of Popery would not have to do with Blood in any case whatsoever For when they engrossed all Offices and Places of Honour or profit you shall not find any Bishop that was Lord Chief Justice of the Kings Bench or Judge of any Court where Mens Lives were to be meddled with and the Clergy were not so ignorant or backward in their Interest as to let slip such profitable places had it suited with their Function I have often considered with my self what it is that has induced so many of the Temporal Lords to contend for the Bishops in this case I cannot perceive but that it is against themselves that they strive for without doubt the fewer that the Temporal Lords are the more considerable they are and why they should strive to make themselves less I cannot comprehend neither can any reason be assigned but that which is obvious to every Mans Thoughts That there is some secret power that governs their Lordships in this Affair But without doubt this powerful hand would not be able to turn the Scales so very much if Nobility had been bestowed only on such as deserved Honour But when Interest prevails above Merit no wonder that a Word or a Look do command so absolutely And yet there is this to be said for the Lord's House that there are a great many Lords who retain the Worth and Honour of their Ancestors That notwithstanding being frowned upon displaced and all possible discouragements yet have they shewed themselves to be Men of English Principles that they will serve the King as Englishmen but will not give up any of their just Rights to please him If the Bishops had never so clear a Right in this matter the it is to be consider'd that whatever Right they have that it was gained in the times of Superstition and Blindness when the Clergy Usurped and Lorded it over the Nation and therefore in regard that England has now recovered its Eye-sight and Understanding they are very unthankful if they do not reduce every thing to its proper Station And if the Bishops are prohibited by a Law not to Vote in Case of Blood or are abridged in any other Matter where the Interest of the King and People require yet the Church is not prejudiced for my Lord Cook tells us in the second part of his Institutes Nec debet dici in praejudicium Ecclesiae libertatis quod pro Rege Reipublicae necessarium invenitur And whether it be not for the Interest of the King and People that the Bishops shall not Vote in case of Blood I submit to any Man that wishes well to England Now I would fain be satisfied why our Bishops are more forward to have to do in case of Blood than the Bishops and Clergy in the time of Popery it 's plain they always declined it but ours will adventure a Kingdom upon it It 's true they will withdraw upon the Tryal of the Five Popish Lords but they will not upon Tryal of my Lord D s Pardon yet thus far they condescend that when Judgment is to be pronounced they will withdraw Very well First it is confessed on all hands that if my Lord D s Pardon do not hold good he dyes for it And next I would willingly understand the difference in this case when a Man is tryed for his Life before several Judges and all of them though he is Innocent resolve that he shall be pronounced guilty but they withdraw themselves and leave one of their Brethren to pass the Sentence Now the question is Whether the rest that were absent are not as guilty of shedding Innocent Blood as he who pronounced the Sentence And so on the contrary for any other thing whatever And whether this does not reach the case in hand I humbly submit But the truth of the matter is the Bishops do know that if my Lord D s Pardon be allowed then Arbitrary Power comes in with a Powder And then will be their Harvest
two late Kings we had a mighty cry for the Church and Loyalty but were indeed only disguises for the bringing in of Popery and Slavery by reason that nothing can be more effectual for the bringing in of Popery than the dividing of Protestants and nothing can make us more arrantly Slaves than the subjugation of us to the Kings will For the rule then laid down was this that every man that did not come up to every Ceremony of the Church of England tho he professed the Doctrine of it was not to be deemed a good Protestant but to be persecuted and treated as an Enemy to the Publick And in the next place that he only was a Loyal man that did sincerely believe that we must in all cases submit to the King's will and was not in any case to be opposed or resisted and tho he never so openly violated the known Laws yet we were only to defend our selves with Prayers and Tears This notion prevailed with a great many for some time yet it was not the force of reason that gave it so much reputation but Rewards and Preferments on the one hand and Frowns and Displeasure of those in power on the other together with all the other incouragements and advantages that the Government could give it and so might any thing tho never so nonsensical obtain for a while when so supported But let it be fairly reasoned and it will appear that nothing is more distructive to the end of Government than such an unlimited power Considering with all due respect to Kings that they have their frailties and passions as well as other men I cannot believe that he who is the most indulgent of Arbitrary Power can be of opinion that God Almighty made mankind to be miserable and if so how can that and the absolute power of Kings be reconciled for what can render this life more miserable than to be subject to the passions of a man who is restrained by no rules but that of his Will nor does it seem to be consistent with the goodness and justice of God to subject a people to such a condition it 's most plain that he has not left Kings so at large in the exercise of their power and that what power he has given them was to protect and not to oppress his Subjects for otherwise wherefore do we find such repeated examples of God's displeasure against those Kings that have tyrannized it over their Subjects God is a God of Order and has ordained that Order and Peace shall be the end of every Government but is the way to obtain this by giving scope to the unruly passions of a man It 's the King's protection that gives him a right to our subjection for when he denys his protection we may withdraw our obedience and when the King's protection or the Subjects obedience ceases nothing but confusion can ensue If God had ordained that every people should be subject to the will of their Kings he would either have expresly revealed his pleasure therein or discovered it to us by the light of Nature But no such revealed Will is to be found and the light of nature tells us that nothing is more unreasonable than such a power But put the case that King 's are made by Gods immediate direction yet it is scarcely less than blasphemy to conceive that where he does so delegate his power that their actions shall not have such a temperament of Wisdom Mercy and Justice as in some measure to resemble him whom they represent for otherwise it would make him the Author of Confusion yet in our late times all the infringements of the Laws that were made by those two Kings was called a divine right And in the next place he would have provided some means by which the people should have known what would be the Kings Will for where there is no Law there can be no Transgression for otherwise the people would have been in a sad case For they could not in such a case be allowed the use of their reason neither could they know when they were in the right for whilst they do a thing with never so much Reason and Justice the King's fancy may make it Criminal and indeed to govern a people any other way than by known and certain Laws is to suppose mankind to be a compamy of Brutes and not reasonable Creatures It 's blasphemy to suppose that any of God's commands are unjust and yet has he given us express rules to be the measure of our obedience to him and can it then be supposed that he has subjected us to the will of our fellow Creature when he would not require from us such a blind obedience to be paid to himself unless we can believe that the ways and commands of a King are more equal and just than God's If there was a People before there was a King as no doubt there was then will it be a difficult undertaking to prove that Kings have a just right to Arbitrary Power and I know of nothing that savours more of nonsence than to suppose a King without a people If the power of Kings is so unlimited wherefore did Solomon say that oppression would make a wise man made For where I have a right it 's lawful for me to make use of it and therefore oppression does imply that what is done is against right The standing body of our Laws is a clear proof that the power of our Kings is limited How come we by Municipal Laws if we must submit to their will for who ever looks into our Constitution will find that it is not built upon an Arbitrary Foundation but directly calculated to make us a free people But if it shall be answer'd me that this Government was the work of some King and that he directed the form of our Constitution I do in the first place desire to know who that King was and in what Age he lived and in the next place I say that he was extremely Wise and Just and these two other consequences will follow from thence First That that King did believe that it was not so just and reasonable to govern by his Will as by those rules which the Law has prescribed that is that it was more reasonable that the Law should controul his Will rather than that his Will should over-rule the Law Secondly That every King that governs more by his Will he is so much less Wise and Just than that King who was the moulder of our Constitution The more effectual preservation of the publick Peace is the only pretence that a King of England can have for Governing by his Will but if it be out of that regard he will find that the Law has provided safer and juster in that case than his Wit can invent for it 's a rule in our Law that no body is wiser than the Laws But too many instances have made it plain that no King ever desired to rule
without the Law but that he might imploy his power to an ill end and those then that incourage arbitrary inclinations in their Prince are guilty of all the Oppression and Violence that he shall commit The Law is the best hold both of King and people for it 's their mutual and only interest which soever of them lets it go will have much ado to preserve themselves for never did any stand long that parted with it when the King forsakes the Law he ceases to be King and makes room for another that is more righteous than himself and therefore because he endeavoured to set his will above the Law was the late King James set aside and I am perswaded with all the Justice in the World Thus I have indeavoured in a few words to detect the unreasonableness of this arbitrary Doctrine and indeed the great Asserters of it at last discovered what was the true principle that guided them they had very honestly prescribed a rule for others which they could not practice themselves like the Pharisees who were reproved by our Saviour for laying heavy burdens upon others that they would not touch themselves Our Loyal men were very well pleased with arbitrary power whilst they might be imployed and lord it over their neighbours they little dreamt that the wheel might go round for no sooner did they see that this power was like to be exercised upon themselves but they changed their note all their encomiums upon King James were turned into the most bitter invectives that their wit could invent and their threatnings which they used to breath out against the Dissenters were turned into words of Vnity and Reconciliation I will not affirm that the mercenary principle of preferment made them so zealous for Prerogative but this is most certain their zeal never abated till they saw that other people were like to come into play and then they were as forward as any to explode the Doctrine of Non-resistance and to wish success to the Prince of Orange But since King William does not think fit to employ them nothing will serve their turn but King James And because they cannot for shame talk any more of their unshaken Loyalty they have wholly laid aside that word and now their mouths are filled with nothing but the Church and considering that they refuse the Oaths and indeavour to throw all the contempt they can upon this Government therefore in their sense the Church and this Government are two distinct interests and King James a profest bigotted Papist is more likely to support the Church than King William who is a Protestant and thus they demonstrate their care for the Church and if it be not because King William won't put them into imployment I can't imagine why they should be so averse to him unless it is because his Government is more Just and Mild and that he Governs more by the Laws than any of the four last Kings Gentlemen Your inclinations to the Government is not to be question'd yet in regard it has been indeavoured to be so much traduced it may not be improper to say some thing of it Every King of England receiving and holds his Crown upon condition to Govern according to the known and approved Laws of Land for by what means soever he may come to the Crown he can hold it by no other means than by making the Laws the measure of his Power and when he forsakes that good old way he ceases to be King and Male Administration is a forfeiture of his Crown This was the opinion of our forefathers as appears by the many instances of those Kings that have been Deposed for their evil Government And those who have succeeded them have still been acknowledged and obeyed as rightful and lawful tho the other were alive For when the Throne is vacant it naturally comes into the hands of the people because the original dispose and gift of the Crown was from them therefore whoever they place upon the Throne has as good a right to be there as the first King that wore the Crown No Government can want a power to help it self and therefore when the King has set his will above the Laws what other means has the people left but their Arms for nothing can oppose Force but Force Prayers and Tears are our proper applications to God Almighty but signifie but little with an Arbitrary Prince who will be rather confirmed in his purposes when he finds that he is like to meet with no other opposition But this opposing the King with Arms is not justifiable for every wrong step or miscarriage of the Prince save only in cases of extremity when it 's obvious to every man that the King has cast off his affection to the Common Good and sets up his will in the place of the Law and thereby rendered himself unmeet to sway the Scepter For this reason was King James deposed and therefore is this present Government justified to the last degree by very good reason and the constant practice of our Fore-fathers in the like case For long before King Charles dyed the Nation was very apprehensive of the mischief they should be exsposed to if in case the Duke of York should get into the Throne and he had not long been in possession of the Crown before he convinced the world that those jeers and apprehensions were not groundless for he quickly became so exorbitant in the exercise of his power that the Nation grew very uneasie under him where upon the Duke of Monmouth landed in order to deliver us from that which the Nation had so much cause to fear and it did not please God to give him success Yet I am perswaded it was not by reason of the justness of King James 's Cause that God permitted him to prevail for some years but that he might fill up the Measure of his Iniquities and all the Earth might see how justly he was Deposed To recount the particulars of his Male-Administration would take up too much of your time and therefore I will only say this in short That he had so notoriously broken the Constitution of this Government to set up Popery and Slavery that the Nation was necessitated to rise in Arms and by as good right did they take the Diadem from his Head as he ever had to claim it for he having rendered himself unmeet to sway the Scepter the Crown thereby fell into the hands of the people and where then could they so well and properly dispose of it as to set it on his Head that so generously and opportunely came in to our assistance at a time when the Nation lay gasping and just ready to expire with the weight of Popery and Arbitrary Power What horrible unthankfulness to God and ingratitude to King William is every man professing the Protestant Religion guilty of who is disatisfied with the present Government For I would ask any of them what else could have been done to bring
particular interest as well as his duty does indispensibly oblige him to do what in him lyes to support it In order to this that which is now more especially expected from us is first To inquire into the neglects of those in whom the Law has reposed any trust and Second to discover those who have broken or violated the Laws that such criminals may be brought to condign punishment And since the execution of the Laws is our proper business and that the Laws should have their course is absolutely necessary to the being of the Government It may not be impertinent as I conceive at this time to say something of the Nature of Government and particularly of our own constitution or rather it seems necessary to take all occasions to explain it considering what variety of opinions there is amongst us of that which is or ought to be the Supreme authority or power in England Many wise and learned men have written of the Nature of Government and given excellent definitions of it but of all others Plato seems to me to have done it in the fewest and plainest words which are these Government or Law says he is to preserve the huge and indigested lump of a Multitude and to bring all disorder into proportion so as to become an harmony And Next to him is the learned Aquinas says that it is a rational ordinance for the advancing of the publick good Several others have spoken to the same purpose which I omit because I will be as little tedious as I can Two things I have observed from hence first That order and peace is or ought to be the end of every Government And second That in every Government there is some particular principle that runs through the whole Scheme of that Constitution and that as that principle is followed or neglected so accordingly it goes ill or well with the publick that is when those who are intrusted with the executive power do pursue that principle every thing moves regularly and the Government is firm and stable But when they steer by any other Measures the State does unavoidably fall into disorders and Convulsions and that whoever he be that is placed at the head of the Government if he desires to have the Hearts and Prayers of his People whilst he lives and that after-Ages shall bless his Memory It is necessary first That in general he resolve to Govern well And Secondly Throughly and rightly to apprize himself of that principle that is the Soul of the Government or at least-that he be advised by such as are most likely to know it and will give him faithful Counsel Otherwise he will be like a Traveller that in the Night misses his way upon some large Plain wandering he knows not whither and is more likely to meet with some disaster than to find his way Having said this it is natural for you to expect that I should tell you what that Principle is which is the Life and Foundation of this Government If I am not much mistaken and I am verily perswaded that I am not I take it to be this That every Subject of England has so clear a property in his Life Goods and Estate and every thing else which he possesses that they cannot be taken from him nor ought he to be disturbed in the Injoyment of them without his voluntary Consent or for some Offence against the Law And in the next Place that there be not a Failure in Justice that is That no man be left without remedy where his Right is concern'd and that every Criminal be pun sht according to the Demerits of his Offence I am apt to believe that every man will think that this is very agreeable to Natural Reason and then I don't see how it can be inconsistent with the Prerogative of the Crown altho' I know that not very long since and I fear yet there are some who carry the Prerogative much higher placing it above the Law but nothing save the Iniquity of the times and the Depravity of such mens Manners could support or give Countenance to so senseless a thought For they are very ignorant of the Nature of Prerogative if they think it is a Powet to do Hurt and not to do Good Certainly the Kings Prerogative is to help and relieve the People where the Edge of the Law is too sharp and keen and not a Power by which he may Oppress and Destroy his Subjects Men are to be Govern'd by a Power that is guided by Reason unless we can suppose they have no more understanding and are of no greater Value than the Beasts that Perish It was said by one who was a very competent Judge in the Case as I remember it was Sir John Fortescue That it is a greater Power in a Prince to be restrained by Law from oppressing than to have an absolute Regal Power And says another great Author The way if Governing must be both right and clear as well as is the End And how this can be expected when a King is guided by no other Rule than that of his Will and Pleasure I don't see no more than that a man can depend upon the Weather Does not all the Examples of it that ever were prove that absolute Power and Oppression are inseparable and the one as naturally proceeds from the other as the Effect does from the Cause It 's a Riddle to me how that Prince can be called Gods Ordinance who assumes a Power above what the Law has invested him with to the grieving and oppressing of his Subjects May not the Plague Famine or Sword as well be called Gods Ordinance since one no less than the other is sent by him for the Punishment of that People he so Visits We may reasonably suppose that Order and Peace is much rather the End of Government than Oppression and Violence because God is a God of Order and when he sent the greatest Blessing upon Earth it was Peace and tho' God was often very wrath with the Kings of Israel and Judah for their Idolatry yet the Innocent Blood that they shed and the Violence and Oppression which they committed provoked him more highly and with his severest Judgements has always testityed his Displeasure against it I could run out into a large Discourse upon this Subject but I will stop here because I am perswaded that what I have already said is sufficient to convince any one that is unprejudiced That an absolute Power is so far from being the Right of a King of England that the exercise of such a Power is unlawful in any King I know very well that in the late Reigns this Doctrine would not have been indured to have said less than this would have lost a man his head For whoever would not comply with Arbitrary power was called Factious and an opposer of the Government But is it not Nonsence or very near a Kin to it to call that Seditious that is for bringing things
considering that Popery was so long professed in this Nation To that a short Answer will serve That the Pope's Authority was never establish'd here by Law altho' he was allowed many things by reason of the Superstition and Blindness that then overspread this Island yet the King and Parliament could never agree to give him any power by Law nay when he grew immodest in his Encroachments upon the Church they made Laws to restrain him but the Truth is it was the Resolution of the Parliament and especially of the Lords that protected the Nation against the Pope but if Popery should now come in we should have it to all intents and purposes for it would possess both Church and State it must have all Q. Marys days are a sufficient Warning what we must expect from a Popish Successor and how far their Promises are to be relyed on for by the assistance of the Men of Norfolk and Suffolk it was that she did her business and what Promises did she make to them not to make any alteration in Religion and said many other fine things yet as soon as she was setled on the Throne the first thing she did was to alter Religion with the greatest violence and effusion of Blood that was possible and these Men of Suffolk and Norfolk felt the first stroke of her Hand and perhaps the greatest heat of her Fury But I have too far digressed from my first Argument which is That if Protection from the King is not given to his Subjects or Obedience in the Subjects is not paid to the King then if one side fail the other is discharged and the Condition being broken the Obligation is void And this was the reason why Vortigern the Saxon King was deposed by his Lords for he was grown too friendly to Heugist the Dane and the Lords perceiving that he intended to betray the Land to him they to prevent the Common Destruction and because by this practice he had absolved them of their Allegiance therefore they deposed him and set up his Son Vortimer because he was a true lover of his Country There are several other Instances of the like nature which would be needless to be cited because I should rather amuse than satisfie you of the Truth should I recount them all In the next place I do conceive that the King until he be Crowned is not so much King to all intents and purposes as he is after he is Crowned for if the crowning of the King be but a meer Ceremony or Compliment of State and not essential in giving him a Right to the Allegiance of the Subject then certainly no King of England would be troubled with the Ceremony of being formally crowned because then there will lye no Obligation upon him to take the Coronation Oath and so he may be more at liberty to act according to his Will because his Conscience will not be clogged with the weight of so solemn an Oath and then with less Infamy and Reflection he may suspend or pervert the Laws and therefore with submission to better Judgments I am not convinced that the King whilst he is uncrowned has that Right in our Allegiance as he has after that the Crown is set upon his Head in the same way that it ought to be done for before the Crown is set upon his Head by the Archbishop or other person appointed to do it the Nobility and People are asked if they will do their Homage and Service to him which by the way implies that the People are at liberty in the thing and that if he be Crowned it is by their Leave and Election then if the People consent the King takes the Coronation Oath which is to preserve the Church our Laws Liberties and Properties and to administer Justice indifferently and thus when he has Sworn to us the Crown is immediately put upon his Head and then the Nobility and People do their Homage to him and according to this has been the Practice ever since there were Kings in England And I believe there is scarcely an Instance where the People ever swore to the King before be had taken his Oath to them If there be any such President it is to be look'd upon as irregular and not to be a Direction to us for it is not impossible but such a thing may happen but however is it reasonable that one or two Instances shall be sufficient to invalid a Practice of several hundred years to the contrary And is it not a piece of nonsence that we should adventure our Religion and Properties and all we have in the Hand of him that for ought we know has an Obligation on him to ruine or give us up to a Foreigner and not in the first place to take Security from him that he will defend and do us right before we repose so great a Trust in him for otherwise such Confusion and such Contradictions would follow that the Wit of Man cannot invent how to salve them But I acknowledge there are some Instances where the People have sworn to the Succession in the life-time of the Father and thence some do inferr that the King is entitled to our Allegiance before the Crown is set on his Head but this under correction will not hold for it does not appear but that the intended Successor swore to them also at the same time and it is very probable he did yet if he did not it cannot thence be concluded that the King has Right to our Allegiance before he is Crowned for whenever it happen'd that the Successor was sworn to in the life-time of his Father if afterwards he came to the Crown he took the Coronation Oath before the People swore Allegiance to him And therefore it is very plain that an Oath taken to the Successor in the life-time of his Father is nothing more but a declaring the good liking they have of the Successor and that if in case he will promise to defend them and their Properties when his Father or Predecessor dies they will elect him for their King as possibly it might now fall out if in case the Duke of Monmouth were legitimate Don't you think that the People would be very inclinable to swear to his Succession next after the King And I believe you will never find it done but when the King had the Hearts of the People or out of the hopes they had in the Successor for English Men if the King pleases them he may have all they have even to their Skins as a wise man said If an English King will be kind to the People he can never want their Heads Hands and Purses and therefore it is that in the most peaceable and tranquil times that ever the Land saw when King and People had a mutual Confidence of each other we find things done by the King that are more irregular in those times of agreement than was done in times of greater confusion and the reason is because
and corruption of Blood a severer Punishment cannot be impos'd than to be Fin'd more than a man can pay and to lye in Prison till he does But if some great Cases did happen which could not be foreseen it was always usual with the Judges when any such Case came before them to adjourn it to the Parliament which had been needless if they could have punish'd at the rate that our Judges have of late done Fifthly Because where-ever the Law has set down a Fine either by way of Punishment or Caution it seldom exceeds 2000 l. Nay even in that tender place of Liberty if a Judge shall not relieve with an Habeas Corpus but let the person languish in Prison yet the third Offence is but 2000 l. Penalty and I suppose that that is but inconsiderable in comparison of what any of the Judges are worth yet it being taken as a Punishment is by the Law look'd upon as a great Sum. Sixthly Because the Law of England being a Law of Mercy and very careful to prevent Violence and Oppression and to that end having for almost every Offence appointed its particular Punishment it cannot be suppos'd to have left so great a power in the Judges as they have exerted in this Case True it is some things are left to their Discretion because it was not possible to foresee every particular Case that might happen yet they are things of the least size that are so intrusted to their Judgment for as was said before matters of any considerable moment were still refer'd to the Parliament as also the review of what the Judges should do in those lesser matters which were left to their Discretion As these Proceedings are a great Wrong to the Subject so are they no less a Disadvantage to the King because they will make his Government look very rigid and severe and gives it a grim fierce Countenance which tho' I don't say that it will make the People rebel yet I am apt to believe that it will set them upon their guard its fair and gentle usage that prevails upon reasonable and free-born Men it 's an easie Government that will bow the Hearts of the People of England for says the Statute P.M. That the Estate of a King standeth more assured by the love of his Subjects than in fear of Laws so that the King will be on the losing band by these proceedings because it spoils the complexion of his Government And the King will yet be a farther Sufferer for if 30000 l. be the price of a Blow it will make White-hall very empty for he that goes thither must approach it with fear and trembling because he does not know but he shall be ruin'd before he comes thence for though a man arm himself with all the Resolution he can yet it cannot be Proof against the Contrivance of those that intend to do him a Mischief especially if he is not upon very good terms at Court there will never want those who will endeavour to draw him into the Snare hoping to merit by it though perhaps they mistake their aim yet however Revenge that is so sweet will be greatly encourag'd to provoke him because he cannot hope to reek his Malice so plentifully as this way because if his â—â—â—â—mpt succeed the other is ruin'd nay if he do not strike but only defend himself yet if the Judges don't like the Complexion of the Man they will call the Fox's Ears Horns and lay all the Blame on his Back and pronounce him more guilty that looks over the Hedge than he that steals the Horse Since the Business of my Lord Devonshire happened I have heard him blam'd as the Author of his own Misfortune and that he drew the Mischief upon himself and the Reason given was because he ought not to have gone to Court for said they he knew there were many there who wish'd him ill and therefore sooner or later he would meet with an Affront and if he once fell into their Hands he must expect no Quarter because Coll. Culpepper who without any provocation of my Lord's part had so unnecessarily fallen upon him and had by drawing Blood upon my Lord forfeited his Hand yet not only that but all the rest of the Judgment was pardoned and therefore as well that as this are look'd upon as businesses that were laid But in saying this I only tell your Lordships what is said without doors and I don't speak it as my Opinion but setting the tattle without doors aside I do conceive that can never be a just Judgment which injures the King as well as the party that is punish'd But the true nature of my Lord Devonshire's Offence has not yet been throughly considered the Law does in all cases give great Allowances to what is done on a sudden heat where there does not appear any Premeditation and for this Reason when a man is indicted for Murder if upon the Evidence there does not appear Malice prepence either express'd or imply'd the Party accused shall have his Clergy and for the same reason though it be Death to maim or disfigure another yet if it be done on a sudden heat the Party shall not dye for it for in these and the like cases the Law thinks him to be more blame worthy who gave the Provocation than he that was so provok'd because it was not the effect of an evil Mind but of Passion Et actus non sit reus nisimens sit rea If therefore it be true which I have heard That the King promised my Lord Devonsh that Coll. Culpepper should never come to Whitehall it will then follow that my Lord Devonshire's striking Coll. Culpepper was the effect of Passion and not of Intention because he could not expect to meet him where he did If so I conceive with submission that the Punishment and Offence don't in any measure bear proportion But I am perswaded that the Judges were resolved upon what they have done before they heard the Cause in case my Lord was found guilty and the rather because my Lord Chief Justice was harranguing the Offence beforehand for when my Lord Devonshire appeared 6. May he told him that to strike in the King's Palace was little less or next door to pulling the King out of his Throne Indeed on the last day of the Term he did explain them thus That the Time and Circumstances might be such as it would be little less than the assaulting the King in his Throne But several have told me who heard him and they say The first words of Time and Circumstances were not mention'd by him 6. May and in particular a Noble Lord of this House is one from whom I had my Information and if it were so those words savour too much of a prejudging the Cause There is no doubt but in case of a Fine set the Court may commit the Party in case of obstinacy for not paying the Fine into Court yet this is to be taken
cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that
