cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that
Francis Hargrave THE WORKS OF THE Right Honourable Henry late L. Delamer AND Earl of Warrington CONTAINING His Lordships Advice to His Children Several Speeches in Parliament c. WITH MANY OTHER Occasional Discourses On the AFFAIRS of the Two Last Reigns BEING Original Manuscripts Written with His Lordships own Hand Never before Printed LONDON Printed for John Lawrence at the Angel and John Dunton at the Raven in the Poultrey 1694. TO The Right Honourable THE EARL OF WARRINGTON My Lord SInce my late Lord Warrington your Father trusted me with the care of your Education your Lordship has made so great a Progress in all things which I Taught you that I am now forced to procure you another Tutor You are become in a little time a great Master of several Languages and most parts of Philosophy and I may say without flattery that your Lordship hath Genius Learning and Piety enough to make one of the Best and the most Accomplish't Gentleman in England But yet your Quality requires something more for it is not enough for one in your Lordships High Station to be Humanist Geographer Historian and I may add a good Man too he must be also a States-man and a Politician but being neither my self I must repeat the same thing over again to my Shame and to your Credit that your Lordship wants a better Master Amongst several of the most Eminent Men which I could recommend to your Lordship I found none so Learned nor indeed so fit to make deep Impressions upon your Mind as your Lordships Noble Father whose Writings belongs to you as well as his Estate I don't doubt but you will strive to get the best share of his Learning nor can you fail of an Extream Delight by drawing Sciences but of the same Spring from whence your Noble Blood did flow His Book then being yours both by Inheritance and by the particular gift of its Authour it would be unjust to present it to any other but your Lordship and needless to recommend it or beg your acceptance for 't Therefore omitting any longer Preface in Recommendation of these Golden Remains I 'll only take leave to make this Observation upon them That as there is nothing wanting in them for your Lordship's Instruction both by Humane Learning and Solid Devotion I have fitted you with the Master that I look't for and whom you wanted From whom having obtained all the Qualifications which your Noble Soul is capable of you have no more to wish for but that you may live and practice 'em and it will be to me both a great Satisfaction and Honour to see my Work finisht by the same Artist who put it first into my hands and trusted me with the beginning of it It will be enough for me that I have put my hands to such a Master-piece and shall be highly honoured if your Lordship take notice of my Endeavours and sufficiently Rewarded if you grant your Protection to him who has no other Ambition than to be Your Lordships Most Humble most Obedient and most Devoted Servant J. Dela Heuze THE CONTENTS I. HIS Lordships Advice to his Children page 1 II. An Essay upon Government p. 36 III. Reasons why King James Ran away from Salisbury p. 56 IV. Observations upon the Attainder of the late Duke of Monmouth with some Arguments for the Reversing thereof p. 70 V. Of the Interest of Whig and Tory which may with most safety be depended on by the Government on the account either of Fidelity or Numbers In a Letter to a Friend p. 82 VI. A Discourse shewing who were the true Incouragers of Popery Written on the occasion of King James 's Declaration of Indulgence p. 88 VII A Speech in Parliament for the Bill of Exclusion That the next of Blood have no Absolute Right to the Crown p. 94 VIII A Speech against Arbitrary and Illegal Imprisonments by the Privy Council Several Laws for the Restraint of this Power Instance of the Exercise of this Power on Sir Gilbert Gerrard about a Black-Box An Objection answered p. 100 IX A Speech against the Bishops Voting in case of Blood Lord Coke 's Opinion against it An Act of Parliament Good to which their Consent is not had Bishops no Peers though Lords of Parliament p. 107 X. A Speech against the Pensioners in the Reign of King Charles II. p. 115 XI A Speech for the sitting of Parliaments and against King Charles the seconds Favourites p. 121 XII A Speech in Parliament on the occasion of some Justices being put out of Commission in the said Reign p. 129. XIII A Speech for the Banishing the Papists p. 133 XIV A Speech on the Corruption of the Judges Laws to prevent it Some Instances thereof particularly Sir George Jeffreys when Judge of Chester p. 138 XV. Some Observations on the Prince of Orange's Declaration On the Exit of King Charles II. and Entrance of the late King whose Administration becoming Exorbitant brought on the Present Revolution The Arbitrary Proceeding of K. James excellently set forth by the Declaration c. In a Charge to the Grand Jury p. 353 XVI A Speech against the Asserters of Arbitrary Power and the Non-Swearers p. 385 XVII A Perswasive to Union upon King James his design to Invade England in the Year 1692. p. 401 XVIII Some Reasons against Prosecuting the Dissenters upon the Poenal Laws p. 412 XIX A Discourse proving the reasonableness of the present Revolution from the Nature of Government p. 421 XX. Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King p. 437 XXI Reasons for an Union between the Church and the Dissenters p. 457 XXII Of the Absolute Power Exercised in the late Reigns and a Defence of King Williams Accession to the Throne Election the Original of Succession Succession not very Ancient Division among Protestants a step to Arbitrary Power Enemies to the Act of Indulgence Disaffected to the Government p. 467 XXIII A Speech concerning Tyranny Liberty Religion Religious Contentions Laws of Advantage to the State cannot hurt the Church Of Conquest Of God's ways of Disposing Kingdoms and against Vice p. 483 XXIV The Legality of the Convention-Parliament though not called by Writ p. 509 XXV A Resolution of Two Important Questions 1. Whether the Crown of England be Hereditary 2. Whether the Duke of York ought to be Excluded p. 541 XXVI The Case of William Earl of Devonshire for striking Collonel Culpepper p. 563 XXVII Arguments against the Dispensing Power p. 583 XXVIII Prayers which his Lordship used in his Family p. 597 XXIX Some Memoirs of the Methods used in the Two last Reigns The Amazing Stupidity of those that would reduce us again into the same Condition p. 613 XXX Some Arguments to prove that there is no Presbyterian but a Popish Plot and against the Villany of Informing in 1681. p. 627 XXXI Monarchy the best Government and the English beyond all other With some Rules for the Choice
send for any person but without that they cannot and therefore I do not see wherein a Justice of Peace has a greater power than the Privy Council or if he had yet it would not be so great a Mischief for he can only send for any person that is in the County but the Privy Council are not limited to this or that County but their power extends all over England But besides it is unjust to be punisht without a cause and restraint or being debarr'd of Liberty is a punishment and whoever he be that would have the Privy Council to exercise this Power when he has known what it is to be brought up by a Messenger upon an Idle Story let him then tell me how he likes it and answer me if he can A SPEECH AGAINST THE Bishops Voting In Case of BLOOD OF all the things that were started to hinder the success of the last Parliament and is like to be so great a stumbling-block in the next That of the Bishops Voting in Case of Blood was and will be the chief Now they that deny that the Bishops have right to Vote in Case of Blood do labour under two great difficulties first because this is a new thing at least it is very long since the like Case has come into debate And next because they are put to prove a negative which is a great disadvantage But Truth will appear from under all the false glosses and umbrages that men may draw over it And I doubt not to make it evident that the Bishops have no right to Vote in Case of Blood at least I hope I shall not be guilty of obstinacy if I do not alter my opinion till what I have to say be answered It is strange the Bishops are so jealous of their Cause as not to adventure it on their great Diana the Canon Law by which they are expresly forbidden to meddle in case of Blood Perhaps they would do by the Canon Law as it is said by the Idolaters in the Old Testament that part of the timber they made a god and fell down and worshipped it the rest of it they either burnt in the fire or cast it to the dunghil For they tell you that the Canon Law was abolisht by the Reformation and that none but Papists yeild obedience to it and therefore now they are not tyed up by the Canon Law but may sit and Vote in case of Blood if they please I should be very glad if they were as averse to Popery in every thing else and particularly that they would leave Ceremonies indifferent and not contend so highly for them whereby they make the breach wider and heighten the differences among Protestants in the doing of which they do the Pope's work most effectually I wish they would consent to have a new Book of Canons for those that are now extant are the old Popish Canons I like Bishops very well but I wish that Bishops were reduced to their primitive Institution for I fear whilst there is in England a Lord Bishop the Church will not stand very steddily But I will leave this though I need say no more and proceed to other things that are very clear as I conceive My Lord Cook in the Second Part of his Institutes the first Chapter treating of Magna Charta when he reckons up the Priviledges of the Church he tells us that Clergy-men shall not be elected or have to do in secular Office and therefore he tells us that they are discharged of such and such burdens that Lay persons were subject to and good reason it should be so that they might with greater ease and security attend the business of their Function that is to govern and instruct the Church But whether they had these Immunities granted them that they might study the Pleas of the Crown and Law Cases or else that they might apply themselves to the work of the Ministry let any Man judge for saith he Nemo militans Deo implicet se negotiis secularibus And if to sit and judge in case of Blood be not a secular Matter I have no more to say and I hope my Lord Cook 's Authority will be allowed And because as I conceive that my Lord Cook 's Authority may pass Muster in this point I will offer some things out of him that will make it evident that the Bishops are only Lords of Parliament and not Peers and if so it is against the Law of England for them to sit and judge upon any Peer for his Life for the Law says that every Man shall be tried by his Peers In the Second Part of his Institutes the first Chapter he tells us that every Arch-Bishop that holds of the King per Baroniam and called by Writ to Parliament is a Lord of Parliament But in the 14th Chapter when he reckons up who are Pares in the Lords House he says not a word of the Bishops but repeats all the other Degrees of Lords as Dukes c. And without doubt he would not have made so great an omission if the Bishops ought to have been taken into the number Besides this if the Bishops be Pares how comes it to pass that an Act of Parliament shall be good to which their consent is not had passed by the King Lords Temporal and Commons But it was never allowed for an Act of Parliament where the Lords Temporal had not given their Vote And for proof hereof see my Lord Cook in his Chap. De Asportatis Religiosorum where he gives you several Instances of Acts of Parliament that passed and the Bishops absent But then in the Third Part of his Institutes he there puts the matter out of all controversie and shews that Bishops are to be tried by Commoners for says he in the second Chap. treating of Petty Treason None shall be tried by his Peers but only such as sit there ratione Nobilitatis as Dukes c. and reckons the several Degrees and not such as are Lords of Parliament ratione Baroniarum quas tenent in Jure Ecclesiae as Arch-Bishops and Bishops and formerly Abbots and Priors but they saith he shall be tryed by the Country that is by the Free-holders for that they are not of the Degree of Nobility So that with submission this is as clear as any thing in the World If the point be so clear that the Bishops may Vote in case of Blood it would do well that some Presidents were produced by which it might appear that they have ever done it at least that they have made use of it in such times when the Nation was in quiet and matters were carried fairly for Instances from Times of Confusion or Rebellion help rather to pull down than support a Cause But my Lord Cook in his Chap. that I mentioned even now De Asportatis Religiosorum gives you several Presidents where the Bishops when Capital Matters were to be debated in the Lords House withdrew themselves particularly 2 of
