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
It 's said he was every Night drinking till Two a Clock or beyond that time and that he went to his Chamber drunk but this I have only by Common Fame for I was not in his Company I bless God I am not a Man of his Principles or Behaviour but in the Mornings he appear'd with the Symptoms of a Man that over Night had taken a large Cup. But that which I have to say is the Complaint of every Man especially of them who had any Law Suits Our Chief Justice has a very Arbitrary Power in appointing the Assize when he pleases and this Man has strained it to the highest point For whereas we were accustomed to have Two Assizes the first about April or May the latter about September It was this Year the middle as I remember of August before we had any Assize and then he dispatcht business so well that he left half the Causes untryed and to help the matter has resolved that we shall have no more Assizes this Year These things I hope are just cause of Complaint It cannot be supposed that People can with ease or delight be in expectation so long as from May till August to have their Causes determined for the notice he gave was very short and uncertain And I beg you is it not hard for them that had any Tryals to see Councel be at the charge of bringing Witnesses and keep them there five or six days to spend their Time and Money and neglect their Affairs at home and when all is done go back and not have their Causes heard This was the case of most People the last Assize Some Observations on the Prince of Orange's Declaration in a Charge to the Grand Jury Gentlemen THE greatest part of the misfortunes which befall mankind would be prevented did they but keep in mind and seriously consider the most remarkable things which happen to them for then they would not as is every day seen neglect so many advantageous opportunities which by Providence is put into their hands nor split so often upon the same Rock For so apt are men to forget even things of the the greatest moment that it is become a common saying That there is not any thing that is more than a nine days wonder which does sufficiently express the giddiness and want of consideration in Men Of which there never was a more pregnant instance than is to be observed in England at this time For tho the late Revolution was as remarkable as any thing could be both for the matter as well as for the manner of it yet it seems to be as much out of peoples thoughts as if no such thing had happened to us It is a great unhappiness that no more notice is taken of it and it would yet be a greater misfortune if we make no more advantage of it than yet we have done and since it does so much concern us to carry it in our thoughts I hope I shall not mispend your time whilst I give you a short account of the occasion that sent K. J. away and for what reason his present Majesty the then Prince of Orange was placed on the Throne I believe you may remember how much the greater part of the Nation was alarm'd when it was known that the Duke of York had declared himself a Papist by reason of the fatal effects it would have upon our Religion and Liberty if in case he should come to the Crown And the Parliament being no less sensible of this threatning danger made several attempts to exclude him from the Crown by Act of Parliament which was the cause wherefore so many Parliaments one on the neck of another in the latter end of Charles the ll 's time proved Abortive for when the Court could not by any other Artifice keep off the Bill of Exclusion that Parliament was dissolved and another called in hopes to find it of another temper but perceiving that every Parliament began where the other left off of that Scent King Charles took leave of Parliaments for the rest of his time And then all those who had been for the Bill of Exclusion were loaded with all manner of reproaches and amongst other things were called Anti-Monarch-men because they would break into the Succession for that the Exclusion of the Duke of York was used only as a pretence to bring in a Common-wealth To such a degree of madness did the mistaken Loyalty of some people carry them And I wish there were not some at this day who hope to make themselves welcome at Court by calling every thing Anti-Monarchical that is proposed for the good of the Nation At last things being in a posture for the purpose C. II. went off but how is not yet certain to make room for his Brother the Duke of York who began very early to discover himself and in a short time had made so very bold with matters both in Church and State as to demonstrate that the apprehensions of those who would have Excluded him was rather a Prophesie of what he would do than a groundless conjecture for his power swelled so fast that he quickly makes all people to feel the intollerable burden of an unbounded Prerogative so that many who before fell down and worshipt Prerogative were than as hasty to get out of the way of it as they would to avoid a Monster that stood ready to devour them and thereby brought them so far to their Wits as to enable them to see that it is much safer to trust the Law than the King's Will and Pleasure with their Liberties and Properties and that God had no more given Kings a right to oppress and inslave their Subjects than he had indued them with a power to Create Men. For the method which King James took shewed plainly to all the world that nothing less than being Absolute would content him That is he would govern by his Will and force an obedience to his pleasure by his Army for his Administration became more exorbitant every day than other till his present Majesty the then Prince of Orange Landed who as is usual upon such occasions set out a Declaration of the occasion that brought him hither wherein is innumerated many of the irregularities of King James his Administration The first thing mentioned is the dispensing-Dispensing-power which King James had assumed whereby he gave just occasion for a very loud complaint because it is a most dangerous Instrument in the hand of any King for it not only makes a noise but does certain execution it swallows up Law where-ever it comes and tears up Liberty and Property by the Roots it does not only put every mans right at uncertainty but makes it uncertain whether there is any such thing as Right it is of so diffusive a Nature that if it be exercised in one Kingdom the next that is governed by the same King has cause to think it self in danger This the Parliament had early under their
have it or not for a power in a King to Oppress and Burden his Subjects is inconsistent with the true Nature and design of Prerogative which was given to the Crown to relieve the Subject where the Law was too keen the better to further the publick Peace If the Prerogative be set above the Law it will quickly devour it for there is no difference betwixt making the King Absolute and destroying the Law because then all our Laws and Statutes are only Rules during his pleasure and a King that desires to sit at ease will not find his reckoning in it for if the Prerogative be once raised above the Law he thereby quits his best Title to the Crown and leaves the decision of the Right to the Sword and then he that has the sharpest will prove by that Rule to have the best Right but he that has a better Title will not claim under the Sword What has been said may in a great measure expose that vile and ridiculous Doctrine of Passive Obedience and Nonresistance which the Example of David sufficiently refutes and no man can pretend to Justify but either because he wants common Sence or in hopes of Preferment will if he can outface all manner of Truth However it was so useful to carry on the Design of Popery and Slavery that all possible ways was tryed to propagate this Doctrine and all Discouragements put upon those who did any thing to lessen the credit of it Just like the policy of the Romish Priests who forbid the Laity the use of any Books that may give them better Light and it is very strange that this Doctrine did not obtain more Credit considering how it was supported both by the Palpit and Press But God be praised that the Nation preserved its understanding and that the time is come that the Truth may be spoke in publick And I would have stopt but that I conceive it to be convenient to say something to let you see how senceless and impudent they are who profess themselves to be Protestants and yet are dissatisfyed that the late K. James is set aside and King William placed upon the Throne And first I do say that I thought it my Duty to draw my Sword in the Defence of my Religion and Government and I did and do think it as lawful to reject the late K. James as to place K. William on the Throne And I hope to satisfy all that hear me that the present Settlement is Justifyed both by the Laws of God of Nature and the ancient Government If what is done were rather expedient then lawful yet one would think that particular persons might acquiesce in what is done by the collective Wisdom of the Nation I mean the Lords and Commons and I shall ever believe that man to be mistaken who thinks himself either more wise or Just than the two Houses of Parliament Till the Prince of Orange Landed I am perswaded that most were of Opinion that we had but this Choice left us either to Turn or Burn and I am inclinable to think that all such as are for recalling K. James are prepared to turn and I wish every man that has a mind to have him here again were with him I know not whether it would be best for them but I am sure it would be so for every man that wishes well to England But to speak more home and directly I take it That there was a People before there was a King That they set the King over them for their good That the Obligation of Protection and Subjection is Mutual That a King by reason of his Male Administration may forfeit his Crown That the End of Government is Peace and Order That it is more for Gods glory for every man to sit safely under his Vine than to be oppressed That no Government can be destitute of a Power to relieve it self That the whole is better than a part That this late Settlement is no new thing the like having been done in all Kingdoms and Governments To suppose there was a King before there was a People is as ridiculous as to suppose a man to be born before he is begot or that a man can live without Food or run before he can go and it will follow that a King may be a King of nothing for what is a King if he have no people Multitudes of other Absurdities will follow so that I need not say any thing more to it And I think the next thing is as plain that it is for their good when a People sets a King over them For to what other intent can it be done all things are done for some end and