the Laws have been more frequently stiled or called the Laws of the Land than the King's Laws and therefore if the Denomination of them declares the right the King will be found to have no very strong Title But if they had constantly been called the King's Laws yet that is a very Sandy Foundation to build a power upon of suspending and dispensing with them at his pleasure Now if they are the King's Laws then he only made them but if the Lords and Commons also had their share in the contriving and making of them then that Advice and Consent of theirs gives them such a Title to an Interest in them that they cannot be changed or altered no more than they could be enacted without their Consent for nothing can destroy a thing but the same Power that made it and therefore unless the King alone be the same power that enacted the Laws they cannot be properly called his Laws so as that at his will and pleasure he may dispense with them But if the Laws were made and enacted by him only yet it does not follow that the King may dispense with the Laws when to him it shall seem meet for there is no King so absolute but may be limited Thus we see the Eastern Kings who were as absolute as any Princes upon Earth yet were limited and restrained by their own Promises and Acts. Even that great King Abasuerus who had Ruled over 127 Provinces when he had made a Decree he could not revoke change or dispense with it for the Writing which is written in the King's Name and sealed with the King's Ring may no man reverse Esth 8.8 no nor the King himself which is clear from that famous case of the Decree to destroy the Jews to reverse or suspend which it 's plain he wanted not Inclination and if ever would then have exerted his full power for he was prick'd on by all the Spurs and Inducements that could be in any case yet all he could do was to give the Jews leave to defend themselves therefore if those Heathen Kings were so bound by their Word and Laws of the Country it 's reasonable to suppose that Christian Princes should be as much tyed up by their Words and the Laws and if the King be bound by his Word and the Laws which he shall not pass then is he under the same obligation as if he had actually given his assent to every Law that is now in force because he has given his Word and taken an Oath to preserve and maintain all the Laws And it seems something strange to hear of a power to dispense with Penal Laws there being so late a Judgment against it the late King in Parliament disclaiming it and the whole Case is very remarkable for during the interval of a Parliament he grants a Declaration of Indulgence and at the meeting of the Parliament tells them Nothing of force or constraint brought him to make that Confession but the Truth was too evident to be denied he had done it and would stand by it and should be very angry with any man that should offer to disswade him against it Yet though he had thus braved the Parliament within ten days openly in Parliament he disclaimed it and confessed that he could not dispense with a General Law and had ordered the Seal to be pulled from the Declaration Surely the Case must be very plain that the King after he had justified the thing so solemnly yet should so suddenly eat his words and confess himself in the wrong and to that Parliament too which had almost unhinged the Government to please him which no doubt would have complied with him in it had it been less than to lift the Government quite off of the Hooks And indeed to say that the King can dispense with Penal Laws is nothing less than to dissolve the Government and resolve all into the King's Will and Pleasure for our Parliaments are then but a piece of Pageantry or Puppet-show because in a word the King can annihilate all that they shall do in many Ages all the Provisions that they shall make for the Good of the Nation are but airy notions and painted shews they are and they are not just as the King pleases Now if the King can do this to what purpose have several things been done what means the Statute de Prerog Regis 17 Ed. II for certainly it 's a thing of a much higher and transcendent nature to have power to dispense with all Penal Laws than to have the Preheminence of the Subjects in some particular cases only That he has it not in all originally is plain from that of Appeals for in case of Murder the Appeal at the suit of the Party was to be tryed before the Indictment which was the King's Suit and this was so till Henry VII's time when it was alter'd by Act of Parliament and this carries in it a great probability that there is something in England that is his Superiour but Bracton and Fleta say That Rex habet superieres in regno nempe Deum Legem Parliamentum Nay the Custom of the Mannor shall bind the King Statutes to prevent Fraud shall bind the King The King cannot give the Penalty of any Statute to any Subject he cannot pardon a common Nusance how manifestly preposterous is it then to suppose that the King can dispense with Penal Laws and is restrain'd in these and multitudes of other things of the like nature It has always been taken for Law that where the Subject has an Interest the King cannot pardon and therefore he cannot pardon one found guilty upon an Appeal at the Suit of the Party But if he can dispense with all Penal Laws he may also pardon where the Subject has an Interest and so consequently dispense with all Laws whatever and then no man's Title to his Estate is good nor can any man settle his Estate securely for Fines and Recoveries being now the means used in Settlements and those being directed by particular Acts of Parliament if therefore the King for some particular necessary Reasons shall think fit to suspend those Laws all the Settlements in England will be strangely confused and of how excellent a use upon occasion it may be to dispense with those Statutes which direct Fines and Recoveries is very easie to comprehend Now this power of dispensing seems to be of a very late date for Fortescue who wrote in Henry VI's time tells us That the Kings of England cannot alter nor change the Laws of his Realm at his pleasure and the reason he gives of it is because he governs his People by Power not only royal but also politick which is by such Laws as they themselves desire and gives a very pregnant Reason why the King cannot alter nor change the Laws because the Laws of Men are holy And he shews likewise That this Restraint is no diminution to his Power but does rather aggrandize him it
being a greater power in a Prince to be restrained by Law from oppressing than to have an absolute regal power Necessity is a very extensive thing unless it be limited to the Common Good and to be also such that it is observable by the People for otherwise ill Pretences will never want a Necessity for any Irregularity that they have an inclination to commit it and so it will prove the Handle for all the Evil that the Wit and Malice of Devils and Wicked Men can invent or which shall be committed under the Sun And this alone will serve to make the Power of Princes nearer to that of God than any other thing whatever The dispensing with the Laws on pretence of necessary Reasons was sufficiently laughed out of countenance in the case of Ship money which carried a more probable shew with it than the necessity of dispensing with the Laws to let Papists into Office for in that of Ship-money the Mâ—stery of Necessity was so palpably unfolded and discovered that it 's strange the same Trick should be played again so soon whilst the Memory of it is yet fresh It may as well be pretended that what is done for the sake of some few particular persons is for the Common Good and to pretend it's necessary to dispense with the Penal Laws to let Papists into Office for the Laws to keep Papists out of Office were made upon the greatest Reason that could be for by refusing to take the Oaths which are but a reasonable Security to the Government they do render themselves more than suspicious that they look upon themselves to be under another Jurisdiction but by their frequent Plots and Conspiracies they have made themselves the declared Enemies of the Government for they have been the Authors of all our Disturbances and the Fire that has lighted every Flame that has broke out in this Nation And therefore it 's highly reasonable that they should have no place in the Magistracy and the Government is very tender towards them that it suffers its professed Enemies to have any Benefit under it And therefore to dispense with the Laws that Papists may be let into Office if this Necessity is justifiable then may also any other that can be thought on to serve a present turn or occasion Government and Law says Plato is to preserve the buge and undigested lump of a Multitude and to bring all Disorder into proportion so as to become an Harmony And Aquinas says It is a rational Ordinance for the advancing of the Publick Good Government says another the end of it is to protect both King and People from Wrong and Violence Justitiae fruendae causa reges esse creatore says Bodin All others who have written of Government or given a definition of it do concurr with the sence of these that are quoted the sum of all which is this That the end of Government is for the Common Good of the several Societies of Men and therefore what is not for the Common Good is repugnant to the Government so that if a power to dispense with Penal Laws be not for the Common Good then cannot the King of right pretend to it which it cannot be because it manifestly tends to alter the Government and to give up all to the will and pleasure of the King Obj. But say some the Power of dispensing with the Penal Laws is not a Trust But that will be denied till one of these three things can be proved First That the King of England has begotten all his Subjects and so they are all Princes of the Blood Secondly That God Almighty in Holy Writ has set down what form of Government every People in the World shall live under Thirdly That this Government is exactly according to that Model in Holy Writ That a King begot all his Subjects is a thing never yet heard of no not so much as in a Romance The greatest Divines that have been could never yet find that any sort of Government was set down in Holy Writ as a Model to the several People that are under the Sun and the several forms of Government that there are in the World is an undeniable proof that God left every People the Jews excepted to model and frame their Government as it suited and agreed best with the Humor and Disposition of the People who were to live under it and therefore it will follow that the People of England did frame and chuse the Laws and Constitutions under which they were to live and be governed by and therefore it is undeniable that what Power soever the King can claim by Law is a Trust invested in and granted to him by the People and if so it cannot be supposed that they would give him such a power as to leave it to his discretion to dispose of all they had as to him should seem meet for thereby they would render themselves as ridiculous as Solomon's foolish Woman who pulls down her House with her Hands for Fortescue says That no Nation did ever of their own voluntary mind incorporate themselves into a Kingdom for any other intent but only to the end that they might with more safety than before maintain themselves and enjoy their Goods from such Misfortunes and Losses as they stood in fear of for no such power surely could have proceeded from them Fortesc 34. But suppose that the People had given the King such a power yet it being repugnant to the Common Good it seems to be void of it self for our Lawyers says If the King be deceived in his Grant he may revoke it If then the King may do it when it concerns some trivial thing à fortiori may the People revoke their Grant if deceived in so high a point as their All But further in this Case of dispensing with Penal Laws as it violently tends to give up all to the King's will and pleasure so if all were at his dispose â—et in regard that it does not answer to the end of Government he cannot pretend to it for the way of governing must be both right and clear as well as is the end but how that will appear in dispensing with the Laws is as dark as a Beggar 's Pedigree For Lex fecit regem A King is given for the Kingdom and not the Kingdom for the King says St. Thomas And Fortesoue says In a Body-politick the intent of the People is the first living thing having within it Blood That is to say politick Provision for the Utility and Wealth of the same People which it dealeth forth and imparteth as well to the Head as to all the Members of the same Body whereby the Body is nourished and maintained And he says further That a King who rules by Power politick receives his Power from the People If it be objected That many things are left to his Discretion tho' it be great yet that Discretion must be guided by Law for Discretion and Law should be concomitant
Edgar Ethling who had a clearer Title by descent swore Allegiance to him As to the Doctrine of Passive Obedience and Non-resistance there is nothing is so neat an Emblem of it as an Ass and nothing sounds nearer to Nonsence for if in any thing I have a Right to deprive me of it either by Force or Fraud must be confess'd to be a Wrong and Wrong implies a Right to defend and therefore the Law calls every man's House his Castle and his Goods his own Nay even bare Possession is a good Title but if I may not defend these I have no Right to them and if not in them I have as little in my Person or Life But I am perswaded that they who set this Doctrine on foot at least the greater number of them who have been instrumental in propagating of it either did not understand it or else helped it forward in hopes of being well rewarded for their Pains for it is found by Experience that they understood the Practice of it very ill for when the Bishops were clapp'd up in the Tower none cried out so much against King James and arraign'd his Proceedings so much as they that had been the greatest Asserters of this Doctrine But to make this a little plainer I would only ask them this Question that is What is the measure of our Allegiance or Obedience for it is either the King's Will or the Law and the first point of Obedience is to know the Will of the Law-giver and therefore if they say it is the King's Will I do presume to answer That cannot be the Measure of our Obedience because of the uncertainty of it and 2ly Because he may command contrary things which Rational Creatures cannot be bound to in point of their Obedience If then they say it is the Law then it will follow that the Power of the King is limited and when he exceeds the Limits he assumes a Power which neither God Nature nor the Government invested him with and therefore of right he may in such Cases be resisted The Point is very short either the King is limited in his Power or he is not for there is no middle state betwixt Slavery and Freedom If the King is not limited then are we as much under the Subjection of his Passions as his Reason but if he is limited then it is the Law that sets him his Bounds and the exercise of any Power beyond what it allows him is unlawful Neither can it be suppos'd that God would subject the World to the Will and Passions of particular Men because it is inconsistent with his Mercy and Justice The Will of a King is a wild uncertain thing and a very false Guide to follow in governing his People but to make the Law the Measure of all his Actions and the Welfare of his People the end of all his Publick Designs is that alone which will make a King of England safe easie and powerful There is one thing more that I would explain to you and that is the difference betwixt the Government and the Administration of the Government for I am perswaded that several People have been insnared with the notion that they were one and the same thing I believe I need not tell you that a Trust and the execution of it are distinct things and I may tell you that the difference is no less betwixt the Government and the Administration of it for if any thing be done that is not directed by that Trust it is the Act of those that did it and not of the Trust In like manner whatever is done that is not directed by the Law it cannot be charged as a Fault upon the Government But in the two late Reigns every thing that was done though never so unjust unreasonable or without President was called the Government Whereas the Government or Law they are the same is a known certain thing not commanding one thing to day and the contrary to morrow it requires that equal right be done without respect to Persons and regards the Publick Good above any thing and has so attemper'd Mercy and Justice as to protect the Innocent and punish the Guilty But I need not tell you how contrary to this was the Methods and Practice of the two late Reigns to convince you that all was Force and Violence and not the Government Being thus encourag'd by the Addresses of the Tories and the Doctrine of the Clergy King Charles went on at a good rate especially in the latter part of his Reign and the Irregularities of those times may well in a great measure be charg'd upon them for it 's possible that it had never come into King Charles's Thoughts But very probable he had not adventur'd to carry matters so far if he had not been so invited to it by them And his Brother the Duke of York could not but smile in his Sleeve to see him so industrious in preparing his way to the Throne for when King Charles died he had carried the matter so far that he could go no farther unless he did downright declare himself a Papist but whether he died a natural death or had foul play I will leave that to be determin'd by every man in his own Thoughts only thus much I must observe that manifest Symptomes of Poyson appeared on his Body and matters were then so laid that it was necessary to have a Popish Prince on the Throne His Eyes being clos'd the Duke presently shew'd how great an Affection he had for his Brother not only in the great haste he made to interr him but also by the rest of the Treatment he gave his Body for if you had the History of it you would say they gave him the Burial of an Ass And now his Brother being got into his place he quickly pulled off the Vizard for he had not the discretion to dissemble the matter for a short time but out of the depth of his Politicks in a few days went publickly to Mass Fools being always more positive than men of better sence and Cowards most insolent when they have the upper hand for he thought he had the Nation in a String But though this was very plain above board yet the Clergy and Tories so little regarded it that with great Zeal they address'd to congratulate his accession to the Throne as if God in mercy had taken away his Brother to make room for him He had no sooner thus publickly made profession of the Romish Faith but Mass was said openly in other places and in a short time Popish Chappels were erected in several parts of the Kingdom To this he added a great Army who lived in a manner upon Free Quarter committing all manner of other Insolencies and no Redress could be had upon any Complaint But all this did not abate the Loyalty of the Tories and Clergy till after the defeat of the Duke of Monmouth in the West upon which he not only put in Popish Officers
ordained That all they which make Suggestions shall be sent with the same Suggestions before the Chancellor Treasurer and his Grand Councel and that they there find Surety to prove their Suggestions and incur the same Pain that the other should have had if he were attainted in case that his Suggestions be found evil And that then process of the Law be made against them without being taken and imprisoned against the form of the said great Charter and other Statutes 38 Ed. III. 9. As to the Article made at the last Parliament of those that make grievous Complaints to the King himself it is assented That if he that maketh the Complaint cannot prove his Intent against the Defendant by process limited in the same Article he shall be commanded to Prison there to abide till he hath made good to the Party of his Damages and of the Slander that he hath suffer'd by such occasion and after shall make Fine and Ransome to the King And the point contained in the same Article That the Plaintiff shall incur the same pain which the other should have if he were attainted shall be out in case that his Suggestion be found untrue 42 Ed. III. 3. At the Request of the Commons by their Petitions put forth in this Parliament to eschew the Mischiefs and Damage done to divers of his Commons by false Accusers which oftentimes have made their Accusations more for Revenge and singular Benefit than for the Profit of the King or his People which accused Persons some have been taken and sometimes caused to come before the King's Council by Writ and otherwise upon grievous Pain against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without Presentments 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 from henceforth be done to the contrary it shall be void in the Law and holden for Error To the same purpose are the Statutes of 17 Rich. II. 6. 15 Hen. VI. 4. which you may peruse at your leisure and because I will not trouble you too long I will say no more of them but leave every man to make his own Observations upon the whole matter and so I 'll proceed to the Particulars of your Charge But Gentlemen if we invite our Friends to Dinner and the Gates and Doors are left open for all persons that please to come in and partake of what the Cellar and Kitchin will afford and no Violence or Rudeness is offer'd to any person this is not a Riot within the meaning of the Law and if any such thing shall be offer'd to your consideration I hope you will not take it to be your Duty to present it Gentlemen one thing more I will mention and then I will dismiss you There is a new Opinion which obtains very much which is this That a Grand Jury is oblig'd to find every Indictment without considering the Credibility of Persons that swear to it and the probability of what they swear I must confess I do not understand the reasonableness of this Doctrine for by this Rule a man has more play for any thing else than his Life First As to his Estate he has Relief three several ways first at Common Law secondly in Chancery and thirdly in Parliament As to his Reputation though he may be injured by a false Verdict yet by an Arrest of Judgment he may have another Hearing or else in process of time he may come to redeem his Credit some other way but when an Indictment is preferred against a Man for his Life and the Grand Jury are oblig'd to Find the Bill if it be Sworn to then that man has but one play for his Life and if the Petty Jury give a false Verdict there 's an end of him for there is no redemption from the Grave But besides if you are obliged of course to Find every Bill if it be sworn to and may not consider and deliberate upon the Evidence before you not only a great many will be put to causeless Trouble and unnecessary Charge but it will be an undervaluing of your Service and a lessening of the Trust that your Country reposes in you It is a new Doctrine and therefore it is not convenient to be too forward to put it into practise till time shall prove that it is agreeeble to the Fundamentals of the Government And now Gentlemen I will detain you no longer but do pray GOD to direct you in your Business Monarchy the Best Government AND THE ENGLISH Beyond all others WITH SOME RULES For the Choice of Members to Serve in Parliament Gentlemen of the Grand Jury IT is very probable that this is not the first time that all or many of you have been upon the Grand Jury and therefore I have great reason to believe that all or most of you are acquainted with what your Country expects from you this day and for that cause I shall contract my Discourse into as narrow a compass as the present occasion will permit but before I tell you the Particulars of your Charge I think it may not be impertinent considering the present juncture to give you a short account of the Government of England as it stands at this day Gentlemen Peace and Justice is the End of every Government under the Sun and this is then only to be hoped for when the King or Governour duly executes and administers the Laws and Justice and the People are disposed to obey and be governed by them therefore it does naturally follow that in every Government there is a Supreme Power to which all are to submit whilst that Power contains it self within the Laws for without this there can be no Order or Peace if every man will be his own Master and Judge in his own Case and not own a Superiour our condition would quickly be worser than that of the Brute Beasts for amongst them there seems to be a kind of Government Now that sort of Government appears to be most proper and agreeable to Mankind where the power and administration of the Laws and Justice is vested or setled in one single person And this is fully cleared by the course of Experience ever since the World began although some People are not so happy as to enjoy this Blessing But Gentlemen that Government which is under a single person I mean a King is more or less happy for the People according as it depends more upon the King's Will and so consequently less upon the Laws or else more upon the Laws and less upon the Pleasure of the King And this is the difference betwixt us and our neighbouring Nations our Government depends upon the Laws but theirs chiefly or for the most part upon the Will and Pleasure of their Kings and though no Government under the Sun be perfect in every point yet I think I may safely
affirm that ours is perfect in comparison of any other Government in the World for if we consider those Nations that have Parliaments that Assembly is of little or no use to the People but to pass into Laws the Edicts of their King But God be praised our Parliament is of far greater use and advantage to us for there it is that our Grievances are redressed and Laws that by process of time are become useless or burthensome are repealed and new and profitable Laws and Statutes are made and in a word Barliaments to our Neighbours are their Burden but our great Happiness Secondly All manner of Taxes and Impositions are laid upon the People at the Will and Pleasure of the King But we can have no Tax imposed upon us but by our Consent in Parliament and there is this peculiar to us from the rest of the World That no English-man can be taxed for his Hand-labour whereas in other Countries and especially France every man pays for what he gets by his Labour In France every Labourer pays two parts of three to the King as if he get Six pence in a day Four pence is paid immediately to the King's Officer Thirdly In other Countries War and Peace is made by the King without consulting the People and they are chargeable to that War tho' made without their Consent or against their Interest So it is with us our King has the sole power of making War and Peace but the Sinews of War is in the People I mean Money and that they cannot part with but with our own Consent And although the Matter of War and Peace is an Arcanum Imperii and that no man as some say may pry into it save they to whom the King is pleased to communicate it Yet I conceive in this our Government where the People are so essential a part of it that they ought to be satisfied with the Ground and Reason of the War before they make themselves chargeable to it and the People are not bound to support every War that the King may engage in for methinks it 's all the reason in the World that a Man should be satisfied with the Cause before he part with his Money and I think that Man is very unworthy of the Honour to serve his Country in Parliament who shall give away the Peoples Money for any other thing but what shall be effectually for the good and advantage of the People and Nation Fourthly The Estates and Goods are taken from the People without assigning a Reason of it but only that it is the Mind of the King to have it so But here no Man can be deprived of his Estate or Goods but by due course of Law for Possession is that the Law is very tender of But although some say That the King's Commission may not be resisted in any case whatsoever I shall not argue that point because this is not a proper time for it and I hope we shall never have occasion to try it if it ever should happen I 'll lay the Blame at the door of his Ministers for our King is a merciful Prince and loves not such things Yet this I am sure cannot be denied That every Man's House is his Castle and may defend himself and his Goods against those that shall assault or molest him and I cannot believe that Man can be really a Friend either to his King or Country but rather does it out of some sinister end or to curry Favour with the Court that shall extol the King's Prerogative above the Laws because this Doctrine if true quite destroys the Fundamentals of our Government for if ever you set the King above Laws then it must necessarily follow that the King derives his Title to the Crown of England not from the Laws of England but from something else but I am sure that man does the King no great Service who puts the King to seek his Title to the Crown of England any where else than from the Laws of England To set the King above all Law but that of his own Will does so directly tax the Justice of God Almighty that I cannot believe him to be a good Christian that is of that Opinion Fifthly In other Countries the Subjects are Imprisoned and Hanged at the Command of the King without any other Reason given But none of us can be deprived of Life Limb or Liberty but for some Offence first committed against some known Law Sixthly Our Neighbours are pressed and forced to serve in foreign Countries against their Wills and are hanged for refusing Our King may press any of us for the defence of the Nation but I never heard that the King could press any English-man to serve beyond the Seas Seventhly In other Countries though the King or his Officers commit never so many or great Outrages and Cruelties upon the People yet have the People no Remedy against either the King or his Officers But with us though our Law says That the King can do no Wrong yet his Officers and Ministers may and if any Man shall do an unlawful thing though by the King's Command that man is accountable to the People for it and it is the Right of every English-man to call him to account for if neither the King nor his Officers are answerable for a breach of the Laws then our Laws signifie nothing and are but a dead Letter and we no better than Slaves These Particulars I have now mentioned I suppose may be sufficient to convince any reasonable man of the Excellency of our Government I shall not proceed further into Particulars or discourse how and with what Caution all our Laws are made and how Justice is administred in all Cases for I should not only weary you but want time to finish so great a Work therefore I shall say this in part That in no Government in the World the People live with such Liberty and Security of what we enjoy when the Laws are duly observed and followed as we do no Prince more safe and happy than ours when he holds to the Laws and it is the mutual Interest of both King and People to maintain the Laws It is the Interest of the People to support the King in his Legal Prerogative and it is the Interest of the King to preserve the People in their due Rights and Liberties for the Happiness of one is bound up in the Welfare of the other There is a certain ballance betwixt the King's Prerogative and the Peoples Properties and he that endeavours to turn the Scales to either side does in effect endeavour the destruction of both for the Interest of the King and People are so interwoven that we cannot separate or distinguish one from the other In a word our Government is both the Envy and Admiration of our Neighbours But Gentlemen notwithstanding our excellent frame of Government yet I find that many are impatient under it and thirst extreamly after that which is called a Common
Francis Hargrave THE WORKS OF THE Right Honourable Henry late L. Delamer AND Earl of Warrington CONTAINING His Lordships Advice to His Children Several Speeches in Parliament c. WITH MANY OTHER Occasional Discourses On the AFFAIRS of the Two Last Reigns BEING Original Manuscripts Written with His Lordships own Hand Never before Printed LONDON Printed for John Lawrence at the Angel and John Dunton at the Raven in the Poultrey 1694. TO The Right Honourable THE EARL OF WARRINGTON My Lord SInce my late Lord Warrington your Father trusted me with the care of your Education your Lordship has made so great a Progress in all things which I Taught you that I am now forced to procure you another Tutor You are become in a little time a great Master of several Languages and most parts of Philosophy and I may say without flattery that your Lordship hath Genius Learning and Piety enough to make one of the Best and the most Accomplish't Gentleman in England But yet your Quality requires something more for it is not enough for one in your Lordships High Station to be Humanist Geographer Historian and I may add a good Man too he must be also a States-man and a Politician but being neither my self I must repeat the same thing over again to my Shame and to your Credit that your Lordship wants a better Master Amongst several of the most Eminent Men which I could recommend to your Lordship I found none so Learned nor indeed so fit to make deep Impressions upon your Mind as your Lordships Noble Father whose Writings belongs to you as well as his Estate I don't doubt but you will strive to get the best share of his Learning nor can you fail of an Extream Delight by drawing Sciences but of the same Spring from whence your Noble Blood did flow His Book then being yours both by Inheritance and by the particular gift of its Authour it would be unjust to present it to any other but your Lordship and needless to recommend it or beg your acceptance for 't Therefore omitting any longer Preface in Recommendation of these Golden Remains I 'll only take leave to make this Observation upon them That as there is nothing wanting in them for your Lordship's Instruction both by Humane Learning and Solid Devotion I have fitted you with the Master that I look't for and whom you wanted From whom having obtained all the Qualifications which your Noble Soul is capable of you have no more to wish for but that you may live and practice 'em and it will be to me both a great Satisfaction and Honour to see my Work finisht by the same Artist who put it first into my hands and trusted me with the beginning of it It will be enough for me that I have put my hands to such a Master-piece and shall be highly honoured if your Lordship take notice of my Endeavours and sufficiently Rewarded if you grant your Protection to him who has no other Ambition than to be Your Lordships Most Humble most Obedient and most Devoted Servant J. Dela Heuze THE CONTENTS I. HIS Lordships Advice to his Children page 1 II. An Essay upon Government p. 36 III. Reasons why King James Ran away from Salisbury p. 56 IV. Observations upon the Attainder of the late Duke of Monmouth with some Arguments for the Reversing thereof p. 70 V. Of the Interest of Whig and Tory which may with most safety be depended on by the Government on the account either of Fidelity or Numbers In a Letter to a Friend p. 82 VI. A Discourse shewing who were the true Incouragers of Popery Written on the occasion of King James 's Declaration of Indulgence p. 88 VII A Speech in Parliament for the Bill of Exclusion That the next of Blood have no Absolute Right to the Crown p. 94 VIII A Speech against Arbitrary and Illegal Imprisonments by the Privy Council Several Laws for the Restraint of this Power Instance of the Exercise of this Power on Sir Gilbert Gerrard about a Black-Box An Objection answered p. 100 IX A Speech against the Bishops Voting in case of Blood Lord Coke 's Opinion against it An Act of Parliament Good to which their Consent is not had Bishops no Peers though Lords of Parliament p. 107 X. A Speech against the Pensioners in the Reign of King Charles II. p. 115 XI A Speech for the sitting of Parliaments and against King Charles the seconds Favourites p. 121 XII A Speech in Parliament on the occasion of some Justices being put out of Commission in the said Reign p. 129. XIII A Speech for the Banishing the Papists p. 133 XIV A Speech on the Corruption of the Judges Laws to prevent it Some Instances thereof particularly Sir George Jeffreys when Judge of Chester p. 138 XV. Some Observations on the Prince of Orange's Declaration On the Exit of King Charles II. and Entrance of the late King whose Administration becoming Exorbitant brought on the Present Revolution The Arbitrary Proceeding of K. James excellently set forth by the Declaration c. In a Charge to the Grand Jury p. 353 XVI A Speech against the Asserters of Arbitrary Power and the Non-Swearers p. 385 XVII A Perswasive to Union upon King James his design to Invade England in the Year 1692. p. 401 XVIII Some Reasons against Prosecuting the Dissenters upon the Poenal Laws p. 412 XIX A Discourse proving the reasonableness of the present Revolution from the Nature of Government p. 421 XX. Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King p. 437 XXI Reasons for an Union between the Church and the Dissenters p. 457 XXII Of the Absolute Power Exercised in the late Reigns and a Defence of King Williams Accession to the Throne Election the Original of Succession Succession not very Ancient Division among Protestants a step to Arbitrary Power Enemies to the Act of Indulgence Disaffected to the Government p. 467 XXIII A Speech concerning Tyranny Liberty Religion Religious Contentions Laws of Advantage to the State cannot hurt the Church Of Conquest Of God's ways of Disposing Kingdoms and against Vice p. 483 XXIV The Legality of the Convention-Parliament though not called by Writ p. 509 XXV A Resolution of Two Important Questions 1. Whether the Crown of England be Hereditary 2. Whether the Duke of York ought to be Excluded p. 541 XXVI The Case of William Earl of Devonshire for striking Collonel Culpepper p. 563 XXVII Arguments against the Dispensing Power p. 583 XXVIII Prayers which his Lordship used in his Family p. 597 XXIX Some Memoirs of the Methods used in the Two last Reigns The Amazing Stupidity of those that would reduce us again into the same Condition p. 613 XXX Some Arguments to prove that there is no Presbyterian but a Popish Plot and against the Villany of Informing in 1681. p. 627 XXXI Monarchy the best Government and the English beyond all other With some Rules for the Choice
