accorded in the same Parliamenti that likewise it be done in time to come in like Case 5 H. 4. c. 6. and 11 H. 6. c. 11. As for the Commons freedom from Arrests 't is certainly a very Ancient Priviledge granted by our Kings to that House the better to enable them to attend the publick service to which they were summon'd as appears by Edward the first 's Answer to the Templars who having some Tenants in the Parliament that were behind with their Rents Petition'd the King to have leave to Distrain for the said Arrears in Parliament-time which he utterly refus'd saying Non videtur honestum quod Rex concedat quod illi de Consilio suo distring antur tempore Parliament 18 Ed. 1. Rot. 7. in Thesaur Receptoris Scaccar Yet that it was not formerly held so sacred nor did extend near so far as some people now imagine is plain from the Case of Thorpe 31 H. 6. Who tho Speaker of the House of Commons at that time was Imprison'd in the Fleet during the Prorogation of the Parliament for a 1000. Marks Damages given against him for a Trespass done to the Duke of York And the Parliament being Re-assembled the Commons earnestly desir'd to have their Speaker discharg'd but it was adjudg'd by the Lords that he shou'd remain in Prison according to his Sentence and they choose another Speaker whereupon they elected Sir Thomas Charlton and made no further clamours as some now wou'd do that their Priviledges were invaded 31 H. 6 Rot. Parliam n. 25 26 c. Seldens Baronage fol. 115. Now for the Tryal of a breach of this Priviledge tho I find no positive or express Statute that orders it to be decided in the ordinary Courts of Justice yet that they may lawfully do it is a plain consequence of the foregoing Acts of Parliament For to argue a majori ad minus since Assaults upon Parliament-men are far more Criminal than Arrests if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime And accordingly they have often taken cognizance as well of this as other Priviledges of Parliament as appears in the Case of Done against Welsh and of River against Cosyn Skewish against Trewynnard and many others But the most usual practice of former times was to make application to the King and Lords for redress in this particular for as Sir Edward Coke himself confesses The determination and knowledge of this Priviledge belongs to the Lords of Parliament in his select Cases 63. And therefore the House of Commons upon the restraint of any of their Members or Menial Servants of which themselves took no cognizance till of very late days always made their humble request to the King and Lords for his enlargement Thus when William Lake Servant to William Milred a Member of the House was taken in Execution of Debt and Committed to the Fleet the Commons Petition'd the King and Lords for his Liberty The like they did in Walter Clarks Case and in the Case of William Hide And to omit several other Precedents even in the 43 Eliz. when a Bill was preferr'd in the Star-Chamber against Belgrave a Member of that House the Parliament then sitting for Misdemeanors by him committed against the Earl of Huntington the Commons well knowing they had no Authority of themselves to protect their Member made their earnest but ineffectual Application to the Lords for relief Sir Simon D' Ewes Journals p. 612 And in the same Parliament a great asserter of Priviledges upon a debate about Subpaena's said openly in the House Our use at this day is not warranted by Ancient course of Precedents for if a man had been Arrested upon a Subpaena upon notice given he shou'd have had a Writ of Priviledge which of course Her Majesty must have allow'd D'ewes Journals pag. 655. which is conformable to the Report made 18 Eliz. by Mr. Attourney of the Dutchy upon a Committee appointed for setting Mr. Halls man at Liberty That the Committee found no Precedent for setting at large by the Mace any person in Arrest but only by Writ and that by divers Precedents of Records perus'd by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Priviledge hath us'd in that Case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the Party for whom such Writ is pray'd came up with him and was his Servant at the time of the Arrest made D'ewes p. 249. The famous Case of Ferrers Burgess of Plimouth 34 H. 8. tho often alleadg'd in favour of the Commons is so far from making any thing for their purpose that it plainly shews they never offer'd till then to punish any breach of Priviledge for altho they found not only that the Sheriffs of London deny'd to deliver their Burgess but that the Officers of the Counter beat their Serjeant and broke his Mace yet knowing they had no coactive Power of themselves they were forc'd to repair to the upper House which they wou'd never have done had their own Authority been sufficient and complain to the Lords of the injury they receiv'd who judging the contempt to be very high for the Commons greater satisfaction referr'd the punishment thereof wholly to themselves which condescension it seems gave such encouragement to that House in succeeding Parliaments who have been always sure never to loose but still to gain ground upon the Prerogative and the House of Peers that now and then they made bold even without any Warrant or direction from the Lords to punish some breaches of Priviledge and at last other misdemeanors For King Edward the sixth because of his Minority and his two Sisters by reason of their Sex being not so active nor so fit for business as their Predecessors the Commons took hold on this opportunity to get themselves into Power and endeavour'd by punishing Offenders to render themselves the more formidable to the People From hence they proceeded to regulate Elections and tho the Law is very plain and positive in this Case also yet the Commons have taken upon them of late days not only to decide who is duely chosen and who unduly return'd but have further assum'd the Power to punish the Offenders contrary to divers Acts of Parliament in that Case provided For by several Statutes it appears That if the Sheriff makes an undue Return his punishment is 200 l. one to the King and the other to the party duely Elected besides a years Imprisonment without Bail or Mainprise And the person unduely return'd is to continue a Member of the House but at his own Charges without any allowance from the place for which he serves As for the return if any makes complaint thereof It ought to be tryed not by a Committee of Elections but before the Justices of Assizes in the proper County or by Action of Debt in any Court of Record as appears 11 H.
odious names of Abhorrers are forc'd to bear the brunt and suffer as Betrayers of the peoples Rights and Liberties for obeying their Sovereigns Proclamation tho' not repugnant to any known Law or Statute but approv'd of by the Judges and other Sages of the Law and conformable to an express Act of Parliament in the like case provided 13 Car. 2. c. 5. 'T is the peoples Right I know or to speak more properly 't is their Duty to petition their Prince for relief and redress of their Grievances but still 't is the undoubted Prerogative of the Sovereign to judge whether such Grievances be real or pretended fit to be granted or necessary to be rejected And when upon weighty considerations as the Subject ought in duty to suppose the Prince openly expresses his dislike to such Petitions to importune him any further is very unmannerly and plainly tending to Sedition 'T is an undutiful part in Subjects saith our British Solomon to press their King wherein they know before-hand he will refuse them In his Speech to the Parliament anno 1609. The evil consequences of these tumultuous Petitions are too well known to those that remember our late unhappy Confusions to be dwelt upon or describ'd in so small a Treatise 'T is enough that the wisdom of the Nation both King and Parliament after His Majesty's miraculous Restauration have declar'd It hath been found by sad experience that tumultuous and other disorderly soliciting and procuring of hands by private persons to Petitions Complaints Remonstrances Declarations and other Addresses to the King or to both or either Houses of Parliament for alteration of matters establish'd by Law redress of pretended Grievances in Church or State or other publick Concernments have been made use of to serve the ends of Factious and Seditious persons gotten into power to the violation of the publick Peace and have been a great mens of the late unhappy Wars Confusions and Calamities in this Nation 13 Car. 2. c. 5. Besides our Lawyers tell us and King James declares in his Speech to the Parliament on the last of March 1607 That Rex est Lex loquens and where the Law is silent the King's will is a temporary Law Upon what account then were the Abhorrers of the late tumultuous Petitions so exactly resembling those of Forty and so contrary to His Majesty's express Orders and Proclamation censur'd or imprison'd what Crime have they committed or Law have they violated or can there be any transgression where there is no Law or Punishment where there is no Transgression Oh! say they tho' there be no positive Law directly against Abhorrers yet 't is the great Fundamental Law Lex consuetudo Parliamenti and the Priviledge of Parliament that they may judge what Crimes are punishable ex post facto and by their arbitrary Power punish any man for what they please This I must confess is a pretty knack to help us off at a dead lift and will serve as well to vindicate the most exorbitant proceedâ—ngs of a mad Parliament as self-preservation is generally wrested to justifie the horrid Conspiracies of Rebellious Subjects It proves the great Earl of Strafford has been lawfully Executed tho' his very Enemies then gave us reason to believe and both King and Parliament since have declar'd him Innocent And the known Laws of the Land are at this rate very defective since they are not the entire Rule of the peoples Civil Obedience but are further liable to be try'd by that mysterious Riddle Lex consuetudo Parliamenti which neither our Fathers nor We were able to understand 'T is an undoubted Maxim both in Law and Reason that promulgation is absolutely necessary to the obligation of all positive constitutions insomuch that the immediate Laws even of the Almighty are not obligatory where they were never preach'd or made known How then comes it to pass that so many Loyal Subjects and good Protestants have been troubl'd upon the account of those mystical Riddles Lex consuetudo Parliamenti and the Priviledges of Parliament which were never publish'd or made known to the people but lie dormant in the House of Commons till started up as occasion requires It were to be wish'd that Honourable Senate wou'd so far oblige the Nation as to give them a true description of this Law and Custom of Parliament and an exact account of their Priviledges that people might in some measure for the future be able to shun those dangerous rocks and not be surpriz'd or shipwrack'd on such hidden shelves Till then all those loud pretences of securing the Subject from Slavery and Arbitrary Government must seem very ridiculous to the sober and judicious who as they cannot be easily impos'd upon by outward appearances to believe peoples words not suitable to their actions will be apt to mistrust that what these Gentlemen so stifly oppose in others they design wholly for themselves But to come closer to the purpose let us suppose the Parliament has this Arbitrary Prerogative to turn our most innocent actions into misdemeanors and make what they please a breach of Priviledge yet by what Authority can the House of Commons alone pretend to execute that Power or take upon them to be sole Judges that cannot act as Justices of the Peace Our Ancestors it seems have brought their Hogs to a fair Market who have struggled for many Ages to preserve themselves and Posterity from the unbounded rule of Arbitrary pleasure and having wrested that Power from their Soveraign like wise Politicians have left it in the hands of their Fellow-Subjects nay of their Attorneys and Servants to whom as such they always allow'd their daily wages for their attendance in Parliament 'T is certainly an odd kind of Liberty that the people can neither be Fin'd nor Imprison'd by their Soveraign unless for transgressing some known penal Law of the Land but their Deputies and Trustees may uncontroulably punish them for any thing they are pleas'd to call Criminal Is this the great happiness of Freeborn Subjects instead of one to have five hundred Masters and see the Fundamental Laws of the Nation Magna Charta and all the good Statutes confirming and explaining the same thus eluded and made useless by a pretended Custom of Parliament What are we the better at this rate that by the Great Charter of the Liberties of England c. 29 't is declar'd That no Freeman shall be taken or Imprison'd or be disseiz'd of his Freehold or Liberties or his Free Customs or be Outlaw'd or Exil'd or in any manner destroy'd but by the lawful Judgement of his Peers or by the Law of the Land Or that 28 Edw. 3. c 3. 't is enacted That no man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor Imprison'd nor disinherited nor put to death without being brought to Answer by due Process of Law Or to omit many others that 42 Ed. 3. c. 3. It is assented