a People cannot be supposed to be void of the Principle of self preservation since that is inherent in Brutes and Plants and nothing that either breaths or grows but endeavours to preserve it self and can it then be imagined that a People would choose a King for their hurt rather than for their good Indeed sometimes in Judgment to a People God has blinded their Eyes in their choice they have made but their Intention was otherwise And I take it to be as clear that the Obligation of Protection and Subjection is Mutual for the very Nature of all Agreements proves it for in any thing of that nature if one side be bound and the other at Liberty it demonstrates the folly or Rashness of the one Party and cunning or good Fortune of the other and cannot so properly be called a Bargain as a Submission Subjection is really an Effect of Protection and arises from it otherwise Parents would have it in their choice to provide for or neglect their Children and tho' their Right is from Nature and for that Reason more Arbitrary than when it proceeds from compact yet no man will deny but that Parents are bound to Educate and provide all other Necessaries for their Children as far as their Substance will enable them and that nothing can discharge them of this Obligation but the Notorious Disobedience and wickedness of their Children The Nature of our Allegiance proves that the Obligation is mutual because the King takes the Coronation Oath before the Subjects swear to him which shews that our Allegiance is Conditional and such it is in all regular Governments for what can induce one man to obey another but that he ingages to protect him for if I am bound to obey where I have not an Assurance of Protection then if a Tyger or other Monster could get into the Throne I should then be under the same Obligation of Obedience but the reason of this is so obvious to every one of common Sence that I will say no more to it I think it will not be disputed that the End of Government is Peace and Order if not for these it must be for Confusion because there is no Medium between Peace and Confusion now God could not intend the latter because he has declared himself to
distinctly besides they are different in the manner of Proof for that which is necessary to prove the one does in no sort prove the other and furthermore the one may be effected and the other never so much as intended or designed as that the King may be Murdered and no War levyed nor intended And moreover in the one Case it is Treason as well to intend as to execute it without relation to or being joyned with any thing else but it is not so in the other for it is Treason absolutely in it self as well to compass the Kings Death as to Kill him But an Intention to Levy War and the doing of all things in order to it is not Treason unless the War be levyed except by Misplication or Inference and thus much may serve to prove that they are distinct Species of Treason As to the Fourth No doubt that every Statute is to be construed most strictly to restrain the Mischief against which it was enacted For the Uninterrupted course of all Judgments and Resolutions have been accordingly and nothing can more directly thwart common Sence than to make it otherwise and therefore if the State be absolute the more forcibly that it is construed to restrain the Mischief the more truly is the intent of the Statute pursued for how shall any evil be supprest if the remedy must be applyed but by halves For the Law would then be rather a Mockery than a means to redress the Mischief if it shall not be taken most strongly against it either it is or it is not a restraint of the Evil if it is not why was it made If it is It must be understood in that Sence by which the Mischief or Evil may be effectually prevented and suppressed As to the Fifth The Answer will be best understood by Considering first the Significations of these two words apart Viz. Provably and Overt Provably Signifies To prove or make good by Evidence Argument Reason or Testimony Overt has all these Significations open clear plain apparent manifest notorious evident known undoubted certain perspicuous This then being the Significations of those Words what then can follow more Naturally than that to be provably attainted by Over Deed is that the Fact must not only be direct apparent and notorious to the point but it must also be proved clearly evidently plainly and perspicuously void of all doubt or obscurity and those two Words being taken together do the better Expound each other and seem to be choice Words culled out by the penners of that Statute as the most expressive against all Implications and Inferences which might be made in Case of Treason These things being premised which are as easily proved as alledged there will remain very little for them to maintain their Opinion who say That a Conspiracy to Levy War is an Overt Act of compassing the Death of the King The things which are commonly and chiefly urged for that Opinion are these two First It would be of dangerous consequence if a Conspiracy to Levy War may not be interpreted an Overt Act of Compassing the King's Death because there is no means left to prevent it and the Mischiefs attending it when the War is Levyed Secondly If a War be levyed the Death of the King must needs be intended and will certainly ensue if the Rebels prevail In answer to these it may be replyed That the one of them is but a bare Objection and that the other is no substantial Argument because it begs the Question and then surely that must be a feeble Opinion that has no better a Foundation But a more particular answer to them will discover the Sandy Foundation upon which this Opinion is built And it will be more proper to begin with the Second because in giving an answer to that the other will in a great measure receive an Answer also Therefore as to the Second It may be observed that the Death of the King is made so certain and necessary a Consequence of Levying of War that by reason of that certainty a Conspiracy to Levy War is an Over Act of Compassing the Kings Death Now therefore if that certainty will not hold but that many Cases may be put and Instances produced wherein the Kings Death is not intended nor did it ensue upon the prevailing of the Party then is the whole weight and strength of that Argument of None Effect The Hugonots in France have heretofore Assembled together in Arms and tho' they repeated it several times yet in which of those Occasions does appear either by the cause of their coming together in that manner or by the issue of it that it was Levelled at the Kings Life No the Cause of their rising in Arms was for the asserting of their Religion and just Rights for as soon as their Reasonable Demands were satisfyed they laid down their Arms more willingly than they took them up neither did they attempt any thing against the Kings Life when he was in their power but after they were answered in those things to which they had Right both by the Laws of Nature and the Government immediately they returned home in peace and upon all other occasions proved the most firm and Loval Subjects of all that Kings Dominions and as this present King of France must witness for them if he will do them Justice If the Protestants in France should at this time take up Arms upon so just a provocation as they now have it would be very senceless to suppose that they Levy'd the War with a principal Design to Murder the King and not for the Defence of themselves and their Rights which are so inhumanly and against all Law and Justice at the same time invaded and ravisht from them Story is full of like Cases and Instances to this but to speak more particularly to England What was the Barons Wars the answer to which must be that they took up Arms to assert their Rights and Liberties which the King contrary to his Oath withheld from them and that it lasted near 40 Years yet the Kings Death was never intended nor his Life in any danger for as soon as their just demands were answered they put up their Swords and every man returned home and pray'd for the life of the King And out of English Story what one instance can be produced where the cause of War was declared to be against the Kings life or if that party prevailed the King was put to death by their general consent and approbation For tho' it be true that there are some instances where they have been Murdered after the War yet it is also as true that it was by private Assacination and not by the consent and privity of those who levyed the War for all those that were concerned in the Murder were condemned and executed for it as Traitors as in the Case of Edw. 2d and Richard 2d And as for that of Charles the First which is so much pressed and urged
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
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
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
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
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
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
consideration and prepared a Bill for taking away the dispensing-Dispensing-power which by the help of some other things that were in the same Bill obtained the Royal Assent and so it passed into a Law The Declaration then takes notice that for the better introducing of the dispensing-Dispensing-power That the Judges were prevailed with to declare that such a power is a right belonging to the Crown and in order to it the Judges opinions were discovered before-hand and such as would not comply were turned out thereby to intimate to the rest that they might act at all times as they should be directed This indeed was a very high aggravation of it this was not to use the Law lawfully but to establish Oppression Violence and all manner of Iniquity by a Law For whoever shall endeavour to influence the Judges in their opinions by what means soever he seeks to intimidate them whether it be by turning them out of their places withholding their Sallaries or putting others over their Heads does plainly discover that he aims at nothing less than to Govern by his Will For the apprehension of losing a good imploy is not above the ordinary rate of men and the stopping of a Judges Sallary must have the same effect because it 's all one whether a man is turned out of his place or the profits of it are withholden from him and that Judge is exposed to a powerful temptation who sees he cannot rise in course unless he will comply The Parliament being sensible how much the Justice of the Nation lay exposed so long as the Judges held their Places or Sallaries at Pleasure had the last Sessions but one prepared a Bill to remedy this inconvenience which was offered to the Royal Assent but was refused for what reasons is not