of Gods express Command as also that no Society of men can subsist without it And that particular form of Government is necessary which best suits the temper and inclination of the People and thereby becomes to be Gods Ordinance But no particular model of Government is such in it self save so far as it effects the true end of Government For nothing can be God's Ordinance but what he has expresly declared to be such And if he had thought any sort of Government to have been better or more necessary than another he would not have left the World so much in the dark in a matter of so high importance but he would either have expresly declared it in his Written Word or discovered it to us by the instinct of Nature But we cannot find any such thing in Holy Writ neither does Nature prompt it because there are so many several sorts of Government in the World no two of them agreeing in every point but differing in something that is very material And even the Jews Gods peculiar People who received their Statutes and Judgments immediately from him yet therein he did not prescribe or limit them to any particular form but what he did command were only rules in general for the executing of Judgment and Justice amongst themselves for we find that the form of their Government was changed no less than five times If not more often 1. Under Patriarchs 2 Under Moses 3. Under Judges 4. Under the High Priest 5. Under Kings So that nothing can be more clear than that God has not appointed the World any form of Government but left every Nation and People to chuse such a Model as best liked them And I have often thought that God Almighty did on purpose permit the Jewish constitution to be changed so often to let the World understand that every form of Government was alike indifferent to him and that if any People found theirs to be out of order the blame rested at their doors if it was not reformed The true original of Government being thus discovered it gives us plainly to understand whence Kings receive their Power and what is the natural and lawful measure of their power For if God Almighty did permit every people to model their own Government from whence can the Kings Prerogative flow save out of that constitution Unless it be supposed which is ridiculous to imagine that Kings are sent down immediately from Heaven with their Commission in their hands or else that they begat all their Subjects If then their power does flow from the Constitution the natural extent of it does seem to be limited within the rules of doing equal right to rich and poor to relieve the oppressed and to punish the guilty unless it can be supposed that cruelty and oppression is more eligible than Justice and Peace And therefore it is more than to be supposed that when any People conferred so great a trust upon their King it was with this condition either expressed or implied that as much as in him lay he should lay out that power to the good and advantage of the People For though several Kings have taken upon them to govern by their Will and this practice has prevailed for many Successions and Ages yet this cannot give them a good title to their arbitrary Rule because the body of the People have an earlier claim and a younger title must give place to the elder and a title or power gained either by force or fraud can never be good and by one of these two arbitrary Power can only be gained For the measure of Power which by the institution of the Government was assigned to the King cannot in reason be supposed to be any other than such as men of sound understandings and without constraint should judge to be most behoveful to the common good Now if Kings may of right exercise a power beyond this then is the condition of every Subject much worse than the Brutes for Brutes though chaced from their usual abode yet can they in any other place find food and lodging as well as where they used to frequent and whenever they are killed or pursued it is because they are hurtful or that the seising of them is useful to men But when Subjects by reason of the cruelty and oppression of an arbitrary King are necessitated to fly for their Lives they are under a certainty of perishing for want of food and lodging if not relieved by the charity of others and their destruction is resolved on not that they have offended against the Laws of nature or reason but because the intentions and thoughts of their King are evil A King that lays out himself for the good of his people is to be obeyed for Conscience sake for he is God's Ordinance and such a King can never be too highly esteemed nor the loss of him sufficiently lamented But when a King forsakes the guidance of the Law and rules only by his Will to call such an one God's Ordinance is very absurd unless we can suppose God to be the Authour of confusion and oppression All that have written of Government agree in this that Kings were created or set up that Justice may be had which does plainly intimate these things First That every King is such by reason of the constitution of the Government 2. That he is admitted to that trust upon condition 3. That when he does not administer Justice much more when he oppresses the People he exceeds the limits of his lawful power and both this Doctrine and Exposition is not denyed by any save some ignorant Ambitious Clergy who in hopes of preferment have turned Bawds to Arbitrary Power And the Coronation Oath or Solemn Ingagement which every King takes before he is crowned confirms the foregoing Observations and what can oblige the taking of that Oath but the constitution of the Government For since Mankind is so greedy of Power and prone to incroach upon anothers right can it be supposed that Kings would clog themselves with the Coronation Oath if they could avoid it much less that they would on their own accord so shackle themselves What has been said will serve to explain what is the true meaning of a natural Prince or Lord a notion which for want of consideration has gulled a great many good People and yet amounts to no more than this That he is one of our Brethren or born amongst us It is a meer conceit to imagine that any thing is such by the institution of Nature For if Nature had formed any Government every other Government in the World would have been of the same Form and Model to all intents and purposes For Nature is immutable and the same in all places and what it does in one place it does the same thing in another So that all that Nature does in the framing of any Government is only to concur with the people in making choice of that which best suits their
or her Husband upon Tryal may not like her and so value her Family accordingly or if he thinks you matcht her to him in hopes to make advantage by him it will be natural for him to make it his business to disappoint you Now whether it be for these or any other reasons I know not but I have observed that giving a Daughter an extraordinary Portion out of that design has hurt many more Families than it has advantaged In the matching of any of your Sons but especially your eldest neither force nor too much flatter him into the likeing of any to whom his own Inclinations don't in some measure prompt him For an Errour in this is like one in the first concoction which can never be repaired For if there be any dislike in the Persons or their affections otherwise ingaged before they are married though their discretion may make them to carry fair to each other yet it has been seldom seen that afterwards there was any warmth of affection between them A great Fortune is welcome to every Family but he that only regards the plenty of Fortune without considering the Woman it is odds but he is out in his reckoning For if she be not a Woman of competent discretion he will fall short in his account In regard that if she be highly born she will expect and her Husband must have no quiet unless she be maintained according to her Quality and the Fortune she brought If she is of mean Parentage yet her Wealth will make her to forget what she was and esteem her self according to her Portion and the Quality of her Husband and as such she will expect to live For being once on Horse-back she will not know when it is time to alight and so by her expencefulness leave her Husband no better than she found him if not worse And therefore a Woman of a middle birth that is a Fortune is the most Eligible For as her Birth will give no allay to your Blood so in probability she will more easily be perswaded to a competent way of living and verifie the true old Adage That you are not so much to regard what a Wife brings as what she will save The best way of providing Annuities for your Younger Sons is by letting of Tenements run out of Lease which will not only be an ease but vantage to your Eldest For as by this you will not narrow his present Revenue so in such Tenements there will be but one Life whereas there might probably have been two or three Lives apiece in them had you renewed them as you did other Tenements Thus my dear Children I have finished these my Instructions which I have been able to write out of my own experience and for that reason ought not to be slighted by you I hope you will live long enough not only to practice but also to improve them yet not by my dear bought experience who have been a Man of trouble from my Childhood Now whether it shall be by Gods Blessing upon these or any other Advice may you get through this troublesome World with Peace and when you dye be received into Abraham's Bosom So prays Your Dearly Affectionate Father Delamer Dunham September 20th 1688. AN ESSAY UPON GOVERNMENT THE various kinds of Government in the World are no less an Argument of Gods Wisdom than the many People and Languages that inhabit the Universe are an evidence of his Power for had there been but one sort of Government in the World the Wisdom of God had not therein been so manifest since he that knows every road to such a place must be allowed to be so much more knowing in that particular than he that is only acquainted with one of those ways Gods Government of the World is amazing when seriously consider'd And the most admirable part of it is to observe that the whole conduct of that Affair is guided not by express Rules and Methods immediately by him delivered to the several People and Nations but they are instructed by the instinct of Nature to choose that which is most conducible to support their several Constitutions Except in such Cases when God in Judgment to a People hides from their eyes the things that belong to their peace Compare this Constitution in its proper Lineaments with other Governments and this conclusion will follow that we are the happiest people under the Sun for when our breaches are repair'd then may that of Deuteronomy the 4th be truely said of us What Nation is there so great that hath Statutes and Judgments so righteous for this Government has as it were extracted the good of all other constitutions having avoided the two Extreams of Tyranny and an unbounded Liberty no Government under the sun being so exact a piece of Symetry having so equally poized the prerogative and property that they are mutually assistant of each other whereby the administration is renderd so very easie he who sits at the helm having nothing more to do to make himself the happyest Prince in the World than to maintain a good understanding betwixt himself and his People and when that is wanting England is like a Ship that has lost her Rudder This Correspondence is seldom broak but by things that do apparently portend an utter eradication of our Antient Land-Marks As when through inadvertency or designedly any of our Neighbours are suffer'd to grow bigger than is consistent with the ballance of Christendom though the effects of it are not soon felt nor early foreseen but by discerning People Yet the Nation has always declined to give any assistance in it because they had no prospect of any advantage that would fall to their share and in a little time it has given great cause of discontent because they saw it did manifestly tend to break the ballance of the Government and could be of no other use than to serve the designs of a Prince who is desirous of Arbitrary Rule But the dissatisfactions betwixt the King and the People do not so usually proceed from this as from some other occasions and more obvious at first sight As when Parliaments are not suffer'd to meet and sit according to the usual times that the Law or necessity of Affairs do require For the Government cannot long continue well when Parliaments are neglected which is the only Physick to purge out those Peccant Humours that are contracted by time or accident and is as necessary to the well-being of it as the Means usually made use of to preserve the good Estate of a Natural Body And the difuse of Parliaments can no more be justified than to have recourse to Force and Violence when right may more easily and certainly be had by the usual methods of Law Parliaments are the Medium whereby the King is represented to the People in a true Light and if it is wanting it is no wonder if he appear to them in a posture of Offence rather than of Defence For when
constituted by God himself But that cannot be so for it would follow that God is unjust which he cannot be There neither is nor was any Government of that sort but only that of the Jews the rest of the World were left to themselves to frame such a Government as suited best to their Inclinations and to make such Rules and Laws as they could best obey and be governed by Ours is compounded of an absolute Monarchy and a Common-wealth and the original of it we have from the Saxons But be it what it will or whence it will it is without question that the first original of our Kings was that the people found it for their advantage to set one over them because of his Wisdom Valour and Justice and therefore they gave him several Prerogatives above the rest of the People that he might be the better able to govern and defend them for there is none of the Kings Prerogatives but are for the good of the Nation if rightly imployed But it will be a strange conclusion to suppose that the People obliged themselves to submit to the Posterity of that Man whom they first chose for their King because of his extraordinary Endowments let them be what they would and never so unfit for the Government For the next of blood may be incapable of governing in several respects suppose a Fool or Lunatick by his Principles if he aim at Arbitrary Power by his Religion if he be a Papist or a Heathen or by his practises before he comes to the Crown to destroy the Religion and Government by Law Establisht Now this I do not say to argue that the Election of the King is in the People though I think much might be said in that case neither is it now the question but that which I speak for is to prove that the next of blood has not so absolute an Inherent Right to the Crown but that he may for the good of the Nation be set aside There is yet another Inconvenience to allow the next of blood to have so absolute a Right to the Crown because the Possession of the Crown takes away all disabilities but only such as are by Act of Parliament which being so every King must thank his Successor for every moment that he lives if he kill him himself he cannot be questioned for it because as soon as the one is dead the other is King for here the King never dies If therefore the next of blood has so absolute a Right the King is very unsafe For though the D. be not inclined to shorten his Brothers days nay though he be averse to it yet in obedience to the Pope and his Priests it must be done either by himself or some other hand and then how long we expect his Majesties life If Kings were good Men an absolute Monarchy were the best Government but we see that they are subject to the same Infirmities with other Men and therefore it is necessary to bound their Power And by reason that they are flesh and blood and the Nation is so apt to be bad by their Example I believe was that wherefore God was averse to let the Jews have a King till they had Kings they never revolted so wholly from him when their Kings were good they were obedient to him but when they were idolatrous then the People went mad of Idols I hope it is no Regis ad exemplum that makes our Nation so lewd and wicked at this day A SPEECH AGAINST Arbitrary and Illegal IMPRISONMENTS BY THE Privy Councill THere is not any thing that an Englishman can claim as his Right that we value more than Freedom and Liberty I mean that of the Body because Imprisonment is a sort of Death and less tolerable to some than Death it self For by it we are deprived of all our Earthly Comforts What is a Man the better for having never so great an Estate never so great Honour or what else is desirable in this World if he is restrained of his Liberty Now there are several sorts of Restraints or Imprisonments and they are all forbidden by our Law unless the cause be very just and reasonable not for bare surmises or vain stories that a Man shall be imprisoned and hurried from his aboad but only for such cause as shall prove that it is for the good of the Government and the support of it that this or that Man is imprisoned or restrained Although the Law has taken very good care yet the Subject is often abused in his Liberty sometimes by the Courts in West-Hall sometimes by other Courts and particular Magistrates But the greatest cause of complaint proceeds from the Privy Council The Privy Council that is though they have been much to blame in this particular yet it is not a new thing that they practice but this Itch of sending for and imprisoning the Subject upon vain pretences has descended from one Privy Council to another like an Infirmity that runs in a Blood for no sooner is a Man made a Privy Councellor but this Spirit rests upon him This Mischief was early espied even in Henry III's time and several Lawes have been made to restrain the Privy Council By the 9. H. 3. Chap. 29. it 's declared that No Free-man shall be taken or imprisoned or be disseised of his Free-hold or Liberties or Free Customes or be out-lawed or any other way destroyed nor we will not pass upon him nor condemn him but by Lawful Judgment of his Peers or by the Law of the Land By the 5. Edw. III. 9. It is Enacted That no Man from thenceforth shall be attacht by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seized into the Kings Hands against the Form of the Great Charter and the Law of the Land By 25. Edw. III. Chap. 4. It is declared That from thenceforth none shall be taken by Petition or Suggestion made to our Lord the King or to his Council unless it be by Indictment or Presentment of his good and lawful people of the same Neighbourhood where such Deeds be done in due manner or by Process made by Writ original at the Common Law Nor that none be out of his Franchises nor of his Free-holds unless he be duly brought in answer and fore-judged of the same by the Course of the Law And if any thing be done against the same it shall be redressed and holden for none By 28. Edw. III. Chap. 3. It is Establisht That no Man of what Estate or Condition that he be shall be put out of Land or Tenement nor taken nor imprisoned nor disinherited nor put to death without being brought in answer by due process of Law And by 37. Edw. III. Chap. 18. It says Tho' it be contained in the Great Charter That no Man be taken nor imprisoned nor put out of his Freehold without process of the Law nevertheless divers people make false Suggestions to the King himself
and here 's the short and long of the case And therefore the Parliament must never yield that the Bishops shall Vote in case of Blood for the consequence of it will be to alter the very Frame of our Government and cursed be he that removes his Neighbours Landmark A SPEECH AGAINST THE PENSIONERS IN K. Charles II. Reign WIthout doubt the last Parliament had great Matters in agitation and the inquiry they made about the Pensioners of the preceding Parliament was no small one but rather one of the chief things they had in hand for had they been permitted to have perfected that it had been a good recompence for the disappointment which the Nation sustain'd in their other expectations by the suddain Prorogation And without all question nothing is fitter for the thoughts of a Parliament than to take into consideration how to punish them that had proved the Pest and had almost if not altogether ruin'd the Nation and how to prevent the like mischief for the future The Name of a Pensioner is very distastful to every English Spirit and all those who were Pensioners I think are sufficiently despised by their Country-men And therefore I will mention only two or three things that will lye at their doors before I offer my advice what is to be done Breach of Trust is accounted the most infamous thing in the World and this these Men were guilty of to the highest degree Robbery and Stealing our Law punishes with Death and what deserve they who beggar and take away all that the Nation has under the Protection of disposing of the Peoples Money for the honour and good of the King and Kingdom And if there were nothing more than this to be said without doubt they deserve a high censure Besides the giving away such vast Sums without any colour or reasonable pretence There is this great mischief will follow upon it Every man very well knows that it has put the King into an extraordinary way of expence And therefore when he has not such great supplyes it must of necessity bring the King into great want and need And shall not only give him an ill opinion of all Parliaments that do not supply him so extravagantly but perhaps put him to think of ways to get Money that otherwise would never have entred into his thoughts so that whatever ill may happen of this sort these Pensioners are answerable for it Furthermore they have layd us open to all our Enemies whoever will invade may not doubt to subdue us For they have taken from us the Sinews of War that is Money and Courage all our Money is gone and they have exhausted the Treasure of the Nation and when People are poor their Spirits are low so that we are left without a defence and who must we thank for bringing us into this despicable condition but these Gentlemen who notwithstanding this had the face to style themselves the Kings Friends and all those who opposed their practices were Factious and Seditious They had brought it to that pass that Debates could not be free if a Gentlemans Tongue happen to lye a little awry in his Mouth presently he must be called to the Bar or if that would not do whensoever any Gentleman that had a true English Spirit happen'd to say any thing that was bold presently away to seek the King and tell him of it and often times more than the Truth And thus they indeavoured to get an ill Opinion in the King of his best Subjects And their practice was the more abominable because their Words and Actions gave the occasion to force those smart Expressions from the Gentlemen that spoke them for their honest hearts were fired with true Zeal to their King and Countrey when they beheld the impudence and falseness of those Pensioners It 's true we find that in or about the 10th year of Richard II. it was indeavoured to get a Corrupt Parliament for our English Story says that the King sent for the Justices and Sheriffs and enjoyn'd them to do their best that none should be chosen Knights and Burgesses but such as the King and his Council should name but we find it could not be effected The next that occurs to my thoughts is that in the 4th year of Henry IV. the Parliament that was called at Coventry named the Lay-mens Parliament for the Sheriffs were appointed that none should be chosen Knights or Burgesses that had any skill in the Laws of the Land The next that I remember is that in Henry VI. time in the year 1449 or 50 when the Duke of Suffolk was Accused by the Commons and Committed to the Tower the King Dissolved that Parliament not far unlike our case of my Lord D but it differs in this that Suffolk was Committed to the Tower as of right he ought but we were deny'd that Justice against D only Henry VI. made the cases thus far even that he set Suffolk at liberty after he had Dissolv'd that Parliament Soon after a Parliament was called wherein great care was taken in choosing of Parliament Men that should favour Suffolk But they so far failed of their purpose that his appearance at the Parliament gave great distaste to the House of Commons and they were so far incensed that they began the Parliament with a fresh Accusation against him and others So that you may see that it was not in the power of the Court to corrupt the House of Commons In the time of Henry VIII about the 20th year of his Reign when the Parliament was active against Pluralities and Non-Residence there was an Act passed to release to the King all such Sums of Money as he had borrowed at the Loan in the 15th year of his Reign it 's said that it was much opposed but the reason that is given why it passed is because the House was mostly the Kings Servants but it gave great disturbance to the Nation And this is the only case that I can remember that comes any thing near to our Pensioners but we cannot find that they or any Parliament took Money to Vote So that we must conclude that there was never any Pensioners in Parliament till this Pack of Blades were got together Therefore Sir what will you do Shall these Men escape shall they go free with their Booty Shall not the Nation have Vengeance on them who had almost given up the Government It was they who had perverted the ends of Parliaments Parliaments have been and are the great Refuge of the Nation that which cures all its Diseases and heals it Soars But the Men had made it a Snare to the Nation and at best had brought it to be an Engine to give Money If therefore these go away unpunisht we countenance what they have done and make way to have Pensioners in every Parliament but far be any such thought from any Man that sits within these Walls And having said this I will in the next place humbly offer
meritorious to promote their Religion without regard had to the way or means of effecting it though it be by Butchering their King Murthering Father or Children prostituting their Wife or overthrowing the Government Be it never so unnatural or repugnant to Gods Commands and agreeable to these two are all the rest of their Principles So that I would fain see how it is possible to live in quiet with a People whose Religion obliges them to destroy all Converse or Humane Society to Murther their Neighbours Assassinate their King and Subvert the Government when it is in their Power for my part I cannot see how they can or are fit to live but with People of their own Faith and belief Brutes and Christians can never live and Converse together for none but Men of their Principles can live in safety with them And agreeable to their Principles has been their Practice all along What Rebellion or to use their own word Commotions have we had but their hand has been chiefly in it I know they would cast the Odium of the late Wars upon the Presbyterians they may well be afforded to lye for their Cause who will do every thing else for it though never so Inhumane or Unnatural they may well deny that Plot when they have the Impudence to deny this and to cast this also upon the Presbyterians but why should they not lye in these cases whose Religion is a Lye But it 's very well known who began the Late War there is no Man but is sensible that the Papists carryed on the business against the Scots It is too notorious that a great Woman imployed her Agents to the Papists to incourage them to contribute to that Work I 'll not name her because of the Act of Oblivion and besides She is dead I believe every one knows who I mean The Papists have renounced the Government they have forfeited the Benefit they might have by the Laws in that they will not take the Oaths of Allegiance and Supremacy or when they do swallow them it is with such Mental Evasions that they don't think themselves to be obliged or bound by them which in effect is a denying them and what are these two Oaths but a reasonable Security that the Government requires them and all others to give and he that denyes to assure the Government that he will to the best of his power maintain it does in plain English acknowledge another power and that when he has an opportunity he will do his best to destroy this and bring in that Is that Government obliged to preserve them who will destroy it Are they to have any benefit of the Laws who will not obey them They have renounced the Government they have denyed the Kings Authority and therefore they are to be used as Enemies to both and then what severity is it to banish such People For what must we do It 's plain that whilest they are here we shall never be in quiet there is something in their Religion that obliges them to be unquiet for what reason had they at this time to plot or disturb us had not they all things at Hearts-ease they cannot expect to be in so good a condition if they had a Prince of their own choosing they were free from all chargeable and troublesome Imployments and Offices their Estates were not burdened with the Forfeitures due by Law an easie hand was layed upon them and the way to preferment was by being of their Religion they had got into almost all the profitable Imployments they were above and we below they had what they desired and yet all this would not do But if this be too much then let us do with them as the Children of Israel did with the Gibeonites they had made a League with them that they should live amongst them but least they might do them harm They made them Hewers of Wood and Drawers of Water Joshua 9. notwithstanding the League And if the Papists must live amongst us let us give their Estates to the King to ease our own and reduce them to such a Condition that since they will not live at peace with us let us put it out of their power to hurt us If they must live amongst us and have their Estates I shall humbly propose that we may know them let them wear a particular Habit or carry some Mark whereby they may be distinguish't from the rest of the Nation In Rome the Whores wear a peculiar Garb In the time of a Plague we set a Mark upon the House that is Infected and shall these People have none who are the Pest of the Land it 's to them that we owe all our Disquiet and let us know how to avoid them I cannot think of any other way how to be secure against them we have no great benefit by convicting of them kissing goes so much by favour and they are so tender a place that this Man and the other is pickt out to be exempted from the Penalty of the Law there is such Picking that few are left These are my Thoughts and if any thing I have proposed may be of use I am very glad of it if not I hope I shall have your Pardon for troubling of you A SPEECH OF THE CORRUPTION OF THE JUDGES THere is not under the Sun a better if so good a Government as ours But the best constituted Government in the World is subject to one great fatality and that is whatever benefit we have by the Laws at least most of the Priviledges we enjoy by it depend upon the Will and pleasure of those who are to see to the execution of the Laws For Laws that are not put in execution are vain and empty things signifying nothing for Execution is the Life of the Law and without that they are a dead Letter Laws unexecuted are not far unlike to a Gun which if rightly used is a Weapon of great defence but otherwise of no great use and if it be charged it may do much mischief unless it be levelled at the right mark So our Laws if they are not executed what advantage arises to us more than from a wast paper And if they are made use of yet if they are not directed to their proper end they may hurt those they ought not So that it is out of doubt that they who are intrusted with the execution of the Laws it is an indispensable duty incumbent on them that they take care not only that the Laws be duly put in execution but also that they pursue their proper end and design in short that neither the Innocent be condemned nor the guilty acquitted Therefore the execution of the Law is so clear and undoubted a right of every Subject that no power whatever can dispense with it And they whose Duty it is to see it done if they either pervert or hinder the Law from having its course are highly criminal and ought to be called to a strict account
