reputed such c. and every one of them to have hold and possess seat place and voice in our Parliaments Publick Conventions and Councils and of those of our Heirs and Successors within our Kingdom of England amongst other Barons and Barons of our Parliaments publick Conventions and Councils This having been the long used form of the Patents granted by our Protestant Princes it is not only an abatement of what the Sovereign intended for their well-deserving Subjects and a violating of that peculiar Right which was designed to be transmitted to their Posterities and thereby a degrading of Roman Catholic Peers of so importent a priviledge but it wrests out of the Kings hands a Royal Prerogative he hath Jure Coronae to make and create the Members of that most Honourable House which is his Supreme Court of Judicature The ill Consequences that may follow such Retrenchment being well worth serious Reflections and of the Kings Prerogative I having occasion hereafter to treat more largely shall add no more here but only hint to you the Resentments of some Parliaments when they have wanted their Members and close this Head with some short Reflections which with all due deference to better Judgments and those whom it may most immediatly concern I shall only offer to be considered Mat. Paris p. 885. Anno 1255. The Earls and Barons absolutely refused the King any assistance or answer at all to what he demanded because all the Barons were not at that time called according to the Tenure of Magna Charta Stat. 1â— 114 So the Acts of the Parliament of the 21th of Rich. 2. and all the proceedings therein were totally repealed and nulled by the first Parliament of King Henry the Fourth because the Lords who adhered to the King were summoned by him to the Parliament and some of the opposite party imprisoned impeached and unsummoned Pryns plea for Lords Stat. 24. When King Charles the First sitting the Parliament confined but one Member the Earl of Arundel the whole House of Lords Remonstrated and petitioned the King to take off the restraint and to admit him to sit and serve the King and Common-wealth in the great Affairs of that Parliament So the Lord Digby Earl of Bristol being not summoned the Lords ordered his Admission to Sit as his Birth-right 4 Justit p. 2. from which he might not be debarred for want of summons which ought to have been sent him ex debito Justitiae as Sir Edward Coke affirms Pryn ut supra p. 145 146. When the same King Charles demanded the Five Members the Two Houses grew exceedingly disquieted at it and would meddle in no other Business but adjourned themselves to Guild-Hall London till the King should give them satisfaction in discovering the Authors of that Counsel The stress of whose Argument in their Messages to the King Nov. 2. 1642 was That by that means under false pretences of Crimes and Accusations such and so many Members of both or either House of Parliament may be taken at any time by any person to serve a turn and to make a Major part of whereby the freedom of Parliament would be destroyed which they say dependeth in a great part on this priviledge because without it the whole Body of Parliaments may be dissolved by depriving them of their Members by degrees some at one time and others at another Plea for Lords p. 414. The same mischiefs which they urged might happen to the Being and Constitution of Parliaments by the Kings depriving the House of five Members may happen upon the Houses excluding their Members by Vote against which Mr. Prynn makes so great an Out-cry and from this unparallell'd president except in the long Parliament of expelling Members for their opinion in Religion Some Reflections upon the whole All Lovers of the so excellently composed Constitution of the Two Houses may do well to consider what an Inlet it will make to the Imitation of the likely designing Men when they shall have any Intrigue in hand to expel Members of other Qualifications Qualifications and Recognitions during the Usurpation Surely we ought not to forget how much it prolong'd our miserable slavery under the Usurpers when no Members how duly soever chosen by the Freeholders were admitted to sit unless they were so and so qualified and made a Recognition to own the Usurped Government and to Act nothing contrary to the Model of it I think it no great Commendation in us to be in Love with such a Copy of the same tho drawn in Oyl-Colours and made more lasting and obliging by the Legality of it When Queen Elizabeth was in greatest danger from Roman Catholics even while her Rival lived she could not be induced to deprive the Roman Catholic Lords of their places in Parliament The ill consequences of Secluding the Bishops I think we ought to remember what dismal effects followed the Seclusion of the Bishops out of the House of Lords and that upon the Kings Restauration none appeared more forward and zealous to have them brought into the House of Lords again than the Roman Catholic Peers did which Action none I think will interpret to have proceeded from their Love to their Religion but solely to the tender regard they had to Justice and the true Constitution of Parliaments and if the Bishops and Protestant Lords had thought fit to have been as careful of the Birth-rights of those few Catholic Lords that were Members of their House in all probability our Religion had been in as little danger by their stay as it hath been better'd by their expulsion for they neither were then or are like to be so numerous in that House as to carry any Vote to overthrow or weaken the Exercise of the Protestant Religion What sort of Acts of Parliament least dureable It must be owned that Acts of Parliament are to be looked upon as Laws the Subjects ought to yield all Obedience to But it is likewise to be considered that such Temporary Acts which upon Emergencies and to serve a juncture have altered any Ancient or Fundamental Constitution of the Government robbed the King of any useful Prerogative or the Subjects of their Birth-rights as likewise all such as by Revolution of Time have the Causes for which they were made ceasing have been rarely found conducible to Publick Good or of any long continuance It is true our present Sovereign was personally excepted from the severity of these Acts but it is well known that some great Members of the Houses designed to have him presented by the Grand-Jury as a Recusant in order to his Conviction as a Roman Catholic and the Judges for discharging the Jury too soon as the designers alledged whereby an Indictment could not be brought in were severely censured by the House of Commons This was not all for the hottest Zealots were for proceeding upon the Statute against being Converted or Reconciled to the Church of Rome upon
