send for any person but without that they cannot and therefore I do not see wherein a Justice of Peace has a greater power than the Privy Council or if he had yet it would not be so great a Mischief for he can only send for any person that is in the County but the Privy Council are not limited to this or that County but their power extends all over England But besides it is unjust to be punisht without a cause and restraint or being debarr'd of Liberty is a punishment and whoever he be that would have the Privy Council to exercise this Power when he has known what it is to be brought up by a Messenger upon an Idle Story let him then tell me how he likes it and answer me if he can A SPEECH AGAINST THE Bishops Voting In Case of BLOOD OF all the things that were started to hinder the success of the last Parliament and is like to be so great a stumbling-block in the next That of the Bishops Voting in Case of Blood was and will be the chief Now they that deny that the Bishops have right to Vote in Case of Blood do labour under two great difficulties first because this is a new thing at least it is very long since the like Case has come into debate And next because they are put to prove a negative which is a great disadvantage But Truth will appear from under all the false glosses and umbrages that men may draw over it And I doubt not to make it evident that the Bishops have no right to Vote in Case of Blood at least I hope I shall not be guilty of obstinacy if I do not alter my opinion till what I have to say be answered It is strange the Bishops are so jealous of their Cause as not to adventure it on their great Diana the Canon Law by which they are expresly forbidden to meddle in case of Blood Perhaps they would do by the Canon Law as it is said by the Idolaters in the Old Testament that part of the timber they made a god and fell down and worshipped it the rest of it they either burnt in the fire or cast it to the dunghil For they tell you that the Canon Law was abolisht by the Reformation and that none but Papists yeild obedience to it and therefore now they are not tyed up by the Canon Law but may sit and Vote in case of Blood if they please I should be very glad if they were as averse to Popery in every thing else and particularly that they would leave Ceremonies indifferent and not contend so highly for them whereby they make the breach wider and heighten the differences among Protestants in the doing of which they do the Pope's work most effectually I wish they would consent to have a new Book of Canons for those that are now extant are the old Popish Canons I like Bishops very well but I wish that Bishops were reduced to their primitive Institution for I fear whilst there is in England a Lord Bishop the Church will not stand very steddily But I will leave this though I need say no more and proceed to other things that are very clear as I conceive My Lord Cook in the Second Part of his Institutes the first Chapter treating of Magna Charta when he reckons up the Priviledges of the Church he tells us that Clergy-men shall not be elected or have to do in secular Office and therefore he tells us that they are discharged of such and such burdens that Lay persons were subject to and good reason it should be so that they might with greater ease and security attend the business of their Function that is to govern and instruct the Church But whether they had these Immunities granted them that they might study the Pleas of the Crown and Law Cases or else that they might apply themselves to the work of the Ministry let any Man judge for saith he Nemo militans Deo implicet se negotiis secularibus And if to sit and judge in case of Blood be not a secular Matter I have no more to say and I hope my Lord Cook 's Authority will be allowed And because as I conceive that my Lord Cook 's Authority may pass Muster in this point I will offer some things out of him that will make it evident that the Bishops are only Lords of Parliament and not Peers and if so it is against the Law of England for them to sit and judge upon any Peer for his Life for the Law says that every Man shall be tried by his Peers In the Second Part of his Institutes the first Chapter he tells us that every Arch-Bishop that holds of the King per Baroniam and called by Writ to Parliament is a Lord of Parliament But in the 14th Chapter when he reckons up who are Pares in the Lords House he says not a word of the Bishops but repeats all the other Degrees of Lords as Dukes c. And without doubt he would not have made so great an omission if the Bishops ought to have been taken into the number Besides this if the Bishops be Pares how comes it to pass that an Act of Parliament shall be good to which their consent is not had passed by the King Lords Temporal and Commons But it was never allowed for an Act of Parliament where the Lords Temporal had not given their Vote And for proof hereof see my Lord Cook in his Chap. De Asportatis Religiosorum where he gives you several Instances of Acts of Parliament that passed and the Bishops absent But then in the Third Part of his Institutes he there puts the matter out of all controversie and shews that Bishops are to be tried by Commoners for says he in the second Chap. treating of Petty Treason None shall be tried by his Peers but only such as sit there ratione Nobilitatis as Dukes c. and reckons the several Degrees and not such as are Lords of Parliament ratione Baroniarum quas tenent in Jure Ecclesiae as Arch-Bishops and Bishops and formerly Abbots and Priors but they saith he shall be tryed by the Country that is by the Free-holders for that they are not of the Degree of Nobility So that with submission this is as clear as any thing in the World If the point be so clear that the Bishops may Vote in case of Blood it would do well that some Presidents were produced by which it might appear that they have ever done it at least that they have made use of it in such times when the Nation was in quiet and matters were carried fairly for Instances from Times of Confusion or Rebellion help rather to pull down than support a Cause But my Lord Cook in his Chap. that I mentioned even now De Asportatis Religiosorum gives you several Presidents where the Bishops when Capital Matters were to be debated in the Lords House withdrew themselves particularly 2 of
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
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 Parliaments are
Rich. II. the Arch-Bishop of Canterbury made a solemn protestation in the Parliament for himself and the Clergy of his Province for that Matters of Treason were to be entreated of whereat by the Canonical Law they ought not to be present they therefore absented themselves But in regard I have hitherto voucht my Lord Cook for what I have said I desire that it may be observed that he wrote since the Reformation and what was Law when he wrote is Law at this day unless it be changed by some Act of Parliament made since and therefore he that denies my Lord Cook to have written Law must produce some Act of Parliament whereby it does appear that the Law is altered since his time Besides this the Bishops and other Clergy were called to Parliament very uncertainly sometimes more sometimes fewer and sometimes none at all as it was in Edw. I. time Therefore seeing the case to be thus That the Bishops are not Peers but only Lords of Parliament That an Act of Parliament is good though they be absent That they are to be tried by Commoners And that when Capital Matters were to be debated they have withdrawn themselves declaring at the same time that they ought not to have to do in such things And also that they have not so absolute a Right to sit and Vote in the House as the Temporal Lords have because they are called to Parliament so uncertainly I shall be glad to hear what can be said to make their Right unquestionable But if all this were set aside yet it remains on their part to prove that they have sate in Judgment upon the Peers I am apt to believe they will be hardly put to it to produce any President out of good Times when the Nation was in quiet and the Law had its course Nay I think they can scarcey find any that the Proceeds of that Parliament when it was done were not repealed by Act of Parliament and stand so at this day And I should also be glad to see that when a Peer has been tried out of Parliament that any Bishop was ever nominated to sit upon that Lord accused for out of Parliament if a Peer be tryed for his life it is by a select Number named by the King and if the Bishops have Right to sit and Vote upon the Peers it is strange methinks that there is not any Instance to be found where the Bishops or any of them have been named to Judge a Lord out of Parliament Now the reason as I conceive how this comes to pass is because it was never known that a Bishop was tried by the Lords out of Parliament and therefore they cannot try a Lord out of Parliament because they are not Peers for the Lords have never tryed any Bishop but in Parliament and that was always upon Impeachments and not otherwise And upon an Impeachment they may try other Commoners as well as Bishops Besides this it is plain that the Clergy even in the time of Popery would not have to do with Blood in any case whatsoever For when they engrossed all Offices and Places of Honour or profit you shall not find any Bishop that was Lord Chief Justice of the Kings Bench or Judge of any Court where Mens Lives were to be meddled with and the Clergy were not so ignorant or backward in their Interest as to let slip such profitable places had it suited with their Function I have often considered with my self what it is that has induced so many of the Temporal Lords to contend for the Bishops in this case I cannot perceive but that it is against themselves that they strive for without doubt the fewer