be a God of Order and therefore since all Government in general does Originally proceed from God that Administration is rather an Vsurpation than Government that commands or permits the Disturbance of the Subjects in the Enjoyment or Possession of their Rights and Properties And therefore it will follow That it is more for Gods glory that every man do sit safe and quiet under his Vine and Fig-Tree than to be oppressed Oppression intimates a wrong or Injustice and God will not Authorize that which he has declared to be unjust for just and righteous are all his ways Oppression will make a wise man mad which shews that Subjects have a right in their Properties as well as Kings have to their Crowns If there were not some such Right there could be no Oppression or Injustice for Oppression or Injustice iâ— when that which is anothers Right is detained or taken from him against his consent If Naboth had not had a Right in his Vineyard Ahab need not to have Capitulated with him to have it for a Garden of Herbs neither would God have visited Ahabs Family for the Blood of Naboth And I never knew any man to maintain the Doctrine That all our Rights and Properties were in the Crown but he hoped thereby to encrease his Estate And few ever pretended to be of that Opinion that were not broken in their Fortunes or aimed at their Neighbours If therefore Peace and Order is the end of Government and that it is more for Gods glory that every man sit safe under his Vine and Fig-Tree then it will follow That a King may forfeit his Crown by â—eason of Male Administration for otherwise it will follow that God made the World for the Pomp and Grandure of Kings and not for his own Glory that there is no such thing as Property no such thing as Right or Injustice that there are no Laws but his Will and Pleasure nor any thing to guide him but his own Fancy The CASE QUERY Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King IT has been declared in the Affirmative by some modern Precedents But whethen those Judgements did Proceed from Ignorance of the Laws or to serve a Turn will be enquired into when the time comes that the plain English may be spoke that is necessary to open and discover the truth of the Case There are several things which may give occasion to make it be so generally received in the Affirmative but it has chiefly proceeded from making Distinctions where the Law has not distinguished which is altogether forbid if Rules in Law are of any Authority or signify any thing for non est distinguendum ubi Lex non distinguit And therefore this Opinion will easily be refuted by considering these things which follow First Whether any Court the Parliament excepted can Try a man upon an Indictment for High Treason that is grounded upon Common Law Secondly To what end and intent the Statute 25. Ed 3 Chap. 2. was enacted Thirdly Whether Couspiring the Death of the King and Levying of War are distinct Species of Treason Fourthly Whether every Law is not to be construed most strictly to restrain the mischief against which it was enacted Fifthly What is the true meaning and signification of being provably attainted by Overt Deed As to the first it seems to be out of doubt that at this day there is no such thing as an Indictment at Common Law for High Treason tho for other things there is because there is no Precedent of it since the Statute 25. Edw. 3. for every Prisoner that is Arraigned for Treason does commonly demand of the Court upon what Statute he is Indicted and it is always answered upon such a Statute and the particular Statute is named Besides every Impeachment before the Lords in Parliament is grounded upon some Statute and if so a Fortiori no inferiour Court can try the Prisoner upon an Indictment for High Treason grounded upon Common Law For the Law which delights in Certainty especially in Case of Life will not allow of an Indictment at Common Law because no Issue can be joyned upon it by reason of the uncertainty As to the Second To what end and intent the Statute 25 Edw. 3. was made Edw. 3. was a great Prince and Victorious Captain which gained him a very great Renown but that which made his Name the greater and his Fame the more lasting was those good and beneficial Laws which were enacted in his time by which he restored and beautifyed this Government which had been defaced and almost destroyed by the illegal Proceedings during his Fathers irregular Reign and of all the Oppressions under which the Nation groaned at that time there was none that lay heavier upon them than that extravagant License which the Judges took to Interpret and call any thing Treason and this appears by the particular Joy which the whole Land expressed at the making of the aforesaid Statute For tho' he call'd Parliaments very frequently and none of them prov'd abortive for every one of them produced good Laws yet that Parliament which was held in his 25th Year did more than all the rest and of all the Beneficial Laws which were then enacted the Second Statute whereby Treason was reduced to a certainty gave the People greatest cause to lift up their Hearts and Voice in Thankfulness to God and the King because the Jaws of that devouring Beast were broken which had torn in pieces so many Families and threatned destruction to the rest So that this Statute was made to restrain all Treasons that may be made by inference or implication and to limit the Judges so strictly that they may not call any thing Treason but what is literally such within in the Statute for it is there provided That if any such like Treasons shall come before any of the Justices that they must slay without going to Judgement till the Cause be declared before the King and his Parliament And all subsequent Statutes of Treasm are as so many Confirmations of this Law for they had been needless 〈◊〉 the judges could have called any thing Treason but what is literally within that Statute and that Statute had been made to no purpose if it had not so strictly restrained the Judges And my Lord Chancellor Notingham was of Opinion That even the Lords in Parliament could not proceed upon an Indictment of High Treason unless the Fact alledged in it were first declared by some Statute to be Treason As to the third thing It never was not ever will be denyed that Compassing the Death of the King and Levying of War are two distinct Species of Treason unless all Treasons are of the same kind but if there are several sorts of Treasons then it will follow that these are also distinct Because in every Statute of Treason which mentions Conspiring the Death of the King and Levying of War they are named
In my poor Opinion I do not apprehend that a King who comes to the Crown by Election should think worse of his Title than if he had come in by Succession nor that the People should suspect that they hold their Properties and Rights more precariously under a King that is Elected than under one that claims the Crown by Succession but rather the contrary For the People are under a more immediate Obligation to stand by and support the King they have Elected than any other that takes the Crown by Succession and on the other hand it more highly impowers him as well in point of Gratitude as policy to preserve the good Opinion of the People by Governing well than if his Title were by Succession For I am far from believing that a King who comes in by Election may make more bold with the Laws than he that claims under any other Title or that his Right to the Crown continues longer than by his Administration it does appear that his Interest is the same with that of the Nation The next Deceit by which the Nation was to be gulled into Popery and Slavery was by fomenting Divisions among Protestants and especially about the Terms of Communion making them so strict and narrow as to exclude the greater part of the Protestants in England and four parts in ten of the rest in the World That this was not to promote Gods Glory and Salvation of mens Souls but to serve some wicked Design is clear to me for these Reasons First Because the Laws against Dissenters were stretcht and executed beyond their genuine and Natural Intent or Constitution Where fair play is intended such Tricks are altogether needless but dayly experience proves that when they are made use of something else is designed than what is pretended True Religion needs no such Methods to support it the Nature of which is Peace and Charity And besides such forc'd Constructions being nothing less than Summum Jus are abhorred by our Law and it terms it to be no less than the highest Injustice The Second Reason for my Opinion is because that several Laws were put in Execution against the Dissenters which are plainly and directly made for other purposes by which the Law it self suffered Violence and so made it evident to every man that had a mind to see that some foul design and not the Church was at the bottom of the Business Another Reason is this Because more diligence and care was imployed to punish people for Nonconformity than to reform their Lives and Manners For if a man was never so openly wicked and debauched and Scarcely if ever saw the inside of a Church yet if he could talk aloud and swagger for the Church storm against and pull Dissenters in pieces he was cryed up as a good Son of the Church an honest man and truly affected to the Government whilst those who could not come up to the Ceremonies injoyned by the Rubrick tho' their Lives in all other respects were upright and their Conversation unblamable yet were called Villains and Rogues and Enemies to the Government as if the outside and Ceremonious part of Religion was more to be valued than the Substance and Essence of it which puts me in mind of a Play where this Nonsensical Zeal is very well exposed Spanish Fryer I could never yet meet with any precept in all the Gospel that does justify such Proceedings as I have mentioned but there are several that expresly condemn it to me it seems altogether inconsistent with the Charity which is expected to be found in all those that hope to enter into Heaven and it seems to be little less than teaching for Doctrine the Traditions of Men and to add to Gods word which is prohibited under no less a penalty than that of Damnation I am far from being against Order and Decency to be observed in the Church yet under that pretence we are not to forget the Rule of Charity and I cannot see wherefore those things should be made Terms of Communion That are not Terms of Salvation I was always of that Opinion that it would never go well with England till every man might worship God in his own way for nothing can be more unreasonable than to expect a man should believe otherwise than according to the Conviction that is upon him And therefore I cannot but wonder at those who take Offence at the Act of Indulgence which tends so much to our peace by quieting the Minds of People as to their Religion which has ever been the handle for our Intestine Troubles the Incendiaries of the State having ever made use of it as the best pretence to imbroil the Nation and therefore I for my part do think the Act of Indulgence was a necessary and pious Work and cannot imagine why any man should think that to be a Disservice to the Church that tends to the Peace of the Nation they that do I must believe they are not much concerned in the Cause of the Church and their Country and care not what is uppermost provided they can make fair Weather for themselves Therefore Gentlemen if any speak to the Disadvantage of the Act of Indulgence you ought to present them as disaffected to the Government and Sowers of the Seed of Divisions in the State But I desire to be rightly understood I don't say this to diswade any man from coming to the Church for I go constantly thither my self I wish every Body could do it as easily as I do and I wonder it is otherwise for I never yet heard any good reason for practicing the contrary yet I think unless a man be satisfyed in that way of Worship it is better to keep away than to come for otherwise it is to mock and not to serve God and on the other hand it is no less a mocking of God when a man from an over Assurance of the gift of Prayer shall adventure to Pray in Publick without having before-hand well digested his Matter and Words and thereby happen to let fall crude naucious Expressions such as would be ridiculous in Conversation for I am far from believing that Nonsence can be the Effect of Fervency but rather of Affection or something that is very despicable And here it will not be improper to take Notice of those Persons who go to no Church at all but spend the Sunday in an Ale-house or otherways idle it away very unprofitably Against such as these was that Law of Twelve pence per Sunday intended and were it duly put in Execution a great deal of that dishonour that is done to God by such Prophanation would be prevented and the poor would be relieved with less charge to their respective Parishes I wonder that the petty Constables are not more careful to make a true Presentment at every petty Sessions of those that herein offend the Glory of God and their own Interest being so immediatly concerned therefore Gentlemen I doubt not
so great draw him aside and then we shall see Peace in our Israel I doubt not Gentlemen but you will do your Parts and this is all that I have to trouble you with at this time THE LEGALITY Of the Convention-Parliament Though not called by Writ IT 's a new sort of Doctrine That where there is a Power to do a greater thing there cannot also be to do a less The Lords who are born Counsellors to the King and Kingdom the Members of the House of Commons were all duely chose by such as had Right to Elect Members for Parliament The two Houses meet at the same day and first declare the Throne vacant and then fill it with this King and Queen and they thus Elected these Lords acknowledge to be our Rightful and Lawful Soveraign Lord and Lady which is the greatest thing that the two Houses are capable of doing and have thereby according to the Maxims of those very Lords altered the Government in a most Essential point of it and yet say they All Subsequents tho' with the Concurrence and Consent of this lawful King and Queen are invallid unless supported by the Authority of this or some other Parliament because the last was not called by Writ in due form of Law So that the Representatives of the Nation Assembled without a Writ can only do one thing and that the highest to make a King And by like Reason If when Assembled by Writ can do every thing but the greatest But it is against all manner of Reason and Policy to suppose that the Power that can make a King cannot do every thing else that is necessary to settle the Government If those Gentlemen had understood the true meaning of Writs and been so ingenious as to confess it they would not have made that an Objection against the Validity of the last Parliament Writs are necessary in their proper time but not so necessary as to give the Essence to a Parliament for if there be any weight in this Reason a Writ is as necessary as the Consent of the Nation by their Legal Representatives to Establish any thing into a Law Writs can amount to no more than the Means by which the Parliament is concerned It will be granted that the present Writ of Summons was Established by the Government and not by the King and it cannot be deny'd that wherever the power of the Government rests it may if it see Cause direct that Parliaments shall be convened in any other manner or by any other means than by Writ For it is not the Writ that makes a man a true Representative but the Election of those who have right to choose for that place For otherwise the Sheriff or other Officer might have return'd whom he saw good and Elections would be needless But the Law has more expresly shewed that it is the Election that makes the Person a Right Member and so consequently the Election of the People is that which gives the Essence to a Parliament because the Law has under greivious pains commanded That Election shall be free And since the Constitution of the Government makes choice of Writs for the Canvening of the Representative Body of the Nation why was not the Parliament as duely concerned and the Acts they passed as good since it was impossible to be Summoned in due form and these Gentlemen might as well have insisted That a Nation may want a Power to help it self as to object against the Validity of the last Parliament because called without Writ By the Weight that they lay upon a Writ they do seem to make a Writ more necessary to a Parliament than our Allegiance is to the Government and if that be so that which is only a Circumstance in the Government is more to be regarded than what is necessary to the Peace of it But to grant that Absurdity What is it that has given the Sanction to these new Oaths that our sitting and Voting in Parliament has not put us under all the Disabilities of 30 Caroli for we are certainly within that Statute if the last Parliament had not power to alter those Oaths and if it had what else they did is as valid for all or none of those Acts are good If it be destructive of the Monarchy to declare those Laws to be good it may be also said to be alike destructive when the proper and only means to support it is made use of For the Nation had no other way left of coming to a Settlement A RESOLUTION OF Two Important Questions I. Whether the Crown of England be Hereditary II. Whether the Duke of York ought to be excluded SIR THE Questions that you have proposed to me are of such a nature that they require a very strict consideration because they are of the greatest moment in our present condition and therefore you have done me a great honour to command my Thoughts upon them in regard you might have had your Queries resolved by persons much more able than I am but since you desire my Opinion I will give it you very faithfully As I remember the first thing that you was in doubt of was Whether the Crown of England be Hereditary or no and to that I answer negatively That it is not Hereditary And in order to the clearing of this I will in the first place give you a short historical account of Matter of Fact till K. James I think it will not be denied that from the first known Times in this Island after that they had Kings till the Conquest but that the People Elected him for their King whom they best liked without regard had to the Issue of the deceased King and also that they deposed them very frequently and set up others in their stead when upon tryal they were found unfit for the purpose He that says otherwise confesses himself either not to have read our English Story or that he understood not what he read and if your self doubts the truth of what I affirm I will at any time give you a particular account of it till the entrance of the Normans William the First commonly called the Conqueror we must begin with him who it 's most certain had no Right or Title to the Crown by Inheritance or Descent and it is as true that he did not gain it by Conquest for Edgar Etheling who was alive and in England when William came in had an unquestionable right by Descent and therefore whilst he was alive William could not pretend any Title by Inheritance but must find out some other way to come to the Crown and therefore he pretended one while a Compact between him and Harold and again That it was left to him by Edward the Confessor by his Will yet he found that all these were but empty sounds for although he had a potent Army by which he might have done great things yet that Army only brought him into England but it was the Election of the People that
affected to prevail with the King to adjourn prorogue and dissolve Parliaments when they were doing thiâ—â—â— of the greatest moment for the Nation and on purpose to defeat those very matters they had in hand If he will adventure to do these things whilst he is a Subject what may we not justly expect from him if he happen to be King But notwithstanding all this some will say That the Word of God will not allow us to put by the next Heir to the Crown be he what he will because by Moses 's Law the next of Blood must inherit Truly I am for that too when we are in a good Breed but as our Case stands I cannot yield to it But under favour I conceive that this Text also obliges no otherwise than according to the constitution of every Government for if the Mosaick Law be our Direction then the Duke will be King of a third part of these Dominions before his Brother is dead for by that Law the Eldest was only to have a double Portion and no more and then I pray what Absurdities will follow upon this Doctrine But it is most plain that this Law related only to private Families and had no regard to the setting up or pulling down of Kings for when the Law was given the Children of Israel had no King nor any prospect of it and it was several Ages after that before they petitioned God for a King and Saul was the first and the Practice after Saul puts the Matter out of Controversie for when Saul was dead David was anointed though there remained several of the Seed of Saul After David Solomon was anointed tho' Adonijah was his elder Brother and his Mother the honester Woman of the two When Solomon was dead Jeroboam rent away ten Tribes from Rehoboam and so on But these Instances are sufficient to prove that the Israelites did not believe that they were obliged to chuse him for their King that was next of Blood And if they might do this who had the presence of God amongst them and his immediate Direction more than any other People certainly then we cannot be said to sin against the Light And besides in all private Families there is care taken to preserve the continuance of them by disinheriting the eldest Son when it is perceived that he will ruine the Estate if he be ever possessed of it but to this some will answer That it is seldom seen that ever any Family prospered long where the right Heir was set aside I think so too when the right Heir is deprived of his Birthright for no just cause but we find that several Families have continued many Generations after that the right Heir has been rejected and yet tho' an ill Fate should always attend that Family where this is done yet is it not better to continue it two or three Successions longer tho' with a certainty of Ruine at last rather than suffer it to come into the Hands of him who will in a few years perhaps months bring it to nothing You cannot but have heard of Maud the Empress who was Daughter to Henry I. what Trouble and Bloodshed she caused in England in the days of K. Stephen and this is often insisted on to shew what evil Consequences there will follow upon secluding the Duke It is true she made a great bustle but she had that to pretend which the Duke has not for the Nation had taken an Oath to her in the life-time of her Father and from that she might presume very much but the Conditions were not performed upon which the Oath was taken and therefore the Obligation was void and the People were at liberty to chuse whom they pleased But besides whether the Duke get the Crown or no much Blood must be spilt for we must either fight or burn and whether it be not better to exclude the Duke by a Law and adventure our Lives in defence of that and all our Laws and Religion into the bargain than to let him come to the Crown and at best hand hang up Thousands of worthy Men if he do not extirpate their Name and Families but to be sure all those who gave their Votes to the Bill nay all that have declared their Approbation of it and all their Friends and Relations are destin'd by him and the Pope for Destruction if not all them who voted to elect them Members of Parliament And how far this will extend let any man consider Sir I am now come to your last Doubt which is How far we ought to obey the Duke if he happen to be King and there be no Law I mean no Act of Parliament to exclude him This is truly a tender place and ought to be handled only in the Parliament House but because I dare trust you in this captious Age I will lay before you some things that I think cannot be denied It is a known Maxim in our Law That protectio trahit subjectionem subjectio trahit protectionem These are plain words and are of as clear a sense that is not equivocal or capable of a double construction and I take them to be the mutual Bonds between a King and his People and one introduces the other and they cannot be separated for if Protection draws after it Subjection and Obedience incites Protection then whether or no can there be Protection where there is no Subjection or can there be Obedience where there is no Protection and then if it be not done on the one part how can it be required from the other for if the King shall go about to destroy the Government or take away our Properties does he not disown us and deny us his Protection and then I pray what Obedience is due to him that regards us not Or if the Subjects shall not obey the King's Writs or other Commands which by Law he may require from them do not they disown him and forbid him to concern himself with them and then I pray what has he to do but to do to them as they have done to him And this will be the case should the Duke being a Papist come to the Crown We see already that his Inclinations are for our Destruction and besides his Religion obliges him to it and therefore what Protection can we hope to have from him whose Conscience and Desire are united for our Ruine for it is not in the power of a Popish King to preserve us for if he will protect us and the Pope command our Destruction he must either violate his own Conscience or give us up to Ruine So dangerous a thing it is to depend upon the Conscience of a Papist who cannot be tyed or obliged by any Oaths or Obligations and it is safer to have a Protestant King tho' he has no Morality rather than to live under a Popish King tho' he be the best Man living Altho' I have heard many say How came it to pass that we retain'd our Properties
given in a superiour of which no such President is to be found in regular times scarcely in the most confused and disorderly 2. Because it is in Case of Priviledge which is the most tender part of every Court for if the Rights and Priviledges of any Court are made light of the Court itself will soon come to nothing because they are as it were the most effential part of it if not the very Essence of the Court for what signifies a Court if its Orders cannot be executed It is better that a Court were not than that its Priviledges should not be duly observ'd for without that it becomes a Snare and Mischief to the People rather than an Advantage 3. Because by this they have set the Feet above the Head for as they have by this declared themselves to be superior to the Lords so it will naturally follow that a Quarter-sessions may reverse their Orders or suspend their Priviledges and a more inferiour Court shall supersede what the Quarter-sessions does And thus it must go on till the course of Nature is inverted 4. Because they may as well deny a Lord or over-rule any other Priviledge as well as this and so consequently when the House of Lords is not actually sitting every Peer must be beholden to the Judges for every Priviledge that he enjoys 5. If this Judgment be according to Law then may the King's Bench try a Peer for Misdemeanor at the very time when the House of Lords is sitting and consequently the House must want a Member if the King's Bench sees it good to have it so and what a confusion would it make and the consequence of it would be is easily discern'd the want of one Member makes that House think itself to be lame as was seen in the Case of the Earl of Arundale 3 Car. How many Petitions did the Lords make and how many Messages passed to and fro between the King and them who would not proceed to any business till he was restored to his place in that House for they told the King That no Lord of Parliament the Parliament sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without Sentence or Order of the House unless it be for Treason or Felony or for refusing to give Security for the Peace Surely the Judges did not give that Judgment for want of understanding that Judgment of the Lords for nothing can be more express and plain for it and says directly That sitting the Parliament or within usual times of priviledge no Peer shall be molested unless for Treason or Felony or for refusing to give Security for the Peace The Earl of Devonshire did all that the Judges could require of him by finding Sureties for the Peace and what the Judges did more was not grounded upon that Judgment of the Lords but was a manifest and presumptuous invasion and violation of the Priviledges of the whole Peerage of England It is very obvious how the Peerage has been undermined ever since Hen. VII's time what Endeavours have been used to make it less and less first by multiplying the number of them secondly by raising people of mean extraction to that Dignity both which tend to render it contemptible but nothing can make it more despicable than that its Priviledges should depend upon the beck of the King's Bench and therefore considering how groundless and without president it is what they have done in the Case of the said Earl it is no more than probable that they thereby aimed at pulling down the Peerage For what seems so likely as it does It carrics its Evidence in its Face for it manifestly takes away the priviledge of the Peers and till it does appear for what other end it was done all Men of Sence and that are unprejudic'd must believe it was to pull down the Peerage for all that can be pretended is either to secure the Peace or to punish the Offence The Earl did give Security for the Peace and he did not design to shift off his Tryal but that it should be in its proper season for tho' it delay'd the Trial yet it brought it to the proper time and so consequently the more legal and reasonable but the Judges must go out of the way of Reason and the Law to make a breach in the priviledge of the Peers It is too commonly the Discourse every where and I fear with too much reason That the Judges make very bold with the Law but it 's plain by this Judgment that they have stuck the priviledges of the Peers under their Girdle Whether it did proceed from Ignorance or Corruptness will appear upon what they shall say for themselves it 's too plain from one of them it is and either of yours renders them unmeet to sit in that place I do remember that the puny Judge gave this Reason for over-ruling the Earl's Priviledge says he Your Lordship and all the Peers receive all your Priviledges from the King and therefore it would be very unreasonable to make use of them against him and seeing the King is concerned in this Case I am of the opinion that their Plea be over-ruled It is said that he has some Law and therefore it 's the greater presumption in him to judge upon the Lords Priviledges who is not qualified by Law to sit as a Judge in any Case for he is a Papist as every body says and so consequently has not taken the Oaths and Test that the Law enjoins before he take his place on the Bench. But as to his Doctrine which he laid down since it does not properly come into this Debate I will only ask him a few Questions Whether there was not a People before there was a King Whether the King begot all his People and if people of several Nations should be cast upon an Island and seeing no probability of getting thence they agree upon certain Laws and Rules for the Common Good and make choice of the wisest Man amongst them as their King to rule and govern them according to those Laws can it then be said that the People received their Priviledges from him or that he is not strictly bound to govern them by those Laws and no other I desire to ask this one Question more Whether the King is not bound as well by his Oath as by the nature of the Government to protect and defend every Subject in his just Rights and Properties But allowing his Doctrine as orthodox yet his Reason is admirable for the Subject is not to make a defence in any Case if the King have any Title or Concern in it all Corporations must deliver up their Charters of course whenever a Quo Warranto is brought and why because it was a Grant from the King and it would be very hard to oppose him with his own Gift whoever holds any thing by Gift from the Crown and tho' made as sure as the Broad Seal can make it
and the one to be an Accident inseperable to the other P. 31. Treat of Bail The Saxons from whom we derive our Government had all the Ensigns and Badges of Freedom and seemed in the original constitution of it to have with the utmost foresight guarded those Avenues at which it was most likely to be attacked by Absoluteness being sensible and growing wise at the loss of their Neighbors that Kings are too prone to encroach upon the Peoples Rights therefore though they yielded him a sort of Subjection for the advancement of the Common Good yet they took all the care they could to prevent being govern'd by his Will for Dion saith That the People held the Helm of Government in their own power And another very good Authority says That the Saxons were a free People govern'd by Laws made by the People and therefore called a free People because they are a Law to themselves Which Fortescue p. 26. does confirm for he says That a People govern'd by power politick are ruled by such Laws as they themselves desire Therefore after all this to say that the King can dispense with all Penal Laws and consequently with all Laws there is nonsence in one of the two yet surely it will light upon that which is without president rather than upon that which may be justified by that which has passed for Law till within these few months Nothing seems more unnatural than this power of dispensing with the Laws it thwarts the Law of Nature and the Dictates of Self-preservation and bespeaks our Forefathers to be a company of Madmen rather than men incorporated together for the mutual conservation and good of each other Now that which gives as great a blow as any thing to this Opinion is the place whence the Judges would fetch this power of dispensing not from Presidents and a constant exercise of it but from a dark obscure Original to perplex and not explain their Resolution to lead People into the dark and not to make it clear to the Understanding The Saxon Kings at first were Generals who received their power and instructions by which they were to act from the People but the continual Wars occasion'd the constant use of a General and by degrees he became a setled Officer and at last gained the Title of King so that the Prerogative has always been on the gaining not on the losing hand therefore there remains no Pretence of any higher power in the Crown than what has been exerted by this and the late King and if there be any ancient Remains of Power it's what of right adheres to the People because they are the Original Power unless the King or the Government come immediately from Heaven But if this unbounded Power had been originally in the King yet it cannot be so in him but he might part with it unless the Power of a King be advanced above that of King of kings and Lord of lords for God Almighty is tyed up and bound by his Word and having once given it he cannot revoke or gainsay it PRAYERS WHICH His Lordship Used in his Family OH most gracious and merciful Lord God thou only art God and there is none besides thee thou wert and will remain to all Eternity the same yesterday and to day and for ever for in thee is no alteration nor shadow of changing thou stand'st in need of nothing because thou art infinitely perfect and therefore happy in thy self There is not any thing that can add unto thy perfection for as thou dost not stand in need of it so all other things are unmeet to be compared unto thee what profit then are all our Devotions that we offer up unto thee and what art thou the better for all our Services no Advantage can thereby redound unto thee were they void of those Imperfections with which they are attended for even the greatest Righteousness that we can boast of is but as filthy Rags and yet O Lord so good and gracious thou art that thou art willing and ready at all times to receive them tho' they are no better yea thou callest and invitest us to come and worship before thee We humbly confess and acknowledge that we are sinful Dust and Ashes we were conceived and born in Sin and have every moment of our lives added thereto many actual Transgressions both of omission and commission we have sinned against clear Light and the Conviction of our own Consciences we have lent a willing ear to the Enticements of Satan and the Alurements of our Lusts and Corruption but have turn'd a deaf ear to all the Calls and gracious Invitations that thou hast given us to return into the path that leads to Life we have endeavour'd to stifle the Checks of our Consciences and though we have not been able to blot out the impression and belief that there is a God yet we have too much lived like practical Atheists and have walked so loosely and carnally as if there had been no God to whom we must render an account of all things we do here below whether they be good or evil we have sinned beyond forgiveness had not thy Mercy been greater than all thy works and that thou canst pardon more than we can offend O Lord possess us with a true sence of thy Divine Majesty make every one of us sensible that we have done amiss let us bewail our Transgressions from the bottom of our Hearts and make us truly sorrowful that we have grieved thy Holy Spirits and duly to consider how ungrateful a thing it is to offend so good a God a God by whom we live move and have our being and from whom cometh every good and perfect Gift make us contrite for all our Offences and for the future to take up Resolutions of better Obedience and of walking more humbly with thee and especially let us avoid all those things whereby we have brought publick Dishonour to thy holy Name or been an occasion of making others to sin let us redeem the time by a more exact obedience to thy holy Law and the remainder of our days to work out our Salvation with fear and trembling and be sollicitous to make our calling and election sure to that end let us be daily trying our ways and searching into our Hearts to discover the Sin that does most easily beset us and in all we do still to beg thy gracious assistance knowing that otherwise all we do will be in vain for without thee we are not able of our selves so much as to think a good Thought much less to do any good Action make us sensible how weak and frail we are and that the Devil is vigilant and diligent to draw us aside from the way that leads to Life that he is subtile and knows how to suit his Temptations to our several Dispositions and Constitutions make us daily to remember our latter end and the great day of Accounts and that Reckoning that sooner or later we must