proper for me to give because I shall always advise the contrary so that that part of King James's Male-administration remains as it was to be practised by any other King who shall be so wicked as to have it in his thoughts how he may inslave the Nation The Declaration observes that King James put men into imployment and continued them therein altho they had not qualified themselves according to Law This as it unhinged one of the great securities of the Government so it was a plain indication of King James's intentions to govern without Law for when men are put into imployment in spight of the Law it shews they were preferred not so much for their fitness to execute that Office as to serve some other purpose against Law and those that so complyed justly incurred the censure of every man that wisht well to his Country for they shewed that they were through-stich-men that would stick at nothing thereby rendering themselves so infamous as to make all mankind conclude that they would never be imployed in any other Reign by reason of the scandal as well as the danger that any Prince runs who shall take them into his Service The Declaration then takes notice of the Ecclesiastical Commission which indeed carried an ill design in the face of it it having been always found that such extraordinary methods are not so much to punish faults already committed as to wish there were such and to pretend men to be guilty who have not transgressed For if nothing more had been designed but to punish those who really were offenders what need was there of that High Commission seeing the Law had before sufficiently provided so that the parlous intention of setting up that Commission was very obvious and it was yet plainer because it was expresly against Law for 16 Car. c. 11. that took away the then High-Commission Court has provided and declared that any other such like Court is illegal and all proceedings thereupon to be void and of no force And here I cannot but observe to you how far they were the occasion of setting up this Court who were like to suffer most by it For it cannot be forgot what pains the Clergy took to magnifie Prerogative and to preach up the Doctrine of Passive-Obedience and Non-resistance upon which King James supposing them to be worthy of their Functions and consequently what they preacht in their Pulpits they would practice when they were out of them thought he might make the more bold with them But with what Christian patience they bore it I believe you remember for King James received more reproachful language and revilings from them than from all other people and therefore I hope they have learnt this lesson and will be careful for the future to instruct all others under their care not to extend Prerogative beyond the bounds which the Law has set it lest they are the first that feel the weight of an unlimited power For this Ecclesiastical-Commission was a monstrous thing and therefore it is to be hoped that all those who were of it and that now are in eminent stations under this Government have made it appear that they are become new men or otherwise if it was a fault in King James to set up that Commission it will be hard to find an excuse for their being of it The Declaration proceeds in taking notice that several Churches and Chapels were built for the exercise of the Romish Religion and that several Colleges of Jesuits were set up and that a Jesuit was made one of King James's Privy Council This had it stood singly of it self must appear dreadful to all true English-men and yet it was but a necessary consequence of what went before it and gave every man a clearer prospect of the precarious condition in which his Religion and Liberty stood The next thing that followed was to examine Lord Lieutenants and Deputy Lieutenants Justices of the Peace and all others in publick imployments in order to have the Penal-Laws and Test repealed and to turn out such as would not concur This was made use of as no doubt it would have been a very effectual means towards the packing of a Parliament it being a lesson which he had learnt from his Brother C. II. who used to take Parliament-men to task in private where he used such arguments as thereby he so often drew from the Parliament those unnecessary supplies This examination of the People in private was called Closetting at first lookt upon as a very inconsiderable thing yet we saw that the said Cloud tho at first no bigger than a mans hand quickly overspread the whole Heavens and gave our affairs a very gloomy Complexion and if we will learn has taught us this useful lesson That when men shall not be left to the freedom of their judgments in relation to the publick but indeavours are used to warp and bend them another way that there is some ill design in hatching especially when such applicaons are made to members of Parliament concerning such matters as are under their Consideration For this is to kill the Government at the Root and the design is equally apparent and mischievous by what means
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
Earth and not for his own Glory whereby he would become the Author of all the Oppression and Violence that they shall commit Secondly If these Texts are not taken in a limited Sence they cannot be reconciled with other Places in Scripture and thereby God Almighty would contradict himself both of which are no less than Blasphemy to conceive of him And when these are compared with other Texts that do explain them they will be found to be Arguments to prove that the Power of Kings is limited by Law and the Right which they claim in the Crown is from the Constitution of the Government and not by Gods immediate appointment For as to that Expression By me Kings Reign he that looks into the Story will find that these Words are not a Declaration of the Right or Power of Kings but are enumerated amongst the many and great things that are done by Wisdom all which would be too tedious to mention at this time or if they were declaratory of the Kingly Power yet they are far from leaving Kings at large in the exercise of that Power for the Words that follow in the some Verse and Princes decree Justice do plainly Argue That Kings Reign no longer by God than they decree Justice not when they Govern by their Will without the Guidance of the Law So that by this it is clear that Kings and Gouernours are restrained within certain bounds and limits of Justice and Right according to the establisht Government The next thing to which I will give an answer is these Words Where the word of a King is there is power and who may say unto him what doest thou Every Command of the King so far as it is warranted by the Law is not to be disputed but to be obeyed for Conscience sake And it is the Interest of every man to enforce an obedience to it because it is for the Common Good But that a Man must be bound to obey any Commands whereby no advantage accrues to him or the Publick and is really to the detriment of both I no more understand than that a man ought to be his own Executioner in any Case And if the Commands of the King are to be obeyed without disputing the Legality of them then it will follow That all his Commands are equally Just or else that his Fiat makes that â—ust and lawful which was not so in it self and then by parity of reason his Command shall make that unlawful which was just and reasonable in it self and at this rate no man can tell whether he act with or against the Law till the King has declared his pleasure Now whether this does not rather confound and destroy the very End of Government than support it I leave to every man of common Sence to Judge and I think tho more might yet it need not be said to make it clear that this Text of Scripture is far from proving That Kings of Right have an unlimited and absolute power Let every Soul be subject to the higher Powers c. I take the meaning of these Words to be this That Government in general is of Divine Institution and that when any People and those that they set over them have entred into a mutual Stipulation of Protection and Obedience under such Rules of Policy and Justice as are not inconsistent with the Word of God this constitution is hereby so far ordained by God that it must be submitted to not only for Worth but also for Conscience sake so long as those in Authority do Govern according to the Prescripts of the Constitution And those words must be understood in this or some such like Sence for if they are taken Literally then it will follow That God prescribed the Model of every Government but no such Direction is to be found in Holy VVrit concerning any Government except that of his peculiar People the Israelites and besides every Government under the Sun would have been of the same shape if God had directed the Model of them but they cannot be taken literally because 1 Pet. 2.13 says Submit your self to every Ordinance of man for the Lords sake whether it be to the King as Supreme or unto Governors ' as unto them that are sent by him for the punishment of Evil doers and for the praise of them that do well And from these Words I take it to be clear that it was left to every People to form such a Constitution of Government as best suited their own Inclinations But if God had more expresly delivered him as to the form of Government yet that of Romans 13. Let every Soul is no warrant for the absolute Power of Kings for the 3d. and 4th Verses in that Chapter restrains it within bounds where it says For Rulers are not a Terrour to good works but to the evil Wilt thou then not be afraid of the Power do that which is good and thou shalt have praise of the same for he is the Minister of God to thee for good but if thou do that which is evil be afraid for he beareth not the Sword in vain for he is the Minister of God a Revenger to execute Wrath upon him that doeth evil These Words are as expresly restrictive of the Kingly power as Words can be in any case where he is to Protect or Punish is positively directed and not left to his discretion to call it Good or Evil according to his power or fancy but the Execution of his Power is to be guided by the Rules of Gods word and of the Government If God had prescribed one or more Models of Government for the World yet he would not have allowed that to be lawful in Kings which he has so often and severely reproved and punisht and under great Penalties he has restrained their Administration within the bounds of Justice and Judgment and because therein he has only delivered his pleasure in general therefore Kings are to submit to such Explanation of what is Just and right as the Constitution of the Government has declared For if this Explanation rested in the Breast of Kings the Condition of Subjects would be worse than that of Brutes unless Kings were endued with the Wisdom and Purity of an Angel of Light If Brutes be so chased and hunted that they are forced to leave their Native Soil yet wherever they can find rest for the Soal of their Foot they will meet with Food and Lodging and all other Necessaries But when by reason of Oppression and Bondage men are necessitated to quit their Habitations and Country must inevitably perish unless relieved by the Charity of others It is therefore plain that an absolute Power in any King must be gained either by force or fraud because God has not conferred any such Authority and it cannot be supposed that men in their Wits and without constraint would put into anothers hand a power that may hurt them when it depended upon their pleasure whether he should