at Foot-ball and of equal Authority in point of Judicature The Lords saith he in their House have Power of Judicature and the Commons in their House have Power of Judicature and both together have Power of Judicature p 23 But I wish since the Lords Judicial Power as well with as without the Commons is beyond all dispute this great Lawyer had so far oblig'd Posterity as to have left us some convincing Argument to make the World believe the like of the House of Commons or at least given us some Instances of their using this Power in former Ages as the Lords have done time out of mind In the mean time 't is a shrewd Argument against his Assertion that in H. 4. time the Commons themselves in their Petition to the King declar'd That the Judgments of Parliament appertained only to the King and Lords and not to the Commons and therefore they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons without their privity To which the Bishop of Canterbury answer'd by the Kings command That the Commons are Petitioners and Demanders and that the King and Lords always had and of right shall have the Judgments in Parliament even as the Commons themselves have shewed saving that in Statutes to be made or Grants and Subsidies or such things as are to be done for the publick profit of the Realm the King will have especially their advice and assent 1 H. 4. Rol. Parl n. 79. Who now is to be believ'd Sir Edward Coke attributing to the Commons or the Commons themselves wholly disclaiming all Power of Judicature Or shall a single Lawyers Ipse dixit or proofless assertion be of greater weight than so solemn a Declaration upon Record approv'd off by King Lords and Commons But to be short and to argue ad hominem against our late Demagogues at Wesminster if they thought themselves a Court of Judicature and Record as Sir Edward Coke is pleas'd to make them 't is strange what cou'd be their motive unless to shew their Arbitrary Power to the World to Imprison so many of His Majesties Loyal Subjects and after a long and chargeable Confinement release them without offering to bring them to any legal Tryal For if these Gentlemen were reputed Criminal they ought to have been try'd according to Law if Innocent they shou'd not have been Imprison'd And to say their Confinement was by the House design'd for a punishment of their suppos'd Misdemeanors 't is contrary to common sense and to all Laws both humane and divine For at this rate people will be condemnâ—d before they are heard and punish'd before they are convicted nay which is worse than Abington-Law to hang a man first and try him after they shall be punish'd at will and never brought to a tryal What can be safe if this be admitted or who can be secure either of Life or Liberty if a prevailing Faction in the House of Commons may toss him thus in a Blanket without any Rhime or Reason contrary to the undoubted Right of the Subject and the Fundamental Laws of the Nation But we are told the Commons have often Imprison'd people for misdemeanors and releas'd them again at their own Discretion I wish they had shew'd us withal by what Authority or Law they committed them for a facto ad jus is no good argument with any man of sense or judgment How many Appeals have been made to Rome and provisions of Benefices procur'd from thence during the Papal Usurpation Yet these being contrary to Law the Authors were still punishable and it was no excuse for any that others had done the like before The Commons have been a constituent part of the Great Council of the Kingdom either since the 16th of Henry I. as some Historians write or since the 49th of H. 3. in the year 1364. as most Authors agree and yet all this while we cannot find that by their own Authority they imprison'd any Criminal till in the 4th of Ed. 6. about the year 1550 they committed Criketost to the Tower when the King was an Infant and all govern'd by the ambitious Duke of Somerset who to be sure wou'd not expostulate with the House of Commons about such a trifle as he thought it whilst they forbore to question him for his more illegal and arbitrary Proceedings Now if there be no other argument to justifie the Commons imprisoning Delinquents but the practice of their House since the 4th of Ed. 6. 't is plain the commitment of Criketost was illegal because not justifiable by any former practice of that House and consequently cou'd be no fit Precedent to be imitated in succeeding Parliaments And if their first Essays of this kind were unwarrantable by Law their subsequent Commitments cou'd be no better for Quod ab initio non valuit tractu temporis non convalescit To what purpose then are such unwarrantable Examples alledg'd to justifie the late proceedings of the Commons if not to prove one absurdity by another since they can hardly think of any thing how wild and unreasonable soever but they may find one instance or another to offer as a Precedent in some of our former Parliaments For experience tells us this Great Council much less the meanest of the three Estates tho' our modern Republicans wou'd fain snatch the great Priviledge of Infallibility from the Pope's Cushion and place it in the Speakers Chair has not been always free from mistakes but is found to have often deviated from Justice Truth and Loyalty We must therefore with Seneca look non quaâ—itur sed qua eundum not what is but what ought to be done and consider that 't is not the example of frail men impos'd upon through ignorance or led by passion or private interest but the approv'd Laws of the Land ought to be the Rule both of the Magistrates Government and of the Subjects Obedience What! says a factious Petitioner cannot the House of Commons imprison any Criminal Have they no authority to chastise their own Members or punish the Invaders of their Priviledges Have they not often exerciz'd this Power and is it possible the King and Lords wou'd have so long conniv'd at their proceedings had they been illegal or unjust Does not the House of Peers punish the Breakers of their Priviledges why then may not the House of Commons be allow'd to do the like These are the mighty arguments our great Champions for the House of Commons always insist upon but how weak and insignificant they are is very obvious to any tho' but meanly vers'd in our Laws and the constitution of our Government For my part I have always been and still am as much for maintaining the just Priviledges of that House as any man whatsoever 't is my interest to do it and nothing but Truth and Loyalty shall ever induce me to speak
4. c. 1. and 8 H. 6. c. 7. and 23 H. 6. c. 15. These are the Laws for regulating Elections and pursuant to them Queen Elizabeth in whose time the Commons busi'd themselves too much in that matter sent a notable check to the House in the 28 year of her Reign for their medling with choosing and returning Knights of the Shire for Norfolk a thing said she impertinent for the House to deal withall and only belonging to the Office and charge of the Lord Chancellor from whom the Writs Issue and are return'd D'ewes Journal p. 393. Which Message wrought then so far upon the House that for some years after they forbore to medle much in any thing of that nature but apply'd themselves when occasion requir'd to the Lord Chancellor or Keeper who proceeded therein as the Law directed without taking any great notice of the Commons Votes or Resolves as we find by a remarkable Instance in the 35 of this Queen when Sir Edward Coke then Speaker was order'd by the House to attend upon my Lord Keeper to move his Lordship to direct a New Writ for choosing a Burgess for Southwark instead of Richard Hutton suppos'd to have been unduly elected and another for allowing Sir George Carew who was duely elected but not return'd to be Burgess for Camelsford in Cornwall and a third for changing the name of John Dudley return'd Burgess for New-Town in the County of Southampton into the Name of Thomas Dudley alleadg'd to be the same person but his Name mistaken My Lord Keeper answer'd that the Returns for Southwark and Camelsford shou'd stand good but as for the said John Dudley he wou'd direct a new Writ for choosing another Burgess in his stead for Newtown D'ewes Journals p. 494. Now if this was the legal way of Proceeding in Queen Elizabeth's Reign warranted by the Statutes lately quoted and allow'd by the great Lawyer Sir Edward Coke and the whole House of Commons at that time by what Authority cou'd it be alter'd in succeeding Parliaments or is it just that the Ancient Precedents of former Ages shou'd be avoided by unwarrantable new-ones of later times Without question had the House of Commons then known they had any Power to mend the said Returns or punish the Offendors they wou'd never have sent their Speaker to wait on the Lord Keeper's pleasure about it and if that House had no such Authority 't is strange how can their Successors pretend to have any Thus we see the House of Commons was not in former times allow'd to regulate the Election of their own Members nor to Imprison any for undue Elections or Returns nor yet for a breach of Priviledge much less for any other Crime or Misdemeanor Nothing was heard in those better days of that terrible Sentence Take him Topham not a word of the Subjects Imprisonment during the Will and Pleasure of the House of Commons The sitting of Parliaments then was short and sweet dispatching more business in three days than of late they have done in so many months Their Study was to Redress not Create Grievances and preserve or procure a good understanding betwixt the King and His People and not like Banbury-Tinkers instead of mending one hole make a great many Oh! but say some the Connivance of King and Lords is a strong Argument that the Commons have done nothing herein contrary to Law I Answer 't is rather a very weak and frivolous Plea first because tho the King be oblig'd by His Coronation-Oath to govern by Law yet all knowing men will allow He has a Prudential Power to suspend the Execution of such Laws as he thinks prejudicial to the publick Interest and consequently may when he sees occasion wink at some illegal attempts of His Subjects to avoid a great Inconvenience If thefore of late times the King and if you will the House of Lords did connive at some unwarrantable resolutions of the Commons rather than exasperate the whole House too Jealous of their own Priviledges and thereby frustrate the chief end of Calling His Parliament the Security of the Publick it was Policy and great Prudence to wave it at that time tho now 't is the height of Folly to make this a warrant for doing the like again contrary to so many legal Presidents and express Acts of Parliament Secondly because the gathering of Peter-pence in this Kingdom has been conniv'd at by King Lords and Commons for divers Centuries of years yet it was an Illegal Tax upon the Subject contrary to Magna Charta and the Fundamental Laws of the Nation 25 H. 8. c. 21. Likewise the Clergy made divers Canons and Constitutions which have been conniv'd at for several Ages both by King and Parliament yet are declar'd by 25 H. 8. c. 19 To be much prejudicial to the Kings Prerogative Royal and repugnant to the Laws and Statutes of this Realm The same may be said of the Ancient Custom of Archbishops and Bishops declar'd by 1 Ed. 6. c. 2. to be contrary to the Common-Law of of the Land tho practic'd and conniv'd at time out of mind And to omit several other Instances Cardinal Wolsey for exercising his Legantine Power and the whole Clergy for receiving it tho conniv'd at for many years as well in as out of Parliament were nevertheless found guilty in a Premunire in His Majesties Court of Kings-Bench Connivance therefore is no good Argument of any things being legal and the tolerating of a Custom tho never so long cannot warrant its continuance while the Law is against it Presidents indeed of former Ages when legal and just from the beginning are of great force in Judicial Proceedings but no new President of late days can have that weight in any Court of Justice and to be sure will never be allow'd if contrary to Law and the Authentick Records of Antiquity But the House of Lords say they use to punish the Breaches of their Priviledges and several other Misdemeanors why then may not the House of Commons do the like A most ridiculous parity for they might argue as well the Court of Kings-Bench Fines and Imprisons Delinquents therefore the Grand-Jury may do the like when they please For the Commons in Parliament are really the Grand-Jury of the Nation appointed to enquire after Briberyes Extortions Monopolies and other publick Oppressions and complain thereof to the King and Lords and humbly pray redress yet they are no Judges in any Case themselves but are Parties as being the Attorneys and Representatives of those that are injur'd So far they are from having any Judicial Power that they cannot as much as administer an Oath upon any occasion whatsoever which undoubtedly the Law wou'd not have deny'd them but that they were never design'd for Judges or punishers of any Criminal because qui negat Medium negat finem But the House of Lords is not only a Court of Judicature but the Supream Court of the whole Kingdom they are