that the Temporal Lords are the more considerable they are and why they should strive to make themselves less I cannot comprehend neither can any reason be assigned but that which is obvious to every Mans Thoughts That there is some secret power that governs their Lordships in this Affair But without doubt this powerful hand would not be able to turn the Scales so very much if Nobility had been bestowed only on such as deserved Honour But when Interest prevails above Merit no wonder that a Word or a Look do command so absolutely And yet there is this to be said for the Lord's House that there are a great many Lords who retain the Worth and Honour of their Ancestors That notwithstanding being frowned upon displaced and all possible discouragements yet have they shewed themselves to be Men of English Principles that they will serve the King as Englishmen but will not give up any of their just Rights to please him If the Bishops had never so clear a Right in this matter the it is to be consider'd that whatever Right they have that it was gained in the times of Superstition and Blindness when the Clergy Usurped and Lorded it over the Nation and therefore in regard that England has now recovered its Eye-sight and Understanding they are very unthankful if they do not reduce every thing to its proper Station And if the Bishops are prohibited by a Law not to Vote in Case of Blood or are abridged in any other Matter where the Interest of the King and People require yet the Church is not prejudiced for my Lord Cook tells us in the second part of his Institutes Nec debet dici in praejudicium Ecclesiae libertatis quod pro Rege Reipublicae necessarium invenitur And whether it be not for the Interest of the King and People that the Bishops shall not Vote in case of Blood I submit to any Man that wishes well to England Now I would fain be satisfied why our Bishops are more forward to have to do in case of Blood than the Bishops and Clergy in the time of Popery it 's plain they always declined it but ours will adventure a Kingdom upon it It 's true they will withdraw upon the Tryal of the Five Popish Lords but they will not upon Tryal of my Lord D s Pardon yet thus far they condescend that when Judgment is to be pronounced they will withdraw Very well First it is confessed on all hands that if my Lord D s Pardon do not hold good he dyes for it And next I would willingly understand the difference in this case when a Man is tryed for his Life before several Judges and all of them though he is Innocent resolve that he shall be pronounced guilty but they withdraw themselves and leave one of their Brethren to pass the Sentence Now the question is Whether the rest that were absent are not as guilty of shedding Innocent Blood as he who pronounced the Sentence And so on the contrary for any other thing whatever And whether this does not reach the case in hand I humbly submit But the truth of the matter is the Bishops do know that if my Lord D s Pardon be allowed then Arbitrary Power comes in with a Powder And then will be their Harvest
and here 's the short and long of the case And therefore the Parliament must never yield that the Bishops shall Vote in case of Blood for the consequence of it will be to alter the very Frame of our Government and cursed be he that removes his Neighbours Landmark A SPEECH AGAINST THE PENSIONERS IN K. Charles II. Reign WIthout doubt the last Parliament had great Matters in agitation and the inquiry they made about the Pensioners of the preceding Parliament was no small one but rather one of the chief things they had in hand for had they been permitted to have perfected that it had been a good recompence for the disappointment which the Nation sustain'd in their other expectations by the suddain Prorogation And without all question nothing is fitter for the thoughts of a Parliament than to take into consideration how to punish them that had proved the Pest and had almost if not altogether ruin'd the Nation and how to prevent the like mischief for the future The Name of a Pensioner is very distastful to every English Spirit and all those who were Pensioners I think are sufficiently despised by their Country-men And therefore I will mention only two or three things that will lye at their doors before I offer my advice what is to be done Breach of Trust is accounted the most infamous thing in the World and this these Men were guilty of to the highest degree Robbery and Stealing our Law punishes with Death and what deserve they who beggar and take away all that the Nation has under the Protection of disposing of the Peoples Money for the honour and good of the King and Kingdom And if there were nothing more than this to be said without doubt they deserve a high censure Besides the giving away such vast Sums without any colour or reasonable pretence There is this great mischief will follow upon it Every man very well knows that it has put the King into an extraordinary way of expence And therefore when he has not such great supplyes it must of necessity bring the King into great want and need And shall not only give him an ill opinion of all Parliaments that do not supply him so extravagantly but perhaps put him to think of ways to get Money that otherwise would never have entred into his thoughts so that whatever ill may happen of this sort these Pensioners are answerable for it Furthermore they have layd us open to all our Enemies whoever will invade may not doubt to subdue us For they have taken from us the Sinews of War that is Money and Courage all our Money is gone and they have exhausted the Treasure of the Nation and when People are poor their Spirits are low so that we are left without a defence and who must we thank for bringing us into this despicable condition but these Gentlemen who notwithstanding this had the face to style themselves the Kings Friends and all those who opposed their practices were Factious and Seditious They had brought it to that pass that Debates could not be free if a Gentlemans Tongue happen to lye a little awry in his Mouth presently he must be called to the Bar or if that would not do whensoever any Gentleman that had a true English Spirit happen'd to say any thing that was bold presently away to seek the King and tell him of it and often times more than the Truth And thus they indeavoured to get an ill Opinion in the King of his best Subjects And their practice was the more abominable because their Words and Actions gave the occasion to force those smart Expressions from the Gentlemen that spoke them for their honest hearts were fired with true Zeal to their King and Countrey when they beheld the impudence and falseness of those Pensioners It 's true we find that in or about the 10th year of Richard II. it was indeavoured to get a Corrupt Parliament for our English Story says that the King sent for the Justices and Sheriffs and enjoyn'd them to do their best that none should be chosen Knights and Burgesses but such as the King and his Council should name but we find it could not be effected The next that occurs to my thoughts is that in the 4th year of Henry IV. the Parliament that was called at Coventry named the Lay-mens Parliament for the Sheriffs were appointed that none should be chosen Knights or Burgesses that had any skill in the Laws of the Land The next that I remember is that in Henry VI. time in the year 1449 or 50 when the Duke of Suffolk was Accused by the Commons and Committed to the Tower the King Dissolved that Parliament not far unlike our case of my Lord D but it differs in this that Suffolk was Committed to the Tower as of right he ought but we were deny'd that Justice against D only Henry VI. made the cases thus far even that he set Suffolk at liberty after he had Dissolv'd that Parliament Soon after a Parliament was called wherein great care was taken in choosing of Parliament Men that should favour Suffolk But they so far failed of their purpose that his appearance at the Parliament gave great distaste to the House of Commons and they were so far incensed that they began the Parliament with a fresh Accusation against him and others So that you may see that it was not in the power of the Court to corrupt the House of Commons In the time of Henry VIII about the 20th year of his Reign when the Parliament was active against Pluralities and Non-Residence there was an Act passed to release to the King all such Sums of Money as he had borrowed at the Loan in the 15th year of his Reign it 's said that it was much opposed but the reason that is given why it passed is because the House was mostly the Kings Servants but it gave great disturbance to the Nation And this is the only case that I can remember that comes any thing near to our Pensioners but we cannot find that they or any Parliament took Money to Vote So that we must conclude that there was never any Pensioners in Parliament till this Pack of Blades were got together Therefore Sir what will you do Shall these Men escape shall they go free with their Booty Shall not the Nation have Vengeance on them who had almost given up the Government It was they who had perverted the ends of Parliaments Parliaments have been and are the great Refuge of the Nation that which cures all its Diseases and heals it Soars But the Men had made it a Snare to the Nation and at best had brought it to be an Engine to give Money If therefore these go away unpunisht we countenance what they have done and make way to have Pensioners in every Parliament but far be any such thought from any Man that sits within these Walls And having said this I will in the next place humbly offer
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
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
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
cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that