into Order and frâ— maintaining the Laws and supporting the Government Arbitary Doctrine never did any King good but has ruined many it shook King Charles the seconds Throne and tumbled down his next Successour and tho' such Kings are left without excuse when ruined yet I may say they only are not in fault for their Overthrow is in a great part occasioned by those who Preach up and advise the King to Arbitrary Power Did not other People cocker up and cherish Arbitrary Notions in the Peoples mind tho' such conceptions might sometimes get into his head yet they would never Fructify and come to Perfection if they were not Cultivated by Parasites who make their Court that way in hopes to make themselves great tho' with the hazard of their Masters Crown As it befell K. James whose Male-Administration rendred him unmeet to sway the Scepter and I am very well satisfyed that his Judgment was just for unless a People are decreed to be miserable which God Almighty will never do except thereto provoked by their Sins certainly he will never so tye up their hands that they shall not be allow'd to use them when they have no other way to help themselves Several Artifices were made use of in the two late Reigns for the introducing Arbitrary Power One of which was to insinuate into the minds of the People That the Succession of the Crown was the chief Pillar of the Government and that the breaking into it upon any pretence whatsoever was no less than a Dissolution of the whole Constitution and nothing but Disorder and Confusion would ensue This Doctrine prevailed with many and obtained no less than if the Crown had been settled in that Family by an Ordinance or Decree dropt from Heaven and that every one of that Line or Race had been distinguisht from the rest of mankind by more than ordinary Virtues and Indowments of Mind and Body But we know not of any such Divine Revelation and happy had it been if that Family had been so signal for its Justice and Piety we might then have prayed that there might not want one of them to sit upon the Throne to all Ages How much this Nation is obliged to that Family we very well Remember for the Wounds they gave us are not yet healed Election was certainly the Original of Succession for as the Living more safely and with the freer enjoyment of their Goods was the Original Cause that people Associated themselves into a Nation or Kingdom so for the better attaining that End did they set over themselves the best and Wisest of their Brethren to be their Rulers and Governours and this Administration was trusted in one or more hands according to the temper and Disposition of the People in which Authority they continued either for their Lives or for one Year or some other stated Period of time Where the Government was under a King he usually held it for Life and then upon his decease the People proceeded to a new Election till at last it fell into the hand of some very excellent Person who having more than Ordinarily deserved of his Country they as well in Gratitude to him as believing they could not expect a better Choice than in the Branches that would grow out of so excellent a Stock entailed that Dignity upon him and his Posterity This seems to be the most natural and Lawful rise of Succession I don't deny but some Successions have arisen from force but that was never lasting for that could not subsist or seem lawful longer than there was a force to support it Now those that come to the Crown by the first way of Succession I mean by the consent and approbations of the People does it not plainly imply that they ought to use that power for the good and advantage of their Subjects and not to their hurt and enjoy their Crown only upon that condition no man would ever suffer a Monster to inherit his Estate and Kings are no more exempted from the Accidents of Nature than their meanest Subjects and it is every days practice in private Families to exclude those that will waste their Estate and ruine the Family and if the Reason will there hold good then it is so much stronger in the descent of the Crown by how much the good of a whole Kingdom is to be preferred to that of one private Family Succession is not so very ancient in England as some People may apprehend till the time of William Primus commonly called the Conqueror it was lookt upon as a very precarious Title The next in Succession could reckon very little upon the Crown further than his good Inclinations and Sufficiency to Sway the Scepter did recommend him it being then very common not only to break into the Succession but even to set aside all that Family and Line when ever it was found that the Publick might suffer by their being at the head of the Government the Publick Good being the only Rule and Consideration that Govern'd that point William Primus upon his Death-bed declared that he did not possess the Crown by an Hereditary Right Heary Primus in his Charter acknowleged to hold his Crown by the Mercy of God and the Common Council K. Stephen Henry 2d Rich. Primus and King John all came in by Election so that till Henry 3d. there is scarcely to be found any Precedent of Succession since his time the Succession has been broke into several times and the Crown shifted from one Family to another by Act of Parliament and being so transferred by that Authority is the greatest Proof that can be that Succession is a very feeble Title without something else to support it and I think I may say Defective For says one of great Authority Never did any take pains to obtain an Act of Parliament to settle his Inheritance on his Heirs except he were an Alien or Illegitimate and therefore considering That by vertue of an Intail of the Crown by Act of Parliament in Henry the Sevenths time it is that the four last Kings have swayed this Scepter I could never understand that Divine Right that was by some stampt upon their Title to the Crown or that the Succession was preferrable to the Publick Good I have endeavoured to explain this point the more by reason that some object against the sufficiency of This Kings Title to the Crown because the Succession was broke through to let him into the Throne as if nothing could give a King a good Title to the Crown but Succession For my part I never saw any reason to be of that Opinion and if there be nothing but the Interruption of the Succession to object to this Kings Right if he continue to govern according to the Principle upon which the Crown was given him and according to the laudable Customs of the Realm I think that every man that wishes well to the Interest of his Country ought to bless God for this Revolution
gave him the Crown and he soon perceived that there was no Rest for the Sole of his Foot till he had taken the Coronation Oath and had sworn to maintain their Laws and Properties Some little Irregularities must be admitted in a time when things are unsettled but it will scarcely be found that any man was disceased of his Freehold but only such whose Demerits render'd them unworthy of them and from his time the Norman Government proceeded upon the Saxon Principles for King William by the Advice of his Nobles caused a select number of Men out of every County to be summoned who were to set down their Laws what they were in Edward the Confessor's time for it was he who had collected the Laws which at this day is called the Common Law Then after him William II. and Hen. I. succeeded each other and their Title was by Election of the People for Robert their elder Brother was alive and saw them both preferred to the Crown and he never enjoy'd it for he died a Prisoner at Cardiff Castle in the time of Hen. I. The next was K. Stephen who was second Son to Adela Daughter to William the Conqueror he was chosen by the People for he had an elder Brother whose Name was Theobald and there was Maud the Empress Daughter to Henry I. and both these were nearer by descent than he After him came Hen. II. he came in by Compact between K. Stephen himself and the Nobles and the good liking of the People for Maud his Mother was alive and by descent it belonged to her Then Richard I. was elected in his Father's Life-time and received Homage from the Peers King John was chosen by the People or else Arthur his elder Brother's Son who was then living would have succeeded Richard I. Henry III. came in by Election for Lewis the French Prince pretended to the Crown several of the Nobility having called him into their aid against King John and had sworn to him but the Fall of Pembrook who had married Henry's Aunt stuck to him and got him crowned by the consent of the Nobles and People after that he had taken the Coronation Oath and made other promises to the People Edward I. being out of the Land when his Father died was chosen by the consent of the Lords and Commons and I find that the Nation was sworn to the Succession of Edward I. before he went to the Holy Land Edward II. being mis-led by his Favourites was deposed and his Son Edward III. was declared King in his Life-time Richard II. Son to Edward the Black Prince was deposed for his Evil Government Henry IV. came in by Election of the People and though upon occasion sometimes he might pretend to several other Titles yet he found them unstable and to make sure he got the Crown entailed by Act of Parliament and so came in Henry V. and then his Son Henry VI. but he being found unmeet for Government enclining too much to the Counsels of his Wife who was a Foreigner and neglecting the Advices of his Parliament he was deposed and Edward IV. who was E. of March whose Father the D. of York by Act of Parliament was declared Heir apparent to the Crown and afterwards slain in the Battel at Wakefield He I say was Elected and afterwards Henry was restored and Edward set aside but at last Edward was setled and dies and the Crown came to his Son Edward V. who lived no longer than to be put into the Catalogue of our English Kings and then Richard III. was confirmed King by Act of Parliament for Elizabeth Daughter to Edw. IV. was living who afterwards was married to Henry VII and by right of descent the Crown belonged to her and he had no Title but what the People gave him Henry VII came in by Election for his Wives Title preceded his and there was also Edward Plantaginet Son to George D. of Clarence had an unquestionable Right before him if Descent might take place but to clear all doubts he got the Crown setled by Act of Parliament upon him and the Heirs of his Body successively for ever and upon that came in Henry VIII and in his time the Crown was limited three several times by Act of Parliament and there succeeded upon those limitations first Edward VI. then his Sister Queen Mary by Katherine Widow to Prince Arthur and then Q. Elizabeth by Ann Daughter to Sir Thomas Bullen and in the thirteenth year of her Reign a Law was made whereby it is made penal if any say that the Parliament cannot limit the Succession And now Sir I have given you a just account how the Crown has been disposed and if I should say no more I think that this of it self might convince any impartial man that the Crown till King James was in the Peoples dispose But that I may leave no place for doubt I will say something to those things which are so frequently objected and I will begin with