look'd upon by our Laws as persons of no less Integrity than Honour in the distribution of Justice and besides are assisted by all the Judges of England by the 12 Masters of Chancery by the Kings Learned Council and by His Attorney and Solicitor General in consideration whereof the same Laws have repos'd that extraordinary trust in this August Assembly that to them alone it belongs to redress delays and reform the erroneous Judgments of other Courts of Justice and give a final decision to all manner of Appeals Now by the Laws of other Nations as well as ours 't is the nature of Superior Courts that they may determine matters tryable by an Inferior and therefore it must be allow'd that tho the House of Commons cannot because no Court of Judicature yet the House of Lords the dernier resort of all Suits and Actions may if they please punish the Invaders of their Priviledges notwithstanding that the Law directs them to be try'd in Inferiour Courts Having thus sufficiently demonstrated that the House of Commons have neither Common nor Statute-Law nor yet any legal Precedents to warrant their Fining or Imprisoning the meanest of their Fellow-subjects 't is high time I think tho a great deal more might be said on this subject very useful to be known to give you a brief account of other Particulars and examine whether the Remedies propos'd in Parliament by our late Mountebanks of State be not equally dangerous if not really worse than our Disease But to expose the designs of some ill men there and the unwarrantable Votes and Resolves they got pass'd in the Lower House is a task no less tedious than difficult for me to undertake I will therefore tell you in short that notwithstanding all the noise and clamour they made about the Protestant Religion and the Liberty of the Subject the Nation had too much reason to believe they minded more their own ends than the common good of the People The Kings best Subjects who having so many years experience of His Majesties most happy Government declar'd themselves satisfi'd with His prudent management of Affairs and in Obedience to His Royal Proclamation express'd their aversion to all Tumultuous Petitions were no more run down on the one side than the Factious Fanaticks even such as signaliz'd themselves in the late Rebellion were countenanc'd and favour'd on the other insomuch that many were of opinion people had no surer way to ingratiate themselves with some of the Leading Memberr than openly to asperse the Government and reflect upon the King and His Ministers as Favorers of Popery and Designers of Arbitrary Power 'T is almost incredible what pains they took to get the Notorious Anabaptist Ben. Harris discharg'd out of Prison for no other reason that I find but because a Dissenter who with a great deal of favour was condemn'd only to the Pillory instead of Tyburn for publishing that Treasonable Pamphlet The Appeal Neither is this all the main Bulwark of our Church must be broke down the Penal Laws against the Non-conformists Repeal'd to let in a Deluge of Sectaries the scandal of the Reformation who have nothing of Christianity but the Name to Profane the Temple of God And because this Project luckily miscarry'd their Friends in the House endeavour'd to leave them a new kind of Dispensation and the very last day of their sitting that with their dying breath they might testify to the World their great zeal for the Dissenters in general of what sect or perswasion soever to the admiration of most men they pass'd the following Vote Resolved That it is the Opinion of this House that the Prosecution of Protestant Dissenters upon the Penal Laws is at this time grievous to the Subject a weakening of the Protestant Interest an encouragement to Popery and dangerous to the Peace of the Kingdom I need not comment upon this unwarrantable Resolve by which our worthy Patriots even without the King and House of Lords once more were pleas'd to assume to themselves a Power of suspending and consequently of making Acts of Parliament The encouragement this gave to the Republicans to pursue their wicked Designs against the Crown and the Church like to have prov'd fatal to both is enough to convince the World they cou'd hardly do the Nation a greater mischief and that their confining several Gentlemen tho contrary to Law and Reason was not near so dangerous to the Government as their breaking down the Rails of the Church to let a swarm of Sectaries creep in at the Windows It was observ'd with some admiration how during this Session of Parliament there was not one Fanatick Imprison'd nor so much as question'd by the Commons for any Crime or Insolence whatsoever very few Papists molested but the true Sons of the Church of England daily Prosecuted in vast numbers to their great loss and vexation tho it prov'd at last the eternal shame and confusion of the Authors I cou'd not but smile to see the perplexity they were in when one of the Judges to his never-dying fame for giving the first Precedent of that kind made application to the House of Commons about the Execution of his Trust and desir'd their Opinion whether he shou'd do Justice to one of their Prisoners by granting the Writ of Habeas Corpus to Mr. Sheridan then in the Custody of Serjeant Topham Three several days the Case was stifly debated in the House the Act read twice or thrice over and yet no resolution taken The Warrant of Committment which order'd the Gentleman to be confin'd without any Cause shown During the Will and Pleasure of the House of Commons was look'd upon so Illegal and Arbitrary a Procedure even by several Members of the House that Serjeant M. till he heard it was already made publick wou'd have them immediately recal the Old and grant a New Warrant more conformable to Law Besides the words of the Statute were so full as admitted of no Comment and so plain for the Liberty of the Subject as made it undenyable that Prisoners unless for Treason or Felony were still Bailable by what Person or Persons soever Committed not excepting the King and Council much less the House of Commons who had no Legal Power to Commit any Criminal But still the point was very nice and the Leading Members no less uncertain what resolution to take for if they openly declar'd against the Habeas Corpus the Nation wou'd be much alarm'd and suspect these Gentleman instead of securing intended to invade the Subjects Liberty but if they allow'd the Writ the delicious power of Imprisoning such as they had a picque to was utterly lost and all persons referr'd to the ordinary Courts of Justice or upon their failure to the House of Lords the suprem Tribunal of England At last Sir William Jones like an Imperious Dictator starts up to decide the matter and having made a bawling Harangue concerning the Power of the House and their Intention of not
whilst these Brothers lived and held together they were as a strong Fortress one to the other the Admirals Courage supporting the Protectors Authority and the Protectors Authority maintaining the Admirals Stoutness but the Admiral once gone the Protectors Authority as wanting support began to totter and fell at last to utter ruine Besides there was at this time amongst the Nobility a kind of Faction Protestants who favour'd the Protector for his own sake and other of the Papal inclination who favour'd him for his Brothers sake But his Brother being gone both sides forsook him even his own side as thinking they could expect little assistance from him who gave no more assistance to his own Brother Bakers Chronicle p. 307. What a noise they make about these terrible Bugbears Popery and Slavery as if both were inseparable and actually breaking in upon the Nation or rather come as far as the Lobby of the House of Commons For my part tho I have no reason to be fond of either the one being no less contrary to my Nature than the other to my Principles yet I cannot be startl'd at every shadow nor believe that the Duke having already spent the Prime of his days let him succeed never so soon will be able to introduce amongst us any new much less the Popish Religion Neither can I be perswaded contrary to common sense and the experience of so many Ages but that the Papists are as fond of their Liberty and Property and consequently as great enemies to Slavery as any Protestant whatsoever For to them we owe the unparallel'd Common-Law of this Realm Magna Charta and all those wholesom Statutes grounded thereupon to them we are oblig'd for the incomparable Frame of our well-temper'd Monarchy which affords very much to the Industry and Happiness of the Subject yet preserves enough for the Majesty and Prerogative of any King that will own his People as Subjects and not as Slaves or Villains Who then but a Fool or a Mad-man wou'd think Slavery the unavoidable consequence of that Religion the Professors whereof even in the time of their blindest zeal and greatest darkness for since then they are much refin'd made such impregnable Bulwarks against it and provided such wholesome Laws to defend themselves from all the encroachments of Arbitrary Power Insomuch that the high and mighty Pope himself who often endeavour'd to enslave this Kingdom and make it Tributary to his avarice found to his great grief that tho some ignorant Bigots wou'd contribute to fill his Coffers yet the generality of the Nation were so tender of their own and their Princes Rights that they always oppos'd him with true English Courage as appears not only by hundreds of adjudg'd Cases reported in our Law-Books but by divers Records and Acts of Parliament For 25 Ed. 3. Stat. of Provisors 't is enacted That such persons as obtain Provisions or collation of Benefices from Rome and thereupon disturb the Presentees of the King or of other Patrons of Holy Church or of their Advowees The said Provisors their Procurators Executors and Notaries shall be attached by their body and brought in to Answer And if they be convict they shall abide in Prison without being let to Mainprise or Bail or otherwise delivered till they have made Fine and Ransom to the King at his Will and gree to the Party that shall feel himself grieved And nevertheless before they be delivered they shall make full renunciation and find Surety that they shall not attempt such things in time to come nor sue any Process by them nor by other against any man in the Court of Rome nor in any part elsewhere for any such Imprisonments or Renunciations nor any other thing depending of them And in the same year it was Enacted that he that purchas'd a Provision in Rome for an Abbey shou'd be out of the Kings Protection and any man might do with him as with the Kings Enemy 25 Ed. 3. c. 22. 