Crown It is a known maxim in Law saith the learned q Coke Report 7 p. 7. ex Stat. 11. H. 7. c. 1. 2 Eliz c. 2 Judge that every Subject is bound to defend the King and to go with the King and to serve in his Wars as well without as within the Realm The Liegeance to the Prince saith a singularly well read r Majestas Intemerata Lawyer is immutable and absolute in all places It obligeth in all ubi's and the liege man ought in duty of this faith to perform to his Lord the Offices of a Subject when ever he shall need his assistance against all who mori possunt aut vivere can die or live This is clear by Law and Reason In the 48 Å¿ Claus 48. H. 3. M. 3. Tam militiâ—e quam liberi homines omnes alii ad defensionem Regis tenentur H. 3. the words of the Law are That the Knights and Free-tenants and all others were obliged to the defence of the King And so 12 E. 3. All and every single person are bound to defend the King. Thence it was that a t 4 Instit 7. In â—â—riâ—â—lo Hestium suorum Parliament judged it High Treason in Nicholas Segrave that he withdrew himself from the Kings Hoste leaving the King in danger of his Enemies The ground of all which is what u Lib. 2. c. 1. Bracton so long since hath noted that to receive Justice and Protection are the greatest benefits of this Life and there can be no use of w Com. 3.5 Rulers without these Attributes for if the Sovereign be abridged x Roll. Eritt 234. of the Prerogative to exact Obedience and Liegiance from his Subjects he hath but a small portion of the Sovereignty indeed his Kingship must be precarious as depending only on the good Nature of his Subjects Thence the Attorney y Pusw Col cer 〈◊〉 552 General in the Argument of Ship-money saith The King as Head of the Politic Body is furnished with intire Power and Jurisdiction not only to minister Justice in Causes Ecclesiastical and Temporal unto his People but likewise for defence both of the one and of the other Whence the Clause inserted in the Register Ad providendam Salvationem Regis Bracton z 2 Lib. 1. fol. 6. saith The Life and Members of every Subject are in the Power of the King And a a Pasch 19 E. 1. Rol. 36. North. Record saith Vita membra sunt in manu Regis both which are understood that the King hath sole Power to command their Service in his Wars or otherwise as he hath occasion The Lord Chief b Instit 149. West 2.39 1 R. 3. p. 2. c. 15. Rol. Brit. 85. Justice saith That if any Privy Councellor or other cause one to enter into an obligation to serve the King it is void every man being bound to serve him without it and such Writings are declared dishonourable being every man is bound to defend the King and his Realm and to do the service that appertaineth to him as his Liege Lord. The King c Com. pl. 316. is stiled the Sovereign and Chief Captain of Arms all Power is his no man may use Arms so much as in Turnament Tilt c. without the Kings License The d Rol. Parl. 5 H. 4. N o 24. Statute of Array is full in this tho' not printed This is further illustrated in that if a Sheriff return that he is resisted in serving the Kings Writ it is declared not to be good because it redounds to the Kings dishonour being presumed the King can command every one to obey and the Sheriff hath Authority from him to raise the Posse Commitatus In former Ages the Kings absolute Power in disposing the Militia was never disputed It was the black or bloody Parliament only that assumed to themselves coordinate Power and challenged the Power of ordering the Militia for preserving the Kingdom without and against the Kings consent which occasioned the first Parliament of King Charles the Second to declare in the preamble of the Act e 13 Car. 2. c. 6. 14 Car. 2. c. 3. That it is and ever was the Kings Prerogative alone to dispose of the Militia of the Nation to make War and Peace League and Truce to grant safe Conduct without the Parliament and that he may Issue out Commissions of Lieutenancy impowering them to form into Regiments and imploy them as well within their own as other Countries as the King shall direct Since the taking away Tenures it is true the Method of raising Men hath been something altered but before the imposing of the Oaths of Supremacy and Allegiance and now this Test we find no qualifications of the persons required but that they should be habiles Corporis of able Bodies sit to serve the King and Country And tho this Test doth not totally deprive the King of the service of his Subjects yet it diminisheth his Authority and takes away the corporal Service of a considerable number of his Liege people Thirdly Hew careful our Ancestors have been to preserve the Prerogatives I now pass to the third particular in which I shall in some few instances shew how careful the Houses of Parliament have been in preserving inviolable the Prerogative of the Crown or when by any pressing emergency they have been invaded that the Judges have determined that the Kings of England might by a special non obstante dispence with the penalty of them This Question about the Test being wholly new and such a weakening of the Prerogative as hath not been known in our Ancestors days you cannot expect any clear discission of it in the Books of the Law. All one can do in such a case is only to produce some Maxims Presidents or parallel Cases that may affect it most which without the help of any ones Collections as having never perused any of the Arguments in Sir Edward Hales Case I shall out of my own small reading offer these following to your consideration The Attorney f Rushworth's Collect 578. General affirms That an Act of Parliament doth not extend to take away the Common Right of the Crown and saith That hath been the exposition of the Judges of Acts of Parliament that have done so He instanceth in the Magna Charta of King Johns 17º Regni where it is said That no Scutage or Aid should be without assent of Parliament So that in this there was no exception of an Aid to Knight the Kings Eldest Son or marry his Eldest Daughter yet it was resolved in this case that by that Charter those Aids were not abolished they being due by the Law of the Land and so it was declared 25 E. 1. cap. 1. We find an Antient Statute in King g Westons c. 50. 2 Instit 263. Edward the First 's time wherein the King speaks thus That he bad done this for the Honour of God the Honour of
shall it be in any to withdraw himself from the Allegiance and Duty to his Sovereign to serve him personally when he commands it This leads me to the Second viz. the Subjects part for this puts the Subject in a state and condition either of disability or denying to serve his Sovereign at his pleasure for those who are Roman Catholics cannot while such take the Oaths and make the Declaration they being so penned that none of that Faith can own them without renouncing their Church the Act containing nothing in its own Nature essential to Obedience but only controverted points of Faith. So many others who are not willing to serve the King in Military and Civil Imployments by pretext that they cannot with a safe Conscience take the Oaths c. Instantly obtain a Dispensation from their Allegiance which ought to be absolute and unconditionate and whatever may be the case of some few may be of many and consequently a Prince may be deprived of the necessary Aid of his Subjects even when any Rebellion or Invasion should happen for tho the King be willing to dispence with their not taking those Oaths c. Yet they may insist upon the penalty which they may pretend they cannot be secured from Here I must answer an Objection that I foresee will be urged that Contra Hostem publicum quilibet homo est miles against a public Enemy every man ought to be a Soldier and so it cannot be the intent of the Law that the King should be deprived of his Right to arm whom he pleaseth and can confide in in such a Conjuncture but only it was designed to hinder Catholics from being Commissionated and Imployed in times of Peace But who ever peruseth the Act will find no such Exception or Limitation which is a very rational plea against the equity of the Act that taking away so great a