that which says as follows Although there be many Instances where the Crown has leaped over the right Heir by descent and has lit upon the Head of another yet say they there are several Instances both before the Conquest and since where the Son has succeeded to the Father and that these are chiefly to be regarded because most agreeable to the Word of God which tells us That by me Kings reign c. and that the presidents that are otherwise are no better than Usurpation and not to be esteemed as legal but to be forgotten as Errors in the Government I acknowledge there is such a Text of Scripture but I must deny that it is to be taken in the literal sence for otherwise the King must be look'd upon to receive his Soveraign Power immediately from God without any regard had to our Laws and Constitutions and then he is King Jure divino and no Bounds or Limits of Humane Contrivance can be set to his Will but we are wholly at his Mercy and Pleasure and Magna Charta and the Petition of Right are waste Paper nay it not only destroys our Government but it puts an end to all other Constitutions in the World But the true meaning of the Words are That Kings are to be obeyed and that they are to govern under God according to the Laws of that Government and that they are to administer the Laws and Justice according to the Rules and Directions of that Constitution and not that Kings hereby shall have a Warrant to be unjust or govern arbitrarily But because there are some Instances where the Son has succeeded to the Father that therefore the Crown comes by descent I cannot grant for this Island has seldom been free from War and then the People are not at leisure to regard every Particular of their Right but are willing to have it at an end upon any terms and are not then so regardful under whom they enjoy their Liberties and Properties as that they
affected to prevail with the King to adjourn prorogue and dissolve Parliaments when they were doing thiâ—â—â— of the greatest moment for the Nation and on purpose to defeat those very matters they had in hand If he will adventure to do these things whilst he is a Subject what may we not justly expect from him if he happen to be King But notwithstanding all this some will say That the Word of God will not allow us to put by the next Heir to the Crown be he what he will because by Moses 's Law the next of Blood must inherit Truly I am for that too when we are in a good Breed but as our Case stands I cannot yield to it But under favour I conceive that this Text also obliges no otherwise than according to the constitution of every Government for if the Mosaick Law be our Direction then the Duke will be King of a third part of these Dominions before his Brother is dead for by that Law the Eldest was only to have a double Portion and no more and then I pray what Absurdities will follow upon this Doctrine But it is most plain that this Law related only to private Families and had no regard to the setting up or pulling down of Kings for when the Law was given the Children of Israel had no King nor any prospect of it and it was several Ages after that before they petitioned God for a King and Saul was the first and the Practice after Saul puts the Matter out of Controversie for when Saul was dead David was anointed though there remained several of the Seed of Saul After David Solomon was anointed tho' Adonijah was his elder Brother and his Mother the honester Woman of the two When Solomon was dead Jeroboam rent away ten Tribes from Rehoboam and so on But these Instances are sufficient to prove that the Israelites did not believe that they were obliged to chuse him for their King that was next of Blood And if they might do this who had the presence of God amongst them and his immediate Direction more than any other People certainly then we cannot be said to sin against the Light And besides in all private Families there is care taken to preserve the continuance of them by disinheriting the eldest Son when it is perceived that he will ruine the Estate if he be ever possessed of it but to this some will answer That it is seldom seen that ever any Family prospered long where the right Heir was set aside I think so too when the right Heir is deprived of his Birthright for no just cause but we find that several Families have continued many Generations after that the right Heir has been rejected and yet tho' an ill Fate should always attend that Family where this is done yet is it not better to continue it two or three Successions longer tho' with a certainty of Ruine at last rather than suffer it to come into the Hands of him who will in a few years perhaps months bring it to nothing You cannot but have heard of Maud the Empress who was Daughter to Henry I. what Trouble and Bloodshed she caused in England in the days of K. Stephen and this is often insisted on to shew what evil Consequences there will follow upon secluding the Duke It is true she made a great bustle but she had that to pretend which the Duke has not for the Nation had taken an Oath to her in the life-time of her Father and from that she might presume very much but the Conditions were not performed upon which the Oath was taken and therefore the Obligation was void and the People were at liberty to chuse whom they pleased But besides whether the Duke get the Crown or no much Blood must be spilt for we must either fight or burn and whether it be not better to exclude the Duke by a Law and adventure our Lives in defence of that and all our Laws and Religion into the bargain than to let him come to the Crown and at best hand hang up Thousands of worthy Men if he do not extirpate their Name and Families but to be sure all those who gave their Votes to the Bill nay all that have declared their Approbation of it and all their Friends and Relations are destin'd by him and the Pope for Destruction if not all them who voted to elect them Members of Parliament And how far this will extend let any man consider Sir I am now come to your last Doubt which is How far we ought to obey the Duke if he happen to be King and there be no Law I mean no Act of Parliament to exclude him This is truly a tender place and ought to be handled only in the Parliament House but because I dare trust you in this captious Age I will lay before you some things that I think cannot be denied It is a known Maxim in our Law That protectio trahit subjectionem subjectio trahit protectionem These are plain words and are of as clear a sense that is not equivocal or capable of a double construction and I take them to be the mutual Bonds between a King and his People and one introduces the other and they cannot be separated for if Protection draws after it Subjection and Obedience incites Protection then whether or no can there be Protection where there is no Subjection or can there be Obedience where there is no Protection and then if it be not done on the one part how can it be required from the other for if the King shall go about to destroy the Government or take away our Properties does he not disown us and deny us his Protection and then I pray what Obedience is due to him that regards us not Or if the Subjects shall not obey the King's Writs or other Commands which by Law he may require from them do not they disown him and forbid him to concern himself with them and then I pray what has he to do but to do to them as they have done to him And this will be the case should the Duke being a Papist come to the Crown We see already that his Inclinations are for our Destruction and besides his Religion obliges him to it and therefore what Protection can we hope to have from him whose Conscience and Desire are united for our Ruine for it is not in the power of a Popish King to preserve us for if he will protect us and the Pope command our Destruction he must either violate his own Conscience or give us up to Ruine So dangerous a thing it is to depend upon the Conscience of a Papist who cannot be tyed or obliged by any Oaths or Obligations and it is safer to have a Protestant King tho' he has no Morality rather than to live under a Popish King tho' he be the best Man living Altho' I have heard many say How came it to pass that we retain'd our Properties
Men so it cannot be imagin'd that the Law has left Men to so wild a Justice as is guided by Passion and Affection for it had been so great a Defect in the Constitution of this Government that long before this it would have been reform'd And as it is most clear that they are thus restrain'd so those bounds and limits are no less known to them that are acquainted with the Law there are two things which have heretofore been look'd upon as very good Guides 1st What has formerly been expresly done in the like Case 2ly For want of such particular Direction then to consider that which comes the nearest to it and so proportionably to add or abate as the manner and circumstance of the Case do require These were thought very good and safe Directions till it was declared and ever since has been practised in the King's Bench that they did not regard Presidents but would make them and for ought that I can learn or find this of my Lord Devonshire is an Original What Obscurity soever may be pretended in other Cases yet in this the Law has given so positive and plain a Direction that it seems very strange how they came to lay a Fine of 30000 l. upon my Lord Devonshire The Court of Starchamber was taken away because of the unmeasurable Fines which it impos'd which alone was a plain and direct prohibition for any other Court to do the like for otherwise the Mischief remain'd for what Advantage was it to the Nation if it had not been wholly supprest the shifting of Hands gave the People no Ease in the Burden that lay upon them it was all one whether the Starchamber or King's Bench did crush them by immoderate Fines But to put all out of dispute the Statute 17 Car. says expresly That from henceforth no Court Council or place of Judicature shall be erected ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath been used practised or exercised in the said Court of Starchamber And this was upon very good reason because those great Fines imposed in that Court were inconsistent with the Law of England which is a Law of Mercy and concludes every Fine which is left at discretion with Salvo Contenimento If the Fines imposed in the Starchamber were an intolerable Burden to the Subject and the means to introduce an Arbitrary Power and Government as that Statute recites the like proceeding in the King's Bench can be no less grievous and must produce the same Evil. Laws that are made upon new occasions or sudden immergencies the Reason upon which they were made may cease and consequently they do cease also but Laws that are grounded upon the ancient Principles of the Government cannot cease because the Reason of them will ever continue and this Statute of 17 Car. being such no doubt holds good and is now in as much force as the first moment in which it was made and therefore this Fine imposed on my Lord Devonshire is in open defiance of that Statute I think no man can altogether excuse my Lord Devonshire for my part I don 't but think it was a very inconsiderate rash act and I believe the Indiscretion of it abstracted from the Fine is a very sensible trouble to him yet if those things were wanting which may be urg'd in his excuse the Offence and Punishment don't seem to bear proportion Could not the Merits of his Father be laid in the balance nor the Surprize of meeting Coll. Culpepper for my Lord having been abused by him a man of so great Courage and Honour as my Lord Devonshire must needs feel and remember it a long time having received no satisfaction or reparation made him for it but if there were nothing of this in the Case could all that may be said to alleviate his Offence be urg'd against him with a double weight were the Circumstances of the Fact as foul and aggravating as the Malice of his Enemies could wish yet surely a less Fine might have serv'd for the Law casts in a great many grains of Mercy into every Judgment and has ever look'd upon a over-rigid prosecution of the Guilty to be no less