the Laws have been more frequently stiled or called the Laws of the Land than the King's Laws and therefore if the Denomination of them declares the right the King will be found to have no very strong Title But if they had constantly been called the King's Laws yet that is a very Sandy Foundation to build a power upon of suspending and dispensing with them at his pleasure Now if they are the King's Laws then he only made them but if the Lords and Commons also had their share in the contriving and making of them then that Advice and Consent of theirs gives them such a Title to an Interest in them that they cannot be changed or altered no more than they could be enacted without their Consent for nothing can destroy a thing but the same Power that made it and therefore unless the King alone be the same power that enacted the Laws they cannot be properly called his Laws so as that at his will and pleasure he may dispense with them But if the Laws were made and enacted by him only yet it does not follow that the King may dispense with the Laws when to him it shall seem meet for there is no King so absolute but may be limited Thus we see the Eastern Kings who were as absolute as any Princes upon Earth yet were limited and restrained by their own Promises and Acts. Even that great King Abasuerus who had Ruled over 127 Provinces when he had made a Decree he could not revoke change or dispense with it for the Writing which is written in the King's Name and sealed with the King's Ring may no man reverse Esth 8.8 no nor the King himself which is clear from that famous case of the Decree to destroy the Jews to reverse or suspend which it 's plain he wanted not Inclination and if ever would then have exerted his full power for he was prick'd on by all the Spurs and Inducements that could be in any case yet all he could do was to give the Jews leave to defend themselves therefore if those Heathen Kings were so bound by their Word and Laws of the Country it 's reasonable to suppose that Christian Princes should be as much tyed up by their Words and the Laws and if the King be bound by his Word and the Laws which he shall not pass then is he under the same obligation as if he had actually given his assent to every Law that is now in force because he has given his Word and taken an Oath to preserve and maintain all the Laws And it seems something strange to hear of a power to dispense with Penal Laws there being so late a Judgment against it the late King in Parliament disclaiming it and the whole Case is very remarkable for during the interval of a Parliament he grants a Declaration of Indulgence and at the meeting of the Parliament tells them Nothing of force or constraint brought him to make that Confession but the Truth was too evident to be denied he had done it and would stand by it and should be very angry with any man that should offer to disswade him against it Yet though he had thus braved the Parliament within ten days openly in Parliament he disclaimed it and confessed that he could not dispense with a General Law and had ordered the Seal to be pulled from the Declaration Surely the Case must be very plain that the King after he had justified the thing so solemnly yet should so suddenly eat his words and confess himself in the wrong and to that Parliament too which had almost unhinged the Government to please him which no doubt would have complied with him in it had it been less than to lift the Government quite off of the Hooks And indeed to say that the King can dispense with Penal Laws is nothing less than to dissolve the Government and resolve all into the King's Will and Pleasure for our Parliaments are then but a piece of Pageantry or Puppet-show because in a word the King can annihilate all that they shall do in many Ages all the Provisions that they shall make for the Good of the Nation are but airy notions and painted shews they are and they are not just as the King pleases Now if the King can do this to what purpose have several things been done what means the Statute de Prerog Regis 17 Ed. II for certainly it 's a thing of a much higher and transcendent nature to have power to dispense with all Penal Laws than to have the Preheminence of the Subjects in some particular cases only That he has it not in all originally is plain from that of Appeals for in case of Murder the Appeal at the suit of the Party was to be tryed before the Indictment which was the King's Suit and this was so till Henry VII's time when it was alter'd by Act of Parliament and this carries in it a great probability that there is something in England that is his Superiour but Bracton and Fleta say That Rex habet superieres in regno nempe Deum Legem Parliamentum Nay the Custom of the Mannor shall bind the King Statutes to prevent Fraud shall bind the King The King cannot give the Penalty of any Statute to any Subject he cannot pardon a common Nusance how manifestly preposterous is it then to suppose that the King can dispense with Penal Laws and is restrain'd in these and multitudes of other things of the like nature It has always been taken for Law that where the Subject has an Interest the King cannot pardon and therefore he cannot pardon one found guilty upon an Appeal at the Suit of the Party But if he can dispense with all Penal Laws he may also pardon where the Subject has an Interest and so consequently dispense with all Laws whatever and then no man's Title to his Estate is good nor can any man settle his Estate securely for Fines and Recoveries being now the means used in Settlements and those being directed by particular Acts of Parliament if therefore the King for some particular necessary Reasons shall think fit to suspend those Laws all the Settlements in England will be strangely confused and of how excellent a use upon occasion it may be to dispense with those Statutes which direct Fines and Recoveries is very easie to comprehend Now this power of dispensing seems to be of a very late date for Fortescue who wrote in Henry VI's time tells us That the Kings of England cannot alter nor change the Laws of his Realm at his pleasure and the reason he gives of it is because he governs his People by Power not only royal but also politick which is by such Laws as they themselves desire and gives a very pregnant Reason why the King cannot alter nor change the Laws because the Laws of Men are holy And he shews likewise That this Restraint is no diminution to his Power but does rather aggrandize him it
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
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
discontinued that mutual Complacency is lost which otherwise the constitution of the Government does naturally produce betwixt King and People Changes seldom happen for the better and therefore the People will not be much delighted with the discontinuance of Parliaments because a more mild and equal way of governing has not yet been found out than what is prescribed by Magna Charta and though in this Change of Government the advantage should fall on the Peoples side yet they may suspect that there is Death in the Pot till it has proved it self by its effects because by how much the advantage is on their part by so much must the Kings Inches be pared and a desire to advance rather than restrain their Power is an Infirmity to which Kings as well as other Men are subject And those Arbitrary Symptoms which ever do precede the laying aside of Parliaments are no less than so many demonstrations that it must end in a Despotick Power For there are several things which are only Cognizable in Parliament and then this Dilemma will follow either that there must be a failer in Justice or if any other Court or Authority do hold Jurisdiction of them the whole proceeding would be Arbitrary As for Example The giving of Money the Repeal of Old Laws or Enacting of new Statutes and the last resort of Justice in Case of Appeals or Impeachments for should those or any of them be treated of but in Parliament the Government would thereby become intirely Despotick When a King attempts to find out a new way of governing it s an undeniable Argument that he is weary of the Old one and that King of England who is uneasie with the Ancient way of governing will never be pleased with any but what gives up all into his hands When any King of England has try'd the Experiment he has found in the Issue that he had better to have let it alone For whenever he has Wrestled with the People has in the Conclusion got the fall and often been crushed by it Then next to this like a younger Brother of the same ill Family and bears the second ill Character to the laying aside of Parliaments is when the Privy Council is turned into a Cabinet the former being only kept up for a shew and to give a Reputation to the Advices and Proceedings of the latter A Cabinet Council may at first seem but a small Evil yet it conceives and brings forth many Ugly Consequences For it is ever the fore-runner of the neglect of Parliaments which thing alone is sufficient to give the People an utter dislike of it And besides the King does hereby forbid all others but those of the Cabinet either to come near him or give him any Advice For what incouragement has any other of the Privy Council to offer their Sence considering that if it does not jump with that of the Cabinet their Advice shall not only be rejected but every thing that fell from them will be improved as much as it can bear to their disadvantage and therefore in a short time they will as much undervalue the Attendance at the Council-Board as the King does their Advice unless they are more fond of the bare Name of a Privy Councillor than they are of their Reputation for what greater slight can be put upon Men of Sense and Honour than to be used only as a Foil to set off the Transactions of other Persons not so deserving and worthy as themselves A