us I fully agree with every man who is of that Opinion but if by this Assertion any would insinuate that there is a Plot against the King and Government carried on by all or any of the Dissenters besides that Plot of the Papists I cannot subscribe to it because where God Almighty permits me to use my Reason I cannot believe but upon clear evidence and I have not met with any thing that can warrant such an Opinion and therefore in things of this or the like nature we ought to explain our selves very clearly lest by leaving the matter under a doubtful construction we may against our intention cast an Imputation upon them who do not deserve it I am apt to believe that he who is most strongly possest with the Opinion That the Dissenters have formed a Plot against the King and Government will not adventure to justifie it before His Majesty and a Parliament and certainly that Opinion which will not abide the Test of the King and Parliament is not much to be valued But he who believes that there is a Popish Plot for the taking away of His Majesty's Life which God long preserve and the altering of Religion and Government may avow his Opinion to all the World because he has an undeniable Authority for it for His Majesty in Parliament and both Houses have declared no less but we do not find that His Majesty or either House of Parliament has made any Declaration that they have so much as in suspicion any other sort of People who are designing against his Life and the Government I think it is agreed by all that this Government is the best in the World for it gives the King a Prerogative whereby he may appear great both at home and abroad and it gives the Subject such a Right and Property in his Person and Goods that he cannot be deprived of either without his Consent unless for the breach of some known Law and besides Prerogative and Property help and support each other that is when they are rightly understood and applied for the Interest of King and People are as inseparable as the Sun and Light but when Prerogative and Property stand at a distance it is occasioned either by overgrown Favourites who by their Counsels and Actions have render'd themselves obnoxious to the publick and therefore so shroud themselves from Justice advise the King to insist upon something as his Prerogative which tends rather to hurt than preserve his just Prerogative or else from some ambitious restless Spirits who burr into the People that this or that is their Property which in the end will make their Just Rights to be Felo de se And what cares the one or other of these Make-bates for they are for the most part men of desperate Fortunes who having little or nothing to lose cannot doubt to reap advantage by the publick disturbance But to avoid the Evil on either Hand I think it would be a very good Rule to consider how far what is insisted on does quadrate with the Common Good and if they find that it does not agree to that Rule then to let it go as a thing that is against their true Interest It is agreed on all sides that there is a Plot for to Murther His Majesty and to alter the Religion and Government but whence our danger does arise who is the Common Enemy and against whom we are to unite is that which makes the Dispute and Divisions amongst us I take it to be an undeniable Truth That every State or Kingdom must expect to receive the most frequent and greatest Affronts and Injuries from such of their Neighbours whose Support and Interest does least depend upon them And every Government must in reason expect its Disturbances and Disquiets from such Subjects whose Interest does least depend upon the preservation of the Government And though I will not hastily judge any Man yet when there is a Plot against the Religion and Goverument they are with most reason to be under the suspicion of it who are of a contrary Religion and acknowledge a foreign Jurisdiction until there is very good Proof to charge it upon some other People I am verily perswaded that there are several Papists in England whose Quietness of Temper may make them very averse to give the Nation any disturbance and I heartily wish they were all such But when I consider the greater number of them and the Slavery they are under to their Priests I must be under an apprehension that they cannot intend us any good because their Religion is oppofite to ours and they look upon themselves as under another Jurisdiction but I know that not many years since Popery was a thing of a remote consideration and that they who declared their Fears of it were by those who called themselves the King's Friends accounted Enemies to the King and ill-affected to the Government Yet since the discovery of the Plot has proved their Fears were not groundless I suppose it is no difficult point to determine who are to be blamed they who were afraid of Popery or they who reprehended them so severely for their Fears for the Proof of the present Conspiracy of the Papists is so clear and evident that there remains no room for a Doubt whether there is such a Plot or no. And who is not confirmed in this Opinion since His Majesty and both Houses of Parliament have declared That there has been and still is a damnable and bellish Conspiracy contrived and carried on by the Popish Recusants for the assassinating and murthering the King for subverting the Government and destroying the Protestant Religion now by Law establish'd Now can any Man be so hardy as to think that His Majesty would lay so severe an Imputation upon a great part of his Subjects for God knows they are too many who are of that Perswasion or that the Parliament would pass so great a Censure upon such a number of their Fellow-Subjects without plain and evident Testimony and such as must convince every man but he who will not believe for by this Declaration they have avowed their Opinion to the whole World And there is one thing which further confirms me in the belief of a Popish Plot because in some of the Evidence it is declared That the Papists never had such hopes of restoring their Religion since Q. Maries days as at this time for it seems they had prepared every thing to their Hearts desire if His Majesty were but out of the way and how near they have been to effect it is horrible to remember and it 's a wonder they have not done it since they have not stuck at any thing whereby they might attain it And if we also consider how many fair Opportunities they have had we may conclude that God Almighty has wonderfully preserved him and may he always have him in his keeping But notwithstanding all this some do take upon them to say That there is
most noise and bustle about some other People for nothing can give them so great Security and Certinty to execute any Plot or Design as when they amuse the Government with the Fear and Danger of other People and accordingly have they acted all-along The Parisian Massacre was performed with the greater Certainty by pretending that the Hugonots had a design to seize the King In all the Attempts that were made upon Queen Elizabeth if any of them had taken effect it was to have been charged upon the Puritans as they were called The Gun-powder Plot if it had succeeded the Protestants were to have born the odium of it And if their present Conspiracy had not been prevented by an opportune discovery it must have been cast upon the Dissenters and thence the Papists would have taken occasion to murder Thousands of Protestants And though they were defeated at that time yet they quickly after attempted it again in Mrs. Celier's Meal-tub Plot and though that had no better success than the former yet I hope it is no breach of Charity to conclude that this noise of a Presbyterian Plot is a Contrivance of the Papists to cover their own Bloody Design till they have put it in execution It is a Plot of a large extent and what the Reformed in France endure at present is an Effect of it and the reason why they are not quite destroy'd is because the Work is not done here but if they could ever carry their Business here not only the Protestants in this King's Dominions and those in France but all the Protestants in Christendome must undergo the utmost Cruelties that Hell and Rome can invent And since nothing will suffice but our utter Destruction if they get the upper hand it is high time to unite our selves to oppose so dreadful an Enemy And for my part I do believe that I should incut the Censure of a Mad-man if my House were beset by People who had resolved if they could get in to spoil my Goods and cut the Throats of me and my Family if some of my Servants had offended me I should chuse rather at that time to correct them for their Offence than to pass by their Fault and encourage them to assist me against those who were attempting to break into my House And in my opinion there is the same reason to be at this time a little tender so far as by Law we can towards those who differ from us only in Circumstantials till the Common Enemy is subdued and then we may with greater Safety and Security use proper ways to make them more conformable I must confess that I am not very inclinable to persecute People barely on the score of Religion and I think His Majesty has declared himself to the same purpose and till the discovery of the Plot there was no man who found less fault with the Papists than I did but by it I am convinc'd that no Peace is to be had with them who without any provocation for they were tenderly used should frame and be ready to execute so black a Design as not to leave one Protestant alive Therefore if the danger to the King our Laws and Religion does not arise from the Papists I cannot imagine what else we need to fear but every man may sit safely under his Vine and Fig-tree I am very sensible that there are some who watch my Words and Actions very narrowly and from this present Discourse will take occasion to call me Fanatick or Presbyterian or if they could think of any term of greater Reproach would not stick to lay it upon me but such Revilings don 't disturb me for the Mischief they design to me by it will fall upon their own Pates for their Accusations are false they cannot charge me with the wilful breach of any Law or in what Particular I don't conform to the Church I am sure they cannot convict me of any enormous Crime if any day be appointed by the Government whether for Fasting or Thanksgiving they cannot say that I failed in my Duty they cannot say that upon the 30th of January or any other day of Humiliation that at night when I should have been in my Bed or else in my Closet to lament the Sins of the Nation and to bewail my own Offences that either at my own House or any adjacent Alehouse I sate drinking and tippling till three or four a clock in the morning till I had made my self and the rest of the Company drunk If any man be guilty of such things he highly deserves the Severest Punishment that can be inflicted upon him for this is such grand Hypocrisie and so plain a bidding of defiance to God that they are dangerous to any Civil Society Such People as these who fast only to prepare their Bodies for the Nights debauch are the Informers upon Penal Statutes who to gain something to themselves put their Neighbours to a treble charge these make no Conscience of an Oath and are inclinable rather to swear too much than too little yes neglect their manifest Duty to God that they may be able to accuse their Neighbours of a smaller Offence Men of such Principles and Practises as these are they who beget an ill understanding betwixt the King and his People by Informations and Suggestions which if they were but made publick they would be ashamed to own by these they endeavour to create in His Majesty a dislike of others who are better than themselves in every respect and hence it occasions that our domestick affairs are pry'd into I will not take upon me to say how legal these things are or how far these Proceedings are warranted by Law but I will leave it to every man to consider whether he is not safer any where than at his own House whether his Table may not become a Snare to him and his own Servants shall be the means to cut his Throat But if Informers would acquaint themselves with the Laws concerning Informations and Suggestions they would not be so hasty in accusing others for the Law does not seem to favour them at all but rather discourages such Proceedings for it gives the Party injur'd very good Reparation and severely punishes the Informer if his Accusation prove false as you will find by these Statutes 5 Ed. III. 9. It is enacted That no Man from henceforth shall be attacked by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods or Chattels seized into the King's Hands against the form of the great Charter and the Law of the Land 37 Ed. III. 18. Though it be contained in the great Charter That no Man be taken or imprisoned not put out of his Freehold without process of Law nevertheless divers People make false Suggestions to the King himself as well for Malice as otherwise whereof the King is often grieved and divers of the Realm put in damage against the form of the same Charter Wherefore it 's
wealth thinking no doubt to enjoy greater Priviledges and Immunities than now they do But I am apt to believe that they who are not contented under this Government have not consider'd aright what a Common wealth is A Common-wealth makes a sound and shadow of Liberty to the People but in reality is but a Monarchy under another Name for if Monarchy be Tyranny under a single person a Common wealth is Tyranny under several persons as many Persons that govern so many Tyrants but let it be the best that can be yet the People under any Common-wealth enjoy not that Liberty that we do Gentlemen as the Excellency of this Government is an Argument sufficient to disswade any of us from the least attempt of alteration so Experience has taught us that no sort of Government but that we now live under will suit or agree with England Let us but consider the late Troubles how many several kinds of Government were there set up one after another All ways were tryed but nothing would do till we were returned to our old and ancient way But Gentlemen it may fall out that we our selves may be the Authors of our own Destruction for whatever the Parliament does we are bound up by it if they pass a Law to give away all we have to the King we must submit to it for it is our own Act and therefore it highly behoves us to be very cautious who we chuse to represent us in Parliament we put all we have into their Hands and what they do must bind and oblige us Every Man is mortal and possibly may be corrupted to vote against the Interest of them he represents I accuse none of your Representatives nor do I accuse all only tell you that Men may be corrupted Therefore in my opinion whenever you have occasion to chuse a Member for the Parliament as now you have you ought to have a care of an ambitious Man or a Man that is vain glorious for it was never known that any of that Temper were so out of a real intention to the Publick Good for Ambition or Vain-glory was never accounted to be the Make of an Honest Man and if you 'll give me leave I 'll tell you what sort of a Man I shall give my Vote for if I cannot have a Man that is both wise and honest then I would rather be for an honest than wise man for I would rather trust all I have with a man that is truly honest and less knowing than with a man that is more knowing and less honest I shall always be for a man that has a good Estate in the Country for though he may possibly forget us yet he will remember himself and avoid all unnecessary charge upon the Country because he himself is to pay part of it Next I am for a moderate man one that is not strict or rigid neither one way nor the other either in Church or State for it's Moderation that must keep every thing in right order and it's Severity and Rigidness that will bring things into confusion In short Gentlemen let your own Judgment and not another Man's Interest or Inclination direct you in this case for our Parliament is our Weal or Woe And now I will proceed to the Particulars of your Charge The first and chief thing that you are to present is High-Treason To Compass or Imagine the Death of the King the Queen of their Eldest Son Now Gentlemen you must observe that the Heirs to the Crown are of two sorts first Heir Apparent that is the King 's Eldest Son that is living for no body else can be Heir Apparent secondly their Expectant or Presumptive that is he who in course of Descent is next in Blood to the King if he hath no Son Now the Offence is not so great to kill or procure the Death of the Heir Expectant as it is to compass or imagine the death of the Heir Apparent To levy War against the King in his Realm or to adhere to the King's Enemies in his Realm or to give them Aid or Comfort in the Realm or elsewhere To counterfeit the King 's Great Seal or Privy Seal or his Money To bring false Money into England counterfeit the Money of England and knowing the same to be false with intent to make payment with the same To kill or slay the Chancellor Treasurer or the King's Justices of the one or the other Bench Justices in Oyer or of Assize and all other Justices assign'd to bear and determine being in their Places doing their Offices To counterfeit the King's Sign Manual Privy Signet or Seal by 1 Q. Mary 6. To diminish scale or lighten the current Money of England 18 Eliz. 1. So Clipping Washing Rounding and Filing of Current Money by 5 Eliz. 2. There are too many Offenders in this nature amongst us The second time to extol and maintain the Pope's Authority formerly usurped here and the second time to refuse to take the Oath of Supremacy 5 Eliz. 1. A Priest or Jesuite that shall come and remain here who shall be in any Seminary and not return within six months after proclamation 27 Eliz. 2. To put in use any Bull or Instrument of Reconciliation or Absolution from Rome or from any person authorized or claiming Authority from Rome Any Person that shall willingly receive any Absolution and all Aids and Abettors it 's High-Treason in them by 13 Eliz. 2. To withdraw any of the King's Subjects from their Obedience or Religion And such Persons as shall be withdrawn from their Obedience to the King or their Religion 23 Eliz. 1. And now Gentlemen give me leave to take notice to you of them who very largely discourse that the King is above the Laws I am very apt to believe that they don't consider very well what they say nor don't know or remember that as it is High-Treason to kill or hurt the King so it is High-Treason to subvert the Government or to endeavour any alteration of it and then I would ask any man to solve me this Question Whether or no it be not an alteration of the Government to render all our Laws ineffectual and useless which must necessarily follow and where it is or upon what they ground their Opinion I am sure the Word of God warrants no such thing nor can any such thing be found in the ancient Government of this Island for at first it was govern'd without a King I don't mention this as if I question'd the King's Title to the Crown no Gentlemen I would have every subject to pay him all possible Duty and Obedience but I say this to shew you that there is no Ground for that Opinion that the King is above the Laws And I am sure I never met with it either in Magna Charta or any Law made since and therefore I could wish they would forbear to preach up such destructive Doctrine both to King and People I am sure it is for
appearance look very brave and for the present may gain a popular applause but in the end serve only to expose the Persons themselves and the Cause they stand by For a hot-headed or rash Action of any one Man especially if he be of note furnishes the other side with sufficient matter to brand the whole Party with it if therefore you shall at any time be put upon doing any such thing do but desire those that propose it to lead you the way and if they refuse you may be sure that it was not your good they intended but to promote some selfish end of their own though they foresaw that it would expose if not ruine you These Directions and what else can be given you will not much avail without your own improvement of them which must be done by reading and observation and those sorts of Studies seem to be most eligible by men of generous tempers which tend most to fit a man for the publick Service and next to God's Law there is nothing more necessary for an English-man than to be well acquainted with the Law of his own Country to the attaining of it several Books are to be read of which I do in particular recommend to you Coke's Institutes Croke's Hubbert's Dyer's and Vaughan's Reports and especially the latter for though it contains but a few Cases yet they contain in them such strong reason as gives great Light into other matters Next to these all my Lord Bacon's Works and a Book called Bacon's Uniformed Government of the Laws of England which is worth its weight in Gold Next Lambert's Saxon Laws Fortescue of the Laws of England A Book Intitled De Pace Regis Regni and another called the Rights of the Kingdom and a small Book Intitled Nihil dictum quod non dictum prius Most if not all of these you will find in my study and they may easily be read over in a few Months and time enough allowed for Business and Recreation When you have gone through them I am perswaded that they will not only give you an appetite to read them over again and make observations as you go along but also to enquire after other Books of that sort Next to a knowledge in the Law History is very necessary and especially of our own Country And though we have many Chronicles yet the Lives of our Kings that are written by particular hands are the best and give the truest account of things It is also necessary to look into the Histories of other Countreys and the Lives of Famous Men as those that pass under the Title of Plutarch's Lives Grotius de jure belli pacis is allowed by all to be one of the best Books that ever was writ And notwithstanding the clamour that is made against Machiavil I would not have you to pass him by for that part of him against which the out-cry is made it is only Instructions what a Tyrant is to do if he will reign safely yet he does not perswade any King to it but is much against it as you will see in reading over his Works To read a Play or Romance now and then for diversion may do no hurt but he that spends most of his time in such Books will be able to give a very ill account of it Be your Studies what they will yet be sure to drive the nail only as you find it will go That is in the first place never go to your Study but when you find your self very well disposed to it for to do otherwise is to go against the grain and nothing that way can be well done In the second place stay no longer at it than you can taste what you read for after that your thoughts begin to be unsteady or wander it is loss of time to prosecute it nay it will occasion you to lose much of what you had gained before and so you will go backwards instead of forwards For nothing is more mischievous in studying than to tye ones self to a certain time of going to it or staying so long or reading so much together for we are not at all times alike disposed to our Book Now by studying only when we are disposed though we do not seem to make such haste yet we make better speed for a Book read over once this way is of more advantage than thrice read over if these precautions are not observed When you are to debate in Parliament or upon any other publick occasion and since the end of speaking is to convince Observe these two following Directions First Argue as directly and closely to the matter as you can for this is the surest way to prevail because it gives your Opponents the less advantage against what you say And besides nothing is a greater argument of a sound judgment than to be able to bring the matter to a point Secondly Be not over sollicitous for words and Phrases when either they hinder you from digesting your matter throughly or occasion you to say any thing that has not some weight in it Apt words and quaint Phrases are very good adornments of Speech yet they are not so necessary as that for want of them a Man of good understanding ought to be silent For deep and weighty Notions though delivered in a very rough stile will touch the reason and convince the understanding many degrees beyond light and frothy thoughts though drest up in the best Language imaginable For Sense is beyond words as much as the Substance exceeds the shadow And certain it is that you will in speaking gain applause by good Sense rather than by the finest Words and Phrases It 's Sense that pleases the Wise and Men of Judgment and Words and Phrases without Sense Tickle the Ears of insipid people In private Conversation remember these things Be the discourse merry or serious let what you say be rather good and to the purpose than much For he that talks a great deal does rather expose himself than divert or oblige the Company A Man is seldom accounted a Fool for speaking too little but is too often so esteemed for speaking too much because in the multitude of words there will not want folly In the next place let neither your behaviour or discourse be formal or starcht for a tincture of that in either takes off the pleasure which the World does generally propose and expect in Conversation For as this does at first proceed from affectation so it will always appear to be such and any thing that is forced or constrained in company is never welcome He that affects an over grave behaviour or set way of speaking does it rather to admire himself than to please others and whatever satisfaction they may take in it themselves yet it tends to no other end than to render them ridiculous to every Company they come into Promote the Discourse you find is most agreeable to the Company if it be not against your Opinion but say
Courage did not out-run their Discretion for they did not adventure to name the Prince of Orange but pretended the contrary to the Duke of Newcastle and used as much Artifice to delude him as if it had been of the highest consequence to secure him though he was attended by none but those of his own Family And there was as much preparation and consulting in order to surprize York as if it had been the most considerable Garrison in England though kept only by twenty Men and they as ready to yeild and declare for the Prince as they could have wisht And when they were possest of the Town they set strict Guards at every place and suffered none to go out or come in till they were fatisfied with their business and were as wary as if a considerable Force had been ready to sit down before the place And with the like Steps they moved at Notingham and other places And though no doubt they ingaged in the business with a great deal of Zeal and Resolution yet the Declaration of the cause of their Assembling was penn'd with great caution perhaps as a considerable Man amongst them said to keep themselves within the Statute for their Declaration neither charged King James with Male Administration nor complained of the danger we were in but the Sum of it was to joyn with the Prince of Orange in declaring for a Free Parliament Whereby they put it into King James his power to oblige them to put up their Swords as soon as he pleased for when ever he issued out his Proclamation for a Free Parliament they were bound in Honour to lay down their Arms And then what very great Service can they boast of who could hold their Swords in their hand no longer than King James pleased And though they may pretend to Merit highly yet not to the degree with those who moved forward to Joyn the Princes Army For by their Motion they prevented King James from having a true Account of their Numbers and as they would daily increase so every Account he had of them would make them still more confiderable They shewed thereby that they were resolved not to look back but would either conquer or dye They did not mince the Matter but spoke plain English of King James and of our Condition and thereby animated the Country as they Marcht and made all sure behind them so that the further they Marcht the greater Service they did for 500 Men thus moving would in a short time occasion 40000 to rise in Arms whereby in a few days they would not only be reported but in effect be so considerable and formidable as to support the Cause they had espoused and either reduce King James to Measures or drive him out of the Kingdom So that this seems to be the great thing that so astonished King James and put him to his Wits end For as to the Princes Forces their Number was not valuable and if pressed very hard would not too obstinately stand it out because it was evident they had a Retreat in their thoughts and accordingly had provided for it The desertion in his Army he could not much regard because it did not amount to 2000 Men till he ran away But as to those who intended to Joyn with the Prince of Orange his Army he would with dread behold the Storm coming upon him for he might observe the Cloud no bigger at first than a Mans hand increased so fast that it would quickly over spread the whole Heavens and prove so great a weight that it would bear down all before it for their Numbers would quickly swell very high and it could not be foreseen where and at what degree they would stop He might plainly see that they had thrown away the Scabbard and contemned the thoughts of asking quarter for as they could never hope for another opportunity to recover their Liberties if they failed in this so they very well knew the inexorable temper of King James that it would be to no great purpose to sue for his Mercy whereby being made desperate and abetted moreover by the whole Nation he must expect the utmost that could be done by the united Vigour of Courage Revenge the Recovery of Liberty and Despair all which would make up too strong a Composition for King James his tender Stomach and turn his thoughts from fighting to contrive the best way to save his Life and this was the Storm that drove him away from Salisbury Observations upon the Attainder of the Late Duke of Monmouth THAT which is done by King Lords and Commons is so Sacred as not to be called in question by any power on Earth and what they do is so very good that the Wit of Man cannot devise any constitution that can proceed with more Justice or be less subject to err than they when rightly in Conjunction And therefore whoever he be that proposes to have any of their Acts reviewed must take care to set his words in great order by reason that that which in an Inferiour Court might be called error will scarcely indure the soft name of a mistake if done by King Lords and Commons But however it does appear that they have reconsider'd what they have done and thereupon have many times found that they might do better than to adhere to their first resolve especially in cases of Bills of Attainder which for the most part have rather been expedient than that the strict Rules of Justice were pursued and though in so doing their wrath did seem to burn very hot yet in effect for little more than a moment and even to end with the blow that struck off the Criminals Head for upon the Petition of his Heir his Blood has seldom been deny'd to be restored and this proceeds from the great humanity of this Government The Law of England being a Law of Mercy does in many Cases appoint a grievous punishment rather in Terrorem than that the penalty should be rigorously exacted for which reason it is that so few Attainders are now in force If then those Cases have met with so much compassion the Case of the Duke of Monmouth may well hope for the like favour since there is not any argument for the reversing of any other Attainder that cannot be urg'd with as great force in the case of the Duke and besides there is no president of the like case to be found and whilest it remains in force is of dangerous Consequence The Law is so very careful to do right in every case that it will not allow that any Man be judg'd without being heard or at least that a convenient time be allotted him for it if he think fit to appear and it does also require that the fact be fully and sufficiently proved without both of which no Man can be convicted of any offence in the ordinary course of Justice and this is and has ever been reputed the undoubted Right and Priviledge of every Subject of