Tyranny than the prosecution of the Not guilty because it is Summum jus and has declar'd that to be Summa Injuria But besides all this I do conceive with submission that where the Law has intrusted the Judges with a power to fine it is in a much less degree than they have done in this Case First because the Law is very cautious whom and with what it does intrust it reposes a great confidence in the King yet in some cases his Acts are not regarded by it as the King can do no Ministerial Act a Commitment per speciale mandatum Dom. regis is a void Commitment Where there lies an Action in case of Wrong done to the Party the Acts of the King in those cases according to the old Law Phrase are to be holden for none Secondly Because Liberty is so precious in the eye of the Law it is of so tender a regard that it has reserv'd the whole dispose thereof to its own immediate direction and left no part of it to the Discretion of the Judges and what the Law will not suffer to be done directly it does forbid that it be done indirectly or by a side-wind and so consequently the Judges cannot impose a greater Fine than what the Party may be capable of paying immediately into Court but if the Judges may commit the Party to Prison till the Fine be paid and withal set so great a Fine as is impossible for the Party to pay into Court then it will depend upon the Judges pleasure whether he shall ever have his Liberty because the Fine may be such as he shall never be able to pay And thus every Man's Liberty is wrested out of the dispose of the Law and is stuck under the Girdle of the Judges Thirdly Because the Nation has an Interest in the Person of every particular Subject for every Man either one way or other is useful and serviceable in his Generation but by these intolerable Fines the Nation will frequently lose a Member and the Person that is Fin'd shall not only be disabled from doing his Part in the Common-wealth but also he and his Family will become a Burden to the Land especially if he be a man of no great Estate for the excessive Charge that attends a Confinement will quickly consume all that he has and then he and his Family must live upon Charity And thus the poor man will be doubly punish'd first to wear out his days in perpetual Imprisonment and secondly to see Himself and Family brought to a Morsel of Bread Fourthly Because in all great Cases and such as require a grievous Punishment the Law has in certain awarded the Judgment and next to Life
wealth thinking no doubt to enjoy greater Priviledges and Immunities than now they do But I am apt to believe that they who are not contented under this Government have not consider'd aright what a Common wealth is A Common-wealth makes a sound and shadow of Liberty to the People but in reality is but a Monarchy under another Name for if Monarchy be Tyranny under a single person a Common wealth is Tyranny under several persons as many Persons that govern so many Tyrants but let it be the best that can be yet the People under any Common-wealth enjoy not that Liberty that we do Gentlemen as the Excellency of this Government is an Argument sufficient to disswade any of us from the least attempt of alteration so Experience has taught us that no sort of Government but that we now live under will suit or agree with England Let us but consider the late Troubles how many several kinds of Government were there set up one after another All ways were tryed but nothing would do till we were returned to our old and ancient way But Gentlemen it may fall out that we our selves may be the Authors of our own Destruction for whatever the Parliament does we are bound up by it if they pass a Law to give away all we have to the King we must submit to it for it is our own Act and therefore it highly behoves us to be very cautious who we chuse to represent us in Parliament we put all we have into their Hands and what they do must bind and oblige us Every Man is mortal and possibly may be corrupted to vote against the Interest of them he represents I accuse none of your Representatives nor do I accuse all only tell you that Men may be corrupted Therefore in my opinion whenever you have occasion to chuse a Member for the Parliament as now you have you ought to have a care of an ambitious Man or a Man that is vain glorious for it was never known that any of that Temper were so out of a real intention to the Publick Good for Ambition or Vain-glory was never accounted to be the Make of an Honest Man and if you 'll give me leave I 'll tell you what sort of a Man I shall give my Vote for if I cannot have a Man that is both wise and honest then I would rather be for an honest than wise man for I would rather trust all I have with a man that is truly honest and less knowing than with a man that is more knowing and less honest I shall always be for a man that has a good Estate in the Country for though he may possibly forget us yet he will remember himself and avoid all unnecessary charge upon the Country because he himself is to pay part of it Next I am for a moderate man one that is not strict or rigid neither one way nor the other either in Church or State for it's Moderation that must keep every thing in right order and it's Severity and Rigidness that will bring things into confusion In short Gentlemen let your own Judgment and not another Man's Interest or Inclination direct you in this case for our Parliament is our Weal or Woe And now I will proceed to the Particulars of your Charge The first and chief thing that you are to present is High-Treason To Compass or Imagine the Death of the King the Queen of their Eldest Son Now Gentlemen you must observe that the Heirs to the Crown are of two sorts first Heir Apparent that is the King 's Eldest Son that is living for no body else can be Heir Apparent secondly their Expectant or Presumptive that is he who in course of Descent is next in Blood to the King if he hath no Son Now the Offence is not so great to kill or procure the Death of the Heir Expectant as it is to compass or imagine the death of the Heir Apparent To levy War against the King in his Realm or to adhere to the King's Enemies in his Realm or to give them Aid or Comfort in the Realm or elsewhere To counterfeit the King 's Great Seal or Privy Seal or his Money To bring false Money into England counterfeit the Money of England and knowing the same to be false with intent to make payment with the same To kill or slay the Chancellor Treasurer or the King's Justices of the one or the other Bench Justices in Oyer or of Assize and all other Justices assign'd to bear and determine being in their Places doing their Offices To counterfeit the King's Sign Manual Privy Signet or Seal by 1 Q. Mary 6. To diminish scale or lighten the current Money of England 18 Eliz. 1. So Clipping Washing Rounding and Filing of Current Money by 5 Eliz. 2. There are too many Offenders in this nature amongst us The second time to extol and maintain the Pope's Authority formerly usurped here and the second time to refuse to take the Oath of Supremacy 5 Eliz. 1. A Priest or Jesuite that shall come and remain here who shall be in any Seminary and not return within six months after proclamation 27 Eliz. 2. To put in use any Bull or Instrument of Reconciliation or Absolution from Rome or from any person authorized or claiming Authority from Rome Any Person that shall willingly receive any Absolution and all Aids and Abettors it 's High-Treason in them by 13 Eliz. 2. To withdraw any of the King's Subjects from their Obedience or Religion And such Persons as shall be withdrawn from their Obedience to the King or their Religion 23 Eliz. 1. And now Gentlemen give me leave to take notice to you of them who very largely discourse that the King is above the Laws I am very apt to believe that they don't consider very well what they say nor don't know or remember that as it is High-Treason to kill or hurt the King so it is High-Treason to subvert the Government or to endeavour any alteration of it and then I would ask any man to solve me this Question Whether or no it be not an alteration of the Government to render all our Laws ineffectual and useless which must necessarily follow and where it is or upon what they ground their Opinion I am sure the Word of God warrants no such thing nor can any such thing be found in the ancient Government of this Island for at first it was govern'd without a King I don't mention this as if I question'd the King's Title to the Crown no Gentlemen I would have every subject to pay him all possible Duty and Obedience but I say this to shew you that there is no Ground for that Opinion that the King is above the Laws And I am sure I never met with it either in Magna Charta or any Law made since and therefore I could wish they would forbear to preach up such destructive Doctrine both to King and People I am sure it is for
his Will and Pleasure For Principle is the great Director of all Mans Actions and every Man is either better or worse esteemed according to the Opinion that the World has of his Principles In the worst and most corrupt of times there has not wanted such as have been more solicitous about the well-fair of their Country than for themselves and if a King does not so much depend upon those that by the current of their Actions have made it evident they prefer the Publick Good to their own private Advantage as upon some other sort of Men it 's as clear as the Sun that he aims at something beside the Publick Weal or else that God has a quarrel to him and will not let him see his Interest For what greater pledge can be given of a Mans Integrity than when voluntarily and without Compulsion he dedicates himself and all that he has to the Publick service any other security being inconsiderable in comparison of it And therefore when a King knows such Men and yet imploys others rather than they it 's a clear Demonstration that his Designs and Affections are alienated from the good of his People and the Land is then in as ill a condition as when their King is a Child As to the third it will be no less extraordinary to see the King under equal Obligations to all Parties for it can only be for this reason because every Party shall have approved themselves equally serviceable or useless faithful or negligent steddy or inconstant to him which would be very wonderful though he dropt out of the Skies because there are so very many occasions in which a King needs the service of his People that if one Party acquit themselves better than others he will in a little time find who deserves best and it will be so plain and obvious that he must see it unless he be very unfortunate And till all Men have the same Complexion are of the same Stature and proportion of Body and Temper of Mind there will be distinctions of Men and Parties and therefore it will be the most remarkable thing that ever happen'd that notwithstanding their differences in other matters yet they should all concur to have the same Principle and Inclination to the King and Government But that Prince is very unfortunate who cannot depend upon one Party more than another nor has obligations to one more than another since it is an ill effect of a bad cause For the reason wherefore he cannot depend upon one more than another is because he has used and treated all alike And this Method as it will never make his Enemies to become his Friends so in a short time it will make his Friends so cold and indifferent towards him that they will serve him at the rate that others do and hereby his Obligations won't be greater to one more than to another So the Service that is done him will not be the effect of Duty and Affection but only according to the rate that he pays them But when a King cannot depend upon one more than another and is under equal obligations to all the most usual and truest reason of all is because he has so far disoblig'd all Parties that he has more cause to be afraid of than to trust any of them therefore till Men are of the same mind in every thing else it cannot be expected that these things or any of them can ever happen If then should a King act as if they were and the Case prove to be