Cabinet Council keeps the King in the dark he can hear but one side and that the wrong one too for honest Men seldom come there for if any such thing be proposed unto them unless they are less Wise than Honest Their Answer will be That in the multitude of Councillors is the King's safety When a King has entered a Cabinet Council he 'll hardly come out the same Man his very Nature and Disposition will be changed by the constant Converse and Insinuations of those that he calls into that place and so of a hopeful Successor may become a very indifferent King So great is the force of frequent and private Conversation He was a Wise Man who said That in governing the way as well as the end ought to be clear From whence no Argument can be rais'd for a Cabinet Council the methods of that being obscure and uncertain and in no sort consistent with the honest and plain way of this or any other popular Government for reason of State is not found in our Law Books or Statutes and the Arcana imperii mentioned by such as write of the Politicks are adapted for Governments where will rather than any known and certain Law is the measure of it for though the King of England may be never so well appized in the use of them yet he is never so much out of his way as when he puts that knowledge into practice and therefore plain and open Councils are the least suspected best understood and approved an honest man after he has told his Story is not afraid to let any man else be heard what he says is like true Mettal that will abide the touch Whereas the Advice of Knaves like Thieves or Beasts of Prey lurks in holes and shrouds it self under the Darkness is afraid to come near the Light because it will not indure the day And there is this further difference betwixt open and private advice for the former seldom fails and the latter as seldom meets with success This close way of giving and taking advice is ever attended with the Kings retiring from the sight of his People being seldom seen and more difficult to be spoke with For it is the Policy of such as have him in their hands to keep him as much as they can within their own Circle because it 's the surest way to maintain the ground they have got and to gain what they want But when a King thus hides himself it is because he is either ashamed or afraid to be seen and when he is shy of being seen the People in a short time will as little value the sight of him as he is willing to expose himself to view To be quick of dispatch and easie of access is the Character of a right States-Man and no Prince ever lost ground by practising it himself for the contrary Method ruines Friendship amongst private Persons and a King will quickly find the ill Effects of it It may be objected that familiarity breeds contempt but that King is very ill skilled in Mediums who is ignorant of the time and manner of receiving his Subjects so as to dismiss them from his presence with content and satisfaction without loosing that due distance that ought to be kept betwixt him and them And the lowest condescentions and meanest familiarity cannot loose a Prince so much as too much retiredness or being over-reserved And this retiredness like Twins born together is usually attended with such a slowness
Courage did not out-run their Discretion for they did not adventure to name the Prince of Orange but pretended the contrary to the Duke of Newcastle and used as much Artifice to delude him as if it had been of the highest consequence to secure him though he was attended by none but those of his own Family And there was as much preparation and consulting in order to surprize York as if it had been the most considerable Garrison in England though kept only by twenty Men and they as ready to yeild and declare for the Prince as they could have wisht And when they were possest of the Town they set strict Guards at every place and suffered none to go out or come in till they were fatisfied with their business and were as wary as if a considerable Force had been ready to sit down before the place And with the like Steps they moved at Notingham and other places And though no doubt they ingaged in the business with a great deal of Zeal and Resolution yet the Declaration of the cause of their Assembling was penn'd with great caution perhaps as a considerable Man amongst them said to keep themselves within the Statute for their Declaration neither charged King James with Male Administration nor complained of the danger we were in but the Sum of it was to joyn with the Prince of Orange in declaring for a Free Parliament Whereby they put it into King James his power to oblige them to put up their Swords as soon as he pleased for when ever he issued out his Proclamation for a Free Parliament they were bound in Honour to lay down their Arms And then what very great Service can they boast of who could hold their Swords in their hand no longer than King James pleased And though they may pretend to Merit highly yet not to the degree with those who moved forward to Joyn the Princes Army For by their Motion they prevented King James from having a true Account of their Numbers and as they would daily increase so every Account he had of them would make them still more confiderable They shewed thereby that they were resolved not to look back but would either conquer or dye They did not mince the Matter but spoke plain English of King James and of our Condition and thereby animated the Country as they Marcht and made all sure behind them so that the further they Marcht the greater Service they did for 500 Men thus moving would in a short time occasion 40000 to rise in Arms whereby in a few days they would not only be reported but in effect be so considerable and formidable as to support the Cause they had espoused and either reduce King James to Measures or drive him out of the Kingdom So that this seems to be the great thing that so astonished King James and put him to his Wits end For as to the Princes Forces their Number was not valuable and if pressed very hard would not too obstinately stand it out because it was evident they had a Retreat in their thoughts and accordingly had provided for it The desertion in his Army he could not much regard because it did not amount to 2000 Men till he ran away But as to those who intended to Joyn with the Prince of Orange his Army he would with dread behold the Storm coming upon him for he might observe the Cloud no bigger at first than a Mans hand increased so fast that it would quickly over spread the whole Heavens and prove so great a weight that it would bear down all before it for their Numbers would quickly swell very high and it could not be foreseen where and at what degree they would stop He might plainly see that they had thrown away the Scabbard and contemned the thoughts of asking quarter for as they could never hope for another opportunity to recover their Liberties if they failed in this so they very well knew the inexorable temper of King James that it would be to no great purpose to sue for his Mercy whereby being made desperate and abetted moreover by the whole Nation he must expect the utmost that could be done by the united Vigour of Courage Revenge the Recovery of Liberty and Despair all which would make up too strong a Composition for King James his tender Stomach and turn his thoughts from fighting to contrive the best way to save his Life and this was the Storm that drove him away from Salisbury Observations upon the Attainder of the Late Duke of Monmouth THAT which is done by King Lords and Commons is so Sacred as not to be called in question by any power on Earth and what they do is so very good that the Wit of Man cannot devise any constitution that can proceed with more Justice or be less subject to err than they when rightly in Conjunction And therefore whoever he be that proposes to have any of their Acts reviewed must take care to set his words in great order by reason that that which in an Inferiour Court might be called error will scarcely indure the soft name of a mistake if done by King Lords and Commons But however it does appear that they have reconsider'd what they have done and thereupon have many times found that they might do better than to adhere to their first resolve especially in cases of Bills of Attainder which for the most part have rather been expedient than that the strict Rules of Justice were pursued and though in so doing their wrath did seem to burn very hot yet in effect for little more than a moment and even to end with the blow that struck off the Criminals Head for upon the Petition of his Heir his Blood has seldom been deny'd to be restored and this proceeds from the great humanity of this Government The Law of England being a Law of Mercy does in many Cases appoint a grievous punishment rather in Terrorem than that the penalty should be rigorously exacted for which reason it is that so few Attainders are now in force If then those Cases have met with so much compassion the Case of the Duke of Monmouth may well hope for the like favour since there is not any argument for the reversing of any other Attainder that cannot be urg'd with as great force in the case of the Duke and besides there is no president of the like case to be found and whilest it remains in force is of dangerous Consequence The Law is so very careful to do right in every case that it will not allow that any Man be judg'd without being heard or at least that a convenient time be allotted him for it if he think fit to appear and it does also require that the fact be fully and sufficiently proved without both of which no Man can be convicted of any offence in the ordinary course of Justice and this is and has ever been reputed the undoubted Right and Priviledge of every Subject of