Prerogative makes no provision for the safety of the Crown even in such cases I remember my Lord Coke speaking of the statute 11 H. 7. saith It hath a flattering preamble pretending to avoid many mischiefs yet it was found that by colour of it Empson and Dudley did many enormous things therefore he observes that When any Maxim or Fundamental Law of the Realm is altered it is incredible to foresee what dangerous mischiefs follow It becomes therefore all Lovers of the Monarchy of England to be very careful to consider the dangerous consequences of taking out or undermining any Corner Stone of that Royal Fabrick and in this particular case to deliberate well of the dangerous sequels of such Laws as limit the Sovereign to use only persons so and so qualified For by the same president we cannot tell if a Prince should succeed that shall be a Calvinist or of any other perswasion opposite to the Church of England and obtaine a Parliament to his purpose but that he may make renouncing of the Episcopal Government or the Church of England a condition absolutely necessary to capacitate any to serve in any public Imployment and then we should find too late how cautious our Ancestors ought to have been to consider consequences of things We have a fresh instance of this in the Kings Supremacy which Act being purposely designed to abridge the Popes power here in matters Ecclesiastical hath heightned so much the Kings Power above what the Pope or any other Ecclesiastical Court ever had that now the Church of England finds how much they are at the Kings pleasure and must necessarily rely more upon the Kings clemency than upon any security they are in by that Act So that if some men had considered the extent of this it is probable they would have acted with more caution and observance SECT XIV Concerning the Sanguinary and Penal Laws against Roman Catholicks BEfore I proceed further I think it necessary to speak something to the Sanguinary and Penal Laws against Roman Catholics made upon the rejecting the Pope's Supremacy in Ecclesiastical Matters and for securing the Sovereigns that were Protestants and the Religion established since the Reformation For the clear illustrating of which I shall 1st Shew what the Principal of those Laws were 2ly The grounds and reasons why they were made And 3ly Shew that as to the security of the Civil Government the ends for which they were made now cease and then proceed to lay down the Inconveniences that will attend the not repealing of them An Abridgement of the Penal Laws As to the first In the 35 H. 8. c. 1. A Statute was made wherein it is declared Treason in any who refuse to take the Oath commonly called of the Supremacy of H. 8. to distinguish it from that of Queen Elizabeth The persons there appointed to take it are to swear that Neither the See nor the Bishop of Rome nor any foreign Potestate hath or ought to have any Jurisdiction Power or Authority within the Realm c. 1 Eliz. That of Queen Elizabeth appoints all to swear that No foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Prehemenency or Authority Ecclesiastical or Spiritual within the Realm And in the 5th of the Queen the refusers to take it are guilty of a Premunire And in the former Statute No man shall by Writing Printing Teaching Preaching c. maintain or defend the Authority Preheminency Power or Jurisdiction Spiritual or Ecclesiastical of any foreign Prince Prelate Person State or Potentate which was heretofore claimed c. within this Realm for the third offence shall suffer as a Traytor Anno 13 Eliz. cap. 2. It was Enacted That if any person use or put in use any Bull Writing or Instrument Written or Printed of Absolution or Reconciliation or if any shall take upon them by colour of any such Bull Writing c. to Absolve or Reconcile any Person or Persons or promise such Absolution or Reconciliation it shall be judged High Treason So bringing of Agnus Dei's Crosses Pictures Beads or such like vain and superstitious things from the Bishop or See of Rome or any authorized or claiming Authority from the Bishop or See of Rome to Consecrate or Hallow the same shall be guilty of a Premunire 27 Eliz. c. 2. All Jesuits Seminary Priests or other such Priests Deacons or Religious or Ecclesiastical Persons whatsoever born within the Queens Dominions made ordained or professed by any Authority or Jurisdicton derived challenged or pretended from the See of Rome unless upon some occasions allowed by the Act that shall be known to come into or remain in the Realm or Dominions shall suffer lose and forfeit as in case of Treason Also all such as shall willingly and wilfully receive relieve comfort aid or maintain any such being at liberty and out of Prison shall be adjudged Fellons Likewise to give or contribute any money or other relief to such out of the Dominion or for maintenance of any Colledge of Jesuits or Seminary Priests shall
he had a great Veneration yet he could not but observe however since the Presbiterian Plot they preached up the danger of Phanaticks to be more than of Papists and that to disinherit the Duke was against the Law of God Which said oppinions said he If they should be Imbibed by the People what would the Associating Bill signifie or any other Law against Popery J. B. Another said That People were come to know that the Clergy may be good Divines but not so good Politicians And that the Clergy-men might be in a possibility of being advanced by Popery if they submitted but the Laity under a probability of loosing all notwithstanding all Submission And added That he doubted not but that many of the Beshops and Clergy would as soon die for the Protestant Religion as any Person in the Nation but he was jealous there was some over-ruling Power yet amongst them something answerable to that of a Popish Successor This Gentleman seemed kinder than the rest in that he charged them mostly with want of foresight and inadvertency that some Leading Men of their Order were decoying them to overlook their Interest But surely in this they Acted like good Politicians as well as Divines in that thereby they saved a great effusion of Blood which necessarily must have followed such an unjust Bill And I hope they will retain the same Integrity and Wisdom with a good Conscience as to afford no occasion to their Enemies to censure their defect of Religion or Policy or allay the King-Affection and Grace to them for that Service then done to him SECT IV. The Calumnies against the Loyal Members of the Church of England in the foregoing times I Think it not unfeasonable here to refresh your Memory with a Summary of the Calumnies laid upon the Loyal Members of the Church of England in the Reign of the two late Kings of Glorious Memory In King Charles the First 's Reign the People being wrought upon to repine at some ways of levying Money not usual and some Rules of Uniformity either disused or not so Universally practised before chose in most places such Members of Parliament as they thought would be most ready to redress those Grievances who no sooner were met but the Designers amongst them set the People upon petitioning against Innovations Then the Bishops and most of the dignified Clergy were accused of an intention to bring in Popery and to make some approaches to a Conformity to the Church of Rome Every where hideous Crys were heard of the apprehensions of the Inundation and Inflowing of Popery when the thousandth Man scarce