otherwise the consequence of it would be fatal to him For though it may be objected that by a distribution of his favours and imployments equally on all Parties he thereby gives incouragement to all to stand by him and makes none desperate yet on the other hand he thereby makes every Party Jealous of him and none to trust him For when he inlarges his hand to any Party it is to the regret and envy of the rest that were not then also consider'd which he cannot repair but by conferring greater things on them and then this turns to the dissatisfaction of the other Party as much as if nothing had been done for them So that thence it will follow that when ever his bounty moves every one must have a share for if any Party is omitted he will lose more on one hand than he gains on the other and what Prince ever found that his bounty turn'd to account where the Persons that were the objects of it had not something of affection or duty for him because all that he can do in that way will ingage them no longer than till they can make a better bargain or could he winn them by it yet the case of that Prince is much to be lamented who has none to depend on but such as he has gained by his liberality But could he gain any by such a Method which is very uncertain yet for one that he so makes his Friend he thereby looses a hundred who are such upon principle and that Prince gives himself very little leasure to think who does not know that one who is a Friend upon Principle is worth many who are made such by bounty preferments may be out-bid but Principles are permanent Every Prince will find himself out in his reckoning when he perceives what construction the People do put upon such a Method for they will be apt to conclude That it is the effect of Fear want of understanding or that his heart is not right towards them and its a dangerous thing to suffer such Notions to get into their heads it being very difficult to remove them if once they are fixt there Those that wisht him well will grow cold and indifferent towards him when they find that others who don 't deserve it are treated as well as themselves and it will discourage the honest endeavours of others for the future when neither they nor the Nation is much the better for their service and at last they will despise him and such as had no great good will for him will be sure to follow their blow as soon as they find his blind side and improve to their utmost advantage though to the ruine of him and the Nation all Parties will slight him undervalue all his Actions put the worst construction upon every thing and ascribe to chance whatever is well done When obnoxious Men are made use of it is too evident a sign that the same work is to be done because the same Tools come into play and hereby the King in a great measure becomes Particeps criminis of former ill councels and practices in allowing such to suck the fat of the Government who ought to be squeazed if not crushed to satisfie and vindicate the publick Justice and then well may such wipe their mouths and say What evil have I done when in stead of answering at the Bar their Treatment is more like a Reward for what they have done
of every Man is under the protection of the Law even Persons Condemned Outlawed or Attainted to Kill or Execute them in any other manner than the Law directs is Criminal In case of Outlawry for Treason or Felony in the Kings Bench if the Party be apprehended in time of a Vacation no Warrant can go out to execute him before the next Term but he is till then to remain in Prison that so he may not only be heard what he can say for himself wherefore Execution should not be awarded but that also the Law may be satisfied that he is the very Person named in the Outlawry and even a Prisoner condemn'd at the Bar cannot be executed till there is a Rule of Court or other order for it Now it is conceived that the Duke of Monmouth ought not to have been executed till he had been brought before the King's Bench or some other Court that could properly judge and distinguish whether he were the very Person Attainted by that Act for had he been brought to the Bar and there deny'd that he was the same Person a Jury must thereupon have been impanelled to try whether he were the proper Person or not For the Law delights in certainty and will not go out of so grave and considerate a way especially in so solemn a case as Blood where it cannot be too cautious one Man may be so like another that it is not easie to distinguish them when asunder and a mistake in such a kind would be a great blot upon the Justice of any Government when it is occasion'd by precipitancy and haste but we have lately seen such unfortunate times when there was a willing disposition to commit such Mistakes if any Colour of Law could have been found for it But setting all these things aside and were there not so many extraordinary things in the Case yet something ought to be done for the sake of the Dukes Children surely a great deal of compassion is due to them considering upon what score their Father lost his Head by reason that the Cause of his Rising in Arms was no other than that which prevailed with the Prince of Orange to make a descent into England that is to deliver us from Popery and Slavery there being nothing that differences those two Cases but that the one had success and the other miscarried and therefore can it be politick to leave that Attainder unrevers'd as a reproach upon the Duke and his Posterity for what he did Besides if this Attainder be not revers'd it will be an utter discouragement upon all others for the future to attempt the rescue of their Country if no regard shall be had to their Posterity in case they don't succeed I am verily perswaded that if the Prince of Orange had miscarried in his late Attempt to deliver us every Man that had suffered in that cause would have expected that when ever it was in the power of the Nation to have had a mark of favour be set upon their Posterity at least that of right their Families were to be put in Statu quo There will be very small inducement for any to be concern'd for the Publick when nothing but success will make the Publick take care of them when the Vertue of a People is so far depraved as to forget those that have serv'd them they do not after that long retain a true sense of Liberty and are easily perswaded to part with their freedom and so long as this Attainder remains in force it hangs over the Nation like a dreadful Omen for so long as it is in force we consent to the Justice of it and how can that be Just which we would not have done to our selves for certainly no Man would like to be Judged by such Law as took off the Duke of Monmouth and therefore what can be said that his Attainder should not be revers'd THE INTEREST OF Whigg and Tory. A LETTER to a Friend THough others may be more fortunate in their Conceptions yet I am confident that no Body imploys their thoughts so often and with more Affection to His Majesties Service than I do It is very obvious that the Kings Affairs are much perplex'd Vast supplys are necessary and there is but a dark prospect where the Money will be had or if the Nation were in more Wealthy Circumstances the Divisions that are amongst us would much obstruct the giving so much as is needful at this time But the greatest difficulty which the King has to struggle with will be from the High Church or Tory Party and the more he trusts or confides in them the harder game he will have to play For give me leave to say the King can never be safe in depending upon them till they change their Principles or he do foregoe his own No Man can have so mean a thought of the King that he will ever have so little Honour or Justice either to deny or go counter to what he has profess'd and practised in the whole course of his Life And it 's very plain that it is Private Interest and not the Publick good is the Principle by which that party has been acted And though they have sometimes seemed very zealous to serve the Crown yet they have never gone further with any King than so long as they could serve themselves of him and therefore unless they are govern'd by a more Publick Principle or have given more ample testimonies of their true affection to the King than they have done to those that have been before him the more Countenance he gives them the more he strengthens the hands that will be lift up against him if a fair occasion offer it self The Seven Bishops who were sent to the Tower for refusing to read K. James's Declaration were highly applauded for that Action as a Service done the Publick but if their own particular Interest had not prevailed with them they would not have been so forward to read the Declaration of K.C. that struck more directly at the heart of the Government and reproach all that shew'd a dislike of it If that Party has given any instances of their Affection to this King either they are not publickly known or not well understood but what they have done on the contrary are too notorious to admit of a Dispute It was that Party that contended so obstinately for the Regency and when the matter came to be decided by a Vote in the House of Lords there was but one Bishop that gave his Vote against the Regency Who are they besides those of that Party and the Papists that at this day refuse to take the Oaths Five of the Seven Bishops have so done It was that Party in the House of Lords that opposed the imposing the Oaths with the penalty especially on the Clergy It 's that Party that so much favours the Papists of this day and if any Protestants are found to be in a Plot with the Papists they are
to whom his obstinacy will recommend him If any do think they were in the right when they served as Bawds to the arbitrary Iusts of the two late Kings I heartily pitty them for their case is desperate yet I am perswaded that none of them would of choice had that power exercised upon themselves and if so they will then grant that what they would not have done to themselves is not lawful for them to do or bring upon another if they shall still adhere to what they did either out of fear or else out of hopes of preferment they must make it appear that this King has resolved upon the same methods that were taken by the two late Kings or else declare that they think that nothing else will make him a great and glorious Prince Perehaps some men cannot bring themselves to make a publick or direct recantation of what they have done or of a suddaen to separate from their Party but yet they may do things so by degrees and so fairly too and without any noise as will testifie to the world that they intend to pursue another course As for example if any who were active in the late Reigns do now meddle very little if at all in publick matters and modestly stand aside as it were to make room for others who professed that principle which brought about this Revolution This will let every man see that they are now of another temper But if such persons do still continue to meet and consult upon publick Affairs as heretofore when the power was in their hands and do bandy to support every man of their party at any rate without considering their abilities or any objection that may be made against them on the score of their immorality or unjust dealings but implicitly because they are of their party resolve to give them the preference before any other This carries a very ill countenance with it I cannot imagine what they propose to themselves by such diligence unless they hope for or expect to see the like administration again in England for as it discovers no sort of inclination to accommodate differences so they cannot but be sensible it will irritate and provoke those of another opinion On the other side I think they are very much to blame who take unnecessary occasions to reproach their neighbours with what they did in the late times They that are thus liberal of their tongues would do well to consider whether they were never guilty of some abitrary or unjust action and whether they have not at some time or other done something that has helpt to support some of the illegal and unreasonable proceedings of the late times