2â— Ed. 3. c. 1. upon the grievous Complaints of the Lords and Commons in Parliament It was ordain'd that all People of the Kings Lâ—geance of what condition that they be which shall draw any out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court or of things whereof Judgements be given in the Kings Court or which do Sue in any other Court to defeat or impeach the Judgements given in the Kings Court if they appear not within two months after warning given shall be put out of the Kings Protection and their Lands Goods and Chattles forfeit to the King and their Bodies wheresoever they may be found shall be taken and Imprisoned and Ransomed at the Kings will 13 R. c. 2. 'T is Enacted That if any do accept of a Benefice of Holy Church contrary to this Statute and that duly prov'd he shall within six Weeks next after such acceptation be exiled and banished out of the Realm for ever and his Lands and Tenements Goods and Chattles shall be forfeit to the King And if any Receive any such person banished coming from beyond the Sea or being within the Realm after the said six Weeks knowing thereof he shall be also exiled and banished and incurr such forfeiture as afore is said And their Procurators Notaries Executors and Summoners shall have the pain and forfeiture aforesaid And c. 3 It is ordained and established That if any man bring or send within the Realm or the King's power any Summons Sentence or Excommunication against any person of what condition that he be for the cause of making motion assent or execution of the said Statute of Provisors he shall be taken arrested and put in Prison and forfeit all his Lands and Tenements Goods and Chattels for ever and incur the pain of life and of member And if a Prelate make execution of such Summons Sentences or Excommunications that his Temporalties be taken and abide in the Kings hands till due redress and correction thereof be made And if any person of less Estate than a Prelate of what condition that he be make such execution he shall be taken arrested and put in Prison and have Imprisonment and make fine and ransom by the discretion of the Kings Councel 16 R. 2. 't is declar'd That the Crown of England which hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regalty of the same Crown ought not to be submitted to the Pope nor the Laws and Statutes of the Realm by him defeated and avoided at his will in perpetual destruction of the Sovereignty of the King our Lord His Crown His Regalty and of all His Realm And moreover the Commons affirmed That the things attempted by the Pope be clearly against the King's Crown and His Regality used and approved of in the time of all his Progenitors Wherefore they and all the Leige-Commons of the same Realm will stand by the King and
any person or persons or body-politick for any Manors Lands Tenements Hereditaments or things above-specified contrary to the words sentences and meaning of this Act shall incur the danger of the Act of Praemunire ib. § 41. What cou'd the wit of man contrive or devise more firm in Law or more satisfactory to all parties concern'd in Church or Abbey-Lands than these and several other paragraphs provided in the same Act of Parliament Why then are people by groundless and imaginary fears discompos'd or frightn'd out of their wits and made tools to drive on the Designs of some ill men against the Monarchy and the Church who will have nothing sufficient to secure them in the Religion they have not but what will unavoidably shake the very foundation of the Government 'T is true our State-Mountebanks in their Address presented in the Name of the House of Commons are so dutiful to their Sovereign as humbly to threaten this may possibly happen if the Duke succeeds We further humbly beseech Your Majesty say they in Your great Wisdom to consider whether in case the Imperial Crown of this Protestant Kingdom should descend to the Duke of York the opposition which may possibly be made to his possessing it may not only endanger the farther descent in the Royal Line but even Monarchy it self 21 Dec. 1680. But that season I hope is over and the Nation now thorowly sensible of the fatal consequences of such resolutions and can never forget the unparallell'd Tyranny of the Rump nor the doleful Tragedies that ensu'd the Quarrel between York and Lancaster which made England a Field of Blood But what has this great Prince once the peoples darling done to deserve so severe a treatment or be thought so dangerous a person to the Publick Has he defrauded any of an Ox or an Ass or was he ever found worse than his word or unjust in his dealings If he has chang'd his opinion which yet is improbable about the modes and circumstances of Religion 't is plain he has not chang'd his moral Principles nor his natural affection to his Countrey I need not instance how often he expos'd his Person to danger like a common Sea-man to fight our Battles nor how zealously he always studied the true Interest of the English Nation in opposition to French Designs a truth too well known even to his most inveterate Enemies but ill rewarded with ingratitude 'T is prodigious what tricks and arts have been us'd of late to incense the unthinking multitude against His Highness and set them a-madding with the apprehension of Stakes and Faggots and all the Chymoera's of a crack-brain'd fancy when 't is palpably evident it is not in the power of any Prince tho' the greatest Bigot of Papists to force this Nation in point of Conscience or alter the establish'd Religion since the Laws de Haeretico combâ—rendo which in Queen Maries time were in force and warranted the Cruelties then committed upon the Protestants as the Statutes made by Queen Elizabeth do the executing of Priests and Jesuits as Traytors both uncharitable and ill-becoming a Christian-Magistrate are now happily repeal'd and abolish'd Why then shou'd people be bugbear'd out of their senses with imaginary fears of Smithfield-Faggots or think that the Duke who never advis'd his own Children to become Papists wou'd offer tho' able to compel any other to renounce his Religion If He has express'd some kindness for such Romanists as had signaliz'd their Loyalty to His FATHER here or to His BROTHER Abroad when those that now call themselves true Protestants openly absur'd his Title 't is an instance of his gratitude and good nature but no Argument of his approving the Opinions of that Party And yet we have no better proof than such groundless whispers and surmises unless we believe the ridiculous Salamunca Doctor 's peeping through the Key-hole of his being a Papist or any way inclin'd to the Popish Communion How false then is the Preamble and therefore justly rejected had there been no other reason by the House of Lords of the intended Bill of Exclusion That the Duke of York is notoriously known to have been perverted from the Protestant to the Popish Religion Or the extravagant Vote whereon they grounded this Abortive Bill Resolved That the Duke of York's being a Papist and the hopes of his coming such to the Crown hath given the greatest countenance and encouragement to the present designs and conspiracies against the King and the Protestant Religion 2 Nov. 1680. Whereas it might with greater Truth and Justice be Resolved That the late endeavours of some Leading men in the House of Commons in favour of the Fanaticks and their declaring That if His Majesty should come by any Violent Death they would revenge it to the utmost upon the Papists has given the greatest countenance and encouragement to Colledge and his Accomplices to conspire against the King and the Church and has openly expos'd His Majesties sacred Life to the blind zeal of the Faction to whom besides the prospect of destroying their enemies it was a great temptation to commit the villany that they cou'd safely leave it at anothers door Thus Sir I have given you in short my Opinion on Mr. Hunts Defence of the Charter and for your further satisfaction have added some Remarks on the Proceedings of our worthy Patriots so much commended by that Gentleman in the last Parliament at Westminster There remains a great deal more to be said as well of this as of the other that follow'd at Oxford but some earnest business requiring my attendance I will at present give you no further trouble only speak a word or two to the general Calumny cast by the Factions on all that dare oppose their Designs and which I cannot well expect to escape viz. That we are no Friends to Parliaments But I appeal to any man of Sense whether I who wou'd have the Commons freely enjoy their Priviledges yet confin'd within their Ancient and Legal bounds or the Fanatick that labours to make their Power absolute and uncontroulable be a greater friend to that Honourable Assembly And whether they can possibly have more pernicious enemies than such as make them Controullers instead of Councellors to their Soveraign and Competitors with him in the Government when their Being wholly depends on his Will and Pleasure and can expect to fit no longer than during their good Behaviour How Fatal the Insolencies of the 3d. Estate in France Anno 1614. prov'd to that Nation in general who never since had the like Assembly is particularly observ'd by several Historians 'T is true we have no reason to mistrust any such thing having so good and so gracious a Prince as has solemnly engag'd His Royal word That no Irregularities in Parliament shall ever make Him out of Love with Parliaments Declar. p. 9. Besides that our Constitution is such that we cannot reasonably fear it Nevertheless Policy as well as Duty requires that the Commons give no such distast for the future as will justly occasion even any long intermission of their meeting since Parliaments provided they behave themselves with Prudence and Moderation Are the best method as His Majesty says for healing the Distempers of the Kingdom and the only means to preserve the Monarchy in that due credit and respect which it ought to have both at hom and abroad Ibid. FINIS * In making our ancient Laws saith the great Antiquary Mr Selden the Commons did petere the Lords assentire the King concludere in his Judicature in Parliament pag. 132. pag. 27. * 4 Ed. 3. 14. 36 Ed. 3. 10. * 16 Car. 2. 1. * Ne frena animo permitte calenti da spacium tenuemque moram male cuncta ministrat impetus * You all know that Rex è Lex loquens and you often heard me say that the King's will and intention being the speaking Law ought to be Luce clarius And again In any Case wherein no positive Law is resolute Rex e Judex for he is Lex loquens and is to supply the Law where the Law wants * Ib. f. 60. Beechers Case The like he hath fol. 120. Bonham's Case and lib. 11. f. 43. Godfrey's Case and in several other places * Dyer f. 60. a. says the Parliament consists of three parts viz. the KING as chief Head the LORDS the chief and principal Members of the Body and the COMMONS the inferiour Members * Coke 4. Inst. p. 25. 31 H. 6. n. 26 27. * Mich. 12. Ed. 4. Rot. 20. in the Exchequer * Hill 14 E. 4. Rot. 7. * Dyer fol. 59. * 8 H. 6. Rot. Parl. n. 57. * 39 H. 6. n. 9. * 14 Ed. 4. n. 55. * The Lords themselves cannot by Priviledge of Parliament set any at Liberty by their immediate Orders to the Gentleman vsher or Serjeant at Arms but only by a Writ of Priviledge from the Lord Keeper as appears 43 Elizab. D'ewes Journals p. 608. * See Prynn's Remarks on Coke's 4 Inst. p. 42. * None can be Judge and Party Coke's 8 Reports Dr. Bouham's Case f. 118. b. * The constant Custom of the Commons even to this day to stand bare with their Hats in their hands while the Lords sit cover'd at all Conferences and Tryals is a plain Argument they are not Fellows or Colleagues in Judgment * 10 Jan. 1681 80 * 7 Jan. 1680. * 2 R. 2. 5. 11 R. 2. 11. c. de Scandalis Magnatum * 25 Ed. 3. Statute of Provisors * 38 Ed. 3. Stat. 2. c. 1. 2 H. c. 4. 7. H. 4. c. 6. 3 H. 5. c. 4. * The same is resolved 12 H. 4. f. 16. 14 H. 4. f. 14. 8 H. 6. f. 3. 20 H. 6. 1. 35 H. 6. 42. 7 E. 4. 14. 12 E. 4. 16. * 1 2 Phil. Mar. c. 8. num 32. * Volentes ac decernentes quod dictorum bonorum Ecclesiasticorum ram mobilium quam immobilium possessores praefati non possiut in praesenti nec in posterum seu per Conciliorum Generalium vel Provincialium dispositiones seu Decretales Rom. Pontificum Epistolas seu aliam quamconque censuram Ecclesiasticam in dictis bonis seu eorundem possessione molestari vel inquietari 1 2 Phil. Mar. c. 8. num 33.