knew what it was or who were the Preservers of the Banks which most powerfully kept it out and having got Power by those Suggestions and gained an Aversion in so many against them before they had over powered the Monarchy voted down and in the effectualest way they could totally overthrew the English Hierarchy And all that asserted the Government then exercised in Church and State were branded as Betrayers of the Subjects Birthright Priviledges and Liberties and Favourers of Popery and Arbitrary Government Which Epithets they never failed to interweave and on whomsoever they fastned such of their Petars they were sure to have their Reputation blasted and all their subsequent Actions rendred odious to the Commonalty who the soonest of any Mortals are blear-cy'd and distorted with the suspitious squint In the late Kings time all Loyal Men who profest most strict conformity to the Church of England and were not for the Bill of Seclusion or Comprehension were stigmatiz'd with the names of Papists in Masquerade How efficacious these Calumnies were to Arm so great a part of the Subjects against the blessed Martyr of his People and bring him to that tragical end is too fresh in our Memories to need a recital And when we found the powerfulness of those Fictions and Imaginary Goblins in both Kings Reigns to endanger the Subversion of the Monarchy and Episcopacy Have we not reason to believe that there are a great number of Republican Spirits yet at work who subtily mingle themselves with all Male-Contents and dissatisfied Parties and by their sly insinuations inflame every small Scratch and rancle it into a venomous Boil by their pestilent and contagious Breath Those are continually raking into the Ashes of every of these by-past Designs keeping some Brands always in the Embers ready upon every light occasion to be blown into a Flame Can we believe those to be now at rest and quiet to have hushed or mortified their eager Concupiscence of advancing the Good Old Cause No no let us not believe the Fox hath forgot his Shifts and Wiles or the Crocodile his Tears or the Asp his venemous Bite Let us fear the gilded Snake in the Grass yea rather lurking in every Thicket where repining murmurs sears jealousie or discontent can lodge SECT V. The Affrightments and Arts now used to make the Subjects believe that the Protestant Religion is to be extirpated here THese are a set of Men who by their whispering dissatisfaction and suspitions of the danger of the Protestant Religion are but fitting their Mouths and preparing their Lungs to blow the Bag-pipe of Sedition And when they have allured the Crowd will endeavour to decoy them into the same Designs with themselves and excite us to follow the Methods they used in our Fathers days That new Japan doth much resemble the old Varnish only they have found out new Exotick affrighting Figures And whereas before the Emblem of Venient Romani was placed at so great a distance from the Sight that it was but faintly delineated as in a remote Prospect Now they think they may be bold to place it in a nearer Light and hope to allure the Tender-sighted and well Affected to the Church of England to believe the reality of the Representation which is no other but that the Roman Altars are to be placed where Communion Tables now stand That the great Fabrick of St. Pauls is to have a Cupula with the Sword of that Saint and the Keys of St. Peter upon it That our Common Prayer is to he changed for a Mass-Book And in fine that the Protestant Religion is designed to be extirpated The Plausible Inducements they pretend to have to believe this are the Liberty the King grants to all his Catholic Subjects to Exercise their Religious Worship the suspending the execution of all the penal Laws against them and the placing of Catholics contrary to the Provision made by Act of Parliament to exclude them These Proceedings of the King they would make us believe are manifest Demonstrations of his intentions to recede from his Royal Promise of protecting the Church of England and consequently that it will crumble to nothing by his withdrawing it This they endeavour to infer by the consideration of the influence the Pope and the Catholick Fathers may have upon his Majesty who will be continually instilling into his Royal Mind how
shall receive any Sallary Fee or Wages by reason of any Patent or Grant from his Majesty or shall have command or place of Trust from and under his Majesty or from any of his Majesties Predecessors or by His or Their Authority or by Authority derived from Him or them within the Realm c. or in his Majesties Navy I slands c or shall be of the Houshold or in the Service or Imployment of his Majesty or of his Royal Highness the Duke of York c. shall personally in the Court of Chancery or Kings-Bench take the several Oaths of Supremacy and Allegiance and receive the Sacrament of the Lords Supper according to the usage of the Church of England and the like for all Officers to be admitted to any Office for the future within a time limitted The Neglecters or Refusers to be adjudged incapable of any other Office or to Sue use any Action Bill Plaint or Information in Courts of Law or prosecute any Suit in any Court of Equity or to be a Guardian to any Child or Executor or Administrator of any Person or be capable of any Legacy or Deed of Gist or to have any Office and shall forfeit 500 l. The persons obliged to take the Oaths shall at the same time make and subscribe the Declaration following under the same penalties and forfeitures as by the Act appointed The Declaration is in these words I A. B. do declare that I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper or in the Elements of Bread and Wine at or after the Consecration thereof by any person whatsoever There is a Provision that this Act shall not hurt or prejudice the Peerage of any Peer of this Realm either in time of Parliament or otherwise But this was in the next Act fully vacated The Second Act. 30. Car. 2. The second Act is Intiuled An Act for the more effectual preserving the Kings Person and Government by disabling Papists from sitting in either House and the Preamble adds That for as much as divers good Laws have been made for preventing the increase and danger of Popery in this Kingdom which have not had the desired effect by reason of the Liberty which of late some of the Recusants have had and taken to sit and vote in Parliament Therefore it was Enacted That no Peers of the Realm and Members of the House of Peers should Vote or make their Proxy in the House of Peers nor any sit there during any debate in the said House Nor should any Members of the House of Commons Vote or sit there during any debate after the Speaker was chosen until they respectively take the Oaths of Allegiance and Supremacy and make and subscribe and audibly repeat the Declaration following I A. B. Do solemnly and sincerely in the presence of God Profess Testifie and Declare That I do believe that in the Sacrament of the Lords Supper there is not any Transubstantiation of the Body and Blood of Christ at or after the Consecration thereof by any person whatsoever and that the Invocation or Adoration of the Virgin Mary or any other Saint and the Sacrifice of the Mass as they are now used in the Church of Rome are Superstitious and Idolatrous Likewise no Peer of England Scotland or Ireland being twenty years old nor any Convict Recusant that takes not