of his Enemies or they are not arrived to that pitch of Villany as knowingly to destroy an Innocent Man Take then these things together and see how precariously every Man holds his Life and Honour if such things as they I mean the Mayors Letter and Printed Declaration may pass for Evidence for what can then be more easie than to sham any Man out of his Life and all that is dear to him But had the Evidence been as full and as clear as it could or ought to be in such Cases yet it is of the Essence of the Justice of England that the Party accus'd should be heard or have sufficient time assign'd him so as that it must be his own fault if he do not appear and make his defence This is the Law not only of this but in all Constitutions where the Government is not Despotick or Arbitrary For there cannot be a greater Badge of Slavery than that Men may be condemn'd without being heard to their Accusation In the time of Henry VIII Cromwell Earl of Essex being then a great Man and out of design to destroy some whom he knew not well how to ruine otherways contrived and promoted a Law for a Summary way of Tryal so as that a Man might be judg'd without being heard but as it fell out he perished by the Snare that he had layd for others for he was condemn'd without being heard to his charge and he was the only Man that was toucht by that Law for his case made it so odious that immediately upon it it was repealed as being unjust and inconsistent with the Justice of this Government God the Righteous Judge of all the Earth though he knows what we can say in our defence will hear us before he condemns us for otherwise his Sentence would not appear to be just The Law in case of Blood proceeds by slow steps because Blood when spilt cannot be gathered up again for it is a Maxime in our Law that no delay is too great when Life is concern'd the Law desires that every Man should prove innocent and does suppose he is so till he is found to be otherways by his Peers and for that reason it is that a Judge may not give the Prisoner at the Bar reproachful Language till the Jury has found him guilty and then too he is not to be condemn'd till he has moved in Arrest of Judgment and heard what he can further say for himself To hear a Cause ex parte is in effect to know nothing of the Truth so as to be able to make a Judgment where the Right is Many Innocent Persons will unavoidably suffer when ever it comes to be Law that Men may be try'd and condemn'd without being heard This sort of Justice will set the Innocent and Guilty on the same foot and to throw Cross and Pile whether the Prisoner shall be acquitted or condemn'd is as Just as to Try a Man without hearing his Defence Now it 's undeniable that there was no time given by the Bill for the Duke to appear which must at best hand be allow'd to be a great omission for in all other Acts of Attainder if the Person was alive a convenient time was allowed him to come and be heard and till that time was expired the Act was not in force against him nor could the penalty therein exprest affect him in the least But beside these things there fell out some thing further in this Bill of Attainder that is very unusual and extraordinary for it was begun and pass'd both Houses in one and the same day which was never heard of before in any case though the occasion were never so pressing The Method of passing all Bills being quite otherways For when a Bill is brought into either House of Parliament or sent from one House to the other it is not often that they give it a reading the same day or if they do it 's seldom that a Bill is read above once in one day and when it has been read a second time if it be not rejected it is committed and then for the more part the Committee does proceed upon it some other day and not upon that so that regularly no Bill can pass either House in less than Three days And this gradual way of proceeding upon Bills demonstrates the great Wisdom and Justice of the Two Houses and vindicates them against precipitancy and partiality This has been the Ancient and Approved Method beyond the Memory of Man or Records and it has ever been found safe if not fatal to go out of the path of our Fore-fathers And thus stands the Case as to the passing of the Bill of Attainder against the D. of Monmouth which must be acknowledg'd to be a Summary way of proceeding upon presumption without Legal Evidence or hearing the Party or observing the usual Method of passing Bills in Parliament But it is objected and said in the defence of this That the Legislature of England is confined to no Rules and Directions but that of their discretion and that upon suddain emergencies when it will be to the Publick Detriment to stay for the ordinary and usual Forms of Law they may justifie the dispensing with them and for that reason all that was done in the Duke of Monmouths case is very well warranted because there was then flagrante bello It is true that the Parliament has such a discretionary Power and it 's reasonable it should be so but yet this does not prove that a more deliberate proceeding might not have been had upon that Bill however it will scarcely afford an Argument wherefore the Attainder should not now be revers'd but rather that it ought to be because when the Mischief is prevented that induced the Parliament to such an extraordinary course it was the constant practice of our Fore-fathers to put it out of sight as soon as could be And nothing could be more prudent for so long as it remain'd a precedent it might be the occasion of a greater evil than it had prevented and so long as this Attainder stands in force it will be look't upon as an Exposition of the Law declaring that it may be Legal and Just to condemn without Evidence or hearing the Parties defence and thereby put our Lives and Families into a more precarious condition when in the discretion of the Two Houses of Parliament then when they are to be judged in the Inferiour Courts of Justice and so chalk out a Method for unfortunate Times to take off any Man that stands in the way for though what was done in this case may be said to be Jus yet it was Summum Jus and if it was Justum yet it was not done Justè But over and above all this there happen'd a thing in pursuance of this Bill which though in strictness of Law it cannot be assign'd as sufficient Error yet in reason may be an inducement to the Parliament to reverse this Attainder The Life
a share in building a House that lays here and there a Stone as he that lays the Foundation and raises much of the Superstructure upon it which is the very Case betwixt the high Church-men and the Dissenters and though our high Church snarle at the King and treat him with over-familiar Language yet what they have said and done does not so much denote their repentance as that they are disobliged and disappointed because it is not accompanied with amendment of life which is the truest sign of penitence for I doubt there are very few of them that can boast that they are less debaucht and profane If the matter then be so and they on their part have not done any thing to invite or incourage the Dissenters to come to Church they should be the least of all Men that should complain of their absenting Upon the whole Matter then The Dissenters by falling in with the Indulgence have done that which in the consequence will set up Arbitrary Power But the high Church-men have in express terms preached up and assisted Arbitrary Power and have treated the Papists as their Friends So that they having been chiefly instrumental and layed a Foundation for Popery and Slavery I may without pretending to the gift of Prophecy adventure to say that whenever it comes to extremity the greatest brunt will light upon them and their Heads will sheild the blows from others who used all lawful means to have prevented the Mischeif that is coming on apace Thus I have laid open the Fault on all sides let then the high Church be more charitable and the Dissenters less stiff and sweamish and let every one indeavour to live like People professing the Gospel and I hope that God may yet have mercy upon this poor Nation A SPEECH IN PARLIAMENT FOR THE Bill of Exclusion I Wish I could have been silent and I wish there had not been an occasion for this dayes debate but since we are brought into this condition it behoves every Man to put to his Shoulder to support this tottering Nation And in this Matter that is now before us we ought to consider very well for a great deal depends upon it and therefore I hope that every Gentleman will speak and Vote as God shall put it into his heart without any prejudice or pre-possession A Bill to Exclude all Papists from the Crown will produce a great many Inconveniences on both hands because his R. H. being a Papist it will set him aside therefore we are to consider which is the lesser evil and to choose that If the D. be excluded you are told how unjust it is to take away his Right from him that the Crown is his Inheritance if he survive the K. and besides you provoke him and all the Papists in England to Rise and cut our Throats On the other hand it 's plain that when we shall have a Popish K. our Religion and Laws are not secure one Moment but are in continual danger So that the case in short is this Whether we shall sit still and put it to the venture of having a Popish Successor then we must either submit our Heads to the Block or fight and be Rebels Or else to have a Law that will justifie us in the defending our Religion and Laws In plain English whether we would fight for or against the Law I think I have put it right and now let every Man make his choice that loves either his God or his Countrey As to the D's Right to the Crown I wish it were clearly known what sort of Right it is he claims and whence he derives it He is not Heir Apparent neither do I think that our Law knows any such thing as an Heir to the Crown but only as a Successor And therefore the D. nor any other whatever can pretend the same Title to the Crown as the Son of a Subject can to his Fathers Estate after his decease for with Subjects they do not succeed but inherit It is not so as to the Crown for there they succeed And it is from a not rightly considering the word Heir as it is a Synonymous term with that of Successor that has made so many to be deceived in the D's Title to the Crown for this word Heir to the Crown was not heard of till Arbitrary Power began to put forth Before William the Conquerour's Time it would have been a senseless word when the people set up and pulled down as they saw cause And till Queen Elizabeth it was not much in fashion when the Crown was so frequently setled by Act of Parliament and the Next of blood so often set aside when the Son seldom followed his Father into the Throne but either by Election in the Life-time of his Father or else by Act of Parliament So that to make the D. either Heir Apparent or Presumptive to the Crown it must be proved either by the Constitution of the Government or by some Law or Act of Parliament If therefore he has a Title to the Crown it 's necessary to know what it is and whence he has it but if he has none it 's not unjust to pass the Bill or any otherwhere he shall be particularly named But I will say no more of this least I may seem to be against Kingly Government which I am not If the D. be Excluded because he is a Papist yet it is no injustice Why will he be of that Religion that the Law endeavours to suppress The Subjects who are of that Religion forfeit Two parts in Three of their Estates and shall any Subject by reason of his Quality be exempted from the Law I hope not Besides if a Subject forfeit two parts it 's reasonable that the next of blood or any that is of that Religion should be excluded from the Crown because the Law has prohibited all Papists from having any Office Civil or Military because their Principles are inconsistent with the Government and then how preposterous would it be to make him the Head of the Church and the Preserver of our Laws and Liberties whose Religion obliges him to ruine and destroy both So that if the D. had not by his practices given us just cause to except against him yet barely as he is a Papist he ought to be Excluded But when it is considered that he has held a correspondency with the Pope and the French King to subvert our Religion and Laws what protection can we expect from him if he be King It is a sensleless thing to imagine that he will not disturb us in our Religion and Laws seeing whilest he is a Subject he is practising to destroy us and them Therefore for my part I think we betray both our Religion and Laws if we do not pass this Bill There is one Opinion which prevails much in the World which as it is false so it does a great deal of hurt and that is this That every Government in the World was
as well for Malice as otherwise whereof the King is often grieved and divers of the Realm put in damage against the Form of the same Charter Wherefore it is ordained That all they which make suggestion shall be sent with the same suggestions before the Chancellor Treasurer and his Grand Council and that they there find Surety to pursue their suggestions and incur the same pain that the other should have had if he were attainted in case that his suggestions be found evil And that then process of the Law be made against them without being taken and imprisoned against the Form of the said Charter and other Statutes In the 38. Edw. III. Chap. 9. is contained the Informers punishment in these Words It is assented That if he that maketh the complaint cannot prove his Intent against the Defendant by the Process limited in the same Article he shall be commanded to Prison there to abide till he hath made gree to the Party of his damages and of the slander that he hath suffered by such occasion and after shall make fine and ransome to the King And the Point contained in the same Article that the Plantiff shall incur the same pain which the other should have if he were attainted shall be out in case that his suggestion be found untrue And still there is another Law made 42. Edw. III. Chap. 3. In these Words At the Request of the Commons by their Petitions put forth in this Parliament to eschew the Michiefs and Damage done to divers of his Commons by false Accusers which oftentimes have made their Accusations more for revenge and singular benefit than for the profit of the King or his people which accused Persons some have been taken and sometime caused to come before the Kings Council by Writ and otherwise upon grievous pain against the Law It is assented 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 from henceforth be done to the contrary it shall be void in the Law and holden for errour These are Laws that are as much in force as any Statutes whatever and ought to be as duly observed But I beseech you consider to what a degree they have been violated by the Privy Counsel How have they sent for Gentlemen from all parts of the Nation upon meer Flamms and Stories No Man could be quiet but upon any groundless pretence away went a Messenger to bring up that Man not considering the great charge and trouble they put the Gentleman upon by it I will mention only that of Sir Giles Gerrard he was sent for up by a Messenger to answer to I know not what a business about a Black Box and who charged him with it But when it came to be examined it proved nothing but Town-talk and what a pudder did they make In our Countrey when a Man makes a great stir about a matter and it ends in nothing that is significant we say Billy has found a Pin So I pray what did this hurly burly of the Black Box end in but nothing that was worth a straw And to this mighty purpose Sir Giles was fetcht from his House in the Country And several other Gentlemen have been thus used against Law and Reason It 's strange the Privy Council should not remember the Bill of Habeas Corpus which passed in the last Parliament that might have brought to their remembrance these Laws that I have mentioned and might further convince them how precious a thing we esteem our Liberty It puts me in mind of the Petition of Right and what I have heard and read after it was passed how soon it was violated and broken The Privy Council has been very unjust to these Gentlemen whom they have molested by their Messengers in that they have not made their Accusers to find Sureties to make good their Accusations as the Law requires 37. Edw. III. 18. for then idle Stories would not be so currant by reason of the Punishment inflicted on those false Accusers by 37. Edw. III. 18. and 38. Edw. III. 9. which Lawes are grounded upon the Word of God Deuteronomie 19. chap. 18. and 19. ver But now such Fellows as are mentioned in the 37. Edw. III. 18. and in 42. Edw. III. 3. who make their Accusation for Malice or for Revenge or singular benefit more than for the Profit of the King or his People these I say shall be allowed to accuse honest Men though they cannot prove a word of what they say and for these devices are we to be forc't from our Habitations to appear before the King and his Council Methinks it's hard play and yet what remedy have we left but to sit down and be quiet But without doubt the Land intended a Redress in these Cases for 25. Edw. III. 4. says that whatever is done contrary to that Law shall be redress't and holden for none but it does not tell us how satisfaction is to be had But since it is left uncertain I hope for the future we shall so order it that every Man may have relief against this great Oppression and that I humbly move for if we let this alone we leave an Arbitrary uncontroulable Power in the Privy Council which will never stop till it has made the Law subject to them But I have heard it objected that if this Power of sending for People be not allowed to the Privy Council then you put them in a worser condition than any Justice of Peace because by his Warrant he can send for any body in the County where he lives I must in the first place deny this altogether for the consequence is not true In the next place I say that the Law is the best Judge of this whether the Privy Council ought to have such an unlimited Power and what the Law has determined over and over again ought not to be disputed by us besides it is a thing of dangerous consequence to put Discretion into the Ballance with so many written Lawes which conserve so dear a thing as our Liberty But the Power of the Privy Council is not hereby made less than that of a Justice of Peace for a Justice of Peace it is to be supposed will not send out his Warrant but upon a just and reasonable ground What Justice of Peace ever sent out a Warrant of the good Behaviour against any person but he either first heard the party accused which is the juster way or else the matter was proved upon Oath Or when was any Warrant of the Peace issued out but it was grounded upon the Oath of him that demanded the Surety of Peace And whatever Warrants or Precepts are granted by a Justice of Peace they ought to be for just causes or else he violates his Trust So the Privy Council may upon a just Accusation
send for any person but without that they cannot and therefore I do not see wherein a Justice of Peace has a greater power than the Privy Council or if he had yet it would not be so great a Mischief for he can only send for any person that is in the County but the Privy Council are not limited to this or that County but their power extends all over England But besides it is unjust to be punisht without a cause and restraint or being debarr'd of Liberty is a punishment and whoever he be that would have the Privy Council to exercise this Power when he has known what it is to be brought up by a Messenger upon an Idle Story let him then tell me how he likes it and answer me if he can A SPEECH AGAINST THE Bishops Voting In Case of BLOOD OF all the things that were started to hinder the success of the last Parliament and is like to be so great a stumbling-block in the next That of the Bishops Voting in Case of Blood was and will be the chief Now they that deny that the Bishops have right to Vote in Case of Blood do labour under two great difficulties first because this is a new thing at least it is very long since the like Case has come into debate And next because they are put to prove a negative which is a great disadvantage But Truth will appear from under all the false glosses and umbrages that men may draw over it And I doubt not to make it evident that the Bishops have no right to Vote in Case of Blood at least I hope I shall not be guilty of obstinacy if I do not alter my opinion till what I have to say be answered It is strange the Bishops are so jealous of their Cause as not to adventure it on their great Diana the Canon Law by which they are expresly forbidden to meddle in case of Blood Perhaps they would do by the Canon Law as it is said by the Idolaters in the Old Testament that part of the timber they made a god and fell down and worshipped it the rest of it they either burnt in the fire or cast it to the dunghil For they tell you that the Canon Law was abolisht by the Reformation and that none but Papists yeild obedience to it and therefore now they are not tyed up by the Canon Law but may sit and Vote in case of Blood if they please I should be very glad if they were as averse to Popery in every thing else and particularly that they would leave Ceremonies indifferent and not contend so highly for them whereby they make the breach wider and heighten the differences among Protestants in the doing of which they do the Pope's work most effectually I wish they would consent to have a new Book of Canons for those that are now extant are the old Popish Canons I like Bishops very well but I wish that Bishops were reduced to their primitive Institution for I fear whilst there is in England a Lord Bishop the Church will not stand very steddily But I will leave this though I need say no more and proceed to other things that are very clear as I conceive My Lord Cook in the Second Part of his Institutes the first Chapter treating of Magna Charta when he reckons up the Priviledges of the Church he tells us that Clergy-men shall not be elected or have to do in secular Office and therefore he tells us that they are discharged of such and such burdens that Lay persons were subject to and good reason it should be so that they might with greater ease and security attend the business of their Function that is to govern and instruct the Church But whether they had these Immunities granted them that they might study the Pleas of the Crown and Law Cases or else that they might apply themselves to the work of the Ministry let any Man judge for saith he Nemo militans Deo implicet se negotiis secularibus And if to sit and judge in case of Blood be not a secular Matter I have no more to say and I hope my Lord Cook 's Authority will be allowed And because as I conceive that my Lord Cook 's Authority may pass Muster in this point I will offer some things out of him that will make it evident that the Bishops are only Lords of Parliament and not Peers and if so it is against the Law of England for them to sit and judge upon any Peer for his Life for the Law says that every Man shall be tried by his Peers In the Second Part of his Institutes the first Chapter he tells us that every Arch-Bishop that holds of the King per Baroniam and called by Writ to Parliament is a Lord of Parliament But in the 14th Chapter when he reckons up who are Pares in the Lords House he says not a word of the Bishops but repeats all the other Degrees of Lords as Dukes c. And without doubt he would not have made so great an omission if the Bishops ought to have been taken into the number Besides this if the Bishops be Pares how comes it to pass that an Act of Parliament shall be good to which their consent is not had passed by the King Lords Temporal and Commons But it was never allowed for an Act of Parliament where the Lords Temporal had not given their Vote And for proof hereof see my Lord Cook in his Chap. De Asportatis Religiosorum where he gives you several Instances of Acts of Parliament that passed and the Bishops absent But then in the Third Part of his Institutes he there puts the matter out of all controversie and shews that Bishops are to be tried by Commoners for says he in the second Chap. treating of Petty Treason None shall be tried by his Peers but only such as sit there ratione Nobilitatis as Dukes c. and reckons the several Degrees and not such as are Lords of Parliament ratione Baroniarum quas tenent in Jure Ecclesiae as Arch-Bishops and Bishops and formerly Abbots and Priors but they saith he shall be tryed by the Country that is by the Free-holders for that they are not of the Degree of Nobility So that with submission this is as clear as any thing in the World If the point be so clear that the Bishops may Vote in case of Blood it would do well that some Presidents were produced by which it might appear that they have ever done it at least that they have made use of it in such times when the Nation was in quiet and matters were carried fairly for Instances from Times of Confusion or Rebellion help rather to pull down than support a Cause But my Lord Cook in his Chap. that I mentioned even now De Asportatis Religiosorum gives you several Presidents where the Bishops when Capital Matters were to be debated in the Lords House withdrew themselves particularly 2 of
soever a Parliament is corrupted whether it be by Places Pensions or any other thing that makes the Members thereof to become men of dependance The next Article against K. J. is that he Seized upon the Charters of Corporations thereby bringing their Priviledges to be disposed on at his will and pleasure This was very Notable Injustice yet the making havock of Charters was begun and carried on very far by C. II. to which the Loyalty that then prevail'd contributed very much for who ever was not for surrendering of Charters and giving up their Liberties was mark'd out as Anti-Monarchical and a Commonwealths-Man and this fantastical Loyalty had intoxicated so very many that very few Corporations stood out those that disputed the point were taught the Law of Quo Warrento So that when K. C. died he left his brother little more to do than to give the finishing stroke to that he had brought to so great Perfection by which we see how dangerous it is to make any other thing than the Law the Measure of our Loyalty for altho at first no ill consequence may be apprehended of what is done yet it is not long e're Men find their mistake by the mischief which falls upon their own Pates and with this aggravation that they don't see their error till it is out of their power to remedy it The Declaration next observes how that Ireland was put into the hands of Papists which made many to leave the Country well remembring what fell out in the year 41. This was very true and it is as true that it put every Man in England who valued his Religion and Property under very great fears and apprehensions that the storm would blow over into England Because he that would set up Aarbitrary-Power in England must first try his hand upon Ireland it having been observ'd that whatever Arbitrary thing has been done in England that it has first been practised in Ireland So that when ever things go irregularly in Ireland England cannot think it self safe till affairs are put into a better posture there The Declaration further takes notice that K. J. had declared in Scotland that all his Subjects are bound to obey him without reserve This is the highest of absolute Power and it was plain he intended to do no less in England For there is nothing more certain in humane Affairs Than that when a K. mis-imploys his power in one Kingdom it is not for want of inclination but of means and opportunity that he does not do so in all other places under his Dominionâ— As for Example if a King keep one of his Kingdoms without Parliaments he would do so in another if by some necessity he were not compell'd to do otherwise for C. II. kept Ireland without Parliaments and it was out of regard to his particular Affairs that he called a Parliament in England for you may remember how quickly he sent the Parliament packing that called him in because it was more intent upon setling the Nation than to give him unnecessary supplies and those which he afterwards called were kept no longer than he could squeeze Money out of them The Declaration goes on to remind us how K. J. indeavourâ—d to discourage and take away from the Subject the right of Petitioning The priviledge of Petitioning is an ancient and necessary right and so great a right as it has always been supposed that upon such applications the K. was bound either to redress that whereof they complain'd or to let them see that their complaint was without cause But to take away this right from the people is to deprive them of the means of making known their grievances in the most humble and dutiful way that can be and puts them under a necessity of doing it with their Swords in their hands for there is but one of these two ways of letting the K. know their grievances there is nothing more fit than that Subjects tho' never so much opprest do first make known their sufferings in the humblest and most respectful manner that may be and not have recourse to more compulsive methods till no good is to be done the other way That Prince who is unwilling to hear the complaints of his People plainly intimates that he intends to govern them by the rod of his power and not by the equal and gentle methods of the Law and there seems to be no less a fearful expectation when the addresses of both or either House of Parliament don't meet with success but prove abortive for considering that the Nation does then Petition the K. in its highest Capacity it may reasonably be expected that those applications should be answered with effect unless the K. be wiser than all the World and such a Man was never yet found or else what the Parliament complains of is false or frivilous which is not easily to be suppos'd Then the Declaration reminds as of K. James's design to pack a Parliament that by the Peoples consent those things might be made a Law which he had done contrary to the right of the People and the Law of the Land which was to stab the Nation to the Heart For a Parliament is the Soveraign and only remedy for publick Distempers and if rightly apply'd works an infallible Cure but if it be corrupted makes the Malady how slight or inconsiderable soever to become Incurable He that desires to corrupt a Parliament leaves very little room to believe that the good of his people is the end of his Government for when a Prince looks upon it to be his Intrest to influence and byass the Parliament he cannot be thought to have some Interest with his People There are two ways to corrupt a Parliament The first is to influence the Elections so as to have Men chosen that will serve a particular purpose and design and 2dly if that fail to corrupt the Members by Places Pensions or good round sums of Money which is called Secret Service whereby the Nation becomes felo de se The last article against K. J. is that of imposing upon us a Prince of Wales This indeed if it were so is as great a Forgery and Cheat as ever was heard of but because those whom it more nearly concerns have not yet thought fit to inquire further into it I suppose it will not be expected that I should give any opinion of it at this time This is the substance of the charge brought by the P. Orange against K. J. I think I have not omitted any thing that is material but these are not all the irregularites that K. J. was guilty of yet are they sufficient to shew that his administration was inconsistent with the Rights and Liberties of English-Men and who is he that can imagin that there was any other means but force whereby we could recover our Rights they that think it could have been effected by gentler applications may as well pretend to bind the Leviathan with Cords Those that have
boasted most of Prayers and Tears when they have been touch'd by Arbritrary Power have found those things to be of no more force with a Prince that had will and means to be Arbitrary than the Cords on Sampson's Arms and then have they been very willing to make use of more violent applications For those who value themselves most upon this sort of Loyalty are generally such as are unconcern'd for the publick provided they can make themselves safe and may well be compar'd to the Fox in the Fable who having lost his Tail would have perswaded the rest to cut off theirs They that will not lift up their hand to save their Country are as much to be condemned as the Inhabitants of Meroz who were curs'd bitterly because they came not to the help of Lord against the Mighty Judges 5. v. 23. K. J. had so disjointed and made such havock of the Government that the first step towards the repairing our breaches was to lay him aside not out of any particular dislike to his Person but to his actions because what he had done was not to be suffer'd in any other Man for whoever shall hereafter do the like must expect the same measure K. J. being deem'd unmeet to sway the Scepter the next thing was to consider whether it was better to turn the administration into a Regency or clse to elect another in the Room of K. J. and after some time spent therein it was resolv'd as the best to place some other on the Throne because as that did make the least alteration that could be so whatever was amiss in the State would more easily be rectified than by another Method that was proposed Upon this give me leave to make one observation That altho' a Regency and a Common wealth are the same in effect being but several Names for the same thing yet there prevails an opinion where one would least suspect it That those who were for a Regency are the only men for Monarchy and that those who were for continuing the Administration under a King are for a Common-wealth how this opinion can be consistent with it self I do not apprehend unless that whatever is done for the good of the people brings us so much nearer to a Common-wealth and if so Kings will find it to be their interest as well as their duty to make their Administration easie to the people It being resolved to fill the Vacant Throne the Prince of Orange was presently thought on as the fittest of all others for the purpose not so much for having been the chief instrument of our deliverance tho a great deal was due to him from the Nation in point of gratitude But the Crown was offered to the Prince of Orange in hopes of having the effect of his Declaration for as it was his interest to perform what he had therein said and promised so the Nation was more likely to obtain a full redress of its grievances by him than by any other for he had the example of King James fresh before him he could not but very well apprehend that what could not be indured in King James would not be suffered in any other he knew very well that the Nation expected to have his Declaration made good to the full as well because he had promised as also because of the right they had to have their greivances redressed and that so far or so long as any part of it was denyed or delayed so far would the people be disappointed and think themselves deceived He could not but be sensible of the reproach and hazard he ran that having found fault with King James's Administration if he did not amend whatever was amiss and that to trifle with the Nation in any one particular would render all the rest suspected of what he had said or promised He told us in his Declaration that the greatness and security both of Kings Royal Families and of all such as are in authority as well as the happiness of their Subjects and People depend in a most especial manner upon the exact observation and maintenance of their Laws Liberties and Customs This so true a principle that he who governs accordingly cannot fail to prosper in all he puts his hand unto and he that says so and knows and understands what he says yet does not act accordingly cannot expect the love of his people He was very sensible how distastful a standing Army is to the Nation and much more when a considerable part of it is comopsed of Foreigners and that to increase the number of Foreign Troops would very much alarm the Nation unless it was by reason of scarcity of our own people or want of such as durst fight or for some such necessity and therefore to remove those apprehensions he promises to send back all the Foreign Forces he had brought along with him as soon as the State of the Nation will admit of it He promised to bring Ireland to such a state as that the Protestants and British interest may be there secured considering no doubt that as Ireland is the backdoor to England he could not be thought to be in earnest as to the good of England so long as he neglected the settlement of that other Kingdom because England can never reckon it self safe so long as things are out of order there having reason to sâ—spect that the irregularities in the Administration in Ireland will sooner or later affect England Lastly He promises to concur in every thing that may procure the Peace and happiness of the Nation which a free and lawful Parliament shall determine so that there may be no more danger of the Nations falling at any time here after under Arbitrary Government When the State is distempered a Parliament is so absolutely necessary that it is scarce possible to cure it without one but then that Parliament must be a free and lawful one as well in the manner of electing it as afterwards in their proceeding for if there be any foul play or underhand practice in the Elections or that when the Members come together they are over awed or corrupted this may have the name but nothing of the nature of a free and lawful Parliment and is like Physick ill prepared or applyed does more hurt than good In curing the distempers of the Government such reformation must be intire without any reserve for if any gap is left it will quickly let in as many irregularities as were before complained of for unless the very root and foundation of those distempers be removed it will prove no better than the skinning over of a Sore which whilst it seems fair to the eye is festring within and afterwards breaks out with greater Violence Upon a Revolution where the Government is Monarchical one of these things usually happens either that the King is continued in the Throne upon a new stipulation or contract between him and the people or else the Administration is put under a Regency