for we are all frail and had need to examine our selves before we condemn other people now if any persons are guilty in either of these particulars silence becomes them much better than reproaching others however reproaching of men with their faults is not the proper way to bring them to a right sence of their errors whilest a Sore is rubbed there 's no hopes of healing it and men are to be instructed by reason and not railing Besides railing is so poor a revenge or satisfaction so that if I could not have a better I would let it alone for as I should do my self a great prejudice by it so I would not give my enemy that satisfaction who must needs be pleased to see me torment and fret my self this I am sure of that to be ever and anon twiting people with their faults can breed no good blood and I wish it has not some ill effects amongst us You see Gentlemen I only touch things lightly and apply them to no body but leave that to every man as he shall find it concerns him if any thing I have said shall do good I shall much rejoyce at it if not I hope there 's no hurt in mentioning such truths as these For I think I may possitively affirm that a Union is absolutely necessary to make us a happy people and that there is not a more certain fore-runner of a peoples destruction than to see them divided into Parties and Factions I could proceed into a long discourse upon this Subject but that I may avoid being tedious to you I will apply my self to the particulars of their inquiry The first of which is High Treason of which there are several sorts of species To compass or imagin the death of the King or Queen and that declared by some overt-Overt-acts and all those who in other offences would be accessary before or after the Fact are Principlas in this Case To Levy War against the King in his Realm or to adhere to the King's Enemies in this Realm or to give them comfort here or elsewhere but a Conspiracy to Levy is not Treason unless the War be actually levyed tho the contrary opinion prevailed in the late times to the murdering of several worthy men To Counterfieit the King 's Great or Privy Seal or his Money To bring in false or Counterfeit Money knowing it to be such to make payment with it To kill the Chancellor Treasurer or the King's Justices being in their Places doing their Offices all Treason per Stat. 25 Ed. 3. c. 2. To Clip File or wash Money per 3 H. 5. To Counterfeit Sign Manual Privy Signet or Privy Seal 1. M. 6. To extol any foreign Power 1 Eliz. For a Priest or Jesuit to come and abide within this Palace 27 Eliz. To Absolve any from their Allegiance or to be Absolved 3 Jac. Petty Treason A Servant kills his Master a Wife her Husband or a Priest his Ordinary these are made so Capital by reason of the power or the Authority they have over them FELONY EIther against the Person or Goods of another Against the Person To kill another either with Malice expressed or imployed is Murder without benefit of Clergy To cut out the Tongue designedly to to maim or disfigure another is Felony without benefit of Clergy So is Stabbing if a Weapon be not drawn or a Blow given by the party Slain So is Buggary with Man or Beast Rape Manslaughter is when two quarrel and before it can be supposed that their blood is cool they fight and one of them is slain here is benefit of Clergy Chance medly when by accident a man slays another or in his own defence being assaulted These the Law pardons of Course Against his Goods TO Rob on the High-way To take any thing privately from his person To steal Horses Designedly to burn any Stacks of Corn or Hay To Rob a Church To break into a House and take any thing thence by day or night To Rob any Booth in a Fair or Market are all Felony without Clergy The Accessaries to all these and other Felonies do fall within your inquiry For generlly where Clergy is taken from the Principal the Accessary before the Fact is to suffer Death And good reason is it that he who was partaker of
distinctly besides they are different in the manner of Proof for that which is necessary to prove the one does in no sort prove the other and furthermore the one may be effected and the other never so much as intended or designed as that the King may be Murdered and no War levyed nor intended And moreover in the one Case it is Treason as well to intend as to execute it without relation to or being joyned with any thing else but it is not so in the other for it is Treason absolutely in it self as well to compass the Kings Death as to Kill him But an Intention to Levy War and the doing of all things in order to it is not Treason unless the War be levyed except by Misplication or Inference and thus much may serve to prove that they are distinct Species of Treason As to the Fourth No doubt that every Statute is to be construed most strictly to restrain the Mischief against which it was enacted For the Uninterrupted course of all Judgments and Resolutions have been accordingly and nothing can more directly thwart common Sence than to make it otherwise and therefore if the State be absolute the more forcibly that it is construed to restrain the Mischief the more truly is the intent of the Statute pursued for how shall any evil be supprest if the remedy must be applyed but by halves For the Law would then be rather a Mockery than a means to redress the Mischief if it shall not be taken most strongly against it either it is or it is not a restraint of the Evil if it is not why was it made If it is It must be understood in that Sence by which the Mischief or Evil may be effectually prevented and suppressed As to the Fifth The Answer will be best understood by Considering first the Significations of these two words apart Viz. Provably and Overt Provably Signifies To prove or make good by Evidence Argument Reason or Testimony Overt has all these Significations open clear plain apparent manifest notorious evident known undoubted certain perspicuous This then being the Significations of those Words what then can follow more Naturally than that to be provably attainted by Over Deed is that the Fact must not only be direct apparent and notorious to the point but it must also be proved clearly evidently plainly and perspicuously void of all doubt or obscurity and those two Words being taken together do the better Expound each other and seem to be choice Words culled out by the penners of that Statute as the most expressive against all Implications and Inferences which might be made in Case of Treason These things being premised which are as easily proved as alledged there will remain very little for them to maintain their Opinion who say That a Conspiracy to Levy War is an Overt Act of compassing the Death of the King The things which are commonly and chiefly urged for that Opinion are these two First It would be of dangerous consequence if a Conspiracy to Levy War may not be interpreted an Overt Act of Compassing the King's Death because there is no means left to prevent it and the Mischiefs attending it when the War is Levyed Secondly If a War be levyed the Death of the King must needs be intended and will certainly ensue if the Rebels prevail In answer to these it may be replyed That the one of them is but a bare Objection and that the other is no substantial Argument because it begs the Question and then surely that must be a feeble Opinion that has no better a Foundation But a more particular answer to them will discover the Sandy Foundation upon which this Opinion is built And it will be more proper to begin with the Second because in giving an answer to that the other will in a great measure receive an Answer also Therefore as to the Second It may be observed that the Death of the King is made so certain and necessary a Consequence of Levying of War that by reason of that certainty a Conspiracy to Levy War is an Over Act of Compassing the Kings Death Now therefore if that certainty will not hold but that many Cases may be put and Instances produced wherein the Kings Death is not intended nor did it ensue upon the prevailing of the Party then is the whole weight and strength of that Argument of None Effect The Hugonots in France have heretofore Assembled together in Arms and tho' they repeated it several times yet in which of those Occasions does appear either by the cause of their coming together in that manner or by the issue of it that it was Levelled at the Kings Life No the Cause of their rising in Arms was for the asserting of their Religion and just Rights for as soon as their Reasonable Demands were satisfyed they laid down their Arms more willingly than they took them up neither did they attempt any thing against the Kings Life when he was in their power but after they were answered in those things to which they had Right both by the Laws of Nature and the Government immediately they returned home in peace and upon all other occasions proved the most firm and Loval Subjects of all that Kings Dominions and as this present King of France must witness for them if he will do them Justice If the Protestants in France should at this time take up Arms upon so just a provocation as they now have it would be very senceless to suppose that they Levy'd the War with a principal Design to Murder the King and not for the Defence of themselves and their Rights which are so inhumanly and against all Law and Justice at the same time invaded and ravisht from them Story is full of like Cases and Instances to this but to speak more particularly to England What was the Barons Wars the answer to which must be that they took up Arms to assert their Rights and Liberties which the King contrary to his Oath withheld from them and that it lasted near 40 Years yet the Kings Death was never intended nor his Life in any danger for as soon as their just demands were answered they put up their Swords and every man returned home and pray'd for the life of the King And out of English Story what one instance can be produced where the cause of War was declared to be against the Kings life or if that party prevailed the King was put to death by their general consent and approbation For tho' it be true that there are some instances where they have been Murdered after the War yet it is also as true that it was by private Assacination and not by the consent and privity of those who levyed the War for all those that were concerned in the Murder were condemned and executed for it as Traitors as in the Case of Edw. 2d and Richard 2d And as for that of Charles the First which is so much pressed and urged