the same Oaths and make and subscribes the Declaration may advisedly come into or remain in the presence of the King or Queens Majesty or come into the Court or House where They or any of Them reside Every Peer or Member thus offending shall be deemed and judged a Popish Recusant and suffer as such be disabled to hold or execute any Office or place of Profit or Trust Civil or Military in any of His Majesties Dominions c and shall not Sit or Vote in either House or make a proxy in the house of Peers or have any benefit of the Law as in the foregoing Act and shall forfeit 500 l. Also every sworn Servant of the King not having performed all things in the former Act required shall do what this Act enjoyns or shall be disabled to hold any place as sworn Servant to the King and suffer all the Pains and Penalties aforesaid The Proviso's are That Nine of the Queens Men-servants natural born-subjects of Portugal and as many Women-servants such as shall be nominated by the Queen under her Hand and Seal are exempt from the taking these Oaths c. Secondly That none be restrained from coming or residing in the King or Queens presence c. that shall first obtain warrant so to do under the Hands and Seals of six or more Privy Councillors by order from his Majesties Privy Council upon some urgent occasion therein to be expressed so that such Licence exceed not the space of ten days at one time nor thirty days in one year and such Licence to be recorded in the Petty-bag-Office Lastly That nothing in this Act shall extend to his Royal Highness the Duke of YORK Some Reflectione upon these Acts. Whoever peruseth these Acts in the circumstance we now are in will easily I think yield that whatever temporary uses there could be formerly of them yet they could never be put in practice by a Roman Catholick King or that he could suffer the execution of them as I shall more at large shew in the following Discourse In this place I shall only touch upon some few Heads As The Sererity First Concerning the severity in General upon those who could not renounce the Doctrine of Transubstantiation Invocation or Adoration of Saints these being purely Metaphysical Points of Religion setled by Pecrees of Councils in the Roman Catholic Church oblige those of that Communion to believe them under the penalty of an Anathema yet I think it is not easie to prove that these Doctrines have any Natural Tendency to induce the Believers and Practisers of them either to endanger the Person of the King or the Government which is declared to be the principal end why the Acts were made and as to the increase of Popery these very Doctrines are so far from working upon Protestants that they are the very chief impediments which hinder the people in General from embracing that Religion Therefore it must appear very severe that all persons who by a spiritual obligation cannot renounce these Doctrines and Practices should be obnoxious to those penalties which as convict Papists they are liable to and which however vexatious and chargeable to them redound mostly to the profit of Informers Bayliffs Clerks and such persons as bear no proportion of Merit or Interest in the Government to those suffering Roman Catholic Lords and Gentlemen and by such Payments Fines c. the Kings Revenue is very little encreased The Reasons why made Although some may think some of the branches were then necessary to prevent all Roman Catholics from enjoying publick
employments whereby the Managery of the Government might solely be in the hands of Protestants yet what necessity was there for the outlawing of them in putting them out of the protection of the King and his Laws or of receiving any benefit by them so that they could not recover their just debts defend themselves from any injury done to their Persons or Estates nor have equity done them which is the priviledge all Subjects claim from their Sovereigns Justice As they must suffer all hardships so the Acts provide that no Protestant or other should be beneficial to them being deprived of all the usual ways whereby advantages accrue to any either by the Living or the Dead in that they might not be Guardians Executors Administrators or receive any Legacy or Deed of Gift Whoever considers these things with a sedate and composed mind undisturbed with Bigotry Suspition or Envy must think this punishment intended to keep the Roman Catholics in perpetual poverty and vassallage which no Roman Catholic Prince can take pleasure to see or endure Of the prohibiting Rom. Cathol to be in the Kings Court or Presence As to the prohibiting all Roman Catholics or any other resusers of the Oaths and Declarations advisedly to come into the Kings Presence or Courts there might be some colour for such a prohibition during the time that a Protestant Prince was thought to be in personal danger from Roman Catholics but surely at any other time it appears a strange ungentileness to retrench a Sovereigns attendance and shews a very unbecoming diffidence in the Wisdom of a Prince and his Privy Council as if they knew not whom and when to prohibit Access to their Royal Persons and Court which by direction to the Lord Chamberlain or by Proclamation might be done upon Emergencies It looks like a suspition that the hinderance of the Access of Roman Catholics was rather that they might not represent their sufferings explain their Religion more favourably make Proselytes or interceed for some accused which though not expressed in the Act fully yet may well enough be interpreted from the words preventing the increase of Popery I know there is a provision upon obtaining of licence but that could extend to very few who either could be at the expence or obtain the favour of an Order of Council for that purpose and so all indigent Catholics who for their sufferings for Kings Charles the Martyr might merit the late merciful Kings regard and benignity were utterly excluded Not fit now to continue But if we suppose these Acts as necessary and equitable as the greatest Sticklers for them could evince while the Plot was believed I think no person endowed with common civility will think it fit they should be imposed upon our present Sovereign nor will they think it equitable and just that any Roman Catholic King should deal in the same manner with his Protestant Subjects And I presume the Golden Rule to do to others as we would be done by our selves should influence publick as well as private affairs Concerning the King and Queens sworn Servants As to the Kings sworn Servants It must be very severe upon several of them whose fortunes were bottomed upon it and it was a very unbecoming restraint that a Sovereign should dismiss his Domesticks though never so experienced and faithful for that which it may be few Members of the Houses would discard a Trusty Menial Servant for As to the Queens Servants it had been contrary to the Law of Nations to have imposed such Oaths and Declarations upon such as were naturaly born Subjects of Portugal yet in that they were limited to so small a number as nine whereas her Majesty entertains near thrice the number of Religious it shewed but little consideration of the number of Servants in the Family of so great a Princess But I need not trouble you with the consideration of these as moving in a lower Sphere for what ever will induce the two Houses to reinstate the great Orbs in their places and capacitate them to exert their due Powers will