or have said that within such a time there will be a change or any other thing that tends to disturb the Government you ought to present it If any Parson or Vicar not having taken the Oaths has officiated at his Benefice since the 2d of Feb. last you ought to present them for it is as much an offence in them to officiate when they have not qualified themselves as if they had never been presented and their contempt is very great Gentlemen Tho I have not mentioned any other parts of your business yet I know you will not neglect them that which I have spoke to does so immediately concern us that I thought it necessary to inlarge upon it And since God has so wonderfully delivered us we could never answer it if we do not our parts for if we perish through our own neglect our blood lyes at our own doors and we deserve the burial of an Ass if we dye like Fools but I trust we shall not nor do I suspect you will be remiss in your parts and therefore I will trouble you no further but dismiss you to your business and I pray God direct you in it A Persuasive to UNION UPON King JAMES's Design to Invade England in the Year 1692. PEace in a Nation is like Health to a Natural Body whose Value is not sufficiently known but by the want of it God Almighty is wonderfully gracious to this Land not only in continuing to us the Blessing of Peace but teaching us the Worth of it by letting us see the Nations round about us at War and groaning under all the miserable Effects of it whilest it is kept at a distance from us and we are only at some Expence which is unavoidable all Circumstances considered unless we will submit to that Monster the French King and indeed God has done so many and great things for us that nothing is wanting to compleat our Happiness but our selves Of all the Mercies this Nation has lately receiv'd I think our Deliverance from King James was none of the least if it be a Mercy to be deliver'd from Popery and Slavery That we were in great danger of it I think 't was very evident from what we had suffer'd and King James had apparently further design'd to do had he been let alone a little longer for his Government was become so exorbitant that Men of all Persuasions many of the Papists not excepted did think his Yoak intollerable and that it was highly just to be relieved against his Oppression For when the Prince of Orange Landed there was scarcely any Man that appear'd for King James nay a great many of his Army deserted him which coldness and neglect could not probably proceed from any thing so much as from the ill opinion they had of his Cause Now if any that were then so indifferent and passive have now conceived a better opinion of him it may well be suspected that a particular pique or some sinister byass guided their Motion at that time and if so it 's no matter what side they are on for those who are govern'd in such Cases by any thing but a publick principle are easily turn'd about by every breath of Air. Nor can I imagine what can give any Man a better opinion of King James than he had of him before he went into France the only place as he says he could retire to with safety considering how improbable it is that any instructions which that Tyrant may give him will make him less inclined to Popery and Arbitrary Power I suppose it is no news to you that King James did lately intend to Land with a French Force I am persuaded that most people believe it they that don't may as well doubt whether there was a Gun-powder Plot for it is as plain as a thing of that nature can be which has not actually taken effect and it is as certain that he and those his good friends had been here several weeks since had they not been kept back by those Easterly Winds which continued so long Yet that did not break their measures it only delay'd the matter for at last they were ready to put all things on Board but were happily prevented by the wonderful Success of our Fleet for which the Name of the great God be prais'd The defeating of their design is a Mercy never to be forgotten for no design that we know of that was ever form'd against this Nation could be more bloody and destructive than this would have been For King James in his Declaration does expressly say That his intent is to spend the remainder of his Reign as he has always design'd since his coming to the Crown These words speak a great deal of Comfort to England for they cannot mean less than what he has already done When he took the Customs against Law Carried on Sham-plots by his countenance and bribery to destroy honest and worthy Men When he bereaved the Corporations of their Liberties and Franchises When he turn'd out Judges for acting according to their Consciences and filling the Benches with the Raff of the Gown When he avowedly set up Popery and erected publick Chapels in all parts of the Kingdom When he placed notorious Papists in the Seat of Justice and brought a Jesuit into his Councels which was more than any Popish Prince but himself ever did When he set up a High Commission When he set up in Time of Peace a numerous Army to the Terror of his Subjects and allowed so little for their Quarters as it amounted to little less than Free-quarter When he assumed a Dispensing Power and declared he would be obey'd without reserve These and a great many other Irregularities were the product of his Reign and it is not very probable that he is brought to a better temper by any thing that he has seen or learnt by his Conversation with the French King and it is as little probable that King would have treated him as he has done had he discover'd in King James any disposition to govern more mildly and reasonably for the future How much he is influenced to the contrary is very evident by designing to bring in the French upon us the people of all others this Nation ought most to dread â—n some Histories they are called the Old Enemy of England and very truly may be called the irreconcilable Enemy of England For who ever looks into Story will find that France has occasiond more trouble to England than all the World besides nay there has scarcely been any ill design against the Nation but France has had a hand in it as if their very Climate did necessitate them to be at Enmity with us If any of our Kings has design'd to enslave us they have entred into a Confederacy with France as the People of all others most likely to serve their purpose and it has always gone ill with England when our Kings have made an intimate friendship with the French
into Order and frâ— maintaining the Laws and supporting the Government Arbitary Doctrine never did any King good but has ruined many it shook King Charles the seconds Throne and tumbled down his next Successour and tho' such Kings are left without excuse when ruined yet I may say they only are not in fault for their Overthrow is in a great part occasioned by those who Preach up and advise the King to Arbitrary Power Did not other People cocker up and cherish Arbitrary Notions in the Peoples mind tho' such conceptions might sometimes get into his head yet they would never Fructify and come to Perfection if they were not Cultivated by Parasites who make their Court that way in hopes to make themselves great tho' with the hazard of their Masters Crown As it befell K. James whose Male-Administration rendred him unmeet to sway the Scepter and I am very well satisfyed that his Judgment was just for unless a People are decreed to be miserable which God Almighty will never do except thereto provoked by their Sins certainly he will never so tye up their hands that they shall not be allow'd to use them when they have no other way to help themselves Several Artifices were made use of in the two late Reigns for the introducing Arbitrary Power One of which was to insinuate into the minds of the People That the Succession of the Crown was the chief Pillar of the Government and that the breaking into it upon any pretence whatsoever was no less than a Dissolution of the whole Constitution and nothing but Disorder and Confusion would ensue This Doctrine prevailed with many and obtained no less than if the Crown had been settled in that Family by an Ordinance or Decree dropt from Heaven and that every one of that Line or Race had been distinguisht from the rest of mankind by more than ordinary Virtues and Indowments of Mind and Body But we know not of any such Divine Revelation and happy had it been if that Family had been so signal for its Justice and Piety we might then have prayed that there might not want one of them to sit upon the Throne to all Ages How much this Nation is obliged to that Family we very well Remember for the Wounds they gave us are not yet healed Election was certainly the Original of Succession for as the Living more safely and with the freer enjoyment of their Goods was the Original Cause that people Associated themselves into a Nation or Kingdom so for the better attaining that End did they set over themselves the best and Wisest of their Brethren to be their Rulers and Governours and this Administration was trusted in one or more hands according to the temper and Disposition of the People in which Authority they continued either for their Lives or for one Year or some other stated Period of time Where the Government was under a King he usually held it for Life and then upon his decease the People proceeded to a new Election till at last it fell into the hand of some very excellent Person who having more than Ordinarily deserved of his Country they as well in Gratitude to him as believing they could not expect a better Choice than in the Branches that would grow out of so excellent a Stock entailed that Dignity upon him and his Posterity This seems to be the most natural and Lawful rise of Succession I don't deny but some Successions have arisen from force but that was never lasting for that could not subsist or seem lawful longer than there was a force to support it Now those that come to the Crown by the first way of Succession I mean by the consent and approbations of the People does it not plainly imply that they ought to use that power for the good and advantage of their Subjects and not to their hurt and enjoy their Crown only upon that condition no man would ever suffer a Monster to inherit his Estate and Kings are no more exempted from the Accidents of Nature than their meanest Subjects and it is every days practice in private Families to exclude those that will waste their Estate and ruine the Family and if the Reason will there hold good then it is so much stronger in the descent of the Crown by how much the good of a whole Kingdom is to be preferred to that of one private Family Succession is not so very ancient in England as some People may apprehend till the time of William Primus commonly called the Conqueror it was lookt upon as a very precarious Title The next in Succession could reckon very little upon the Crown further than his good Inclinations and Sufficiency to Sway the Scepter did recommend him it being then very common not only to break into the Succession but even to set aside all that Family and Line when ever it was found that the Publick might suffer by their being at the head of the Government the Publick Good being the only Rule and Consideration that Govern'd that point William Primus upon his Death-bed declared that he did not possess the Crown by an Hereditary Right Heary Primus in his Charter acknowleged to hold his Crown by the Mercy of God and the Common Council K. Stephen Henry 2d Rich. Primus and King John all came in by Election so that till Henry 3d. there is scarcely to be found any Precedent of Succession since his time the Succession has been broke into several times and the Crown shifted from one Family to another by Act of Parliament and being so transferred by that Authority is the greatest Proof that can be that Succession is a very feeble Title without something else to support it and I think I may say Defective For says one of great Authority Never did any take pains to obtain an Act of Parliament to settle his Inheritance on his Heirs except he were an Alien or Illegitimate and therefore considering That by vertue of an Intail of the Crown by Act of Parliament in Henry the Sevenths time it is that the four last Kings have swayed this Scepter I could never understand that Divine Right that was by some stampt upon their Title to the Crown or that the Succession was preferrable to the Publick Good I have endeavoured to explain this point the more by reason that some object against the sufficiency of This Kings Title to the Crown because the Succession was broke through to let him into the Throne as if nothing could give a King a good Title to the Crown but Succession For my part I never saw any reason to be of that Opinion and if there be nothing but the Interruption of the Succession to object to this Kings Right if he continue to govern according to the Principle upon which the Crown was given him and according to the laudable Customs of the Realm I think that every man that wishes well to the Interest of his Country ought to bless God for this Revolution
but you will do your best to reform this great Evil. The next thing I would recommend to you is as far as in you lyes to suppress that horrible sin of Customary Swearing Whereby the tremendous Name of God is every day Blasphemed It 's too true that scarcely any man when provokt or in passion but it s too apt to take the Name of God into his mouth and if any of us fall into that misfortune we ought solemnly to beg Forgivenness for it but that whereby God's Honour suffers most is the Customary Swearing when men don't think that they express themselves handsomely without an horrible Oath or more in every Sentence Thus the petty Constables ought to prevent at every Months Meeting and if you know any have neglected to do their Duty herein I hope you won't fail to let us know their Names that we may punish them as they deserve It is a very shameful thing to see how very much the High-ways are generally out of repair the fault of which does mostly lye at the door of the Overseers who because they are not easily punisht are very remiss and take no further care than to Shufflle the Matter off for their time being not much concern'd for what comes after and by this means brings at last a great Burthen upon the Township which would have been prevented by a small thing if taken in time and so the Township suffers for their Neglect This Gentlemen is worthy your care to present the Defaults in High Ways There are very good Laws against Vagabonds but the Execution of them are shamefully neglected and its strange it should be so considering that the Law incourages the apprehending of such idle people For whoever brings one of those Wanderers before a Justice of the Peace the Township through which he last past unpunisht is to pay him two Shillings tho' this reward carry no weight with it yet the great Mischief that those sort of people bring upon the publick should make every body Vigilant It is an incredible Sum that they cost the Nation in a Year and how many Townships and Parishes are opprest and almost ruined by the Charge those people bring opon them It is wonderful that people should rather choose to forswear themselves than do their Duty But so it is in this Case If these Wanderers were duely punisht it would reform many of them and discourage them from following so bad an Example whereas the great remissness of Constables and other Officers in this point is a great Temptation to many who otherwise would think of some more lawful Imployment a neglect and slowness to punish increases the number of Offenders A SPEECH Of the Earl of WARRINGTON Of Tyranny Liberty Religion and against Vice Gentlemen IT is a very common saying That Interest will not lye and yet if you consider it you will find that there is scarcely any thing more difficult than to perswade People to their Interest a thing mightily to be wisht because if it were universally understood and practiced it is the thing of all others that would make this World a happy place for then there would be no need of Laws and Magistrates to preserve Peace and good Order by reason that every man would be restrained by that Law within himself which is the Foundation of all other Laws I mean that Principle of Reason and Justice with which he is Born But when man fell from his primitive Innocency he lost that guide which should happily have conducted him through this World and instead of following the dictates of his Reason he suffered himself to be led away by his passions and without any regard to Justice made his Self-Interest the Standard of his Dealings with others which is the direct way to ruine that which he aimed at for if a man acts without regard of Justice to others he has little reason to expect that Justice should be done him for why should he imagine that others should take care to do him right who has no other Consideration but for himself So that in point of Interest as well as Justice every man ought to have a Mutual regard to the good of each other and because it is so intirely neglected therefore were Laws made to withold men from committing those Acts of Injustice and Violence which their own Consciences tells them ought not to be done From this depraved Inclination do proceed all those Disturbances and Disorders that infest any Government and have often been fatal to the whole Constitution There having at all times and in all places been sound those who have been disposed to Sacrifice their Liberties and Civil Rights to serve the desires and lusts of Arbitrary Princes It is surely a great Sickness of the mind when a man gives up his Birth-right in exchange for something that depends upon another mans Breath and he must be beside his Wits who lightly esteems his Liberty which is the thing that chiefly distinguishes him from a Beast for when a man is a Slave he must submit his Will and Reason to the Humor of him who Governs him and then what difference is there betwixt him and a Brute only that his Condition is the worst of the two If no body but themselves were to feel the Effects of the Servile Compliance the matter were not much if they perished by their own Folly for why should they expect to thrive better than Esau did who sold his Birthright to save his Life and therefore instead of a Blessing received a Curse For can they who reject God's Mercy hope to intail a Blessing upon their Posterity these are the Sower Grapes that set the Childrens Teeth on Edge for tho' the Father may be so fortunate as to go to his Grave in his Princes Favour a happiness to which few have attained who have purchased it by being false to their Country yet it is a Dargerous Experiment for his Posterity to whom there is seldom left any thing more than to inherit the Wind. Now If the Mischief of this Time-serving had ended with this sort of Men and their Posterity the Complaints against it might have been buried with them and their Families for his Infamy ought to be had in Remembrance so long as the Sun and Moon indure who is the Instrument of his Countrys ruine for by this Treachery has whole Kingdoms been brought to desolation which before were in a flourishing Condition Justice was duely executed full Employment for all hands a quick Trade and every man sate with Security and Pleasure under his own Vine This is so deplorable a Change as no Tongue is able to express then let every man consider it in his own Thoughts and he will discover how valuable a thing his Liberty is even preserable to any thing else this World affords For Liberty is the Foundation of Virtue and Industry what does any thing else signify without it For when that is gone as our Lives and Fortunes depend upon another
Throne and not to ease the Nations Oppression so that in such Cases a Revolution does the People no good for he that has got the Crown thinks that whatever is done for the Good and Security of the People is so much lost to him of what he hoped to get by coming over A third Reason may be this Because he may presume upon the good Opinion the People have of him supposing that they will put the best Construction upon all he does and look upon those things to be but Mistakes and consequence of want of Information which are the result of a formid Design Or else because he may Imagine that altho' he does to a great degree act over the Part of him who was thrust out of the Throne yet that the People will not feel the lash so sencibly because it comes from his hand This when ever it happens is a thing of so foul a Complexion that it deserves as ill a name as can be given it and yet I fear there does not want Examples of it It is a Mistake and a dangerous one to consider the Person more than the thing that is done as if the person made the thing better or worse than it otherwise would be Men indeed differ from one another and do the same thing in different ways and manners but yet every thing is still the same whoever he be that does it if there be any difference it lyes in this that the better Reputation he has who does an ill thing so much the greater is his Reproach especially if it be a thing that he has reproved and punisht in another This Judging the thing by the Person is that by which commonly men deceive themselves so very much or else they would make a righter Judgment than for the most part they do How happy is that Prince then whilst he is on this side the Grave and how glorious will be his Memory who is not afraid or shy to have his Actions examined that mankind as well as his own Conscience may bear him Testimony that he Governs according to Law and makes the good of his People the End of his Government Before I proceed any further I would be rightly understood in what I have already said because possibly either through Mistake or Malice some may infer that I would perswade you to take more care of your Liberty than of Religion by reason that I have said so much of the former But far be so Atheistical a thought from me I bless God it never yet entred into my heart altho' I am not so Religious as I ought to be yet I think our Religion to be more valuable than any other thing whatever for if God should take away the Light of his Gospel from us it would be the severest Judgment that he could visit us with and have therefore pressed you to take care of your Liberty as the surest means by which you can preserve your Religion and in so doing I conceive I have shown a Zeal rather than a neglect of it It is to be wisht by all those who desire the Peace of their Country that Religion were more in fashion than it is For no Nation ever did thrive where it was neglected and it is to be feared that God will have a controversie with this Land if Swearing and Drinking which are now become so common be not speedily suppressed and the Corrupt Manners of the Nation reformed But before I speak more particularly upon them give me leave to observe something thing to you upon two things which are very injurious to Religion and yet are done out of a pretended care and tenderness for it The First is When Protestants break into several Sects and distinct Congregations and not being content with Worshiping God in their own way are uneasy at all others who follow not with them Every one being assured that they are not mistaken that they will not allow any but themselves to be in the right and thereby leave the excellent Rule of Charity to follow a blind Infallibility 'T is true indeed whilest we are upon Earth we shall have different Sentiments and Opinions and it is not possible for me to help it because our Reason is so short sighted and Pur-blind But yet we may all agree to have a mutual Charity for one another and then every man will be the better for his Religion and no body will be the worse for it For otherwise instead of promoting Religion we eat out the Bowels of it that is we destroy that Charity without which we cannot enter into the Kingdom of Heaven But alas it is come to this That one is for Paul another for Apollo and a third for Caephas One asks of such a one Is he a Son of the Church a second inquires Whether he is of such a Congregation A third demands to know if he follows such a man if so all is well and with them he must pass for a good man without examining into his Life and Morals But what does all this amount to am I the better for being of such a man's Opininion or of such a Communion unless I am a Doer as well as a Hearer of the Word Or what is another man the worse because I am not of his own Opinion if he live a better life than I do This Zeal for a Party is a Zeal rather to be reproved than to invite others to the practice of it for it is not an Argument of Religion but a sign of Pharisaical pride when a man is uneasy with another because he worships God in a way different from him For if any man desire to live becoming the Gospel of Jesus Christ and to that End does daily try and examine himself he will find more to be amiss there than he can discover in others and therefore to lead a good Life is the best Argument that any man can use to perswade another to be of his Opinion The next thing which is Injurious to Religion is when the Discipline and Government of the Church interferes with the State breaking into the Methods and Foundation of it and to advance the Power and greatness of the Clergy This soon becomes Mischievous to Religion For as it does in no sort prompt God's Glory or tend to the reforming of Mens manners c. When the People find their Liberties Crouded to make Elbow Room for the Clergy and that the Government of the Church will help to make them Slaves they will be very apt to abhor the Offerings of the Lord. And therefore in all well regulated Constitutions the Government of the Church is moulded according to the Principle upon which the Civil Government stands for if the Church were to Model the State Christ's Kingdom would be of this World which he has expresly told us is not Is not that People then in a sad condition when that what is amiss in the State must not be Reformed for fear of hurting the Church as
mean when Queen Elizabeth's Eyes were closed for from that time has this Government declined as if she had been the Life of it and that when she dyed it expired with her For the first Statutes now in force for the punishing of Drunkenness were made in the reign of King James the first and therefore it 's more than probable that till then this Vice was not grown up to a considerable Size It is strange that men can't enjoy one another without making their Conversation to become a Sin and that when People meet to be Merry they think they have left their Work unfinisht unless they transform themselves into Beasts and so great a force has it with many That they choose rather to be clothed with Raggs than to keep from the Spiggot It has brought many a man to a Morsel of Bread who was well to live before he fell into that Sottish course It is not for want of a sufficient punishment that it is grown to so great a height for per 4 Jacob. C. 5. He that is Drunk forfeits five Shillings or for refusal or want of Ability to pay it to be set in the Stocks Six Hours And for preventing of such Intemperateness per same Statute it is provided That he who remains Tipling and Drinking in any Inn Victualling-House or Ale-house shall forfeit three Shillings and Four Pence or be put in the Stocks for four Hours And by the same Statute it is provided That he who having been Convict of Drunkenness shall be again Convict of the like Offence He shall be bound to his good behaviour How this Law comes to lye asleep I know not for a Law without Execution is but so much Ink and Parchment and I cannot Imagine wherefore no more are punisht than there is considering how vast a Multitude they are that offend herein unless it be because the thing is become so common that people don't look upon it as an offence or else because the infection is so general that men think it unreasonable to have another punisht for that of which he is guilty himself But I am sure there ought to be a Reformation because the Honour of God suffers so extreamly by it and upon a Political account it ought to be suppressed Because as whole Families are impoverished and ruined by it so Mens Bodies are infeebled by it and rendered unfit for Labour and the Service of the Publick Inns Ale-houses and Victualling-houses are for relief of Way-fairing men Travellers and such others as cannot otherwise supply themselves with Meat and Drink and not for harbouring of lewd and idle people to consume their time and Mony in Debauchery as is declared per Stat. 1. Jac. C. 9. The Gains which are earned by relieving such Persons as the Law allows are honest and justifiable but a Curse must follow what is now â—â—ally got by Inns and Ale houses who can suffer People to be Drinking in their Houses till unreasonable hours in the Night nay even on Sundays and that too during the time of Divine Service and Sermon and there to be spending their Mony when at the same time they know that their Families at home are starving for want of it Did Tipling-houses consider what a Risque they run surely they would take more Care For when they receive their Licenses to sell Ale they enter into a Recognizance with Sureties To keep good Order in their Houses per Statute 1. Jac. 9. Every Innkeeper Victualler or Ale-house-keeper forfeits ten Shillings that suffers any to sit Tippling in their Houses except Traveliers or such as have not the Convenience of Eating and Drinking elsewhere Per Statutes 7. Jac. 10. and 21. Jac. 7. It is provided That any who shall offend against the Statutes made against Tipling and Drinking shall be disabled for three Years from Selling of Ale and besides a Conviction in any of these Cases is a Forfeiture of the Recognizance which they enter into when they are Licensed to sell Ale Such care has the Law taken but things are at that pass as if Drunkenness were no Offence or that there is no Law to punish it I cannot but observe to you how Providence has order'd things for the punishment of Ale-sellers almost in their own way For tho' Quartering of Soldiers without Satisfaction to the Houses is a very Illegal and Arbitrary Practice yet it may in some sort be just as to them they received thereby that Measure which they have Meeted to others These two things Gentlemen I do more especially recommend to your Inquiry because they do so immediately concern the Honour of God and Peace and Happiness of the Publick Besides them whatever is an Offence against the Publick Peace falls within your Inquiry and I believe you so well know them already that I will not loose your time in repeating of them Nor will all that you or any of us can do signify much till Debauchery is supprest and the Manners of the Nation are reformed whilst we bid God Defiance with our Lives and Conversation we cannot hope for success either in our Fleet or Army let our Courage and Conduct be never so great and tho' the supplys we gave to carry on the War were much greater than they are if we will not take Warning in time but go on from Sin to Sin this War by which we hope to secure Peace to our selves and Posterity may prove our ruine by Spinning it out so long till the Purses of the People are so Drain'd and the Nation so impoverished that it will be an equal Choice whether we have Peace or War being either Way exposed to the like Inconvenience There is some great let or hindrance lyes in the way of our Happiness or else why do we at this day stand looking upon one another like the Sons of Jacob as if we were at our Wits end not knowing what to think or expect notwithstanding the great Deliverances that God has wrought for us for we have been wonderfully preserved but not by our own Wisdom or Conduct for we have made no other use of those several Advantages which God has put into our hands but as if we expected that he would repeat his Miracles to preserve us Wherefore he has so signally appeared on our behalf no man can determine yet a Guess may be made for if his Mercies have their proper Effect upon us by turning us from the Evil of our Ways he will do more and greater things for us But if we make him no other return for all his Benefits than that of an unthankful and hardened heart Then has he shewed these great Signs amongst us that he may be Justified when he Judges and we be condemned out of our own Mouths which God of his Mercy prevent and to that end let every Man do his Duty at all times and at all Seasons and mind the Publick more than his own particular Advantage Let neither the Frowns nor Favour of Men tho' never