manner put in ure any of the Acts abovesaid That then all and singular Persons by whose speaking deed act or other the means above specified to the number of twelve so raised shall be adjudged Felons If any Persons to the number of forty or above shall Assemble together by forcible manner unlawfully and of their own authority to the intent to put in ure any of the things above specified or to do other Felonies or Rebellions act or acts and so shall continue together by the space of three Hours after Proclamation shall be made at or nigh the place where they shall be so assembled or in some Market Town thereunto next ajoyning and after Notice thereof to them given then every person so willingly assembled in forcible manner and so continuing together by the space of three Hours shall be adjudged a Felon The things provided against by this Statute are plainly and directly a levying of War yet are they declared to be but Felony But it may be objected that by Statute 3d. and 4th Edw. 6. Those Offences were made Treason it is very true yet it does not alter the Case but rather proves the Point For first it being made Treason by Statute proves that it was not so in it self Secondly Because in the two next succeeding Reigns it is declared to be but Felony for the Statute of Queen Mary is confirmed by Statute 1st Eliz. 16. and therefore the Argument is the stronger because those two Queens were of different Religions Thirdly Because when a thing is declared an Offence by Act of Parliament and is afterwards made a less Offence it proves that it was not so great an Offence in it self but that the necessary Circumstances of Time and Affairs require it should then be such But the Case is yet stronger because in some Cases it may be but a Trespass to levy War as it was in the Case of the Earl of Northumberland 5th Henry 4. He did actually raise Forces and such as was taken to be a levying of War for which he was questioned before the Lords and tryed for High Treason but tho' the Lords did believe the Fact yet they adjudged it but a Trespass because the Power raised were not against the King but some Sabjects This precedent seems to carry great weight in it first because it is a Judgment given in the highest Court of Judicature and Secondly Because it was given so soon after the making of the Statute 25th Edw. 3. and therefore they must be supposed to understand the meaning of the Statute full as well as succeeding Ages The Case of those who aided Sir John Oldcastle might be also urged if there were occasion but what has been already said is sufficient yet one Clause in that Statute 25 Edward 3d. is not to be passed over in silence because it puts the matter out of Dispute and the Clause is as follows If percase any man of this Realm ride Arm'd covertly or secretly with Men or Arms against any other to Slay him or Rob him or take him or retain him till he hath made Fine or Ransom for to have his Deliverance it is not the mind of the King nor his Council that in such case it shall be adjudged Treason but it shall be judged Felony or Trespass according to the old Laws of the Land of old times used This proves That altho' the Statute had made it Treason yet that it was not so in it self and therefore it will follow that if a War may be levy'd which is neither Treason nor Felony so it is unnatural that a Conspiracy to Levy War should be construed to be an Overt Act of Compassing the Kings Death Thus the Second thing Objected has received a full answer and likewise the first in a great measure but to put all out of doubt a few words shall be added to give a compleat answer to the first also If the Consequences on all hands be duely considered the danger will be found to lye on the other hand yet be it as great as it can be pretended let it be considered that the Law has settled the point and so it must stand till by the same Authority it be alter'd for the Rule in Law is not to be forgot Nemo Legibus Sapientior It is to be pretended that out of a tender regard that the Law and all Subjects ought to have for the Kings Life that a Conspiracy to Levy War is taken to be an Overt of Compassing the Kings Death To this it may be answered by way of question How comes it about that this Age should have a greater care and tenderness of the Kings Life than our Porefathers had Can it be Imagined that they did not understand the Nature of the Government as well as we do nor did know of what Consequence to the Publick the Preservation of the Kings Life is Can it be thought that they did not duely weigh and consider the consequence on all hands Yet however were there never so many Defects in it seeing it is settled by Law it cannot be altered but by the same Power for if it may then let the Consequence be duly considered of leaving it in the Breast of the Judges to rectify the Mistakes or Desects be they Fictions or real for then when a turn is to be served the Law shall always be defective and so in effect they shall Legem dare Treason will then be reduced to a certainty that is if the Judges please otherwise not There will be no need of Parliaments for the Judges shall both declare and make Law What will all our Laws signify tho made and penned with all the Wisdom and Consideration that a Parliament is capable of if the Judges are not to be tyed up and guided by those Laws it renders Parliaments useless and sets the Judges above a Parliament They can undo what the other has done the Parliament Chains up some unruly Evil or Mischief and the Judges let it loose again But besides where is this dangerous Consequence as is objected Indeed there had been some weight in the Objection had a Conspiracy to levy War been left wholly unpunishable but the Law has provided a punishment commensurate to the Offence and tho' it does not extend to Life yet is sufficient to deterr Men from the Commission of it yet if a Conspiracy to levy War is to be punisht in a high degree as a War when levyed this would be to punish Thoughts as highly as Deeds which if it be just yet it is Summum jus VVhere the Law has provided a Punishment for an Offence the Judge can pass no other Judgment upon the Prisoner no no more than the Executioner can execute the condemned Person in any other manner than according to the Sentence passed upon him without incurring the Guilt of Felony for the one is but the Officer to declare or promote the Law and the other the Minister to Execute it Therefore upon what has been said
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
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
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
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
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
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
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
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
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
I hope that on which of them soever Popery shall most depend when it is raising it self to the pitch that it designs that they will slip away its hold and thereby make that the occasion of its ruine that was designed for its establishment It must be confest that the Dissenters when they had the upper hand did not behave themselves with the utmost moderation towards others that differed from them but yet our high Church men can never answer either as Protestants or Politicians the procuring of such severe Laws as were made at the late Kings Restauration and the pushing of them too with so much violence upon the Dissenters if many times those Laws were not stretcht and extended beyond their true meaning and natural construction And with such fury did they carry on their Revenge that had they been told they knew not of what Spirit they were they would not have borne so gentle a Reproof with any sort of patience whilst in the mean time they treated the Papists rather as Friends than otherwise neither did they slack their furious prosecution till they found the House was ready to fall about their Ears and so were necessitated to adjourne their Proceedings till they could be at better leisure And as this was very pleasing to the Papists so it was no less an acceptable piece of Service to make the terms of Communion so strict and strait-laced and to set the Church upon so narrow a foundation that it was impossible for it to stand upright very long but must in a short time incline to one hand or another if not fall flat to the ground Not to mention every thing but only to give a few Instances and those not the greatest nor most material neither First then the so frequent varying and altering the posture of Worship which must unavoidably distract people and cool their fervency in devotion Next the turning to the East when the Creed is said and reading the Scripture and Prayers in several parts of the Church or place of Worship as is now practised in our Cathedrals which is to suppose that God is not equally present in all parts of the place where people are met together to worship him or that he will hear and accept this Prayer in that place or that Prayer in another Then farther the Tautologies Repetitions and saying the same thing over and over in the Common Prayer which is that our Saviour reproved in the Devotion of the Pharisees and besides the requiring us to sit when the Second Lesson is read and to stand up at the Gospel though they happen to be the self-same part of Scripture which is nothing less than to injoyn a contradiction These things and many others though they pretended they are indifferent and required only for order and decency yet did they exact the observance of them much more than other things that are requisite to make a Man a good Christian So that though these things may not be superstitious in themselves yet to require such an exact observance of them must be introductive of Superstition And they had laid such a Foundation as on which the Papists did propose to build surely and substantially especially when the high Church men