prevail to restore the Satellites of the great Luminaries Therefore I shall now pass to the ejecting the Roman Catholic Lords out of their House and depriving them of their Birth-rights Concerning the Catholic Lords being excluded the House By the Kings Royal Prerogative the Power of Creating a Baron and Peer of the Realm is only in the King as the Original Donor of all Honours from whom all Dignities flow as from a Fountain to all his Subjects Conciliarii nati This Honour consists not only in obtaining a swelling Title and Degree of precedencie as special Marks to them and their Families of Princely Favours but likewise hath for many hundreds of years had annexed to it a right of being a Member of the House of Peers sitting and voting there and thence they are stiled frequently Hereditary Councellors who constitute the Kings Supreme Court of Judicature In the Saxon times and long after the Conquest we find none but Bishops Abbots Priors and these stiled Magnates or Proceres to constitute the General Councils which we now call Parliaments tho it seems by what we can collect from the Ancientest Authors the King summoned which of these he pleased and did not tye himself to continue it to their Posterities Mat. Paris 227. But in the Great Charter of King John we find he granted that he would by special Letters summon to these Great Councils in Assessing all Aids and Scutage the Arch-Bishops Bishops Abbots Earls and great Barons of the Realm Cap. 2.12.19.37.38 So in the Great Charter of Henry the Third those are first provided for and a severe Excommunication was wont to be pronounced by all the Bishops in presence of all the Lords and Commons against the Infringers thereof And it is obvious to all who know any thing of our Laws how Sacred an Esteem the Great Charter hath had being stiled The Charter of the Subjects Liberties and looked upon as the Standard of the Subjects Priviledges so that some are of opinion that even Acts of Parliament contrary to Magna Charta are void Et ut Barones tractentur teneantur reputentur c. eorum quilibet habeat teneat possideat sedem locuus vocem in Parliamentis publicis Comitiis et consillis nostris haeredum successorum nostrorum infra Regnum nostrum Angliae inter alios Barones Barones Parliamentorum publicorum Comitiorum Conciliorum T it 〈◊〉 Part. 2. cap. 5. This Right of Barons sitting and voting in Parliament is specially provided for in their Patents of Creation which may be seen at large in Mr. Selden And as to what relates to our purpose is contained in these Words after the Recital of the Words of Erecting and Creating them and their Heirs-males to the Name State Degree Stile Dignity Title and Honour of a Baron c. That they shall be treated held and
they are imployed will as Bravely Honourably and Circumspectly discover their abilities and I hope will keep so good a correspondence with Loyal Protestants that are their Fellow-Servants to so great a Master that the King may at least have that satisfaction that he can unite them in a Camp which he cannot do in a Church and shew his great wisdom in Government that he can be faithfully and effectually served by all his Subjects of different Religious Interests And though the endeavours of several to explicate the Roman Catholic Religion more approachingly to the sentiments of Protestants have not as yet had that effect they wished yet it may be useful to let us see that in affairs of State and Government such an intercourse and mixture may be as former Ages have not known and by the Conduct of our Gracious and Wise King may be laid a foundation for better accord in future times that we may not be at such feuds among our selves It is true that under a Protestant King there might be some reason to maintain the Protestant Church so as it might neither be indangered by the Roman Catholics or Protestant Dissenters and by Sanguinary Laws tho rarely put in use people might be deterred from being of any other Communion yet we cannot think that the same measures can be taken now such circumstances varying the methods of proceeding and in Government and Politicks new Emergencies may yea must render old Axioms obsolete Hence we take notice how imprudent these Informers are who in our King's Reign more out of pretence and impotent zeal than for any good concern to the Church of England tempt the Justices and instigate them to prosecute Catholics by binding them to Sessions and Assizes for what can be expected from this but it will exasperate the King and discover how desirous these are to persecute them tho they know he will pardon the Transgression in as much as it relates to himself Thirdly 3 It is against the Kings Prerogative Having thus far treated of the Natural and Religious Grounds the King hath to demand to have the Act repealed I come now to the politic and more necessary part as it relates to the legal constitution of the Government which by this Act of the Test suffers a great alteration in the abridging the King of an undoubted Prerogative of the Crown For the illustrating of which I shall first give you the opinion of the most Celebrated Writers of the English Laws of what nature the Kings Prerogative in general is Secondly That the Leigance of the Subject to his Sovereign is judged among the principal Prerogatives of the King. Thirdly How tender our English Ancestors have been of the Royal Prerogative Fourthly That the Test deprives the King of the Leigance and of that Fundamental Prerogative of having the service of his Subjects And Lastly Conclude with some Inferences from these Considerations The nature of the Kings Prerogative As to the first a L. 1. Instit 90. Sr. Edward Coke saith the Prerogative extends to all Power Preheminence and Priviledge which the Law giveth to the Crown b Lib. 1. Bracton calls it in one place the Liberty in another the Priviledge of the King. c Fol. 47. Bretton following the d Weston 1. c. 50. Statute calls it Droyt le Roy and the e 61. Register stiles it the Kings Right and the Royal Right of the Crown My Lord f 2 Instit 84. Coke saith the Prerogative of the King is given him by the Common Law and is part of the Law of the Realm g Prerog c. 1. Stanford saith the Prerogative hath its Being from the Common Law and the Statutes are but declarative Properly speaking the Prerogatives of the Crown are such powers as the Kings of England have reserved to themselves as most necessary for the support of their Dignity and the Government Therefore h Rusâ—w Collect. 555. Sr. John Banks in his argument about Ship-mony affirms that the Jura Summae Majestatis which are the Prerogatives are given to the person of the King by the Common Law and the Supreme Dominion is inherent in his Person Another judicious i Mr. White Majestas Intemerata p. 30. Lawyer out of the Authorities he there cites saith The Prerogative is inseparable from his Person not grantable over it is always stuck upon the King or Crown and being inherent to the Majesty of a King and part of the matter of that Majesty is no more grantable than the Majesty it self or a Royal member of the Imperial Stile These are the Characters given to the Kings Prerogative in general â— The Subjects 〈…〉 the Crown Let us now in the second place consider that among the Prerogatives of the Crown It hath been always accounted one of the eminentest principal and fundamental ones that the King and none but he may at his own pleasure command the service of all and every his Subjects in his Wars and other Ministerial Offices which they are bound to by their Natural Allegiance Hence k 2 Instit. 