my thoughts what is to be done In the first place I do propose that every Man of them shall on their knees confess their fault to all the Commons and that to be done at this Bar one by one Next That as far as they are able that they refund all the Money they have received for secret Service Our Law will not allow a Thief to keep what he has got by stealth but of course orders restitution and shall these proud Robbers of the Nation not restore their ill gotten goods And lastly I do propose that they be Voted incapable of serving in Parliament for the future or of injoying any Office Civil or Military and order a Bill to be brought in to that purpose For it 's not fit that they who were so false and unjust in that Trust should ever be trusted again This Sir is my Opinion but if the House shall incline to any other way I shall readily comply provided a sufficient mark of Infamy be set on them that the People may know who bought and Sold them A SPEECH For the Sitting of PARLIAMENTS And against FAVOURITES A King of England at the head of his Parliament is in his full strength and power and in his greatest Splendor and Glory It is then that he can do great things and without a Parliament he is not very formidable Therefore when Kings leave off the use of Parliaments and rely upon the Advice of particular Favourites they forsake their chiefest Interest they lay aside the Staff that supports them to lean upon a broken Reed that will run into their hands and this is proved by the Example of former Kings What Kings perform'd such Enterprizes and did such wonderful things as those who still consulted their Parliaments And who had more the Command of the Peoples Purses than those Kings who met the Natives frequently in Parliament As Witness Hen. I. Edw. I. Edw. III. Hen. V. Hen. VIII Q. Eliz. and what Kings were so mean and obscure despised by their Neighbours and abhorr'd by their Subjects as those who left off the use of Parliaments and doted upon their Favourites As witness Will. II. King John Henry III. Edward II. Richard II. Henry VI. And I think it 's undeniable that when the King leaves off Parliaments he forsakes his Interest he refuses the good and chooses the bad I wish it could not be said that for two years last past the use of Parliaments has almost been laid aside It 's too true that Parliaments have been delayed and there is but a little between delaying and denying and the first step to a denyal is to delay Every Man knows the great need we have had of a Parliament these Seventeenth Months and why has it not met till now It 's very well known how earnestly it was desired by all good Protestants and true Englishmen and what applications have been made to His Majestie that it might sit and it could not be obtain'd till now And it is not to be forgotten how often it has been Prorogued and the Notice that has been given to the Nation of the several Prorogations the first time that we heard of them was by the Gazett in which is seldom any thing of truth and then out comes a Proclamation for a Prorogation about a day or two before the day of meeting When Gentlemen have disposed their Affairs that they may attend at the Parliament and possibly were on their Journey towards London upon the Road they meet the News of the Prorogation very good usage and there is nothing to be said in Justification of such short Notice but that when His Majesty by His Proclamation had appointed a farther time for the meeting of the Parliament that in plain English no Man must believe it would meet For if Gentlemen did believe it they would prepare for it and if they are prepared it 's but reasonable that sufficient Notice should be given to prevent them Certainly they who advised the King in this matter intended that none of His Majesties Proclamations should have any credit For His Majesty he put out several Proclamations against the Papists and we see how they are regarded not the least obedience yielded to them And this giving of such short notice was certainly done on purpose that those Proclamations should neither be obeyed nor believed Thus is the K. abused thus does he loose the hearts of his People and thus is the Nation abused What will become of us when we cannot believe what His Majesty says Out of Parliament the King cannot speak to his People in a more notable way than by Proclamation and as the matter is order'd these are not regarded In a Subject nothing is more Infamous than to say of him that his word is not to be relyed on he does not regard what he says And therefore what Villains are they who by their Advice do bring the King but into the suspition of it This delaving of Parliaments seems to portend the laying of Parliaments aside and if so an Army will follow for the King must govern either by a Parliament or an Army for one of them he must have now the way to get rid of Parliaments is this First Although they meet sometimes yet something must be started to hinder their success or if that wont do Prorogue or Dissolve them before any thing be finisht and thus Parliaments will be made useless and this being done it will not be long before they become burdensome and then away with them for good and all Kings only then grow out of conceit with Parliaments when their Favourites are so overgrown and their Actions are so exorbitant that they will not indure to be scann'd by a Parliament And therefore to save themselves they perswade the King to keep off the Parliament though it be to his great hurt For the last Trump at the Day of Judgment will not be more terrible to the World than the sound of an approaching Parliament is to unjust Ministers and Favourites That State is sick of a grievous Distemper when Kings neglect their Parliaments and adhere to Favourites and certainly that woe is then fallen upon that Nation which Solomon denounces for says he woe to that Nation whose King is a Child And without question he meant a Child in Understanding and not in Years We have had in England Kings who when they were Children by the help of a wise Council have govern'd very well But after that they took matters into their own hands it went very ill with England as Richard II. Henry VI. who whilest they were Children the Government was steer'd aright but their understanding not growing as fast as their Years they assumed the Government before they were ready for it and so managed matters that it 's better not to name them than to reckon them in the Catalogue of the Kings And there is yet another reason why great Favourites should advise against Parliaments Kings that dote too much upon
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-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
soever a Parliament is corrupted whether it be by Places Pensions or any other thing that makes the Members thereof to become men of dependance The next Article against K. J. is that he Seized upon the Charters of Corporations thereby bringing their Priviledges to be disposed on at his will and pleasure This was very Notable Injustice yet the making havock of Charters was begun and carried on very far by C. II. to which the Loyalty that then prevail'd contributed very much for who ever was not for surrendering of Charters and giving up their Liberties was mark'd out as Anti-Monarchical and a Commonwealths-Man and this fantastical Loyalty had intoxicated so very many that very few Corporations stood out those that disputed the point were taught the Law of Quo Warrento So that when K. C. died he left his brother little more to do than to give the finishing stroke to that he had brought to so great Perfection by which we see how dangerous it is to make any other thing than the Law the Measure of our Loyalty for altho at first no ill consequence may be apprehended of what is done yet it is not long e're Men find their mistake by the mischief which falls upon their own Pates and with this aggravation that they don't see their error till it is out of their power to remedy it The Declaration next observes how that Ireland was put into the hands of Papists which made many to leave the Country well remembring what fell out in the year 41. This was very true and it is as true that it put every Man in England who valued his Religion and Property under very great fears and apprehensions that the storm would blow over into England Because he that would set up Aarbitrary-Power in England must first try his hand upon Ireland it having been observ'd that whatever Arbitrary thing has been done in England that it has first been practised in Ireland So that when ever things go irregularly in Ireland England cannot think it self safe till affairs are put into a better posture there The Declaration further takes notice that K. J. had declared in Scotland that all his Subjects are bound to obey him without reserve This is the highest of absolute Power and it was plain he intended to do no less in England For there is nothing more certain in humane Affairs Than that when a K. mis-imploys his power in one Kingdom it is not for want of inclination but of means and opportunity that he does not do so in all other places under his Dominionâ— As for Example if a King keep one of his Kingdoms without Parliaments he would do so in another if by some necessity he were not compell'd to do otherwise for C. II. kept Ireland without Parliaments and it was out of regard to his particular Affairs that he called a Parliament in England for you may remember how quickly he sent the Parliament packing that called him in because it was more intent upon setling the Nation than to give him unnecessary supplies and those which he afterwards called were kept no longer than he could squeeze Money out of them The Declaration goes on to remind us how K. J. indeavourâ—d to discourage and take away from the Subject the right of Petitioning The priviledge of Petitioning is an ancient and necessary right and so great a right as it has always been supposed that upon such applications