King hath not His Power from Them nor They theirs from the King They Both derive their Authority from the consent of the People either tacit or express in the first institution of the Government or in the subsequent alterations of it pag. 16. Is not this a rare Assertor of the Monarchy that makes both Houses thus co-ordinate with the Prince and all the Three subordinate to the People turns the Governed into Govornours and leaves to the King the Title only but to His Subjects the Power and Dominion The Law tells us That all Authority and Jurisdiction Spiritual and Temporal is derived from the King 1 Ed. 6. c. 2. § 3. And Plowden as great a Lawyer perhaps as Mr. Hunt says That the King has the sole Government of His Subjects fol. 234 a. How then can Mr. Hunt make the People the Original of Power since all is derived from the Prince or how can either or both Houses of Parliament pretend of themselves to have any share in the Government which is wholly in the King or claim any Authority or Jurisdiction over the People but as deriv'd from the Sovereign Let us therefore explode these Republican Notions that have cost us so dear and cannot in the least avail either Parliament or People but will always make the Prince jealous of their proceedings who can better hear the complaints and humble Petitions of his dutiful Subjects the constant stile of our ancient Acts of Parliament than the Imperious dictates of his fellow-Governours for experience confirms what Lucan long since has told us Nulla fides Regni sociis omnisque potestas Impatiens consortis erit But how shou'd this new form of Corporations make their Representatives in Parliament not of the Peoples choice but of the Courts nomination is not very intelligâ—ble in my apprehension since every Cobler can tell the Free-men of Corporations and not their Officers have the sole power of electing their Representatives Where then is the danger of a Parliament of Papists and Red-coats tho' there had been no Law to disable the former from sitting in the House till they forswear themselves or abjure their principles unless the major part of the Free-men of England which I hope shall never happen be suppos'd to embrace the Popish Religion We have seen to our cost and to our shame a pretended Parliament of Red-coats and Round-heads which like the Aegyptian Locusts devour'd all the fruit of the Land and turn'd Europes Paradise into a Field of Blood and this blessing we owe to Mr. Hunt's poor harmless Dissenters which I hope will make us so wise for the future as never to give them the like opportunities It were endless to follow this lawless Scribler through every page and paragraph or severally to take notice of all his incoherences and impertinent digressions To come therefore close to the business of the Charter we must turn over many pages and step from the beginning almost to the end of his Pamphlet to find out something that may seem to the purpose Three points he offers at last in defence of the Charter which he says to the Londoners he comes to defend against theirs and he might add as well his own reason and understanding p. 31. For if he has a grain of Law or sense left he knows that of these points the first is impertinent to what he undertakes and the rest but fallacious cavillings to impose upon the Vulgar and make them obstinate to their cost First he says That the Dissenters tho' Excommunicate have a vote in the Election of their Officers 2ly That the Common-Council cannot destroy or surrender the Charter 3ly That the Sherivalties of London and Middlesex are in the City by Common or Statute-Law and consequently not to be displac'd but by Act of Parliament tho' with the consent of every individual Citizen p. 32. For the first he takes a world of pains to prove that the Excommunication of Dissenters does not render them uncapable of giving their Vote in the Election of the City-Officers And what then Is the Charter never to be forfeited while the Dissenters have a Vote or Suffrage in such Elections or are they so numerous in the Common-Council as to out-vote the Members of the Church of England are their tender consciences still so plyable as to receive the Sacrament in their Parish-Church to serve a turn and run to a Conventicle all the year after to take Tests and Oaths to get into Imployments and break all with a breath to promote the Good Old Cause nay venture to forfeit their Ears to the Pillory and their Souls to the Devil to help off an active Brother catch'd by the Tongue These are the harmless Clients of our Irish-Chief-Baron of whom we may well say with the Poet Mille adde catenas Effugiet tamen hac sceleratus vincula Proteus These I mean not the mis-led or seduc'd but the Heads and Ring-leaders of the Faction who always hold with the Hare and run with the Hound and make conscience of nothing but Conformity and yet conform for Preferment To these their deluded followers owe all the severities of late used against them and the City this so-much-talk'd-of Quo Warranto with all the unlucky consequences which Mr. Hunt says are like to attend it there being no other way to rescue the Government out of their hands or secure His Majesty's Crown and Dignity and the Lives of his good Subjects from pack'd Juries and perjur'd Ignoramus's But they have says our Lawyer an utter abhorrence against Popery and the Plot and joyn forwardly and zealously against it p. 16. 'T is true they make a great noise and bussle about that horrid Conspiracy but in reality they have done more than the Papists were able to do to stifle and confound it They attaqu'd the Church of England whilst in the heat of prosecuting the Conspirators and labour'd under the Umbrage of the Popish-Plot to carry on another of their own to subvert the establish'd Government and insensibly to decoy us into Presbytery and their darling Commonwealth as the Tryal and Condemnation of their Proto-Martyr Colledge their Green-ribbon-Clubs and Ignoramus-Juries their Vox Patriae's and Vox Populi's their Appeal from the Countrey to the City the Speech of their Noble Peer and in short the tendency of all their Seditious Libels back'd with the Depositions of several Witnesses do as plainly demonstrate as Coleman's Letters and Execution prove the wicked designs of the Papists They inveigl'd some of the principal Discoverers of the Popish-Plot to espouse their Party and vilifie the Church which frightn'd many a Loyal Gentleman that cou'd not forget the Contrivances of the late times where Popery was the First but Monarchy the Last Act of the Tragedy and made them suspect these same persons now their hand was in might at last be wrought upon to turn against the obedient Sons of the Church whom they had already stigmatiz'd with the ignominious Names of Tories Masqueraders and
Church-Papists In short they contriv'd so many shams and silly stories as made the very truth questionable and when they saw the English Plot was not like to embroil the Nation they invited a number of profligate wretches out of Ireland gave them Cloaths and Money in abundance and took so much pains to set up these unmanageable Tools that in fine they dash'd both Plots to pieces one against the other Are we not then beholding to our true-blew-Protestants after all these fine exploits for their abhorrence against Popery and the Plot and to Mr Hunt for his zealous vindication of their Proceedings He was formerly suspected to be a man of no Religion but now like a generous Soul he owns his Party in their greatest distress and openly declares against the Church of England as Betrayers of God's Cause and the Peoples Liberties Some of little understanding among you saith he that thus behave your selves are excusable as misguided by some of your Ministers who are in good earnest begging Preferments Dignities and Benefices for themselves by offering and betraying our Church to a voluntary Martyrdom p. 12. I need not comment upon this scurrilous Reflection 't is enough to say 't is the product of Mr. Hunt's own Brains who according to his Fee tho' against his conscience spoke for his Clyents for Lawyers he tells us and who more fit to know have Opinions to sell at any time tho' they have not the least colour of Reason to support them p. 19. If this Confounder both of Law and Gospel be thus for fouling his own Nest we need not wonder at his frequent snarlings at the Loyal and Christian Resolutions of our Reverend Clergy or expect better usage from a man that openly sides with the Enemies of our Church I come now to his second point which is so wild and so extravagant a paradox as deserves rather to be laugh'd at by men of sense than to be answer'd or confuted since besides several that have done it within these two years past there are not many Corporations in England whose Charters have not been surrendred by their Common-Council without so much as consulting their Common-halls and yet were never question'd for it as Betrayers of their Trust or of the Liberties of the People But he drives home the Nail in his 3d. assertion where he says that the Sherivalties of London and Middlesex or the right of choosing their Sheriffs the main point now in dispute and what most concerns the King after our late experience to have in His own disposal cannot be parted with without an Act of Parliament tho' with the consent of every individual Citizen But sure the Gentleman is not in earnest for I hope he will allow us that tho' alone they cannot yet with the consent and approbation of the Common-hall or of every Citizen the Common-Council may surrender the Charter who then the Charter being thus surrendred has the power of choosing the Sheriffs when the Corporation the City and the County is dissolv'd neither Mayor nor Alderman Citizen nor Free man to found The Inhabitants in general cannot choose them for they have no right now to do it neither do they receive any new power by the surrender of the Charter and yet the Free-men cannot when there is no such thing in being no more in London than in Westminster or any other Dissolv'd Corporation But to be short in a Case so plain since the Gentleman requires an Act of Parliament for displacing the Citizens Right of choosing their Sheriffs here is One ready to his hand for taking away upon their neglect or misgovernment all their Franchises and Liberties and consequently this power of electing their own Officers and Magistrates an Act found by the prudence of our Ancestors so necessary for to maintain the publick Peace and keep that over-grown City within the bounds of duty that Henry IV. tho' he sought occasions to ingratiate himself with the People of London the better to secure his Usurpation yet cou'd not be wrought upon by their intreaties to have any material part of it alter'd much less annull'd or repeal'd The Act take as followeth 280 Edwardi 3 i. cap. 10 o. BEcause that the Errors Defaults and Misprisions which be notoriously used in the City of London for default of good Governance of the Mayor of the Sheriffs and the Aldermen cannot be enquired nor found by people of the same City it is ordained and established That the said Mayor Sheriffs and Aldermen which have the Governance of the same City shall cause to be redressed and correated the Defaults Errors and Misprisions above-named and the same duly punish from time to time upon a certain pain that is to say at the first Default a Thousand Marks to the King and at the second Default two Thousand Marks and at the third default that the Franchise and Liberty of the City be taken into the King's hand And be it begun to enquire upon them at St. Michael next coming so that if they do not cause to be made due redress as afore is said it shall be enquired of their Defaults by Enquests of people of Foreign Counties that is to say of Kent Essex Sussex Hertford Buckingham and Berk as well at the King's Suit as others that will complain And if the Mayor Sheriffs and Aldermen be by such Enquests thereto assigned Indiaed they shall be caused to come by due Process before the King's Justices which shall be to the same assigned out of the said City before whom they shall have their Answer as well to the King as to the Party And if they put them in Enquests such Enquests shall be taken by Foreign People as afore is said And if they be Attainsed the said pain shall incurr and be levied of the said Mayor Sheriffs and Aldermen for default of their Governance And nevertheless the Plaintiffs shall recover the treble Damages against the said Mayor Sheriffs and Aldermen And because that the Sheriffs of London be Parties to this business the Constable of the Tower or his Lieutenant shall serve in the place of the Sheriffs to receive the Writs as well Originals of the Chancery as Judicials under the Seal of the Justices to do thereof execution in the said City And Process shall be made by Attachment and Distress and by Exigent if need be so that at the King's Suit the Exigent shall be awarded after the first Capias returned and at the third Capias returned at the Suit of the Party And if the Mayor Sheriffs and Aldermen have Lands or Tenements out of the City Process shall be made against them by Attachments and Distresses in the same Counties where the Lands or Tenements be And that every of the said Mayors Sheriffs and Aldermen which do appear before the said Justices shall answer particularly for himself as well at the peril of other which be absent as of himself And this Ordinance shall be holden firm and stable notwithstanding any manner