128. Sr. Edward Coke stiles Leigeance the highest and greatest obligation of Duty and Obedience that can be and defines it The true and faithful obedience of a Liege man to his Liege Lord or Sovereign and so calls it * Vinculum Fidei Leges essentia The Ligement or bond of Faith and the essence of the Law and in l 7 Rep. p. 9. amittit Regnum sed non Regem amittit Patriam sed non Patrem Patrie another place he affirms That it is not in the power of any Subject to dissolve this Obligation saying That he that abjures the Realm may loose the Kingdom but not the King may loose his Country but not the Father of his Country agreeable to what another eminent m Dyer fol. 300. Lawyer asserts That none can divest himself of his Country in which he is born nor abjure his due Allegiance nemo patriam qua natus est exuere nec ligeanciam debitam ejurare potest In Calvin's Case the famous n 7 Rep. p. 4. Chief Justice saith That Liegeance and Obedience is an Incident inseparable to every Subject For as soon as he is born he oweth by Birthright Liegiance and Obedience to his Sovereign therefore in several Acts of o 14 H. 8.61 43 H. 8. c. 3. Parliament the King is called The liege and natural liege Lord of his Subjects and his people natural liege Subjects So that the liegiance is due to the natural person of the King by the Law of Nature which is immutable is part of the Law of England and was before judicial and municipal Laws as the same great Author affirms Long before him p Lib. 1. Stanford Plea 54. Bracton saith That things which are annexed to justice and peace belong to none but the Crown and dignity Royal nor can they be separated from the Crown for they make the
the Church for the Common-weal and for the remedy disburthening and ease of them that be grieved yet this should not be prejudicial to him or to his Crown but that the Right which to him appertaineth should be saved Which Sir Edward Coke calls the Kings Right of his Crown and Prerogative It is declared by the Lords and Commons in full h Reâ—l Parliament 43 Ed. 3. No. 7. Parliament upon demand by the King That they would not assent to any thing in Parliament that tended to the disinhereson of the King and the Crown whereto they were sworn This makes the Chief i 4 Iuctiâ— 51. Justice censure as a great fault the omission in the printed Statute of 2 R. 2. in confirmation of Liberties these Words Saving to the King his Regality which are found in the Parliament k Roll. Parlam 2 R. 2. Stat. 2. cap. 4. Roll. A Lawyer l Davis Reports 86. of no small esteem saith The Commons of England have ever been exemplary for the tenderness of the Kings Honour and the maintenance of the Sovereignty But this was before they medled so much with Articles of Religion So in latter times 3º Car. 1. both Houses declared upon passing the Petition of Right that they have neither intention nor power to hurt the Kings Prerogatives Thus far as to the regard our Ancestors have had to the Royal Prerogative Now I shall in a few particulars shew the resolutions of the Judges in such Cases when Acts of Parliament have intrenched upon them In the 13th of m 4 Institu 42. How the Judges have resolved upon Acts of Parliament that Insringe the Preregative Richard the Second Stat. 2. cap. 1. it was enacted That no Charter of Pardon unless so and so qualified should be from thenceforth allowed by the Justices for Murther Treason or Rape and if it were otherwise the Charter to be disallowed Yet my Lord Coke saith This did not bind the King the granting of Pardon being the Kings Prerogative incident solely and inseperably to the Person of the King. The same Richard the Second bequeathed n Ibid. certain Treasuries to his Successor on condition to observe the Acts made the 21 Reg. This was held unjust and unlawful for that it restrained the Sovereign Liberty of the King his Successor And the same Reason saith a judicious o Majestas Intemorata Lawyer may serve to overthrow a Statute which shall unjustly and unlawfully restrain the same Sovereign Nor had saith he this bequest been of more strength had it been enacted by Parliament Injustice being Injustice and Vnlawfulness Vnlawfulness every where It was p Cokes Report 12. p. 14. enacted 23 H. 6. That no man should serve the King as Sheriff in any County above one year but the Grant should be void the person accepting it pay two hundred pound and it was expresly provided that the King by a non obstante should not dispence with it Yet it was agreed 2 H. 7. against the express provision of that Act That the King may by a special non obstante dispence with the Act because no Act could debar the King from the service of his Subjects which the Law of Nature did give unto him In the 37 H. 6. it was q Ibid. p. 18. enacted That none should be Justice of Assize c. in the County where he was born or did inhabit Yet saith the same judicious Lawyer the King with a special non obstante may dispence with it and gives the reason for that it belongs to the inseperable Prerogative of the King viz. his power to command to serve The same r Ibid. p. 18. Lord Chief Justice in the same report is more express and as full as if he had foreseen this present Case of ours where he affirms That no Act can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante and instanceth in the Sovereign Power to command any of his Subjects to serve him for the Public Weal For this saith he is solely and inseperably annexed to his Person and this Royal Power cannot be restrained continues he neither in Thesi nor Hypothesi but that the King by his Royal Prerogative may dispence with it For all which he gives this most unanswerable reason because upon the Commandment of the King and Obedience of the Subject doth the Government subsist I might add very many more Authorities as Edw. the Thirds repealing an Act of Parliament by Proclamation as consented to upon necessity But I shall leave that to those whose Province it is and close this Head with one Observation We are all commendably and justly tender of the preserving the Liberties and Enfranchisments we enjoy by the gracious Condescentions of our Princes and are vigorous maintainers of our Properties and ought we not to own that there is as good reason that the Kings of England should be as solicitous to preserve their Prerogatives which are their right For as a most judicious Å¿ Quicquid in Regalibus est Ita est Principibus privatum ut Subditis quod suum est Selden prefat Mare Clausum Antiquary and Lawyer expresseth Whatsoever belongs to the Kings Royalty he hath as much Propriety in it as the Subject hath in any thing that is his We must likewise consider that the King is as much sworn to preserve the Right of his Crown as the Liberties of the People Therefore we find that branch in t Majestatis Intemerata some Coronation Oaths that the King swears he shall keep all the Lands Honours and Dignities of the Crown righteous and free in all manner whole without any manner of minishment And the rights of the Crown hurt decay or lost to his power shall call again into the Ancient Estate Therefore my Lord u 12 Rep. 18 Coke praiseth King Henry the Second in that he was a great Defender and Maintainer of the Rights of the Crown Inferences from the premises Having dispatched these Heads I now come to the application of them to the Test which as the Case now is and ever will be so long as it stands unrepealed deprives the King of the Allegiance of such of his Subjects as either Conscientiously or Designedly refuse the taking of the Oaths and affirming the Declaration enjoyned The Inconveniency of which is double First In robbing the King of so necessary and fundamental a Right over his Subjects in commanding them to serve him in Offices Military and Civil without which he is but a very Impotent Sovereign and cannot exert that necessary Justice of Protecting Rewarding and Imploying his Subjects which surely is not only much to the dishonour of the Sovereign but an unsufferable restraint And if w 31 Eliz. c. 4. Imbezelling Purloyning and Conveying away the Arms Ordnance Munition Shot Powder Habiliments of War c. is declared Fellony what sort of Crime