were raising a Superstructure upon it by the arbitrary Doctrines which they gave out in the Pulpits and in all other Discourses in which they asserted the Divinity of Kings setting him no other bounds to his Power but what his Will should prescribe together with the Doctrine of Non-resistance and to extend it even to our thoughts and whoever would not subscribe their assent and consent to these things they would write upon their back Traditur Diabolo and assign them Hell and Damnation for their portion no less than if they had denied the Articles of the Christian Faith but besides when they declared that they would rather be Papists than Presbyterians the Papists did hope that they should have little more to do in bringing their work to perfection than to sit by and direct what they would have done especially when they saw the high Church-men contend so furiously for the Succession as if their All had depended upon it as well as it was the only hopes the Papists had left them who were further confirmed in their expectations when upon the discovery of the Popish Plot by Oats these Church-men became Advocates for it and with so much Zeal and Industry endeavourd to lessen and take off the credit of the Discovery and yet no sooner was an Accusation of that sort brought against the Protestants but they undertook to demonstrate the clearness of it though most other people lookt upon it as a sham and peice of Forgery of the Papists contrivance to take off the Odium of their own Plot that was a true one but however these Church-men as if they hoped hereby to make their fortunes had nothing in their Mouths but blood and slaughter bawling out for full and speedy Justice against all those whose Names were mentioned in that Plot scarcely allowing them that play for their lives which the Law gives to every Subject and condemning in their Judgments every one before he had received his Trial and being out of patience if any one was acquitted And many of these Men lookt upon the Habeas Corpus Act as an unrighteous Law because it helped several to their liberty who were clapt up though nothing could be charged upon them Thus did they proceed to the satisfaction of the Papists till the King being puffed up with his Success against the Duke of Monmouth he clapt spurs to them to make them mend their rate whereby he ran them out of breath and then instead of going on they fell to kicking at him for now they can preach against Popery and don 't stick to say it openly that the King has not kept his word and indeed speak of him and his Government in sawcy and unmannerly Language and let fall such words against his Proceedings as they would heretofore have called Seditious had they come out of other peoples mouths yet now they reckon themselves the only Champions against Popery and the chief Supports of the Laws and Liberties because they say and do those things in ten times a greater degree for which they used to call others disaffected and thereby greedily lick up their own Vomit They wonder now that any do absent themselves from the Church and say if Popery do come in the fault will wholly lie at their Doors who at this time separate from the Church But soft and fair they make too much haste for the blame will not wholly rest with the Dissenters for neither have they yet approved themselves such worthy Patriots If they are ruined their blood is upon their own heads and they must thank themselves for it Though the Dissenters are to blame yet to lay all the fault at their Door it may as well be said which is ridiculous to affirm that he has as great
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
the Crime and without whose concurrence and assistance it could not have been effected should fall within the condemnation of the Law Petty Lacinary is stealing of a thing under the value of 12d tho it is a small offence yet the fre uency of its being committed requires your care to suppress it I would in particular recommend to you to take notice of Sabbath-breaking And Customary Swearing There are several other offences that are inquirable of by you but I omit to mention them because I believe your own observation will help you therein Only thus much I will observe in general that whatever is an offence against the Publick falls within your inquiry and having said this I will keep you no longer from your business Some Reasons against the Prosecuting the Dissenters upon the Penal Laws I Will offer my Thoughts as to the Prosecuting of Protestant Dissenters at this time upon the Penal Laws But what I design to propose is only what sways with me and not to impose upon any Man but to leave every one to approve or dislike it according to the reasons I shall give To prosecute them who agree with us in the same Doctrines as it is not practiced in any other part of the World no not by the Papists themselves so I fear it will look like a playing of their game for them For it is confessed by the Jesuits that they have found it the most infallible way to bring in Popery into any place by somenting the divisions amongst Protestants And if a Moderation be ever necessary without question it is at this time expedient and the House of Commons were of this opinion when they passed this Vote Jan. 10. 1680 1. That is the opinion of this House That the Prosecution of Protestant Dissenters upon the Penal Laws is at this time grievous to the Subject a weakning the Protestant Interest an encouragement to Popery and dangerous to the Peace of the Kingdom Now how far this ought to be regarded I leave to every Man to consider but to my own particular there seems to be great reason and prudence in it considering our present circumstances If it shall so fall out since the making of the Act of the 22d of this King against Seditious Conventicles that the Dissenters have not at their Meetings preach'd any Doctrine but what tends to instruct and persuade Men to do their duty to their God their King and their Country then we ought to remember his Majesties Declaration from Breda April 14. 1660. which I find in print in these words We do declare a Liberty to tender Consciences and that no Man shall be disquieted or called in question for differences of Opinion in matters of Religion which do not disturb the Peace of the Kingdom and that we shall be ready to consent to such an Act of Parliament as upon mature deliberation shall be offered to us for the full granting that Indulgence Though we are unhappy by reason of the want of a Law for the uniting of all Protestants yet I conceive that this Declaration of his Majesty's is a very plain admonition to us to use a tenderness towards those who preach sound Doctrine and live peaceably with us and for my part I have not heard of any to be accused for Preaching unsound Doctrine or Sedition if there be any such spare them not but let the utmost severity of the Law pass upon them and let them suffer for evil-doing But if there is no proof against them for preaching Sedition or Rebellion it 's hard to punish Men upon a Supposition who worship God in a way that may be acceptable to him And though I can and do conform to what the Church enjoyns yet I have so much charity as to believe that the Protestant Dissenters are in a direct way to Heaven though they do not use the Ceremonies commanded by the Church provided that they worship God in fear with a good Conscience and live according to the Rule of his Word If they love Mercy do justly and walk humbly with God But if a Man professing himself to be of this or that Church shall believe that he may take greater liberty because of his profession I fear it will not much avail him at the last day It 's the Heart that God regards he requires Mercy rather than Sacrifice The Protestants in France are at this time under great Persecution and if we continue to prosecute the Protestant Dissenters here what incouragement can they have to come over hither in hopes of bettering their condition since they will be under the same circumstances with our Dissenters and if not here where can they hope to be relieved And thus their condition is made desperate The prosecution of Dissenters at this time must be for one of these Reasons as I apprehend Out of regard to our Oath or under pretence of serving the Church to assist Popery or else because we are persuaded that they cut off the late King's head If it be out of regard to the Oath then it must be remembred that there lies the same obligation upon us to all other Laws that are within our Charge but we are more especially bound to execute those Laws which immediately respect the glory of God and the common Good and there are several Laws which if duly executed would tend more to the glory of God than prosecuting of Dissenters As common Prophaneness and open Debauchery and the great abuse of Sunday and prophaning of God's Worship by coming drunk to Church and when the Service is over return again to their tippling and spend the rest of the day at that work and yet think they do very well they think they can go to their Houses justified because they can roar and swear they love the King and the Church and wish the confusion of all people who do not with them run to the same excess Whereas they are not to be trusted by the one and are a reproach to the other And the knowledge of these things might easily be come at if we made it as much our business to inquire after these things and incouraged the Informers thereof as much as we do the Informers against the Dissenters The second Reason of prosecuting Dissenters is Under pretence of serving the Church to assist Popery but this is so abominable a piece of Hypocrisie that I hope no Man who professes himself a Protestant will ever be guilty of it The third and last Reason is Because we are persuaded that it was the Dissenters who cut off the late King's head But that can be no inducement because first there is no such publick Judgment passed for it is not declared who did it and there are more who believe it was the Papists than that believe it was the Dissenters and it 's most probable the Papists did it by reason of the great joy at Rome upon the News and the Papists here in England said publickly That now their greatest