the K. was bound either to redress that whereof they complain'd or to let them see that their complaint was without cause But to take away this right from the people is to deprive them of the means of making known their grievances in the most humble and dutiful way that can be and puts them under a necessity of doing it with their Swords in their hands for there is but one of these two ways of letting the K. know their grievances there is nothing more fit than that Subjects tho' never so much opprest do first make known their sufferings in the humblest and most respectful manner that may be and not have recourse to more compulsive methods till no good is to be done the other way That Prince who is unwilling to hear the complaints of his People plainly intimates that he intends to govern them by the rod of his power and not by the equal and gentle methods of the Law and there seems to be no less a fearful expectation when the addresses of both or either House of Parliament don't meet with success but prove abortive for considering that the Nation does then Petition the K. in its highest Capacity it may reasonably be expected that those applications should be answered with effect unless the K. be wiser than all the World and such a Man was never yet found or else what the Parliament complains of is false or frivilous which is not easily to be suppos'd Then the Declaration reminds as of K. James's design to pack a Parliament that by the Peoples consent those things might be made a Law which he had done contrary to the right of the People and the Law of the Land which was to stab the Nation to the Heart For a Parliament is the Soveraign and only remedy for publick Distempers and if rightly apply'd works an infallible Cure but if it be corrupted makes the Malady how slight or inconsiderable soever to become Incurable He that desires to corrupt a Parliament leaves very little room to believe that the good of his people is the end of his Government for when a Prince looks upon it to be his Intrest to influence and byass the Parliament he cannot be thought to have some Interest with his People There are two ways to corrupt a Parliament The first is to influence the Elections so as to have Men chosen that will serve a particular purpose and design and 2dly if that fail to corrupt the Members by Places Pensions or good round sums of Money which is called Secret Service whereby the Nation becomes felo de se The last article against K. J. is that of imposing upon us a Prince of Wales This indeed if it were so is as great a Forgery and Cheat as ever was heard of but because those whom it more nearly concerns have not yet thought fit to inquire further into it I suppose it will not be expected that I should give any opinion of it at this time This is the substance of the charge brought by the P. Orange against K. J. I think I have not omitted any thing that is material but these are not all the irregularites that K. J. was guilty of yet are they sufficient to shew that his administration was inconsistent with the Rights and Liberties of English-Men and who is he that can imagin that there was any other means but force whereby we could recover our Rights they that think it could have been effected by gentler applications may as well pretend to bind the Leviathan with Cords Those that have
or the King being found unmeet to sway the Scepter is therefore laid aside and another chosen into his place or else the Government is changed into a Commonwealth The first of these that is when the King by a new agreement is continued to Reign is the easiest and surest come at because the irregularities in such a case are not many so that remedies are as obvious as the grievances are sensible and the King finding what it is to provoke the Nation readily complies with whatever is proposed lest he should make the people desperate and there is this farther in the case that being jealous of the King's intentions the people no longer depend upon his Word and Promises but take care to have effectual remedies As to the second thing that is a Regency this is a kind of a mysterious thing for the King is neither altogether Deposed nor does he Govern but the Administration is committed to another who in nature of a Guardian does all in his name yet under the Survey and subject to the Controul of the two Houses of Parliament But this seldom continues for either the King is restrained or the Government is changed into a Common-wealth So that this not answering the and proposed it oftentimes happens that when the King is found unmeet to govern by himself that he is laid aside for good and all and another is elected in his stead which is done when his administration is become exorbitant and that he is deaf to the Petitions and Complaints of his people for such a change is not made for the sake of him to whom the Crown is given but that the Government may be amended Now tho this is seldome done but for very good cause yet through the folly of some and knavery of others it does not often answer expectation For tho there is much to do and a great deal that is needful yet what through the unskilfulness of those who have the conduct of Affairs and the unfair proceedings of others who out of favour to the Deposed King make it their business to lay rubs and difficulties is the way and to render every thing impracticable whereby the work is very often left imperfect But besides this tho the people have then every thing in their power yet a very little matter takes off the dread and apprehension of any danger either for the present or time to come and consequently makes them remiss if not altogether to neglect to make such provisions as are necessary and this for two reasons First Because as soon as the King is deposed the minds of the people are put at ease either from a belief that all the Calamities which befell them during his reign proceeded directly from himself without the advice or improvement of any other Or else because that no other man will be wicked to such a degree as he was which certainly are two very great mistakes For it was never yet seen where the irregularities of a Reign were many but that some about the King put ill thoughts into his head or helpt to improve that which he had conceived And in the next place he that succeeds is more likely to do as the other has done than that no man will ever be guilty of the like mis-behaviour Secondly Because it is the nature of mankind to be transported with every change that is with their consent and especially in such cases as these where it makes so great an alteration so that for some time their consideration departs from them and they depend so implicitly upon words and promises as if there needed nothing more to settle the Nation and then as an unavoidable consequence of it the best construction is put upon all that is done even to look upon the irregularities of the new elected Prince if he shall commit any to proceed from his care of the Publick Nay altho he do imploy the Ministers and Creatures of the Deposed King this shall be imagined to arise from the same regard to the Nation because it will be supposed that he either finds or has made them fitter than any other to serve him and the publick till the ill effects are felt of having such persons near the King But it is not easily to be imagined that such persons are imployed for the sake of the publick unless their parts and abilities eminently exceed the rest of mankind which would be little less than a miracle or else at least that they are become new men to all intents and purposes and that ought to be as evident as the Sun at Noon-day If a Prince entertain such men and knows what they are such evil Ministers are more likely to make him a bad Prince than that he can make them just and faithful Councellors to him and the publick If none of these things I have mentioned happen upon a Revolution then there remains nothing but to change the Government into a Commonwealth But that is seldome done till the case is so desperate as that nothing else will do yet it most commonly happens either when the Father and Son successively have governed Tyrannically or else when one Prince is deposed and the next proves as bad as he indeed unless it be at the last extremity it ought not to be thought on because it is easier to repair an old Government than to make a new one and besides there needs a great deal of time to bring the latter into shape and especially a Commonwealth where so much Vertue in the people is requisite to make and continue it such of which sort of Government I will only say That no doubt but it has its particular excellency for as no Government is altogether perfect so every Government has something that is particularly good in it And here give me leave to say a word in my own vindication I find I have been accused to be a Commonwealths man but were I permitted to speak for my self I would say That I like this Constitution under King Lords and Commons better than any other and I defie any man to mention that thing which can give just occasion to think otherwise of me I am sure there is no man so hardy as to tell me so to my face yet I say withal That if through the Administration of those who are trusted with the Executive Power or by any other means my liberty shall become precarious I will then be for any other form of Government under which my Liberty and Property may be more secure and till then I don't desire to change And in this I think I am not much in the wrong but this only by the by Now to apply what I have said to our present case I think King James was justly deposed for what part of the Constitution had not he put out of order and then how can such a man be meet to sway the Scepter and in the next place as things stood at that time all circumstances considered who was so
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