incur the penalty of Premunire I need not mention the severe Laws of that Queen against convict Lay Recusants As confining them within five miles of their Habitation and the poorer sort that had none to Prisons or other Restraints and to the end that the Realm be not pestred and overcharged with the multitude of such seditious and dangerous people they must abjure the Realm King James the 1st 1º Reg. c. 4. Confirms all the Laws of Queen Elizabeth against Jesuits Seminary Priests c. and enjoyns the taking of the Oath of Obedience commonly called Allegiance which was more directly to oblige to Fidelity than in point of Faith and only enjoyned to repair to Church and continue there during the time of Divine Service and not to send any to Seminaries beyond Seas Cap. 4. But in the third of his Reign when the Gun-powder Treason was discovered the Laws were made more severe that If any shall put in practice to absolve perswade or withdraw any of the subjects of the King or of his Heirs from their Natural Obedience to his Majesty his Heirs or Successors or to reconcile them to the Pope or See of Rome it shall be High Treason and those that are willingly absolved or withdrawn as aforesaid or willingly reconciled shall be adjudged Traitors ◠5. At the same Parliament it was enacted that Recusants should not come to the Court that they should depart from London be confined within five miles of their Habitations Convict Recusants should be as Excommunicate Persons made incapable of most Offices Civil or Military of practising Law Physick c. Which no doubt gave rise to the Test and which in its full extent was never put in use and hath been connived at or dispensed with under Protestant Princes ever since Likewise under several penalties they were to Marry Baptise and Bury according to the Laws of the Realm The grounds of these Laws Now if we enquire into the grounds of all these Laws we shall find them expressed in the several Acts as in that of the 35º of H. 8. it is said to be made in Corroboration of that made in the 28th of the same King To exclude the long usurped Power Authority and Jurisdiction of the Bishop of Rome That of the first of Queen Elizabeth is to the intent That all usurped and foreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm c. In the 5th of the same Queens Reign the grounds are expressed For the avoiding both of such hurts perils dishonours and inconveniences as have before time befallen as well to the Queens Majesties Noble Progenitors Kings of this Realm as for the whole estate thereof by means of the Jurisdiction and Power of the See of Rome unjustly claimed and usurped within this Realm as also of the dangers by the fautors of the said usurped Power at this time grown to marvelous outrage and licentious boldness and now requiring more sharp restraint and correction of Laws c. 〈…〉 The Reasons for the passing the Act of the 13th of the same Queen is more full viz. That divers seditious and very evil disposed people minding not only to bring the Realm and the Imperial Crown thereof being indeed of it self most free into the Thraldom and Subjection of that Foreign Vsurped and Vnlawful Jurisdiction Preheminency and Authority claimed by the See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful Obedience and to raise and stir Sedition and Rebellion within this Realm and so mentions the Pope's Bull to absolve and reconcile all those that will be contented to forsake their due obedience whereby hath grown great disobedience and boldness in many not only to withdraw and absent themselves from all Divine Service now most Godly set forth and used in this Realm but also have thought themselves discharged of and from all obedience duty and allegiance to her Majesty whereby most wicked and unnatural Rebellion hath insued and to the further danger of this Realm for hereafter very like to be renewed if the ungodly and wicked attempts in that behalf be not by severity of Laws restrained and bridled Cap. 2. The 27th of the same Queen lays no stress upon Religion but only on the security of the State altho it was the first Act that prohibited Jesuits Priests to come over and stay here under penalty of Treason without whose Offices the Roman Catholics could no ways exercise their Religion The grounds in that Act are expressed That of late Jesuits Priests c. have come and been sent into the Realm c. of purpose not only to withdraw her Highness Subjects from their due obedience to her Majesty but also to stir up and move Sedition Rebellion and open Hostility within the same c. Cap. 2. The Act of the 35º of that Queen expresseth that For the better discovery and avoiding of such traiterous and most dangerous conspiracies and attempts as are daily devised and practised against the Queen by sundry wicked and seditious persons who terming themselves Catholics and being indeed Spies and Intelligencers c. hiding their Detestable and Devilish Purposes under a false pretext of Religion and Conscience c. Cap. 4. In the Act of the first of King James the first the grounds are For the better and more due execution of the Statutes heretofore made against Jesuits Seminary Priests and other such like Priests as also against all manner of Recusants be it ordained c. The third of the same King expresseth the Reasons thus For as much as it is found by daily experience that many his Majesties Subjects that adhere in their hearts to the Popish Religion by the Infection drawn from thence by the wicked and devilish counsels of Jesuits Seminaries and other like Persons dangerous to the Church and State are sō far perverted in their Loyalties and due Allegiance unto the Kings Majesty and the Crown of England as they are ready to entertain and execute any treasonable conspiracies and practices as evidently appears by that more than barbarous and horrible attempt to have blown up with Gun-powder the King c. Having thus given a short draught of the severe Laws against Roman Catholics and the Reasons and Grounds of them It is obvious that those for the Supremacy were enacted principally to exclude the Popes Authority in Matters Ecclesiastical which opposed King Henry the Eighth's Divorce and the Reformation of the Religion begun So that a Subject in point of Conscience and mere Matter of Faith that could not be induced to believe a King and Prince capable of being Head of the Church but shall be invincibly perswaded how erronious soever that the Pope is St. Peter's Successor and Christs unquestioned Vicar upon Earth and cannot without hazard of his Soul consent to acknowledge otherwise yet not