Franchise Priviledges or Customs And this Ordinance shall extend to all Cities and Boroughs of the Realm where such Defaults or Misprisions be used and not duly corrected nor redressed saving that the Enquests shall be taken by Foreign people of the same County where such Cities or Boroughs be And that the pain of those of the said Boroughs and Tolws which shall be thereof Attainted shall be judged by the Discretion of the Justices which shall be thereto assigned This Act was a great Curb to the people of London and kept them for many years after very obsequious and dutiful to their Sovereign but in process of time finding it was not duly put in execution they began to forget it at last and wou'd now and then break out into some extravagance which afterwards cost them very dear Finding therefore themselves very uneasie under this restraint tho' neither in Edward III. nor his Successor's Reign they durst motion to have that Statute repeal d yet when the Vsurper Henry IV. came to the Crown they labour'd hard to get themselves rid of it but cou'd gain no more than the following Clause which many in London who always think ill of the King and His Ministers will think of no great advantage to the Defence of the Charter OUR Lord the king considering the good and lawful Behaviour of the Mayor Sheriffs and Aldermen and of all the Commonalty of the same City of London towards him and therefore willing to ease and mitigate the Penalty aforesaid by the assent of the Lords Spiritual and Temporal and of the Commons aforesaid hath Ordained and Established That the Penalty aforesaid as well of the Thousand Marks and of the two Thousand Marks and of the seizure of the Franchise comprized in the said Statute shall not be limited in a certainty but that the Penalties in this case be by the advice and discretion of the Justices thereto assigned as other Cities and Boroughs be within the Realm And that the Remnant of the same Statute and the Process thereof stand in their force 1 H. 4. cap. 15. Now I appeal to Mr. Hunt's own Judgment provided he has so much moral honesty to speak nothing of his skill in the Laws as will qualifie him for an Irish Chief-Baron Whether or no these two Statutes be not as plain against the Charter supposing the Mayor Sheriffs and Aldermen to have been negligent in their duty and a fortiori if they and the Common-Council be found guilty of the Crimes laid to their charge as Magna Charta or the Petition of Right is for the Liberty and Property of the Subject For that 't is neither Treason nor Felony nor yet the Subversion of the Government but Crimes of a far inferiour nature that are meant by the Errors and Misdemeanors mentioned in the said Acts is apparent by another Statute made some three years after by the same King Edward III. where it is Enacted That the Mayor and Aldermen of London shall rule and redress the defaults of Fishers Butchers and Poulters and put the same in execution upon the pain late ordained touching the City of London 31 Ed. 3. cap. 10. Now if the whole City for a bare neglect of duty in their Officers as for omitting to punish the Misdemeanors of silly Trades-men were by these Acts of Edward III. so grievously punishable as for the first Offence to forfeit a Thousand 〈…〉 no less in the 〈◊〉 value than 2000 l of our now 〈…〉 so much in the 〈◊〉 use and price of things 〈…〉 for the second offence and for the third to forfeit their Franchise and Liberties to the King what shall be thought of others if they are found not only to have laid an Illegal Arbitrary Tax upon their fellow-Subjects and in a tumultuous manner invaded their Properties but wink'd at if not encourag'd the publishing of Treasonable Papers and Pamphlets and instead of suppressing others presented their Prince with a most Scurrilous one of their own by way of Petition to tax His Majesty with misgovernment and endeavour to bring Him into hatred and contempt with his People As for the aforesaid Clause of 1 H. 4. tho' intended for as really it was a great favour to the City that they shou'd not for every trisling fault be oblig'd to pay such a vast Fine as a Thousand Marks twenty times greater than that sum now yet if their Crimes had been found of a transcendent nature striking at the very Root and Life of the Government we may be sure the Justices by vertue of this very Clause wou'd have immediately seiz'd their Charter without bringing them to any further Tryal So that this Clause tho' in small inferiour misdemeanors it be a great advantage to the City yet in Crimes of State where the Crown and the Monarchy are concern'd 't is no less an advantage to the King Thus Sir you have seen how well Mr. Hunt has defended the Charter against all the Power both of Law and Reason and you will find him altogether as happy in the rest of his undertakings I omit his impertinence on the Play call'd The Duke of Guise his unmannerly application of the Characters and his framing of Parallels where little or no similitude can be found Yet en passent I cannot but pity the condition our Lawyers INNOCENT and GENTLE PRINCE is reduc'd to by the slie insinuations and bewitching flatteries of this and such other Sycophants of the Faction who puff'd him up and possess'd him with such chymerical hopes of a Crown as made him forget his Obedidence to his Princes will and the positive command of his Natural Father Natural I say because in our Laws the Maxim is Qui ex damnato coitu nascuntur inter liberos non computantur i.e. Bastards are not counted amongst Sons Coke 1 Instit. f. 3. or as Littleton says A Bastard is quasi nullius filius because he cannot be Heir to any apud Coke 2 Instit. § 188. Now if by Law this Prince can be Heir to none what a madness it was to advise him to aspire to Three Hereditary Kingdoms or think to carry them tamely by Popular Applause when nothing but the Sword can establish a crack'd Title But the best people of England says this non-sensical Scribler have no other way left to shew their Loyalty to the King and love to their Religion and Government in the long intervals of Parliament than by Prosecuting His Son for the sake of the King and his own Merit with all the demonstrations of the highest esteem p. 28. They are certainly very hard put to it if this not to PROSECUTE his silly Latinism be the only shift they can make to express their Loyalty when Children can tell they might if they had any better shew it by prostrating themselves at His Majesty's feet and declaring their readiness to venture their Lives and Fortunes in defence of His Sacred Person and the Rights of His Crown against all the attempts of the
Popish Plotters and Whiggish Associators 'T is true some of the best People in England have had for the King's sake and in some measure for his own Merits sufficient kindness for his Grace and still wish him more Grace and consideration than to continue obstinately disobedient contrary to common Prudence and to all the ties and obligations of Nature of Duty and of Gratitude But as for Mr. Hunt's best People of England tho' pretended his only Friends they have been upon all occasions his real Enemies made a Property and a Tool of him to set him up like another Perkin Warbeck in opposition to the Royal Line and if that succeeded to kick him down again as they did Richard Cromwell to make room for Themselves and their darling Commonwealth But to return from this digression and examine what is left yet unanswer'd of this idle Pamphlet I find our Chief-Baron wouâ—d-be has stumbl'd at last on those two famous Statutes of Edward III to prove that Parliaments must be held once every year which saith he is confirm'd by an Act of this King call'd the Trienial Act p. 21. But by his Lordships good leave these Statutes if well consider'd will be found to have been made rather to oblige the Commons who then grumbl'd no less at the frequent calling than the Factious do now at the long intermission of Parliaments to send their Representatives to the King 's Great Councel than to bind the King to summon them when there was no occasion for their meeting and therefore to make the case more plain the conditional Clause If need be which may aptly refer to the whole period is expresly provided in the said Statutes For to affirm it was absolutely enacted that a Parliament shou'd be held once every year whether there was any or no need of their meeting when the choosing of Members was so troublesom and their expences eundo morando ad propria redeundo so chargeable to the people besides the great Taxes they usually granted is altogether unreasonable As for the Triennial Act of this King it makes more against than for his Lordships design since it requires but to have a Parliament once in three years and not sooner without some extraordinary occasion which I doubt not but His Majesty according to His late most Gracious Declaration will see punctually observ'd as He has been pleas'd to do in the whole course of His Reign And the Statute of Provisors 25 Ed 3. is no less impertinent to his purpose for tho' it be the Right of the Crown of England and that the Law of the said Realm is such that upon the mischiefs and damages which happen to His Realm the King ought and is bound by Oath with the accord of His People in Parliament to make remedy and Law in removing the mischiefs and damages which thereof ensue Yet if His People in Parliament prove peevish and obstinate and will not accept of His Majesty's gracious Condescensions nor of the expedients by Him propos'd who then is to be blam'd the King or His People How many Proposals and Overtures of accomodation have been made by His Majesty to His last Parliament at Westminster and how undutifully they were rejected by some Leading-Members in the House of Commons How often did he offer to consent to any reasonable expedient they cou'd find out for securing the establish'd Religion in case of a Popish Successor But all was slighted as if nothing but the Subversion of the Monarchy was able to secure some Gentlemen in their Religion that were shrewdly suspected to have none to lose This discourse I know will not relish with our Irish Chief-Baron who seems already very angry that a Cabal as he calls the Loyal Addressers of the Nation shou'd take upon themselves to arraign the Proceedings of our latest Parliaments p. 8. And yet his unmannerly Worship because he thinks 't is a Priviledge peculiar to the Godly to speak evil of Dignities scruples not to rail at the best Parliament that ever met in his time which really was what he scoffingly calls it a Parliament of famous Loyalty tho' in their latter days when by the Death of several good Members too many of the old Leaven had crept in that vigor was much abated which they always express'd in their former resolutions and for which this Factious Lawyer presumes to say that obliquely they gave the Papists many assistances p. 14. and in plain terms calls them the corrupt Villains of the late Long-Parliament Considerations consider'd p. 19. But to clear this point without insisting upon retortions and recriminations I say to arraign the Proceedings of the Parliament in its true and legal sense that is of King Lords and Commons is a very great and a very hainous Crime not to be conniv'd at or endur'd in any Subject whatsoever because it tends to the vilifying and consequently to the subverting the Government for as Seneca well observ'd Nihil valet Regum potestas nisi prius valeat authorit as If Princes lose their Authority the awe and reverence due to them from the People they have lost their Power and Command and are in effect more than half Depos'd But to arraign the Proceedings of the Parliament when this Name is abusively appropriated to the House of Commons to whom this lawless Scribler attributes a high and uncontroulable Power p. 9. as if the King and Lords were only Cyphers the Crime is not near so unpardonable as some people wou'd have us believe I am sure Mr. Justice Hutton in his Argument against Ship-money which so pleas'd even that Rebellious Conventicle of Forty-One who swallow'd up the King's Prerogative and the Peoples Liberties in their Parliament-Priviledges that they gave express Orders to get it printed thought it no such Crime to say I know not whether the last meeting in Parliament either by ill choice of the Members of the House or by the great encrease of the number or by the ambitious humour of some Members of that House who aim'd more at their own ends and designs than the good of the Commonwealth things were so carry'd not as was us'd in ancient times but so disastrously that it hath wrought such a distast of this course of Parliaments as we and all that love the Commonwealth have just cause to be sorry for it p. 33. Nevertheless I must confess that even in this sense 't is not becoming every private Pen to censure or condemn them upon every slight occasion and the motives must be very extraordinary when such practices are allowable Yet when we consider that matters have been so carry'd on for some years past that of necessity we must eâ—ther mislike our Princes Wisdom and Councils for Proroguing and Dissolving so many Parliaments or conclude as undoubtedly we must that the unseasonable heat of the Leading-Members in the House of Commons necessitated His Majesty to take such unwelcom resolutions And withal when we find not only the King but the