into Order and frâ— maintaining the Laws and supporting the Government Arbitary Doctrine never did any King good but has ruined many it shook King Charles the seconds Throne and tumbled down his next Successour and tho' such Kings are left without excuse when ruined yet I may say they only are not in fault for their Overthrow is in a great part occasioned by those who Preach up and advise the King to Arbitrary Power Did not other People cocker up and cherish Arbitrary Notions in the Peoples mind tho' such conceptions might sometimes get into his head yet they would never Fructify and come to Perfection if they were not Cultivated by Parasites who make their Court that way in hopes to make themselves great tho' with the hazard of their Masters Crown As it befell K. James whose Male-Administration rendred him unmeet to sway the Scepter and I am very well satisfyed that his Judgment was just for unless a People are decreed to be miserable which God Almighty will never do except thereto provoked by their Sins certainly he will never so tye up their hands that they shall not be allow'd to use them when they have no other way to help themselves Several Artifices were made use of in the two late Reigns for the introducing Arbitrary Power One of which was to insinuate into the minds of the People That the Succession of the Crown was the chief Pillar of the Government and that the breaking into it upon any pretence whatsoever was no less than a Dissolution of the whole Constitution and nothing but Disorder and Confusion would ensue This Doctrine prevailed with many and obtained no less than if the Crown had been settled in that Family by an Ordinance or Decree dropt from Heaven and that every one of that Line or Race had been distinguisht from the rest of mankind by more than ordinary Virtues and Indowments of Mind and Body But we know not of any such Divine Revelation and happy had it been if that Family had been so signal for its Justice and Piety we might then have prayed that there might not want one of them to sit upon the Throne to all Ages How much this Nation is obliged to that Family we very well Remember for the Wounds they gave us are not yet healed Election was certainly the Original of Succession for as the Living more safely and with the freer enjoyment of their Goods was the Original Cause that people Associated themselves into a Nation or Kingdom so for the better attaining that End did they set over themselves the best and Wisest of their Brethren to be their Rulers and Governours and this Administration was trusted in one or more hands according to the temper and Disposition of the People in which Authority they continued either for their Lives or for one Year or some other stated Period of time Where the Government was under a King he usually held it for Life and then upon his decease the People proceeded to a new Election till at last it fell into the hand of some very excellent Person who having more than Ordinarily deserved of his Country they as well in Gratitude to him as believing they could not expect a better Choice than in the Branches that would grow out of so excellent a Stock entailed that Dignity upon him and his Posterity This seems to be the most natural and Lawful rise of Succession I don't deny but some Successions have arisen from force but that was never lasting for that could not subsist or seem lawful longer than there was a force to support it Now those that come to the Crown by the first way of Succession I mean by the consent and approbations of the People does it not plainly imply that they ought to use that power for the good and advantage of their Subjects and not to their hurt and enjoy their Crown only upon that condition no man would ever suffer a Monster to inherit his Estate and Kings are no more exempted from the Accidents of Nature than their meanest Subjects and it is every days practice in private Families to exclude those that will waste their Estate and ruine the Family and if the Reason will there hold good then it is so much stronger in the descent of the Crown by how much the good of a whole Kingdom is to be preferred to that of one private Family Succession is not so very ancient in England as some People may apprehend till the time of William Primus commonly called the Conqueror it was lookt upon as a very precarious Title The next in Succession could reckon very little upon the Crown further than his good Inclinations and Sufficiency to Sway the Scepter did recommend him it being then very common not only to break into the Succession but even to set aside all that Family and Line when ever it was found that the Publick might suffer by their being at the head of the Government the Publick Good being the only Rule and Consideration that Govern'd that point William Primus upon his Death-bed declared that he did not possess the Crown by an Hereditary Right Heary Primus in his Charter acknowleged to hold his Crown by the Mercy of God and the Common Council K. Stephen Henry 2d Rich. Primus and King John all came in by Election so that till Henry 3d. there is scarcely to be found any Precedent of Succession since his time the Succession has been broke into several times and the Crown shifted from one Family to another by Act of Parliament and being so transferred by that Authority is the greatest Proof that can be that Succession is a very feeble Title without something else to support it and I think I may say Defective For says one of great Authority Never did any take pains to obtain an Act of Parliament to settle his Inheritance on his Heirs except he were an Alien or Illegitimate and therefore considering That by vertue of an Intail of the Crown by Act of Parliament in Henry the Sevenths time it is that the four last Kings have swayed this Scepter I could never understand that Divine Right that was by some stampt upon their Title to the Crown or that the Succession was preferrable to the Publick Good I have endeavoured to explain this point the more by reason that some object against the sufficiency of This Kings Title to the Crown because the Succession was broke through to let him into the Throne as if nothing could give a King a good Title to the Crown but Succession For my part I never saw any reason to be of that Opinion and if there be nothing but the Interruption of the Succession to object to this Kings Right if he continue to govern according to the Principle upon which the Crown was given him and according to the laudable Customs of the Realm I think that every man that wishes well to the Interest of his Country ought to bless God for this Revolution
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
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
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
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
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
no Popish but a Presbyterian Plot I doubt there are too many who account it Loyalty to oppose every thing that the late Parliaments have done and though there be never so much Reason in the thing yet if the Parliament had a hand in it it is a sufficient ground to them to traduce it But though they are resolved to think amiss of what the Parliament has done yet in the point of the Popish Plot they may allow the Parliament to be in the right since His Majesty is of the same opinion for he that shall oppose his Judgment against the Opinion of King and Parliament must needs tax them with a great deal of rashness and haste in their Declaration or else profess himself to be a Man of a very extraordinary Understanding and Observation that can see further into the matter than the King and Parliament If there be any man that is acquainted with this Mystery that is hid from the Eyes of King and Parliament it is no doubt a Duty incumbent upon him to reveal the Secret to his King and Country that they may no longer continue to harbour an ill Opinion of them who are not blame worthy He that can believe that there is no Popish but a Presbyterian Plot must also believe that both the Papists and Presbyterians have now changed their former Principles and Practices The Principles of the Papists are incomparably laid open by the Bishop of Lincoln by which every man may see how dangerous and destructive they are to all Civil Governments And the Church of Rome holds it to be lawful to promote their Interest by any way or means though never so contrary to the Word of God and Common Morality or Honesty Accordingly it has been their Practice which produced the Parisian Massacre where so many Protestants were barbarously murdered in one night And in K. James's time the Powder Treason when the King and both Houses of Parliament were to have been blown up and the rest of the Protestants were to have tasted of the same Cup. And in the late King's time the Massacre in Ireland where of Two hundred Thousand Protestants that fell into their Hands not one escaped and all those perish'd in one Month. And the same measure we must have had if their Plot had not been discover'd by which they had designed to turn the whole Land into a Butchers Shambles I don't mention these Particulars as all the Instances of their barbarous practices I only give you these as Examples of what they do elsewhere for in all places where they have endeavour'd to establish or propagate the Romish Doctrine and Superstition it has been carried on by Blood and Cruelty which proves it to be a false Religion for this is contrary to the Precept and Example of our Saviour and his Apostles who had recourse to no such things when they propagated the Christian Faith but to strong Reason and evident Truths for it is not the way to convince Men of the Truth by Hardships and Severities for by such Methods we can only hope to make Hypocrites but not to gain Proselites and besides it is an