tho' the Cause of War had been expresly against his Life yet as one Swallow does not make a Summer so neither does one Precedent prove the Point but besides in that case of Charles the First to infer from thence that the Kings Death is principally intended by levying of War is altogether as weak an Argument as to say because a thing falls out by accident therefore that very thing was the principal Design and Aim of the whole Action For in that War those who first took up Arms did it to oppose the Kings Arbitrary Practices and tho' he was afterwards put to Death yet it was altogether against their intent or desire and most of the Army was against it and would have prevented it but that they were at that time so broken into Factions and Parties that they durst not trust one another for after the Tragedy was acted those who first took up Arms immediately upon it laid them down and were afterwards the chief Instruments in the Kings Restoration But if the Kings Death is the principal thing designed by levying of War To what purpose is the War levyed cannot the King more casily be taken off by poyson or a Private Assacination to the effecting of which opportunities cannot be wanting and so with more certainty they obtain their End and run less hazard in the executing of it than they would by a War except they are not content to Murder him unless they cut the Throats of all those that would defend him Indeed to do it by an open War rather than Poyson or a private Assacination is the more generous way for they give him warning and timely Notice to look to himself like a generous Enemy that scorns to kill his Adversary basely 'T is indeed to go round about for the nearest way Therefore a War when levyed must be for some other intent then to take away the Kings life since when Englishmen enjoy their Rights no Prince is so great and happy in the Heads Hearts Hands and Purses of his Subjects than an English King is But yet allowing that upon every War levyed the Death of the King would certainly ensue if the Rebels prevail yet this Question does not naturally arise Viz. Where is that Statute which does in express Terms say that a Conspiracy to levy War is Treason For if it be not so expresly and literally within some Statute then it is a Constructive Treason and consequently no such Treason as upon which the Judges may proceed if the Statute 25th Edward 3d. was made to any purpose for that Statute restrains all Constructive Treasons or none but if the Judges may in any one Case make a Constructive Treason they may do it in all and so we are left in the same uncertainty about Treason as we were before the Statute 25th Edw. 3 was made If the Judges might Judge upon Constructive Treason yet it seems to be a far fetcht Construction to make a Conspiracy to levy War an Overt Act of compassing the Kings death for this is not to be provably attainted by Overt Deed. First Because that Conspiring the Death of the King and levying of War are two distinct Species of Treason and therefore it would be very unnatural and too much forc't to joyn these two together and as it were to unite them that are so different and diverse not only in the manner and Matter of Proof but also in themselves For then Secondly a Conspiracy to commit any other Treason may also be called an Overt Act of imagining the Kings death which was never yet pretended Thirdly A Conspiring of any one Treason may be an Overt Act of any other Treason Fourthly Any other Criminal Act may as well be called an Overt Act of Conspiring the Kings Death Fifthly This is to make it a Treason of it self for there is very little difference betwixt calling a thing Treason in it self and to make it an Overt Act of some Treason within the Statute Sixthly A Conspiracy to levy War was not Treason at Common Law Seventhly The Statutes of the 23d of Elizabeth and the first and 3d Jac. 4th which make it High Treason to Reconcile any to the Church or See of Rome or to be so reconciled were enacted to no purpose if a Conspiracy to levy War is an Overt Act of compassing the Kings Death for what can tend more plainly and directly to levy War than to perswade the People to renounce their Allegiance to the King and to promise Faith and Obedience to some other Power so that these and all other Statutes concerning Treason which have been made since the Statute 25th Edw. 3d. are as so many Confirmations of it and prove that the Judges can call nothing Treason but what is literally such within that or some other Statute Eighthly My Lord Cook says That a Conspiracy to Levy War is not Treason unless the War be levyed in facto and questionless his Opinion is very good Law because in many Cases it is not Treason to levy War and a Fortiory a Conspiracy cannot for look into the Statute First of Queen Mary 12th where it says If any Persons to the Number of twelve on above being assembled together shall intend go about practice or put in ure with Force and Arms unlawfully and of their own Authority to change any Laws made for Religion by Authority of Parliament standing in force or any other Laws or Statutes of this Realm or any of them the same number of twelve or above being commanded or required by the Sheriff of the Shire or by any Justice of Peace of the same Shire or by any Mayor Sheriff Justices of the Peace or Bayliffs of any City Borough or Town Corporate where any such Assemblies shall be unlawfully had or made by Proclamation in the Queens Name to retire and repair to their Houses Habitations or places from whence they came and they or any of them notwithstanding such Proclamation shall continue together by the space of one whole Hour after such Commandment or Request made by Proclamation or after that shall willingly in forcible and Riotous manner attempt to do or put in ure any of the things above specified that then as well every such abode together as every such Act or Offence shall be adjudged Felony And if any person or persons unlawfully and without Authority by ringing of any Bell or Bells sounding of any Trumpet Drum Horn or other instrument or by Firing of any Beacon or by malicious Speaking of any Words or making any Outcry or by setting up or casting of any Bill or Writing or by any other Deed or Act shall raise or cause to be raised any persons to the number of twelve or above to the intent that the same persons shall do or put in ure any of the Acts above mentioned and that the persons so raised and assembled after Commandment given in form aforesaid shall make their Abode together in form as is aforesaid or in forcible
the King strove to please the People and they were willing to gratifie him by conniving at his Faults But besides all this the Law of Nature is to be considered and this Law cannot be extinguished by any other Laws whatsoever And this I never heard any man deny The Law of Nature commands Self-preservation and then I would ask whether I am to obey him that will destroy me If we shall have a Prince that plainly declares either by his Words or Actions that he will change our Government and Religion or that he will give us up to a Foreigner or else that he will govern by a standing Army and take away our Properties must I obey him must I not endeavour to rescue my Self and Country from Ruine for in the Saxons time Treason did not relate to any thing but the Government and the general Concern of the Nation and not to the single Person of the King and now though it be Treason to kill the King yet it is only in order to the Publick Good and therefore with the Saxons all Indictments against Legience concluded Feloniae Proditoriae but against the Person of the King only Feloniae But in our days we find things are crept in that is difficult to tell how or when they came in And you shall find in all our ancient Laws that whatever was decreed or enacted was for the Common Good and the King was not concerned otherwise than so far as related to the Common-wealth though I know in our days another Opinion is asserted which I am sure cannot be maintained That all things must give place to the King 's particular Interest For my own part I will obey the King but I think my Obedience is obliged no further than what he commands is for the Common Good Our Government ever since the Conquest has proceeded upon the Saxon Principles and they were grounded upon Self-preservation which I do not find to be repeated by any Act of Parliament for all our Lawyers do agree That it is Treason to subvert the Government and if so without doubt our Allegiance the Laws of God and of Nature command us to defend them I will detain you no longer but only to consider this one thing Whenever we have a Popish King we must expect an alteration at least in our Religion for though he take all the Oaths and Declarations that can be devised yet it ever stands in the way to oppose the Interest of Rome they must all give place and it is meritorious to break those Engagements for that purpose or at worst hand be certainly pardoned if he presume to do it without a Dispensation and it is no more in his power to preserve our Religion than it is for him to work an Impossibility And therefore whether it is better to oppose a Popish Successor seeing we have the practice of our Forefathers to justifie us in it and besides he cannot if he would defend us or else to suffer him to rest in the Throne to destroy all we have and bring in a Religion that will damn Millions of Souls from Generation to Generation And if we may not defend our Religion then we must absolutely depend upon Providence in every thing and not put out our Hand to help our selves up when we are fallen into a Ditch This is the Case and here is an end of all Human Policy but without doubt it is our Duty to do our Endeavours and leave the Success to God Almighty and his Will be done THE CASE OF WILLIAM EARL Of Devonshire ON Sunday the 24th of April 1687. the said Earl meeting on Collonel Culpepper in the Drawing Room in White-hall who had formerly affronted the said Earl in the said King's Palace for which he had not received any satisfaction he spake to the said Collonel to go with him into the next Room who went with him accordingly and when they were there the said Earl required of him to go down Stairs that he might have Satisfaction for the Affront done him as aforesaid which the Collonel refusing to do the said Earl struck him with his Stick as is suppos'd This being made known to the King the said Earl was required by the-Lord Chief Justice Wright by Warrant to appear before him with Sureties accordingly April 27. he did appear and gave Bail in 30000 l. to appear the next day at the King's Bench himself in 10000 l. and his four Suretles in 5000 l. a piece who were the Duke of Somerset Lord Clifford the Earl of Burlington's Son Lord De-la-mere and Tho. Wharton Esq eldest Son to Lord Wharton The Earl appeared accordingly next morning and then the Court told him that his Appearance was recorded and so he had Leave to de part for that time but upon the sixth of May he appear'd there again and being then requir'd to plead to an Information of Misdemeanour for striking the said Collonel in the King's Palace he insisted upon his Priviledge That as he was a Peer of England he could not be tryed for any Misdemeanour during the Priviledge of Parliament and it being then within time of Priviledge he refused to plead the Court took time to consider of it till Monday which was the last day of the Term and the Earl then appeared and delivered in his former Plea in Parchment the Judgment given by the House of Lords in the Case of the Earl of Arundale 3 Car. was urged on the behalf of the Earl viz. That no Lord of Parliament the Parliament then sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without sentence or order of the House unless it be for Treason or Felony or for refusing to give Surety for the Peace And also that the like Priviledge was about two years before allow'd in the Case of my Lord Lovelace The Court over-rul'd the Earl's Plea and requir'd him to plead to the Information the first day of the next Term and to be a Plea as of this Term and so he had Leave to depart but his Sureties were not called for to see if they would continue as his Bail The next Term he appeared and pleaded guilty to the Information and so the last day of the Term the Court did award That he should pay a Fine of 30000 l. be committed to the King's Bench till it be paid and to find Sureties for the Peace for a year To all which Proceeding and Judgment three notorious Errors may be assign'd I. The over-ruling of the Earl's plea of Priviledge II. The Excessiveness of the Fine III. The Commitment till it be paid 1. The over-ruling the Earl's plea of Priviledge is a thing of that vast consequence that it requires a great deal of time to comprehend it aright and is of so great an extent that more may be said of it than any one man can say The Judgment seems to be very unnatural because an inferiour Court has taken upon it to reverse a Judgment