Enemy was dead when their King was beheaded And besides there is a very good argument that the Dissenters hand did not give that stroak in regard they were chiefly instrumental in his Majesties Restauration whilest many who called themselves the Loyal Party sate still at home Or if it were as some say that the Dissenters did that fact yet we cannot justifie the prosecuting of them for that reason because it would be a breach upon the Act of Oblivion a Law that was and is so necessary to settle the distractions of the Nation and he who would destroy that which compos'd our differences does what in him lies to bring in confusion There are several Laws which are not Temporary nor are they repealed by any other Statutes and yet are laid aside as useless because the Reason of them is ceased and Laws cease when the Reason of them ceases as our Lawyers say And if so I cannot tell whether it is not a very good argument why the Dissenters should not be prosecuted upon the 22d of this King seeing they cannot be charged to have preach'd unsound Doctrine nor to be guilty of any contrivance against the Government I wish the Church of England stood upon a broader foundation and the prosecution of Dissenters would increase the Number of Souls but truly I have not heard that it has had that blessed effect nay I doubt it has wrought the contrary way For the reason of it is plain because the English people are very inclinable to pity any that are in distress nay though they are punished justly but when they see any in trouble on the account of some small difference in Religion they not only pity them but after a while do favour their case And if the Laws had been put vigorously in execution against the Papists before the discovery of the Plot they would have found a great number who would have pitied them though the very name of Popery is detestful to the generality of the Nation As no Man knows his own heart certainly by reason of the deceitfulness of it so it is impossible for one Man to know anothers thoughts and if any Man that prosecutes the Dissenters does it for these reasons that I have mentioned or for any other I hope he has a good end in it and acts according to his Conscience and then I wish him good success If I were a busie Man in prosecuting of people for Non-conformity I 'll tell you in what method I would proceed but by this I don 't pretend to prescribe any Man what he should do if I can govern my self a-right it 's as much as I desire I don't take my self to be very able to instruct others In the first place I would begin with the Papists because they differ with us in Doctrines and therefore we and they can never agree unless one side yield wholly to the other I would inquire after the times and places of their Meetings and watch them so narrowly that they should hardly escape me and I would make it my business to find out their Priests that the Law might pass upon them and this I would the rather do because I am persuaded that many Papists would live peaceably with us if there were an effectual Law to keep out the Priests and these Incendiaries I would leave them no rest for the Souls of their feet but I would hunt them out of the Country For by reason of not putting the Laws in execution against the Priests that bloody Massacre happeded in Ireland in which there perished at least 200000 Protestants Now when I had perfectly subdued the Papists that they might do us no hurt then I might be at leisure to fall upon others who did not conform to the Church And if upon the Informations it did appear that they preached unsound Doctrine or Sedition I would not fail to rout their Meetings but upon every information I would examine whether what was preached was unsound or seditious because the 22d of this King was made chiefly to prevent Sedition and as to all other Laws I would not be wanting in my duty to serve the Church Only as to the 35th of Queen Elizabeth some doubt would remain with me First Because the Papists are not within that Law and it is more severe than any Law now in force against the Papists Secondly Because I cannot find that any Man has been punish'd by that Law if any have the presidents are very few and that Law was made upon a supposition of evil practices at their Meetings as was that of the 22d of this King and I am verily persuaded that the reason why few or none have been punish'd by that Law is because they have not been detected of any Sedition or Practice against the Government But if I did put that Law in execution I would do it against one as well as another though they made a great stir for the Church it should not excuse nay with me that should be an aggravation of their offence and I doubt that there are a great many who pretend themselves very zealous for the Church and cannot with patience bear with others who cannot go so high as they do and yet are notorious Offenders against this Law of the 35th of Queen Elizabeth Now by this method I apprehend I should incur the lesser censure and that the World would be more apt to believe that it was my concern for the Church that made me so zealous provided my Life and Conversation were agreeable to that of a good Christian or otherwise I should have much ado to persuade the World that my End was good unless I led a good life For whenever any have professed themselves Zealous for their Church and their Lives have not been answerable to their Profession in the end it has proved that their Zeal was but a pretended one to facilitate and carry on some selfish or ill design and of this there are multitudes of instances and not one to the contrary that I have met with and the reason of it is obvious to every Man for why should he have a real Conserve for the Church who by his Life dishonours God Neither do I believe that I should convince the World that I was zealous for the Church if I fell upon the Dissenters and did not first begin with the Papists For to think that the Papists can be good Subjects as Papists and that the Dissenters are equally dangerous with the Papists proceeds from the same Principle which is a false one Having said this I will in the next place offer my advice to the Dissenters That in regard there are such Laws which stand unrepealed and that many are of opinion that they ought to be put in execution without examining whether any Sedition or Rebellion is hatch'd at those Meetings and that those Meetings may be lookt upon as a contemning of the Government and may give offence I think they would do very well
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
tho' the Cause of War had been expresly against his Life yet as one Swallow does not make a Summer so neither does one Precedent prove the Point but besides in that case of Charles the First to infer from thence that the Kings Death is principally intended by levying of War is altogether as weak an Argument as to say because a thing falls out by accident therefore that very thing was the principal Design and Aim of the whole Action For in that War those who first took up Arms did it to oppose the Kings Arbitrary Practices and tho' he was afterwards put to Death yet it was altogether against their intent or desire and most of the Army was against it and would have prevented it but that they were at that time so broken into Factions and Parties that they durst not trust one another for after the Tragedy was acted those who first took up Arms immediately upon it laid them down and were afterwards the chief Instruments in the Kings Restoration But if the Kings Death is the principal thing designed by levying of War To what purpose is the War levyed cannot the King more casily be taken off by poyson or a Private Assacination to the effecting of which opportunities cannot be wanting and so with more certainty they obtain their End and run less hazard in the executing of it than they would by a War except they are not content to Murder him unless they cut the Throats of all those that would defend him Indeed to do it by an open War rather than Poyson or a private Assacination is the more generous way for they give him warning and timely Notice to look to himself like a generous Enemy that scorns to kill his Adversary basely 'T is indeed to go round about for the nearest way Therefore a War when levyed must be for some other intent then to take away the Kings life since when Englishmen enjoy their Rights no Prince is so great and happy in the Heads Hearts Hands and Purses of his Subjects than an English King is But yet allowing that upon every War levyed the Death of the King would certainly ensue if the Rebels prevail yet this Question does not naturally arise Viz. Where is that Statute which does in express Terms say that a Conspiracy to levy War is Treason For if it be not so expresly and literally within some Statute then it is a Constructive Treason and consequently no such Treason as upon which the Judges may proceed if the Statute 25th Edward 3d. was made to any purpose for that Statute restrains all Constructive Treasons or none but if the Judges may in any one Case make a Constructive Treason they may do it in all and so we are left in the same uncertainty about Treason as we were before the Statute 25th Edw. 3 was made If the Judges might Judge upon Constructive Treason yet it seems to be a far fetcht Construction to make a Conspiracy to levy War an Overt Act of compassing the Kings death for this is not to be provably attainted by Overt Deed. First Because that Conspiring the Death of the King and levying of War are two distinct Species of Treason and therefore it would be very unnatural and too much forc't to joyn these two together and as it were to unite them that are so different and diverse not only in the manner and Matter of Proof but also in themselves For then Secondly a Conspiracy to commit any other Treason may also be called an Overt Act of imagining the Kings death which was never yet pretended Thirdly A Conspiring of any one Treason may be an Overt Act of any other Treason Fourthly Any other Criminal Act may as well be called an Overt Act of Conspiring the Kings Death Fifthly This is to make it a Treason of it self for there is very little difference betwixt calling a thing Treason in it self and to make it an Overt Act of some Treason within the Statute Sixthly A Conspiracy to levy War was not Treason at Common Law Seventhly The Statutes of the 23d of Elizabeth and the first and 3d Jac. 4th which make it High Treason to Reconcile any to the Church or See of Rome or to be so reconciled were enacted to no purpose if a Conspiracy to levy War is an Overt Act of compassing the Kings Death for what can tend more plainly and directly to levy War than to perswade the People to renounce their Allegiance to the King and to promise Faith and Obedience to some other Power so that these and all other Statutes concerning Treason which have been made since the Statute 25th Edw. 3d. are as so many Confirmations of it and prove that the Judges can call nothing Treason but what is literally such within that or some other Statute Eighthly My Lord Cook says That a Conspiracy to Levy War is not Treason unless the War be levyed in facto and questionless his Opinion is very good Law because in many Cases it is not Treason to levy War and a Fortiory a Conspiracy cannot for look into the Statute First of Queen Mary 12th where it says If any Persons