generality of the Nation in their repeated Addresses express their dislike to the Proceedings of a prevailing Party in that House all Loyal Subjects I think concern'd in the election of such Members ought to be so just to Themselves and the Publick as to declare their own Integrity and their constant affection to the King that the world may see they are no Abettors of the unwarrantable resolutions of their Representatives who perhaps ran into such unusual extravagancies in hopes to be seconded by their Principals But tho' the occasion be never so extraordinary it must nevertheless be granted for an undeniable Maxim that whatsoever misdemeanors any Members of that Honourable House happen to commit it ought not to reflection the House in general nor yet the errors of the whole House at any time put either Prince or People out of love with that wholsom and excellent Constitution For such is the instability of Mundan affairs that as the Poet said Nihil est ab omni parte beatum there is nothing upon Earth but hath its failings and even the best of Governments has sometimes its own inconveniences Thus Princes are now and then apt to give too much credit to their flattering Favourites and be led for a while by their evil Counsels till time and experience convince them of their error and 't is plaâ—n the wisest Assembly that ever sate â—n the House of Commons cannot be always free free from the like mistakes but are sometimes mpos'd upon by the plausible pretences of some designing Politicians and cunningly decoy'd in to act contrary to their inclination to their interest and their duty Of this kind we have several remarkable passages in the Intestine-Troubles of Forty-One where a few Factious Members in both Houses insensibly inveigl'd the rest and inflam'd the whole Nation into a general combustion And these four years past can sufficiently furnish us with fresh instances almost of the like nature but that through the great Prudence of our Sovereign and His Most Honourable House of Lords mindful of their Fathers miscarriages all these endeavours prov'd abortive and unsuccessful If we serâ—ously consider what measures some persons of greater parts than honesty made use of at that time as well in as out of Parliament we shall find cause enough to admire how people that pretend so much Religion Loyalty so much affection to their King and Countrâ—y cou'd be wrought upon to run head-long into such extravagant courses so destructive of the Prerogative-Royal and of the Peace and Settlement of the Three Kingdoms The horrid Popish-Plot which has already cost us so many Millions in our Trade and Commerce and I am afraid a great deal more in our Credit and Reputation abroad was made a stalking-horse by the ambitious to attain to their expected Greatness of being chief Ministers if not chief Magistrates of all the K's Dominions And because His Majesty wisely considering it was impossible to make a just and impartial enquiry into that hellish Conspiracy whiâ—e the people were so far transported with heat and passion which nothing but time cou'd cure and withal discovering what use some designing Demagogues intended to make of this Plot against the Monarchy thought it convenient or rather necessary sometimes to Prorogue sometimes to Dissolve his Parliament and call another in hopes to meet with one of a better temper and more moderation Our cunning Machiavellians took hold of this opportunity to enflame the unthinking multitude and make them believe their All was betray'd without a speedy Parliament to enquire into the Popish-Plot and redress the Grievances of the Nation and therefore they clamour'd it was absolutely necessary they shou'd all joyn in a Petition to His Majesty for that purpose whereby they were sure either to gain their point and get the Parliament to sit which they might model and influence as they pleas'd or at least know the strength of their party by the number of Subscribers and lessen His Majesty's credit in the hearts of his People To this end Agents are sent about and the Petition is sign'd by many Legions of the Goaly Party None so forward to subscribe this Petition to the Son as they who petition'd for Justice agaâ—nst the Father There you might see Presbyterians Independents Quakers Brownists and Anabaptists all in a string to petition His Majesty for a speedy Parliament A mysterious Riddle to all sober and understanding men that Fanaticks who always but in Forty-One dreaded the face of that August Assembly shou'd now be more zealous for their sitting than the True-Protestants of the Church of England It was certainly an Omen that cou'd portend no good either to Church or State and therefore as the King had reason to mistrust there lay a Snake in the Grass the Brethrens zealous petitioning to that purpose did rather hinder than forward their meeting At last when it could not be thought the effect of the Fanaticks importunity but of His Majesty's grace and goodness the Parliament met on the 23 of Octob 1680 and the King having solemnly renew'd them His former promises of complying with any thing they cou'd in reason propose desir'd them to wave all unseasonable disputes and hasten to settle the affairs of the Nation and bring their meeting to a happy conclusion The People were generally big with expectation to see the issue of this famous Session and doubted not but all their jealousies and distractions wou'd now be fully removed the Three Nations settl'd and compos'd and the Popish Plot speedily shifted to the bottom Parturiunt montes They sate almost for three entire months without any lett or interruption and what have they done all this while towards the effecting these weighty matters that lay before them what great progress have they made towards the suppressing of Popery or putting a period to that hellish Conspiracy They spent nine or ten days about my Lord Stafford's Tryal and when all expected the other Lords shou'd immediately follow our charitable Patriots tender it seems of shedding more Popish-Blood sate down to breath themselves and not a word more of the Papists to the end of the Chapter The truth is the Leading-Members that govern'd all in the House of Commons had other fish to fry They were ferreting out Papists in Masquerade or half-reform'd Protestants now thought more dangerous than the profess'd Romanists A Reformation they intended both in Church and State and God knows where it shou'd have ended It was enough they fix'd the Popish-Plot by the conviction of my Lord Stafford but it seems it was their interest to keep it on foot for other purposes perhaps in imitation of the wise Romans who thought it impolitick to demolish their great Rival Carthage which while standing might serve to keep them from idleness and exercise their Valour The Papists therefore must have a time to breath and the Fanaticks are the great favourites of the House while known Protestants of the Church of England under the
and accorded for the good governance of the Commons that no man be put to answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for error What are we the better I say to have these and several other Statutes to the same purpose if they are not of force to secure us on all sides from the slavish yoke of Arbitrary Power If a breach be once made in these great Bulwarks of our Liberties and that even by those Sentinels appointed to guard us from all Illegal Incroachments where is our Security What will it avail the flock that they are safe from Wolves if they are in danger to be devour'd by the very Dogs that shou'd defend them Or to what purpose shou'd people struggle to avoid Scylla if at the same time they suffer themselves to be swallow'd up in Charybdis 'T is an old saying Infeliciter aegrotat cui plus mali venit a medico â—uam a morbo and we have found this too true by a dear-bought experience God preserve us from receiving any further confirmations of it from those State-Empyricks that labour to make us exchange the reality for the name and the substance for the shadow or Liberty 'T is plain by the foregoing Statutes that no man ought to be taken or Imprison'd without being brought to Answer by due course of Law and that none can be brought thus to answer without Presenâ—ment before Justices or matter of Record or by due Process and Writ Original according to the old Law of the Land What pretence then have the House of Commons who can bring none to Answer in this manner to any right or legal power to take or Imprison any Criminal whatsoever 'T is true the Common and generally all men in Authority are inclin'd to enlarge their own Jurisdiction and stretch it as far as possible but sure a bare Vote of that House in favour of themselves or a late practice never heard of in former Ages shall not be of force enough in any Court of Justice to elude the solemn Acts of King and Parliament Besides these Statutes too plain to admit of any comment even by the Common Law of this Realm no Subject can Imprison another but our Ancient Courts of Record and such as have the Kings express Commission for so doing I say Courts of Record because as appears by divers adjudg'd Cases in our Law Reports no other Court can Fine or Imprison the Subject Courts saith Coke which are not of Record cannot impose a Fine or commit any to Prison lib. 8. f. 38. And again Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista tantummodo spectant ad Curias de Recordo Now our best Lawyers will tell us that the House of Commons is no Court of Record nay properly speaking is no Court at all 1. Because there is no Court but what is establish d by the Kings Patent by Act of Parliament or by the Common-Law i.e. the constant immemorial custom of former Ages Plowdens Comment fol. 319. and Coke 1 Instit. f. 260. But the House of Commons cannot pretend to have any Patent or Act of Parliament to be a Court and yet the Common-Law makes nothing for their purpose For they were never own'd as such nor ever had as much as a Journal-Book much less Records till Ed. 6's time And moreover it was never heard before Sir Edward Cokes fancy there were two distinct Courts in the same Parliament since therefore the House of Lords is undoubtedly the Supream Court of all England they are properly the High Court of Parliament and consequently the House of Commons is no Court in Law Secondly There is no Court without a power of Tryal but the House of Commons have no power to try any Crime or Offence for they cannot nor ever pretended to examine upon Oath And therefore since there can be no legal tryal without Witnesses nor are Witnesses of any force in Law unless examin'd upon Oath the House of Commons not claiming the power to administer Oaths cannot bring any matter to a Tryal and consequently can be no Court. I must confess Sir Edward Coke who in his latter days thinking himself disoblig'd was no friend to the Monarchy and therefore took a great deal of pains to extol the Power of the Commons in opposition to the Kings Prerogative and the Jurisdiction of the Lords is or at least pretends to be of another opinion In the 4th part of his Institutes he tells us That the House of Commons is to many purposes a distinct Court p 28. which he very Learnedly proves by this rare Demonstration That upon signification of the Kings pleasure to the Speaker they do and may Prorogue or Adjourn themselves and are not Prorogu'd or Adjourned by the House of Lords ib. Whereas to say nothing of Commissioners for examining Witnesses or regulating any publick business of Arbitrators Referees and the like every Committee of Lords and Commons tho never so few in number must upon this account be a distinct Court because they may thus Adjourn and Prorogue themselves without their respective Houses But he goes on and to prove the House of Commons is not only a Court but a Court of Judicature and Record he says p. 23. That the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. Whereas that House as I have already hinted had no such Book as a Journal much less any Authentick Record before the first year of Edward the sixth all their material Proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entr'd of Record in the House of Lords And therefore the words of the Statute are That the Speakers License for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House Which undoubtedly must be meant not of the Commons tho order'd now and then to wait upon them but of the Lords Clerk who alone is stil'd Clerk of the Parliament I omit that altho the Act had expresly call'd the Commons Book a Record yet this cou'd no more make it so than the words of the Common-Law Recordari facias loquelam in Curia Comitatus vel Baronis tui Recordum illud habere coram Justiciariâ—s nostris c. us'd in the Writt for removing a Plaint out of the Court-Baron or County-Court to the Common-Pleas can prove the County-Court and Court-Baron to be Courts of Record which yet Coke himself denyes in several places of his Institutes See 1 Inst. f. 117. and 260. and Rolls in his Abridg. f. 527. This is not all the Lords and Commons must be made all Fellows