undervaluing of the Almighty Power of God as if he stood in need of such assistances to establish his Truth But the Presbyterians are not of such Principles they are willing to assist the Government against the Papists for they have no other Interest and therefore I cannot believe them to be like the foolish Woman that pulls down her House with her Hands And if we should believe that their Principles enclined them to practise against the King and Government I doubt it would cast a Reflection upon that which we would be loth to hear ill spoken of for as they differ from us only in some Indifferent Ceremonies but agree with us in Doctrines and Fundamentals therefore their Interest is the same and accordingly will their Inclinations carry them Their Practice proves them to be true to their King and firm to the Government for when the Popish Subjects have rebelled against their King they have always stuck to their Prince and that too in Popish Countries Examples hereof there are very many and the present French King on this score owes a great deal to them of the Reformed Religion for when his Popish Subjects rebelled and would have set up another in his room they stuck to him and setled him in the Throne It was the Presbyterians who were chiefly instrumental in his Majesty's Restauration whilst others who called themselves The Royal Party sate still to see the Game play'd and when they saw which way the Scales would turn were ready to applaud the Victor let it fall to which side it would And His Majesty was so sensible that the Presbyterians were chiefly instrumental in that Work that he declared himself in favour of them in these words From Breda April 14. 1660. 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 This is not so very long since that it can in probability be imagined that they should now be so clean altered to the contrary as to practise against the King and Government I don't wonder that there is a noise of a Presbyterian Plot but it is some cause of admiration to me that so many seem to believe it I can't tell what Information others may have met with whereby they are prevailed upon to believe it but all that I can understand that has given ground for such a Suspicion is the Accusations against Colledge and my Lord Shaftsbury which methinks is too slender a proof to charge so many Thousands with a Conspiracy against the King and Government for in the Tryals both of Colledge and my Lord Shaftsbury it was not so much as attempted to prove a Plot in general though at Colledge's Tryal it was urged That that Method would be the more regular proceeding but in both the Tryals the Evidence was levell'd against them chiefly without fetching in such numbers as are necessary to make it a Plot of the Presbyterians I shall not say any thing whether the Evidence against both or either swore true or not nor of the Improbabilities of some of them but this I think I may say That the things chiefly insisted on against either of them were only Indiscretions committed by them surely then it will be very severe to charge so great a part of the Nation with a Plot because my Lord Shaftsbury and Colledge had overshot themselves if all were true that was sworn against them It is no new thing for the Papists to put Sham-plots upon others and the Papists are never nearer to execute a Plot of their own than when there is the
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
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
may have them And hence it might come to pass that the Son succeeded the Father as it befel in the case of Henry III. his Father K. John had been quarreling with his Barons and they called in Lewis the F. Prince to their aid and several swore to him but K. John dying and the Nation being willing to be at rest they chose rather to have Henry III. being a Child whom they had hopes to train up in the Principles of an English King than to admit Lewis who was a Foreigner Or else that out of Gratitude to the memory of their deceased King who had done good things for the Nation they chose his Son believing him to inherit his Father's Vertues and therefore deserved the Crown better than any other person as it befel in the case of Edw. II. and Rich. II. and Hen. VI. who all deceiv'd them and therefore were deposed I think the rest of the Instances where the Son has followed his Father into the Throne are where the Succession was continued to them by Act of Parliament or by Election in the life-time of the Father as it happen'd in the case of Rich. I. and Edw. I. But I think it is without all dispute a known Custom in England that where a man has any Estate either real or personal if it came to him by Descent although he has no further power of it yet during his Life he may dispose of it as to him shall seem meet and divest himself of it to all intents and purposes And therefore if the Crown of England comes by descent what hinders that he who enjoys it cannot alien or dispose of it during his own life for whenever it has been attempted the People has still opposed it as in the case of K. John when he laid down the Crown at the Feet of Pandulphus the Pope's Legate and he kept it three days for the Pope's use this being done without the Consent of the Nation the King was told He could not make any conveyance of it without the leave of the People and although he had the Pope for his Second who was obliged to stand by him in maintaining what he had done not only out of the advantage he would gain hereby against King John and his Successors but also to encourage his other Sons to the like Dutifulness and Obedience yet the People were Victors and the King fairly gave up the Cudgels Which methinks clears the Point very well for our Lawyers tell us That a President where the thing has been disputed is worth a thousand where there was no Contest I will give you another Instance though not the very same yet I think not impertinent to be mentioned Q. Mary upon her first enjoyment of her Husband Philip was very fond of him and thinking nothing to be too good for him she had a great desire to have him crowned but notwithstanding her Importunities the Parliament would not consent and she never had her Desire Whereas if the Crown had come to her by descent she need not have asked the Parliament leave nor had K. John been to blame to give away that which was absolutely his own It is true that in the life-time of H. II. his eldest Son was crowned but he first acquainted his Lords with his purpose which implies that he asked their consent which is very probable because they swore Allegiance to him which they would never have done had it not been with their good liking for the Lords were more sturdy in those days than they are in ours for they would yield no further than they saw there was Law and Reason for it I have heard it objected That the three Children of Hen. VIII succeeded to the Crown by his Will it may be so and yet not clear the point That the Crown comes by Inheritance for Hen. VIII had shaken off the Pope's Authority and the People might be very willing to accept his Son Edward for their King and it had been a wonder if they had refused him seeing he was a Protestant and one like to perfect the Reformation But in his Successor Q. Mary we find the President of bequeathing the Crown by Will overthrown for Edw. VI. by his last Will had given the Crown to Jane Seymour and to make the thing more valid he caused the Nobility Bishops and Judges to set their Hands to it and yet Q. Mary prevailed against this Will but Arthur Son to Jeoffery who was Brother to Rich. I. and K. John was not only Son to the elder Brother but was designed by Rich. I. to be his Successor to the Crown So that if any thing would have prevailed against the Election of the People without doubt Arthur would have had the Crown and John must have waited longer But if the Crown of England comes by Descent or Inheritance I desire to ask by what Title all the Kings and Queens since the Conquest have possessed the Throne for no man can have the face to say that the first William came in by Descent but that his Title was either by Election Conquest or Vsurpation and all that have succeeded him out of his Loins are upon the same bottom with him and if his Title was not by Election then he and all his Successors can be termed nothing but Vsurpers who came in by force and have maintained it by might against Law for it is very well known that a Possession which is illegal at first cannot be better by continuing it nor does it mend the matter if they hold it never so long the Right remains the same And therefore having said this I do presume it will be as difficult to understand those things mentioned in the 30th Chapter of Proverbs Verse the 19th as it is to prove that the Crown of England comes by Descent But possibly when there shall be a Man so much wiser than Solomon that can unriddle those four things he may be able to clear this first and resolve all other Doubts that may be proposed to him but till that be I hope the People will hold their Right in disposing of the Crown and not be bound to admit the next of Blood if he be not fit for it I will now Sir proceed to your second Demand Whether the Duke ought to be excluded and to that I do answer affirmatively That he ought to be set aside for if he had not deserved it very justly the late House of Commons would not have been so vigorous and intent upon the Bill neither would the preceding mercinary House of Commons have said a word against him if his Faults had not been very plain but the whole thing is so evident that there needs nothing more to enforce the Reasons for his exclusion for Is it a small thing to hold a Correspondence with the Pope and the French King the two great Enemies to our Religion and Government to procure Pardons for Papists and keeping none about him but Papists or Popishly