to the Number of twelve on above being assembled together shall intend go about practice or put in ure with Force and Arms unlawfully and of their own Authority to change any Laws made for Religion by Authority of Parliament standing in force or any other Laws or Statutes of this Realm or any of them the same number of twelve or above being commanded or required by the Sheriff of the Shire or by any Justice of Peace of the same Shire or by any Mayor Sheriff Justices of the Peace or Bayliffs of any City Borough or Town Corporate where any such Assemblies shall be unlawfully had or made by Proclamation in the Queens Name to retire and repair to their Houses Habitations or places from whence they came and they or any of them notwithstanding such Proclamation shall continue together by the space of one whole Hour after such Commandment or Request made by Proclamation or after that shall willingly in forcible and Riotous manner attempt to do or put in ure any of the things above specified that then as well every such abode together as every such Act or Offence shall be adjudged Felony And if any person or persons unlawfully and without Authority by ringing of any Bell or Bells sounding of any Trumpet Drum Horn or other instrument or by Firing of any Beacon or by malicious Speaking of any Words or making any Outcry or by setting up or casting of any Bill or Writing or by any other Deed or Act shall raise or cause to be raised any persons to the number of twelve or above to the intent that the same persons shall do or put in ure any of the Acts above mentioned and that the persons so raised and assembled after Commandment given in form aforesaid shall make their Abode together in form as is aforesaid or in forcible
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
mans pleasure so we hold our Religion as precariously because a Prince can impose upon Slaves what Religion he pleases France is so pregnant an Instance of this that it puts the thing out of Dispute For while the Protestants kept their Liberties all was well with them yet no sooner was that wrested out of their hands but it was quickly seen what became of their Religion I have always thought that they began at the wrong End who reckoned themselves out of all other danger whilst they enjoyed the Exercise of their Religion it will not be denyed but that Liberty is a great Security to the free Exercise of Religion but if our Civil Rights are assaulted I don't see by what means Religion can rescue them out of Violent hands Besides there are many Instances where Religion has been used as a Stalking Horse to enslave a Nation For did ever any Man pretend to have a greater concern for the Church than Charles the 2d and yet no man more designed the Ruine or the Nation than he did which Example may occasion the People to suspect some Design upon their Liberties when the Prince pretends the greatest Care for Religion unless he be a man of great Morality and Religion appear in his Life and Practice as well as in his Words and Promises For it is scarce passible to inslave a free People by direct Force and therefore they must be gulled out of their Liberty by Art and underhand Practice and there cannot be a better blind than a pretended care for Religion to keep the people from observing what is designed against them So that if any thing is worthy of their Care it is their Liberty and in doing so you do the part of Loyal Subjects and good Christians whereas by the neglect of it you expose every thing that is valuable so you also lay a snare in the way of your Prince thereby tempting him to think of that which otherwise might not have come into his Thoughts And this Care is never to be neglected not even when any thing goes to their hearts Desire lest whilst you speak Peace to your selves there comes upon you sudden destruction For a Design is more likely to take effect when people suspect no such thing than when they stand upon their Guard There are many ways of Working People up into a Security of all which Promiles are the most fatal for without Performance they become Snares and therefore it is upon Actions and not upon words that a Wise Man will ground his Belief or Opinion Consider what is done and not what is said for whoever he be that is so wicked as to have a Design of inslaving the Nation he will never make a difficulty of promising very largely If then we ought to take care of our Liberty how ridiculous is it to talk of Serving the Crown when by that is meant To make the Kings Will and Pleasure the Measure of their Obedience it must be a mere Nonsensical Boast to talk at that rate when they have stript themselves of the means of Serving like Rational Creatures for when men have given up their Liberty what does all their Service to the Crown differ from that of a Beast The Service that we do for our Prince should be like that which we render unto God not a forc't and constrained but a free and reasonable Service So that I think I may say That he who hopes to recommend himself to his Princes Favour by such a piece of Service must needs be a very profligate Wretch and believe his Prince to be altogether such a one as himself For such a design is altogether unlawful because it is destructive to the Nature and End of Government Contrary to the Kings Coronation Oath inconsistent with Reason and a Violation of that Trust and Confidence which the people repose in the King For as I take it The Power that is lodged in the Crown is only a Trust and nothing more for he must have that Power either as a Trust or a Property and if he holds it as a Property then no Bounds or Limits can be set to it and he may use it as to him shall seem most meet What will Laws then signify To what purpose is the Coronation Oath and all those other Cautions that are taken to oblige the King to Govern according to the Laws and laudable Customs of the Realm and then every Prince that has been Deposed for committing Violence and Oppression was highly injured for there would be no other Standard of Right and Wrong but that of his Will and Pleasure But it is a common Practice to depose Kings when they become a Burthen to the People that being the proper and only remedy in such Cases For let any man tell me if he can whether the Liberty that remains in the World has been or can be preserved by any other Means than by that Power that is used in the people of laying aside such Kings whose Administrations become exorbitant For the Number of ill Kings exceeds so much that of the good ones that Liberty had been before this day swallowed by Prerogative without some such check and because so very much good or hurt is in the power of the Prince the value of a good King is inestimable To be delivered out of the Hands of an Oppressing King is a great Mercy yet such a price when put into the Hands of any People is seldom improved as it ought to be For Tacitus makes this Observation upon the Fall of Nero That the first day after the Reign of a Tyrant is always the best This is a great Truth and a Rule that has no exception For this several Reasons may be given For generally the people are so transported upon being eased of their Burthen that they neglect to make such provisions as are necessary to prevent the like Irregularities for the Future either from belief that no other man will be Wicked to the like degree or else from the fond Opinion that they conceive of him who was the chief Instrument of their Deliverance trusting that the same Principle of Honour and Justice that incited him to stand up in their Defence will prompt him to do all those things that are needful to settle the Government upon a lasting Foundation Which was something our Case upon the Restoration of King Charles 2d only with this Difference that instead of Repairing the Breaches which his Father had made the mistaken Loyalty of the Age helpt to make them wider Another Reason for Tacitus his Observation may be this Because the chief Instrument of their Deliverance altho' he appeared very zealous on their behalf yet he aimed at nothing but getting the Crown as it was when the Dauphine of France came over to assist the Barons against King John his Declaration was full of nothing else but the English Liberties yet it afterwards appeared that his Design in assisting them was only to get into the
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
the King strove to please the People and they were willing to gratifie him by conniving at his Faults But besides all this the Law of Nature is to be considered and this Law cannot be extinguished by any other Laws whatsoever And this I never heard any man deny The Law of Nature commands Self-preservation and then I would ask whether I am to obey him that will destroy me If we shall have a Prince that plainly declares either by his Words or Actions that he will change our Government and Religion or that he will give us up to a Foreigner or else that he will govern by a standing Army and take away our Properties must I obey him must I not endeavour to rescue my Self and Country from Ruine for in the Saxons time Treason did not relate to any thing but the Government and the general Concern of the Nation and not to the single Person of the King and now though it be Treason to kill the King yet it is only in order to the Publick Good and therefore with the Saxons all Indictments against Legience concluded Feloniae Proditoriae but against the Person of the King only Feloniae But in our days we find things are crept in that is difficult to tell how or when they came in And you shall find in all our ancient Laws that whatever was decreed or enacted was for the Common Good and the King was not concerned otherwise than so far as related to the Common-wealth though I know in our days another Opinion is asserted which I am sure cannot be maintained That all things must give place to the King 's particular Interest For my own part I will obey the King but I think my Obedience is obliged no further than what he commands is for the Common Good Our Government ever since the Conquest has proceeded upon the Saxon Principles and they were grounded upon Self-preservation which I do not find to be repeated by any Act of Parliament for all our Lawyers do agree That it is Treason to subvert the Government and if so without doubt our Allegiance the Laws of God and of Nature command us to defend them I will detain you no longer but only to consider this one thing Whenever we have a Popish King we must expect an alteration at least in our Religion for though he take all the Oaths and Declarations that can be devised yet it ever stands in the way to oppose the Interest of Rome they must all give place and it is meritorious to break those Engagements for that purpose or at worst hand be certainly pardoned if he presume