yet if the King think good to question it the party must yield it up without insisting upon his Right for the Reason given by the learned Judge for the same Reason every Peer if denied his Writ must not demand it nay he must surrender his Patent and renounce his Title as far as in him lies if the King require it And for the same reason when any man is called to an account for his life he must make no defence but submit himself to the King's Mercy for all we have is from the King and nothing must be disputed when it is his pleasure to question it This is indeed to make the King as absolute as any thing on Earth can be yet is withal to make him the most unjust Prince that ever sate on the English Throne This sort of Justice is learnt from Children whose Gifts continue good no longer than the Donor remains in that kind mood Surely nothing can more reflect Dishonour upon the King for it makes him as unjust and uncertain as any thing can be both which should not be in the Temper much less in the Actings of a Prince Another Reason was given I think by the Chief Justice or else by Mr. Justice Holloway because it was absolutely necessary for the securing of the Peace it was urg'd so far as if the Peace could not be secured without it Surely all this must be but gratis dictura for my Lord Devonshire by finding Sureties had done all that the Law does require for securing the Peace unless they had clapt him up a close Prisoner which they could not justifie if he tender'd Sureties and therefore either my Lord Devonshire is different from all Mankind and a different method must be made use of to secure the Peace or else this Argument of theirs savours not so much of Reason as of something else that ought to be no Ingredient when they give Judgment in any Case and it surpasses common sence to understand how the over-ruling my Lord's Plea could tend to the securing of the Peace either the Security which he had given must awe him to keep the Peace or the other could not for he had broke the Peace again and repeated it several times before he came to his Trial yet that could not effect the Merits of the Cause neither could it be given in evidence at the Trial so as to alter the state of the Fact neither could the Judges by reason of it enhaunce his Punishment if he were found guilty but they must look upon it as a distinct Offence and so might require the greater Security for the Peace and for a longer time Indeed it is an effectual way to prevent a man from breaking the Peace to lay such a Fine upon him as is impossible to be paid immediately and to commit him till payment It is too probable that the Judges being concious how liable they have made themselves to be called in question for this Sawciness and trampling upon the Law would debase and bring under the Credit and Authority of this Court because no other can take cognizance of their proceedings so as to correct their Errors and Mistakes it is only here that they can be called to an account for what they do amiss no Court can punish them but this so that if they can once top your Lordships there is nothing that they need stand in awe of nothing to restrain them but they may act ad libitum not per legem for let this Court be deprest and they may say Of whom then need we be afraid By what they have done already they have sufficiently shewn to what Extravagances they will proceed when they think themselves to be out of the reach of this Court If once the King's Bench can set it self as high as the Judges have attempted by this proceeding against my Lord Devonshire then must the whole Nation your Lordships not excepted stoop to all the Extravagances and monstrous Judgments that every corrupt and ignorant fellow shall give who shall chance to get up to the Bench and not only this present Age shall feel and undergo the Mischief but it will be entail'd upon all succeeding Generations Well then did the Judges attempt that which would bring your Lordships so low and raise their Court so high to set it above all reach or controul especially if they did promise to themselves Impunity if not Reward which they might have expected had it been in the Reign of an arbitrary Prince who would be a great gainer by the fall of this Court because then the Skreen betwixt the King and People is taken away This is the first time that an inferiour Court did take upon it to invalid the Priviledges of a superiour Superiour Courts do sometimes set aside the Orders and Proceedings of Inferiour Courts and yet in that case they proceed with that caution that it is never done but when there is manifest Error and the Law not duly pursued and observed but in no case was it known that they ever meddled with their priviledges If what the Judges have done is good I cannot tell what Power and Jurisdiction they may not pretend to for no bounds nor limits can be set to the King's Bench it may assume as great a power in Civil Affairs as the High Commission does in Ecclesiastical in their Actings not to be tyed up to any Rules or Method but to vary and alter them as well as the Law when occasion or humor serves the proceedings shall be as summary or as delatory as they think fit and your Lordships shall no more than other people be exempted from the exercise of that power Therefore if your Lordships will not prevent the Mischief from spreading it self over the whole Nation yet I hope you will take notice of the Injury you have suffer'd in the Case of my Lord Devonshire and to do your selves Right The Law has for the most part left Fines to the Discretion of the Judges yet it is to be such a Discretion as is defin'd by my Lord Coke fol. 56. Discretio est discernere per legem quid sit Justans not to proceed according to their own Will and private Affection for Talis discretio discretionem confundit as Wing at says fol. 201. So that the Question is not Whether the Judges could fine my Lord Devonshire but Whether they have kept themselves within the bounds and limits which the Law has set them It is so very evident as not to be made a Question whether in those things which are left to the Discretion of the Judges that the Law has set them bounds and limits which as God says to the Waves of the Sea Hitherto shalt thou go and no farther for either they are so restrained or else the Law does suppose them to be exempted from those Frailties and Passions which do attend the rest of Mankind But as they cannot be suppos'd to be void of Passions and Infirmities no less than other
the Laws have been more frequently stiled or called the Laws of the Land than the King's Laws and therefore if the Denomination of them declares the right the King will be found to have no very strong Title But if they had constantly been called the King's Laws yet that is a very Sandy Foundation to build a power upon of suspending and dispensing with them at his pleasure Now if they are the King's Laws then he only made them but if the Lords and Commons also had their share in the contriving and making of them then that Advice and Consent of theirs gives them such a Title to an Interest in them that they cannot be changed or altered no more than they could be enacted without their Consent for nothing can destroy a thing but the same Power that made it and therefore unless the King alone be the same power that enacted the Laws they cannot be properly called his Laws so as that at his will and pleasure he may dispense with them But if the Laws were made and enacted by him only yet it does not follow that the King may dispense with the Laws when to him it shall seem meet for there is no King so absolute but may be limited Thus we see the Eastern Kings who were as absolute as any Princes upon Earth yet were limited and restrained by their own Promises and Acts. Even that great King Abasuerus who had Ruled over 127 Provinces when he had made a Decree he could not revoke change or dispense with it for the Writing which is written in the King's Name and sealed with the King's Ring may no man reverse Esth 8.8 no nor the King himself which is clear from that famous case of the Decree to destroy the Jews to reverse or suspend which it 's plain he wanted not Inclination and if ever would then have exerted his full power for he was prick'd on by all the Spurs and Inducements that could be in any case yet all he could do was to give the Jews leave to defend themselves therefore if those Heathen Kings were so bound by their Word and Laws of the Country it 's reasonable to suppose that Christian Princes should be as much tyed up by their Words and the Laws and if the King be bound by his Word and the Laws which he shall not pass then is he under the same obligation as if he had actually given his assent to every Law that is now in force because he has given his Word and taken an Oath to preserve and maintain all the Laws And it seems something strange to hear of a power to dispense with Penal Laws there being so late a Judgment against it the late King in Parliament disclaiming it and the whole Case is very remarkable for during the interval of a Parliament he grants a Declaration of Indulgence and at the meeting of the Parliament tells them Nothing of force or constraint brought him to make that Confession but the Truth was too evident to be denied he had done it and would stand by it and should be very angry with any man that should offer to disswade him against it Yet though he had thus braved the Parliament within ten days openly in Parliament he disclaimed it and confessed that he could not dispense with a General Law and had ordered the Seal to be pulled from the Declaration Surely the Case must be very plain that the King after he had justified the thing so solemnly yet should so suddenly eat his words and confess himself in the wrong and to that Parliament too which had almost unhinged the Government to please him which no doubt would have complied with him in it had it been less than to lift the Government quite off of the Hooks And indeed to say that the King can dispense with Penal Laws is nothing less than to dissolve the Government and resolve all into the King's Will and Pleasure for our Parliaments are then but a piece of Pageantry or Puppet-show because in a word the King can annihilate all that they shall do in many Ages all the Provisions that they shall make for the Good of the Nation are but airy notions and painted shews they are and they are not just as the King pleases Now if the King can do this to what purpose have several things been done what means the Statute de Prerog Regis 17 Ed. II for certainly it 's a thing of a much higher and transcendent nature to have power to dispense with all Penal Laws than to have the Preheminence of the Subjects in some particular cases only That he has it not in all originally is plain from that of Appeals for in case of Murder the Appeal at the suit of the Party was to be tryed before the Indictment which was the King's Suit and this was so till Henry VII's time when it was alter'd by Act of Parliament and this carries in it a great probability that there is something in England that is his Superiour but Bracton and Fleta say That Rex habet superieres in regno nempe Deum Legem Parliamentum Nay the Custom of the Mannor shall bind the King Statutes to prevent Fraud shall bind the King The King cannot give the Penalty of any Statute to any Subject he cannot pardon a common Nusance how manifestly preposterous is it then to suppose that the King can dispense with Penal Laws and is restrain'd in these and multitudes of other things of the like nature It has always been taken for Law that where the Subject has an Interest the King cannot pardon and therefore he cannot pardon one found guilty upon an Appeal at the Suit of the Party But if he can dispense with all Penal Laws he may also pardon where the Subject has an Interest and so consequently dispense with all Laws whatever and then no man's Title to his Estate is good nor can any man settle his Estate securely for Fines and Recoveries being now the means used in Settlements and those being directed by particular Acts of Parliament if therefore the King for some particular necessary Reasons shall think fit to suspend those Laws all the Settlements in England will be strangely confused and of how excellent a use upon occasion it may be to dispense with those Statutes which direct Fines and Recoveries is very easie to comprehend Now this power of dispensing seems to be of a very late date for Fortescue who wrote in Henry VI's time tells us That the Kings of England cannot alter nor change the Laws of his Realm at his pleasure and the reason he gives of it is because he governs his People by Power not only royal but also politick which is by such Laws as they themselves desire and gives a very pregnant Reason why the King cannot alter nor change the Laws because the Laws of Men are holy And he shews likewise That this Restraint is no diminution to his Power but does rather aggrandize him it