against any of their Pretensions yet I must say the power they claim now-a-days to punish all sorts of misdemeanors and what they please to term a breach of Priviledge is not to be endur'd by any free-born Subject For besides that 't is needless because such offences may and by Law ought to be try'd in the ordinary Courts of Justice 't is very dangerous to the Publick least the Grand Inquest of the Nation appointed to represent the Peoples Grievances and pray redress shou'd upon this account be diverted from pursuing those weighty affairs by every sawcy Footman belonging to the meanest Burgess in their House I confess it were somewhat tolerable in the Commons to imprison and punish their own Members for words by them spoken or misdemeanors committed in the House 1. Because by 4 H. 8. c. 8. they are not punishable elsewhere for any rashness in Parliament that does not amount to Treason Felony or breach of the Peace which the Commons neither can nor I hope will as in Forty-One endeavour to protect 2ly Because 't is suppos'd the Members upon their entring into that Assembly unanimously agreed the lesser number shou'd always submit to the greater and the major Vote be observ'd as the Act and Sense of the whole House if therefore by consent and original compact every single Member submits himself to the rest he cannot complain tho' otherwise they had no authority if they imprison him for his misdemeanors because scienti volenti non fit injuria provided always they exceed not the common Rules of Justice nor the bounds of our establish'd Laws for then no private Act can bind a Subject tho' made with his own free consent as appears by Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. I cannot therefore but think the power assum'd of late years by the House of Commons over their fellow-Members to expel them the House when and for what they please without any legal Tryal which the Lords never practic'd against any of their Peers is in it self most unreasonable and of very dangerous consequence as Mr. Prynne tho' otherwise a great Champion for the Priviledges of Parliament proves at large in divers of his Treatises The practice saith he of sequestring and expelling Commons by their fellow-Commons only is a late dangerous unparliamentary Usurpation unknown to our Ancestors destructive to the Priviledges and Freedom of Parliaments and injurious to those Counties Cities and Boroughs whose Trustees are secluded the House of Commons being no Court of Justice to give either Oath or final Sentence and having no more authority to dismember their fellow-Members than any Judges Justices of the Peace or Committees have to Dis-judge Dis-justice or Dis-committee their fellow Judges Justices or Committee-men being all of equal Authority and made Members only by the King 's Writ and the Peoples Election not by the Houses or other Members Votes who yet now presume both to make and unmake seclude and recal expel and restore their fellow-Members at their pleasure contrary to the practice and resolution of former Ages to patch up a Factious Conventicle instead of an English Parliament In his legal Vindication of the Liberties of England p. 10. But whatever Power the Commons can pretend to have over their own Members to say they can lawfully punish others tho for a breach of Priviledge much less for any other Crime seems to me a very groundless Assertion not warrantable by the Ancient Law and Custom of Parliament but rather contrary to the Fundamental Constitutions of our Government First because 't is impossible to make out from whom this Power is deriv'd From the King The Factious will not own it and none can prove it For they have neither Patent nor Statute to shew for 't nor yet any Legal Prescription which is a constant immemorial Custom such as the Lords have in point of Judicature to warrant it the Ancientest President they can alledge being that of 4 Ed. 6. or the Case of Ferrers referr'd to them by the Lords in the 34 H. 8 about sevenscore years ago Do they deriâ—e it then from the People from the Freeholders and Freemen their Electors These have no such Power of themselves they can Imprison none without His Majesties Commission and what they have not sure they cannot give Nemo dat quod non habet As for the Power given by the Electors to their chosen Members who are order'd by the Writ of Summons to have from the persons they represent Plenam sufficientem potestatem 't is no Judicial Power nor Political Jurisdiction which the People have not and consequently cannot give but only a Power of consenting as well for their Principals as for themselves to the Kings Laws and Ordinances And certainly if the King be the Suprem and the only Suprem Governour of this Realm as we affirm in the Oath of Supremacy and if all Authority and Jurisdiction Spiritual and Temporal be derived and deducted from the Kings Majesty as 't is expresly declarâ—d 1 Ed. 6. c. 2. § 3. Or as Old Bracton saith Ea quae sunt Jurisdictionis pacis ad nullum pertinent nisi ad regiam dignitatem lib. 3. c. 24. Unless the Commons can make out they have their Power from the King they can have no manner of Jurisdiction and by consequence cannot lawfully Punish or Imprison any Criminal if not perchance their own Members in the Cases aforesaid Besides in the first Parliament of Queen Mary 't is declar'd That the most Ancient Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King 1 Mar. Sess. 3. c. What then are the breakers of the Commons Priviledges are they Offenders against the Dignity of the Crown or the Laws of the Realm If so they ought according to this Act to be punish'd by the King if not they are not punishable at all for to trouble any that does not offend against the Crown or the Law of the Land is very Illegal and Arbitrary and a high breach of the Liberty of the Subject Secondly because the Law has expresly provided where and how breaches of Priviledge ought to be punish'd and gives the House of Commons no power to take any cognizance of them for by several Statutes it appears that if a Parliament-man or his Menial-servant be Assaulted Beaten or Wounded in Parliament-time Proclamation shall be made where the deed is done that the Offendor shall render himself to the Kings-Bench within half a year after there to be tryed and if the Offendor will not appear he shall be Attainted of the Deed and pay to the Party griev'd his double Damages to be tax'd by the discretion of the Judges of the said Bench for the time being or by Inquest if need be and also make Fine and Ransom at the Kings will Moreover it is
His Crown and His Regalty in the cases aforesaid and in all other cases attempted against Him His Crown and His Regalty in all points to live and to die These and several other Statutes too tedious 〈◊〉 to be inserted have been provided in former ages when the Pope's power was at the highest and provided even by Popish Kings and Popish Parliaments to secure themselves and the Nation from all Papal encroachments Neither have our Judges been less severe against the Popes unwarrantable pretensions who in pursuance of the Common-Law of the Land tho' no Statute had been made to that purpose judg'd it a very hainous Crime in any Subject of England to obey or put them in execution In the Reign of King Edward I when a Subject brought a Bull of Excommunication from Rome against another Subject of this Realm and publish'd it to the Lord Treasurer of England this was by the Common-Law of the Land adjudg'd Treason against the King his Crown and Dignity 30 lib. Ass. pla 19. Brook tit Praemunire pl◠10. An Excommunication by the Archbishop albeit it be disallow'd by the Pope or his Legate is to be allow'd neither ought the Judges give any allowance of any such Sentence of the Pope or his Legate 16 E. 3. tit Excom 4. An Excommunication under the Popes Bull is of no force to disable any man in England And the Judges said That he that pleadeth such Bulls tho they concern the Excommunication of a Subject were in a hard Case if the King would extend his Justice against him 30 E. 3. lib. Ass. pl. 19. The King presented to a Benefice and his Presentee was disturb'd by one that had obtain'd Bulls from Rome for which offence he was confin'd to perpetual Imprisonment 21 Ed. 3. f. 40. One Morris being elected Abbot of Waltham sent to Rome for a Bull of confirmation But it was resolved by all the Judges that this Bull was against the Laws of England and that the Abbot for obtaining the same was fallen into the King's mercy whereupon all his Possessions were seiz'd into the King's hands 46 Ed. 3. tit Praemunire 6. In the Reign of Ed. 4. the Pope granted to the Prior of St. Johns to have Sanctuary within his Priory But it was resolved by the Judges that the Pope had no power to grant Sanctuary within this Realm and therefore by judgment of the Law the same was disallowed 1 H. 7. f 20. In the same King's Reign a Legate from the Pope came to Callis to have come into England But the King and his Councel would not suffer him to come within the Kingdom until he had taken an Oath that he should attempt nothing against the King or his Crown 1 H. 7. f. 10. And in the Reign of H. 7. the Pope had excommunicated all such persons whatsoever as had bought Allom of the Florentines But it was resolved by all the Judges of England that the Popes Excommunication ought not to be obeyed or to be put in execution within the Realm of England 1 H. 7. f. 10. These and many other such Cases you may see in the first part of Coke's 5 th Reports Now if not only the Judges but the Representative-wisdom of the Nation even King Lords and Commons in the thickest mist of Popish ignorance were so resolute against the Bishop of Rome and so careful to preserve their own Rights and Liberties inviolable who can be so silly as to believe that a Popish Prince in this Kingdom and at this time of the day when Popery it self is much refin'd and the whole Nation irreconcilably bent against it will ever submit to any Papal Usurpation much less make himself or his People Slaves to the Court of Rome Alas says one but our sweet Abbey-Lands are in danger to be lost and reassum'd by the Popish Clergy what course then shall we take to secure them Believe me if the Law will not do it I know no other way but a project I hear shortly to be set on foot for Insuring all the Church-Lands in the Kingdom these 40 years to come The parties concern'd will propose very reasonable terms and will undertake the squinting Trimmer who maliciously whispers about he wou'd take seven years purchase for his Church-Lands in case of a Popish Successor shall have fourteen well secur'd whenever the Duke succeeds But why our Abbey-Lands more in danger than any other part of our Estates since we have the same security for the one as for the other and both as firmly secur'd as the Law can make them or the wit of man devise 'T is well known that the Popish Clergy in Queen Maries time the better to forward the peoples reconciliation with the Church of Rome by their Petition to the Queen consented that all the Church-Lands dispos'd of to Lay-men shou'd be settl'd on the Possessors and their Heirs for ever without any danger of revocation And this was approv'd of by the Pope's Legate a latere Cardinal Pool willing and ordaining as he says that the present possessors of Ecclesiastical Goods as well movable as immovable shall not at this time nor in time to come be disquieted nor molested in the possession of the said Goods either by the disposal or order of any General or Provincial Councils or by the Decretal Epistles of the Bishop of Rome or by any other Ecclesiastical Censure whatsoever And besides this to crown the work beyond all exception and bind it with a triple Cord which is not easily broken all is confirm'd in full Parliament by the Queen by the Cardinal and Clergy and by the Lords and Commons by whom 't is enacted That all and every Article Clause Sentence and Proviso contained or specified in any Act or Acts of Parliament concerning or touching the assurance or conveyance of any the said Monasteries Priories Nunneries Commandries Deanries Prebends Colledges Chantries Hospitals Houses of Fryers Rectories Vicarages Churches Chappels Archbishopricks Bishopricks and other Religious and Ecclesiastical houses and places or any of them or in any ways concerning any Manors Lands Tenements Profits Commodities Hereditaments or other the things before specified to the said K. H. 8. or K. Ed. 6. or either of them or any other person or persons or Body-politick or Corporate and every of them and all and every Writing Deed and Instrument concerning the assurance of any the same shall stand remain and be in as good force effect and strength and shall be pleaded and taken advantage of to all intents constructions and purposes as the same should might or could have been by the Laws and Statutes of this Realm in case this present Act had never been had or made 1. 2 Phil. Mar. c. 8 § 39. And 't is further enacted That whosoever shall by any Process obtained out of any Ecclesiastical Court within this Realm or without or by pretence of any spiritual Jurisdiction or otherwise contrary to the Laws of this Realm inquiet or molest