gave him the Crown and he soon perceived that there was no Rest for the Sole of his Foot till he had taken the Coronation Oath and had sworn to maintain their Laws and Properties Some little Irregularities must be admitted in a time when things are unsettled but it will scarcely be found that any man was disceased of his Freehold but only such whose Demerits render'd them unworthy of them and from his time the Norman Government proceeded upon the Saxon Principles for King William by the Advice of his Nobles caused a select number of Men out of every County to be summoned who were to set down their Laws what they were in Edward the Confessor's time for it was he who had collected the Laws which at this day is called the Common Law Then after him William II. and Hen. I. succeeded each other and their Title was by Election of the People for Robert their elder Brother was alive and saw them both preferred to the Crown and he never enjoy'd it for he died a Prisoner at Cardiff Castle in the time of Hen. I. The next was K. Stephen who was second Son to Adela Daughter to William the Conqueror he was chosen by the People for he had an elder Brother whose Name was Theobald and there was Maud the Empress Daughter to Henry I. and both these were nearer by descent than he After him came Hen. II. he came in by Compact between K. Stephen himself and the Nobles and the good liking of the People for Maud his Mother was alive and by descent it belonged to her Then Richard I. was elected in his Father's Life-time and received Homage from the Peers King John was chosen by the People or else Arthur his elder Brother's Son who was then living would have succeeded Richard I. Henry III. came in by Election for Lewis the French Prince pretended to the Crown several of the Nobility having called him into their aid against King John and had sworn to him but the Fall of Pembrook who had married Henry's Aunt stuck to him and got him crowned by the consent of the Nobles and People after that he had taken the Coronation Oath and made other promises to the People Edward I. being out of the Land when his Father died was chosen by the consent of the Lords and Commons and I find that the Nation was sworn to the Succession of Edward I. before he went to the Holy Land Edward II. being mis-led by his Favourites was deposed and his Son Edward III. was declared King in his Life-time Richard II. Son to Edward the Black Prince was deposed for his Evil Government Henry IV. came in by Election of the People and though upon occasion sometimes he might pretend to several other Titles yet he found them unstable and to make sure he got the Crown entailed by Act of Parliament and so came in Henry V. and then his Son Henry VI. but he being found unmeet for Government enclining too much to the Counsels of his Wife who was a Foreigner and neglecting the Advices of his Parliament he was deposed and Edward IV. who was E. of March whose Father the D. of York by Act of Parliament was declared Heir apparent to the Crown and afterwards slain in the Battel at Wakefield He I say was Elected and afterwards Henry was restored and Edward set aside but at last Edward was setled and dies and the Crown came to his Son Edward V. who lived no longer than to be put into the Catalogue of our English Kings and then Richard III. was confirmed King by Act of Parliament for Elizabeth Daughter to Edw. IV. was living who afterwards was married to Henry VII and by right of descent the Crown belonged to her and he had no Title but what the People gave him Henry VII came in by Election for his Wives Title preceded his and there was also Edward Plantaginet Son to George D. of Clarence had an unquestionable Right before him if Descent might take place but to clear all doubts he got the Crown setled by Act of Parliament upon him and the Heirs of his Body successively for ever and upon that came in Henry VIII and in his time the Crown was limited three several times by Act of Parliament and there succeeded upon those limitations first Edward VI. then his Sister Queen Mary by Katherine Widow to Prince Arthur and then Q. Elizabeth by Ann Daughter to Sir Thomas Bullen and in the thirteenth year of her Reign a Law was made whereby it is made penal if any say that the Parliament cannot limit the Succession And now Sir I have given you a just account how the Crown has been disposed and if I should say no more I think that this of it self might convince any impartial man that the Crown till King James was in the Peoples dispose But that I may leave no place for doubt I will say something to those things which are so frequently objected and I will begin with that which says as follows Although there be many Instances where the Crown has leaped over the right Heir by descent and has lit upon the Head of another yet say they there are several Instances both before the Conquest and since where the Son has succeeded to the Father and that these are chiefly to be regarded because most agreeable to the Word of God which tells us That by me Kings reign c. and that the presidents that are otherwise are no better than Usurpation and not to be esteemed as legal but to be forgotten as Errors in the Government I acknowledge there is such a Text of Scripture but I must deny that it is to be taken in the literal sence for otherwise the King must be look'd upon to receive his Soveraign Power immediately from God without any regard had to our Laws and Constitutions and then he is King Jure divino and no Bounds or Limits of Humane Contrivance can be set to his Will but we are wholly at his Mercy and Pleasure and Magna Charta and the Petition of Right are waste Paper nay it not only destroys our Government but it puts an end to all other Constitutions in the World But the true meaning of the Words are That Kings are to be obeyed and that they are to govern under God according to the Laws of that Government and that they are to administer the Laws and Justice according to the Rules and Directions of that Constitution and not that Kings hereby shall have a Warrant to be unjust or govern arbitrarily But because there are some Instances where the Son has succeeded to the Father that therefore the Crown comes by descent I cannot grant for this Island has seldom been free from War and then the People are not at leisure to regard every Particular of their Right but are willing to have it at an end upon any terms and are not then so regardful under whom they enjoy their Liberties and Properties as that they
yet if the King think good to question it the party must yield it up without insisting upon his Right for the Reason given by the learned Judge for the same Reason every Peer if denied his Writ must not demand it nay he must surrender his Patent and renounce his Title as far as in him lies if the King require it And for the same reason when any man is called to an account for his life he must make no defence but submit himself to the King's Mercy for all we have is from the King and nothing must be disputed when it is his pleasure to question it This is indeed to make the King as absolute as any thing on Earth can be yet is withal to make him the most unjust Prince that ever sate on the English Throne This sort of Justice is learnt from Children whose Gifts continue good no longer than the Donor remains in that kind mood Surely nothing can more reflect Dishonour upon the King for it makes him as unjust and uncertain as any thing can be both which should not be in the Temper much less in the Actings of a Prince Another Reason was given I think by the Chief Justice or else by Mr. Justice Holloway because it was absolutely necessary for the securing of the Peace it was urg'd so far as if the Peace could not be secured without it Surely all this must be but gratis dictura for my Lord Devonshire by finding Sureties had done all that the Law does require for securing the Peace unless they had clapt him up a close Prisoner which they could not justifie if he tender'd Sureties and therefore either my Lord Devonshire is different from all Mankind and a different method must be made use of to secure the Peace or else this Argument of theirs savours not so much of Reason as of something else that ought to be no Ingredient when they give Judgment in any Case and it surpasses common sence to understand how the over-ruling my Lord's Plea could tend to the securing of the Peace either the Security which he had given must awe him to keep the Peace or the other could not for he had broke the Peace again and repeated it several times before he came to his Trial yet that could not effect the Merits of the Cause neither could it be given in evidence at the Trial so as to alter the state of the Fact neither could the Judges by reason of it enhaunce his Punishment if he were found guilty but they must look upon it as a distinct Offence and so might require the greater Security for the Peace and for a longer time Indeed it is an effectual way to prevent a man from breaking the Peace to lay such a Fine upon him as is impossible to be paid immediately and to commit him till payment It is too probable that the Judges being concious how liable they have made themselves to be called in question for this Sawciness and trampling upon the Law would debase and bring under the Credit and Authority of this Court because no other can take cognizance of their proceedings so as to correct their Errors and Mistakes it is only here that they can be called to an account for what they do amiss no Court can punish them but this so that if they can once top your Lordships there is nothing that they need stand in awe of nothing to restrain them but they may act ad libitum not per legem for let this Court be deprest and they may say Of whom then need we be afraid By what they have done already they have sufficiently shewn to what Extravagances they will proceed when they think themselves to be out of the reach of this Court If once the King's Bench can set it self as high as the Judges have attempted by this proceeding against my Lord Devonshire then must the whole Nation your Lordships not excepted stoop to all the Extravagances and monstrous Judgments that every corrupt and ignorant fellow shall give who shall chance to get up to the Bench and not only this present Age shall feel and undergo the Mischief but it will be entail'd upon all succeeding Generations Well then did the Judges attempt that which would bring your Lordships so low and raise their Court so high to set it above all reach or controul especially if they did promise to themselves Impunity if not Reward which they might have expected had it been in the Reign of an arbitrary Prince who would be a great gainer by the fall of this Court because then the Skreen betwixt the King and People is taken away This is the first time that an inferiour Court did take upon it to invalid the Priviledges of a superiour Superiour Courts do sometimes set aside the Orders and Proceedings of Inferiour Courts and yet in that case they proceed with that caution that it is never done but when there is manifest Error and the Law not duly pursued and observed but in no case was it known that they ever meddled with their priviledges If what the Judges have done is good I cannot tell what Power and Jurisdiction they may not pretend to for no bounds nor limits can be set to the King's Bench it may assume as great a power in Civil Affairs as the High Commission does in Ecclesiastical in their Actings not to be tyed up to any Rules or Method but to vary and alter them as well as the Law when occasion or humor serves the proceedings shall be as summary or as delatory as they think fit and your Lordships shall no more than other people be exempted from the exercise of that power Therefore if your Lordships will not prevent the Mischief from spreading it self over the whole Nation yet I hope you will take notice of the Injury you have suffer'd in the Case of my Lord Devonshire and to do your selves Right The Law has for the most part left Fines to the Discretion of the Judges yet it is to be such a Discretion as is defin'd by my Lord Coke fol. 56. Discretio est discernere per legem quid sit Justans not to proceed according to their own Will and private Affection for Talis discretio discretionem confundit as Wing at says fol. 201. So that the Question is not Whether the Judges could fine my Lord Devonshire but Whether they have kept themselves within the bounds and limits which the Law has set them It is so very evident as not to be made a Question whether in those things which are left to the Discretion of the Judges that the Law has set them bounds and limits which as God says to the Waves of the Sea Hitherto shalt thou go and no farther for either they are so restrained or else the Law does suppose them to be exempted from those Frailties and Passions which do attend the rest of Mankind But as they cannot be suppos'd to be void of Passions and Infirmities no less than other
Men so it cannot be imagin'd that the Law has left Men to so wild a Justice as is guided by Passion and Affection for it had been so great a Defect in the Constitution of this Government that long before this it would have been reform'd And as it is most clear that they are thus restrain'd so those bounds and limits are no less known to them that are acquainted with the Law there are two things which have heretofore been look'd upon as very good Guides 1st What has formerly been expresly done in the like Case 2ly For want of such particular Direction then to consider that which comes the nearest to it and so proportionably to add or abate as the manner and circumstance of the Case do require These were thought very good and safe Directions till it was declared and ever since has been practised in the King's Bench that they did not regard Presidents but would make them and for ought that I can learn or find this of my Lord Devonshire is an Original What Obscurity soever may be pretended in other Cases yet in this the Law has given so positive and plain a Direction that it seems very strange how they came to lay a Fine of 30000 l. upon my Lord Devonshire The Court of Starchamber was taken away because of the unmeasurable Fines which it impos'd which alone was a plain and direct prohibition for any other Court to do the like for otherwise the Mischief remain'd for what Advantage was it to the Nation if it had not been wholly supprest the shifting of Hands gave the People no Ease in the Burden that lay upon them it was all one whether the Starchamber or King's Bench did crush them by immoderate Fines But to put all out of dispute the Statute 17 Car. says expresly That from henceforth no Court Council or place of Judicature shall be erected ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath been used practised or exercised in the said Court of Starchamber And this was upon very good reason because those great Fines imposed in that Court were inconsistent with the Law of England which is a Law of Mercy and concludes every Fine which is left at discretion with Salvo Contenimento If the Fines imposed in the Starchamber were an intolerable Burden to the Subject and the means to introduce an Arbitrary Power and Government as that Statute recites the like proceeding in the King's Bench can be no less grievous and must produce the same Evil. Laws that are made upon new occasions or sudden immergencies the Reason upon which they were made may cease and consequently they do cease also but Laws that are grounded upon the ancient Principles of the Government cannot cease because the Reason of them will ever continue and this Statute of 17 Car. being such no doubt holds good and is now in as much force as the first moment in which it was made and therefore this Fine imposed on my Lord Devonshire is in open defiance of that Statute I think no man can altogether excuse my Lord Devonshire for my part I don 't but think it was a very inconsiderate rash act and I believe the Indiscretion of it abstracted from the Fine is a very sensible trouble to him yet if those things were wanting which may be urg'd in his excuse the Offence and Punishment don't seem to bear proportion Could not the Merits of his Father be laid in the balance nor the Surprize of meeting Coll. Culpepper for my Lord having been abused by him a man of so great Courage and Honour as my Lord Devonshire must needs feel and remember it a long time having received no satisfaction or reparation made him for it but if there were nothing of this in the Case could all that may be said to alleviate his Offence be urg'd against him with a double weight were the Circumstances of the Fact as foul and aggravating as the Malice of his Enemies could wish yet surely a less Fine might have serv'd for the Law casts in a great many grains of Mercy into every Judgment and has ever look'd upon a over-rigid prosecution of the Guilty to be no less Tyranny than the prosecution of the Not guilty because it is Summum jus and has declar'd that to be Summa Injuria But besides all this I do conceive with submission that where the Law has intrusted the Judges with a power to fine it is in a much less degree than they have done in this Case First because the Law is very cautious whom and with what it does intrust it reposes a great confidence in the King yet in some cases his Acts are not regarded by it as the King can do no Ministerial Act a Commitment per speciale mandatum Dom. regis is a void Commitment Where there lies an Action in case of Wrong done to the Party the Acts of the King in those cases according to the old Law Phrase are to be holden for none Secondly Because Liberty is so precious in the eye of the Law it is of so tender a regard that it has reserv'd the whole dispose thereof to its own immediate direction and left no part of it to the Discretion of the Judges and what the Law will not suffer to be done directly it does forbid that it be done indirectly or by a side-wind and so consequently the Judges cannot impose a greater Fine than what the Party may be capable of paying immediately into Court but if the Judges may commit the Party to Prison till the Fine be paid and withal set so great a Fine as is impossible for the Party to pay into Court then it will depend upon the Judges pleasure whether he shall ever have his Liberty because the Fine may be such as he shall never be able to pay And thus every Man's Liberty is wrested out of the dispose of the Law and is stuck under the Girdle of the Judges Thirdly Because the Nation has an Interest in the Person of every particular Subject for every Man either one way or other is useful and serviceable in his Generation but by these intolerable Fines the Nation will frequently lose a Member and the Person that is Fin'd shall not only be disabled from doing his Part in the Common-wealth but also he and his Family will become a Burden to the Land especially if he be a man of no great Estate for the excessive Charge that attends a Confinement will quickly consume all that he has and then he and his Family must live upon Charity And thus the poor man will be doubly punish'd first to wear out his days in perpetual Imprisonment and secondly to see Himself and Family brought to a Morsel of Bread Fourthly Because in all great Cases and such as require a grievous Punishment the Law has in certain awarded the Judgment and next to Life
but told the Parliament to their Face that he had so done and was resolv'd to proceed and he was as good as his word for he made Popish Officers Justices of the Peace and Judges upon which Loyalty began to decline for they fell away from him every day more than other But he stopp'd not here for that he might disoblige the Tories and Clergy as well as he had the rest of the Nation the Papists excepted he set up the High Commission and then the Declaration of Indulgence and for refusing to comply with it he clapp'd up seven of the Bishops in the Tower I am far from detracting from the Praise that is due to that Action of the Bishops yet give me leave to say the Merit of it is not so great as many have cry'd it up to be for they refused to read the Declaration more out of Self-Interest than out of regard to the Publick otherwise why did they not refuse to read the Declaration of Charles II. upon his dissolving the Oxford Parliament which struck more directly at the Heart of the Government than King James did yet not one Bishop refused it and accounted every one disaffected to the Government that did dislike it And that which further prevails with me to be of this Opinion is because some of these Bishops at this time refuse to take the Oaths It would be endless to run through all the Particulars of King James's Exorbitant Reign but in short he had turn'd the Government on its Head and was resolv'd to set up Popery instead of God's true Worship and his Absolute Will and Pleasure in the room of the Law and had fully accomplish'd his purpose if God had not sent us a Deliverer by whose assistance we thrust him from the Throne For having broke his Coronation-Oath and the Condition upon which he receiv'd the Crown he thereby lost all the Right of swaying this Scepter And by a just and real Authority with which the People of England are invested upon such occasions has the Nation by a full and free Consent placed King William on the Throne who I trust will be the Repairer of our Breaches How then ought we to rejoyce what cause have we to be thankful for such a stupendious Change when we had nothing but a fearful looking-for of utter Ruine we now enjoy the Protestant Religion instead of Idolatry and a just and equal Government instead of Slavery and all this brought about without the expence of Blood So that I stand amaz'd when I hear of any that are for recalling the late King James if there be any such I hope I shall not be accounted severe if I wish they were with him for I think it would be best and safest for them and every body else Can any Man be so senceless as to desire to set that man over them again who had once destroy'd their Religion and Liberties and had justly forfeited his Crown by Male Administration for when the King denies his Protection the People are discharged of their Obedience to him because the Obligation of Protection and Subjection is reciprocal Nay I may presume to say that the People have a greater Right to be well govern'd than any King can have to his Crown for their Right of being well govern'd was first in Nature and secondly it is necessary to the being of Mankind but so is it not that this or the other man be on the Throne nor even the form of the Government it self for that sort of Government is most necessary that is best for the Common Good We now fit safely under our Vines and Fig-trees and every man may Worship God without being hawled to a Goal the Bone is taken away that the Papists used to throw amongst Protestants to set them together by the Ears And truly it was always my Opinion that it would never go well with England till every man might worship God in his own way And this being thus happily accomplish'd I do beg your permission to offer my Advice which is this That all Protestants would now unite against the Common Enemy and forbear all Distinctions and Revilings though we may differ in some things yet let us neither reproach him that goes to his Parish Church nor be scandaliz'd at him that goes to a Barn let no man be offended at a Liturgy or set Form of Prayer nor think extempore Prayer is unacceptable to God every Tub must stand on its own bottom therefore let every man be more careful to mind and mend his own Failings than to observe the Faults of others let every man live up to the Doctrine he professes and sincerely act according to his Principles and prefer the publick before any private Interest and then it will go well with them here and hereafter Thus have I given you my scatter'd Thoughts which I have endeavour'd to put together as well as I could with the short leisure I have had As to the particular Business of this day it would be needless to offer you any Directions your Oath has sufficiently instructed you and I suppose most if not all of you understand your Duty as well as I can inform you therefore I will only say that whatever is an Offence against the Law is presentable by you Your Country has reposed a great and honourable Trust in you and I don't doubt your good and faithful discharge of it only this I desire to recommend to you That you will not find any Indictment or Presentment upon Suspicious or slight Evidence for it is unjust unreasonable and may be of fatal consequence to our selves or our Posterity A Man's Reputation is a precious thing and no man ought to be troubled unnecessarily And I do rather give you this Caution because it was the Practice of the Late Times and I hope we shall rather reform their Practices than follow them and come nearer to the Golden Rule of doing as we would be done by But in saying this I don't design to lead you out of the way of Justice that any who have offended the Law should escape Punishment Let the Guilty receive the Reward of their Doings and the Innocent suffer no Wrong and then shall we be a happy People So I will trouble you no further but to pray God to direct you in your Business SOME ARGUMENTS To prove That There is no Presbyterian but a Popish PLOT AND Against the Villany of Informing in 1681. I Will trouble you but with a few words before I proceed to the Particulars of your Charge and I hope no body of the Protestant Perswasion will be offended at what I have to say I have heard it positively affirm'd That 80 81. is become 40 41. That the same Game is now playing that was then If by this is meant That our old and restless Enemies the Papists are now at work that it is they who at this time are labouring our Destruction and that they are the Danger that threatens
he that invades the Peoples Rights does no less to the King no man can perswade the King to do a thing more contrary to him and his Interest than to invade the Peoples Rights for if one be hurt the other is hurt also and he that will not do the King Right cannot expect to have Right done to himself No man can come to his Right but by doing the King Right give each its due but have a care how you give either side so much as an inch And therefore I would that People would forbear to preach up such destructive Doctrine both to King and People and not put the King and Parliament to the Trouble to make a Law whereby it shall be Treason in Words as well as Actions to endeavour the least alteration in the Government Petty-Treason For a Wife to kill her Husband or a Servant his or her Master or Mistris 25 Eliz. 3.2 Praemunire It is properly a Writ or Process of Summons awarded against such as brought in Bulls or Citations from the Court of Rome to obtain Ecclesiastical Benefices by way of Provision before they fell void To contribute Money or send Relief to any Jesuite or seminary Priest beyond Sea or any College 27 Eliz. 2. The first time to extol or maintain the Authority and Power of the Bishop of Rome Or The first time to refuse the Oath of Supremacy is a Praemunire 5 Eliz. 1. If any bring over any Agnus Dei Crosses Pictures or Beads hollowed as they call it at Rome to disperse among the People or if any person receive such 13 Eliz. 2. The Penalty in these and the like cases is That the Person offending shall forfeit all his Lands Tenements Goods and Chattels Imprisonment and be put out of the King's Protection 16 Rich. 2.5 Gentlemen you may observe that many of the things I have mentioned are only done by the Papists whose Religion has been the Author of all our Troubles and Mischiefs it was the Papists who took off the late King's Head though they made use of other People to act their part yet they were the Contrivers of all it was they who fired London and Southwark and it 's they who at this time would have brought us into the greatest Confusion that ever had been heard of by a Design which nothing but Hell could be the Contriver of but God in his Mercy brought it to light just when it should have been put in execution It is with Horror when I consider the Cruelty and Bloodshed that must necessarily have ensued had this Plot gone on it was no feigned thing the matter is as clear as any thing can be nothing but the execution of it could make it more clear and yet I hear that there are those who will take upon them to say there is no Plot and argue it how far they are guilty themselves I know not but I must tell them that they render themselves very suspicious to argue against that which every body believes and is satisfied of for my part I must judge them either to be in the Plot or very much enclined to Popery Wisely therefore has the Law provided for us against that from which there is so much danger If Popery be the True Religion God Almighty is not God Almighty for certainly that Religion is very defective whose Foundation must be layed in Blood and Cruelty and certainly God Almighty can propagate his Truth without having recourse to such unnatural means I am sure there is not to be found in Scripture the least evidence or instance to warrant the killing of Men for their Religion Men are to be convinced by Reason and Scripture and not by Force and Fire The Papists think it a hard thing to be required to take the Oaths of Allegiance and Supremacy which Oaths don't deny them the private use of their Religion only require from them a Security to be true to the Government but don't consider that their Church requires that all must dye who will not change their Religion or if any of them have an Estate held wrongfully from them or is robbed or abused they expect to have the benefit of the Law and Justice of the Government they expect that the Government shall defend them and they will not be bound to maintain it how reasonable this is let any man judge But Gentlemen there 's no reason the Government should defend them that would destroy it though the Penalties are great yet you ought to avoid Tenderness because so much depends upon it as does and besides where any of them comes under a Praemunire the Persons themselves don 't suffer so much as the Common Stock for they have Stocks and Banks for those uses and to buy Poor People to their Religion Popery is not a Religion but an Interest which endeavours our destruction and therefore we ought to shew it no Favour And this will suit very well with Moderation for in all the Laws against the Papists the Penalties are very modest and moderate in comparison to what we have found at their hands and therefore to put the Laws strongly in execution against them cannot be called Severity Misprision of Treason To know any to be guilty of High Treason and not to disclose it If a Bull or Instrument of Absolution or Reconciliation be offered to use or put in use if they do not make it known within six weeks to some of the Privy Council 13 Eliz. 2. In them that shall be aiding maintaining or concealing of such persons as shall withdraw any from their Obedience or Religion and not make it known to some Justice of Peace within twenty days 23 Eliz. 1. The next thing that I am to give you in charge is Felony which is of two sorts against the Person and against the Possession of another Felonies against the Person of another If any commit Homicide that is kill or slay another which if out of precedent Malice either expressed or implied is Murther If upon a sudden Falling-out Manslaughter If in doing a lawful action is called Chance-medley If in his own defence it 's stiled Homicide se defendendo Poysoning Stabbing and Bewitching to Death are Homicides If any commit a Rape have the carnal knowledge of a Woman against her will or with her will if she be under Ten years old If any take away or consent or assist to take away any Maid Widow or Wife against her will she being then interested in Lands or Goods If any marry a second Husband or Wife the first being alive If any commit Buggery or Sodomy If any do willingly and maliciously cut out the Tongue or put out the Eye of another And by a Statute made the 22d and 23d year of K. Ch. it is Felony that by lying in wait purposely or upon Malice forethought to maim or disfigure another If any receive relieve or maintain any Jesuite or Seminary Priest knowing him to be such 27 Eliz. 2. If any incorrigible Rogue judged
dangerous and banished return again If any dangerous Rogue branded in the Shoulder return again to a roguish life Felonies against the Possession of another If any break a Dwelling house in the Night with intent to do any Felonious Act there If any rob another by the Highway or take any thing privately from his Person If any take the Goods of another in his absence with intent to steal them If any Servant go away with his Master's Goods delivered to him with intent to steal them being the value of 40 l. or upwards If any rob a Church If any maliciously burn the House or Stack of Corn or Barn of Corn of another If any do the second time forge any Deed Evidence or Writing and publish it to be a good Deed. If any acknowledge a Fine or Judgment or Deed to be enrolled in the Name of another and not being the true person If any Persons above twelve in number raise any Tumults or Vnlawful Assemblies If above forty Persons shall assemble together to do any unlawful act and shall continue together three hours after proclamation for their departure If any depart out of this Nation to serve a foreign Prince without Leave and before Bond entered and Oath taken according to the Statute If any perswade another to commit any Felony or receive and assist any Felon after the Felony committed these are Accessaries to the Felony If any rescue a Felon from Prison If any Felon break Prison and escape or be suffered to escape and be reseued In both sorts of Felonies some have the Benefit of Clergy others not and because it 's their Duty only to present them therefore I have not troubled you with their distinctions but have given you them in part Misprision of Felony If any one know another to have committed Felony and don 't reveal it The next thing I am to acquaint you with is Trespasses and Offences against the Peace which are Finable If any menace assault beat or wound another If any make unlawful entry upon another Man's Lands or unlawfully take away other Mens Goods If any make unlawful Assemblies Routs and Riots You are to present all Seditious Conventicles according to 16 Charles 2. where there shall be five persons over and above them of the Family who shall meet together under colour or pretence of any Exercise of Religion in any other manner than is allowed by the Liturgy of the Church of England Now Gentlemen although this Law does seem to comprehend all Dissenters yet certainly not all alike for it would be unreasonable that they who only differ in some things from the Church of England should be as rigorously intended by this Law as those whose Worship and Principles are quite contrary to it and I think the very Title of the Statute is an Argument for me which is thus Seditious Conventicles suppressed If it had been only Conventicles suppressed then I should have been of another opinion And therefore Gentlemen my opinion is that this Law is rather intended against the Papists Quakers and others of that sort than against them who come nearer in their manner of Worship to the Church of England And without question at this time it is not prudent to be very strict against them who differ from the Church of England only in some Ceremonies in regard the Common Enemy to our Religion and Liberty is now very active I mean Popery and therefore it is very great Policy to unite our selves that we may be the more able to resist Popery I am sure that this is not a time to harase or pull one-another in pieces for some small Points in Religion I am sure it is that which the Pope and Church of Rome will esteem as a very great and meritorious piece of Service He that shall say or sing Mass forfeits 200 Marks and Imprisonment a year and after that till the Money be paid To hear Mass forfeits 100 Marks and Imprisonment a year He forfeits 20 l. per month who does not come to Church and if he forbear a year to be bound in 200 l. to the good a bearing till he conform 23 Eliz. 1. A Conformed Recusant not taking the Sacrament the first year forfeits 20 l. the second 40 l. and for every year after 60 l. Every Recusant that shall not come to Church forfeits 20 l. for every month Who shall be absent from Church for every Sunday forfeits 1 l. and for want of Distress to be committed to Prison To relieve or maintain a Recusant not going to Church forfeits for every month 10 l. To retain in ones Service a Recusant who shall not repair to some Church forfeits 10 l. per month 3 Jac. 4. Now Gentlemen you must understand that by by the word Recusant is meant Popish Recusant and no other whatsoever They who shall send their Children beyond Seas without License according to Law forfeits 100 l. 3 Jac. 5. If any chide brawl or draw a Weapon to strike or do strike in Church or Church-yard If any keep a Fair or Market in a Church or Church-yard If any voluntarily disturb the Preacher in his Sermon The next Matters that I am to acquaint you with are Offences against Justice in general If any be a common Stirrer and Procurer of Law-suits or a common Brabler or Quarreller among his Neighbours this is Barratry If any maintain the Law-suit of another to have part of the thing in demand this is Maintenance or Champerty If any get Goods of another into his Hands by false Tokens and Messages this Deceit is punishable If any counterfeit a Deed or Writing and publish it as true this is Forgery If any corrupt a Jury-man by Bribery or Menace to divert him from giving a just Verdict this is Imbracery If any wilfully and corruptly swear falsely in Evidence to a Jury it is Perjury and to procure another so to do is Subordination of Perjury And here I think I may mention Bailiffs and other Officers taking or demanding unlawful and unreasonable Fees None ought to practise as an Attorney but such only as have been bred up Attorneys at Law and not every little Catchpole that has read over a Book or two for these are they that do all the Mischief because Ignorance and Knavery for the most part go together and I doubt there are some who practise in this Court who are not duly qualified for it The next things you are to enquire into are The Neglects of Constables If he do not hastily pursue Hue-and Cry after Murtherers and Robbers If he do not truly execute and return all Warrants sent to him from Justices of the Peace If he do not apprehend Beggars Rogues and Vagabonds that are wandring or begging within his Office If he do not punish by Stocking such as refuse to labour in Hay and Harvest time If he do not present at the Sessions or to the next Justices the Disorders in Alehouses Defects in High-ways Recusants absence from Church