to do it without a Dispensation and it is no more in his power to preserve our Religion than it is for him to work an Impossibility And therefore whether it is better to oppose a Popish Successor seeing we have the practice of our Forefathers to justifie us in it and besides he cannot if he would defend us or else to suffer him to rest in the Throne to destroy all we have and bring in a Religion that will damn Millions of Souls from Generation to Generation And if we may not defend our Religion then we must absolutely depend upon Providence in every thing and not put out our Hand to help our selves up when we are fallen into a Ditch This is the Case and here is an end of all Human Policy but without doubt it is our Duty to do our Endeavours and leave the Success to God Almighty and his Will be done THE CASE OF WILLIAM EARL Of Devonshire ON Sunday the 24th of April 1687. the said Earl meeting on Collonel Culpepper in the Drawing Room in White-hall who had formerly affronted the said Earl in the said King's Palace for which he had not received any satisfaction he spake to the said Collonel to go with him into the next Room who went with him accordingly and when they were there the said Earl required of him to go down Stairs that he might have Satisfaction for the Affront done him as aforesaid which the Collonel refusing to do the said Earl struck him with his Stick as is suppos'd This being made known to the King the said Earl was required by the-Lord Chief Justice Wright by Warrant to appear before him with Sureties accordingly April 27. he did appear and gave Bail in 30000 l. to appear the next day at the King's Bench himself in 10000 l. and his four Suretles in 5000 l. a piece who were the Duke of Somerset Lord Clifford the Earl of Burlington's Son Lord De-la-mere and Tho. Wharton Esq eldest Son to Lord Wharton The Earl appeared accordingly next morning and then the Court told him that his Appearance was recorded and so he had Leave to de part for that time but upon the sixth of May he appear'd there again and being then requir'd to plead to an Information of Misdemeanour for striking the said Collonel in the King's Palace he insisted upon his Priviledge That as he was a Peer of England he could not be tryed for any Misdemeanour during the Priviledge of Parliament and it being then within time of Priviledge he refused to plead the Court took time to consider of it till Monday which was the last day of the Term and the Earl then appeared and delivered in his former Plea in Parchment the Judgment given by the House of Lords in the Case of the Earl of Arundale 3 Car. was urged on the behalf of the Earl viz. That no Lord of Parliament the Parliament then 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 Surety for the Peace And also that the like Priviledge was about two years before allow'd in the Case of my Lord Lovelace The Court over-rul'd the Earl's Plea and requir'd him to plead to the Information the first day of the next Term and to be a Plea as of this Term and so he had Leave to depart but his Sureties were not called for to see if they would continue as his Bail The next Term he appeared and pleaded guilty to the Information and so the last day of the Term the Court did award That he should pay a Fine of 30000 l. be committed to the King's Bench till it be paid and to find Sureties for the Peace for a year To all which Proceeding and Judgment three notorious Errors may be assign'd I. The over-ruling of the Earl's plea of Priviledge II. The Excessiveness of the Fine III. The Commitment till it be paid 1. The over-ruling the Earl's plea of Priviledge is a thing of that vast consequence that it requires a great deal of time to comprehend it aright and is of so great an extent that more may be said of it than any one man can say The Judgment seems to be very unnatural because an inferiour Court has taken upon it to reverse a Judgment
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 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
Qualifications but whether King Charles therein follow'd his own Inclinations or was impos'd upon in what he did I will not now enquire further lest I should be thought to take too far into the Ashes of the Dead and therefore I will leave other People to judge whether he that understood all other things so well could be so very grosly impos'd upon in this or that he could be over-reach'd by his Brother whose Intellects were so much inferiour to his Thus by the alurement of Preferment and Employments they did hope to draw in many Protestants to lend their helping hand because without their assistance they could not carry on the Work and though Employments could not be had at any other rate yet the Looseness and Debauchery that had then overspread the Land to which the Example of the King had not a little contributed had prepared a sort of Men to take Preferment on those terms and the more effectually to do the Business they were to carry it on under the disguise of Loyalty and the Church for with these they varnish'd over all those unreasonable things that were impos'd upon us and indeed the Tools work'd very keenly for as their Zeal was without Knowledge so they went on at that furious senseless rate as thereby they quickly gave all thinking Men to understand that the Church and Government that was to be here establish'd the one was to be supported by Persecution and the other by Force But that I may open this matter more clearly I must observe that the force of all their Endeavours seem'd to tend more especially to set up Arbitrary Power and the reason of it was because if they attain'd that they were certain to carry the other and in this they follow'd the method that has ever been taken to introduce Popery for if a People are once made Slaves it 's easie to impose any Religion upon them So that if we can keep our selves Freemen we need not fear the loss of our Religion Now they could not think of any way of raising the Prerogative to so high a pitch unless by aluring some Body of Protestants to go on blindfold with them in their design and to that end they pitch'd upon the High Church Party believing if they were practised in their Revenge upon the Dissenters they would not much examine the consequence of what might be desired by the Court. And accordingly this Traffick betwixt the King and that Party was first transacted in Parliament where for every Severe Law against the Dissenters the Church Party gave the King either a Limb of our Liberties or a good Additional Revenue or a considerable Tax And thus they drove a subtile Trade till the Design grew a little more barefae'd or some of that Party proved more honest than was expected whereby it became impracticable to carry on the matter further in Parliament And so at Oxford the King took his last Farewel of Parliaments Having thus shak'd hands with Parliaments he then tryed what he could do by Rewards and Terrors turning out of all Commissions and Employments such as would not comply and filling up their rooms with Men of a contrary Complexion thereby gratifying the Ambition of some and the Avarice of others by reason of which there sprang up a sort of Men that were distinguished by the Name of Tories whose Principle it was to serve the King without asking a Question which is as much as to say They were oblig'd to do every thing they were commanded These were the Men that brought on Addresses Loyal Tory Clubs and Presentments and were the chief Promoters and Instruments in taking away Charters which struck at the very Heart of the Government And I cannot but with amazement remember how by their Addresses they courted the King to make them Slaves and when they had a New Charter upon the surrender of the Old one with what demonstrations of Joy did they receive it as if it had been their Glory to put on Chains and at the same time reproaching every man as disaffected to the Government who would not consent to give up the Rights of other People or sacrifice the Government The surrender of Charters was quickly followed by Sham-plots against the Protestants and to have the better effect of them new Constructions of Law were invented whereby many worthy Patriots fell Whilst these things were transacted the Penal Laws were violently put in execution against the Dissenters but the Papists went scot-free nay even those very Laws that were made against them were turn'd upon the Dissenters and whenever there was any seeming Prosecution of the Papists it was only to have a fresh Pretence to fall upon the Dissenters for the Papists were by particular Order slipt over Thus the pushing at Dissenters became the Characteristick or Make of a true Son of the Church of England for if a Man were violently bent against them he was a good Son of the Church though his Immorality and Debauchery had made him a Reproach to any Church After all this the Clergy brought up the Rear with their Doctrine of the Divinity of Kings and Non-resistance thereby to give a Sanction to all the rest which reduced the matter into a very narrow compass inferring from thence that the King has as natural a Right to our Allegiance as we have to the Obedience of our Children and that under the pain of Damnation he was not to be disobey'd It 's strange that Doctrines the one so destructive to the Right of Kings and the other so inconsistent with the Nature of Government should obtain so much had not the Higher Powers supported its Credit for that Patriarchal or real Right dethrones all the Kings on the Earth but one and leaves the World at a loss in the rightful Heir of Adam for there can be but one at the same time that can claim as Heir to Adam and consequently all the rest of the Kings are Vsurpers And here they are in a Wood themselves for they can no more tell you who is not the right Heir to Adam than they know who is Now should any one tell me that my Estate was more considerable than I apprehended it to be because I might turn out all my Tenants that held by Lives or Years but that withal it was Five hundred to one that some body else had a better Right to it than I have perhaps I might thank him for his Information but at the same time wish my Estate were less and my Title to it better Even as little are Kings beholden to them who perfwade them to quit the Title that the Government gives them to the Crown to seek for a better as claiming under Adam whereby they may be more at liberty to act by their will for if he thinks his best Title is by Descent then it 's possible that one of his Subjects may have a better Right to the Crown than himself As it fell out with William the Conqueror when
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
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
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